[Federal Register Volume 65, Number 57 (Thursday, March 23, 2000)]
[Proposed Rules]
[Pages 15600-15611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7130]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 00-39; FCC 00-83]


Review of the Commission's Rules and Policies Affecting the 
Conversion to Digital Television

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission invites comment on a number 
of issues that it believes require resolution to ensure that the 
digital televison (DTV) conversion progresses and that potential 
sources of delay are eliminated. Among these are: first, whether to 
adopt a service replication requirement and to require enhanced service 
to the DTV station's city of license; second, whether to adopt a 
requirement that DTV stations elect their post-transition DTV channel 
by a certain date; and third, how to resolve mutually exclusive DTV and 
DTV/NTSC applications. Comment is also requested on a number of other 
issues related to the transition to digital television.

DATES: Comments are due on or before May 17, 2000; reply comments are 
due on or before June 16, 2000.

ADDRESSES: Federal Communications Commission, 445 12th Street, Room TW-
A306, SW, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Gordon Godfrey, Policy and Rules 
Division, Mass Media Bureau at (202) 418-2190, or Keith A. Larson, 
Office of the Bureau Chief, Mass Media Bureau at (202) 418-2600.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (``NPRM''), FCC 00-83, adopted March 6, 2000; 
released March 8, 2000. The full text of the Commission's NPRM is 
available for inspection and copying during normal business hours in 
the FCC Dockets Branch (Room TW-A306), 445 12 St. S.W., Washington, 
D.C. The complete text of this NPRM may also be purchased from the 
Commission's copy contractor, International Transcription Services 
(202) 857-3800, 1231 20th St., N.W., Washington, D.C. 20036.

Synopsis of Notice of Proposed Rulemaking

I. Introduction

    1. With this NPRM, we commence our first periodic review of the 
progress of the conversion of our nation's television system from 
analog technology to digital television (``DTV''). In the Fifth Report 
and Order in MM Docket No. 87-268 (63 FR 13546, May 20, 1998), we 
stated that we would conduct a review every two years to ``ensure that 
the introduction of digital television and the recovery of spectrum at 
the end of the transition fully serves the public interest.'' For the 
most part, this conversion is progressing, and television stations are 
working hard to convert to digital television pursuant to the 
construction schedule we established in the Fifth Report and Order. In 
this NPRM, we invite comment on a number of issues that we believe 
require resolution to ensure that this progress continues and that 
potential sources of delay are eliminated. Specifically, we invite 
comment on: (1) Whether to adopt a service replication requirement and 
to require enhanced service to the DTV stations' city of license; (2) 
whether to adopt a requirement that DTV stations elect their post-
transition DTV channel by a certain date; and (3) how to resolve 
mutually exclusive DTV and DTV/NTSC applications.

II. Background

    2. Our efforts to convert our nation's television system to digital 
television began in 1987, when we issued our first inquiry into the 
potential for advanced television (``ATV'') services (52 FR 34259, 
September 10, 1987). The ensuing proceeding lasted a decade, during 
which we had the benefit of numerous comments and participation by 
broadcasters, equipment manufacturers, public interest groups, and the 
public. As the proceeding progressed, all-digital advanced television 
systems were developed and we began to refer to advanced television as 
digital television (``DTV''), recognizing that technological 
developments meant that any ATV system was certain to be digital. In 
February of 1993, the Advisory Committee on Advanced Television Service 
(the ``Advisory Committee'') reported that a digital HDTV system was 
achievable, but that all four competing digital systems then under 
consideration would benefit significantly from further development and 
none would be recommended over the others at that time. In May of 1993, 
seven companies and institutions that had been proponents of the four 
tested digital ATV systems, joined together in a ``Grand Alliance'' to 
develop a final digital ATV system for the standard. Over the next two-
and-a-half years, that system was developed, extensively tested, and is 
documented in the ATSC DTV Standard. On November 28, 1995, the Advisory 
Committee voted to recommend the Commission's adoption of the ATSC DTV 
Standard. In 1996, the Commission adopted a standard for the 
transmission of digital television based on the ATSC DTV Standard with 
minor modifications. Fourth Report and Order in MM Docket No. 87-268 
(62 FR 14006, March 25, 1997).
    3. In 1997, in the Fifth Report and Order, the Commission adopted 
rules to implement the Telecommunications Act of 1996 (``1996 Act''), 
which provided that initial eligibility for any advanced television 
licenses issued by the Commission should be limited to existing 
broadcasters, conditioned on the eventual return of either the current 
6 MHz channel or the new digital channel. The Commission issued initial 
licenses for DTV, established service rules, including a requirement 
that broadcasters continue to provide free, over-the-air television 
service, and set an aggressive but reasonable construction schedule and 
a target date of 2006 for the completion of the transition. The 
Commission adopted a simulcasting requirement phased in at the end of 
the transition period. The Commission also recognized that digital 
broadcasters remain public trustees of the nation's airwaves and have a 
responsibility to serve the public interest. In the Sixth Report and 
Order (63 FR 15774, April 1, 1998), the Commission adopted a DTV Table 
of Allotments. After the adoption of the Fifth Report and Order, 
Congress made the 2006 reversion date statutory, in enacting 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. 47 U.S.C. 309(j)(14). With this 
NPRM, we commence our first periodic review in our continuing effort to 
assure that the transition goes smoothly for American consumers, 
broadcasters, and other interested parties.

III. Progress Report

    4. Affiliates of the top four networks in the top ten television 
markets were

[[Page 15601]]

required to complete construction by May 1, 1999; top four network 
affiliates in markets 11-30 by November 1, 1999; all remaining 
commercial television stations by May 1, 2002; and all noncommercial 
television stations by May 1, 2003. 47 CFR 73.624(d). Construction 
permit applications are required to be filed before the mid-point in a 
particular applicant's required construction period. Thus, all 
commercial television stations subject to the May 1, 2002 buildout 
deadline were required to file their DTV construction permit 
applications by November 1, 1999, and all noncommercial television 
stations are required to file their construction permit applications by 
May 1, 2000.
    5. As of February 23, 2000, a total of 1376 television stations in 
all markets (amounting to 81% of all stations) have filed DTV 
construction permit applications, regardless of whether they were 
required to file by November 1, 1999. Applications have been received 
from approximately 97% of the 1314 commercial TV stations that were 
required to file by November 1, 1999. Requests for extensions of the 
filing deadline filed by stations that are not included in this 97% 
category generally indicated that they had pending rule making 
petitions requesting changes to their DTV channel, tower site problems 
or that their consulting engineer was unable to complete studies by the 
deadline. A total of 316 of all of these applicants have been granted 
construction permits; and 92 of those stations are on the air pursuant 
to those permits. Twenty-seven other stations are on the air with 
special or experimental DTV authority. The remaining pending 
applications are either awaiting additional information or Mexican, 
Canadian or other clearances or are technically more difficult to 
process because they require an interference analysis (applications 
that do not meet the ``checklist'' criteria for streamlined 
processing). Thirty-three of the 40 stations in the top ten markets 
required to complete construction by May 1, 1999, are on the air, and 6 
others have been granted construction permits to build. In each of 
these markets, there is at least one DTV facility on the air pursuant 
to its permit and in six of these markets, the four affiliates of the 
largest commercial networks are all on the air. In markets 11-30, 78 of 
the 79 stations required to file construction permit applications by 
August 3, 1998 have filed these applications. The one remaining station 
that has not yet filed a construction permit application is Station 
WTVJ, Miami, which has not done so because it has an outstanding rule 
making petition pending to change its DTV channel. Seventy-two of these 
stations have been granted a construction permit and three others have 
been granted special temporary authority to operate while action on 
their application is pending. Forty-two stations are on the air 
pursuant to their permits, and 34 stations have requested extensions of 
time to complete construction and go on the air. Of these 34 stations 
requesting extensions, all but seven are facing practical and easily 
resolvable delays, according to the licensees. Examples of factors 
causing these delays are untimely delivery of equipment, bad weather 
and unavailability of tower crews. Most of these stations expect to be 
on the air early in 2000.
    6. Initial evidence indicates that stations are facing relatively 
few technical problems in building digital facilities. Some stations 
are facing problems with tower availability and/or local zoning issues, 
but these problems do not seem to be widespread at this time, and, 
while some cases may be problematic, it appears that many cases are 
being worked out. Indeed, the Commission has helped broadcasters remedy 
such local problems in a number of ways, including creating, in May, 
1998, a DTV Tower Strike Force, chaired by Commissioner Susan Ness to 
target potential problems in the implementation of DTV and to work with 
local authorities and broadcasters to expedite implementation of DTV. 
The Strike Force makes Commission staff available to aid local 
authorities and broadcasters by providing expedited answers to 
questions related to the process of assessing tower modification or 
construction and to facilitate the deliberations of reviewing entities. 
The DTV Strike Force has, for example, assisted local and county 
governments in understanding the FCC's Radio-frequency Radiation (RFR) 
requirements as they relate to the implementation of DTV and the 
related construction of towers. In one instance, the Strike Force sent 
technical experts to make RFR measurements with county engineers and to 
testify in an effort to assure these officials that radiation harmful 
to humans would not result from the proposed DTV construction. 
Commissioner Ness and the Strike Force also regularly participate in 
the meetings of the FCC Local and State Government Advisory Committee 
(LSGAC). The Strike Force presents the current facts regarding the DTV 
rollout and related tower construction issues and takes comments and 
ideas from the Committee under advisement.

