[Federal Register: March 24, 2008 (Volume 73, Number 57)] [Rules and Regulations] [Page 15431-15458] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr24mr08-12] ======================================================================= ----------------------------------------------------------------------- FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 15, 27, 54, 73 and 76 [CS Docket No. 07-148; FCC 08-56] DTV Consumer Education Initiative AGENCY: Federal Communications Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This document adopts rules requiring industry to participate in a coordinated, nationwide, consumer outreach campaign. Despite extensive consumer outreach efforts by the Commission and others, a large percentage of the public is not sufficiently informed about the DTV transition. The rules in this item will ensure that the full benefits of the transition are realized and experienced by consumers. DATES: The rules in this document contain information collection requirements that have not been approved by the Office of Management and Budget. The Commission will publish a document in the Federal Register announcing the effective date of these rules. ADDRESSES: Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, or via the Internet to PRA@fcc.gov. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, please contact Lyle Elder, Lyle.Elder@fcc.gov, or Eloise Gore, Eloise.Gore@fcc.gov, of the Media Bureau, Policy Division, (202) 418-2120. For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Cathy Williams on (202) 418-2918, or via the Internet at PRA@fcc.gov. SUPPLEMENTARY INFORMATION: This is a summary of the Federal Communications Commission's Report and Order in MB Docket No. 07-148, FCC 08-56, adopted February 19, 2008 and released March 3, 2008. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). Paperwork Reduction Act of 1995 Analysis This document was analyzed with respect to the Paperwork Reduction Act of 1995 (``PRA''), Public Law 104-13 and contains new and modified information collection requirements, including the following: (1) Broadcasters must provide information to their viewers about the DTV transition, and must report those efforts to the Commission and the public; (2) MVPDs must provide monthly notices about the DTV transition in their customer billing statements; (3) manufacturers of television receivers and related devices must provide notice to consumers buying their devices of the transition's impact on that equipment; (4) DTV.gov Partners must provide the Commission with regular updates on their consumer education efforts; (5) ETCs that receive federal universal service funds must provide notice of the transition to their low income customers and potential customers; and (6) the winners of the 700 MHz spectrum auction will be required to report their consumer education efforts. The information collection requirements contained in this Report and Order will be submitted to the Office of [[Page 15432]] Management and Budget (``OMB'') for review under Section 3507(d) of the PRA. The Commission will seek OMB approval for these information collection requirements and forms in accordance with OMB's emergency processing rules. The Commission will publish a separate Federal Register Notice seeking comments from OMB, the general public, and other Federal agencies on the final information collection requirements contained in this proceeding. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, we will also seek specific comment on how we might ``further reduce the information collection burden for small business concerns with fewer than 25 employees'' in the Federal Register Notice seeking comment on the information collections. Summary of the Report and Order I. Introduction 1. As discussed below, in this Report and Order we adopt several proposals relating to consumer education about the digital television (``DTV'') transition. As the Nation's full-power television stations transition from analog broadcast television service to digital broadcast television service, the Commission has been committed to working with representatives from industry, public interest groups, and Congress to make the significant benefits of digital broadcasting available to the public. The digital transition will make valuable spectrum available for both public safety uses and expanded wireless competition and innovation. It will also provide consumers with better quality television picture and sound, and make new services available through multicasting. These innovations, however, are dependent upon widespread consumer understanding of the benefits and mechanics of the transition. The Congressional decision to establish a hard deadline of February 17, 2009, for the end of full-power analog broadcasting has made consumer awareness even more critical. 2. As explained in more detail below, we thus impose the following requirements in this Order. First, broadcasters must provide on-air information to their viewers about the DTV transition, by compliance with one of three alternative sets of rules, and must report those efforts to the Commission and the public. Second, multichannel video programming distributors (MVPDs) must provide monthly notices about the DTV transition in their customer billing statements. Third, manufacturers of television receivers and related devices must provide notice to consumers of the transition's impact on that equipment. Fourth, DTV.gov Partners must provide the Commission with regular updates on their consumer education efforts. Fifth, companies participating in the Low Income Federal Universal Service Program must provide notice of the transition to their low income customers and potential customers. Sixth, the winners of the 700 MHz spectrum auction must report their consumer education efforts. Finally, we offer our assistance to the National Telecommunications and Information Agency (NTIA) in policing and enforcing the requirements of the digital converter box retail program. We find that these requirements are necessary to ensure that the American public is adequately prepared for the full-power digital transition, but that they will no longer be necessary after the full-power transition is fully complete. This Order therefore provides that these requirements will be in place for a limited time only. II. Background 3. Congress has mandated that after February 17, 2009, full-power broadcast stations must transmit only in digital signals, and may no longer transmit analog signals. As the National Consumers League describes it, ``[t]he transition to DTV is probably the most significant event for television-viewers since the invention of television itself. It is crucial for people to be aware of the change, understand its impact, and be able to make sound choices.'' We agree, and the Commission has been actively engaged in DTV consumer education and outreach efforts since before the establishment of the hard full- power transition deadline. Our longstanding and ongoing efforts include a wide range of activities, both completed and planned. For instance, the Chairman recently announced the creation of a DTV Task Force, formalizing the relationships among the numerous Offices and Bureaus involved in the transition. The goal of the Task Force is to facilitate a smooth transition that minimizes the burdens on consumers while maximizing their opportunities to benefit from it. As an extension of existing coordination efforts, the Task Force will: meet regularly to discuss and direct ongoing DTV transition efforts, coordinate with other federal agencies, shares ideas, and address any problems that arise or appear imminent. The members of the Task Force will also meet regularly with various stakeholders from industry and federal, state, local, and tribal governments. 