[Federal Register Volume 63, Number 62 (Wednesday, April 1, 1998)]
[Rules and Regulations]
[Pages 15774-15784]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8458]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 87-268; FCC 98-23]
Advanced Television Systems
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This Memorandum Opinion and Order on Reconsideration of the
Fifth Report and Order (``MO&O'') reaffirms & clarifies the
Commission's rules to implement digital television. The intended effect
of this action is to provide a host of new and beneficial services to
the American public, while preserving and improving free universal
television service that serves the public.
EFFECTIVE DATE: May 1, 1998.
FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, Mass Media Bureau,
Policy & Rules Division, 202-418-2130.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's MO&O,
MM Docket No. 87-268, FCC 98-23, adopted February 17, 1998 and released
February 23, 1998. The full text of this MO&O is available for
inspection and copying during normal business hours in the FCC
Reference Center (Room 239), 1919 M Street, N.W., Washington, DC, and
also may be purchased from the Commission's copy contractor,
International Transcription Service, Inc., 1231 20th Street, N.W.,
Washington, D.C., 20036, (202) 857-3800.
I. Introduction
1. In the Fifth Report and Order, 62 FR 26996 (May 16, 1997), in
the digital television (``DTV'') proceeding, we adopted rules to permit
the nation's broadcasters to implement the conversion to digital
television in accordance with the Telecommunications Act of 1996
(``1996 Act''). Our goals were to preserve and promote free,
universally available, local broadcast television in a digital world,
as well as to advance spectrum efficiency and the rapid recovery of
spectrum by fostering the swift development of DTV. Accordingly, we
sought to maximize broadcasters' flexibility to provide a digital
service to serve the needs and desires of the viewers, while adopting
rules to ensure a smooth transition to digital television.
2. We established an aggressive but reasonable construction
schedule, a requirement that broadcasters continue to provide free,
over-the-air television service, a target date of 2006 for the
completion of the transition, and a simulcasting requirement phased in
at the end of the transition period. We also recognized that digital
broadcasters remain public trustees of the nation's airwaves and have a
responsibility to serve the public interest. In order to permit an
opportunity to reassess the decisions we made in the Fifth Report and
Order, we also noted our intention to conduct a review of the progress
of the transition to DTV every two years. In response to petitions for
reconsideration from various parties, we take this opportunity to
reaffirm, revise, or clarify certain of our actions. Issues raised in
the petitions for reconsideration that are not addressed here will be
resolved in separate proceedings or future orders as noted.
II. Issue Analysis
A. Eligibility
3. Background. The 1996 Act expressly limited initial eligibility
for DTV licenses to persons that, as of the date of the issuance of the
licenses, hold either a construction permit or license (or both) for a
television broadcast station. In the Fifth Report and Order, the
Commission issued initial DTV licenses simultaneously to all eligible
full-power permittees and licensees. We concluded that it more
effectively effectuates the Congressional scheme to implement the
statute through a streamlined three-phased licensing process, with the
first phase consisting of the initial DTV license, rather than through
the conventional two-phased licensing process. Use of the two-step
process without the initial licensing phase would have prevented the
establishment of a date certain at which to determine initial
eligibility because, given the statutory directive that eligibility be
limited to permittees and licensees as of the date of issuance of the
DTV licenses, it could potentially
[[Page 15775]]
have left eligibility open until the last DTV operating license was
granted, a period that could possibly take years. This was also
necessary to allow us to establish the DTV Table of Allotments.
i. Alleged Exclusion of Eligible Permittees
4. Petitions/Comments. Coast TV (``Coast'') and Three Feathers
Communications, Inc. (``Three Feathers'') assert that they held
television construction permits as of the date of issuance of the DTV
licenses but were erroneously excluded from the list of eligible
broadcasters.
5. Discussion. Commission records indicate that Three Feathers held
a construction permit for channel 36, Hutchinson, KS, as of the date of
issuance of the DTV licenses. Similarly, Coast's application for a
construction permit for channel 38, Santa Barbara, CA, had also been
granted before that date, thereby making it eligible for a DTV license.
Their exclusion was inadvertent. Accordingly, the foregoing facilities
of Three Feathers and Coast are eligible for initial DTV licenses
pursuant to the Fifth Report and Order, and we shall amend the DTV
Table of Allotments to reflect their eligibility.
ii. Eligibility of Parties with Pending NTSC Applications
A. General Matters
6. Petitions/Comments. Several petitioners argue that parties whose
new NTSC construction permit applications were still pending as of the
date of issuance of the initial DTV licenses should be able to
participate in the transition to DTV, at least under certain
circumstances. Many of these petitioners filed applications within the
past three years that are mutually exclusive with other applications
and which, as a result, have not been grantable by the Commission. Some
petitioners claim that the newly granted NTSC construction permits
would be worth very little if they could not be used for DTV, but
instead had to be surrendered to the Commission at the end of the
transition period. Similarly, other petitioners assert that pending
applicants cannot realistically make the substantial investments
required to proceed with their applications and construct facilities
absent assurances that their NTSC channels can be converted to DTV.
7. Discussion. The 1996 Act stated that, if the Commission
determines to issue additional DTV licenses, the Commission ``should
limit the initial eligibility for such (DTV) licenses to persons that,
as of the date of such issuance, are licensed to operate a television
broadcast station or hold a permit to construct such a station (or
both) * * * In the Fifth Report and Order, we fully implemented this
provision. We made no decision at that time regarding the assignment of
DTV channels to new permittees and licensees whose pending NTSC
applications had not yet been granted and who were, as a result, not
awarded initial DTV licenses.
8. We shall afford new NTSC permittees, whose applications were not
granted on or before April 3, 1997 and who were therefore not eligible
for an initial DTV paired license, the choice to immediately construct
either an analog or a digital station on the channel they were granted.
They will not be awarded a second channel to convert to DTV but may
convert on their single 6 MHz channel. If they choose the analog
option, they will be subject to the traditional two-year construction
period applied to NTSC stations, and they may, upon application to the
Commission, convert their analog facility to DTV at any point during
the transition period, up to the end of that period.
9. All NTSC service must cease at the end of the transition period.
Because NTSC is a technology of the past that will cease to exist,
authorizing new analog stations that cannot evolve to digital operation
would have significant public interest costs. It could limit the
ability of the analog broadcaster to serve its viewers as well as it
otherwise might; it could put the licensee at a competitive
disadvantage vis-a-vis its emerging digital competitors; and viewers
would lose altogether a channel of free, over-the-air video programming
at the end of the transition period. In contrast, allowing the
transition to DTV would allow broadcasters to better serve their
viewers on a local scale, and it could help facilitate the overall
conversion from analog to digital broadcasting across the country.
10. Before the NTSC permittee or licensee can build a DTV station,
either initially or after first building an analog station, it must
file a DTV application. We will treat these DTV applications as minor
modifications. The proposed DTV facility must protect all DTV and NTSC
stations by complying with all applicable DTV technical rules. In
addition, such a new permittee or licensee's DTV facility must
generally comply with analog operating rules, such as minimum operating
hours, except where the analog rule is inconsistent with the digital
rules or inapplicable to digital technology. It must also provide one,
free over the air video program service, as with other DTV licensees.
These stations will also be afforded the flexibility to provide digital
ancillary or supplementary services authorized by Sec. 73.624(c) of the
Commission's rules, consistent with the DTV standard.
