[Federal Register Volume 66, Number 243 (Tuesday, December 18, 2001)]
[Rules and Regulations]
[Pages 65122-65140]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30433]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 00-39; FCC 01-330]


Broadcast Services; Digital Television

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document resolves a number of petitions for 
reconsideration of the Federal Communications Commissions' Report and 
Order and Further Notice of Proposed Rule Making (R&O). This document 
addresses a number of issues related to the conversion of the nation's 
broadcast television system from analog to digital television (DTV), 
including when to require election by licensees of their post-
transition DTV channel, whether to require replication by DTV licensees 
of their NTSC Grade B service contours, whether to require DTV 
licensees to place enhanced service contours over their principal 
communities, and how to process mutually exclusive applications. The 
document also modifies the minimum hours of operation of certain DTV 
stations and establishes guidelines for television stations that may 
seek an extension of the deadlines for construction of DTV facilities. 
Our intention in revising some of the decisions reached in the Report 
and Order is to revise certain requirements that may be having the 
unintended consequence of hindering, rather than furthering, the DTV 
transition, and to prioritize those elements most important to the 
transition. The decisions reached in this document should maximize the 
number of DTV stations providing service to at least all consumers in 
their community of license by allowing DTV stations to go on the air 
initially with lower-powered, and therefore less expensive, facilities.

DATES: The decisions and rules adopted herein shall be effective 
February 19, 2002, except for FCC Form 337 which contains information 
collection requirements that have not been approved by OMB. Written 
comments on this new information collection are due February 19, 2002. 
The FCC will publish a document announcing the effective date of FCC 
Form 337 once OMB approval is received. This form appears as an 
appendix to this document.

ADDRESSES: Federal Communications Commission, Washington, DC, 20554. In 
addition to filing comments with the Office of the Secretary, a copy of 
any comments on the information collections contained herein should be 
submitted to Judy Boley, Federal Communications Commission, Room 1-
C804, 445 12th Street, SW, Washington, DC 20554, or via the Internet to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Kim Matthews, Policy and Rules 
Division, Mass Media Bureau, (202) 418-2130. For additional information 
concerning the information collections contained in this document, 
contact Judy Boley at 202-418-0214, or via the Internet at 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Memorandum Opinion and Order on Reconsideration (MO&O), FCC 01-330, 
adopted November 8, 2001, released November 15, 2001. The full text of 
the Commission's MO&O is available for inspection and copying during 
normal business hours in the FCC Dockets Branch (Room TW-A306), 445 
12th Street, SW., Washington, DC 20554. The complete text of this MO&O 
may also be purchased from the Commission's copy contractor, Qualex 
International, (202) 863-2893, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554. The text of the MO&O is also available from the 
FCC's Internet website: www.fcc.gov.

Paperwork Reduction Act

    This MO&O contains either a new or modified information collection. 
It will be submitted to the Office of Management and Budget (OMB) for 
review under Section 3507(d) of the PRA. The Commission, as part of its 
continuing effort to reduce paperwork burdens, invites the general 
public and other government agencies to comment on the information 
collection contained

[[Page 65123]]

in this MO&O as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13. Public and agency comments are due February 19, 2002. 
Comments should address: (a) Whether the new or modified 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.
    OMB Control Number: 3060-XXXX.
    Title: Application for Extension of Time to Construct a Digital 
Television Broadcast Station.
    Form No.: FCC 337.
    Type of Review: New collection.
    Respondents: Business or other for-profit; not-for-profit 
institutions.
    Number of Respondents: 600 (400 extensions; 200 requests for 
special temporary authority).
    Estimated Time per Response: 1.5 hours extensions (0.5 hours 
respondent; 1 hour attorney); 4.0 hours. STA (1 hour respondent; 1 hour 
attorney; 2 hours consulting engineer).
    Total Annual Burden: 400 hours.
    Total Annual Costs: $207,000.
    Needs and Uses: The MO&O revises the circumstances under which an 
extension of time to construct a digital television broadcast station 
can be requested. The Commission has developed the FCC 337 to be used 
by DTV permittees to apply for an extension of time. Applicants must 
retain documentation fully detailing and supporting their 
representations made on this form. In addition, the MO&O adopted a 
provision for special temporary authority for licensees that have not 
been granted a construction permit for allotted or maximized DTV 
facilities to commence digital operations. The request for special 
temporary authority must specify the technical facilities requested. 
The data is used by FCC staff to determine, on a case-by-case basis, 
whether a broadcaster should be afforded additional time to construct 
its facilities and to ensure that operation will not exceed allotted 
parameters.

Synopsis of Memorandum Opinion and Order on Reconsideration

I. Introduction

    1. In this MO&O, we revise a number of the determinations we made 
in the R&O, affirm other decisions, and provide clarification of 
certain rules and policies. We also modify, on our own motion, the 
minimum hours of operation of certain DTV stations and establish 
guidelines for television stations that may seek an extension of our 
deadlines for construction of DTV facilities. We will resolve several 
major technical issues raised in the R&O, including the issues of 
receiver performance standards, DTV tuners, revisions to the ATSC 
transmission standard (including the PSIP standard), and labeling 
requirements for television receivers, in a separate R&O.

II. Background

    2. In the Commission's digital television proceeding (MM Docket No. 
87-268), we indicated our intention to hold periodic reviews of the 
progress of the conversion to digital television and to make any mid-
course corrections necessary to ensure the success of that conversion. 
In the Fifth Report and Order in MM Docket 87-268 (63 FR 135461, May 
20, 1998) (Fifth R&O), we stated that we would conduct such a review 
every two years in order to ``ensure that the introduction of digital 
television and the recovery of spectrum at the end of the transition 
fully serves the public interest.'' We commenced this first periodic 
review with a Notice of Proposed Rule Making in MM Docket 00-39 (65 FR 
15600, March 23, 2000) (NPRM), adopted March 6, 2000. In the NPRM, we 
invited comment on a number of issues that we considered essential to 
resolve in order to ensure continued progress on the conversion. We 
also sought comment generally on various aspects of the transition, 
such as the pace of DTV receiver sales and the availability of 
financing for digital facilities.
    3. Based on the comments we received in response to the NPRM, we 
made a number of determinations in the R&O that we believed would 
further progress on the transition. Among other things, we established 
a December 31, 2003 deadline by which commercial television stations 
that have both their NTSC and DTV operations on in-core channels must 
elect which of their two core channels to use for DTV operations after 
the transition. We gave non-commercial stations that have both their 
NTSC and DTV operations on in-core channels until the end of 2004 to 
elect their post-transition DTV channel. We determined that this early 
channel election would allow us to identify more quickly channels that 
will be available to accommodate DTV licensees with out-of-core 
transition channels as well as new entrants. In addition, to provide 
broadcasters with an incentive to provide full replication of NTSC 
coverage with DTV service, we determined that, after December 31, 2004, 
whatever portion of a commercial broadcaster's NTSC Grade B contour is 
not replicated with its digital television signal will cease to be 
protected in the DTV Table of Allotments. Noncommercial DTV licensees 
were given until December 31, 2005 in which to replicate or lose such 
DTV interference protection. We also imposed a principal community 
coverage requirement that is stronger than the DTV service contour 
requirement that we adopted as an initial obligation in the Fifth R&O. 
This new city-grade service requirement, which becomes effective 
December 31, 2004 for commercial stations and December 31, 2005 for 
noncommercial stations, was intended to improve the availability of 
service in the community of license and to prevent undue migration of 
stations from their communities of license.
    4. In addition, in our R&O we adopted DTV application cut-off 
procedures and determined how we would resolve any mutually exclusive 
applications. We also made a number of technical decisions, including 
our determination that there is no persuasive information to indicate 
that there is any deficiency in the 8-VSB modulation system of the DTV 
transmission standard that would warrant adding COFDM to the current 
standard. Finally, we declined to adopt technical performance standards 
for DTV receivers, although we indicated we would continue to monitor 
receiver issues throughout the transition and would take appropriate 
action on receiver standards if necessary.
    5. Upon further consideration, and after careful review of the 
petitions for reconsideration, we believe that some of the requirements 
that we adopted in the R&O may be having the unintended consequence of 
hindering, rather than furthering, the DTV transition. In particular, 
we believe that the Commission's current channel election and 
replication requirements and deadlines may be imposing substantial 
burdens on broadcasters without sufficient countervailing public 
benefits, and may in fact be contributing to difficulties faced by a 
substantial number of stations in meeting their DTV construction 
deadlines.
    6. The DTV build-out dates have passed for the top-30-market major 
network affiliate stations. As of September 2001, thirty-seven of the 
40 major network affiliate stations in the top 10 television markets 
are on the air with DTV service, 36 with licensed