IV. Issue Analysis

    7. In the Fifth Report and Order, we concluded that we should 
undertake a periodic review every two years until the cessation of 
analog service to help the Commission ensure that the introduction of 
digital television and the recovery of spectrum at the end of the 
transition fully serves the public interest. We noted that, during 
these reviews, we would ``address any new issues raised by 
technological developments, necessary alterations in our rules, or 
other changes necessitated by unforeseen circumstances.'' We invite 
commenters to provide us with information not previously presented to 
the Commission raising issues that must be resolved in order to assure 
a smooth transition. Our goal is to assure an open proceeding that will 
allow us to resolve any impediments to a complete and rapid transition. 
Aside from regulatory benchmarks, is the digital transition proceeding 
in such a way as to serve the public interest? Are there factors such 
as the pace of DTV receiver sales or the availability of financing for 
digital facilities that reflect the state of the digital transition?
    8. Concerns have arisen in a number of areas, including tower 
siting, copy protection, and cable compatibility. We invite comment on 
the critical unresolved issues in these areas and how they affect the 
progress of the digital transition. Are broadcasters able to secure 
necessary tower locations and construction resources? To what extent do 
zoning disputes, private negotiations with tower owners, and the 
availability of tower construction resources affect the transition?
    9. With respect to cable compatibility, a recent agreement between 
the Consumer Electronics Association (``CEA'') and the National Cable 
Television Association (``NCTA'') should permit introduction of cable-
compatible television receivers in the near term. While the agreement 
covers a number of technical specifications, including on-screen 
program guides, the agreement does not cover labeling of digital 
receivers. While we favor allowing the affected industries to reach 
agreement on this issue, industry failure to reach such agreement on a 
timely basis may necessitate further Commission action in the form of 
initiating a rule making proceeding. To what extent would a failure to 
reach agreement on the labeling of digital receivers hinder the 
transition?
    10. In addition, the agreement does not cover the copy protection 
issues. We

[[Page 15602]]

also seek comment on the extent to which a failure to reach agreement 
on copy protection technology licensing and related issues would hinder 
the transition.
    11. Concerns also have arisen regarding the DTV transmission 
standard. We adopted the DTV Standard in the Fourth Report and Order in 
the digital television proceeding after extensive testing and with the 
participation of the affected industries and the public. While we 
continue to believe that NTSC service replication is achievable by DTV 
operations using the 8-VSB standard, we recognize that some in the 
industry have raised various issues with respect to that standard. For 
example, Sinclair Broadcasting Group filed a Petition for Expedited 
Rulemaking urging the Commission to modify its rules to permit the use 
of COFDM modulation in addition to the 8-VSB standard. Sinclair argued 
that the COFDM standard offered easier reception with simple antennas 
and would enable broadcasters to provide fixed, mobile and portable 
video services with greater capacity for technological improvement. We 
dismissed that petition, indicating that concerns about 8-VSB, such as 
those raised in the Petition, were better addressed in the context of 
this proceeding.
    12. We invite comment on the current status of the 8-VSB DTV 
standard. We are particularly interested in the progress being made to 
improve indoor DTV reception under the existing transmission standard 
and manufacturers' efforts to implement DTV design or chip 
improvements. We also ask the industry to submit information regarding 
any additional studies that may have been conducted regarding NTSC 
replication using the 8-VSB standard.
    13. Some broadcasters have recommended that the Commission address 
over-the-air signal reception by setting receiver standards, which we 
understand to mean performance thresholds (like the UHF noise figure 
requirement), as opposed to mandatory technology specifications (like 
the ATSC digital standard itself). Accordingly, we ask for comment 
first on whether we have the authority to set minimum performance 
levels for DTV receivers. This issue was pleaded several years ago by 
various parties in response to the Commission's Fourth and Fifth 
Further Notices of Proposed Rule Making (60 FR 42130, August 15, 1995 
and 61 FR 26864, May 29, 1996) in the DTV proceeding, and comments in 
this proceeding should take account of these earlier submissions. 
Second, we request comment on the desirability of adopting minimum 
performance levels. And, third, comments should address how these 
requirements should be structured, including timing considerations.
    14. Some additional issues pertain to the transition, such as the 
issue of digital broadcast signal carriage on cable systems, and are 
the subject of their own separate proceedings. Notice of Proposed Rule 
Making in CS Docket No. 98-120 (63 FR 42330, August 7, 1998). While we 
intend for this proceeding to be a broad and open proceeding, it would 
not be constructive, as a general matter, to unduly burden this 
proceeding with issues that are the subject of their own proceedings or 
with requests for reconsideration of issues that have already been 
decided, or where the standard set out in the Fifth Report and Order is 
not met. Some of the issues that are outside the scope of this 
proceeding include: fee issues; eligibility issues; issues relating to 
public television, (Notice of Proposed Rulemaking, MM Docket No. 98-
203, (63 FR 68722, December 14, 1998); and channel allotment or change 
requests. In addition, we believe that it is too early in the 
transition to address a number of issues referenced in the Fifth Report 
and Order, as issues we would handle in our periodic reviews. These 
issues include reconsidering the flexible approach to ancillary or 
supplementary services, the proper application of the simulcast 
requirement, and the special needs of noncommercial stations in 
converting to digital television beyond the accommodation granted them 
by allowing them to complete construction a year after the last 
category of commercial broadcasters. The issue of the appropriateness 
of 2006 as a target recovery date, also referenced in the Fifth Report 
and Order, is inappropriate for this review as Congress has, in the 
Balanced Budget Act of 1997, confirmed December 31, 2006 as the date 
for completion of the transition and established a procedure and 
standards for stations to seek an extension of that date. 47 U.S.C. 
309(j)(14). Other issues referenced on reconsideration that we will not 
review here include: minimum programming hours, tower space issues for 
noncommercial FM stations, and adopting an immediate transition. We 
believe it is too early in the transition to consider increasing the 
number of required digital programming hours and to consider adopting 
an immediate transition. Moreover, it does not appear that 
noncommercial FM stations are having difficulties based on the loss of 
tower space to digital stations.
    15. In addition to inviting general comment on the progress of the 
transition, we invite specific comments on the areas discussed.
A. Full-Replication and Principal Community Coverage
    16. Replication. In the DTV Sixth Report and Order, we established 
``replication'' as a goal in the creation of the initial DTV Table of 
Allotments. Our replication goal means that each DTV channel allotment 
was chosen to best allow its DTV service to match the Grade B service 
of the NTSC station with which it was paired. Implicit in our use of 
this criterion in creating the initial DTV Table is an expectation that 
DTV stations will eventually be constructed with ``full-replication'' 
facilities. Full-replication facilities would entail a combination of 
transmitter site, effective radiated power, directional antenna 
characteristics and antenna height that is adequate to cover at least 
the same area as is served by the NTSC station.
    17. While expecting eventual use of full-replication facilities by 
each station, we recognized that there initially would be few DTV 
receivers on which DTV stations could be viewed. Thus, early DTV 
broadcasts would reach very few viewers and present negligible 
opportunity for revenue to offset the DTV construction costs that were 
expected to exceed one million dollars per station. Accordingly, we 
granted the flexibility for DTV stations to build initial facilities 
that would cover a significantly smaller area than full-replication 
facilities, provided that the predicted DTV service contour covered the 
station's city of license. We did not, therefore, in previous DTV 
proceedings, adopt an explicit replication requirement or a requirement 
that DTV stations provide a higher level of service than Grade B to 
their city of license. Nevertheless, we are presently protecting the 
full replicated service areas based on the engineering parameters 
associated with the DTV allotment table. As discussed, we are concerned 
that the lack of an explicit replication requirement and a city-grade 
service requirement may encourage some licensees to locate their 
proposed DTV facilities at a substantial distance from their NTSC 
facilities and their communities of license. This may have negative 
consequences for the transition to digital television.
    18. We expected that some stations would build their DTV station at 
a different site from their authorized NTSC site. In particular, we 
encouraged stations in a market to explore development of a common site 
where