4. Representatives John D. Dingell, Chairman of the Committee on Energy and Commerce, and Edward J. Markey, Chairman of the Subcommittee on Telecommunications and the Internet, recently wrote to the Commission to express interest in the pace and scope of consumer education about the full-power transition. As the Congressmen observed, ``the Commission is particularly well suited to lead this effort given its existing expertise and resources.'' They proposed a number of specific actions that they believe the Commission should take. As discussed above, many of these recommendations are already being actively pursued by the Commission. The Commission released a Notice of Proposed Rulemaking on July 21, 2007 requesting comment on the best means of creating a coordinated, national DTV consumer education campaign. Comments were due September 17, 2007 and reply comments were due October 1, 2007. We reviewed over 30 comments, 6 reply comments, and over 100 ex parte presentations and comments from a wide range of sources, including individuals, trade associations, broadcasters, and nonprofits. III. Discussion 5. Insofar as the actions referenced in the Letter require regulatory action by the Commission, we adopt those proposals. As a general matter, it suggests that ``the Commission could use its existing authority to compel industry to contribute time and resources to a coordinated, national consumer education campaign.'' We agree that the Commission should take whatever steps we can to promote a coordinated, national DTV consumer education campaign. Some industry commenters have objected to these requirements on the ground that the Commission has insufficient statutory authority to implement them. These objections are discussed in more detail below. As Telecommunication for the Deaf and Hard of Hearing, et al. observe, we have broad authority to require educational outreach efforts concerning the DTV transition. The Commission is statutorily required to promote the orderly transition of full-power stations from analog to digital television, and we have exercised that mandate to, among other things, prevent the continued importation and interstate shipment of analog- only sets and to require retailers to label those analog-only sets they continue to legally sell. Our statutory authority allows us to facilitate the transition by adopting rules requiring the dissemination of essential information about the transition. [[Page 15433]] 6. There is a clear and compelling need for educational efforts directed toward consumers. As APTS found in its most recent quarterly consumer survey on the DTV transition, a majority of Americans do not fully understand the transition. Moreover, as the Commission's Consumer Advisory Committee (CAC) points out, a substantial number of Americans have not yet made the switch to digital. By the end of 2007, it was expected that only one-third of households would have a digital television. Of households that rely on over-the-air (OTA) broadcasts, only seven percent own a digital television. Furthermore, the households that principally rely on OTA broadcasts are the most vulnerable and arguably the most difficult to reach; almost half have annual incomes of less than $30,000, and two-thirds are headed by someone over 50 years of age or someone for whom English is a second language. Thus, we must take immediate and effective action to ensure that viewers are informed of the effect that the full-power digital transition will have on them and the options that are available to them to make the transition to digital television without losing full-power television service. This Order focuses on actions that television broadcasters, MVPDs, telecommunications carriers, retailers, and manufacturers must take to inform consumers about the transition. Nonetheless, because of the national importance of this issue, we also strongly encourage radio broadcasters to engage in efforts to educate and inform their listeners. Such efforts could be an important complement to consumer outreach by other public and private sector groups between now and the transition. A. Broadcaster Education and Reporting 7. The National Association of Broadcasters (NAB) and other broadcast industry commenters have argued that there is a public interest benefit in preserving some flexibility on the part of broadcasters to serve the needs of viewers in their widely divergent communities, and we agree. We therefore adopt rules that give both commercial and noncommercial broadcasters a choice of education and reporting requirements. Furthermore, we acknowledge that the ongoing educational efforts of industry have made a notable impact on consumer awareness, and anticipate continuing effective and creative measures from the industry to increase viewer awareness of the full-power digital transition. As discussed throughout this Order, we find a broad-based consumer education mandate essential given the importance of consumer awareness to the digital transition, but we will allow broadcasters the flexibility to choose which of these different plans to follow. 8. Although the sets of requirements are distinct, we find that they each entail a similar level of commitment and engagement on the part of broadcasters. Where the first option calls for more frequent PSAs, the second calls for longer ones, and the third for the same total amount of education with less restriction on length. Where the first and third options allow for PSAs in specified parts of the day, the second option requires greater focus on the hours when most viewers tune in. Where the first option does not require any long educational messaging, the second and third mandate a 30 minute program dedicated to in-depth education. Where Option One requires a set number of crawls, Option Two allows broadcasters to use a variety of in-program messaging techniques to inform viewers, and Option Three requires only PSAs and longer messages. While Options One and Three do not directly address special additional education measures during the final months of the full-power transition, Option Two is more comprehensive in its focus on alternative approaches. All plans require quarterly reporting of both mandatory and voluntary outreach and education efforts. This will allow the Commission not only to monitor compliance, but also to stay informed of the creative approaches being taken by disparate broadcasters all over the country, and continue to serve in its role as the primary transition educator and coordinator of transition education efforts. 9. The Commission's education requirement will go into effect upon the effective date of the rules. Every full-power commercial broadcaster must participate in option One or Two, and noncommercial broadcasters must participate in option One, Two, or Three. Whichever Option is elected, every broadcaster must conduct consumer outreach and education pursuant to that set of rules. Under each of the options, broadcasters must report on its educational and outreach activities by filing Form 388 with the Commission and placing it in the station's public file. Each broadcaster will elect the option with which it will comply no later than the first reporting deadline under the plans, by noting its chosen plan when it first files Form 388. Failure to comply with either the education or reporting requirements under any Option may result in enforcement action. 1. Broadcaster Education Option One a. Option One Consumer Education Requirements 10. Broadcasters who opt to comply with this option will be required to regularly air a mix of PSAs and crawls, with increasing frequency as the full-power transition approaches, that explain the various important issues of the full-power transition and explain how viewers can find more information. Specifically, a station must air one transition PSA, and run one transition crawl, in every quarter of every day. This requirement applies separately to a station's analog channel and its primary digital stream. This requirement will increase to two PSAs and crawls per quarter per day on April 1, 2008, and to three of each on October 1, 2008. For the purposes of these education requirements, each broadcast day can be broken into four quarters; 6:01 a.m. to 12 p.m., 12:01 p.m. to 6 p.m., 6:01 p.m. to 12 a.m., and 12:01 a.m. to 6 a.m. Stations are required to air PSAs or crawls at various times in any given day part, and we expressly require that at least one PSA and one crawl per day be run during primetime hours. For the purposes of this item, ``primetime'' is defined as the hours between 8 p.m. and 11 p.m. in the Eastern and Pacific time zones, and between 7 p.m. and 10 p.m. in the Mountain and Central time zones. We expect that broadcasters will air these DTV PSAs in addition to, and not in lieu of, PSAs on other issues of importance to their local communities. In addition, we require that the transition PSAs be closed-captioned regardless of their duration, notwithstanding the exemption in 79.1(d)(6). 