[[Page 65124]]

facilities and one with special temporary authority (``STA''). In 
addition, 71 of the 79 major network affiliate stations in markets 11-
30 are providing digital service, 61 with licensed facilities and 10 
with STAs. By May 1, 2002, all remaining commercial television stations 
are required to complete construction and commence DTV operations. 
Noncommercial stations have until May 1, 2003 to complete construction.
    7. The National Association of Broadcasters (NAB) recently 
conducted a survey of all full-power commercial TV stations to 
determine how many anticipate they will have a digital signal on the 
air by May 2002. The results of the survey show that more than two 
thirds (68.2%) of responding stations reported that they either are 
operating now in digital format or expect to have a digital signal on 
the air by May 2002. Stations that anticipate meeting the deadline 
would provide at least one digital signal by next May in 164 television 
markets. According to the NAB, these markets include 95.8 % of all 
television households.
    8. While these survey results are encouraging, it nonetheless 
appears that slightly less than one-third (31.8%) of all stations 
responding to the NAB survey anticipate that they will not be able to 
provide a digital signal by the May 2002 deadline. A larger percentage 
(81.9%) of responding stations in the top 50 markets anticipate that 
they will meet the deadline, while a smaller percentage (49.1%) of 
stations in markets 100 and above indicated they will complete 
construction on time. Three-quarters of those stations that do not 
anticipate meeting the May 2002 deadline indicated they plan to seek an 
extension of this deadline from the FCC. Generally, smaller market 
broadcasters that filed petitions in this proceeding assert that they 
are unable to obtain financing to construct DTV facilities sufficient 
to replicate their analog service area. These broadcasters also claim 
that they will not have sufficient operational experience by December 
2004 to determine which core channel is superior for DTV transmission. 
Broadcasters that are not capable of constructing full replication 
facilities by the deadline established in the R&O may be postponing 
construction altogether. Thus, while the Commission's current 
replication deadline was intended to provide an incentive to stations 
to construct DTV facilities capable of reaching their entire service 
area, this deadline may in fact be causing stations to delay 
construction, thus slowing transition progress.
    9. As discussed more fully below, upon reconsideration we have 
decided to allow stations to construct initial DTV facilities designed 
to serve at least their communities of license, while still retaining 
DTV interference protection to provide full replication at a later 
date. Thus, we will temporarily defer the replication protection and 
channel election deadlines we established in the R&O. In our next 
periodic review of the progress of the DTV transition, we intend to 
establish a firm date by which broadcasters must either replicate their 
NTSC service areas or lose DTV service protection of the unreplicated 
areas, and by which broadcasters with two in-core allotments must elect 
which channel they will eventually use at the end of the transition. 
These replication protection and channel election deadlines may be 
earlier than but will in no event be later than the latest of either 
the end of 2006 or the date by which 85% of the television households 
in a licensee's market are capable of receiving the signals of digital 
broadcast stations. During the next periodic review, we intend to 
develop a record on the progress of the transition and how such 
progress relates to such issues as band clearing and the goal of the 
rapid recovery of spectrum for public safety and other wireless 
services, as well as other issues related to the successful conclusion 
of the DTV transition. In order to provide parity to analog UHF 
stations, we will also allow these stations to construct initial 
facilities that serve their principal communities while retaining for 
the time being DTV interference protection to their maximized service 
areas, subject to the interference protection deadline we intend to 
establish in the next periodic review. We will not alter, however, our 
decision to require stations to provide a stronger signal to their 
communities of license than that adopted as an initial requirement in 
the Fifth R&O. As established in the R&O, this new city-grade service 
requirement will become effective December 31, 2004 for commercial 
stations and December 31, 2005 for noncommercial stations.
    10. Our intention in making these revisions to the decisions 
reached in the R&O is to prioritize those elements that are most 
important to the DTV transition. At this point, we believe our primary 
goal should be to maximize the number of DTV stations providing service 
to at least all consumers in their community of license. Relaxing our 
channel election and replication requirements will allow stations to go 
on the air with lower-powered, and therefore less expensive, 
facilities, while also providing broadcasters additional time to 
consider their post-transition facilities. The reduced build-out 
requirements we adopt today will allow broadcasters to save both on 
construction and operating costs, including lower power expenses. 
Indeed, the ability to transmit at lower power may permit many of these 
stations to transmit from existing towers, rather than being forced to 
build new facilities immediately. In addition, we will allow DTV 
stations that are not yet required to be on the air with a digital 
signal--i.e., those that are subject to the May 1, 2002 or May 1, 2003 
deadlines, including stations subject to those deadlines that are 
currently on the air early--to operate initially at a reduced schedule 
by providing, at a minimum, a digital signal during prime time hours, 
consistent with their simulcast obligations. This is consistent with 
our recognition that such stations, as an initial matter, may need the 
flexibility to adopt a more graduated approach to the transition. We 
believe that this approach may permit more stations to meet the build-
out deadlines and help advance the digital transition. This minimum 
will effectively be increased under the Commission's existing simulcast 
obligations, which require DTV licensees to simulcast 50% of their 
analog schedule by April 1, 2003, 75% of their analog schedule by April 
2004, and 100% of their analog schedule by April 2005. Stations that 
were subject to the earlier construction deadlines (top four network 
affiliates in the top thirty markets) will remain subject to the 
previous rule--i.e., they must operate their DTV station at any time 
that the analog station is operating. This distinction is consistent 
with our prior treatment of these stations. In establishing earlier 
build-out deadlines for these stations in the Fifth R&O, we noted that 
``the most viewed stations in the largest television markets can be 
expected to lead the transition to DTV'' and that these stations are 
``likely to have substantial revenues that may be used to fund the 
conversion.''
    11. In the end, we believe that reconsidering these rules will help 
further the DTV transition while actually promoting the goals of 
replication and of maximizing the digital service provided to the 
public. Getting more stations on the air will help drive DTV set 
penetration. Increasing the number of DTV sets in production and in the 
hands of consumers will bring prices down and provide an incentive for 
content producers and advertisers to invest in

[[Page 65125]]

DTV. Ultimately, an expanding DTV marketplace will help further the 
expansion of DTV into unserved areas in the future.

III. Issue Analysis

A. Channel Election
    12. After the transition, DTV service will be limited to a ``core 
spectrum'' consisting of current television channels 2 through 51. 
Although some stations received transition channels out of the core, 
and a few have both their NTSC and DTV channels outside the core, we 
believe that there will be sufficient spectrum so that at the end of 
the transition all DTV stations will be operating on core channels. 
However, as we indicated in the R&O, it now appears that there will be 
more out of core stations that must be accommodated with a core channel 
than we initially anticipated because new applicants will be allowed to 
convert their single NTSC channels to DTV operation and those on NTSC 
and DTV channels outside the core will be provided a post-transition 
channel inside the core. Also, the recent establishment of primary 
Class A television stations may limit availability of core channels in 
some areas.
    13. These factors influenced our decision in the R&O to mandate 
early election of DTV channels for that category of licensees with both 
their NTSC and DTV channels within the core. Specifically, we gave 
commercial television licensees with both their NTSC and DTV operations 
on in-core channels until December 31, 2003 to decide which of their 
two in-core channels to use for DTV operations after the transition. We 
noted that this is more than one and a half years after the last 
commercial station construction deadline (i.e., May 1, 2002), and 
stated our belief that this gave stations time in which to decide which 
of their two in-core channels would be most suitable for use in digital 
broadcasting. We stated that setting this channel election deadline 
would enable us to determine at an early date, on a market-by-market 
basis, what in-core channels would be available for use by stations 
having two out-of-core channels. We also stated our belief that an 
early final channel election would help speed the transition by making 
the final local channel alignments clear. We gave non-commercial 
stations that have both their NTSC and DTV operations on in-core 
channels until the end of 2004 to elect their channels, or more than 
one and a half years after their construction deadline (i.e., May 1, 
2003).
    14. As we indicated above, upon reconsideration we have determined 
to temporarily defer the imposition of a channel election deadline 
until the next periodic review. We intend to monitor closely the 
progress of the transition and, based on developments between now and 
the conclusion of the next review, we will establish a channel election 
deadline that may be earlier than but in no event will be later than 
the latest of either the end of 2006 or the date by which a market 
meets the 85% digital penetration target. We believe that this action 
is consistent with, and necessitated by, our decision today to allow 
stations to construct initial DTV facilities designed to serve their 
communities of license, while still preserving DTV interference 
protection to provide full replication or maximization service at a 
later date.
    15. We expect that a number of stations will choose to meet our May 
2002 construction deadline by building less than full facilities 
initially, or by operating at lower power, and increasing power over 
time in relation to the demand for digital programming. We are today 
permitting stations to commence service with facilities that meet the 
minimum requirements set forth in Sec. 73.625(a)(1) of our rules. By 
December 31, 2004, commercial stations must meet the increased city-
grade signal strength requirements we imposed in the R&O. Noncommercial 
stations have until December 31, 2005 to meet this city-grade service 
obligation. At the same time, on our own motion, we will allow 
television stations subject to the May 1, 2002 and May 1, 2003 DTV 
construction deadlines to operate digitally at a reduced schedule by 
providing, at a minimum, a digital signal during prime time as 
specified in Sec. 79.3(a)(6) of our rules. With respect to these 
stations, this replaces our current rule that requires that DTV 
licensees and permittees transmit at least one DTV signal at any time 
the licensee or permittee transmits an analog signal. This modified 
rule does not reduce the simulcast obligations of these licensees, 
described in Sec. 73.624(f) of our rules. Thus, for example, by April 
1, 2003, a DTV station that was required to be on the air by May 1, 
2002 must provide a digital signal at least 50 percent of the time it 
transmits an analog signal, and under the requirements of 
Sec. 73.624(b)(i), a portion of the simulcasting must occur during 
prime time.
    16. We believe that permitting stations to elect a more graduated 
approach to providing DTV service will foster the early introduction of 
DTV service to core service areas, and allow stations to grow into 
their full DTV facilities as the transition progresses. Because we are 
permitting stations greater flexibility to increase digital power and 
hours of service over time, we believe stations must be given an 
opportunity to increase power and gain experience at those higher power 
levels before they can make an educated choice about which of their two 
channels will provide optimal DTV service. We believe that this concern 
outweighs the benefits we discussed in the R&O that would result from 
an early election date. Accordingly, we will temporarily defer the 
imposition of an election deadline until the next periodic review.
B. Replication and Maximization
1. Replication
    17. We established NTSC service replication as a goal in the 
creation of the initial DTV Table of Allotments. Each DTV channel 
allotment was chosen to best allow its DTV service to match the Grade B 
service contour of the NTSC station with which it was paired. As we 
stated in the R&O, we continue to believe that this approach provides 
important benefits to both viewers and broadcasters and ``will ensure 
that broadcasters have the ability to reach the audiences that they now 
serve and that viewers have access to the stations that they can now 
receive over-the-air.''
    18. In the R&O, we stated our expectation that DTV broadcasters 
would eventually choose to replicate their NTSC service areas to serve 
their viewers. However, we concluded we would not require replication 
because we wanted to give broadcasters a measure of flexibility as they 
build their DTV facilities to collocate their antennas at common sites, 
thus minimizing potential local difficulties locating towers and 
eliminating the cost of building new towers. We also recognized, among 
other things, that, in the absence of a Commission-mandated replication 
requirement and because we provided licensees a certain amount of 
transmitter location flexibility, some licensees may have already built 
their initial DTV facilities in locations that are unsuitable for full 
replication.
    19. While we concluded we would not expressly require full 
replication of NTSC coverage with DTV service, we determined we would 
provide an incentive to broadcasters to provide such replication in 
order to assure that viewers do not lose service and to speed the 
transition. Specifically, we decided to cease to give DTV interference 
protection to commercial broadcasters' unreplicated service areas as of 
December 31, 2004. Thus, under the decision we reached in the R&O,