11. To prevent warehousing of spectrum, we will require these
permittees to build a station, analog or digital, within the initial
two-year construction period granted, rather than applying the DTV
construction timetable adopted in the Fifth Report and Order. We will
not extend the time for construction based on sale of the permit or
based on a decision to convert to DTV in the initial two-year period
before the analog station is built. Those stations that first construct
and operate an analog station (within the initial two-year period) and
then choose later to construct a DTV station must convert by the 2006
deadline and, upon grant of a DTV permit, will have (subject to the
2006 deadline) until the construction deadline for that category of
station or a period of two years, whichever is longer, within which to
build the DTV station.
12. DTV stations operating on a core NTSC channel will continue to
do so after the end of the transition period. However, stations
operating outside the core will be doing so on an interim basis only.
At the end of the transition period, to fully implement the policies
adopted in the Sixth Report and Order, 63 FR 460 (January 6, 1998), and
the recently concluded Channels 60-69 Reallocation, 63 FR 6669
(February 10, 1998), proceeding, the Commission will reassign all out-
of-core DTV broadcasters, including the currently pending applicants,
to channels in the core. Because the out-of-core allotment is intended
to be temporary, the subsequent move to a core channel will be
considered a minor change in facilities, intended solely to effectuate
the policies set forth in the above-mentioned documents.
B. Denied NTSC Applications
13. Petitions/Comments. SL Communications (``SL'') requests
reconsideration of an allotment decision in the Sixth Report and Order
that we consider here because it implicates eligibility. SL requests
that we allot a DTV channel for a vacant analog UHF channel in Texas,
for which an initial construction permit application was filed by
another party. In 1995, that applicant and SL filed a petition to
substitute SL for the applicant. The petition was denied on February
27, 1997, the proceeding was terminated, and a petition for
reconsideration is pending. Because there was no
[[Page 15776]]
permittee or licensee for the channel in question, there was no
corresponding DTV allotment made in the Sixth Report and Order and no
additional license awarded in the Fifth Report and Order. SL argues
that a DTV allotment should have been made because an application was
on file before October 24, 1991.
14. Discussion. We decline to reconsider this allotment eligibility
decision. Under the eligibility criteria established by section
336(a)(1) of the Communications Act and adopted in the Fifth Report and
Order, SL was not eligible for the award of an initial DTV license, as
it was not a permittee or licensee as of the date of issuance of the
DTV licenses. Indeed, the original applicant for which SL sought to
substitute did not have a permit at that time, and the application had
been denied. Thus, regardless of the outcome of the proceeding to
reconsider whether the NTSC application was properly denied, we were
not required to take the vacant analog allotment into consideration
when we crafted the DTV Table of Allotments. It would be premature to
give such consideration in the instant case because no permit or
license has been granted. However, in its recent order denying the
petition for reconsideration, Dorothy O. Schulze and Deborah Brigham,
FCC 98-21 (adopted February 12, 1998), the Commission held that the
NTSC channel is exempt from the general provisions of the Sixth Report
and Order deleting vacant NTSC allotments and that the Mass Media
Bureau should take appropriate steps to permit the filing of
applications for this channel. If such an application for an NTSC
construction permit is subsequently granted, the permittee will have
the same rights and obligations as other parties with pending NTSC
applications, as discussed above.
B. Definition of Service--Spectrum Use
15. Background. In the Fifth Report and Order, we recognized the
benefit of affording broadcasters the opportunity to develop additional
revenue streams from innovative digital services. Therefore, we allowed
broadcasters the flexibility to respond to the demands of their
audiences by providing ancillary or supplementary services that do not
derogate the mandated free, over-the-air program service. We did not
require that such services be broadcast-related, and we noted that such
ancillary or supplementary services could include, but are not limited
to, subscription television programming, computer software
distribution, data transmissions, teletext, interactive services, audio
signals, and any other services that do not interfere with the required
free service.
16. As noted in the Fifth Report and Order, our decision to allow
broadcasters flexibility to provide ancillary or supplementary services
is supported by section 336. This section specifically gives the
Commission discretion to determine, in the public interest, whether to
permit broadcasters to offer such services. Section 336(a)(2) of the
Act provides that if the Commission issues additional licenses for
advanced television services, it ``shall adopt regulations that allow
the holders of such licenses to offer such ancillary or supplementary
services on designated frequencies as may be consistent with the public
interest, convenience, and necessity.''
i. Ancillary or Supplementary Services
17. Petitions/Comments. The Personal Communications Industry
Association (``PCIA'') argues that the Fifth Report and Order did not
adequately define ``ancillary or supplementary'' services. PCIA claims
that the provision of land mobile service by DTV licensees would not
serve the public interest, as it would create an uneven playing field
between DTV licensees and mobile service providers. PCIA further claims
that consideration of the effect of the Order on mobile licensees is
missing from the Fifth Report and Order's Final Regulatory Flexibility
Analysis, as it identifies small businesses that may be impacted by the
decisions in the Fifth Report and Order, but analyzes the impact only
on other broadcast licensees.
18. PCIA also argues that the Commission's decision is contrary to
the 1993 Budget Act, which authorized the Commission to auction
spectrum used for commercial mobile radio purposes. PCIA claims that
DTV licensees, which were not required to participate in an auction,
will ultimately have license rights different from those of other
mobile service providers. They argue that these licensees do not appear
from the Fifth Report and Order to have the same regulatory
responsibilities as current mobile providers and are permitted to
provide video broadcast and subscription services.
19. PCIA acknowledges that Sec. 73.624(c)(1), adopted in the Fifth
Report and Order, states that DTV licensees offering such services must
comply with the Commission's regulations regarding each specific
service. However, it argues that the Commission has failed to define
these regulatory requirements in sufficient detail. For example, PCIA
questions whether DTV licensees offering land mobile services will be
required to provide emergency 911 access, telephone number portability,
and mandatory resale.
20. AAPTS and PBS (``AAPTS/PBS'') oppose PCIA's petition and argue
that DTV licensees should be allowed to provide land mobile and other
ancillary or supplementary services that do not relate to broadcast
service. AAPTS/PBS states that the Fifth Report and Order's blanket
authorization of supplementary services is consistent with the mandate
of section 336(a)(2), which allows ancillary service offerings that are
consistent with the public interest. AAPTS/PBS also observes that
allowing public television stations the flexibility to provide a
variety of services is crucial, as these services could generate needed
revenue for DTV construction and operation.
21. Discussion. We are unpersuaded by PCIA's arguments that we
should specifically exclude the provision of mobile services from the
definition of DTV ancillary or supplementary services. As we stated in
the Fifth Report and Order, we believe that the approach we have taken
with respect to permitting ancillary or supplementary services will
best serve the public interest by fostering the growth of innovative
services to the public and by permitting the full possibilities of DTV
to be realized. Granting broadcasters the flexibility to offer whatever
ancillary or supplementary services they choose may also help them
attract consumers to the service, which will, in turn, speed the
transition to digital. Such flexibility should encourage
entrepreneurship and innovation, will contribute to efficient spectrum
use, and will expand and enhance use of existing spectrum. Permitting
broadcasters to assemble a wide array of services that consumers desire
will also help promote the success of the free television service.
22. Section 336(b) outlines our authority to permit the provision
of ancillary or supplementary services by DTV licensees. Under this
section, we are required to limit ancillary or supplementary services
to avoid derogation of any advanced television services that we may
require. We are also required to apply any regulations relevant to
analogous services. Our decision is fully consistent with the statutory
requirements. The services we have authorized will not derogate
advanced television service, nor will they create inequities for other
regulated services.
