Implementation of the DTV Delay Act, 11299-11318 [E9-5820]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 74, Number 50 (Tuesday, March 17, 2009)]
[Rules and Regulations]
[Pages 11299-11318]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5820]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 09-17; FCC 09-19]


Implementation of the DTV Delay Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document completes the most essential remaining actions 
necessitated by the delay in the DTV transition deadline. In the DTV 
Delay Act, Congress extended the DTV transition deadline from February 
17, 2009, to June 12, 2009, in an effort to provide consumers 
additional time to prepare for the transition from analog to digital 
broadcasting. The Act directed the Commission to take any actions 
``necessary or appropriate to implement the provisions, and carry out 
the purposes'' of the Act, and to do so within 30 days. This document 
implements procedures and prescribes timing for stations to transition 
early, while providing viewers who are not prepared with a lifeline of 
analog service and both on-air and off-air educational information 
about the transition. The document also adjusts the consumer education 
requirements placed on broadcasters to eliminate any unnecessary burden 
after the transition while ensuring that on the most meaningful 
information is provided to viewers before they transition, and 
addresses other issues.

DATES: Effective March 13, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For more information, please contact 
Lyle Elder, Lyle.Elder@fcc.gov, at 202-418-2120; or Evan Baranoff, 
Evan.Baranoff@fcc.gov, at 202-418-7142, of the Policy Division, Media 
Bureau; or Eloise Gore, Eloise.Gore@fcc.gov, at 202-418-7200, of the 
Media Bureau. 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 Commission's Third 
Report and Order, FCC 09-19, adopted and released on March 13, 2009. 
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 
(https://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).

Summary of the Report and Order

I. Introduction

    1. In this Report and Order, the third in response to the 
Congressional extension of the digital television (DTV)

[[Page 11300]]

transition deadline, we take the next actions necessary to implement 
the ``DTV Delay Act,'' which was enacted into law on February 11, 
2009.\1\ In the DTV Delay Act, Congress extended the DTV transition 
deadline from February 17, 2009, to June 12, 2009, in an effort to 
provide consumers additional time to prepare for the transition from 
analog to digital broadcasting.\2\ The Act directed the Commission to 
take any actions ``necessary or appropriate to implement the 
provisions, and carry out the purposes'' of the Act, and to do so 
within 30 days.\3\ The Commission has already taken steps to comply 
with the DTV Delay Act directive. We issued a series of public notices 
(PNs) establishing and implementing the early transition process for 
stations that transitioned on February 17, 2009.\4\ The first Report 
and Order in the DTV Delay Act docket extended the analog license terms 
and adjusted the construction permits for the full power television 
stations subject to the DTV Delay Act.\5\ The Second Report and Order, 
74 FR 8868 (February 27, 2009) (``Omnibus Order''), and Notice of 
Proposed Rulemaking, 74 FR 8889 (February 27, 2009) (``NPRM'') \6\ 
addressed the remaining time-sensitive actions necessitated by the 
delay in the transition deadline.\7\ The companion NPRM sought comment 
on the procedures for early analog termination and issues relating to 
DTV transition consumer education, and we address those issues in the 
instant Order.
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    \1\ DTV Delay Act, Public Law 111-4, 123 Stat. 112 (2009) (``DTV 
Delay Act'').
    \2\ See, e.g., 155 Cong. Rec. E240-02.
    \3\ DTV Delay Act sec. 4(c). In addition, the DTV Delay Act 
amends the Digital Television and Public Safety Act of 2005 (``DTV 
Act''), Public Law 109-171, 120 Stat. 4 (2006), to direct the 
Commission to ``take such actions as are necessary (1) to terminate 
all licenses for full-power television stations in the analog 
television service, and to require the cessation of broadcasting by 
full-power stations in the analog television service, by June 13, 
2009; and (2) to require by June 13, 2009, * * * all broadcasting by 
full-power stations in the digital television service, occur only on 
channels between channels 2 and 36, inclusive, or 38 and 51, 
inclusive (between frequencies 54 and 698 megahertz, inclusive).'' 
47 U.S.C. 309 Note. The statutory deadline for Commission action is 
March 13, 2009.
    \4\ FCC Announces Procedures Regarding Termination of Analog 
Television Service On or After February 17, 2009, Public Notice, FCC 
09-6 ( Feb. 5, 2009) (``February 5th PN''); FCC Releases Lists of 
Stations Whose Analog Operations Terminate Before February 17, 2009 
or that Intend to Terminate Analog Operations on February 17, 2009, 
Public Notice, DA 09-221 (MB Feb. 10, 2009) (``February 10th PN''); 
FCC Requires Public Interest Conditions for Certain Analog TV 
Terminations on February 17, 2009, Public Notice, FCC 09-7 (Feb. 11, 
2009) (``February 11th PN''); FCC Releases Lists of TV Stations' 
Responses to Requirements for Analog Termination on February 17, 
2009, Public Notice, DA 09-245 (MB Feb. 13, 2009) (``February 13th 
PN'').
    \5\ Implementation of the DTV Delay Act, MB Docket No. 09-17, 
Report and Order and Sua Sponte Order on Reconsideration, FCC 09-9 
(rel. Feb. 13, 2009), 74 FR 7654 (February 19, 2009) (``First DTV 
Delay Order'').
    \6\ Implementation of the DTV Delay Act, MB Docket No. 09-17, 
Second Report and Order and Notice of Proposed Rulemaking, FCC 09-
11, para 19 (rel. Feb. 20, 2009) (``Omnibus Order'' or ``NPRM'').
    \7\ One of those actions was the adoption of rules for the 
Option Two 100-Day Countdown, which was subsequently temporarily 
waived. Temporary Waiver of 100-Day Countdown Requirement, Public 
Notice, FCC 09-15 (Mar. 3, 2009). As discussed in Section III.C.6, 
infra, we implement revised final rules for the countdown in this 
Order.
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    2. The actions taken thus far, and again in this Order, balance 
consumers' need for time and information with broadcasters' need for 
flexibility. This balance is implicit in the DTV Delay Act, which 
extended the deadline for the transition expressly to provide the 
American public with more time to prepare for the transition to digital 
television, while allowing broadcasters to complete their transitions 
prior to June 12, 2009, subject to such rules as the Commission finds 
necessary or appropriate. This Order implements procedures and 
prescribes timing for stations to transition early while providing 
viewers who are not prepared with a lifeline of analog service and both 
on-air and off-air educational information about the transition. The 
Order also adjusts the consumer education requirements placed on 
broadcasters to eliminate any unnecessary burden after the transition 
while ensuring that the most meaningful information is provided to 
viewers before the stations complete their transition, and addresses 
other issues.

