[Federal Register Volume 73, Number 22 (Friday, February 1, 2008)]
[Proposed Rules]
[Pages 6099-6101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1914]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-120; FCC 07-170]


Carriage of Digital Television Broadcast Signals

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: While the Third Report and Order resolves the major questions 
about material degradation and viewability after the transition, we now 
seek comment on a number of related issues which were not specifically 
raised in the Second Further Notice of Proposed Rulemaking. Now that 
the general rules are in place, the Commission believes it is 
appropriate to move toward an expeditious resolution of these 
outstanding matters so that all parties will have sufficient time to 
prepare for compliance with these new rules.

DATES: Comment Date: March 3, 2008. Reply Comment Date: March 17, 2008.

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

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, please contact Lyle Elder, [email protected], or Eloise 
Gore, [email protected], of the Media Bureau, Policy Division, (202) 
418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Third Further Notice of Proposed Rule 
Making (Third FNPRM) in CS Docket No. 98-120, FCC 07-170, adopted 
September 11, 2007, and released November 30, 2007. The full text of 
this document is available for public inspection and copying during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in 
ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be 
purchased from the Commission's copy contractor, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554. To request this document in 
accessible formats (computer diskettes, large print, audio recording, 
and Braille), send an e-mail to [email protected] or call the Commission's 
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), 
(202) 418-0432 (TTY).

Summary of the Third Notice of Proposed Rule Making

A. Issues Related to Downconversion

    1. Channel Placement: Section 614(b)(6) generally provides that 
commercial television stations carried pursuant to the mandatory 
carriage provision are entitled to be carried on a cable system on the 
same channel number on which the station broadcasts over-the-air. Under 
Section 615(g)(5) noncommercial television stations generally have the 
same right. The Act also permits commercial and noncommercial 
television stations to negotiate a mutually beneficial channel position 
with the cable operator. In the First Report and Order, the Commission 
found that it was unnecessary to place broadcast signals on a specific 
frequency in order to ensure nondiscriminatory treatment of television 
stations by cable operators. Instead, the Commission required that 
channel mapping information be passed through as part of the program 
and system information protocol (``PSIP''), linking the digital channel 
number with the appropriate primary video and program-related content. 
How should these channel positioning rules apply to operators carrying 
more than one version of a station's signal? We seek comment on this 
question. For systems that provide analog service, we propose that the 
analog version be physically located on the appropriate channel as 
determined by the channel placement rules, and that the version as 
broadcast appear on that same channel for digital subscribers who can 
view it. We seek comment on this proposal. We also seek comment on 
whether it will be technically possible for multiple digital versions 
to appear on the same channel from a subscriber perspective (e.g., 
channel 35 in HD for subscribers with HD, and the same channel 35 in SD 
for subscribers with SD). If so, should we adopt such a requirement?
    2. Format: NAB and MSTV raise the point that ``[w]hen digital 
programming is broadcast in a 16:9 format, downconversion of the signal 
to analog generally requires that the program be reformatted to fit the 
4:3 analog aspect ratio.'' Broadcasters may broadcast not only in 
different resolutions--HD, ED, SD--but also in different formats--16:9 
or 4:3. When a digital signal is downconverted, particularly from HD to 
analog, it is likely to be a 16:9 signal being adjusted for display on 
a 4:3 screen. However, at times, particularly during the early years of 
the post-transition period, even HD broadcasters are likely to 
occasionally show images in a 4:3 aspect ratio, adding static bars to 
the edge of the broadcast picture to compensate. How should the 
downconverted signal be adjusted (letterboxing, centering, etc.), and 
if the Commission does not adopt a rule, who should make that decision? 
NAB proposes that, for signals converted at the headend, broadcasters 
make the determination, and for signals converted at a converter box, 
the boxes be required to allow the consumer to determine the format (as 
in the NTIA boxes). NCTA responds with a proposal to allow operators to 
determine the format of downconverted signals, arguing that operators 
are best able to determine how to ``serve the needs of their analog 
viewing customers.'' We seek comment on the appropriate approach for 
the Commission to take, and the costs and benefits of these proposals 
and any others offered by commenters.