23. The Fifth Report and Order addressed the issue of parity in the
treatment of various service providers. We stated that, consistent with
section
[[Page 15777]]
336(b)(3), all non-broadcast services provided by digital licensees
will be regulated in a manner consistent with analogous services
provided by other persons or entities. We also noted that we currently
follow such an approach for ancillary or supplementary services
provided by NTSC licensees, for example, on the vertical blanking
interval (VBI) and the video portion of the analog signal. Further, in
the Fifth Report and Order, we noted that we would review our flexible
approach to permit ancillary or supplementary services during our
periodic DTV reviews and to make adjustments to our rules as needed.
These reviews will allow us to address any specific concerns raised by
the mobile service industry regarding the provision of certain
ancillary or supplementary services by DTV licensees on a case-by-case
basis if warranted.
24. Contrary to the claims of PCIA, our decision regarding
ancillary or supplementary services will fulfill our Congressional
mandate to establish a fee program that prevents unjust enrichment of
DTV licensees. In enacting section 336, Congress specifically
recognized the possibility that DTV licensees might offer services
competing with those subscription-based services operating on spectrum
purchased in the auction process. Congress therefore required that the
Commission establish a fee program for ancillary or supplementary
services provided by digital licensees if subscription fees are
required in order to receive such services.
25. In considering the assessment of fees for the ancillary or
supplementary use of the DTV spectrum, Congress mandated that to the
extent feasible, the fee imposed should recover an amount that equals
but does not exceed the amount that would have been realized in an
auction of the spectrum under section 309(j). Congress stated that the
fee should be designed to prevent the unjust enrichment of DTV
licensees using the DTV spectrum for services analogous to services
provided on spectrum assigned at auction. We recently issued a Notice
of Proposed Rule Making to consider proposals as to how this statutory
provision should be implemented and these fees assessed.
26. Finally, there is no basis to PCIA's claim that we were
required to consider the impact of our DTV decision on land mobile
licensees in the Final Regulatory Flexibility Analysis (FRFA) appended
to the Fifth Report and Order. The FRFA, required of agencies in
rulemaking proceedings by the Regulatory Flexibility Act, is designed
to protect small entities that are directly subject to administrative
rules rather than all entities that are indirectly affected by the
results that any rules will produce.
ii. Minimum Programming Hours
27. Petition. Chronicle Publishing Co. (``Chronicle'') observes
that the Fifth Report and Order requires broadcasters to provide a free
digital video programming service, the resolution of which is
comparable to or better than that of today's service, aired during the
same time periods that their analog channel is broadcasting. Chronicle
argues that there may be unexpected difficulties for stations operating
on channels adjacent to nearby stations, for which the interference
issues are not yet fully understood. To accommodate such difficulties,
Chronicle requests that the Commission modify the foregoing requirement
to exempt broadcasters from providing a free digital video signal
between the hours of midnight and 6:00 a.m. (even though the analog
station is broadcasting) in order to allow licensees to conduct
maintenance or resolve any technical or other unanticipated problems
arising from the use of new digital technology, especially in the UHF
band. Chronicle maintains that such ``down time'' is essential for the
ultimate success of DTV.
28. Discussion. We decline to grant Chronicle's requested
modification to our requirement that broadcasters provide a free
digital video programming service when the analog station is
broadcasting. This requirement was designed to assure that broadcasters
provide on their digital channel the free over-the-air television
service on which the public has come to rely. We believe that it is a
minimal requirement that should not be unduly burdensome, particularly
in light of the flexibility we have otherwise provided to broadcasters
to provide a variety of digital services. While we recognize that
broadcasters may have technical problems to resolve as they make the
transition to DTV, we believe that the remedy requested is overbroad.
In the event, however, that stations experience unexpected technical
difficulties with the required transition to DTV such as those outlined
by Chronicle, they may request special temporary authority to operate
at variance from our required minimum digital television service on a
case-by-case basis so that such technical difficulties can be resolved.
If it later appears that a more general change in our requirements may
be necessary, we can consider that modification during our periodic
reviews.
C. Public Interest Obligations
29. Background. In the Fifth Report and Order, we noted that the
1996 Act provided that broadcasters have public interest obligations
with respect to the program services they offer, regardless of whether
they are offered using analog or digital technology. Noting the
differences in views as to the nature and extent of digital
broadcasters' public interest obligations, we stated that we would
issue a Notice to collect and consider all views on broadcasters'
public interest obligations in the digital world. However, we also put
broadcast licensees and the public on notice that existing public
interest requirements continue to apply to all broadcast licensees,
that the Commission may adopt new public interest rules for digital
television, and that the Fifth Report and Order ``forecloses nothing
from our consideration.''
30. Petitions. Media Access Project, et al. (``MAP''),1
contends that the Commission should not delay its analysis of what
modified (and increased) public interest obligations it should impose
on DTV licensees. According to MAP, the Commission's failure to impose
new public interest obligations violates section 201 of the 1996 Act,
47 U.S.C. 336(d), 336 (a)(1), and 47 U.S.C. 336(b)(5). MAP adds that
new public interest obligations are also warranted because broadcasters
will have full use of 12 MHz (double their available spectrum) for at
least 9 years, and also will be able to provide a number of commercial
services that were previously impossible. MAP urges the Commission to
clarify that all new and existing public interest obligations will
apply to both free and subscription program services in both analog and
digital modes. MAP contends that such a conclusion appears implicit in
the Fifth Report and Order and is supported by 47 U.S.C. 336(d).
---------------------------------------------------------------------------
\1\Media Access Project filed jointly with the Center for Media
Education, the Consumer Federation of America, the Minority Media
and Telecommunications Council, and the National Federation of
Community Broadcasters.
---------------------------------------------------------------------------
31. Decision. We will not reconsider the approach we took in the
Fifth Report and Order with respect to the issue of the nature and
extent of broadcasters' public interest obligations in the digital
world. MAP has not presented sufficient reasons why we must make an
immediate decision on these questions instead of issuing a Notice so
that we may collect and consider all views on these important issues.
[[Page 15778]]
D. Transition
i. Simulcast
32. Background. In the Fifth Report and Order, the Commission
declined to adopt a simulcast requirement for the early years of the
transition, but it adopted a phased-in simulcasting requirement as
follows: by the sixth year from the date of adoption of the Fifth
Report and Order, there is a 50 percent simulcasting requirement; by
the seventh year, a 75 percent simulcasting requirement; and, by the
eighth year, a 100 percent simulcasting requirement, which will
continue until the analog channel is terminated and the analog spectrum
returned.
33. Petitions: Include Simulcasting Target Dates in Periodic
Reviews. MSTV contends that although the simulcasting phase-in is based
on the transition end date of 2006, the Commission may change this
date. Therefore, MSTV urges the Commission to expressly include
simulcasting target date requirements in its biennial review of the DTV
transition. MSTV contends that this will ensure that simulcasting
requirements remain tied to consumer acceptance of DTV, and
broadcasters have the flexibility to program their DTV channels to best
attract the public to DTV during the early stages of the transition.
34. Limited Simulcasting Exemption for Public TV Stations. AAPTS/
PBS contends that public stations may be adversely affected by the
partial-to-full simulcasting requirement, as well as by the requirement
that the digital channel operate during the same hours as the
licensee's NTSC station. According to AAPTS/PBS, these requirements
effectively impose a minimum operating requirement on the DTV station.
It therefore advocates that the Commission not require public stations
to simulcast their NTSC programming on their DTV stations, because that
will effectively require that the licensee operate the DTV station
whenever the NTSC station is operating. AAPTS/PBS instead urges that
the Commission apply the simulcast requirement only during the hours
when a licensee operates the DTV station. AAPTS/PBS notes that for many
public stations, the power requirements for operating a DTV station
whenever their NTSC station is operating (which is often 18 hours a
day) will exceed their financial resources and may chill their ability
or willingness to build a DTV station in the first place. Since there
are no minimum operating requirements for noncommercial TV stations,
according to AAPTS/PBS, these two DTV operation requirements ``could
have the perverse result of providing an incentive for public
television stations to reduce their NTSC operating hours in order to
comply with these (two Fifth Report and Order) requirements.''