II. Executive Summary

    3. This Report and Order takes the following actions to implement 
the DTV Delay Act:

Analog Service Terminations

     In the Omnibus Order, we revised our analog service 
termination and reduction procedures to require stations that have not 
terminated analog service to file a binding notice of their proposed 
analog service termination date by March 17, 2009.
     Stations that notify us by March 17, 2009 may proceed with 
their planned terminations without specific individual approval, with 
limited exceptions.
     We adopt the Analog Service Termination Notification form, 
which must be filed by every station that has not yet terminated analog 
service.
     Stations generally may not terminate analog service before 
April 16, 2009.
     Noncommercial educational stations may terminate before 
April 16, but not before March 27, if they certify in their analog 
termination form that they need to terminate before April 16 due to 
significant financial hardship.
     We require all stations that terminate before June 12, 
2009, to air viewer notifications for the 30 days prior to their 
transition. These viewer notifications are based on those required in 
the Third DTV Periodic Report and Order, but also require information 
about service loss from stations predicted to lose more than 2 percent 
of their analog viewers.
     Major network affiliates may terminate analog service 
prior to June 12, 2009, provided at least 90 percent of their analog 
viewers will receive continuing full analog service from another major 
network affiliate through June 12, 2009.
     If a major network affiliate elects to terminate prior to 
June 12 and more than 10 percent of its viewers will not continue to 
have full analog service from another major network affiliate, the 
station must undertake specified public interest measures, and so 
certify on the Analog Service Termination Notification form: (1) At 
least 90 percent of the population in its Grade B analog contour must 
receive some analog service from a major network affiliate through June 
12 (either ``enhanced nightlight'' or some combination of enhanced 
nightlight and full analog service from a major network affiliate); and 
(2) it will comply with the other public interest conditions set forth 
herein, including walk-in help centers, consumer referral telephone 
numbers, and DTV education and outreach.
     We permit all stations to terminate analog service at any 
time of day on their final day of analog service and require that they 
notify the Commission on the Analog Service Termination Notification 
form of the approximate time they will terminate.

DTV Consumer Education Initiative

     We amend the DTV Consumer Education Initiative 
requirements to ensure that consumers will receive the information they 
need to make proper preparations for the digital transition of the 
stations on which they rely for television service:
    [cir] Beginning April 1, 2009, if the FCC's Signal Loss Report 
predicts that 2 percent or more of the population in a station's Grade 
B analog service contour will not receive the station's digital signal, 
the station must air service loss notices. These notices are in 
addition to the existing consumer education requirements.

[[Page 11301]]

    [cir] Beginning April 1, 2009, all stations must include 
information about the use of antennas as part of their consumer 
education campaign, including information concerning a station's change 
from the VHF to UHF bands.
    [cir] Beginning April 1, 2009, all stations must include 
information in their consumer education campaigns to inform and remind 
viewers about the importance of periodically using the rescan function 
of their digital televisions and digital converter boxes.
    [cir] Beginning April 1, 2009, as part of its DTV consumer 
education campaign, every station must air notices providing the 
location and operating hours of walk-in DTV help centers in the 
station's market area; the FCC Call Center telephone number and TTY 
number; and the station's telephone number for receiving consumer 
referrals and calls from local viewers.
     We eliminate the requirement for most stations to continue 
broadcasting DTV transition educational information after they have 
terminated analog service.
     A station that has filed a request for an extension of the 
deadline for construction of its full, authorized post-transition 
digital facility, including a request for phased transition, or is 
operating under such an extension, must continue its DTV consumer 
education campaign until it completes construction and commences 
operation of its full, authorized post-transition digital facility.
     We amend the 100-Day Countdown requirement and require 
broadcasters subject to the Option Two consumer education rules to air 
a 60-day countdown to the date of their individual termination of 
analog service.
     We require broadcasters subject to the Option Two and 
Three consumer education rules to air a new, up-to-date 30 minute 
informational video before they transition. This video must include 
locally specific information, including information about the 
transition dates of all stations in the market.
     We revise Form 388, the DTV Quarterly Activity Station 
Report, to reflect the changes we have made to the DTV Consumer 
Education Initiative broadcaster rules in this Report and Order.

Other Issues

     We extend until December 14, 2009, the deadline for 
accepting DTS ``waiver policy'' proposals to permit a station to use 
DTS if doing so will enable it to continue to serve its existing analog 
viewers who would otherwise lose service as a result of its transition 
to digital service.
     We reconsider in part, sua sponte, the extension for 
``phased transitions,'' as described in the Omnibus Order, and provide 
more time for stations facing ``unique technical challenges'' to 
complete construction.