[[Page 65126]]

commercial broadcasters that did not replicate their NTSC Grade B 
service area as of that date left the unreplicated portions of their 
DTV service area unprotected in the DTV Table of Allotments against 
other DTV broadcasters seeking to maximize their own service areas or 
analog full or low-power broadcasters, including Class A licensees, 
seeking to expand the service area of their existing stations. We gave 
noncommercial DTV licensees until December 31, 2005 to replicate or 
lose interference protection.
    20. As we indicated above, upon reconsideration we have decided to 
temporarily defer until the next periodic review the replication 
deadlines established in the R&O. We agree with those petitioners who 
believe that, even as an incentive, a fixed date of 2004 (or 2005 for 
noncommercial stations) may be too soon to reasonably expect all 
stations to have constructed full replication facilities. However, 
during the next periodic review of the progress of the DTV transition, 
we will establish a new interference protection deadline that, as with 
the channel election deadline discussed above, may be earlier than but 
will not be later than the end of 2006 or the date by which a market 
meets the 85% digital penetration target, whichever is later. Our 
consideration of the issue of the appropriate interference protection 
deadline during the next periodic review will be informed by the 
progress that has occurred on issues such as band-clearing and 
recovering the spectrum for public safety use and other services.
    21. Under the approach we are adopting today, stations will be 
allowed, without loss of full service area protection, to commence 
digital operations by constructing and operating facilities that at 
least provide the required level of digital signal strength to their 
communities of license. This will allow stations to focus their 
energies initially on providing digital service to their core 
communities, while permitting them later to expand their coverage area 
as the DTV transition progresses. We believe that this approach more 
closely reflects the marketplace realities, such as DTV receiver 
penetration, upon which the financial decisions of broadcasters and 
those who offer them financing are based. Because of the large costs of 
building and operating digital facilities, we recognize that some 
broadcasters, and particularly those in smaller markets, may need to 
take a more graduated approach to implementing digital service. The 
requirement that broadcasters serve their communities of license will 
ensure that, for most stations, the majority of their analog service 
populations will receive initial digital service. Once all broadcast 
stations have commenced at least the minimal level of service to their 
communities, we believe that DTV set penetration levels will increase 
and marketplace forces will work to further speed the transition and 
provide an incentive to broadcasters to expand to provide service to 
outlying areas. We are hopeful that this approach will prompt 
broadcasters to build out to their allotted power in response to 
consumer demand and competition from other stations. Thus, we will 
continue to protect the replication service areas in the DTV Table of 
Allotments until the replication protection deadline we establish in 
our subsequent periodic review.
2. Maximization
    22. We agree with those petitioners that argue that licensees 
seeking to construct maximized DTV facilities should be treated the 
same for purposes of interference protection as licensees seeking to 
construct allotted DTV facilities. Our goal in permitting DTV stations 
to apply to maximize was to ensure that they could increase their DTV 
signal coverage and provide DTV service competitively within their 
respective markets. The Commission was particularly concerned that it 
not artificially limit the size of DTV service areas for UHF analog 
licensees as an artifact of UHF analog service constraints. In enacting 
the Community Broadcasters Protection Act of 1999, Congress recognized 
the importance of preserving the right of DTV stations to maximize and 
established specific measures to ensure the protection of maximized 
service areas against new Class A stations.
    23. The construction deadlines for remaining television licensees 
are May 1, 2002 (commercial) and May 1, 2003 (noncommercial), which are 
also the respective construction deadlines for outstanding construction 
permits for maximized facilities granted by the Commission. For the 
same reasons we temporarily deferred our regulatory replication 
incentive, we will continue to provide DTV interference protection for 
the time being to the maximized service area specified in outstanding 
DTV construction permits for facilities in excess of those specified in 
the DTV Table of Allotments. We intend in our next periodic review to 
establish a date by which broadcasters with authorizations for 
maximized digital facilities must either provide service to the 
coverage area specified in their maximization authorizations or lose 
DTV service protection to the uncovered portions of those areas. As 
with the channel election and replication deadlines for allotted DTV 
facilities discussed above, this deadline for completion of 
maximization facilities may be earlier than but will not be later than 
the latest of either the end of 2006 or the date by which 85% digital 
penetration is achieved.
    24. By the action we take today, we give DTV licensees seeking to 
maximize facilities the same flexibility to implement graduated 
construction plans as licensees of facilities specified in the DTV 
Table of Allotments. Thus, licensees seeking to maximize may choose 
initially to construct and operate digital facilities that provide 
service only to their communities of license while retaining assurance 
that the maximized coverage area will be available in the future, until 
the deadline established in the next periodic review. We agree that 
this flexibility is especially important for UHF analog licensees that 
may face greater financial difficulty in constructing digital 
facilities than their analog VHF counterparts. We believe that 
providing flexibility to stations seeking to maximize will help speed 
the transition by allowing them to implement digital service with less 
costly facilities initially while still providing service to their core 
communities. Once these digital stations are on air, we expect that 
consumer demand for digital sets and signals will increase and that 
marketplace forces will act to encourage these stations to expand 
service to their maximized coverage area.
3. DTV STAs
    25. Licensees must construct at least the minimum initial 
facilities required to serve their community of license by May 1, 2002 
(commercial) or May 1, 2003 (noncommercial). Licensees with an existing 
construction permit for a larger facility may elect to commence digital 
operation with a DTV facility that complies only with these minimum 
initial build-out requirements and is fully subsumed by the permitted 
facilities. We will also permit licensees that have not yet been 
granted a construction permit for allotted or maximized DTV facilities 
to request an STA to commence digital operation. Licensees choosing to 
request an STA should file their request with the Commission as early 
as possible and, in any event, at least 10 days before they plan to 
commence operation. The STA request must specify the technical 
facilities requested, including the

[[Page 65127]]

