[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Notices]
[Pages 40263-40265]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16626]


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FEDERAL COMMUNICATIONS COMMISSION

[MB Docket No. 03-15, RM 9832, MM Docket Nos. 99-360, 00-167, 00-168; 
DA 03-1292]
RIN 3060-AH54


Simulcasting Requirements

AGENCY: Federal Communications Commission.

ACTION: Notice; temporary waiver request.

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SUMMARY: This document discusses three requests filed with the 
Commission by various parties regarding DTV simulcasting requirements. 
This item grants a 6 month waiver of NCE TV stations to give them more 
time to comply with the requirements. This document also denies a 
request for suspension of the increase in minimum DTV operating hours. 
These actions are taken in compliance with the Commission's DTV rules.

FOR FURTHER INFORMATION CONTACT: Kim Matthews, Media Bureau at (202) 
418-2154 or via Internet at [email protected].

SUPPLEMENTARY INFORMATION: This document is a summary of the 
Commission's Order, MB 03-15; DA 03-1292, adopted April 28, 2003 and 
released April 29, 2003. The full text of this Order is available for 
inspection and copying during normal business hours in the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., Room 
CY-A257, Washington, DC 20554, and may be purchased from the 
Commission's copy contractor, Qualex International, Portals II, 445 
12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 
863-2893, facsimile (202) 863-2898, or via e-mail [email protected] or 
may be viewed via Internet at http://www.fcc.gov/mb/.

Synopsis of Order

    1. The Media Bureau has received three requests related to the DTV 
simulcast requirements in Sec.  73.624(f) of our rules. Noncommercial 
educational television stations collectively request a temporary 
suspension of the DTV simulcasting requirements as they apply to NCE 
stations. Paxson Communications Corporation (``Paxson'') and Milwaukee 
Area Technical College (``MATC'') request temporary waivers of Sec.  
73.624(f). As discussed, we grant NCE stations a six-month waiver of 
the DTV simulcast requirements. We also grant the waiver request of 
MATC and deny the Paxson waiver request.

Background

    2. Section 73.624(f) of the Commission's rules requires DTV 
licensees to simulcast 50% of the video programming of their analog 
channel on their DTV channel by April 1, 2003. This requirement 
increases to a 75% simulcast requirement on April 1, 2004, and a 100% 
requirement on April 1, 2005. The simulcasting requirement was intended 
to ensure that consumers enjoy continuity of free over-the-air video 
programming service when analog spectrum is reclaimed at the end of the 
transition. The Commission stated that it may be difficult to terminate 
analog broadcast service if broadcasters show programs on their analog 
channels that are not available on their digital channels.
    3. In the Memorandum Opinion and Order on Reconsideration 
(``MO&O'') in the 1st DTV periodic review, MM 00-39 (66 FR 65122, 
December 18, 2001), the Commission allowed stations subject to the May 
1, 2002, or May 1, 2003, digital construction deadlines to operate 
initially at a reduced schedule by providing, at a minimum, a digital 
signal during prime time hours, consistent with their simulcast 
obligations. The minimum operating hours for these digital stations 
effectively increases as the simulcast obligations are phased in. For 
example, beginning April 1, 2003, a DTV station that was required to be 
on the air by May 1, 2002, must provide a simulcast digital signal at 
least 50% of the time it transmits an analog signal and. Along with the 
simulcasting requirements, the minimum hours requirements step up to a 
75% requirement in April 2004, and a 100% requirement in April 2005. 
Stations that were subject to the earlier DTV construction deadlines 
(top four network affiliates in the top thirty markets) are required to 
operate their DTV station at any time that the analog station is 
operating.
    4. In the Notice of Proposed Rule Making (``NPRM'') initiating the 
2nd periodic review of the transition to digital television (68 FR 
7737, February 18, 2003), the Commission sought comment on whether it 
should retain, revise, or remove the simulcast requirement. The 
Commission asked whether broadcasters have a market-based incentive to 
simulcast that makes a simulcast requirement unnecessary. The 
Commission also asked whether the simulcasting requirement is causing 
broadcasters to forego creative uses of digital technology, and if 
something less than the ultimate 100% simulcast requirement would be 
sufficient to protect analog viewers while allowing for innovation on 
DTV channels. The Commission also sought comment on how to define 
simulcasting, and whether the current dates for the phase-in of 
simulcast requirements are appropriate.
    5. NCE Television Stations. Dow, Lohnes & Albertson, Schwartz, 
Woods & Miller, the Public Broadcasting Service, and the Association of 
Public Television Stations (collectively referred to herein as ``PBS, 
et al.''), on behalf of NCE TV licensees, request that the FCC 
temporarily suspend the DTV simulcasting requirements as they apply to 
NCE stations pending FCC action on the simulcasting issues in the 2nd 
DTV periodic review proceeding. The emergency request states that, 
although many NCE DTV stations will be able to transmit a digital 
television signal by the May 1, 2003, construction deadline, some 
stations do not yet have in place necessary studio transmitter links 
(``STLs'') or other digital interconnection facilities between their 
studios and their transmitters to permit them to receive the simulcast 
programming feed from their studios. According to PBS, some NCE 
stations also do not yet have the encoding equipment that enables the 
station to digitize its NTSC programming for DTV broadcast.
    6. We recognize that, unlike commercial licensees, the deadlines to 
complete construction of digital facilities and to comply with the 50% 
simulcasting requirement for noncommercial educational licensees were 
the same. PBS states that many