III. Discussion

A. Analog Service Terminations

    4. As discussed in detail in the Omnibus Order, we revised our 
analog service termination and reduction procedures \8\ to require 
stations that have not terminated analog service \9\ to file a binding 
notice of their proposed analog service termination date by March 17, 
2009.\10\ In this Section, we discuss the implementation of the Analog 
Service Termination Notification form, which must be filed by every 
station that did not terminate analog service on or before February 17, 
2009. We conclude that stations filing to terminate analog service 
prior to June 12, 2009, may not specify a date earlier than April 16, 
2009, except in the case of a noncommercial educational station 
(``NCE'') facing significant financial hardship, and may not change the 
date they select to any other early (i.e., pre-June 12) termination 
date barring equipment failure, natural disaster, or another 
unforeseeable emergency. We also adopt requirements to assure that 
viewers are notified of early transitions and retain access to some 
analog service through June 12, 2009. Finally, we adopt our proposed 
post-transition analog service and consumer outreach requirements for 
the subset of early terminators that are major network affiliates in 
areas where all major network affiliate analog service will be 
discontinued prior to June 12, 2009.
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    \8\ We make no amendments to the Pre-Transition Digital 
Termination procedures adopted in the Third DTV Periodic Report and 
Order. Third Periodic Review of the Commission's Rules and Policies 
Affecting the Conversion to Digital Television, MB Docket 07-91, 
Report and Order, 23 FCC Rcd 2994, 3045, para 133. (``Third DTV 
Periodic Report and Order''.)
    \9\ Although the Omnibus Order referred to ``all'' stations, we 
take this opportunity to clarify that this filing requirement is 
limited to full-power television stations that are still 
broadcasting in analog (excluding analog nightlight service). Those 
stations that terminated analog television service on or before 
February 17, 2009 do not need to file this form.
    \10\ DTV Delay Act Omnibus Order, FCC 09-11 at paras 26-32. The 
rule changes herein apply to analog service terminations and 
substantial reductions to analog service. In general, a 
``substantial'' reduction is one that would affect more than 10 
percent of the population in a station's service area, as 
represented by the predicted Grade B contour. References to 
``termination'' here are intended to apply to such substantial 
reductions as well as to terminations.
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    5. The Third DTV Periodic Report and Order, 72 FR 37310 (July 9, 
2007), permitted stations to transition without prior Commission 
approval during the final months before the transition, but they were 
required to make a showing with their notification to the Commission 
that the analog service termination was ``necessary to achieve their 
transition.'' Consistent with this requirement, stations that seek to 
transition early must provide us with sufficient information in the 
Analog Service Termination Notification to enable us to determine 
whether an early analog termination is necessary and in the public 
interest. We will allow stations that notify us in a timely manner to 
proceed with their planned terminations without specific individual 
approval, with limited exceptions. As discussed in the Omnibus Order, 
we cannot forecast and deploy resources to prepare and assist consumers 
based on rolling, uncoordinated notifications. We believe that allowing 
any or all stations to terminate or substantially reduce analog service 
under the existing Third DTV Periodic Report and Order procedures would 
squander the time given to us and the country by the delay enacted by 
Congress.
    6. A number of commenters oppose the Commission's decision to 
revise the early analog termination procedures at all, and the specific 
proposals made in the NPRM. In its comments, the Association of Public 
Television Stations (``APTS'') focuses largely on the argument for 
permitting NCE stations to transition before April 16, which is 
addressed in Section II.A.4, below. APTS also argues more generally, 
however, that stations should be permitted to terminate at any time 
before June 12, because a ``gradual, rolling cessation of analog works 
relatively well and benefits the public.'' \11\ It argues that this 
approach provides a steady supply of information to the Commission, 
while minimizing viewer disruption, and that ``so far it has worked.'' 
\12\ Some individual stations also oppose the imposition of new 
requirements for early termination, even when they do not object to 
terminating analog service on April 16 or later.\13\ McGraw-Hill 
opposes the extension of viewer notification requirements beyond 30 
days, arguing that longer periods of notice could ``adversely

[[Page 11302]]

impact a smooth transition'' and spur increased viewer complaints to 
stations.\14\ Even where commenters do not argue that a longer 
notification period would create problems, they contend that a 30-day 
notice period, as adopted in the Third DTV Periodic Report and Order, 
is ``sufficient to make viewers * * * aware of the final date for the 
termination of analog operations.'' \15\ While there is less universal 
opposition to the proposed requirement to air crawls for seven days 
before analog termination, the general consensus among commenters is 
that the existing levels of pre-transition viewer notification are 
sufficient.\16\
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    \11\ APTS Comments at 6. See also MATC Comments.
    \12\ APTS Comments at 6.
    \13\ KET Comments at 2-3; OSU Comments at 3-7.
    \14\ McGraw-Hill Comments at 3.
    \15\ Sunbelt Comments at 4.
    \16\ See, e.g., Barry Comments at 4, note 1 (proposing to air 30 
days worth of notices before transitioning on April 16); see also, 
Joseph Belisle Comments (``It is a mistake to adopt onerous, 
endless, unworkable procedures for early termination of analog 
television service.'').
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    7. While we appreciate broadcasters' objections to the changes we 
are making in our procedures, we find it necessary to adopt new 
requirements and procedures associated with early transitions to assure 
that viewers are fully prepared and equipped to receive digital 
television signals and give up analog service. Our experience in 
preparing for the partial transition on February 17, as well as the 
early market-wide transitions in Wilmington, North Carolina and Hawaii, 
have demonstrated the importance of on-the-ground consumer outreach, 
the availability of coupons to defray the cost of DTV converter boxes, 
and the availability of the boxes themselves. Testimony in the recent 
Commission en banc hearings underscores the time needed by retailers, 
manufacturers, NTIA, pay TV services, local and national outreach 
organizations, and our own outreach staff to plan for both equipment 
availability and consumer education.\17\ This experience convinces us 
that more than 30 days are needed to plan and execute the intensified 
outreach efforts necessary in an area with stations transitioning early 
to assure consumer readiness. Indeed, more than 60 days is preferable. 
However, we recognize that some stations have legitimate needs to 
transition early and that Congress required us to balance the consumer 
need for time and information with the broadcaster need for 
flexibility. Therefore, we adopt the procedures and requirements 
described here to implement this balanced approach.
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    \17\ Written testimony of Cathy Seidel, Bureau Chief, Consumer 
and Governmental Affairs at 6-7; Written testimony of Eloise Gore, 
Associate Bureau Chief, Media Bureau at 3; Mark Lloyd, Vice 
President for Strategic Initiatives, Leadership Conference on Civil 
Rights and Leadership Conference on Civil Rights Education Fund at 
5.
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    8. For stations that elect to transition on June 12, the final day 
of the transition, we impose no additional requirements for viewer 
notification. Stations that will transition early may do so on the day 
of their choosing; they must, however, run daily viewer notifications 
for 30 days prior to transitioning, as required under the Third DTV 
Periodic Report and Order early termination procedures, containing the 
information described in this Order. Additionally, as discussed in 
detail below, affiliates of ABC, CBS, FOX, and NBC (``major network 
affiliates'') that are transitioning early must either (1) certify that 
at least one major network affiliate will continue to provide full 
analog service to their viewers through June 12, 2009, or (2) certify 
that their viewers will receive some continuing ``enhanced nightlight'' 
analog service, and that they will operate or support and publicize a 
walk-in help center and a consumer referral telephone number, and 
provide certain specific information about the transition in the on-air 
and other DTV educational efforts they undertake. These requirements 
are very similar to those we imposed on many major network affiliates 
that transitioned early on February 17, 2009. We conclude that these 
requirements are necessary and appropriate to implement the DTV Delay 
Act's provisions and carry out its purposes. They retain stations' 
flexibility to choose a transition date prior to June 12, while also 
addressing the needs and helping to ensure the readiness of viewers in 
their markets. We also retain the right to revise any station's 
proposed early termination if we find it in the public interest to do 
so.
1. Statutory Authority
    9. We reaffirm our conclusion that the Commission has authority to 
modify the Third DTV Periodic Report and Order's early termination 
procedures as necessary to implement and carry out the purposes of the 
DTV Delay Act.\18\ In their joint comments, NAB and MSTV (``NAB'') and 
others disagree with that finding, arguing that Section 4(a) of the Act 
plainly requires that broadcasters be allowed to cease analog 
broadcasting under the procedures ``in effect on the date of enactment 
of this Act,'' and prevents the Commission from modifying those 
procedures.\19\ On the contrary, we conclude that Section 4(a) is 
ambiguous and reasonably can be interpreted to ratify the termination 
procedures that were in effect on the date of enactment of the Act 
without restricting the Commission's authority to modify them.\20\
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    \18\ Omnibus Order, FCC 09-11 at para 30.
    \19\ DTV Delay Act sec. 4(a). See NAB and MSTV Joint Comments at 
17-20 (``NAB Comments''); APTS Comments at 2-4; Richard B. Brittain 
Comments; KET Comments at 5, 8-9; OSU Comments at 6; ZGS Comments at 
4.
    \20\ See generally Bell Atlantic Tel. Cos. v. FCC, 131 F.3d 
1044, 1049 (D.C. Cir. 1997) (Under the Chevron doctrine, if a 
statute is silent or ambiguous as to the precise question at issue, 
then a reasonable agency interpretation of the statute merits 
judicial deference).
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    10. Based on examination of the Act's text, legislative history, 
and structure, we cannot conclude that Section 4(a) plainly expresses 
Congress's intention to restrict FCC authority to modify its early 
termination procedures. Section 4(a) states that:

    [n]othing in this Act is intended to prevent a licensee of a 
television broadcast station from terminating the broadcasting of 
such station's analog television signal * * * prior to the 
[transition deadline] so long as such prior termination is conducted 
in accordance with the Federal Communications Commission's 
requirements in effect on the date of enactment of this Act, 
including the flexible procedures established in the [Third DTV 
Periodic Report and Order].\21\
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    \21\ DTV Delay Act sec. 4(a).

NAB maintains that this language ``specifically allows stations to 
cease analog broadcasting under the existing requirements.'' \22\ 
Although NAB's reading may be plausible, we do not agree that it is the 
only or even the most reasonable interpretation of the statutory text. 
The text clearly disavows any Congressional intent to override the 
Commission's existing termination procedures. It is silent, however, 
regarding whether the Commission may change those procedures. Had 
Congress intended to give broadcasters an affirmative right to 
terminate analog transmissions early in accordance with the procedures 
established in the Third DTV Periodic Report and Order and prevent the 
Commission from changing those procedures, it could easily have done 
so. Congress certainly knew how to use broad ``notwithstanding'' 
language, as it used such language elsewhere in the DTV Delay Act.\23\ 
We

[[Page 11303]]

believe that the use of narrower language in Section 4(a) signals a 
more modest disavowal of intent to override existing procedures.
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    \22\ NAB Comments at 18.
    \23\ DTV Delay Act sec. 4(c) (``[n]otwithstanding any other 
provision of law, the Federal Communications Commission * * * shall, 
not later than 30 days after the date of enactment of this Act, * * 
* adopt or review its rules, regulations, or orders to take such 
other actions as may be necessary or appropriate to implement the 
provisions, and carry out the purposes, of this Act.''). Cf. Central 
Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77 (1994) 
(although ``Congress knew how to impose aiding and abetting 
liability when it chose to do so,'' it did not use the words ``aid'' 
and ``abet'' in the statute, and hence did not impose aiding and 
abetting liability).
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    11. Contrary to NAB's argument, neither Section 4(a)'s title 
(``Permissive Early Termination Under Existing Requirements'') nor the 
legislative history make plain the meaning of the statutory text; the 
title is only ``a short-hand reference to the general subject matter 
involved,'' \24\ and the two floor statements cited by NAB merely 
indicate the expectation that broadcasters would be allowed to 
terminate early, without mentioning a freeze or other limitation on FCC 
authority.\25\ Further, the Act's structure does not support NAB's 
reading. On the contrary, rather than restricting the agency's general 
rulemaking authority, Section 4(c) grants the Commission expansive new 
authority.\26\ We find it difficult to square NAB's crabbed reading of 
Section 4(a) as enshrining the FCC's existing termination procedures 
with Section 4(c)'s grant of expansive new authority to implement the 
DTV Delay Act and carry out its purposes.\27\
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    \24\ Trainmen v. Baltimore & Ohio Railroad, 331 U.S. 519, 528 
(1947) (titles of acts or sections can provide only limited 
interpretive aid).
    \25\ See NAB Comments at 18 n.39, citing Statement of Rep. 
Boucher, Cong. Rec. H585 (Jan. 27, 2009) ``[w]e fully anticipate 
that the FCC will be very flexible in applying'' the provision 
allowing stations to cease analog broadcasting early); Statement of 
Sen. Hutchinson, Cong. Rec. at S1051 (Jan 29, 2009) (explaining that 
the delay of the DTV transition date ``is voluntary,'' which ``was 
very important'' because ``many broadcast companies have made the 
investment for digital transmission'' and the bill allows them ``to 
go'' digital). To the extent that NAB suggests that the FCC's 
modifications of the early termination procedures deprive 
broadcasters of the flexibility that Congress intended, we disagree 
for the reasons set forth elsewhere in this Order and our previous 
Order. We believe that our actions afford stations the flexibility 
that they need to choose a termination date prior to June 12 while 
also taking into account the needs and readiness of viewers in their 
markets.
    \26\ DTV Delay Act sec. 4(c) (authorizing the FCC 
``[n]otwithstanding any other provision of law'' to ``adopt or 
revise its rules, regulations, or orders or take such other actions 
as may be necessary or appropriate to implement the provisions, and 
carry out the purposes, of this Act.).
    \27\ Verizon California, Inc. v. FCC, 2009 WL 304745 (D.C. Cir. 
2009) (context and purpose of statute properly considered in 
determining meaning).
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    12. Considering the DTV Delay Act's text, legislative history and 
structure, and consistent with Supreme Court precedent, we have 
concluded that Section 4(a) ratifies the Third DTV Periodic Report and 
Order's early termination procedures without restricting the 
Commission's authority to modify those procedures.\28\ We remain 
persuaded that this interpretation is the most reasonable one. As 
discussed above, we think that Section 4(a) is most reasonably read as 
a disavowal of intent to override the Commission's early termination 
procedures then in effect. Had Congress not ratified those procedures, 
the DTV Delay Act could be interpreted to prohibit early termination 