[[Page 15603]]

that was feasible. We also allowed the flexibility to move within a 5-
kilometer radius of the DTV Table reference coordinates with a 
streamlined ``checklist'' application. While anticipating some movement 
and allowing small initial DTV facilities, we expected that most 
stations would build their DTV facilities at or near their NTSC sites. 
We did not focus on stations that operate from ``fringe'' sites, such 
as those licensed to smaller communities near the edge of their market 
or those that are site restricted and required to broadcast from a site 
that does not serve their market as well as other stations with which 
they compete. Nor did we consider that some small market stations 
operate adjacent to a larger market. These fringe area stations often 
would prefer to operate from a central location or in the larger market 
where they can potentially serve a larger population and achieve higher 
revenues.
    19. Most of the DTV applications that have been filed and granted 
thus far are for locations at or near their current NTSC antenna sites. 
However, in conformance with the rules we established, several 
licensees have sought authority to move their DTV station to a more 
central location in their market or toward a larger market. Others have 
filed petitions for rule making to change their DTV allotment, 
including their assumed transmitter site and/or technical facilities.
    20. These situations pose a problem with respect to our expectation 
that licensees will eventually replicate their NTSC facilities. 
Licensees that build DTV facilities that do not cover the same area as 
their NTSC stations may present problems at the end of the transition. 
If these stations choose to, and are able to, remain on their DTV 
channel at the end of the transition, people within the NTSC service 
area but outside of the DTV service area will lose service. We question 
whether this loss of service would serve the public interest. 
Similarly, the goals of our requirement that the NTSC programming be 
simulcast on the DTV channel near the end of the transition would be 
undermined if the DTV coverage does not approximate or encompass the 
NTSC coverage area. In addition, a large scale move of DTV stations to 
larger urban markets would pose a problem under 47 U.S.C. 307(b), as it 
might represent a de facto reallotment from smaller, more rural and 
underserved areas to larger well-served urban areas and might undermine 
our allotment decisions.
    21. Request for Comments. We believe it is important now to 
consider what requirements are appropriate for eventual replication so 
that stations can take account of these requirements as they plan and 
construct their DTV facilities. We seek comment on whether we should 
establish a replication requirement and, if so, how we should frame it, 
when it should become effective, and what consequences should follow 
for stations that fail to meet it.
    22. If we decide to adopt a replication requirement, we must decide 
how to determine whether a DTV station is replicating its NTSC 
facilities. One possible approach would be to require essentially the 
same service as is provided by the NTSC facilities. In order to 
implement this approach, we would need to decide whether to depict NTSC 
and DTV service using coverage contours or using the Longley-Rice 
propagation model in accordance with OET Bulletin 69 (July 2, 1997). 
See 47 CFR 73.622(e). We would also need to decide whether the 
replication requirement should be based on the population or the area 
served. We note that our rules for determining interference between DTV 
stations are based on population. See 47 CFR 73.623(c). Finally, we 
would need to address the question of what percentage of the NTSC Grade 
B service must be replicated. While conceptually straightforward, this 
approach may be difficult to implement, with many circumstances needing 
individual interpretations or exceptions. For example, how would 
replication be determined if the NTSC station's authorized coverage has 
changed or if it has both licensed facilities and facilities authorized 
by a construction permit and those facilities would cover different 
areas?
    23. A possible alternative is the use of a DTV principal community 
service requirement as discussed. Such a requirement might be easier to 
implement than a service replication requirement, but the extent to 
which replication would actually be achieved could vary significantly 
and for some stations it may leave more people unserved. A requirement 
for a stronger signal to cover a station's city of license would 
effectively ensure that the DTV service contour would extend some 
distance beyond the city of license. The field strengths suggested 
would be based on the differences between NTSC Grade B and principal 
community service. We believe that the resulting DTV coverage would 
extend past the DTV principal community service contour to an extent 
that would approximate NTSC Grade B service. We invite comment on these 
proposals and invite commenters to offer their own additional or 
alternative proposals as to how we might assure eventual full 
replication by DTV licensees of their NTSC facilities.
    24. We also seek comment on when we should implement a replication 
requirement. While many of the DTV applications that have been filed 
propose facilities that would serve a high percentage of the station's 
analog Grade B contour, and some have sought to maximize facilities in 
a manner that would expand their DTV coverage, there are also a large 
number of applicants that have chosen to ``start small.'' Construction 
of most of these stations is not required to be completed until May 1, 
2002. Noncommercial educational DTV stations do not need to complete 
construction until May 1, 2003. In order to allow stations a reasonable 
period to operate with smaller facilities, it seems appropriate to 
delay a replication requirement until at least May 1, 2004. Other 
possible choices include requiring full replication by the planned end 
date of the transition, which is December 31, 2006, or by the date the 
transition actually ends for the stations in each particular market, 
whether or not that date is extended beyond December 31, 2006 pursuant 
to the statute. It is possible that delaying the replication 
requirement for too long could undermine the broad availability of 
digital service and thus forestall the transition itself by blunting 
the incentive for digital set penetration. One alternative that might 
mitigate this effect would be to require each DTV station to achieve 
replication by one year after the date it is required to complete 
construction pursuant to the DTV construction schedule. We invite 
comment on these alternatives. The appropriate date by which we should 
require full replication may also depend on how strictly replication is 
required and on the consequences of not complying. Another factor in 
our decision as to when to institute a replication requirement is the 
timing and options available for licensees choosing which of their two 
channels they want to operate their DTV station on after the 
transition. We invite comment on these issues.
    25. We presume that licensees will follow all applicable FCC rules 
as a matter of course. Moreover, with respect to any replication rule 
we might adopt, we note that it would be in a licensee's best interest 
to comply with a replication rule in order to maximize potential 
audiences. Nonetheless, we propose that any station's failure to comply 
with the proposed replication rule would result in the loss of

[[Page 15604]]

protection of the station's full-replication allotment facilities. We 
also invite comment on what, if any, other consequences we might impose 
for a station's failure to replicate.
    26. We note that we have proposed as a possible consequence for 
failing to meet a replication requirement, the loss of protection of 
the full allotted DTV facility. We invite comment as to whether 
regardless of what other consequence we impose for failure to 
replicate, or even in the event that we do not adopt a full-replication 
requirement, we should, by a certain date, place an end to our current 
policy of protecting the full replication facility regardless of the 
parameters and service contour a DTV station provides. Such a policy 
would foster spectrum efficiency. It would allow increased 
opportunities for new DTV service by new entrants and would allow other 
existing stations to maximize their service on what would otherwise be 
fallow or wasted spectrum, in that it is being protected but not used. 
If we adopt such a policy, when should we stop protecting a station's 
DTV facilities beyond the actual service contour?
    27. DTV Principal Community Coverage. Although we referred to the 
provision we made for allowing DTV stations to operate initially with 
limited minimum DTV facilities as a requirement for coverage of a 
station's principal community, it is actually inconsistent with the 
NTSC principal community coverage requirement, as the city-grade 
coverage requirement for NTSC stations is stronger than a Grade B 
signal. For NTSC stations, the principal community requirement is a 
significantly stronger signal level than the Grade B service standard. 
For DTV stations, the initial required signal over the community of 
license is the same as the DTV service contour standard. A signal that 
meets the principal community coverage standard (``city grade signal'') 
is commonly considered to be one that produces a better picture quality 
than a Grade B signal. While it is true for NTSC that service can be 
described as a picture quality that gets better as the median signal 
level increases, it can also be described in terms of an ``acceptable'' 
picture quality being available for a larger percentage of the time as 
the median signal level increases.
    28. In DTV, there are virtually no gradations in picture quality 
that are dependent on signal strength. The signal must reach a certain 
minimum threshold for a picture to occur; it does not matter how little 
or much the signal exceeds that threshold requirement, the picture 
quality will not change. When the signal is insufficient, the picture 
screen will freeze or go blue. Thus, DTV levels of service can be 
described in terms of the percentage of the time that the picture is 
available. An individual's subjective determination of ``acceptable'' 
DTV service would be based on their tolerance for interruptions to the 
programming (picture freezing or going to a blue screen). Some viewers 
may find DTV service acceptable, even if lost for a minute or two each 
hour (two to three percent of the time). Others may find service to be 
unacceptable if disruptions exceed 10 or 20 seconds in an average hour 
(less than one half percent of the time).
    29. For the most part, we believe DTV stations that replicate their 
NTSC service will effectively provide city grade service to their 
community of license. Such DTV stations would provide a signal level 
over their city of license that is stronger than the signal level we 
established for the DTV service contour by an amount comparable to the 
difference between NTSC city grade and Grade B service contour values. 
Also, where a DTV station is paired with an NTSC station, its DTV 
allotment is protected, which maintains its ability to replicate to a 
great extent and therefore protects its ability to provide a stronger 
signal level over its city of license. Thus, in these instances, 
sufficient signal strength will be available to maintain reliable 
reception. However, we have been presented with proposals that do not 
involve replication. In such situations, a DTV licensee might seek to 
locate its station so that its city of license is barely within its 
service contour, which may result in service that is less reliable or 
available to a smaller percentage of locations than usually expected 
for ``city grade service.''
    30. Request for Comments. In most respects, the planning factors 
for the DTV service contour correspond to the planning factors for the 
NTSC TV Grade B service contour. Applications to change the power, 
antenna height or location of other DTV stations are permitted to cause 
interference, as long as the interference is ``de minimis'' (reducing 
the population served by a station by no more than 2%, not to exceed 
10% for all interfering sources). Reception near the edge of the DTV 
service contour is not protected from interference. A similar situation 
occurs among NTSC stations where a new or modified NTSC facility is 
permitted to cause interference within another station's Grade B 
contour, as long as the minimum distance spacing requirements are met. 
Accordingly, we invite comment as to how to define adequate DTV service 
to the city of license.
    31. How to define adequate service to the city of license also is 
an issue for DTV stations that do not have a paired NTSC channel. In 
the Fifth MO&O (63 FR 13546, March 20, 1998), we afforded applicants 
for NTSC stations whose construction permit applications were not 
granted as of the date of adoption of the Fifth Report and Order (and 
who therefore were not eligible for initial paired DTV licenses) the 
opportunity to construct a DTV station immediately on their single 6 
MHz NTSC channel provided that the proposed DTV facility protected all 
DTV and NTSC stations by complying with all applicable DTV technical 
rules. Alternatively, if they chose first to construct an NTSC station, 
they would be allowed to convert it to a DTV station, upon application 
to the Commission, at any time during the transition (and they would be 
required to convert to DTV at the end of the transition, when NTSC 
broadcasting ceases). In the DTV Second MO&O (64 FR 4322, January 28, 
1999), we clarified that the pending NTSC applicants could convert to 
DTV without first being granted an NTSC construction permit. We seek 
comment on the appropriate level of principal community service for 
these DTV stations. We also seek comment on the appropriate level of 
principal community service for those DTV stations that have changed 
their DTV channel (and authorized facilities) pursuant to rule making, 
where there is no longer a correspondence between NTSC and DTV service 
areas.
    32. In order to address the foregoing concerns while minimizing the 
impact on DTV broadcasters, we propose to require that a DTV principal 
community be served by a stronger signal than that specified for the 
general DTV service contour. By requiring that DTV broadcasters provide 
a minimum, higher, level of service over their community of license, we 
would limit the extent to which DTV broadcasters can migrate from their 
current service contour. A stronger principal community coverage 
requirement would improve the availability and reliability of DTV 
service in the city of license. It would also provide an extra measure 
of protection from interference to DTV service in the city of license. 
Finally, it would provide a method of requiring improved replication 
performance that can be determined by relatively simple and 
straightforward methods that are well established in the NTSC service. 
We note that NTSC broadcasters must provide a signal over their city of 
license that is stronger than the signal