[[Page 40264]]

NCE stations will be unable to both begin digital operations and comply 
with our current simulcasting obligations by May 1, 2003. In light of 
the burden faced by NCE stations in complying with both the 
construction and simulcasting requirements simultaneously, and in light 
of our pending re-evaluation of our simulcasting requirements, we find 
that good cause exists to grant NCE stations a six-month waiver of the 
simulcast requirements in Sec.  73.624(f). Until November 1, 2003, 
noncommercial educational television stations will not be required to 
simulcast on their digital channel the programming that is aired on 
their analog channel. This six-month waiver of our simulcast 
requirements will give NCE stations additional time to acquire and 
install the facilities necessary to meet the simulcast requirement. We 
will consider granting special relief to NCE stations in certain 
circumstances, such as those presented here, because of the particular 
financial difficulties NCE stations face and the assistance they will 
need in the transition to DTV. Although NCE stations requested a waiver 
until resolution of the simulcasting issues raised in the 2nd DTV 
Periodic NPRM, we do not believe it is necessary to grant a blanket 
waiver to all NCE stations for an indefinite period of time. We believe 
that a six-month waiver should provide sufficient time for those NCE 
stations that do not already have simulcasting equipment to obtain and 
install such equipment. In the event the Commission has not yet acted 
on the simulcasting issues raised in the 2nd DTV Periodic NPRM, and in 
the event some NCE stations decide to request a waiver for an 
additional period of time, we will consider those requests at that time 
on their individual merit. In taking this action we are not making a 
final ruling on the matters raised for comment in the 2nd DTV Periodic 
NPRM.
    7. This action in no way waives the existing rules regarding the 
minimum hours of operation on digital channels. NCE stations must air, 
by May 1, 2003, a digital signal for an amount of time equivalent to at 
least 50% of the time they provide an analog signal. In addition, a 
digital video program signal must be aired during prime time hours. The 
minimum digital operating requirement increases to 75% on April 1, 2004 
(requiring airing of a digital signal for an amount of time equivalent 
to at least 75% of the time the station airs an analog signal), and to 
100% on April 1, 2005. Stations, both commercial and NCE, that have 
been granted an extension of time to construct their DTV facilities 
must comply with the minimum digital operation requirements in effect 
at the time the station commences digital operations.
    8. MATC Waiver Request. MATC, licensee of two noncommercial 
educational television stations in Milwaukee, Wisconsin, requests a 
temporary waiver of Sec.  73.624(f), for an unspecified period of time, 
to permit it to simulcast the analog programming of both of its NCE 
stations on one of its associated digital stations, and to use the 
other digital station to air high definition programming full time. 
MATC states that it has been operating WMVS-DT, associated with WMVS, 
Channel 10, since early 2000, and that it will comply with the 
simulcasting requirements applicable to that station. MATC has been 
granted an extension of time to complete construction of WMVT-DT, 
associated with WMVT, Channel 36, and expects that station to be on the 
air in July 2003. MATC states that the waiver it seeks will be needed 
only at the point that WMVT-DT commences operations.
    9. MATC notes that, because it plans, at least initially, to 
provide its simulcast service on WMVS-DT, which has a larger predicted 
coverage area than WMVT-DT, each potential DTV viewer of MATC's 
stations should be able to receive the simulcast programming of both 
stations. MATC argues that its plan would satisfy the purpose behind 
the simulcasting requirement and allow MATC to investigate the 
feasibility in the market of an all-HDTV programming service. MATC also 
argues that its plan could stimulate the sale of DTV sets in its 
market, thereby furthering the transition.
    10. We find good cause to grant MATC a waiver of the simulcast 
requirements in Sec.  73.624(f), pending the issuance of an R&O in the 
2nd DTV periodic review, to permit it to implement the plan it proposes 
in its waiver request. We note that, under MATC's proposal, it will be 
providing simulcast digital service of both of its analog channels to 
its community. By temporarily waiving the current rules, we are 
permitting MATC to experiment with innovative uses of its other digital 
channel and to offer additional digital programming to the community. 
Because MATC has committed to providing simulcasting, in the manner 
proposed in its waiver request, allowing it to offer additional digital 
programming to the community, we believe that it is appropriate to 
grant MATC a longer waiver to implement its proposed simulcasting plan 
than the waiver given to other NCE stations. In the 2nd DTV periodic 
review, the Commission will consider, among other issues related to the 
simulcast requirement, whether the current simulcast rules should be 
amended to facilitate similar and other innovative uses of digital 
stations. As in the case of the temporary simulcast waiver granted 
above to all NCE stations, MATC will be required to comply with the 
existing rules regarding minimum hours of operation of digital 
channels.
    11. Paxson Waiver Request. Paxson, corporate parent of the 
licensees of twenty-eight commercial DTV stations, requests a one-year 
waiver of Sec.  73.624(f), and in particular the minimum operating 
hours requirements currently pegged to the Sec.  73.624(f) simulcasting 
requirements. Paxson notes that regulatory uncertainty remains in two 
areas central to broadcasters' transition planning: DTV must-carry and 
DTV simulcasting requirements. Paxson argues that, without cable 
carriage, adherence to the simulcast requirement will not advance the 
DTV transition or improve service to television viewers, while placing 
undue financial and technical burdens on Paxson's DTV stations. Paxson 
notes that the 50% simulcast requirement that became effective April 1, 
2003, represents a four-fold increase in Paxson's DTV stations' 
operating schedule, with corresponding increases in the stations' 
operating costs. Paxson argues that until broadcasters obtain carriage 
of their DTV signals, it should not be required to expand DTV service 
beyond prime-time as most viewers will not be able to view DTV 
broadcasts until cable carriage is achieved. Paxson also notes that the 
Commission is considering whether to alter or eliminate the 
simulcasting requirements.
    12. We do not believe that it is appropriate at this stage in the 
transition to reduce or eliminate the mandatory hours of operation of 
digital stations. Increasing the operating hours of digital stations 
subject to the May 1, 2002, and May 1, 2003, digital construction 
deadlines will help further the transition by helping to drive DTV set 
penetration and encouraging content producers and advertisers to invest 
in DTV. These stations have been on notice since the November 2001 
adoption of the phased-in simulcast requirements in the 1st DTV 
Periodic Review MO&O that their DTV operating hours must be stepped-up 
beginning on April 1, 2003. We also do not believe that the required, 
gradual increase in the hours of digital programming offered to viewers 
on these stations needs to await finalization of the Commission's 
separate proceeding regarding mandatory carriage of analog and digital 
signals