altogether, for its purpose arguably would be undermined if most 
broadcasters chose to terminate before June 12.\29\ We reject NAB's 
argument that our construction prefers Section 4(c)'s general terms 
over Section 4(a)'s specific ones.\30\ Rather, our reading harmonizes 
and gives full effect to both Section 4(a) and Section 4(c), which 
reflects Congress's recognition that implementing the DTV Delay Act and 
carrying out its purposes within the short time available ``would 
require extraordinary and immediate action by the Commission and 
others.'' \31\
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    \28\ DTV Delay Act Second Report and Order and NPRM, FCC 09-11 
at para 30 n. 59 and accompanying text, citing Zemel v. Rusk, 381 
U.S. 1, 9-13 (1965) (Secretary of State had statutory authority to 
impose new area restrictions on passports in 1961 under the Passport 
Act of 1926 because Congress had ratified the Secretary's authority 
to impose such restrictions in 1952 by enacting passport legislation 
without tampering with the rulemaking authority granted to the 
Secretary in the 1926 Act), and City of New York v. FCC, 486 U.S. 57 
(1988) (Congressional ratification of FCC preemption of state and 
local cable technical standards). None of the comments specifically 
address the Commission's reliance on ratification precedents in the 
DTV Delay Act Second Report and Order.
    \29\ Cf. Omnibus and Order and NPRM, FCC 09-11 at para 1 (``In 
the DTV Delay Act, Congress extended the DTV transition deadline 
from February 17, 2009 to June 12, 2009 in an effort to provide 
consumers additional time to prepare for the transition from analog 
to digital broadcasting.''), citing Cong. Rec. H895 (daily ed. Feb. 
4, 2009).
    \30\ NAB Comments at 18-19.
    \31\ Omnibus Order and NPRM, FCC 09-11 at para 69. Finally, we 
note that NAB's argument that modification of FCC procedures is not 
permissible simply because sec. 4(a) does not expressly foreclose 
it, NAB Comments at 19, is inapposite because we do not rely on sec. 
4(a)'s silence for authority here. As explained above, we have both 
general rulemaking authority and expansive new authority under sec. 
4(c) of the DTV Delay Act.
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2. Analog Service Termination Form
    13. In the Omnibus Order, we required all full-power television 
stations that had not terminated their analog service as of February 
17, 2009, to decide on a firm date by which they intend to terminate 
their regular analog television service and to notify us of that date 
no later than Tuesday, March 17, 2009.\32\ We imposed this requirement 
because we have found that the opportunity for advance planning 
contributes significantly to a smoother transition. We now announce 
that this notification must be made via the Commission's Informal 
Filing Form after the release of this Order, but not later than 5:30 PM 
Eastern Daylight Time on March 17, 2009.\33\ In this notification (the 
``March 17 filing''), stations must commit to terminating on a date no 
earlier than April 16, 2009,\34\ to give all parties at least 30 days 
from the notification date to prepare and educate consumers. Any 
station that does not properly file this notification will not be 
permitted to terminate their analog service prior to June 12, 2009, 
except in the case of equipment failure, natural disaster, or other 
unforeseeable emergency.
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    \32\ Omnibus Order, FCC 09-11 at para 26.
    \33\ Notice to the Commission must be provided electronically 
through the Commission's Consolidated Database System 
[bs](``CDBS'') using the Informal Application 
filing form. To access the CDBS electronic filing system in order to 
file an analog termination or reduction notification, go to the 
Media Bureau's Web site at: https://www.fcc.gov/mb/cdbs.html. 
Instructions as to how to file these notifications are as follows: 
After logging into the CDBS, select the last option from main menu 
``Additional non-form Filings.'' From the next menu select ``Silent 
STA/Notification of Suspension.'' From the pre-form menu select: 
``Notification of analog termination or reduction.'' No fee is 
required. For additional information, contact Hossein Hashemzadeh, 
Hossein.Hashemzadeh@fcc.gov, of the Media Bureau, Video Division, at 
(202) 418-1658.
    \34\ But see Pre-April 16 Terminations by Noncommercial 
Educational Stations Certifying Significant Financial Hardship, 
infra.
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    14. The analog termination advance notice procedures adopted in 
this proceeding supersede the provisions of Section 73.1615.\35\ 
Stations may rely on the provisions of Section 73.1615 for brief 
terminations or reductions of service for technical reasons. They may 
not, however, rely on this provision to terminate analog service 
altogether, even in the days immediately prior to June 12, 2009. 
Barring Commission action, a station may only terminate analog service 
on the date it elects to do so on the analog service termination form.
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    \35\ 47 CFR 73.1615.
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    15. We impose no requirements in this section on stations that 
notify the Commission of their intent to continue providing full analog 
service \36\ until June 12, 2009.\37\ Continuing to broadcast in analog 
will give the viewers of these stations the maximum possible 
opportunity to prepare for digital broadcasting. The Commission 
recognizes the central importance of this goal; therefore, stations 
that file an analog service termination form to elect

[[Page 11304]]