[[Page 15605]]

strength defined for their Grade B service contour. See 47 CFR 
73.685(a). We invite comment on this approach of requiring DTV stations 
to provide a similarly stronger signal. Would it resolve the problems 
that we have identified? Would it create undue difficulties for DTV 
broadcasters to accomplish, and, if so, would these difficulties be so 
severe as to delay the transition?
    33. We invite comment as to the signal level that we should require 
to be placed over the DTV station's principal community, should we 
adopt such a requirement for DTV. One approach to resolving this issue 
is to use a set of field strength values that corresponds to the 
current principal community signal requirements for NTSC stations. We 
note that the required principal community service contours for NTSC 
stations are 27, 21 and 16 dB higher than the Grade B service contours 
for channels 2-6, 7-13 and 14-69 respectively. See 47 CFR 73.685(a). 
The stronger NTSC principal community contours are based on an assumed 
receiving antenna with less gain, urban noise, and greater probability 
of locations receiving service (90%). Adding the same amounts to the 
DTV service field strength values results in the following table:

------------------------------------------------------------------------
                                                                Field
                          Channels                             strength
                                                                (dBu)
------------------------------------------------------------------------
2-6........................................................           55
7-13.......................................................           57
14-69......................................................           57
------------------------------------------------------------------------

Even though these signal intensities are defined as discrete values 
measured in dBu's, the intensity of broadcast signals at particular 
locations and at particular times cannot be precisely determined, 
regardless of the predictive method used. Signal strength varies 
randomly over location and time, so signal propagation must be 
considered on a statistical basis. Most prediction methods, including 
the Commission's propagation curves, predict the occurrence of median 
signal strengths (i.e., signal strengths expected to be exceeded at 50% 
of the locations in a particular area at least 50% of the time). Under 
this approach, ``location'' and ``time'' variability factors are added 
to the signal level so that the desired statistical reliability is 
achieved. The values chosen for the principal community signal 
intensity account for this variability. Therefore, assuming the use of 
a receiving antenna with 0 dB gain relative to a half-wave dipole, the 
values predict that at least 90% of the locations along principal 
community contour will receive an acceptable picture 90% of the time. 
We invite comment on whether this required signal coverage to the 
community of license is an appropriate one to adopt for DTV stations. 
Could it be accomplished readily? Would the economic costs of adopting 
the proposed level of principal community service outweigh the benefits 
that we seek to achieve? If so, we invite commenters to address whether 
we should adopt an alternative minimum level of principal community 
service and to justify that alternative proposed level.
    34. We tentatively believe that we can minimize any increased 
difficulties such a requirement might place on DTV broadcasters by 
delaying its implementation. Accordingly, we seek comment on when any 
such requirement should be made effective. We tentatively propose that 
DTV stations that are paired with NTSC stations be required to meet the 
new principal community requirement by May 1, 2004. Alternatively, we 
invite comment as to whether we should tie the city-grade service 
requirement to the construction schedule, with the requirement imposed 
within a certain period, a year, for example, after construction is 
scheduled to be completed. For licensees with paired DTV and NTSC 
stations that intend to operate with DTV on their current NTSC channel 
after the transition, we propose that they be required to file a DTV 
application reflecting that decision by that date. For NTSC stations 
that do not have a paired DTV station, we propose that the stronger DTV 
principal community service be required when they seek to switch to DTV 
operation. For petitioners seeking a DTV channel change, we propose to 
require a showing that the principal community service requirement can 
be met with the proposed DTV allotment facilities or a commitment to 
elect their NTSC channel for their post-transition DTV operation. The 
2004 date is two years before the end of the transition, and by that 
point DTV broadcasters should be able to build out their permanent 
facilities. That date is at least one year after the deadline for all 
broadcasters, including noncommercial broadcasters, to complete 
construction, and commercial broadcasters by that date will have been 
on the air for at least two years. For these reasons we believe that it 
would not be unduly onerous to implement a requirement for a higher 
principal community service contour at this date. We invite comment on 
these proposals and ask commenters to address whether other measures 
are necessary in addition to or as an alternative to these proposals to 
address our concerns.
B. Channel Election
    35. In the DTV Sixth MO&O (63 FR 15774, April 1, 1998), the 
Commission decided that the DTV service after the transition will be 
limited to core spectrum, comprised of current TV channels 2 through 
51. We had minimized the number of out-of-core DTV channel allotments 
and made a special effort to designate a DTV channel in the core for 
each station that had its NTSC channel outside of the core. In this 
way, at the end of the transition, whichever channel (DTV or NTSC) was 
in the core could become the station's permanent DTV channel. There are 
currently 17 stations that have both their NTSC and their DTV channels 
outside of the core. We indicated that once the transition ended and 
one of the two channels each broadcaster is temporarily authorized to 
use is recovered, there will be adequate spectrum to ensure that all 
stations with initial out-of-core DTV allotments can be provided with 
new channels within core spectrum between channels 2-51
    36. On reconsideration of the DTV Sixth Report and Order, some 
broadcasters asked that we require stations with both channels in the 
core to immediately choose the channel they intend to keep following 
the transition. We declined to require early channel election at that 
time based on the small number of situations with both NTSC and DTV on 
out-of-core channels and the lack of needed experience with DTV 
operation, which would prevent many broadcasters with both channels in 
the core from making an appropriate decision.
    37. Changed circumstances suggest that it would be helpful now to 
adopt a deadline for channel election. We believe that there will be 
more out of core stations that must be accommodated with a core channel 
than we initially anticipated. As discussed, new applicants will be 
allowed to convert their single NTSC channels to DTV operation and 
those on channels outside the core will be provided a post-transition 
channel inside the core. There are a number of such ``new applicant'' 
NTSC stations authorized on channels outside the core, and dozens more 
could be authorized under procedures announced in the recent filing 
window Public Notice (64 FR 67267, December 1, 1999). The problem of 
finding a core channel for these stations is exacerbated because there 
are more stations currently occupying core channels than