35. Accordingly, AAPTS/PBS urges that the Commission afford public
stations the discretion to determine how many hours a day to operate
their DTV stations. AAPTS/PBS contends that public stations will still
offer DTV services during a reasonable portion of the day because they
incurred the DTV construction costs, and PBS will be delivering HDTV
programming at least during prime time. In addition, because public
stations rely on audience contributions for their operating costs, they
will have an incentive to operate their DTV stations the maximum number
of hours they can afford. AAPTS/PBS therefore contends that this
proposal will not adversely affect the transition to DTV. If a public
station operates its DTV station fewer than the number of hours
required to meet the simulcast percentage, the licensee should be
required to simulcast for the entire time the DTV station is operating.
36. Discussion: Periodic Review. We agree with MSTV that we should
expressly include simulcasting requirements in our periodic review. As
discussed below, Congress now requires us to reclaim the analog
spectrum by December 31, 2006 and to grant extensions of that date to
stations under circumstances specified in the statute. We will conduct
a periodic review of the progress of DTV every two years until the
cessation of analog service. In these reviews, we will address any new
issues raised by technological developments, necessary alterations in
our rules, or other changes necessitated by unforeseen circumstances.
37. Noncommercial Stations. We do not believe that it is necessary
at this time to grant AAPTS/PBS's request to afford public stations
discretion to determine how many hours a day to operate their DTV
stations. We note that, in the Fifth Report and Order, we adopted a
six-year period for public stations to construct their DTV facilities,
the longest construction period for any category of DTV applicant. We
reiterate our beliefs, stated in that Order, that special relief
measures may eventually be warranted to assist public television
stations to make the transition, that it would be premature at this
time to determine what those measures might be, and that the specific
nature of any special relief for public stations is best considered
during our periodic reviews.
ii. Licensing of DTV and NTSC Stations
38. Background. In the Fifth Report and Order, we concluded that
the NTSC and DTV facilities should be licensed under a single, paired
license. We stated that this will help both the Commission and
broadcasters by keeping administrative burdens down, and that it would
allow us to treat the DTV license and the NTSC license together for the
purposes of revoking or not renewing a license. Therefore, we stated
that once broadcasters have satisfied construction and transmission
requirements, they will receive a single, paired license for the DTV
and NTSC facilities.
39. Petitions/Comments. The Department of Special Districts, San
Bernardino County, California (``San Bernardino'') notes that the 1996
Act requires the Commission to condition the DTV license on the
``require[ment] that either the additional license or the original
license held by the licensee be surrendered to the Commission for
reallocation or reassignment (or both) pursuant to Commission
regulation.'' San Bernardino argues that this condition should appear
on the face of the instrument for all license renewals granted after
the start of 1998, consistent with the eight-year license term and the
2006 reversion date adopted in the Fifth Report and Order.
40. Discussion. We note that the 2006 reversion date is now
statutory. After the adoption of the Fifth Report and Order and the
filing of the petitions for reconsideration, Congress enacted the
Balanced Budget Act of 1997, which provides that ``(a) broadcast
license that authorizes analog television service may not be renewed to
authorize such service for a period that extends beyond December 31,
2006'' unless the Commission grants an extension based on specific
criteria enumerated in the statute. We believe that this statutory
language addresses any concerns San Bernardino may have regarding the
reversion of one of the licenses of each station. Nevertheless, to
ensure that all broadcasters are aware of their obligation to surrender
either the original license or the additional license pursuant to
Commission regulation, we will place on all broadcast television
licenses granted after December 31, 1998, an express condition
requiring return of one of the two 6 MHz channels at the end of the
transition period. We will impose such a condition on all renewals
granted until the transition period has ended.
[[Page 15779]]
E. Application/Construction Period
41. Background. In the Fifth Report and Order, we announced that we
would apply a streamlined three-stage application process to the group
of initially eligible analog permittees and licensees allotted a paired
channel in the DTV Table of Allotments. In the Fifth Report and Order
itself, the Commission completed Stage 1, the initial modification of
the license for DTV, by issuing DTV licenses to all parties initially
eligible to receive them. Before initial DTV licensees can commence
construction, however, we required that they file an application for a
construction permit. We stated that we would treat the construction
application, the second stage, as a minor change application, which
does not require a showing of financial qualifications. We observed
that the DTV construction permit application would not constitute a
change in frequency, but merely the implementation of the initial DTV
license on a channel assigned in the Sixth Report and Order. In the
third stage, upon completion of construction, the permittee may
commence program tests upon notification to the Commission, provided
that an application for a license to cover the construction permit for
the DTV facility is timely filed.
i. Financial Qualifications
42. Petitions/Comments. MAP argues that the Commission should have
required broadcasters to demonstrate their financial qualifications as
a condition of awarding an initial DTV permit or license. MAP notes
that the Commission's classification of an application for DTV
construction permit as a minor change means that the applicant is not
required to demonstrate its financial qualifications. MAP asserts that
this decision threatens to delay the institution of DTV service because
financially unqualified applicants may warehouse awarded spectrum or
simply be unable to construct DTV facilities.
43. MAP also argues that the conversion to DTV is not a change in
facilities, but instead involves issuing a new construction permit and
license to each existing broadcaster making the transition. Because the
license is new, according to MAP, the Commission is statutorily
required to determine whether the broadcaster is qualified to receive
it. In this regard, MAP cites section 308(b) of the Communications Act
of 1934, as amended, which states that ``(a)ll applications for station
licenses, or modifications or renewals thereof, shall set forth such
facts as the Commission may by regulation prescribe as to the * * *
financial * * * qualifications of the applicant to operate the
station.'' In the alternative, MAP asserts that even if the DTV
applications are categorized as a change, the Commission's
classification of them as minor is inconsistent with Sec. 73.3572(a)(1)
of the Commission's rules. That provision of the rules defines a major
change as one involving a change in frequency or community of license.
MAP disputes the Commission's assertion in the Fifth Report and Order
that ``the change involved in constructing and operating a DTV facility
does not constitute a change in frequency, merely the implementation of
the initial DTV License on a channel assigned in the Sixth Report and
Order.'' MAP states that, regardless of whether broadcasters use their
new frequency for the current analog or future digital transmissions,
they will change their frequencies and be subject to
Sec. 73.3572(a)(1).
44. Discussion. We decline to reconsider the streamlined licensing
process, under which we do not require a showing of financial
qualifications. We continue to believe that the DTV construction permit
applications related to these allotments should be treated as minor
change applications. They do not involve new stations or changes in
frequency as these terms have traditionally been used for the purposes
of Sec. 73.3572(a)(1) of the Commission's rules to define a major
change. This is not an instance where an individual broadcaster has
devised its own plan to change its channel or community of license and
is requesting Commission authorization of that specific change. To the
contrary, in order to implement the transition to DTV that we have
found will serve the public interest, each application is to implement
a specific DTV channel allotment expressly set forth by the Commission
in the Sixth Report and Order for use by the applicant, the incumbent
analog broadcast licensee, as contemplated by Congress.
45. We also conclude that treating DTV applications like
applications for minor changes is consistent with Section 308(b) of the
Communications Act. Section 308(b) authorizes the Commission to
exercise its discretion when determining whether a financial
qualifications showing requirement for certain classes of applications
would serve the public interest. As noted above, Section 308(b)
requires that ``(a)ll applications for station licenses, or
modifications or renewals thereof, shall set forth such facts as the
Commission may by regulation prescribe as to the * * * financial * * *
qualifications of the applicant to operate the station.'' 47 U.S.C.