[[Page 40265]]

during the transition. It is neither appropriate nor necessary to waive 
or reduce the minimum operating hours of digital broadcast stations, 
thereby slowing the transition, pending the outcome of that proceeding. 
Finally, the Commission did not contemplate altering the minimum hours 
of operation of DTV stations in the 2nd DTV Periodic Review NPRM; 
therefore, the pendancy of that proceeding does not provide grounds for 
deferring the effective date of the increased operating requirements.

Ordering Clauses

    13. Pursuant to the authority contained in 47 CFR 1.3 of the 
Commission's rules, NCE TV stations are granted a six-month waiver of 
the simulcast requirements in Sec.  73.624(f) of the Commission's 
rules, until November 1, 2003, as described herein.
    14. The Request for Temporary Waiver of DTV Simulcasting 
Requirements filed by Milwaukee Area Technical College is granted to 
the extent described herein.
    15. The Request for Temporary Waiver of Sec.  73.624(f) of the 
Commission's Rules, filed by Paxson Communications Corporation, is 
denied.
    16. This action is taken pursuant to authority delegated by 47 CFR 
0.61(h) and 0.283 of the Commission's rules.

Federal Communications Commission.
W. Kenneth Ferree,
Chief, Media Bureau.
[FR Doc. 03-16626 Filed 7-3-03; 8:45 am]
BILLING CODE 6712-01-P