B. Material Degradation Issues

    3. As NAB and MSTV note, the Commission found in 1993 that the 
material degradation rules apply equally to must carry stations and 
retransmission consent stations. They argue that this should be the 
case after the transition as well. NCTA, however, notes that in the 
First Report and Order, the Commission said that:


[[Page 6100]]


    In the context of mandatory carriage of digital broadcast 
signals, a cable operator may not provide a digital broadcast signal 
in a lesser format or lower resolution than that afforded to any 
digital programmer (e.g., non-broadcast cable programming, other 
broadcast digital program, etc.) carried on the cable system.

    We seek comment on the applicability of the material degradation 
rules adopted by this Order.

C. Availability of Signals

    4. Notice: As discussed above in paragraph 38, we will require that 
cable operators notify their subscribers if they decide to become an 
all-digital system. We believe that the existing notice provisions are 
sufficient to enforce this requirement. We request comment on these 
rules, and on whether we need more specific rules to govern notice to 
subscribers.

D. Small Business

    5. As we noted in the Second Further Notice of Proposed Rulemaking 
(Second FNPRM), we particularly welcome comments offering alternative 
rules that would ``minimize the economic impact for small cable 
operators while still complying with the statutory requirements.'' 
Several commenters argue that the rules we adopt in the Third FNPRM 
would impose high costs, particularly on small cable companies. ACA 
states that carriage of a single HD broadcast station could cost as 
much as $34,000 under our rules. We observe that these estimates appear 
to involve duplication of equipment, and that 75% of the listed costs 
are for equipment dealing with format conversion, something not 
resolved by this Order because it was first raised in comments and 
which is the subject of this Third FNPRM, supra. ACA's estimates are in 
contrast to the comments of NAB, who describe the costs of 
downconversion as ``modest.'' We welcome comment on these cost 
estimates. We also urge commenters to offer alternatives and explain 
how they would comply with the statute as well as minimize the impact 
on small operators.
    6. The American Cable Association (ACA) offers three proposals, and 
argues that failing to adopt them, at least as to small cable 
operators, would cause ``many'' financial failures among independent 
cable companies.
    7. They propose: (1) No change to the material degradation rules; 
(2) allowing operators to meet the viewability requirement by 
converting broadcast signals into a format that they can cablecast to 
all their subscribers; and (3) requiring must-carry broadcasters to pay 
the cost of any downconversion. The decisions made in the Third Report 
and Order largely track the first two of these proposals. Specifically, 
we retained the material degradation requirements described in the 
First Report and Order and expressly provided that cable systems may 
convert digital signals to analog format to be viewable for their 
subscribers. We also found that operators of systems with an activated 
channel capacity of 552 MHz or less could seek a waiver from the 
Commission if they do not have the capacity to carry the additional 
digital versions of must-carry stations.
    We seek comment on whether it would be appropriate to adopt the 
other rules proposed by ACA, for small cable operators only. Would such 
rules for small operators comply with the statute?
    8. Block Communications offers a viewability proposal essentially 
identical to ACA's. They suggest a rule that operators be allowed to 
downconvert must carry digital signals into a format they can deliver 
to all subscribers; in their case, this would be analog, although in an 
all-digital system this would presumably be SD. Block proposes that 
``[i]f the station wanted more, it could elect retransmission consent 
and negotiate for it.'' These proposals appear to seek reconsideration 
of the Commission's long-standing requirement of HD carriage. Although 
petitions for reconsideration of that requirement remain pending, we 
seek comment on this approach generally. ACA argues that if an operator 
provided carriage on identical terms to broadcasters and cable 
programmers it would not be in violation of Section 614(b)(4)(A). Given 
our interpretation of the statute set out in the Third Report and Order 
above, do we have any flexibility to alter the requirements for small 
cable operators?
    9. Finally, ACA's last proposal is for must-carry broadcasters to 
bear the cost of downconversion. As NAB and MSTV have noted, this is a 
modest cost. Are the savings this would provide significant for small 
cable operators? Would the imposition of these costs on small 
broadcasters counteract the benefit to small business generally?
    10. We also seek comment on the system characteristics that would 
be appropriate for relief; such as, number of subscribers, system 
capacity or something else. As discussed in the Second FNPRM, and in 
the Initial Regulatory Flexibility Analysis (``IRFA'') at Appendix B, 
there are at least four different approaches to measuring the size of a 
cable operator, and resolving this question is essential if the 
Commission is to consider applying different rules for such operators.
    11. Finally, we seek further proposals for means to minimize the 
impact on small cable operators, whether they be alternative rules, 
ameliorated timetables, or any other approaches that would conform to 
the requirements of the statute.
    12. The Commission will complete an Order concerning these small 
cable systems within six months.