an early transition date may later revoke this notification and delay 
their transition to June 12, 2009. This revocation filing may be 
submitted at any time up to five days prior to the elected transition 
date, although a shorter notice period is permissible in the case of 
equipment failure, natural disaster, or other unforeseeable emergency. 
In filing such a revocation, a station must certify that continuation 
of full analog service will not result in interference to the signal of 
any other station that has been approved to commence early post-
transition operations. It must also certify that it will provide notice 
to viewers of this revocation at least four times daily, with at least 
one notice in primetime, over the five days prior to and including the 
day it originally elected to terminate analog service.
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    \36\ For the purposes of this Order, we define ``full'' analog 
service or programming to mean the normally scheduled programming 
that the station aired prior to transitioning to digital-only 
broadcasting.
    \37\ All stations must conform to the DTV Consumer Education 
Initiative rules, however, including those adopted in this Order, 
unless they are specifically exempted from doing so.
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3. Early Analog Service Termination Viewer Notifications
    16. Pursuant to the Third DTV Periodic Report and Order, stations 
that transition early are required to provide additional viewer 
notifications in order to ensure that their viewers are prepared.\38\ 
In that Order, we required that stations provide viewer notifications 
for at least 30 days prior to their termination of analog service, and 
we retain that requirement here. These notifications must air at least 
four times a day, including at least once in primetime, for the 30-day 
period prior to the planned service reduction or termination. They must 
include: (1) The station's call sign and community of license; (2) the 
fact that the station is planning to reduce or terminate its analog 
operations before the transition date; (3) the firm date of the 
reduction or termination; (4) what viewers can do to continue to 
receive the station, i.e., how and when the station's digital signal 
can be received; \39\ (5) information about the availability of 
digital-to-analog converter boxes in their service area; and (6) the 
street address, e-mail address (if available), and phone number of the 
station where viewers may register comments or request information. In 
addition to the requirements described in the Third DTV Periodic Report 
and Order, stations terminating early must also provide service loss 
information, pursuant to Section III.C.2, below, if that section would 
require notice to viewers. As noted throughout this Order, these 
notifications are in addition to the requirements of the DTV Consumer 
Education Initiative rules, including those adopted in this Order.\40\
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    \38\ Third DTV Periodic Report and Order, 23 FCC Rcd at 3050, 
para 117.
    \39\ Alternatively, the notification could describe how to get 
service from another station affiliated with the same network if the 
station's digital signal will not cover the entire area that is 
within the station's Grade B analog contour.
    \40\ The revisions to our rules are shown in the regulatory text 
to this document.
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    17. We also asked in the NPRM whether we should require major 
network affiliates, or even all stations, that terminate analog service 
prior to June 12 to run seven days of hourly crawls, as we required of 
stations that terminated on February 17, 2009.\41\ NAB opposed this 
requirement, arguing that 30 days of notices prior to the transition 
will be sufficient to educate viewers ahead of time, and pointing to 
widespread consumer annoyance with the appearance of the crawls during 
programming.\42\ We agree with NAB that there is no need for additional 
pre-termination notifications in the form of crawls. When stations 
terminated on February 17, there was an extremely short period of time 
available to notify viewers of the impending change. The DTV Delay Act 
was enacted on February 11, and the extensive news coverage may have 
led many viewers to believe that they did not need to prepare for the 
digital transition, even if one of their local stations was going to 
transition six days later. With only six days, there was no way to run 
notices for thirty days. As a result, we found that an extremely 
intensive educational effort for the short period remaining was the 
only way to reach viewers as completely as a long term notice campaign. 
Now, stations will have time to run the full thirty days of viewer 
notifications.\43\ Under the present circumstances, we conclude that 
there is no need for additional pre-termination notifications in the 
form of crawls.
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    \41\ February 5th PN.
    \42\ NAB Comments at 22.
    \43\ Certain noncommercial stations, discussed, infra, may not 
have the full 30 days.
---------------------------------------------------------------------------

4. Pre-April 16 Terminations by Noncommercial Educational Stations 
Certifying Significant Financial Hardship
    18. We will allow NCEs to terminate analog service before April 16, 
if such termination is necessary as a result of significant financial 
hardship. Stations must certify in their analog termination form 
(described above) that they need to terminate before April 16 due to 
significant financial hardship and must comply with the viewer 
notification requirement. NCEs making this certification may terminate 
before April 16, but not before March 27.
    19. In the NPRM, we tentatively concluded that stations may 
terminate no earlier than April 16, 2009, so that stations terminating 
analog service early could adequately prepare and educate their 
viewers. We received several comments, including from APTS and many NCE 
stations, asking for permission to terminate before April 16, asserting 
significant financial hardship.\44\
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    \44\ See APTS Comments at 2-5; see also WPT Comments at 2 
(saying the following stations need to terminate early [April 5] due 
to ``drastic technical and financial pressures'': WHLA-TV, WHRM-TV, 
WHWC-TV, and WPNE(TV), WHA-TV); St. Lawrence Comments at 2 (saying 
the following stations need to terminate early [March 15] due to a 
``severe budgetary crisis'': WPBS and WNPI); WQED at 2 (saying that 
WQED needs to terminate early [April 1] because of a ``severe 
budgetary crisis''); WJCT Comments at 2 (saying WJCT is ``facing 
severe economic constraints'' and needs to terminate early [April 
6]); MSU Comments at 2 (saying KOZK and KOZJ planned to terminate 
analog early [April 2] to address ``serious financial and equipment 
considerations'').
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    20. The Commission has consistently recognized that NCE stations 
face unique financial difficulties and has afforded them additional 
flexibility to assist them in making their transition.\45\ APTS notes 
that many NCE stations continued broadcasting in analog after their 
planned termination date of February 17 at the Commission's urging, 
with the expectation that they would be able to terminate soon 
thereafter.\46\ We are also sensitive to the ``unplanned expenses'' 
(such as costs for electricity, equipment maintenance, additional tower 
rent, renegotiating tower leases, rescheduling tower crews and storing 
new equipment until it can be installed) which are incurred by stations 
keeping analog transmitters on the air after their originally planned 
termination dates.\47\ Although all stations may face such unplanned 
expenses, they are likely to fall particularly hard on NCE stations 
because of their unique financial difficulties, such as their reliance 
on government funding. We are aware that NCEs, unlike commercial 
stations, may have budgetary restrictions that prevent them from 
obtaining additional funding to address these expenses.\48\

[[Page 11305]]