11. These requirements will expire for most broadcasters on March 31, 2009. This DTV education requirement will continue for any station that has requested or been granted an extension to serve less than its full authorized service area after March 31, 2009. Some broadcasters filed comments in the Third DTV Periodic describing circumstances that may prevent them from completing construction to reach their fully authorized service area by February 18, 2009. Any station that does not reach all of its pre-transition viewers on February 18, 2009 will be required to continue its education efforts until its request for extension has been withdrawn or denied, or until a granted extension has expired. We will increase these requirements if we find, based on the overall progress of DTV consumer [[Page 15434]] education, that it is necessary to revise the frequency, content or duration of the PSAs or crawls on a station-by-station basis, for a particular region, or for the country as a whole. 12. Crawls must run during programming for no less than 60 consecutive seconds across the bottom or top of the viewing area, and be provided in the same language as a majority of the programming carried by the station. Although we do not dictate the exact content of the crawls, we find that, over the 60 second duration, they must repeat a message that conveys the following information: On February 17, 2009, full-power analog broadcasting will end, and analog-only televisions may lose the signal being viewed unless the viewer takes action. That viewers can get more information by telephone or online, and how to do so. The crawl may also, at the broadcaster's discretion, provide other information, such as, for example, contact information for the DTV Transition Coalition. 13. Required PSAs must be at least 15 seconds. Each PSA must provide, at a minimum, the same information as required for crawls, above. We acknowledge the creativity of the private sector, as noted by SBA, and do not mandate the form of PSAs other than to require that, over the course of a broadcaster's education campaign, they give more detail about the following subjects: What a viewer needs to do to continue watching the station, whether they are an OTA viewer or receive broadcast signals via their MVPD, and Where appropriate, specific details about the station's transition: for example, shifts in service area, channel numbering changes, the addition of multicast and/or High Definition channels, timing, etc. 14. Additionally, on-air outreach must contain no misleading or inaccurate statements. We do not limit stations to these efforts. For example, certain stations may find that additional PSAs in languages other than those in which a majority of their programming is presented would be beneficial to their viewers; for other stations, multilingual announcements may not be needed. Stations are free to use PSAs provided by outside sources such as NAB or networks, so long as their overall campaign touches on all the elements relevant to their particular transition. The flexibility of the rules we adopt today makes clear that we are focusing on Congress's command to promote an orderly full- power transition. 15. The Letter suggested that the Commission consider using its regulatory authority to ``require television broadcasters to air periodic public service announcements and a rolling scroll about the digital transition.'' We note that although the Letter refers to ``scrolls,'' commenters (including AARP, NAB, and APTS) understood this to refer to what in the closed captioning context we have called a ``crawl.'' Indeed, the National Hispanic Media Coalition, which strongly supports PSA requirements and calls for ``Y2K-level consumer education efforts,'' opposes vertical scrolls as unnecessary. Comments of NHMC at 3. For the sake of consistency and to reflect the generally understood intent of the proposal, we use the term ``crawl'' here. We have adopted this requirement, while giving broadcasters significant latitude to determine the best way to present the essential information on the timing and nature of the full-power transition and how to continue receiving the station's programming throughout and after the transition. 16. Most of the commenters who commented on this issue agreed with the Commission that broadcast consumer education efforts are the best way to reach viewers who will be most affected by the full-power transition, particularly those who rely primarily or exclusively on OTA television. For example, one commenter states that PSAs should be the ``primary focus for transition education efforts,'' and that an education program including PSAs must be mandated to ensure public education ``in a timely manner.'' It is also important not to simply rely on one form of on-screen education or the other. Crawls and PSAs convey information very differently, and reach different groups of people as a result. Given the growing use of personal video recorders and other devices that can be used for time-shifting and commercial skipping, many consumers might not be reached by education efforts, such as PSAs, that air only during programming breaks. At the same time, a crawl can not reach those viewers whose eyesight is not strong enough to read its comparatively small print, or who are not able to read at all. Using both methods will ensure that education efforts reach more viewers. Broadcaster commenters are generally in agreement regarding the importance of their role in consumer education; for instance, Entravision, a Spanish language broadcaster, supports mandatory PSAs. Even those broadcasters who oppose regulation in this matter say that, regardless of our decision here, they plan to engage in consumer outreach and education that ``far exceed any requirements the FCC could or should impose,'' because ``the ability to reach every household is the foundation of broadcast television's public interest and operational success.'' A wide array of broadcaster activity is promised not just in this Commission docket, but also in testimony to Congress. 17. Despite commendable pledges by organizations like the State Broadcasters Association (SBA) and the National Association of Broadcasters (NAB), we find that regulatory action is the only way to ensure a sustained, nationwide, station-by-station effort. As the Benton Foundation observes, these organizations have no power to bind individual stations. We acknowledge and appreciate the leadership and coordination efforts of NAB, and anticipate continuing to work with it on additional voluntary efforts. At the same time, we are convinced that DTV consumer education needs to be a nationwide station-by-station effort. As SBA says, consumer education is ``critical'' because interruption of broadcast service to even a single home is ``unacceptable.'' Our rules will ensure that the critical need for education is met in every market. NAB and APTS both argue that we can simply rely on the interests of all broadcasters in preserving their over-the-air audience, and that we therefore need not require any broadcaster education efforts. While we agree that broadcasters have every incentive to prepare their viewers for the transition, a ``baseline requirement'' is necessary to ensure the public awareness necessary for a smooth and orderly transition. We have adopted NAB's proposal as an alternative method by which stations can meet this baseline requirement. As the Commission's Consumer Advisory Committee points out, there will be a number of contrary pressures on local broadcasters over the next 12 months. For example, it is possible that the viewers most likely to be left behind due to an insufficient educational effort are the ones least demographically attractive to advertisers. Finally, potential advertising revenue from such sources as presidential and other political campaigns may make it tempting, in the short run, not to devote advertising time to transition education. 