station's ERP, HAAT, antenna pattern, if any, geographic coordinates, 
and tower registration number, if any. The STA request must also 
include a certification that the facilities are in compliance with the 
FCC's rules and that the coverage in any direction does not exceed that 
resulting from the allotted parameters in Appendix B or in an 
outstanding construction permit. In this regard, we urge licensees to 
pay special attention to compliance with FAA and FCC tower 
requirements, the community of license coverage requirement, and the 
FCC's environmental rules governing radio frequency (``RF'') radiation.
    26. Once the Commission has granted a DTV STA request, the licensee 
or permittee will be authorized to commence digital service as 
specified in the STA. The Commission will make every effort to act on 
DTV STA requests within 10 days, absent oppositions or unusual 
circumstances. STAs will be granted for a period up to six months. The 
Commission delegates authority to the Mass Media Bureau to continue to 
extend STAs for additional periods not to exceed six months each until 
such time as the Commission determines otherwise (for example, by 
requiring that licensees either construct full replication or 
maximization facilities or relinquish interference protection). Under 
our rules, STAs are revocable at will.
    27. Commercial and noncommercial stations that are operating 
pursuant to a DTV STA by their respective construction deadlines (May 
1, 2002 or May 1, 2003) will be considered to have met this 
construction deadline, and their outstanding construction permits will 
be extended automatically until such time as the Commission determines 
otherwise (for example, by requiring that licensees either construct 
full replication or maximization facilities or relinquish interference 
protection). A copy of the STA issued by the FCC must be maintained in 
the station's local public inspection file. Periodically, the staff 
will issue public notices identifying the stations authorized to 
operate on DTV STAs and the parameters under which they are or will be 
operating. Stations operating pursuant to a DTV STA must comply with 
the enhanced community coverage requirement by December 2004 (December 
2005 for noncommercial stations). Until the Commission determines 
otherwise, we will continue to provide interference protection to the 
facilities specified in outstanding DTV construction permits issued to 
permittees operating pursuant to a DTV STA as of their applicable 
construction deadlines, in addition to protection to the allotted 
facilities.
C. City Grade Coverage
    28. In the Fifth R&O we allowed DTV licensees to build initial 
facilities that placed the required DTV service level over their 
principal community of license. In turn, the required DTV service level 
was based on the level of service that they would provide at the edge 
of their authorized service areas (i.e., at the edge of their NTSC 
Grade B contours) were they operating with full allotted DTV power and 
antenna height. In the R&O, we imposed a principal community coverage 
requirement that is stronger than the DTV service contour requirement 
that we adopted as an initial obligation in the Fifth R&O. We explained 
that the signal strength increase would improve the availability of 
service in the city of license and help prevent the migration of 
licensees from their community of license, thus furthering the purposes 
of section 307(b) of the Communications Act. The required level of 
service must be achieved by December 31, 2004 for commercial stations 
and December 31, 2005 for noncommercial stations. Operating DTV 
stations must be providing this level of service over their principal 
communities at that time.
    29. We have decided to retain our enhanced principal community 
signal strength standard. The purpose of our revised requirement is to 
improve the availability and reliability of DTV service in the 
community of license and provide an extra measure of protection from 
interference to DTV service in the community. In addition, by requiring 
a higher level of service over the community of license, we will limit 
the extent to which licensees can migrate from their current service 
contour. These goals are consistent with the fundamental obligation of 
licensees to serve the needs and interests of their communities of 
license.
    30. The 7dB increment in DTV service contour values that we adopted 
in the R&O was less than what we proposed in the NPRM. We explained 
that we chose a lower signal strength increase in order to provide 
broadcasters with flexibility in locating their transmitters while 
still improving the reliability of service to the community. While we 
recognized that some stations' currently authorized DTV facilities 
might not be able to encompass their principal communities with the 
increased city-grade signal level, we continue to believe that the less 
burdensome requirement that we adopted will not force many licensees to 
increase their power or to move their antenna. Even in cases where 
licensees have already constructed facilities that do not meet our 
increased city-grade coverage requirement, we believe that, given the 
location of most DTV towers, the cost of making the necessary changes 
to achieve compliance will be minimal in most instances.
D. Construction Deadlines
    31. Despite the arguments made by a number of petitioners, we 
decline to issue a blanket extension of the remaining DTV construction 
deadlines. As noted above, the NAB survey notes that more than two-
thirds of responding commercial stations expect to be on the air in 
digital format by May 2002. Thus, there is substantial evidence that 
the conversion is progressing and that television stations are working 
hard to construct digital facilities. In view of the number of stations 
that have already made a commitment to complying with our deadlines and 
that have made a substantial investment in conversion, we do not 
believe that a blanket extension of the remaining deadlines is 
appropriate. Further, given the reduced build-out requirements we adopt 
herein, and the clear additional protection we will afford stations 
meeting these requirements, we believe that a large number of the 
stations that did not anticipate meeting the deadline will now be able 
to do so. One leading manufacturer, for instance, states that it can 
equip a small market station with minimal DTV facilities (500 watts) 
for less than $160,000, depending upon the size of the coverage area or 
other signal propagation characteristics.
    32. It is possible, however, that a number of stations will not be 
in a financial position to provide digital service by next May, even 
with the reduced initial build-out requirements, and will be forced to 
request an extension of time to construct. In view of the limited 
financial resources of many of these stations, we believe that it is 
appropriate at this time to reconsider our standards for granting DTV 
extension requests.
    33. In the Fifth R&O, we announced our willingness to grant, on a 
case-by-case basis, an extension of the applicable DTV construction 
deadline where a broadcaster has been unable to complete construction 
due to circumstances that are either unforeseeable or beyond the 
permittee's control, provided the broadcaster has taken all reasonable 
steps to resolve the problem expeditiously. We indicated that 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

[[Page 65128]]

zoning or FAA approvals, or similar constraints, or the lack of 
equipment necessary to transmit a DTV signal. We stated explicitly that 
we did not anticipate that the circumstances of ``lack of equipment'' 
would include the cost of such equipment. However, we also stated that 
we would take into account problems encountered that are unique to DTV 
conversion and would modify our existing policies regarding extensions 
accordingly.
    34. As indicated by a number of petitioners and commenters, we 
recognize that some broadcasters, despite their reasonable good faith 
efforts, may not be in a financial position to timely complete the 
construction of their DTV facilities. We also recognize that, 
particularly for stations in smaller markets, the capital costs of 
conversion may be very high relative to the station's anticipated 
revenue. As a result, stations with lower revenues may find it more 
difficult to cover these costs in time to meet the construction 
deadline.
    35. For many broadcasters, these financial obstacles will be 
alleviated by the reduced initial build-out requirements we have 
adopted today. We expect that even smaller market stations generally 
should be able to afford to finance the minimum DTV facilities required 
under our rules. Some broadcasters, however, may be unable to complete 
construction of even these minimum permitted facilities by the 
applicable deadline. Accordingly, we have determined that we will 
consider, on a case-by-case basis, in addition to the extension 
criteria outlined in the Fifth R&O, whether a broadcaster should be 
afforded additional time to construct its DTV facilities because the 
cost of meeting the minimum build-out requirements exceeds the 
station's financial resources. To qualify under this standard, the 
applicant must provide an itemized estimate of the cost of meeting the 
minimum build-out requirements and a detailed statement explaining why 
its financial condition precludes such an expenditure. We caution 
broadcasters that a brief downturn in the economy or advertising 
revenues will not be considered a sufficient showing of financial 
hardship. Rather, the showing must reflect the particular station's 
financial status over an economically significant period of time. In 
addition, the applicant must detail its good faith efforts to meet the 
deadline, including its good faith efforts to obtain the requisite 
financing, and explain why those efforts were unsuccessful. To the 
extent that the applicant's description of its financial condition sets 
forth information that is proprietary and not customarily disclosed to 
the public, the applicant may request that the Commission treat the 
information as confidential. Applicants must retain underlying 
documentation fully detailing and supporting their financial 
representations as well as any steps taken to overcome the 
circumstances preventing construction. Applicants will also be required 
to indicate when they reasonably expect to complete construction.
    36. Applicants seeking an extension of time to construct a digital 
television station must file their extension request with the 
Commission at least sixty days, but no more than ninety days, prior to 
the applicable construction deadline. The Mass Media Bureau will issue 
a standard form (FCC Form 337) to be used to apply for an extension of 
time to construct a DTV station. As under the current standard, the 
Commission staff may grant no more than two extensions to any 
permittee, each for a period not exceeding six months. We direct the 
Mass Media Bureau to examine closely each extension request under the 
standards we adopt today, and promptly to notify applicants of any 
denial of an extension so that the applicant can timely complete 
construction in order to meet the applicable construction deadline. 
Subsequent extension requests will be referred to the Commission.
E. Mutually Exclusive Applications
    37. In the R&O, we decided to take a bifurcated approach to cut-off 
protection for DTV area expansion applications. With respect to all 
currently pending DTV expansion applications, we established cut-off 
protection as of the date of the adoption of the R&O (January 18, 
2001). Thus, all DTV expansion applications pending as of the adoption 
date of the R&O are cut off and protected against later-filed DTV 
applications. We explained in the R&O that this approach would provide 
a measure of fairness to all applicants that filed DTV expansion 
applications prior to the adoption of the R&O by allowing all of them 
to be considered as part of one cut-off group. As for future DTV 
expansion applications filed after the adoption date of the R&O, we 
determined we would consider such applications cut-off as of the close 
of business on the day they are filed. We concluded that day-to-day 
cut-off processing for new DTV expansion applications would help to 
avoid a larger number of mutually exclusive (``MX'') applications and 
thus expedite processing of these applications and the provision of DTV 
service to the public. Day-to-day cut-off procedures also encourage 
potential applicants to file quickly for improved facilities, thereby 
speeding the introduction of improved DTV service to the public.
    38. We find no reason to reverse our decision in this area. Our 
justification for adopting a single cut-off date rather than to utilize 
first-come first-serve processing with respect to the hundreds of 
pending DTV applications has not changed. In the R&O, we found that the 
main advantage of first-come first-serve processing--the elimination of 
mutually exclusive (MX) applications--would not be achieved in this 
case, as a large number of pending DTV applications were filed on 
certain critical DTV filing dates. Therefore, even if we were to have 
applied first-come first-serve processing, it would not have resulted 
in the elimination of numerous MX groups of applications that were 
filed on these dates. While Paxson and Fox both maintain that only a 
few of their applications were filed on these key dates, this does not 
change the fact that numerous other parties did file applications on 
those dates resulting in a large number of MX groups.
    39. We reject Paxson and Fox's argument that adopting a single cut-
off date was contrary to customary Commission processing procedures. As 
Barry Telecommunications, Inc. notes, the Commission has adopted a 
variety of different processing schemes over the years, each time 
determining that the particular scheme was appropriate for the service 
and circumstances in question, including single cut-off date lists, 
filing windows and first-come first-serve processing. Under the 
circumstances in this case, our approach to processing pending DTV 
applications, which balanced the needs of the licensees, the public and 
our interest in the orderly administration of spectrum, did not diverge 
from our prior practices.
    40. As further justification for our decision, we recognized that 
there was an extended period of time over the several months leading to 
the adoption of the R&O during which we permitted DTV applications to 
be filed without indication that applicants needed to expedite their 
filings or lose out on an opportunity to expand their DTV allotments. 
Therefore, we found that first-come first-serve processing would 
unfairly prejudice those licensees, particularly smaller market and 
noncommercial educational licensees, that, as permitted, waited until 
their later deadlines to file their DTV applications. Contrary to the 
arguments raised by Paxson and Fox, we continue to find that the 
equities favor processing of the hundreds of DTV applications,