[[Page 15606]]

we initially planned on. Pursuant to the window filing Public Notice, 
some of those pending applications and rule making petitions could also 
be granted on core channels, if they can adequately protect NTSC and 
DTV stations from interference. Further, recent legislation requires 
the establishment of a new category of primary, ``Class A'' TV 
stations, which also may limit availability of core channels in some 
areas. Community Broadcasters Protection Act of 1999, Section 5008 of 
Public Law 106-113, 113 Stat. 1501 (1999), Appendix I, codified at 47 
U.S.C. 336(f). The Community Broadcasters Protection Act was enacted as 
part of the Intellectual Property and Communications Omnibus Reform Act 
of 1999, which itself is part of a larger consolidated omnibus 
appropriations bill, entitled, ``Making consolidated appropriations for 
the fiscal year ending September 30, 2000, and for other purposes.'' 
See Order and Notice of Proposed Rule Making in MM Docket Nos. 00-10 & 
99-292 (64 FR 56999, October 22, 1999), In the Matter of Establishment 
of a Class A Television Service. In addition, maximized DTV facilities 
that operate on channels within the core might complicate the problem 
of finding a core channel for out-of-core stations because these 
maximized stations are more difficult to protect.
    38. Request for Comments. We tentatively conclude that it is now 
time to begin setting up a process to assure early election by DTV 
stations of their post-transition channel. Stations making the channel 
conversion at the end of the transition will need time to plan 
facilities, order equipment and arrange for construction. Ideally, they 
would turn on their DTV station on their new core channel the day after 
the transition ends and other broadcasters turn off their second 
channel. With the target date for the end of the transition set for 
December 31, 2006, it seems reasonable to identify the channels these 
stations will be moving to not later than 2004. To accomplish this, we 
could require DTV licensees to make a binding decision and elect one of 
their two core channels by early 2004, at the latest. One possibility 
is to impose May 1, 2004 as the deadline for election. This date would 
allow at least one year of DTV operation pursuant to our staggered 
construction schedule (with noncommercial educational TV stations 
provided the longest time to construct and required to complete 
construction by May 1, 2003). We seek comment on whether this date 
represents the proper balance between the goals of allowing DTV 
stations enough time to gain experience with DTV operation and allowing 
stations that must move enough time to plan for their DTV channel 
conversion. We note that the recently adopted Community Broadcasters 
Protection Act of 1999 requires the Commission, within 18 months of the 
Act's enactment, to identify by channel, location, and applicable 
technical parameters, the 175 additional DTV channels that were 
referenced in paragraph 45 of the Commission's ``February 23, 1998, 
Memorandum Opinion and Order on Reconsideration of the Sixth Report and 
Order.'' 47 U.S.C. 336(f)(6)(B). In that Order, the Sixth MO&O, the 
Commission expanded the DTV core spectrum to include all channels 2-51, 
and noted that this expansion would add approximately 175 additional 
DTV channels. We invite comment as to whether, based on the new 
obligations imposed by this recent legislation, we are required to 
impose an earlier election date than May 1, 2004. We note that in Order 
and Notice of Proposed Rule Making in MM Docket Nos. 00-10 & 99-292, we 
invited comment on aspects of this new DTV channel identification 
requirement.
    39. We also seek comment on the appropriate criteria for 
determining who is allowed to participate in this process, whether any 
category of participants should have blanket priority over other 
participants, and which channels are available. Should all stations 
with an out-of-core DTV channel and a core NTSC channel be required to 
use their NTSC channel, as opposed to being permitted to seek an 
alternative in-core DTV channel? Additional stations may want to become 
involved in changing their DTV channels at the end of the transition in 
order to improve their replication or decrease interference. Some 
stations with both channels in the core may not want to remain on 
either channel. Should stations that must move to a new channel have 
the highest priority (first selection of channels that are returned)? 
We also seek comment on whether particular channels should be off 
limits as we explore the possibilities of alternative uses. For 
example, should channel 6 or another channel or channels be cleared for 
other broadcast purposes, such as is being considered in our 
terrestrial digital audio broadcasting proceeding? See Notice of 
Proposed Rule Making in MM Docket No. 99-325 (64 FR 61054, November 9, 
1999), Digital Audio Broadcasting Systems and Their Impact on 
Terrestrial Radio Broadcast Service. Should new use of channels 3 and 4 
be avoided to minimize expense and inconvenience to cable subscribers 
whose cable boxes are wired for output on one of those channels? We 
also invite comment on whether the FCC should select the final channels 
in order to allow us to maximize efficiency of broadcast allotments. 
Assuming we do allow broadcasters to elect their channel, of course, 
under our authority to manage the spectrum, we would review the 
stations' channel elections to be sure that the use of spectrum is 
efficient and serves the public interest.
C. Mutually Exclusive Applications
    40. We also wish to use this proceeding to examine some DTV 
application processing procedures. In particular, we invite comment on 
(1) whether to establish DTV application cut-off procedures; (2) how we 
should resolve conflicts between DTV applications to implement 
``initial'' allotments; and (3) the order of priority between DTV 
applications and NTSC applications.
    41. DTV applications must protect DTV allotments from predicted 
interference as indicated in the Sixth Report and Order and Sec. 73.623 
of our rules. In general, DTV applications that do not expand the 
coverage area of their DTV allotment also do not increase the 
interference that the applied-for station would be predicted to cause. 
In this respect, these applications are treated like ``checklist'' 
applications, which conform to their allotment and accordingly are 
subject to streamlined processing that allows them to be granted 
without analysis of predicted interference. In addition, the protection 
afforded facilities authorized pursuant to such applications is based 
on the required protection of their DTV allotment.
    42. Applications for the paired DTV allotments in the initial DTV 
table (whether the first application for a construction permit (CP), a 
subsequent application to modify a DTV CP, or an application for a CP 
to change a licensed DTV facility) generally may request facilities 
that would expand their coverage area, subject to not exceeding the 
maximum facilities permitted by the rules. As indicated, such an area-
expanding application must protect DTV stations, including DTV 
allotments and authorized (CP or licensed) DTV stations. Where two DTV 
applications seek to expand their allotment coverage area and one or 
both would cause prohibited interference with the facilities specified 
in the other application, such applications are mutually exclusive 
(MX). If the first-filed application is granted before the

[[Page 15607]]