18. APTS suggests that public television stations be exempt from any requirements because they have a good track record of informing the public and because they are limited in the time they have to air public service announcements. We disagree because the rules we impose are designed to [[Page 15435]] complement efforts such as APTS'; if broadcasters are already engaging in these efforts, the rules will not be a burden. However, as with commercial stations, we have given noncommercial broadcasters the option to comply with our requirements via an alternative route. 19. Statutory Authority. The National Association of Broadcasters, alone among commenters, argues that the Commission does not have statutory authority to require that broadcasters inform their viewers of the full-power broadcast digital television transition. NAB argues that Section 326 of the Act, prohibiting us from interfering with the right of free speech by broadcasters, prevents us from acting here absent a grant of authority that specifically mentions DTV consumer education PSAs and crawls. We disagree. As discussed more fully in Section G, below, our actions here do not constitute an improper restriction on speech. NAB also asserts an artificially narrow conception of the Commission's statutory authority when it argues that we cannot act without a ``specific statutory provision authorizing required PSAs and crawls, including content thereof.'' As noted above, Congress both mandated the digital transition and vested the Commission with the power to ``prescribe such regulations as may be necessary for the protection of the public interest, convenience, and necessity'' in connection with the digital transition. 20. Finally, broadcast licensees have a statutory obligation to ``serve the public interest, convenience, and necessity.'' One can scarcely conceive a situation more illustrative of the ``necessity'' prong of this duty than the instant case, where certain viewers will cease having access to full-power broadcast services transmitted over the public airwaves on a date certain absent concerted informational efforts. There simply can be no national full-power digital broadcast transition if the very people who rely on broadcast television are unaware of it. As NAB acknowledges, ``[t]he future of free-over-the-air television depends upon a smooth transition. * * * For this to happen, the American public must understand what all-digital broadcasting means for them.'' 21. Broadcasters must take some responsibility for educating the public that they are bound to serve. If a blizzard hits Chicago on February 18, 2009, all over-the-air viewers should be able to turn on their television and receive emergency information without missing a beat. Educating viewers so that they have access to digital transmissions is a keystone of the transition which the FCC is statutorily required to effectuate, and broadcasters must play a central role in that process. In reviewing other regulations designed to advance the digital transition, the D.C. Circuit held in Consumer Electronics Ass'n v. FCC that ``[g]iven Congress' instruction to end analog broadcasts * * * and the Commission's finding that [current trends were not such that the public would be ready for the transition], * * * the Commission reasonably determined to take action * * * so that the DTV transition may move at the pace required by Congress.'' As in CEA, we must take action to ensure the orderly transition of broadcast service to digital and we have the statutory authority to do so. 22. Finally, the imposition here is similar to existing requirements for broadcaster station identification and broadcast of license renewal notices. The change from analog to digital broadcasting is at least as fundamental to the operation of a station as the possession of a broadcast license, and of more practical import to viewers. Given the extremely minimal requirements for producing a compliant PSA or crawl and the indispensable role that television stations must play in educating their viewers in how they can continue to have access to full-power television service after the transition, it does not avail NAB to claim that these public notices are fundamentally different from other broadcast notice requirements because they are ``furthering a government policy.'' 23. The Commission, in a similar context, enforced broadcaster public interest obligations by requiring digital television stations to participate in the emergency alert system (``EAS''). In that proceeding, NAB agreed with the Commission that participation in EAS was a natural extension of broadcaster public interest obligations. The order noted that exemption from this requirement would not be in the public interest. It also noted that if participation in the Emergency Alert System were voluntary, some communities could be left without an EAS source, and such messages are too important to risk missing ``because a person is tuned to the wrong channel.'' Similarly, in the case of the transition, an exemption from consumer education is contrary to the public interest because the public has a right to know how televisions will function after February 17, 2009. A voluntary program is inadequate because transition information is too important to risk that some viewers will lack the necessary information because the licensee serving them fails to provide that information in a timely fashion. If viewers see a blank screen on February 18, 2009 because they were not informed about the actions they needed to take to continue receiving television programming, they will effectively be deprived of access to all OTA television service--including EAS. The Commission imposed a similar requirement upon broadcasters pursuant to the Children's Television Act (``CTA''). b. Option One Reporting Requirements 24. A broadcaster choosing to comply with Option One will be required to electronically report its consumer education efforts to the Commission on a quarterly basis, and place these reports in the broadcaster's public file and, if the broadcaster has a public Web site, on that Web site. These reports will be made available on the Commission's Web site in a centralized, searchable database. For each quarter of required consumer education, we require that broadcasters electing Option One complete Form 388 and file it electronically in this docket (07-148) by the tenth day of the succeeding calendar quarter, with a copy placed in the station's public inspection file by that same date. Because of the limited duration of the full-power transition period, only a limited number of these quarterly reports will be required. The first, covering the first quarter of 2008, must be filed no later than April 10, 2008, and the last, covering a station's final quarter of mandated educational efforts, will be filed no later than April 10, 2009 for most stations. Stations that are required to continue educational efforts beyond March 31, 2009 must also continue to file these quarterly reports, up to and including the final quarter in which they have active educational requirements. 