308(b) (emphasis supplied). Consistent with this statutory language,
the Commission long ago made a public interest determination that
applicants for minor changes in broadcast facilities (i.e., analog
television and radio) do not need to provide information regarding
their financial qualifications. MAP does not assert that this
Commission policy is inconsistent with section 308(b). Further, MAP
does not state why the Commission's public interest determinations
regarding analog television application forms and DTV license
application forms should be considered differently for the purposes of
section 308(b). Accordingly, we find MAP's section 308(b) argument
unpersuasive.
46. As we emphasized in the Fifth Report and Order, one of our
primary goals is to achieve a rapid and efficient transition from
analog to digital broadcast television. We continue to believe that the
approach we have taken will foster swift and widespread construction
and operation of digital television stations with minimal risk of
spectrum warehousing or disuse. A number of factors will encourage
broadcasters to construct their DTV stations quickly. These factors
include stations' need to compete with other video program providers,
who are also delivering or preparing to deliver digital video
programming; the planned cessation of NTSC broadcasting in 2006; and
the opportunity to offer a variety of ancillary services in addition to
the one mandatory, over-the-air video programming service.
47. In addition, as we discussed in the Fifth Report and Order, we
will grant requests for extensions of time within which to construct
DTV facilities only if they meet specific, delineated criteria. We will
grant an extension of the applicable deadline where a broadcaster has
been unable to complete construction due to circumstances that are
either unforeseeable or beyond the licensee's control, and only if the
licensee has taken all reasonable steps to resolve the problem
expeditiously. As we stated in the Fifth Report and Order, ``such
circumstances include, but are not limited to, the inability to
construct and place in operation a facility necessary for transmitting
DTV, such as a tower, because of delays in obtaining zoning or FAA
approvals, or similar constraints, or the lack of equipment necessary
to transmit a DTV signal.'' As a further guarantee that valuable DTV
spectrum would not be warehoused, the Fifth Report and Order noted that
we do not anticipate that the circumstance of
[[Page 15780]]
``lack of equipment'' would include the cost of such equipment.
ii. Construction Schedule
48. Background. The Fifth Report and Order adopted a construction
schedule for DTV facilities. Affiliates of the top four networks (ABC,
CBS, Fox and NBC) must build digital facilities in the ten largest
television markets by May 1, 1999. Affiliates of those networks in the
top 30 television markets, not included above, must construct DTV
facilities by November 1, 1999. All other commercial stations must
construct DTV facilities by May 1, 2002. All noncommercial stations
must construct their DTV facilities by May 1, 2003. We delineated
specific criteria pursuant to which we would grant requests for
extensions of time within which to construct.
General Issues
49. Petitions/Comments. Several petitioners request reconsideration
of the construction schedule. For example, Cordillera Communications
(``Cordillera''), which intends to construct nine DTV stations,
requests an extension of the deadlines or, in the alternative,
relaxation of the standards for granting extensions. According to
Cordillera, the full implementation of DTV will take longer than the
ten-year period the Commission has established. Cordillera cites the
time needed to acquire a tower site, construct a tower in compliance
with local and federal regulations, acquire equipment to provide
maximum service, and evaluate the impact of DTV on its viewers who
receive its NTSC signals via translator. It adds that modifying the
construction schedule will prevent the Commission from needlessly
expending resources on processing extension applications.
50. Discussion. We do not believe that it would serve the public
interest to extend the construction timetable established in the Fifth
Report and Order. If a broadcaster does not complete construction
within the time period contemplated by the current timetable, it may
request an extension of time within which to construct, as noted above.
The criteria we use to determine whether grant of an extension would
serve the public interest adequately address the concerns raised by
Cordillera. In addition, arguments related to zoning are more relevant
to our ongoing proceeding considering the alleged impact of delays to
DTV station construction caused by local zoning regulations.
Effect on Radio Stations
51. Petitions/Comments. National Public Radio (``NPR'') requests
that we extend the construction schedule. It claims that the current
timetable, combined with the allotment, in the Sixth Report and Order,
of DTV channels on the basis of current transmitter sites and
replication of existing NTSC service areas, threatens to create a
shortage of available tower capacity for DTV antennas. As a result, NPR
claims, a substantial number of public radio stations will be forced to
relocate their transmitting antennas at a significant financial cost
and possible loss of signal coverage areas. It adds that several FM
stations have already been informed that they will have to relinquish
their tower space to make way for a DTV antenna.
52. Discussion. We decline to alter the construction schedule as
requested by NPR. First, NPR's claim that a significant number of
educational FM stations will have to relinquish their tower space and
pay for a costly relocation of their transmitting antennas is, at this
time, speculative. NPR provides no documentary evidence to support its
claim that several FM stations have already been informed that they
will have to relinquish their tower space in order for the tower owner
to make room for DTV equipment. It also provides insufficient
information regarding the cost or time period of such circumstances.
Thus, NPR has not demonstrated at this time that the construction
schedule will have any undue negative impact on a significant number of
public radio stations. We can revisit this issue, if warranted, during
the periodic DTV reviews.
Issues Relating to Noncommercial Television Stations
53. Petitions/Comments. AAPTS/PBS states that public television
stations with both NTSC and DTV channels outside the core channels
should be permitted to defer DTV construction until they have a
permanent DTV channel (i.e., the end of the transition period, when
they have a core channel). According to AAPTS/PBS, 13 public television
stations have both their analog and their digital channels outside
channels 2-46, and 13 have channels outside channels 7-51. It adds that
``over half of those stations in each case have operating budgets of
less than $5 million. Under the current rules, they not only will have
to build two DTV stations, but will have to migrate their viewers to a
new channel at the end of the transition.'' AAPTS/PBS states that since
the Commission has not yet determined what the core channels will be,
these public TV stations do not know what that new channel will be at
the end of the transition period or when they will learn of the
assignment. AAPTS/PBS asserts that this uncertainty makes planning and
finding funding for the transition difficult.
54. AAPTS/PBS's proposal is supported by Motorola as a way for
noncommercial educational stations to alleviate conversion costs.
According to Motorola, the proposal ``recognize(s) the difficult
economics involved with a two step migration to digital service. More
importantly, (it) could accelerate the recovery of UHF channels 60-69
for public safety or other wireless use.''
55. Discussion. We decline to adopt the modifications to the
construction schedule proposed by AAPTS/PBS. We do not believe that
such modifications are necessary. Because we recognized the financial
difficulties often faced by noncommercial broadcasters, the
construction timetable we adopted in the Fifth Report and Order
provided noncommercial stations a six-year period within which to
construct their DTV facilities, the longest construction period
allotted to any category of DTV applicant. In the Fifth Report and
Order, we also stated that special relief measures may eventually be
warranted to assist public television stations to make the transition,
but we concluded that it was premature to determine what those specific
measures should be. We stated then, and we continue to believe, that
determining the specific nature of whatever special relief may be
needed for noncommercial educational broadcasters is best considered
during our periodic reviews. AAPTS/PBS has not demonstrated that its
concerns regarding public television stations with both NTSC and DTV
channels outside the core channels cannot adequately be addressed in
that context. Nonetheless, as discussed in the Memorandum Opinion and
Order on Reconsideration of the Sixth Report and Order, we will
consider, on a case-by-case basis, requests to defer construction and/
or to make an immediate transition to digital when filed by those
stations that have both analog and digital channels outside the core.