second application is filed, the second application must protect the 
first, which would then be an authorized DTV facility. If the second 
application is filed before the first is granted, the two conflicting 
applications would be mutually exclusive. We wish to explore several 
options for resolving such MX cases.
    43. Request for Comments. As a primary matter, we seek comment on 
whether to adopt a cut-off procedure for such DTV area-expansion 
applications to minimize the number of mutual exclusivities and to 
facilitate applicants' planning with respect to their proposals. A cut-
off process could minimize the number of MX situations that develop by 
requiring conflicting applications filed after a cut-off date to 
protect the earlier-filed, cut-off application. In the past, the 
Commission has managed the processing of some other categories of 
broadcast service applications by publishing ``cut-off'' notices that 
established a date after which competing or otherwise mutually 
exclusive applications were not allowed to be filed. NTSC minor change 
applications have not been subject to cut-off procedures, so such 
applications can become MX until the day they are granted. We have 
previously indicated that we would treat an initially eligible 
station's DTV construction permit application as a ``minor change.'' 
Minor change status meant that we did not consider these initial 
applications to be requests for new stations but rather a modification 
of facilities. Under current processing procedures, we do announce the 
acceptance of these DTV applications without establishing a cut-off 
date. With respect to DTV service area-expansion applications (service 
area-expansion includes ``maximization'' applications that increase 
power and site or facilities change applications that increase a 
station's DTV service area in one or more directions beyond the area 
resulting from the station's allotment parameters), we could augment 
this public notice by including a cut-off date provision, which would 
announce that MX applications must be filed within a period of time. 
Under such an approach, conflicting applications filed after that time 
has passed would not be considered MX, but would have to protect the 
earlier-filed application. We seek comment on an appropriate duration 
for a cut-off period should we adopt such an approach. This approach 
could be similar to the process established for DTV ``maximization'' 
applications, where we allow a thirty day period during which 
oppositions to the application must be filed. Another option would be 
to consider such applications cut-off as of the close of business on 
the date they are filed. We would be concerned that such a day-to-day 
cut-off could prompt an initial surge of area-expansion applications on 
the first day it became effective. However, after that day, such an 
approach would minimize the number of MX situations. We invite comment 
on whether we should adopt a cut-off process and if so, on the 
appropriate duration. On January 4, 2000, Fox Television Stations, 
Inc., filed a letter with respect to DTV application cut-off procedures 
and other DTV maximization application processing issues. We 
incorporate the letter in the record of this proceeding and seek 
comment on the issues raised therein.
    44. Next, we seek comment on how to resolve mutual exclusivities 
that arise. There are a number of alternative methods we could use, and 
we invite comment on these as well as others that commenters may wish 
to propose. Under one possible approach, where two or more DTV area-
expansion applications are MX, we could grant all such applications 
regardless of the interference that could be caused in areas beyond the 
DTV allotment service area. Such an approach would facilitate 
Commission action on applications, resulting in an early resolution of 
contested cases and more rapid grant of construction permits. This 
option might prove to be an effective system to provide DTV service to 
the public at the earliest date. We anticipate that where each 
application proposal protects the other DTV allotment and any 
authorized DTV service area, but their mutual expansion efforts result 
in a prohibited amount of interference, the loss of service would be to 
areas that would not have been served by the original allotments, 
anyway. If we adopt such an approach and grant all applications in such 
a situation, we would encourage the stations to negotiate and seek 
engineering solutions to minimize the loss of service in a mutually 
agreeable manner. It appears that if both stations begin transmissions 
with their proposed facilities at the same time, the people subject to 
interference will not be suffering a loss of service as they will not 
have had sufficient signal for service prior to the interfering power 
increases. Instead, they simply will never gain the service they might 
have had if only one of the stations had sought to expand its coverage. 
We invite comment on this view.
    45. As an alternative to the foregoing approach, we invite comment 
as to whether we should consider MX DTV area-expansion applications 
using a DTV new station application procedure. Using such an approach, 
we would encourage pending mutually exclusive new DTV applications (or 
modifications involving area expansion) to resolve their mutual 
exclusivity by engineering solutions or by settlements. We note the 
statutory directive to ``use engineering solutions * * * and other 
means'' to resolve competing applications. 47 U.S.C. 309(j)(6)(E). We 
invite comment on this approach for resolving MX situations involving 
new DTV station applications, as well as situations involving only DTV 
area-expansion applications. Where such mutual exclusivities cannot be 
resolved by negotiation, we invite comment as to whether these 
applications should be dismissed or, alternatively, whether spectrum 
auctions are legally permitted and, if so, to what extent, and whether 
they are an appropriate approach. We note that section 309(j) of the 
Communications Act of 1934, as amended (``the Act''), 47 U.S.C. 309(j), 
added by the Balanced Budget Act of 1997, provided for competitive 
bidding to resolve mutually exclusive applications for ``any initial 
license or construction permit,'' but specifically excludes from 
competitive bidding, ``initial licenses or construction permits for 
digital television service given to existing terrestrial broadcast 
licensees to replace their analog television service licenses.* * *'' 
47 U.S.C. 309(j)(2)(B). Thus, by its terms, section 309(j) would permit 
us to use competitive bidding to resolve mutual exclusivities for DTV 
applications for new facilities that are not intended to replace analog 
stations.
    46. We invite comment as to whether we could use competitive 
bidding to resolve mutually exclusive applications from initial DTV 
licensees involving area expansion beyond the full-replication 
facility. In the First Report and Order in MM Docket No. 97-234, GC 
Docket No. 92-2, and GEN Docket No. 90-264, (63 FR 48615, September 11, 
1998), we concluded that the Commission is not precluded by the 
language of section 309(j) from auctioning mutually exclusive analog 
modification applications. As we noted, ``applications proposing major 
changes to existing facilities are, in our view, analogous to 
applications for construction permits for new stations.'' The 
Commission also noted that ``subjecting a modification application to 
competitive bidding may also be particularly appropriate where it is 
mutually exclusive with one (or more) initial applications, as section 
309(j) mandates the use of auctions where

[[Page 15608]]

mutually exclusive applications are accepted for ``any initial license 
or construction permit.'' The Commission was there speaking about 
analog applications. To what extent, if any, do the considerations 
involving digital area-expansion applications dictate a different 
result? We note that we are precluded by section 309(j) from auctioning 
initial DTV replacement licenses (or the accompanying construction 
permits), but it does not appear that a digital area-expansion 
application would constitute such a replacement. We seek comment, 
however, on whether grant of such area-expansion applications is 
properly viewed as merely a component of the replacement of the analog 
television service license, or whether it should be classified as an 
extension of the analog authorization outside the statutory exclusion 
from competitive bidding. We also invite comment as to how to resolve 
mutually exclusive applications where one applicant is seeking a new 
DTV facility, which conflicts with an area-expansion request by an 
initial DTV licensee.
    47. The First Auction R&O decided that competitive bidding would 
not be used to resolve mutually exclusive minor change applications 
submitted for analog TV stations. We invite comment as to whether the 
same conclusion would apply in the context of DTV. The First Auction 
R&O noted that analog minor modification applications are infrequently 
mutually exclusive and involve less significant changes than major 
modifications. Thus, the Commission held that there would be greater 
utility in expecting parties to work together to resolve the mutual 
exclusivity in the rare instances in which minor modification 
applications become mutually exclusive. NTSC minor change applications 
only become MX if they involve a site change and become short-spaced 
with another application. In the case of DTV, MX situations may arise 
in more cases. Use of engineering criteria to determine interference 
protection can result in MX situations where stations seek to increase 
their power or antenna height, even if they do not seek to change their 
site. With the large number of DTV applications being filed, we do 
expect that there will be numerous mutual exclusivities involving area-
expansion applications.
    48. If commenters oppose use of competitive bidding, we invite them 
to suggest alternative approaches to resolving mutual exclusitivities. 
Would these alternative methods be permitted under the Balanced Budget 
Act? Finally, in the event we hold auctions, we propose to use the 
auction techniques established in the First Auction R&O. We invite 
comment on this approach.
    49. Application Processing/Protection Priority. We invite comment 
on what processing priorities we should establish as between DTV area-
expansion applications and NTSC applications and rule making petitions. 
We have determined and reiterated several times that the future of 
television is DTV. For that reason, in 1996, the Commission decided to 
stop accepting petitions to add new NTSC channels and applications for 
new NTSC stations. See Sixth Further Notice of Proposed Rule Making in 
MM Docket No. 87-268 (61 FR 43209, August 21, 1996). Those pending 
applications for new NTSC stations that were not subject to the TV 
application freeze were protected by the initial DTV table of 
allotments. See Order, RM-5811 (52 FR 28346, July 29, 1987). 
Applications for new NTSC stations in the areas subject to the TV 
freeze and rule making petitions to add new NTSC channels were not 
protected or otherwise accommodated in the development of the initial 
DTV table of allotments or subsequent amendments to that initial table. 
Similarly, NTSC applications for minor changes in existing or 
authorized stations were not protected or otherwise considered when the 
DTV table was developed, adopted or amended.
    50. The Commission addressed the need for new NTSC station 
construction permit applications that sought a waiver of the TV 
application freeze in major markets to amend or propose a substitute 
channel in the DTV Second MO&O. At that time, we decided that those 
NTSC applications must protect all DTV stations, including authorized 
DTV stations, facilities requested in DTV station applications, DTV 
allotments, and rule making proposals to change or add a DTV channel 
allotment. A recent Public Notice opened a window for amendments or 
channel change proposals to be submitted for such NTSC freeze-area 
applications, as well as new NTSC station applications that had not 
been subject to the freeze, but requested an allotment in the range of 
channels 60 to 69 and pending petitions for rule making seeking to add 
an NTSC channel allotment. See Public Notice (64 FR 67267, December 1, 
1999), Mass Media Bureau Announces Window Filing Opportunity For 
Certain Pending Applications and Allotment Petitions for New Analog TV 
Stations. In that processing Public Notice, we also clarified that rule 
making petitions seeking to add an NTSC channel allotment must protect 
all DTV stations (including allotments, applications and rule making 
proposals as listed). NTSC applications for minor changes in authorized 
stations also must protect all such DTV stations.
    51. We have not clarified the extent to which these NTSC petitions 
and applications could have protection from later-filed DTV 
applications and at what point such protection should be afforded. It 
is important to specify such a priority to allow orderly processing and 
reasonable certainty that an NTSC applicant or petitioner's grant is 
valid.
    52. We note that Congress recently enacted new legislation to 
provide for Class A TV stations. This legislation establishes the 
priority such stations would have with respect to DTV and NTSC 
stations. Public Law 106-113, 113 Stat. 1501 (1999) Making consolidated 
appropriations for the fiscal year ending September 30, 2000, and for 
other purposes. Community Broadcasters Protection Act of 1999, section 
5008 of Title V of S. 1948, the ``Intellectual Property and 
Communications Omnibus Reform Act of 1999. In order to receive a Class 
A license, the applicant must show interference protection to:

(i) The predicted Grade B contour (as of the date of enactment of the 
Community Broadcasters Protection Act of 1999, or November 1, 1999, 
whichever is later, or as proposed in a change application filed on or 
before such date) of any television station transmitting in analog 
format; or
(ii)(A) the digital television service areas provided in the DTV Table 
of Allotments; (B) the areas protected in the Commission's digital 
television regulations (47 CFR 73.622(e) and (f)); (C) the digital 
television service areas of stations subsequently granted by the 
Commission prior to the filing of a class A application; and (D) 
stations seeking to maximize power under the Commission's rules, if 
such station has complied with the notification requirements in 
paragraph (1)(D)* * *. 47 U.S.C. 336(f)(7)(A). We do not herein discuss 
the provisions with respect to protection of low power television 
stations or low power television translator stations as these are not 
pertinent.