25. The Letter suggested that the Commission consider requiring ``broadcast licensees and permittees to report, every 90 days, their consumer education efforts, including the time, frequency, and content of public service announcements aired by each station in a market, with civil penalties for noncompliance.'' It also suggested that the Commission consider imposing ``interim requirements for detailing a broadcaster's consumer education efforts in the required local public inspection file, such as by including coverage about the digital transition in the issues/programs list compiled every three months or by making announcements in local newspapers or on-air similar to public notice requirements for new stations or license renewal.'' [[Page 15436]] 26. Broadcasters generally oppose this reporting requirement. As discussed above, broadcaster education efforts are a central part of consumer education concerning the transition. We require reporting to enforce these consumer education initiatives and ensure that the necessary efforts are underway. As the National Hispanic Media Coalition observes, ``[t]here is no satisfactory alternative to this reporting.'' As with the Children's Television Programming requirements, self-reporting allows broadcasters to verify for themselves that they are fulfilling their obligations. Furthermore, because of the importance of these education requirements and the relatively short time frame of the full-power transition, the Commission needs to be able to monitor compliance with and enforce those obligations in a way that is not prohibitively cost- and time- consuming. Self-reporting is the most effective way to do this. 27. As to the form and format of the reports, the AARP and others take the position that the reports should include detailed information about each airing of a PSA and its content, and should be filed quarterly. The Benton Foundation suggests that the reports be filed in electronic form, and also be placed in the broadcaster's public file. As noted, we decline to require a specific format, but all of the above information must be included. 28. Given our statutory authority to require the PSAs and crawls, as discussed above, we also have authority to require broadcasters to document and report their compliance efforts. We have statutory authority under the Communications Act to require broadcasters to provide information about their programming to the public and the Commission. Providing information to the public about their transition education efforts will make broadcasters more accountable for their public interest obligation to promote the continued availability of free television programming and ensure a smooth transition. Sections 303(r) and 4(i) of the Communications Act provide ample authority for the reporting requirement because providing this information will help us ensure broadcasters are acting as public trustees and the Commission is fulfilling its duty to oversee the full-power transition. In addition, section 4(k) of the Communications Act expressly authorizes the Commission to collect information and data ``as may be considered of value in the determination of questions connected with the regulation of interstate * * * radio communication and radio transmission of energy'' to assist the Congress in its normal oversight responsibilities. Determining whether the American public is adequately informed and educated about the full-power DTV transition is of significant concern to Congress, and the reporting requirements will assist the Commission in gathering this important information. In addition, these reporting requirements are ``necessary for the protection of the public interest, convenience, and necessity'' in connection with the digital transition because they will assist the Commission in assessing consumer understanding of the transition and in determining whether adjustments to the educational efforts must be made. Further, without broadcasters reporting their efforts, the public and the Commission will be unable to determine at renewal time whether stations have complied with the consumer education rules. Indeed, these requirements are similar to the long-standing issues/programs list requirements which require stations to list every three months their programs that have provided the most significant treatment of community issues and retain these lists in their public file. As with on-air identifiers, our broad authority under the Communications Act to carry out the public interest requirement permits us to have broadcasters provide public service announcements to effectuate the public interest standard. Although we have not previously required broadcasters to air public service announcements, we have required stations to broadcast certain on-air announcements, to give public notice in a local newspaper for certain broadcast applications, and to make available certain information in a public file. 29. Similarly, the Commission's First Report and Order pursuant to the Children's Television Act (``CTA'') relied on the authority cited above and the Commission's authority to enforce the public interest obligations of broadcasters to impose upon broadcasters mandatory quarterly children's programming reporting requirements. Here, the reporting requirement is much more lenient, as it is for a finite period of time. 2. Broadcaster Education Option Two a. Option Two Consumer Education Requirements 30. We find that the record also supports permitting broadcasters to choose to comply with our rules by following the alternative plan offered by the National Association of Broadcasters. Under this option, a broadcaster must air an average of sixteen transition PSAs per week, and an average of sixteen transition-related crawls, snipes, and/or tickers per week, over each quarter through the transition period between 5 a.m. and 1 a.m. No PSAs or crawls, snipes, and/or tickers aired between the hours of 1 a.m. and 5 a.m. will qualify as compliant for the purposes of these education requirements. Over the course of each calendar quarter, one fourth of all PSAs and crawls, snipes, and/ or tickers must air between 6 p.m. and 11:35 p.m., Eastern and Pacific, and between 5 p.m. and 10:35 p.m., Central and Mountain. These requirements will expire for most broadcasters on March 31, 2009. This DTV education requirement will continue for any station that has requested or been granted an extension to serve less than its full authorized service area after March 31, 2009. Some broadcasters filed comments in the Third DTV Periodic describing circumstances that may prevent them from completing construction to reach their fully authorized service area by February 18, 2009. Any station that does not reach all of its pre-transition viewers on February 18, 2009 will be required to continue its education efforts until their request for extension has been withdrawn or denied, or until a granted extension has expired. This requirement applies separately to a station's analog channel and its primary digital stream. As with broadcasters electing Option One, we expect that broadcasters electing Option Two will air these DTV PSAs in addition to, and not in lieu of, PSAs on other issues of importance to their local communities. And, as under Option One, these transition PSAs must be closed-captioned. Stations are free to use PSAs produced in-house or provided by outside sources such as NAB or the networks. 31. Required PSAs must be at least 30 seconds in length. A broadcaster may, however, choose to air two PSAs of no less than 15 seconds in length in place of a single PSA of at least 30 seconds in length. Stations will also air at least one 30-minute informational program on the digital television (DTV) transition between 8 a.m.-11:35 p.m. on at least one day prior to February 17, 2009. 