[[Page 65129]]

including expansion applications, which were timely filed in reliance 
on the Commission's processing system. Barry notes that the 
Commission's DTV processing system included publication of deadlines 
for the filing of DTV applications that would be considered on an equal 
footing with prior filings. Noncommercial educational licensees like 
Barry have invested substantial resources in their proposals and we 
agree that Paxson's and Fox's proposals are no more entitled to 
priority consideration than these later-filed applications. As Barry 
points out, the Commission never provided any applicant assurance of 
protection beyond that which was provided in the DTV Table of 
Allotments. Any applicant that is trying to maximize its allocation was 
never guaranteed success on that filing and has no claim to favorable 
action based simply on the timing of its application. Having considered 
and rejected the arguments of the petitioners, we affirm our 
application of a single cut-off date to the DTV applications pending on 
January 18, 2001.
    41. In the R&O, we gave priority to pending DTV expansion 
applications over all NTSC applications except NTSC applications that 
fell into one of three special categories--post-auction applications, 
applications proposed for grant in pending settlements, and any 
singleton applications cut-off from further filings. These applications 
must have been accepted for filing in order to be protected from DTV 
expansion applications. We stated that, in the future, when an 
applicant files a DTV expansion application, it must determine whether 
there are NTSC applications on file in any of the three categories and 
provide interference protection to them. As for pending DTV expansion 
applications, when one conflicts with an NTSC application in one of 
these categories, we stated that we would treat the applications as 
mutually exclusive (``MX'') and follow the procedures adopted in the 
R&O for MX applications--that is, we will require that the parties 
resolve their MX within 90 days or we will subsequently dismiss both 
applications.
    42. We revise the procedures announced in the R&O in the following 
respects. First, we note that, by application of section 309(l) of the 
Communications Act, pending NTSC application groups on file prior to 
July 1, 1997, are entitled to compete in an auction that does not 
include applications filed on or after July 1, 1997. Therefore, 
pursuant to that statutory directive, we may not find DTV expansion 
applications (all of which were filed after June 30, 1997) to be 
mutually exclusive with NTSC application groups on file prior to July 
1, 1997, regardless of whether these groups involve locations inside or 
outside the freeze areas or whether or not the groups have been 
settled. This is the case also where there is an NTSC application that 
was cut-off as part of a group of NTSC applications filed before July 
1, 1997, but that is now a singleton because the other applications in 
the group have been dismissed. NTSC applications in these two 
categories shall be protected against DTV maximization applications. We 
believe these revisions to the procedure address the concerns of KM and 
ALF. DTV maximization applicants will be permitted to file minor 
amendments to resolve conflicts with NTSC applications in these 
categories. In addition, our decision today does not affect the ability 
of those DTV broadcasters whose maximization applications may interfere 
with NTSC applications in these categories from applying to maximize at 
the close of the transition on their analog allotment.
F. Technical Issues
    43. We have adopted a 2 percent de minimis interference standard 
for changes to DTV stations and allotments. In his petition for 
reconsideration, Donald G. Everist (Everist) seeks clarification 
regarding the analysis the Commission uses for determining whether the 
amount of interference caused by a DTV application to another DTV 
station is de minimis. Specifically, Everist is concerned with 
protection to a DTV station that has been authorized facilities that 
cover more people than the station's underlying DTV allotment (the 
Appendix B population) (DTV Table of Allotments, Second Memorandum 
Opinion and Order on Reconsideration of the Fifth and Sixth Report and 
Orders, 64 FR 4322, January 28, 1999, at Appendix B). Everist notes 
that predicted interference is to be determined to any people in the 
station's increased service area but indicates that the current 
Commission analysis seems to compare that interference population with 
the smaller Appendix B population to determine if the interference 
exceeds the 2% de minimis standard.
    44. We clarify that the analysis comparison in this situation is to 
the station's Appendix B population, as Everist surmised. To the extent 
he is implying that the analysis should be changed, such a suggestion 
is beyond the scope of this reconsideration. The analysis was not 
adopted, altered, or even explained in the R&O. Furthermore, midstream 
changes to the analysis process raise issues of fair and consistent 
treatment of applicants and stations. It may be appropriate to consider 
a new approach at the time that protection of the Appendix B allotment 
ends. As decided elsewhere in this document, we are not currently 
establishing a date to end protection of that ``replication'' facility.
    45. Fox also seeks clarification concerning the DTV interference 
analysis for determining that other DTV stations are protected. Fox 
urges the Commission to ``only protect the stronger of either the 
allotted facilities or the currently authorized facilities.'' Fox 
contends that protecting both makes the computation of protection 
unnecessarily complex by requiring analysis of all possible 
combinations of station facilities.
    46. As Fox requests, we clarify that protection need not be 
determined for authorized DTV facilities that are smaller than, and 
encompassed by, the corresponding DTV allotment facilities. 
Specifically, applicants need not determine that protection is provided 
to other DTV station applications or authorizations that meet the 
technical criteria for ``checklist'' processing. The technical 
``checklist'' criteria are: (1) proposed transmitter site within 5.0 
kilometers of underlying DTV allotment reference coordinates, (2) 
proposed antenna HAAT not exceeding underlying DTV allotment HAAT by 
more than 10 meters, and (3) proposed ERP in every azimuthal direction 
not exceeding underlying DTV allotment ERP for that direction, (with a 
small ERP adjustment if the proposed HAAT differs from the DTV 
allotment HAAT). In general, a ``checklist'' application will produce a 
DTV service area that is contained within the replication service area 
of the underlying DTV allotment. In addition to ``checklist'' 
applications and authorizations, there are applications and resulting 
DTV authorizations that are considered ``checklist-like.'' These 
applications and authorizations do not meet one or more of the 
technical ``checklist'' criteria, but produce a DTV service area that 
is contained with the replication service area of the underlying DTV 
allotment. As with ``checklist'' applications and authorizations, 
``checklist-like'' applications and authorization need not be protected 
by applications from other DTV stations. Protection of the underlying 
DTV allotment is required.
    47. We note that the Fox request also could be interpreted to 
request a more extensive limitation on the DTV facilities that must be 
protected, and we do not find such a limitation warranted.

[[Page 65130]]

For example, a DTV station might have authorized facilities that are 
neither ``checklist'' nor ``checklist-like,'' where such authorization 
extends the underlying DTV allotment service contour in some directions 
and contracts the service contour in other directions. Under such a 
circumstance, the authorized contour would not be entirely contained 
within the allotment contour and conversely, the allotment contour 
would not be entirely contained within the authorized contour. One 
interpretation of the Fox request would be to only protect the 
authorized service if it reaches more people or area than the 
allotment. Similarly, that interpretation would only protect the 
allotment service if it reaches more people or area than the authorized 
facility. For two reasons, we are not accepting this more limited 
protection calculation. First, it is inconsistent with our decision in 
the replication section of the R&O. There we decide to continue to 
protect DTV allotment service. The Fox proposal would only continue 
that allotment protection if that service area or population is larger 
than the authorized (or applied for) service. Second, where a DTV 
authorization allows a service area to be shifted from the DTV 
allotment service area, we do not believe it is fair or appropriate to 
deny protection to that authorized service area if it reaches fewer 
people or less overall area than the allotment facility would reach.
    48. We have established tables and formulas for determining maximum 
effective radiated power (ERP) limits for various antenna heights, 
channels and zones. In the R&O, we clarified our process for applying 
an alternative determination of a DTV station's maximum ERP based on 
matching the coverage area of the largest station in the market. We 
indicated that the provision is triggered only where a station in a 
market is covering a larger area than could be covered with standard 
maximum power and antenna height. KM seeks additional clarification 
regarding the reference to standard maximum power and antenna height, 
asking if it refers to the largest station in the market or to the DTV 
station proposing to maximize. KM also asks if the standard refers to 
the DTV Table of Allotment parameters, or some other parameters that 
may be permitted under the Commission's rules.
    49. We clarify that the standard maximum facilities are the power 
and antenna height limits specified in Sec. 73.622(f)(6)-(8) of our 
Rules. For example, for UHF DTV stations, the standard maximum ERP is 
1000 kilowatts (kW) if the antenna HAAT is 365 meters (m) or less (365 
m is approximately 1200 feet). For antennas located at higher HAATs, 
the standard maximum ERP is reduced, with the standard maximum UHF DTV 
ERP being 750 kW at an HAAT of 425 m and 316 kW at 610 m. We also 
clarify that the largest station provision is applied when a DTV 
application requests an ERP greater than the rule allows for its 
requested HAAT on its channel. Thus it is the standard maximum ERP of 
the DTV station proposing to maximize that triggers applicability of 
the ``largest station'' provision.
G. DTV Translators and Repeaters
    50. As we stated in the R&O, while we recognize the desire to 
initiate DTV operations on translator and booster facilities, we 
believe there are fundamental issues surrounding their authorization 
and protection that must be addressed in a more comprehensive manner 
than can be accomplished based on the limited record on this issue in 
this proceeding. Accordingly, we will defer consideration of these 
issues to a separate rulemaking proceeding on digital LPTV, translator 
and booster stations. We hope to initiate this proceeding in the near 
future.