This legislation would thus require Class A stations to protect: (1) TV 
stations ``transmitting in analog format'' as of the enactment date, 
November 29, 1999, or ``change'' applications filed as of that date; 
(2) DTV service areas provided by the DTV allotment Table, including 
DTV service authorized before the filing of a Class A application; and 
(3) DTV stations seeking to ``maximize'' their service areas, provided 
they notify

[[Page 15609]]

the Commission by December 31, 1999, of their intent to maximize and 
file their maximization applications by May 1, 2000. In the Class A 
NPRM, we invite comment as to the interpretation and implementation of 
this priority scheme. The Class A NPRM, notes that we are inclined to 
include among the NTSC facilities that Class A stations must protect 
stations that are transmitting and stations that are authorized to 
construct facilities.
    53. We invite comment as to whether a similar priority scheme 
should be adopted as between DTV and NTSC stations, and, if so, what 
the priorities should be as between DTV and NTSC applications and 
stations. There are a number of pending new NTSC station and NTSC minor 
change applications. Some of the pending new NTSC station applications 
were the subject of competitive bidding in the Commission's broadcast 
auction this past fall. Should we follow an analogous priority scheme 
to that established in the new Class A legislation in prioritizing 
between DTV and NTSC applications? If so, should the reliance interest 
of the applicants that have participated in the auction and won change 
the result for these particular applicants? If we should not follow an 
analogous scheme, what priority scheme should be established and what, 
if any, cut-off protection should be established to protect new NTSC 
station applications from last-minute DTV applications and allow NTSC 
applicants to participate in auctions and plan their facilities? What 
processing priorities should apply between applications for minor 
changes in authorized NTSC stations and DTV area-expansion 
applications?

V. Administrative Matters

    54. Initial Paperwork Reduction Act of 1995 Analysis. This NPRM may 
contain either proposed or modified information collections. As part of 
our continuing effort to reduce paperwork burdens, we invite the 
general public and the Office of Management and Budget (``OMB'') to 
take this opportunity to comment on the information collection that 
might be required, as required by the Paperwork Reduction Act of 1995, 
Public Law 104-13. Public and agency comments are due at the same time 
as other comments on this NPRM (i.e., May 17, 2000); OMB comments are 
also due May 17, 2000. Comments should address: (a) whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the Commission, including whether the 
information shall have practical utility; (b) the accuracy of the 
Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. In addition to filing comments 
with the Secretary, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room C-1804, 445 12th Street, SW, 
Washington, DC 20554, or via the Internet to [email protected] and to 
Edward C. Springer, Office of Management and Budget, Office of 
Information and Regulatory Affairs, 725 17th Street, N.W., Room 10236, 
NEOB, Washington, DC 20503 or via the Internet to 
[email protected].
    55. Filing of Comments and Reply Comments. Pursuant to 47 CFR 
1.415, 1.419, interested parties may file comments on or before May 17, 
2000, and reply comments on or before June 16, 2000. Comments may be 
filed using the Commission's Electronic Comment Filing System (ECFS) or 
by filing paper copies. See Electronic Filing of Documents in 
Rulemaking Proceedings (63 FR 24121, May 1, 1998).
    56. Comments filed through ECFS can be sent as an electronic file 
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, 
only one copy of an electronic submission must be filed. In completing 
the transmittal screen, commenters should include their full name, 
Postal Service mailing address, and the applicable docket or rulemaking 
number. Parties may also submit an electronic comment via e-mail. To 
get filing instructions for e-mail comments, commenters should send an 
e-mail to [email protected], and should include the following words in the 
body of the message, ``get form your e-mail address>.'' A sample form 
and directions will be sent in reply.
    57. Parties who choose to file by paper must file an original and 
four copies of each filing. All filings must be sent to the 
Commission's Secretary, Magalie Roman Salas, Office of the Secretary, 
Federal Communications Commission, 445 Twelfth Street, S.W., TW-A325, 
Washington, D.C. 20554.
    58. Parties who choose to file paper should also submit their 
comments on diskette. These diskettes should be addressed to: Wanda 
Hardy, Paralegal Specialist, Mass Media Bureau, Policy and Rules 
Division, Federal Communications Commission, 445 Twelfth Street, S.W., 
2-C221, Washington, D.C. 20554. Such a submission should be on a 3.5 
inch diskette formatted in an IBM compatible format using Word 97 or 
compatible software. The diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labeled with the commenter's name, proceeding 
(including the lead docket number in this case (MM Docket No. 00-39), 
type of pleading (comment or reply comment), date of submission, and 
the name of the electronic file on the diskette. The label should also 
include the following phrase ``Disk Copy--Not an Original.'' Each 
diskette should contain only one party's pleadings, preferably in a 
single electronic file. In addition, commenters must sent diskette 
copies to the Commission's copy contractor, International Transcription 
Service, Inc., 445 Twelfth Street, S.W., CY-B402, Washington, D.C. 
20554.
    59. Comments and reply comments will be available for public 
inspection during regular business hours in the FCC Reference Center, 
Federal Communications Commission, 445 Twelfth Street, S.W., CY-A257, 
Washington, D.C. 20554. Persons with disabilities who need assistance 
in the FCC Reference Center may contact Bill Cline at (202) 418-0270, 
(202) 418-2555 TTY, or [email protected].
    60. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Sec. 1.1206(b) of the rules. 47 CFR 1.1206(b), as 
revised. Ex parte presentations are permissible if disclosed in 
accordance with Commission rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of 
the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one or two sentence description of the 
views and arguments presented is generally required. See 47 CFR 
1.1206(b)(2), as revised. Additional rules pertaining to oral and 
written presentations are set forth in Sec. 1.1206(b).
    61. Initial Regulatory Flexibility Analysis. With respect to this 
NPRM, an Initial Regulatory Flexibility Analysis (``IRFA'') is 
contained. As required by the Regulatory Flexibility Act, see 5 U.S.C. 
603, the Commission has prepared an IRFA of the possible economic 
impact on small entities of the proposals contained in this NPRM. 
Written public comments are requested on the IFRA. In order to fulfill 
the

[[Page 15610]]

mandate of the Contract with America Advancement Act of 1996 regarding 
the Final Regulatory Flexibility Analysis, we ask a number of questions 
in our IRFA regarding the prevalence of small businesses in the 
television broadcasting industry. Comments on the IRFA must be filed in 
accordance with the same filing deadlines as comments on the NPRM, and 
must have a distinct heading designating them as a response to the 
IRFA. The Reference Information Center, Consumer Information Bureau, 
will send a copy of this NPRM, including the IRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration in accordance with 
section 603(a) of the Regulatory Flexibility Act, Public Law 96-354, 94 
Stat. 1164, 5 U.S.C. 601 et seq. (1981), as amended.

VI. Ordering Clause

    62. Accordingly, pursuant to the authority contained in 47 U.S.C. 
4(i) & (j), 303(r), 307, 309, and 336, this Notice of Proposed Rule 
Making is adopted.
    63. The Commission's Consumer Information Bureau, Reference 
Information Center, SHALL SEND a copy of this Notice of Proposed Rule 
Making, including the Initial Regulatory Flexibility Analysis, to the 
Chief Counsel for Advocacy of the Small Business Administration.

VII. Initial Regulatory Flexibility Analysis

Need for, and Objectives of, the Proposed Rules

    65. As required by the Regulatory Flexibility Act, see 5 U.S.C. 603 
(``RFA''), the Commission has prepared this present Initial Regulatory 
Flexibility Analysis (IRFA) of the possible economic impact on small 
entities by the policies and rules proposed in this Notice of Proposed 
Rulemaking (``NPRM''). Written public comments are requested on this 
IRFA. Comments must be identified as responses to the IRFA and must be 
filed by the deadlines for comments on the NPRM provided. The 
Commission will send a copy of the NPRM, including this IRFA, to the 
Chief Counsel for Advocacy of the Small Business Administration. See 5 
U.S.C. 603(a). In addition, the NPRM and the IRFA (or summaries 
thereof) will be published in the Federal Register. See id.

Legal Basis

    66. This NPRM is adopted pursuant to sections 4(i) & (j), 303(r), 
307, 309, and 336 of the Communications Act of 1934, as amended, 47 
U.S.C. 4(i) & (j), 303(r), 307, 309, and 336.

Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply

    67. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The Regulatory Flexibility 
Act defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small business 
concern'' under section 3 of the Small Business Act. A small business 
concern is one which: (1) Is independently owned and operated; (2) is 
not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA. This action concerns TV 
broadcast stations.
    68. Small TV Broadcast Stations. The SBA defines small television 
broadcasting stations as television broadcasting stations with $10.5 
million or less in annual receipts. There were 1,509 television 
stations operating in the nation in 1992. That number has remained 
fairly constant as indicated by the approximately 1,616 operating 
television broadcasting stations in the nation as of September 1999. 
For 1992, the number of television stations that produced less than 
$10.0 million in revenue was 1,155 establishments. Thus, the proposed 
rule changes will affect approximately 1,616 television stations, 
approximately 1,244 of which are considered small businesses. These 
estimates may overstate the number of small entities since the revenue 
figures on which they are based do not include or aggregate revenues 
from non-television affiliated companies.
    69. Television Equipment Manufacturers: Since the Commission had 
not developed a definition of small entities applicable to 
manufacturers of television equipment, it decided in its 6th R&O, to 
utilize the SBA definition of manufacturers of Radio and Television 
Broadcasting and Communications Equipment. We will again take that 
approach here. According to the SBA's regulations, a TV equipment 
manufacturer must have 750 or fewer employees in order to qualify as a 
small business concern. Census Bureau data indicates that there are 858 
U.S. firms that manufacture radio and television broadcasting and 
communications equipment, and that 778 of these firms have fewer than 
750 employees and would be classified as small entities. The Census 
Bureau category is very broad, and specific figures are not available 
as to how many of these firms are exclusive manufacturers of television 
equipment or how many are independently owned and operated. We conclude 
that there are approximately 778 small manufacturers of radio and 
television equipment.
    70. Household/Consumer Television Equipment: Since the Commission 
had not developed a definition of small entities applicable to 
manufacturers of television equipment used by consumers as compared to 
industrial use by television licensees and related businesses, it 
decided in its 6th R&O, to utilize the SBA definition applicable to 
manufacturers of Household Audio and Visual Equipment. We will again 
take that approach here. According to the SBA's regulations, a 
household audio and visual equipment manufacturer must have 750 or 
fewer employees in order to qualify as a small business concern. Census 
Bureau data indicates that there are 410 U.S. firms that manufacture 
radio and television broadcasting and communications equipment, and 
that 386 of these firms have fewer than 500 employees and would be 
classified as small entities. The remaining 24 firms have 500 or more 
employees; however, we are unable to determine how many of those have 
fewer than 750 employees and therefore, also qualify as small entities 
under the SBA definition. Furthermore, the Census Bureau category is 
very broad, and specific figures are not available as to how many of 
these firms are exclusive manufacturers of television equipment for 
consumers or how many are independently owned and operated. We conclude 
that there are approximately 386 small manufacturers of television 
equipment for consumer/household use.

Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    71. Comments are sought as to whether to explicitly require DTV 
stations to replicate the coverage areas of their paired analog 
stations, whether to require enhanced signal strength to the DTV 
station's city of license, whether to require that broadcasters elect 
which of their channels will be the DTV channel after the transition at 
an early date, and how to resolve mutually exclusive DTV and DTV/NTSC 
applications. The NPRM also invites comment on other issues that must 
be resolved in order to assure a smooth transition, including critical 
unresolved issues relating to tower siting, copy protection, and cable 
compatibility and how they affect the progress of the digital 
transition. With respect to the DTV transmission standard, while the 
Commission continues to believe that

[[Page 15611]]

NTSC service replication is achievable by DTV operations using the 8-
VSB standard, we recognize that some in the industry, including 
Sinclair Broadcasting Group, have raised various issues with respect to 
that standard. Comments are sought on the current status of the 8-VSB 
DTV standard. We are particularly interested in the progress being made 
to improve indoor DTV reception under the existing transmission 
standard and manufacturers' efforts to implement DTV design or chip 
improvements.
    72. Some broadcasters have recommended that the Commission address 
over-the-air signal reception by setting receiver standards, which we 
understand to mean performance thresholds (like the UHF noise figure 
requirement), as opposed to mandatory technology specifications (like 
the ATSC digital standard itself). Accordingly, comment is sought first 
on whether we have the authority to set minimum performance levels for 
DTV receivers. Comment is also sought on the desirability of adopting 
minimum performance levels, and comments are asked to address how these 
requirements should be structured, including timing considerations.

Steps Taken to Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    73. We have described various proposals (with alternatives 
considered) that we believe will accrue to the benefit of the described 
licensees, including small entity licensees. We seek comment on 
whether, to further benefit small entity licensees while remaining 
consistent with the stated objectives of this proceeding, we should 
utilize some of the alternatives described, or perhaps utilize others 
that commenters might provide.
    74. In order to allow stations a reasonable period to operate with 
smaller facilities and thus minimize potential burdens, the NPRM states 
that it seems appropriate to delay a replication requirement until at 
least May 1, 2004, a year after the last stations are required to 
complete construction. Other options referenced by the NPRM as to the 
date for any required replication include December 31, 2006, or the 
date the transition actually ends in the station's market, or one year 
after the station is required to complete construction pursuant to the 
DTV construction schedule. We seek small entity comments on these 
alternatives, which we expect to lessen small entity burdens.
    75. The NPRM states the Commission's tentative belief that it can 
minimize any increased difficulties that might result from a city grade 
signal requirement by delaying its implementation. The NPRM tentatively 
proposes that DTV stations that are paired with NTSC stations be 
required to meet the new principal community requirement by May 1, 
2004. As an alternative, the NPRM invites comment as to whether the 
city-grade service requirement should be tied to the construction 
schedule, with the requirement imposed within a certain period--a year, 
for example, after construction is scheduled to be completed. For 
licensees with paired DTV and NTSC stations that intend to operate with 
DTV on their current NTSC channel after the transition, the NPRM 
proposes that they be required to file a DTV application reflecting 
that decision by that date. For NTSC stations that do not have a paired 
DTV station, the NPRM proposes that the stronger DTV principal 
community service be required when they seek to switch to DTV 
operation. For petitioners seeking a DTV channel change, the NPRM 
proposes to require a showing that the principal community service 
requirement can be met with the proposed DTV allotment facilities or a 
commitment to elect their NTSC channel for their post-transition DTV 
operation. The 2004 date is two years before the end of the transition, 
and by that point DTV broadcasters should be able to achieve their 
permanent facilities. That date is at least one year after the deadline 
for all broadcasters, including noncommercial broadcasters, to complete 
construction, and commercial broadcasters by that date will have been 
on the air for at least two years. For these reasons the Commission 
believes that it would not be unduly onerous to implement a requirement 
for a higher principal community service contour at this date. The NPRM 
invites comment on these proposals and asks commenters to address 
whether other measures are necessary in addition to or as an 
alternative to these proposals to address the Commission's concerns.
    76. The NPRM tentatively concludes that it is now time to begin 
setting up a process to assure early election by DTV stations of their 
post-transition channel. Stations making the channel conversion at the 
end of the transition will need time to plan facilities, order 
equipment and arrange for construction. The NPRM states that, with the 
target date for the end of the transition set for December 31, 2006, it 
seems reasonable to identify the channels these stations will be moving 
to not later than 2004. To accomplish this, the NPRM states that we 
could require DTV licensees to make a binding decision and elect one of 
their two core channels by early 2004, at the latest and suggests 
imposing May 1, 2004 as the deadline for election. This date would 
allow at least one year of DTV operation pursuant to our staggered 
construction schedule (with noncommercial educational TV stations 
provided the longest time to construct and required to complete 
construction by May 1, 2003). The NPRM seeks comment on whether this 
date represents the proper balance between the goals of allowing DTV 
stations enough time to gain experience with DTV operation and allowing 
stations that must move enough time to plan for their DTV channel 
conversion. The NPRM invites comment as to whether we are required to 
impose an earlier date based on recent legislation requiring 
identification of 175 additional DTV channels within 18 months of the 
law's enactment.
    77. To the extent the Commission may adopt performance thresholds 
for DTV receivers, the Commission has requested comment on timing 
considerations, which will enable it to take into account potential 
burdens that may otherwise be placed on small entity manufacturers of 
these receivers. In contrast, any action taken with respect to the DTV 
transmission standard (specifically in connection with the 8-VSB 
standard) will have only an indirect effect on manufacturers of 
television equipment designed for use by the industry. Nevertheless, 
the comment sought in the NPRM is broad enough to provide the 
Commission with sufficient opportunity to address this issue.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    78. None.

List of Subjects in 47 CFR Part 73.

    Television broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 00-7130 Filed 3-22-00; 8:45 am]
BILLING CODE 6712-01-P