32. Beginning on November 10, 2008, all stations must begin a 100- Day Countdown to the full-power transition. During this period, each station must air at least one of the following per day: Graphic Display. A graphic super-imposed during programming content that reminds viewers graphically there are ``x number of days'' until the full-power transition. They will be visually instructed to call a toll-free number and/or visit a Web site for details. The length [[Page 15437]] of time will vary from 5 to 15 seconds, at the discretion of the station. Animated Graphic. A moving or animated graphic that ends up as a countdown reminder. It would remind viewers that there are ``x number of days'' until the full-power transition. They will be visually instructed to call a toll-free number and/or visit a Web site for details. The length of time will vary from 5 to 15 seconds, at the discretion of the station. Graphic and Audio Display. Option 1 or option 2 with an added audio component. The length of time will vary from 5 to 15 seconds, at the discretion of the station. Longer Form Reminders. Stations can choose from a variety of longer form options to communicate the countdown message. Examples might include an ``Ask the Expert'' segment where viewers can call in to a phone bank and ask knowledgeable people their questions about the transition. The length of these segments will vary from 2 minutes to 5 minutes, at the discretion of the station (Some stations may also choose to include during newscasts DTV ``experts'' who may be asked questions by the anchor or reporter about the impending February 17, 2009 deadline). b. Option Two Reporting Requirements 33. We also find that the record supports a requirement that broadcasters electing Option Two electronically report their consumer education efforts to the Commission on a quarterly basis, and place these reports in the broadcaster's public file, just as under Option One. These reports will be made available on the Commission's Web site in a centralized, searchable database. For each quarter of required consumer education, we require that broadcasters electing Option Two complete Form 388 and file it electronically in this docket (07-148) by the tenth day of the succeeding calendar quarter, with a copy placed in the station's public inspection file by that same date. Because of the short remaining duration of the full-power transition period, only a limited number of these quarterly reports will be required. The first, covering the first quarter of 2008, must be filed no later than April 10, 2008, and the last, covering a station's final quarter of mandated educational efforts, will be filed no later than April 10, 2009 for most stations. Stations that are required to continue educational efforts beyond March 31, 2009 must also continue to file these quarterly reports up to and including the final quarter in which they have active educational requirements. 3. Broadcaster Education Option Three a. Option Three Consumer Education Requirements 34. This option is open only to noncommercial broadcasters. We find that the record also supports permitting some broadcasters to choose to comply with our rules by following the alternative plan offered by the Association of Public Television Stations. Under this option, a broadcaster must air 60 seconds per day of on-air consumer education, in variable timeslots, including at least 7.5 minutes per month between 6 p.m. and 12 a.m. Beginning May 1, 2008, this requirement doubles, and beginning November 1, 2008, it increases again, to 180 seconds per day and 22.5 minutes per month between 6 p.m. and midnight. The transition PSAs must be closed-captioned. These requirements will expire for most broadcasters on March 31, 2009. Stations will also air a 30-minute informational program on the digital television (DTV) transition between 8 a.m.-11:35 p.m. on at least one day prior to February 17, 2009. This requirement applies separately to its analog channel and its primary digital stream. As with broadcasters electing Option One, we expect that broadcasters electing Option Three will air these DTV PSAs in addition to, and not in lieu of, PSAs on other issues of importance to their local communities. Stations are free to use PSAs produced in- house or provided by outside sources such as NAB or the networks. And, as under Option One, these transition PSAs must be closed-captioned. b. Option Three Reporting Requirements 35. We also find that the record supports a requirement that noncommercial broadcasters electing Option Three electronically report their consumer education efforts to the Commission on a quarterly basis, and place these reports in the broadcaster's public file, just as under Option One. These reports will be made available on the Commission's Web site in a centralized, searchable database. For each quarter of required consumer education, we require that broadcasters electing Option Three complete Form 388 and file it electronically in this docket (07-148) by the tenth day of the succeeding calendar quarter, with a copy placed in the station's public inspection file by that same date. Because of the short remaining duration of the full- power transition period, only a limited number of these quarterly reports will be required. The first, covering the first quarter of 2008, must be filed no later than April 10, 2008, and the last, covering a station's final quarter of mandated educational efforts, will be filed no later than April 10, 2009 for most stations. Stations that are required to continue educational efforts beyond March 31, 2009 must also continue to file these quarterly reports up to and including the final quarter in which they have active educational requirements. 4. Low-Power, Class A, and Translator Stations 36. Low-power (LP) broadcast stations are not required to cease broadcasting in analog as of February 17, 2009. Although some already have or plan to independently transition to digital-only broadcasting, many of these stations will continue to broadcast in analog after the conclusion of the full-power transition. Thus, many consumers may receive some programming in digital and some programming in analog after the transition date. Those consumers with analog televisions who are reliant on over-the-air broadcasting will need to acquire a digital to analog converter box to continue watching television after the transition. Recently, concerns have been raised, by the Community Broadcasters Association among others, about the fact that the majority of Coupon Eligible Converter Boxes (CECBs) certified by NTIA are not capable of ``passing through'' analog signals from the antenna to a connected set. As a result, LP stations (including Class A and translator stations) that continue to broadcast in analog will not be viewable to OTA viewers who rely on a converter box, unless they use one of the boxes with pass-through capability. 37. This issue was raised before the Commission after the record in this rulemaking had closed, and we therefore do not have a record on it. Accordingly, we have an insufficient basis upon which to adopt consumer education requirements relating to this issue in the instant proceeding. Nonetheless, given that converter boxes are already on the shelves of many retailers, and coupons are in the process of being mailed to consumers, we recognize the urgency of the problem for those consumers who may have difficulty viewing these low power stations. We therefore urge all LP broadcasters, but particularly those that plan to continue analog-only broadcasting, to immediately begin educating their viewers about this issue. For instance, such stations could notify their viewers that (1) they are watching a low-power broadcast station that, [[Page 15438]] unlike full-power stations, may continue to offer analog service after February 17, 2009, and (2) viewers who plan to purchase a converter box in order to view digital signals should buy a model with analog pass- through capability in order to continue watching that station. The LP station could direct viewers to the NTIA converter box coupon program, and in particular the NTIA listing of certified converter boxes. In addition, NTIA will mail a list of current coupon-eligible converter boxes, noting with an asterisk those that have analog pass-through capability, to each household that receives converter box coupons. We also urge industry and our private and public sector partners to do what they can to educate consumers generally about this situation, and to assist in the effort to ensure that no American loses a signal due to the transition. B. Multichannel Video Programming Distributor Customer Bill Notices 38. We will require that all MVPDs (e.g., DBS carriers, cable operators, open video system operators, private cable operators, etc.) provide notice of the full-power DTV transition to their subscribers in monthly bills or billing notices. To the extent that a given customer does not receive paper versions of either a bill or a notice of billing, that customer must be provided with equivalent monthly transition notices in whatever