IV. Conclusion

    51. In this MO&O, we revise a number of the determinations we made 
in the R&O to ensure continued progress in the transition to digital 
broadcasting. By temporarily deferring the channel election and 
replication deadlines established in the R&O, and by extending 
interference protection to maximized service areas, our intention is to 
prioritize those elements that are most important to the DTV 
transition. Our primary goal is to maximize the number of DTV stations 
on the air and provide service to most, if not all, consumers. We 
believe that our actions today will help further the transition and 
promote the goal of replication by increasing the number of DTV 
stations on the air and the number of DTV receivers in the hands of 
consumers. Once set penetration rates increase, we believe that 
marketplace forces will provide further incentives that will result in 
the expansion of DTV service in the future.

V. Administrative Matters

    52. Regulatory Flexibility Analysis. Pursuant to the Regulatory 
Flexibility Act of 1980, as amended, the Commission's Supplemental 
Final Regulatory Flexibility Analysis has been completed and attached.
    53. Paperwork Reduction Act Analysis. The actions taken in this 
MO&O have been analyzed with respect to the Paperwork Reduction Act of 
1995 (``Act'') and found to impose new or modified reporting and 
recordkeeping requirements or burdens on the public. Implementation of 
these new or modified reporting and recordkeeping requirements will be 
subject to approval by the Office of Management and Budget (``OMB'') as 
prescribed by the Act.
    54. Comments. As part of our continuing effort to reduce paperwork 
burdens, we invite the general public to take this opportunity to 
comment on the information collections contained in this MO&O, as 
required by the Paperwork Reduction Act of 1996. Public and agency 
comments are due February 19, 2002. 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) ways to 
enhance the quality, utility, and clarity of the information collected; 
and (c) 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, 445 Twelfth Street, S.W., Room C-1804, 
Washington, D.C. 20554, or via the Internet to [email protected] and to 
Edward Springer, OMB Desk Officer, 10236 NEOB, 725 17th Street, N.W., 
Washington, D.C. 20503 or via the Internet to 
[email protected].

Supplemental Final Regulatory Flexibility Analysis

    55. As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice 
of Proposed Rule Making (NPRM) and a Final Regulatory Flexibility 
Analysis (FRFA) was incorporated in the R&O. The Commission sought 
written public comment on the proposals in the NPRM, including comment 
on the IRFA. No comments were received in response to the IRFA or the 
FRFA. The present Supplemental Final Regulatory Flexibility Analysis 
(``Supplemental FRFA'') conforms to the RFA.

[[Page 65131]]

A. Need for, and Objectives of, the Memorandum Opinion and Order on 
Reconsideration

    56. In January 2001, we released an R&O and Further Notice of 
Proposed Rule Making in MM Docket 00-39 (66 FR 9973, February 13, 2001) 
(R&O), addressing a number of issues related to the conversion of the 
nation's broadcast television system from analog to digital television 
(DTV). Among the issues addressed in the R&O were: when to require 
election by licensees of their post-transition DTV channel; whether to 
require replication by DTV licensees of their NTSC Grade B service 
contours (thereby providing coverage to those who receive the station's 
analog signal); whether to require DTV licensees to place enhanced 
service contours over their principal communities (thereby serving 
these communities with a stronger signal); and how we should process 
mutually exclusive applications. We expressed our belief that 
resolution of these issues would provide licensees with a measure of 
certainty that would help them plan facilities, order equipment, and 
arrange for construction of facilities, all of which will speed the 
transition to digital service.
    57. We received a number of petitions for reconsideration of the 
R&O. In this Memorandum Opinion and Order on Reconsideration (MO&O), we 
revise a number of the determinations we made in the R&O, affirm other 
decisions, and provide clarification of certain rules and policies. We 
also modify, on our own motion, the minimum hours of operation of 
certain DTV stations and establish guidelines for television stations 
that may seek an extension of our May 1, 2002 and May 1, 2003 deadlines 
for construction of DTV facilities. We will resolve several major 
technical issues raised in the R&O and Further Notice of Proposed Rule 
Making, including the issues of receiver performance standards, DTV 
tuners, revisions to certain components of the DTV transmission 
standard, and labeling requirements for television receivers, in a 
separate Report and Order.

B. Summary of Significant Issues Raised by Public Comments

    58. No comments were received in response to the IRFA, and no 
petitions or comments were received in response to the FRFA contained 
in the R&O. However, a number of parties that filed petitions for 
reconsideration or comments in response to the R&O and Further Notice 
of Proposed Rule Making raised concerns about the impact of the channel 
election and replication protection deadlines on broadcasters, and 
particularly broadcasters in smaller television markets. Generally, 
smaller market broadcasters assert that they will not be able to obtain 
the financing to construct DTV facilities sufficient to replicate their 
analog service area, and that they will not have sufficient operational 
experience by December 2004 (the channel election deadline for 
commercial stations) to determine which core channel is superior for 
DTV transmission.
    59. In this MO&O, we respond to these concerns by allowing stations 
to construct more minimal initial DTV facilities designed to serve 
their communities of license while still retaining, for the time being, 
DTV interference protection to the full replication facility. We also 
temporarily defer the deadline by which broadcasters with two in-core 
allotments (television channels 2-52) must elect which channel they 
will eventually use for DTV at the end of the transition. In our next 
periodic review of the progress of the DTV transition, the Commission 
intends to establish a firm date by which broadcasters must either 
replicate their NTSC service areas or lose DTV service protection of 
the unreplicated areas, and by which broadcasters with two in-core 
allotments must elect which channel they will use post-transition. 
These replication protection and channel election deadlines may be 
earlier than but will in no event be later than the latest of either 
the end of 2006 or the date by which 85% of the television households 
in a licensee's market are capable of receiving the signals of digital 
broadcast stations. In addition, we also allow DTV stations required to 
complete construction of DTV facilities by May 1, 2002 or May 1, 2003 
to operate initially at a reduced schedule by providing, at a minimum, 
a digital signal during prime time hours, consistent with their 
simulcast obligations. In order to provide parity to analog UHF 
stations, we will also allow stations to construct initial DTV 
facilities that serve their principal communities while retaining DTV 
interference protection to their maximized service areas for the time 
being, subject to the interference protection deadline we intend to 
establish in the next periodic review.
    60. We do not alter, however, our decision to require stations to 
provide a stronger DTV signal to their communities of license than that 
adopted as an initial requirement in the Fifth R&O in MM Docket 87-268 
63 FR 135461, May 29, 1998). As established in the R&O, this new city-
grade service requirement will become effective December 31, 2004 for 
commercial stations and December 31, 2005 for noncommercial stations. 
The majority of petitioners that addressed this issue did not object to 
the Commission's increased city grade signal requirement as long as it 
was implemented in conjunction with a waiver policy that affords 
broadcasters flexibility in certain circumstances. Some commenters 
pointed out that broadcasters face many different configurations of 
terrain and geography, not all of which lend themselves to siting 
towers that both provide the widest possible service and cast a 
stronger signal over the principal community. Other commenters noted 
that some broadcasters have already built DTV facilities that may have 
to be moved or expensively reconfigured to meet the new principal 
community coverage requirement.
    61. The purpose of the stronger city-grade signal strength 
requirement is to improve the availability and reliability of DTV 
service in the community of license and provide an extra measure of 
protection from interference to DTV service in the community. In 
addition, by requiring a higher level of service over the community of 
license, we will limit the extent to which licensees can migrate from 
their current service contour. These goals are consistent with the 
fundamental obligation of licensees to serve the needs and interests of 
their communities of license. The 7dB increment in DTV service contour 
values that we adopted in the R&O was less than what we proposed in the 
NPRM. We explained that we chose a lower signal strength increase in 
order to provide broadcasters with flexibility in locating their 
transmitters while still improving the reliability of service to the 
community. While we recognized that some stations' currently authorized 
DTV facilities might not be able to encompass their principal 
communities with the increased city-grade signal level, we continue to 
believe that the less burdensome requirement that we adopted will not 
force many licensees to increase their power or to move their antenna. 
Even in cases where licensees have already constructed facilities that 
do not meet our increased city-grade coverage requirement, we believe 
that, given the location of most DTV towers, the cost of making the 
necessary changes to achieve compliance will be minimal in most 
instances.
    62. We also received comments and petitions requesting an extension 
of the remaining deadlines (May 1, 2002 commercial and May 1, 2003 
noncommercial) to complete

[[Page 65132]]

construction of DTV facilities. Generally, these parties argue that 
stations in smaller markets need additional time to plan and construct 
their DTV facilities given the expense involved in conversion and the 
lower level of profitability of these stations. Petitioners also argue 
that it is unreasonable to expect small market broadcasters to commence 
digital service in the midst of the uncertain market conditions created 
by, among other things, the issues surrounding the DTV transmission 
standard and the low rate of DTV receiver penetration. In addition, 
parties claim that many stations have yet to receive their DTV permits 
with only a few months left before the construction deadline, which has 
made it difficult for broadcasters to schedule highly-demanded tower 
construction crews and to coordinate the purchase of costly equipment. 
Several petitioners support extending the construction deadline to May 
1, 2003 (the same deadline as noncommercial educational stations) for 
stations in markets 50-100, and to May 1, 2004 for stations in markets 
above 100. Others propose tying build-out requirements to a market-
defined milepost, such as DTV receiver penetration levels.
    63. In response to these views, we modify in the MO&O our 
guidelines for television stations that may seek an extension of our 
May 1, 2002 and May 1, 2003 deadlines for construction of DTV 
facilities, making extensions available to broadcasters that can 
demonstrate that the cost of meeting the minimum build-out requirements 
exceeds the station's financial resources.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Apply

    64. 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 rules. The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act. A small 
business concern is one that: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA).
    65. Small TV Broadcast Stations. The SBA defines small television 
broadcasting stations as television broadcasting stations with $10.5 
million or less in annual receipts.
    66. The digital television rules we address in the MO&O apply to 
commercial and noncommercial television stations. There are 
approximately 1,304 existing commercial television stations and 374 
existing noncommercial television stations of all sizes that may be 
affected by the digital television rules addressed in the MO&O.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    67. The MO&O directs the FCC's Mass Media Bureau to issue a 
standard form (FCC Form 337) to be used to apply for an extension of 
time to construct a DTV station. We estimate that it will take 
applicants 1 hour and 30 minutes to complete the form.