Accordingly, we will permit NCE stations to terminate analog service 
prior to April 16, and as early as March 27, provided they comply with 
the viewer notification requirement, discussed below. We find that 
stations may not terminate analog service without notifying viewers on 
air for at least 10 days prior to termination, except in the case of 
equipment failure, natural disaster, or other unforeseeable emergency. 
We will not, however, reinstate analog termination notifications filed 
with the Commission under the prior procedures, nor will NCE stations' 
comments filed in response to the NPRM satisfy the March 17, 2009 
notification requirement.\49\ NCE stations must file their binding 
analog service termination notification by March 17, 2009.\50\ NCE 
stations terminating on or after April 16 should follow the analog 
termination procedures discussed above.
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    \45\ For example, in the Third DTV Periodic Report and Order, 
the Commission afforded NCE stations a reduced service requirement 
if their circumstances warranted this additional flexibility. See, 
e.g., Third DTV Periodic Report and Order, 23 FCC Rcd at 3041, para 
97; and Second DTV Periodic Report and Order, 19 FCC Rcd at 18311-
18319, paras 80-87. In addition, NCE stations received a later use-
or-lose deadline in the Second DTV Periodic Report and Order and, in 
the Fifth Report and Order, we noted the unique financial 
difficulties faced by NCE stations and reiterated our view that 
these stations warranted additional flexibility. Fifth Report and 
Order, 12 FCC at 12852, para 104.
    \46\ APTS Comments at 5.
    \47\ Id. at 4.
    \48\ See, e.g. , Mid-South Comments at 2 (facing a 15 percent 
cut in state funding); WNYPBA Comments at 2 (facing a 50 percent cut 
in state funding); and APTS comments at 5 (``Requiring stations to 
continue analog transmissions for a month or more beyond what they 
had budgeted would have profound negative implications on their 
financial futures.'')
    \49\ Omnibus Order at, para 26.
    \50\ Implementation of the DTV Delay Act, MB Docket No. 09-17, 
Second Report and Order and Notice of Proposed Rulemaking, FCC 09-
11, para 26 (rel. Feb. 20, 2009).
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    21. Viewer Notification Requirement. We require NCE stations that 
need to terminate analog television service before April 16 to 
broadcast the equivalent of 30 days' worth of viewer notifications 
regarding the station's imminent termination of its analog service.\51\ 
We find that this viewer notification requirement is necessary to 
protect viewer expectations and to carry out the purpose of the analog 
termination procedures. The 30 days' worth of viewer notifications must 
include the information discussed above.\52\ To comply with this 
requirement, stations must adequately and clearly communicate the 
required information, and make particular note that the date on which 
the station is terminating is prior to the new nationwide date of June 
12, 2009.
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    \51\ Notifications must be aired 120 times, on a daily basis, 
including 30 times in primetime, distributed evenly during the 30-
day period. Therefore, if the viewer notifications begin, for 
example, 10 days before the station's termination, the station must 
broadcast notifications 120 times, including 30 times in primetime, 
distributed evenly during the 10-day period; i.e. , the station must 
broadcast notifications every day on-air at least 12 times a day, 
including at least three times in primetime, for the 10-day period.
    \52\ We note that these viewer notifications are in addition to, 
and separate from, the notification requirements established in the 
Commission's DTV Consumer Education Initiative proceeding. See DTV 
Consumer Education Initiative, MB Docket No. 07-148, Report and 
Order, 23 FCC Rcd 4134 (2008); Order on Reconsideration and Further 
Notice of Proposed Rulemaking, 23 FCC Rcd 7272 (2008) (collectively, 
``DTV Consumer Education Orders'').
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5. Early Analog Service Terminations by Major Network Affiliates
    22. As we discussed in the February 11th PN, the early analog 
terminations of certain stations poses a significant risk of 
substantial public harm.\53\ The presence of ABC, CBS, FOX, and NBC 
network stations and affiliates in a market is critical to ensuring 
that over-the-air viewers have access to local news and public affairs, 
because these ``major network affiliates'' are the primary source of 
local broadcast news and public affairs programming in most 
communities. No commenter disagreed with this point. Indeed, while some 
commenters, including NAB, opposed additional early termination 
requirements as a general matter,\54\ no commenter specifically 
objected to imposing such additional requirements on major network 
affiliates that transition early. We will allow major network 
affiliates to terminate analog service prior to June 12 under the 
following conditions that ensure fulfillment of their public interest 
responsibilities. First, as discussed above, they must identify the 
date on which they plan to transition in their March 17 notification to 
the Commission. Second, major network affiliates must certify either 
that at least 90 percent of the population in their Grade B analog 
contour will receive full analog service from another major network 
affiliate until June 12, 2009, or that they will comply with the 
additional public interest related conditions. The additional public 
interest conditions are necessary to ameliorate any potential harms of 
early termination by assuring that viewers who will lose regular analog 
service from all of their major network affiliates before June 12 will 
continue to have some essential analog service through June 12 and will 
have access to local assistance from their stations no later than the 
time that the last major network affiliate terminates full analog 
programming.
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    \53\ February 11th PN.
    \54\ NAB focused on the importance of flexibility, which is 
retained by our procedures, and objected to the imposition of 
additional pre-transition viewer notification obligations for early 
terminators, which we declined to impose. In particular, NAB focused 
on the dangers of viewer fatigue as a result of additional on-air 
early transition notifications. NAB Comments at 21, 22, 24. The 
obligations on major network affiliates all apply after termination 
of their analog signal, and more to NAB's point about viewer 
fatigue, do not require any on-air notifications to digital viewers. 
The major networks or major network affiliates that filed comments 
with the Commission either had no comment about these requirements, 
or supported them. [FOX, Lima, Griffin, no comment; McGraw-Hill 
``generally supports the procedures proposed in the NPRM for binding 
early analog terminations.'']
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    23. A major network affiliate which cannot certify that 90 percent 
of its viewers will receive full analog service from another major 
network affiliate through June 12, 2009, but wishes to terminate early, 
must certify in its March 17 filing that: (1) At least 90 percent of 
the population in its Grade B analog contour will receive some major 
network affiliate analog service (enhanced nightlight or some 
combination of full service and enhanced nightlight) \55\ until June 
12, 2009; and (2) it will comply with the other public interest 
conditions described below.\56\ The station's enhanced nightlight and 
public interest obligations begin when more than 10 percent of the 
population in the station's Grade B analog contour no longer receives 
analog service from a major network affiliate, if that day is before 
June 12. Under most circumstances, this will be the day on which the 
last major network affiliate in a market terminates analog service 
early.
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    \55\ See definition of Enhanced Nightlight, infra.
    \56\ These public interest conditions are based on the 
requirements established in the February 11th Public Notice.
---------------------------------------------------------------------------

    24. As discussed in more detail below, the ``90 percent served'' 
condition will help to ensure that a major network affiliate's early 
termination does not pose a significant risk of substantial public harm 
because most viewers will continue to receive some analog service, and 
the public interest conditions carry out the DTV Delay Act's purposes 
by facilitating consumer readiness in communities where the primary 
sources of local broadcast news and public affairs programming are all 
terminating early. Any major network affiliate that properly certifies 
may terminate on its chosen date without the need for action by the 
Commission.\57\ A major network affiliate that does not: (1) Certify 
that a major network affiliate will provide full analog service to at 
least 90 percent of the population in its service area; (2) certify 
that it will comply with the public interest related conditions 
(including the analog service requirements); or (3) demonstrate extreme 
technical or financial difficulties by filing a showing of 
extraordinary exigent circumstances; must continue providing full 
analog