Satellite Stations
56. Petitions/Comments. Hubbard Broadcasting, Inc. (``Hubbard'')
seeks clarification as to the application of the construction schedule
to satellite stations. Hubbard asks how the construction schedule
applies to satellite stations such as its own that transmit the same
network programming as their parent, not by virtue of a network
affiliation agreement, but by rebroadcast consent granted by the
network.
[[Page 15781]]
57. Discussion. We clarify that the construction exception for
same-market affiliates applies to satellite stations. Thus, with regard
to Hubbard's particular example, the two satellite stations are located
within the same market as their parent and, according to Hubbard,
broadcast the programming of the same network. Under our rules, if a
network has more than one affiliate in a top 30 market, the station
with the smaller audience share is not subject to the expedited
schedule for networks affiliates. Therefore, regardless of the
stations' satellite status or type of network contract being used,
Hubbard's two satellites are not subject to an accelerated construction
schedule. Instead, they are subject to the five-year construction
deadline.
iii. Processing Procedures
58. Background. In the Sixth Report and Order, the Commission
allowed flexibility for DTV facilities to be built at locations within
five kilometers of the reference allotment sites without consideration
of additional interference to analog or DTV service, provided the DTV
facilities do not exceed the allotment reference HAAT and ERP values.
In the Fifth Report and Order, we noted that we would expedite
processing of construction permit applications that could correctly
certify as to a series of checklist questions, which include whether
the proposed facility conforms to the DTV Table of Allotments by
specifying an antenna site within five kilometers of the reference
allotment site. We noted our intent to grant a construction permit to
such broadcasters within a matter of days and noted that other
applicants would be required to furnish additional technical
information.
59. Petitions/Comments. Costa de Oro TV (``Costa de Oro'') asks the
Commission to establish expedited processing procedures for stations
that need to relocate their transmitters due to the inability to use
their current sites. It also asks several questions as to how certain
types of applications will be processed.
60. Discussion. The October 16, 1997 Public Notice setting forth
how DTV construction applications will be processed generally addresses
issues such as those raised by the petitioners. As we noted in the
Fifth Report and Order, we intend to give processing priority to
routine DTV applications, which are those in which the applicant can
certify compliance with several key processing requirements. We also
are expediting the processing of DTV applications in any of the
television markets where broadcasters are subject to an accelerated
construction timetable (i.e., the top 30 markets). With regard to
showings that a requested change is in compliance with the Commission's
interference standards, all non-routine DTV applications will be
processed pursuant to the criteria adopted in the Sixth Report and
Order and its reconsideration order, and as set forth in OET Bulletin
No. 69.
iv. Selection of Permanent DTV Channel
61. Petitions/Comments. AAPTS/PBS petitions the Commission to
require stations with both their NTSC and their DTV channel within the
core to select their permanent channel several years before the end of
the transition period, such as at the end of the construction period
or, at the latest, a year after they commence operation.
62. Discussion. The issue of whether we should require stations
with both channels within the core to select their permanent channel
early in the transition will be dealt with in the Memorandum Opinion
and Order on reconsideration of the Sixth Report and Order. We take
this opportunity to clarify that non-core licensees will not be subject
to competing applications when they apply for their permanent DTV
channels.
v. Immediate Transition
63. Petitions/Comments. In the Fifth Report and Order, we
contemplated that each broadcaster would operate its analog station
while constructing its digital facilities, and then operate both
facilities upon the completion of construction for the duration of the
transition. However, several parties request that the Commission allow
stations, at least under certain circumstances, to make an immediate
and complete transition to DTV upon construction, so that they would
not have to operate both digital and analog facilities. For example,
Meyer Broadcasting Company (``Meyer''), Reiten Television, Inc.
(``Reiten'') and NDBA argue that, because of the transition's high cost
to small market stations, the Commission should allow such stations to
make an immediate transition from analog to digital, eliminating the
need for them to build additional facilities.
64. AAPTS/PBS makes a similar argument for noncommercial,
educational television stations, as a way to compensate for their
unique funding difficulties. It asserts that, in order to give needed
flexibility to smaller public TV stations, the Commission should allow
public TV stations with both an NTSC and a DTV channel within the core
to convert to DTV on their in-core NTSC channel, rather than having to
spend the money to build a separate DTV station. In the alternative,
AAPTS/PBS asks that the Commission consider individual requests by
stations to employ the immediate transition option where the licensee
has been unable to raise the funds to construct the DTV station or
lacks the resources to operate two stations simultaneously. In support,
Motorola claims that adoption of the proposal could accelerate the
recovery of UHF channels 60-69 for public safety or other wireless use.
65. Discussion. We recognize both the economic challenges facing
small market broadcasters and the unique funding difficulties often
experienced by noncommercial television stations. Indeed, we explicitly
considered these concerns in the Fifth Report and Order when we set the
construction schedule and adopted the service rules. It is exactly
because of the matters raised by the petitioners that commercial small
market broadcasters and all noncommercial broadcasters have a greater
period of time within which to construct their facilities. As the
network affiliates in the top 30 markets construct and begin to operate
their DTV stations, we expect the market to drive construction costs
down to a level that all commercial stations will be able to finance
construction of their own facilities. This cost decrease should also
assist noncommercial broadcasters.
66. However, adoption of these proposals could undermine the
simulcasting policy set forth in the Fifth Report and Order, a policy
that is premised on the idea that each licensee will be operating an
NTSC and a DTV station until the end of the transition period. The
simulcasting requirement is intended to ensure that broadcasters
provide substantially the same programming to all their viewers,
regardless of whether those viewers have acquired digital receiver
equipment yet. Further, adoption of the proposals could disenfranchise
some viewers who watch noncommercial television by removing their
option to continue to watch NTSC television until the end of the
transition period. Accordingly, we do not at this time believe that
adopting the above proposals of Reiten, NDBA, or AAPTS/PBS would serve
the public interest. However, we note that we can revisit this
conclusion during any of our biennial DTV reviews, should a change in
circumstances warrant.
F. Recovery Date
67. Background. In the Fifth Report and Order, the Commission
established a target date of 2006 for the cessation of
[[Page 15782]]
analog service. It stated that one of its overarching goals in this
proceeding is the rapid establishment of successful digital broadcast
services that will attract viewers from analog to DTV technology, so
that the analog spectrum can be recovered. Accomplishment of this goal
requires that the NTSC service be shut down at the end of the
transition period and that spectrum be surrendered to the Commission.
68. Subsequent to the release of the Fifth Report and Order, in the
Balanced Budget Act of 1997, Congress directed the Commission to
reclaim the analog spectrum by December 31, 2006. Congress also
required the Commission to grant an extension of that date to a station
under a number of specific circumstances cited in that
statute.2
---------------------------------------------------------------------------
\2\The Commission shall extend the date described in
subparagraph (A) for any station that requests such extension in any
television market if the Commission finds that: (i) One or more of
the stations in such market that are licensed to or affiliated with
one of the four largest national television networks are not
broadcasting a digital television service signal, and the Commission
finds that each such station has exercised due diligence and
satisfies the conditions for an extension of the Commission's
applicable construction deadlines for digital television service in
that market; (ii) digital-to-analog converter technology is not
generally available in such market; or (iii) in any market in which
an extension is not available under clause (i) or (ii), 15 percent
or more of the television households in such market: (I) Do not
subscribe to a multichannel video programming distributor (as
defined in section 602) that carries one of the digital television
service programming channels of each of the television stations
broadcasting such a channel in such market; and (II) do not have
either: (a) at least one television receiver capable of receiving
the digital television service signals of the television stations
licensed in such market; or (b) at least one television receiver of
analog television service signals equipped with digital-to-analog
converter technology capable of receiving the digital television
service signals of the television stations licensed in such market.