medium they receive information about their monthly bill. The notice must be provided as a ``bill stuffer'' or as part of an information section on the bill itself. It must be noticeable, and state that on February 17, 2009, full-power analog broadcasting will end, and analog-only televisions may be unable to display full-power broadcast programming unless the viewer takes action. It must also note that viewers can get more information by going to http://www.DTV.gov or calling the MVPD at a number provided, and more information about the converter box program by going to http:/ /www.dtv2009.gov or calling the NTIA at 1-888-DTV-2009. The notice may also, at the MVPD's discretion, provide contact information for the DTV Transition Coalition. The message should be provided in the same language or languages as the bill, and explain clearly what impact, if any, the transition will have on the subscriber's access to MVPD service. For example, DBS carriers must provide additional notice to all subscribers who do not receive local broadcast signals via satellite. This additional notice would explain the steps that these subscribers would need to take to continue receiving broadcast signals, in particular the necessary steps if the subscriber relies on a tuner integrated into the DBS carrier's set-top box. The most important information may be to note that sets not connected to an MVPD service may need additional equipment (i.e. converter box) or may have to be replaced. MVPDs must begin including these monthly notices 30 days after the effective date of the rules and must continue including them monthly through March 2009. Beginning approximately one year before the full-power transition and running through March 2009 ensures that subscribers will be exposed to educational messages throughout the remainder of the transition, and will have sufficient opportunity to act on them. 39. The Letter suggested that the Commission consider requiring, ``as a license condition or through customer service or other consumer protection or public interest requirements, all multichannel video programming distributors (MVPDs) to insert periodic notices in customer bills that inform consumers about the digital television transition and their customers' future viewing options, with civil penalties for noncompliance.'' These notices would go to all MVPD subscribers and provide them with information about the full-power transition generally and about how it will affect their service specifically. The New York State Consumer Protection Board is primarily concerned that MVPD subscribers understand what effects, if any, the transition will have on their service. The Benton Foundation not only supported this proposal, as ``an optimal way to reach consumers that value television service,'' but also proposed a requirement that MVPDs run PSAs themselves. The National Cable and Telecommunications Association states in its comments that the cable industry has not only committed to exceed the Commission's proposal, but those of the commenters. The cable industry has committed to include DTV transition notices in subscriber bills, on a monthly basis beginning in 2008. Indeed, these commitments have been made not only to the Commission, but also to the Commerce Committees of both the U.S. House of Representatives and the U.S. Senate. NCTA argues that, given these commitments, the Commission should not impose any requirements for MVPD DTV education efforts. 40. Of course, we welcome the efforts of NCTA and its members. We note, however, that the commitments of NCTA do not bind its member cable operators, and that, of course, it does not speak for all MVPDs. DIRECTV and EchoStar, while pledging active education efforts both for their subscribers and for OTA viewers state that they have no plans to provide periodic notices with bills. Verizon, similarly, opposes the use of notices in bills, on the grounds that they would be expensive, ineffective, and potentially counterproductive. We disagree with Verizon because the overall record in this proceeding indicates that bill notices would contribute significantly to consumer education efforts. Such notices would reach viewers who are engaged with television viewing and well positioned both to act on the information regarding any OTA sets they may have and to serve as a source of information for others. 41. Several industry commenters object that the Commission does not have statutory authority to impose the notice requirement. We conclude, however, that we have ancillary authority to adopt notice requirements for Multichannel Video Programming Distributors under Titles I, III, and VI of the Communications Act of 1934, as amended (``Act''). Courts have long recognized that, even in the absence of explicit statutory authority, the Commission has authority to promulgate regulations to effectuate the goals and provisions of the Act if the regulations are ``reasonably ancillary to the effective performance of the Commission's various responsibilities'' under the Act. The Supreme Court has established a two-part ancillary jurisdiction test: (1) The subject of the regulation must be covered by the Commission's general grant of jurisdiction under Title I of the Communications Act; and (2) the regulation must be reasonably ancillary to the Commission's statutory responsibilities. The requirements we adopt here regulate the disclosure obligations of companies providing services that fall within the Commission's jurisdiction under Titles I, III, and VI, advance our statutory obligation to promote the digital transition, and serve the public interest. We conclude, therefore, that we have ancillary jurisdiction to adopt DTV transition notice requirements in this proceeding. 42. For the most part, commenters do not argue that the Commission lacks jurisdiction over either the DTV transition or MVPDs. Rather, they argue that requiring MVPDs to provide billing notices regarding the full-power DTV transition is not reasonably ancillary to our authority over either broadcast television or MVPDs. Verizon and NTCA both argue that there is no connection between multichannel [[Page 15439]] distribution and the full-power broadcast television transition, and that this would be a broadcast regulation imposed on parties not engaged in broadcasting. On the contrary, MVPDs are an inextricable part of the television market. Both DBS and cable have mandatory carriage requirements, and all MVPDs have requirements concerning retransmission of broadcast signals. Without the stations and viewers affected by this transition, MVPDs would be in a very different business. The Commission is statutorily obligated to promote the orderly transition to digital television, ``a critical step in the evolution of broadcast television.'' Further, the Commission is authorized to ``make such rules and regulations * * * as may be necessary in the execution of its functions,'' and to ``[m]ake such rules and regulations * * * not inconsistent with law, as may be necessary to carry out the provisions of this Act * * *'' 43. The rules we adopt today advance these statutory mandates and serve the public interest. USTA argues that the connection between such notices and the Commission's DTV transition authority is weak, because ``the customers who would receive those notices do not rely on the broadcast signals that will cease on the transition date.'' Many of those very customers do in fact rely on broadcast signals for at least some of the televisions in their homes. Accurate and timely communication of the impending change from analog to digital transmission is a critical disclosure for all consumers. Not only will every DTV-educated consumer accelerate the spread of knowledge about the full-power transition, but as described in COAT's comments, many MVPD subscribers will in fact be directly impacted by the transition, even if only because they have some OTA sets in their home. Furthermore, broadcast channels carried on a system will tend to be clearer and crisper as a result of the broadcaster switch to digital, and every station broadcasting programming in HD, not just those carried pursuant to retransmission consent, will be available in HD. As discussed above, over half of consumers still are not aware of the impending full-power digital transition. Clearly, voluntary industry efforts to date have not been sufficient to ensure consumer awareness of the upcoming transition to digital television. Such consumer awareness is critical to our missions of promoting public safety and an orderly digital transition. 