[[Page 11306]]

service until June 12, 2009 (except in the case of equipment failure, 
natural disaster, or other unforeseeable emergency).
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    \57\ Stations that are not major network affiliates are not held 
to these responsibilities. The Media Bureau will issue a Public 
Notice listing the stations and their early transition dates as soon 
as possible after the certifications are submitted and reviewed.
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a. Early Terminations By Major Network Affiliates That Certify 
Continuing Full Analog Service by Another Major Network Affiliate
    25. As discussed above, a major network affiliate may terminate 
early by certifying that at least 90 percent of the population within 
its Grade B analog contour will continue to receive full \58\ analog 
service through June 12, 2009, from a major network affiliate. We note 
that this need not be a single other major network affiliate,\59\ so 
long as 90 percent of the population is receiving full analog service 
from some major network affiliate.\60\ Although such a station incurs 
no additional obligations, it must comply fully with the requirements 
imposed on all stations that terminate early: To file and update the 
Analog Service Termination Notification form, as discussed in Section 
III.A.2, and to air 30 days of viewer notifications, as described in 
Section III.A.3. Although the filing station must list, in the March 17 
filing, the stations it will rely upon to provide the requisite level 
of service, each station is individually responsible for ensuring that 
the required percentage of its own analog viewers actually receive the 
required level of service.\61\
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    \58\ See note 36.
    \59\ Note that if the station is relying on (an)other major 
network affiliate(s), the station must confirm that the affiliate(s) 
relied on remain(s) able to cover at least 90 percent of the 
population in the station's Grade B coverage area even if the 
affiliate(s) is (are) operating at reduced power.
    \60\ Indeed, if the major network affiliate in question is 
reducing rather than terminating, it may count the percentage of its 
full Grade B contour still served toward the 90 percent. So, if the 
station will continue to serve 80 percent of the population in its 
service area through June 12, there need only be an additional, non-
overlapping, 10 percent served by another major network affiliate 
through June 12 in order for the station to comply.
    \61\ Stations filing for early termination must determine and 
certify that the requisite analog coverage will be provided. We 
intend to rely on the stations' filings to determine whether the 
termination is in the public interest.
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b. Early Terminations By Major Network Affiliates That Certify 
Compliance With the Public Interest Related Conditions
    26. If a major network affiliate cannot certify that full analog 
service will be provided by some major network affiliate to at least 90 
percent of the population in its Grade B contour through June 12, 2009, 
then it must certify that there will be some analog service to 90 
percent of the population in its Grade B contour through June 12, 2009, 
and that it will comply with the additional conditions below. Analog 
service, for this purpose, may be ``enhanced nightlight'' service, as 
defined below, or some combination of enhanced nightlight and full 
service analog programming from a major network affiliate (when the 
full service analog programming is not available to at least 90 percent 
of population in the station's Grade B analog contour). Either of these 
will ensure continuing access to local news, public affairs and 
emergency information, as well as DTV educational information, for any 
viewer who has not yet transitioned. Any major network affiliate that 
is certifying in order to terminate analog service early must include 
with its filing a list of the stations that will, individually or 
collectively, continue to provide such analog service to at least 90 
percent of its analog viewers through June 12, 2009.\62\ Stations may 
cooperate to share responsibility for providing the required level of 
analog service, but each station is individually responsible for 
ensuring that its own analog viewers receive the required level of 
service.
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    \62\ In this situation, just as for other major network 
affiliates, the stations filing for early termination must determine 
and certify that the requisite analog coverage will be provided, and 
we will rely on their filings to determine whether the termination 
is in the public interest. Here too, if a major network affiliate is 
substantially reducing coverage but not terminating analog service 
altogether, it may count the percentage of its Grade B contour still 
served toward the 90 percent. For example, if the station will 
continue to serve 70 percent of the population in its service area 
through June 12, there need only be an additional, non-overlapping, 
20 percent served by another major network affiliate's ``enhanced 
nightlight'' through June 12 in order for the station to be in 
compliance.
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    27. Major network affiliates must certify in the March 17 filing 
that they will comply with these other public interest conditions if 
more than 10 percent of the population in their Grade B service contour 
will lose full analog service from all major network affiliates before 
June 12. These obligations must be undertaken so that they are in place 
and operating no later than the day on which more than 10 percent of 
the population in their Grade B service contour actually do lose full 
analog service from all major network affiliates--usually when the last 
major network affiliate in the market terminates full service analog 
programming. The requirements for ``Walk-In Help Centers'' and 
``Consumer Referral Telephone Numbers'' contemplate collective effort, 
in a market where more than one broadcaster has certified compliance 
with the conditions, but we remind major network affiliates who certify 
compliance that they are each individually responsible for ensuring 
that collective efforts are compliant, and individually liable if they 
are not. We expect that major network affiliates and other stations 
serving the same viewing area will closely coordinate if they intend to 
terminate analog service before June 12, 2009. While we applaud and 
encourage coordination among broadcasters serving the same area within 
a market, we emphasize that broadcasters that continue providing full 
analog service to at least 90 percent of the population in their analog 
service area through June 12, 2009, are not responsible for compliance 
with any of the requirements associated with early termination, or for 
any shared efforts or expenses incurred by early termination stations 
as a result of these requirements.
    28. A major network affiliate must certify to all of the public 
interest related conditions in the next paragraph if it intends to 
terminate analog service before June 12, 2009, unless some other major 
network affiliate will provide full analog service to at least 90 
percent of the population within the terminating station's Grade B 
contour through June 12, 2009. We find that these conditions are 
directly related to, and necessary for, the early transition of a major 
network affiliate if its viewers will not have access to any other 
major network affiliate programming. Our experience on and after 
February 17th demonstrates that the continuing presence of at least one 
major network affiliate station broadcasting in analog provides vital 
information to viewers concerning the transition, as well as keeping 
them informed of local news. Broadcasters have the primary 
responsibility for their viewers and have the greatest interest in 
assuring that their signals continue to be available to their viewers. 
We impose these conditions with the awareness that many broadcasters 
have taken and will take these actions, and more, on their own. But we 
are mindful of our responsibility to ensure that all broadcasters 
fulfill their public interest