Balanced Budget Act of 1997, adding new paragraph 47 U.S.C. 309
(j)(14)(B).
---------------------------------------------------------------------------
69. Petitions. County of Los Angeles, CA (``Los Angeles'') contends
that the 2006 recovery deadline should be shortened for NTSC and DTV
stations between channels 60-69 located in southern California, which
it argues is necessary to alleviate the severe spectrum shortages
facing Los Angeles area public safety agencies. According to Los
Angeles, this will be particularly important if the Commission is
unable to eliminate any of the allotments between channels 60-69 that
affect public safety frequencies. Los Angeles advocates that, at a
minimum, the Commission should adopt a very firm deadline so that
public safety agencies can plan accordingly.
70. San Bernardino objects to the 2006 recovery date, maintaining
that too early a reversion date may hurt viewers in rural areas
dependent on traditional translator services. According to San
Bernardino, the Commission's computer channel selection process for DTV
treated existing built-out TV translator systems such as San
Bernardino's as though they did not exist. San Bernardino argues that
these rural locations, which are at or near full channel capacity,
might lose one or two channels as the result of DTV allotments
transmitting in distant markets, and would find the additional loss of
channels 60-69 to be devastating. San Bernardino argues that it is
obvious, even if the technology were affordable and available, that
such community TV operators will not be able to double their systems
and simulcast NTSC and DTV at any time during the transition. San
Bernardino also argues that if many rural areas are unable to receive a
DTV signal throughout the transition, the residents (perhaps 2-4
million people) will not tolerate a ``lights out'' by a date certain
for NTSC television. Val Pereda (``Pereda'') also objects to the 2006
date, contending it will make existing NTSC television sets obsolete
and require consumers to buy expensive DTV converters and sets.
71. Decision. As discussed above, the Balanced Budget Act requires
us to reclaim the analog spectrum by December 31, 2006, and has
established specific circumstances under which we are to grant stations
an extension of that date. Although we have discretion to set an
earlier deadline, we decline to grant in this proceeding the request of
Los Angeles for an earlier recovery deadline for NTSC and DTV stations
between channels 60-69. On reconsideration of the Sixth Report and
Order, we are making adjustments to the DTV allotments, as suggested by
MSTV, that will make some spectrum available for public safety in the
southern California area. We have issued a Notice in another proceeding
to seek comment on the service rules for this spectrum that Congress
designated for public safety services. We also decline to grant the
remaining petitioners' requests for reconsideration of the recovery
date. Upon receipt of an appropriate petition, as specified in the
Balanced Budget Act, we will examine the circumstances of individual
licensees and grant extensions to any that qualify.
G. Must-Carry and Retransmission Consent
72. Background. In the Fifth Report and Order, the Commission
decided to defer consideration of the application of must-carry and
retransmission consent requirements to DTV to a future proceeding, in
order to obtain a full and updated record on these issues. We noted
that, on March 31, 1997, the Supreme Court upheld the constitutionality
of the must-carry provisions contained in the Cable Television Consumer
Protection and Competition Act of 1992, in Turner II. The Turner II
case, however, did not expressly address the issue of must-carry of
digital television signals.
73. Petition. Malrite Communications Group (``Malrite'') urges the
Commission to modify the ``must carry'' rules to require cable system
operators to adopt ``appropriate'' digital technologies, i.e.,
technologies compatible with broadcast DTV standards. Malrite
acknowledges, however, that there is a separate proceeding that will
allow the Commission to consider cable compatibility.
74. Decision. We find that this reconsideration proceeding is not
the proper forum in which to determine the applicability of the must-
carry and retransmission consent provisions in the digital context. As
discussed above, we intend to issue a Notice in a separate proceeding
to seek additional comments regarding these issues. We believe that
opening the record for further comments in that proceeding will allow
us to reach a well-reasoned decision that will take into account the
implications of the Turner II decision and the most current information
with respect to must-carry and retransmission of DTV signals.
H. Sunshine Act
75. Background. The Commission adopted both the Fifth Report and
Order and the Sixth Report and Order in the DTV proceeding at an open
Commission meeting on April 3, 1997, and issued a Sunshine Agenda
notice announcing the addition of these two items that morning. The
Notice stated that, under Sec. 0.605(e) of the Commission's rules,
``[t]he prompt and orderly conduct of the Commission's Business
requires this change and no earlier announcement was possible.''
76. Petitions/Comments. The Community Broadcasters Association
(``CBA'') argues that the Sunshine Act requires seven days public
notice for matters to be discussed at an open meeting. CBA notes that
the Sunshine Agenda notice went out on March 27 and did not mention the
DTV docket, and that the notice adding the DTV items was not issued
until the very day of the meeting. As a result, CBA argues, there was
effectively no advance notice that the DTV items would be discussed at
the April 3, 1997 meeting as required by the Sunshine Act. Asserting
that this violated the Sunshine Act, CBA claims
[[Page 15783]]
that adoption of the DTV rules at the April 3, 1997 meeting was
invalid.
77. MSTV argues in opposition that the Sunshine Act was not
violated as claimed by CBA. MSTV notes that the Commission complied
with the statutory exception in the Sunshine Act, which allows a
meeting without seven days prior notice if such late notice is
necessary to conduct the agency's business. MSTV also observes that
according to the legislative history of the Sunshine Act, when
noncompliance is unintentional and does not harm the interests of any
party, the underlying matter need not be reconsidered.
78. Discussion. We find CBA's claim that we violated the Sunshine
Act to be unwarranted. The Sunshine Act states that:
[t]he subject matter of a meeting * * * may be changed following
the public announcement required by this subsection only if (A) a
majority of the entire membership of the agency determines by a
recorded vote that agency business so requires and that no earlier
announcement of the change was possible, and (B) the agency publicly
announces such change and the vote of each member upon such change
at the earliest practicable time.
Consistent with these statutory requirements, the April 3, 1997
Sunshine Agenda Notice made such a determination by recorded vote.
79. In addition, Sec. 0.605(e) of the Commission's rules, 47 CFR
0.605(e), makes clear that ``[i]f the prompt and orderly conduct of
agency business requires that a meeting be held less than one week
after the announcement of the meeting, or before that announcement, the
agency will issue the announcement at the earliest practicable time.''
We made such a finding in our April 3, 1997 Sunshine Agenda Notice.
Further, CBA has not made a showing of how its or any other party's
interests were harmed by the short notice. Accordingly, we believe that
there is no basis for a finding that the adoption of the DTV rules at
the April 3, 1997 meeting was in violation of the Sunshine Act or
otherwise invalid.
I. Other Issues
i. Channels 60-69
80. Petitions/Comments. As noted above, the Commission has recently
concluded a rule making proceeding reallocating the spectrum from
channels 60-69 to a variety of services, including broadcast
television. Motorola argues that all licensees should be able to
decline to construct DTV facilities on channels 60-69, provided they so
inform the Commission, so the spectrum can be used for public safety
and other wireless purposes. Motorola seeks to have as few DTV channels
as possible allotted to channels 60-69, to allow broadcasters that do
have such allotments to change them, and to prevent the Commission from
allotting future channels within that spectrum to DTV broadcasters. In
this regard, Motorola states that each additional DTV allotment between
channels 60 and 69 would preclude the use of at least 6 MHz of spectrum
by new wireless users for nearly 8000 square miles, potentially denying
new wireless service to millions of customers.