44. Exercising ancillary jurisdiction to adopt DTV transition notice requirements for MVPDs is consistent with prior exercises of the Commission's authority. The Commission previously relied on its authority under the Act and the ACRA to impose an analog-only labeling requirement in order to promote the orderly transition to digital television. In addition, the Commission recently relied on its ancillary jurisdiction in requiring interconnected Voice over Internet Protocol (VoIP) service providers to distribute to their subscribers stickers or labels warning if E911 service may be limited or unavailable, and to instruct subscribers to place them on or near the equipment used in conjunction with the interconnected VoIP service. The Commission also has numerous other labeling and disclosure requirements designed to further its statutory objectives and to protect consumers. In sum, therefore, we conclude that we have ancillary authority to adopt DTV transition notice requirements for MVPDs. 45. USTA makes two additional arguments about the limits of our ancillary jurisdiction in this case. First, it argues that because NTIA was given some express authority over DTV transition education, it ``creates a strong presumption'' that Congress did not mean for the Commission to have any authority in this area at all. On the contrary, Congress had no need to give the Commission specific authority over any one element of the transition, because as discussed above we have general authority to promulgate rules to advance the transition. USTA also argues, again almost in passing, that the Commission ``may'' not be permitted to exercise ancillary jurisdiction in any manner that could be seen as content-related regulation of speech. In support of this argument, USTA cites only the 2002 DC Circuit decision that struck down the Commission's video description requirements. MPAA v. FCC can not, however, be reasonably read to impose such a sweeping rule. The Court's decision focuses on the inability of the Commission to rely on section 1 of the Act as a source of authority for restricting programming content. In this case, section 1 is not the primary source of the Commission's authority, and programming content is not at issue. More to the point, the MPAA Court pointed to a clear Congressional directive that specifically spoke to video description and limited the Commission's sphere of authority to the creation of a report. Here, on the other hand, Congress has endowed the Commission with general authority to prescribe regulations that will ``promote the orderly transition to digital television.'' C. Consumer Electronics Manufacturer Notices 46. We require that parties that manufacture, import, or ship interstate television receivers and devices designed to work with television receivers (including digital-to-analog converter boxes like the NTIA Coupon Eligible Converter Boxes) include information with those devices explaining to consumers what effect, if any, the full- power DTV transition will have on their use. This information must be included with all devices shipped, beginning on the effective date of these rules, until March 31, 2009. As with the notices included in MVPD bills, the information may be in any form preferred by the manufacturer. It must be noticeable, contain the minimum information about the full-power transition described in paragraph 12, above, and explain clearly what impact, if any, the transition will have on the use of the device. For example, with receivers with a digital OTA tuner, one sufficient form of notice would be a sticker on the outside of the packaging that reads: ``Digital Television Transition Notice: This television receiver will display over the air programming after the end of full-power analog broadcasting on February 17, 2009. Some older television receivers may need a converter box to display over the air digital programming, but should continue to work as before for other purposes (e.g., for watching LPTV, Class A, or translator stations still broadcasting in analog, watching pre-recorded movies, or playing video games). For more information, please call [the manufacturer], go to http://www.DTV.gov, or, for converter box information, go to http://www.dtv2009.gov or call the NTIA at 1-888- DTV-2009.'' 47. As noted above, this requirement applies not only to television receivers, but also to electronic devices that are designed to be connected to, and are dependent on, television receivers. Notices included with these devices, which include DVD players and recorders, VCRs, and monitors, must not only provide the basic information about the transition. They must also make clear that, after the transition, the device will not serve its function, in regard to full-power OTA signals, unless connected to a device with a digital tuner. 48. The Letter suggested that the Commission consider requiring ``manufacturers to include information [[Page 15440]] with television receivers and related devices about the transition, with civil penalties for noncompliance.'' The only commenter to oppose this proposal, LG, conceived of it applying only to ``television sets,'' and argued that the existing Labeling Order already resolves this issue. On the contrary, the Labeling Order's requirements apply only to sets without a digital receiver, which are no longer being manufactured for the U.S. market. Therefore the two sets of requirements do not overlap at all. The Benton Foundation suggests that the included information should be standardized by the Commission. 49. No commenter challenged the Commission's statutory or constitutional authority to impose this requirement. As in the analog receiver labeling order, our authority to impose this requirement is ancillary to our responsibilities under the Communications Act and the All Channel Receivers Act. An electronic device that is dependent for its use, in whole or in part, on over-the-air reception of television broadcast channels, is an ``apparatus'' ``incidental to * * * transmission'' of television broadcasts and, therefore, within the scope of our Title I subject matter jurisdiction. As discussed in more detail in paragraphs 5 and 19-23, above, the Commission is statutorily obligated to promote the orderly transition to digital television. Ensuring that consumers know how it will affect their devices, and why they may suddenly stop working or change their functionality, is essential to achieving that goal. D. DTV.gov Partner Consumer Education Reporting 50. We require DTV.gov Transition Partners to report their consumer education efforts, as a condition of continuing Partner status. Reports should be filed into the record of this proceeding on a quarterly basis, beginning on April 10, 2008. Additionally, individual copies of the reports should be sent, via electronic mail or hard copy format, to the Chief and to the Chief of Staff of the Commission's Consumer and Governmental Affairs Bureau, as well as sent electronically to dtvreporting@fcc.gov. This is in line with the Letter' suggestion that the Commission consider requiring ``partners identified on the Commission's digital television Web site to report their specific consumer outreach efforts.'' 51. We appreciate the efforts made so far by our DTV.gov Partners to keep us apprised of their consumer education and outreach activities. As we move closer to the full-power transition date, the Commission will necessarily be accelerating its efforts, and further emphasizing its role as the coordinator and clearinghouse for DTV transition education. As NAB and MSTV observe, ``coordination is critical to ensure that, in addition to messaging, industry, government agencies and other stakeholders