E. Other Issues

    13. We welcome comment on any other matters relating to material 
degradation and viewability, and particularly the proper and sufficient 
application of the rules in this Order.

F. Third Further Notice of Proposed Rulemaking

1. Initial Regulatory Flexibility Analysis
    14. As required by the Regulatory Flexibility Act of 1980 
(``RFA''), the Commission has prepared an Initial Regulatory 
Flexibility Analysis (``IRFA'') relating to this Third Further Notice 
of Proposed Rulemaking. The IRFA is set forth in Appendix B of the 
Order.
2. Initial Paperwork Reduction Act Analysis
    15. This Third Further Notice of Proposed Rulemaking has been 
analyzed with respect to the PRA and does not contain proposed 
information collection requirements. In addition, therefore, it does 
not contain any new or modified ``information collection burden for 
small business concerns with fewer than 25 employees,'' pursuant to the 
Small Business Paperwork Relief Act of 2002.
3. Ex Parte Rules
    16. Permit-But-Disclose. This proceeding will be treated as a 
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under Section 1.1206(b) of the Commission's 
Rules. Ex parte presentations are permissible if disclosed in 
accordance with Commission Rules, except during the Sunshine Agenda 
period when presentations, ex parte or otherwise, are generally 
prohibited. Persons making oral ex parte presentations are reminded 
that a memorandum summarizing a presentation must contain a summary of 
the substance of the presentation and not merely a listing of the 
subjects discussed. More than a one- or two-sentence description of the 
views and arguments presented is generally required. Additional rules 
pertaining to

[[Page 6101]]

oral and written presentations are set forth in Section 1.1206(b).
4. Filing Requirements
    17. Comments and Replies. Pursuant to Sections 1.415 and 1.419 of 
the Commission's rules, interested parties may file comments on or 
before March 3, 2008, and reply comments on or before March 17, 2008 
using: (1) The Commission's Electronic Comment Filing System 
(``ECFS''), (2) the Federal Government's eRulemaking Portal, or (3) by 
filing paper copies.
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ 
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the website for submitting 
comments.
     For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
     The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
     Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
     U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington DC 20554.
    18. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. These documents will also be available via ECFS. Documents 
will be available electronically in ASCII, Word 97, and/or Adobe 
Acrobat.
    19. Accessibility Information. To request information in accessible 
formats (computer diskettes, large print, audio recording, and 
Braille), send an e-mail to [email protected] or call the FCC's Consumer 
and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-
0432 (TTY). This document can also be downloaded in Word and Portable 
Document Format (PDF) at: http://www.fcc.gov.

G. Additional Information

    20. For more information on this Third Report and Order and Third 
Further Notice of Proposed Rule Making, please contact Lyle Elder, 
[email protected], or Eloise Gore, [email protected], of the Media 
Bureau, Policy Division, (202) 418-2120.

II. Ordering Clauses

    21. It is ordered that, pursuant to the authority contained in 
Sections 4, 303, 614, and 615 of the Communications Act of 1934, as 
amended, 47 U.S.C. 154, 303, 534, and 535, this Third Report and Order 
and Third Further Notice of Proposed Rule Making is adopted and the 
Commission's rules are hereby amended as set forth in Appendix C of the 
Order.
    22. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Third Report and Order and Third Further Notice of 
Proposed Rule Making, including the Initial and Final Regulatory 
Flexibility Analyses, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    23. It is further ordered that the Commission shall send a copy of 
this Third Report and Order and Third Further Notice of Proposed Rule 
Making in a report to be sent to Congress and the General Accounting 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
 [FR Doc. E8-1914 Filed 1-31-08; 8:45 am]
BILLING CODE 6712-01-P