81. Discussion. We do not believe that allowing broadcasters to
decline to construct DTV facilities on channels 60 through 69 would
necessarily serve the public interest. In the Sixth Report and Order,
we allotted spectrum between channels 60 and 69 to the fewest number of
broadcasters possible, in light of our then-pending proceeding
examining whether that spectrum should be reallocated. As we noted in
the Channels 60-69 Reallocation Report and Order, ``the operation of
some TV and DTV stations in this spectrum is clearly required to
facilitate the DTV transition: and the Budget Act provides for this,
stating `[a]ny person who holds a television broadcast license to
operate between 746 and 806 megahertz may not operate at that frequency
after the date on which the digital television service transition
period terminates as determined by the Commission.''' Had other
channels been available, they would have been allotted to these
broadcasters.
ii. Line-of-Sight to City of License
82. Petitions/Comments. Hammett and Edison observes that
Sec. 73.625(a)(2) of the rules adopted in the Fifth Report and Order
requires DTV transmitter sites to be free of a major obstruction in the
path over the principal community to be served, but does not require
that line-of-sight coverage of the principal community be achieved.
Petitioner indicates that the analog TV rule regarding selection of
transmitter site (Sec. 73.685) includes such a corollary requirement
and suggests that this apparently inadvertent oversight in the wording
of Sec. 73.625(a)(2) be corrected by including the analog TV line-of-
sight text. Hammett and Edison states that while engineers may
reasonably differ in their opinions whether an obstruction is major,
there is no ambiguity in the line-of-sight requirement.
83. Discussion. We do not believe the requested change is
warranted. In the Fifth Report and Order, we attempted to minimize the
DTV rules we created to the extent possible. In so doing, we did not
include provisions that are admonitory, describing a recommended
practice instead of a mandatory requirement. The analog TV line-of-
sight rule indicates that the transmitter location ``should be so
chosen that line-of-sight can be obtained * * *'' This is not mandatory
language.\3\ For either NTSC or DTV, there are situations where line-
of-sight coverage over the entire community is not possible. In such
situations, licensees should avoid obstruction to the extent possible.
This should be clear from the ``major obstruction'' rule we adopted,
and we believe that it would not be reinforced by the requested
additional admonitory language. The decision to exclude it from the new
DTV rule was not inadvertent, and Hammett and Edison has not presented
any justification for including it upon reconsideration.
---------------------------------------------------------------------------
\3\Section 73.685(b) of the rules reads as follows:
Location of the antenna at a point of high elevation is
necessary to reduce to a minimum the shadow effect on propagation
due to hills and buildings which may reduce materially the strength
of the station's signals. In general, the transmitting antenna of a
station should be located at the most central point at the highest
elevation available. To provide the best degree of service to an
area, it is usually preferable to use a high antenna rather than a
low antenna with increased transmitter power. The location should be
so chosen that line-of-sight can be obtained from the antenna over
the principal community to be served; in no event should there be a
major obstruction in this path * * *
---------------------------------------------------------------------------
III. Conclusion
84. Our decisions in the Fifth Report and Order were designed to
foster technological innovation and competition, while minimizing
government regulation. We continue to believe that our decisions
modified herein will ensure that we will soon see a digital television
service that provides a host of new and beneficial services to the
American public, while preserving free universal television service
that serves the ``public interest, convenience, and necessity.''
IV. Administrative Matters
85. Paperwork Reduction Act of 1995 Analysis. The decision
contained herein has been analyzed with respect to the Paperwork
Reduction Act of 1995 and found to contain no new or modified form,
information collection and/or recordkeeping, labelling, disclosure or
record retention requirements on the public. This decision would not
increase or decrease burden hours imposed on the public.
86. Supplemental Final Regulatory Flexibility Analysis. In the
Fifth Report and Order, we conducted a Final Regulatory Flexibility
Analysis (``FRFA'') as required by the Regulatory Flexibility Act, 5
U.S.C. 603. No petitions to reconsider the FRFA were
[[Page 15784]]
filed. However, in its petition for reconsideration of the Fifth Report
and Order, the Personal Communications Industry Association (``PCIA'')
asserted that the FRFA's discussion of small businesses that would be
affected by the DTV rules and policies should have included mobile
licensees, not just other broadcast licensees. Rejecting PCIA's
argument, the Commission notes that the FRFA's scope is limited to
small entities directly subject to administrative rules, rather than
all entities that are indirectly affected by the results that any rules
will produce.
87. Also, the Commission on its own motion has made three minor
technical changes to the rules adopted in the Fifth Report and Order
and one minor substantive change, which are explained above. They do
not affect the previous FRFA. These minor rule changes do not alter in
any significant way the FRFA or the potential effect of the rules on
any small entities that may be subject to them. The Commission shall
send a copy of this Supplemental Final Regulatory Flexibility Analysis,
along with this Memorandum Opinion and Order on Reconsideration of the
Fifth Report and Order, in a report to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801
(a)(1)(A).
Ordering Clauses
88. Accordingly, it is ordered that, pursuant to sections 4(i) &
(j), 303(r), 307, 309, and 336 of the Communications Act of 1934 as
amended, 47 U.S.C. Sec. 154(i), (j) 303(r), 307, 309, and 336, this
Memorandum Opinion and Order is adopted.
89. It is further ordered that the Petitions for Reconsideration in
this proceeding are granted to the extent described above, and are
otherwise denied.
90. It is further ordered that the rule changes set forth in this
document shall become effective May 1, 1998.
91. It is further ordered that, upon release of this Memorandum
Opinion and Order, this proceeding is hereby terminated.
List of Subject in 47 CFR Part 73
Television broadcasting.
Federal Communications Commission,
Magalie Roman Salas,
Secretary.
Rule Changes
Part 73 of Title 47 of the Code of Federal Regulations is amended
as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336.
2. Section 73.624 is amended by revising paragraph (c) to read as
folows:
Sec. 73.624 Digital Television Broadcast Stations.
* * * * *
(c) Provided that DTV broadcast stations comply with paragraph (b)
of this section, DTV broadcast stations are permitted to offer services
of any nature, consistent with the public interest, convenience, and
necessity, on an ancillary or supplementary basis. The kinds of
services that may be provided include, but are not limited to computer
software distribution, data transmissions, teletext, interactive
materials, aural messages, paging services, audio signals, subscription
video, and any other services that do not derogate DTV broadcast
stations' obligations under paragraph (b) of this section. Such
services may be provided on a broadcast, point-to-point or point-to-
multipoint basis, provided, however, that any video broadcast signal
provided at no direct charge to viewers shall not be considered
ancillary or supplementary.
(1) DTV licensees that provide ancillary or supplementary services
that are analogous to other services subject to regulation by the
Commission must comply with the Commission regulations that apply to
those services, provided, however, that no ancillary or supplementary
service shall have any rights to carriage under Secs. 614 or 615 of the
Communications Act of 1934, as amended, or be deemed a multichannel
video programming distributor for purposes of section 628 of the
Communications Act of 1934, as amended.
(2) In all arrangements entered into with outside parties affecting
service operation, the DTV licensee or permittee must retain control
over all material transmitted in a broadcast mode via the station's
facilities, with the right to reject any material in the sole judgment
of the permittee or licensee. The licensee or permittee is also
responsible for all aspects of technical operation involving such
services.
(3) In any application for renewal of a broadcast license for a
television station that provides ancillary or supplementary services, a
licensee shall establish that all of its program services on the analog
and the DTV spectrum are in the public interest. Any violation of the
Commission's rules applicable to ancillary or supplementary services
will reflect on the licensee's qualifications for renewal of its
license.
* * * * *
[FR Doc. 98-8458 Filed 3-31-98; 8:45 am]
BILLING CODE 6712-01-P