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

    68. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.
    69. We made a number of determinations in the R&O that we believed 
would further progress on the transition from analog to digital 
television. Among other things, we established a deadline of December 
31, 2003 by which commercial television stations that have both their 
NTSC and DTV operations on in-core channels must elect which of their 
two core channels to use for DTV operations after the transition. We 
gave non-commercial stations that have both their NTSC and DTV 
operations on in-core channels until the end of 2004 to elect their 
post-transition DTV channel. We determined that this early channel 
election would allow us to identify more quickly channels that will be 
available to accommodate DTV licensees with out-of-core transition 
channels as well as new entrants. In addition, to provide broadcasters 
with an incentive to provide full replication of NTSC coverage with DTV 
service, we determined that, after December 31, 2004, whatever portion 
of a commercial broadcaster's NTSC Grade B contour is not replicated 
with its digital television signal will cease to be protected in the 
DTV Table of Allotments. Noncommercial DTV licensees were given until 
December 31, 2005 in which to replicate or lose such DTV interference 
protection.
    70. Upon further consideration, we determine in the MO&O that the 
channel election and replication requirements may be imposing 
substantial burdens on broadcasters, and especially on smaller 
stations, without sufficient countervailing public benefits, and may in 
fact be contributing to difficulties faced by a substantial number of 
stations, particularly smaller stations, in meeting their DTV 
construction deadlines. A survey conducted by NAB indicates that 
slightly less than one-third of all stations responding to the NAB 
survey anticipate that they will not be able to provide a digital 
signal by the May 2002 deadline. A larger percentage (81.9%) of 
responding stations in the top 50 markets (larger market stations) 
anticipate that they will meet the deadline, while a smaller percentage 
(49.1%) of stations in markets 100 and above (smaller-market stations) 
indicated they will complete construction on time. Three-quarters of 
those stations that do not anticipate meeting the May 2002 deadline 
indicated they plan to seek an extension of this deadline from the FCC. 
Generally, smaller market broadcasters that filed petitions in this 
proceeding assert that they are unable to obtain financing to construct 
DTV facilities sufficient to replicate their analog service area. These 
broadcasters also claim that they will not have sufficient operational 
experience by December 2004 to determine which core channel is superior 
for DTV transmission. Broadcasters that are not capable of constructing 
full replication facilities by the deadline established in the R&O may 
be postponing construction altogether.
    71. Upon reconsideration, we decide in the MO&O to allow stations 
to construct initial DTV facilities designed to serve at least their 
communities of license, while still retaining DTV interference 
protection to provide full replication until such deadline as the 
Commission shall establish in its next periodic review of the progress 
of the DTV transition. Thus, we temporarily defer both the replication 
protection and channel election deadlines we established in the R&O. In 
our next periodic review of the progress of the

[[Page 65133]]

DTV transition, the Commission intends to establish a firm date by 
which broadcasters must either replicate their NTSC service areas or 
lose DTV service protection of the unreplicated areas, and by which 
broadcasters with two in-core allotments must elect which channel they 
will use post-transition. These replication protection and channel 
election deadlines may be earlier than but will in no event be later 
than the latest of either the end of 2006 or the date by which 85% of 
the television households in a licensee's market are capable of 
receiving the signals of digital broadcast stations. In order to 
provide parity to analog UHF stations, many of which are smaller 
stations, we will also allow stations to construct initial facilities 
that serve their principal communities while retaining DTV interference 
protection to their maximized service areas until the maximization 
deadline to be established by the Commission in its next periodic 
review. This alternative significantly reduces the costs associated 
with constructing and operating initial DTV facilities as compared to 
the requirements adopted in the R&O.
    72. In contrast, the Commission could have retained its channel 
election and replication protection deadlines established in the R&O. 
However, we have determined that those deadlines may be too burdensome, 
and that the Commission should reexamine what deadlines are appropriate 
in its next periodic review in light of the record developed in the 
interim regarding the progress of the DTV transition. The alternative 
selected herein works to benefit smaller stations by facilitating their 
compliance with the May 1, 2002 (commercial) and May 1, 2003 
(noncommercial) construction deadlines.
    73. The MO&O also allows stations required to construct and operate 
DTV facilities by May 1, 2002 or May 1, 2003 to operate initially in 
digital format at a reduced schedule by providing, at a minimum, a 
digital signal during prime time hours, consistent with their simulcast 
obligations. This alternative also significantly reduces the costs 
associated with initial operation of DTV facilities for these smaller 
stations. In contrast, the Commission could have retained the 
requirement for these stations that they operate in digital format 
whenever they transmit in analog format, greatly increasing their 
costs. Although the Commission considered reducing the minimum 
operating hours for all digital stations, we believe that the prime 
time obligation adopted in the MO&O for smaller stations appropriately 
balances our concern to reduce the burden on these broadcasters where 
possible with our goal of furthering progress in the transition to 
digital broadcasting.
    74. In addition, in the MO&O we modify our guidelines for 
television stations that may seek an extension of the DTV construction 
deadlines. In the Fifth R&O, we announced our willingness to grant, on 
a case-by-case basis, an extension of the applicable DTV construction 
deadline where a broadcaster has been unable to complete construction 
due to circumstances that are either unforeseeable or beyond the 
permittee's control, provided the broadcaster has taken all reasonable 
steps to resolve the problem expeditiously. We indicated that 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. We stated explicitly that we did not 
anticipate that the circumstances of ``lack of equipment'' would 
include the cost of such equipment.
    75. As indicated by a number of petitioners and commenters, we 
recognize that some broadcasters, despite their reasonable good faith 
efforts, may not be in a financial position to timely complete the 
construction of their DTV facilities. Many stations are finding it 
difficult to obtain the substantial sums required to construct digital 
television facilities. Many stations are also experiencing decreasing 
revenues in part as a result of the slowdown in the overall economy, 
which has slowed even further in the wake of the events of September 
11, 2001. We also recognize that, particularly for stations in smaller 
markets, the capital costs of conversion may be very high relative to 
the station's anticipated revenue. As a result, stations with lower 
revenues may find it more difficult to cover these costs in time to 
meet the construction deadline.
    76. For some broadcasters, these financial obstacles may be 
alleviated by the reduced initial build-out requirements adopted in the 
MO&O. Other broadcasters, however, may be unable, for purely financial 
reasons, to complete construction of even these minimum permitted 
facilities by the May 1, 2002 deadline. Accordingly, in the MO&O we 
determine that we will consider, on a case-by-case basis, in addition 
to the extension criteria outlined in the Fifth R&O, whether a 
broadcaster should be afforded additional time to construct its DTV 
facilities because the cost of meeting the minimum build-out 
requirements exceeds the station's financial resources. This new waiver 
standard should be particularly beneficial to smaller market 
broadcasters and those with fewer resources.
    77. This relaxation of our extension standard will benefit small 
entities by giving additional leeway to stations in smaller markets 
that need more time to construct because of their lower revenues. By 
permitting these stations to delay the transition for a brief period of 
time, they will be able to spread the large investments needed to 
convert over more years. By delaying the transition for a short period 
for those stations that face the greatest financial challenges, these 
stations may also benefit from further progress overall in the 
transition, including greater consumer demand for digital television 
signals and greater advertising revenue.
    78. We considered but declined in the MO&O to issue a blanket 
extension of the remaining DTV construction deadlines. It appears that 
more than two-thirds of commercial stations will be on the air in 
digital format by May 2002. Thus, there is substantial evidence that 
the conversion is progressing and that television stations are working 
hard to construct digital facilities. In view of the number of stations 
that have already made a commitment to complying with our deadlines and 
that have made a substantial investment in conversion, we do not 
believe that a blanket extension of the remaining deadlines is 
appropriate. Further, given the reduced build-out requirements we adopt 
herein, and the clear additional protection we will afford stations, 
including smaller stations, meeting these requirements, we believe that 
many of the stations that did not anticipate meeting the deadline will 
now be able and willing to do so.

Report to Congress

    79. The Commission will send a copy of the MO&O, including this 
Supplemental FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the MO&O, including the Supplemental FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the MO&O and Supplemental FRFA (or 
summaries thereof) will also be published in the Federal Register.

VI. Ordering Clauses

    80. Pursuant to authority contained in sections 1, 4(i), 303, and 
336(f) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
154(i), 303,

[[Page 65134]]

and 336(f), Part 73 of the Commission's rules, 47 CFR Part 73, ARE 
AMENDED as set forth in the Rule Changes below.
    81. The amendments set forth in the Rule Changes SHALL BE EFFECTIVE 
February 19, 2002. FCC Form 337 contains information collection 
requirements that have not been approved by OMB. Public and agency 
comments on these information collections are due February 19, 2002. 
The FCC will publish a document announcing the effective date of FCC 
Form 337 once OMB approval is received.
    82. The petitions for reconsideration or clarification received in 
response to the R&O Are Granted to the extent provided herein and 
otherwise Are Denied.
    83. The Commission's Consumer Information Bureau, Reference 
Information Center, Shall Send a copy of this MO&O, including the 
Supplemental Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.
    84. This proceeding Is Terminated.

List of Subjects in 47 CFR Part 73

    Television, broadcasting.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.

Rule Changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 73 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, and 336.


    2. Section 73.623 is amended by revising paragraph (h) to read as 
follows:


Sec. 73.623  DTV applications and changes to DTV allotments.

* * * * *
    (h) DTV Application Processing. (1) DTV applications for a 
construction permit or a modified construction permit pending as of 
January 18, 2001:
    (i) Shall be afforded the interference protection set forth in 
paragraph (c) or (d) of this section, as applicable:
    (A) By all NTSC minor change applications;
    (B) By NTSC new station applications, except those covered by 
paragraphs (h)(1)(ii)(G) and (h)(1)(iii)(D) of this section;
    (C) By all rulemaking petitions to amend the NTSC TV table of 
allotments;
    (D) By DTV applications filed after January 18, 2001; and
    (E) By rulemaking petitions to amend the DTV table of allotments 
filed after January 18, 2001;
    (ii) Must demonstrate the requisite interference protection set 
forth in paragraph (c) or (d) of this section, as applicable, to:
    (A) DTV licensed stations;
    (B) DTV construction permits;
    (C) Existing DTV allotments;
    (D) Rulemaking petitions to amend the DTV table of allotments for 
which a Notice of Proposed Rule Making has been released and the 
comment deadline specified therein has passed prior to the filing date 
of the DTV application;
    (E) NTSC stations with licenses covering construction permits that 
were granted before the DTV application was filed;
    (F) NTSC construction permits that were granted before the DTV 
application was filed;
    (G) Applications for new NTSC television stations that were in 
groups of mutually exclusive applications on file prior to July 1, 
1997, regardless of whether they are the only applications that remain 
pending from their group.
    (iii) That do not provide the requisite interference protection set 
forth in paragraph (c) or (d) of this section, as applicable, to the 
following applications and petitions will be deemed mutually exclusive 
with those applications and petitions:
    (A) Other DTV applications pending as of January 18, 2001;
    (B) Rulemaking petitions to amend the DTV table of allotments filed 
on or before January 18, 2001 for which a Notice of Proposed Rule 
Making had been released and the comment deadline specified therein had 
not passed prior to the filing date of the DTV application;
    (C) Rulemaking petitions to amend the DTV table of allotments filed 
on or before January 18, 2001 for which a Notice of Proposed Rule 
Making had not been released; and
    (D) Applications for new NTSC stations that are not covered by 
paragraph (h)(1)(ii)(G) of this section and were filed and accepted for 
filing on or before January 18, 2001 that:
    (1) Were filed by post-auction winners pursuant to Sec. 73.5005.
    (2) Are part of a settlement agreement on-file with the Commission 
that would result in the grant of the NTSC application; or
    (3) Are cut-off singletons.
    (2) DTV applications for a construction permit or a modified 
construction permit filed after January 18, 2001:
    (i) Shall be afforded the interference protection set forth in 
paragraph (c) or (d) of this section, as applicable:
    (A) By all NTSC minor change applications;
    (B) By NTSC new station applications, except those covered by 
paragraph (h)(2)(ii)(H) and (I) of this section;
    (C) By all rulemaking petitions to amend the NTSC TV table of 
allotments except those filed by NTSC applicants in those groups 
defined in (h)(2)(ii)(I) of this section for which a Notice of Proposed 
Rule Making has been released and the comment deadline specified 
therein has passed prior to the filing date of the DTV application;
    (D) By later-filed DTV applications; and
    (E) By later-filed rulemaking petitions to amend the DTV table of 
allotments;
    (ii) Must demonstrate the requisite interference protection set 
forth in paragraph (c) or (d) of this section, as applicable, to:
    (A) DTV licensed stations;
    (B) DTV construction permits;
    (C) Earlier-filed DTV applications;
    (D) Existing DTV allotments;
    (E) Rulemaking petitions to amend the DTV table of allotments for 
which a Notice of Proposed Rule Making has been released and the 
comment deadline specified therein has passed prior to the filing date 
of the DTV application;
    (F) NTSC stations with licenses covering construction permits that 
were granted before the DTV application was filed;
    (G) NTSC construction permits that were granted before the DTV 
application was filed; and
    (H) Earlier-filed and accepted for filing applications for new NTSC 
stations that are not covered by paragraph (h)(2)(ii)(I) of this 
section, and that:
    (1) Were filed by post-auction winners pursuant to Sec. 73.5005.
    (2) Are part of a settlement agreement on-file with the Commission 
that would result in the grant of the NTSC application; or
    (3) Are cut-off singletons;
    (I) Applications for new NTSC television stations that were in 
groups of mutually exclusive applications on file prior to July 1, 
1997, regardless of whether they are the only applications that remain 
pending from their group;
    (J) Rulemaking petitions to amend the NTSC table of allotments 
filed by applicants defined in (h)(2)(ii)(I) of this section for which 
a Notice of Proposed Rule Making has been released and the comment 
deadline specified therein has

[[Page 65135]]

passed prior to the filing of the DTV application.
    (iii) That do not provide the requisite interference protection set 
forth in paragraph (c) or (d) of this section, as applicable, to the 
following applications and petitions will be deemed mutually exclusive 
with those applications and petitions:
    (A) Other DTV applications filed the same day;
    (B) Rulemaking petitions to amend the DTV table of allotments for 
which a Notice of Proposed Rule Making had been released and the 
comment deadline specified therein had not passed prior to the filing 
date of the DTV application; and
    (C) Earlier-filed rulemaking petitions to amend the DTV table of 
allotments for which a Notice of Proposed Rule Making had not been 
released.
    (3) DTV applicants, DTV applicants and NTSC applicants, or DTV 
applicants and DTV rulemaking petitioners that are mutually exclusive 
pursuant to this section will be notified by Public Notice and provided 
with a 90-day period of time to resolve their mutual exclusivity via 
engineering amendment or settlement. Those applications and petitions 
that remain mutually exclusive upon conclusion of the 90-day settlement 
period will be dismissed.

    3. Section 73.624 is amended by revising paragraphs (b), 
(d)(3)(ii), and (d)(3)(iv) to read as follows:


Sec. 73.624  Digital television broadcast stations.

* * * * *
    (b) DTV broadcast station permittees or licensees must transmit at 
least one over-the-air video program signal at no direct charge to 
viewers on the DTV channel. Until such time as a DTV station permittee 
or licensee ceases analog transmissions and returns that spectrum to 
the Commission, and except as provided in paragraph (i ) of this 
section; at any time that a DTV broadcast station permittee or licensee 
transmits a video program signal on its analog television channel, it 
must also transmit at least one over-the-air video program signal on 
the DTV channel. In addition, the DTV broadcast station permittee or 
licensee is subject to the simulcasting requirements in paragraph (f) 
of this section. The DTV service that is provided pursuant to this 
paragraph must be at least comparable in resolution to the analog 
television station programming transmitted to viewers on the analog 
channel.
    (1) DTV broadcast station permittees or licensees required to 
construct and operate a DTV station by May 1, 2002 or May 1, 2003 
pursuant to paragraph (d) of this section must, at a minimum, beginning 
on the date on which the DTV station is required to be constructed, 
provide a digital video program signal, of the quality described in 
paragraph (b) above, during prime time hours as defined in 
Sec. 79.3(a)(6) of this chapter. These licensees and permittees must 
also comply with the simulcasting requirements in paragraph (f) of this 
section.
    (2) DTV licensees or permittees that choose to commence digital 
operation before the construction deadline set forth in paragraph (d) 
of this section are not subject to any minimum schedule for operation 
on the DTV channel.
* * * * *
    (d) * * *
    (3) * * *
    (ii) Such circumstances shall include, but shall not be limited to:
    (A) Inability to construct and place in operation a facility 
necessary for transmitting digital television, such as a tower, because 
of delays in obtaining zoning or FAA approvals, or similar constraints;
    (B) the lack of equipment necessary to obtain a digital television 
signal; or
    (C) where the cost of meeting the minimum build-out requirements 
exceeds the station's financial resources.
* * * * *
    (iv) Applications for extension of time shall be filed no earlier 
than 90 and no later than 60 days prior to the relevant construction 
deadline, absent a showing of sufficient reasons for filing within less 
than 60 days of the relevant construction deadline.
* * * * *

    4. Section 73.625 is amended by revising paragraph (a)(1) to read 
as follows:


Sec. 73.625  DTV coverage of principal community and antenna system.

    (a) * * *
    (1) The DTV transmitter location shall be chosen so that, on the 
basis of the effective radiated power and antenna height above average 
terrain employed, the following minimum F(50,90) field strength in dB 
above one uV/m will be provided over the entire principal community to 
be served:

Channels 2-6.................................  35 dBu
Channels 7-13................................  43 dBu
Channels 14-69...............................  48 dBu
 



    Note to paragraph (a)(1): These requirements above do not become 
effective until December 31, 2004 for commercial television 
licensees and December 31, 2005 for noncommercial television 
licensees. Prior to those dates, the following minimum F(50,90) 
field strength in dB above one uV/m must be provided over the entire 
principal community to be served:


Channels 2-6.................................  28 dBu
Channels 7-13................................  36 dBu
Channels 14-69...............................  41 dBu
 

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Appendix--Form 337

    Note: This appendix will not appear in the Code of Federal 
Regulations.

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[FR Doc. 01-30433 Filed 12-17-01; 8:45 am]
BILLING CODE 6712-01-P