[Federal Register Volume 73, Number 210 (Wednesday, October 29, 2008)]
[Rules and Regulations]
[Pages 64260-64263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-25798]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 76

[CS Docket No. 98-120; FCC 08-224]


Carriage of Digital Television Broadcast Signals

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission clarifies a number of 
existing rules relating to cable carriage of digital signals. As 
explained, the carriage elections that must be made by October 1, 2008, 
will determine a station's carriage rights throughout the entire 2009-
2011 carriage election cycle. We also clarify the channel placement 
options applicable to digital must-carry stations, based upon the First 
Report and Order and the statute. Also, for those low-power stations 
that have the right to demand carriage by cable operators, we clarify 
that their statutory carriage rights extend to broadcasting in digital.

DATES: Effective October 29, 2008.

ADDRESSES: You may submit comments, identified by FCC 08-224, by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, please contact Lyle Elder, [email protected], of the 
Policy Division, Media Bureau, (202) 418-2120, or Eloise Gore, 
[email protected], of the Media Bureau, (202) 418-7200.

SUPPLEMENTARY INFORMATION: This is a summary of the Federal 
Communications Commission's Declaratory Ruling in FCC 08-224, adopted 
September 24, 2008, and released September 26, 2008. 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 Final Rule

I. Introduction

    1. Pursuant to section 614(b)(4)(B) of the Communications Act of 
1934, as amended (the ``Act''), the Commission initiated this 
proceeding in 1998 to address the responsibilities of cable television 
operators with respect to carriage of digital broadcasters in light of 
the significant changes to the broadcasting and cable television 
industries resulting from the Nation's transition to digital 
television. Now that Congress has established February 17, 2009, as the 
date certain for the end of analog broadcasts by full-power television 
licensees, and low-power and class A television licensees are beginning 
their transition to digital broadcast, we must further clarify the 
digital carriage responsibilities of cable operators.
    2. Specifically, we clarify that the carriage elections that must 
be made by October 1, 2008, will determine a station's carriage rights 
throughout the entire 2009-2011 carriage election cycle. We also 
clarify the channel placement options applicable to digital must-carry 
stations, based upon the First Report and Order, 66 FR 16533, March 26, 
2001, and the statute. Low-power broadcasters, while not required to 
make their transition to digital by February 17, 2009, nevertheless are 
doing so in increasing numbers, and will continue to do so of their own 
volition. For those low-power stations that have the right to demand 
carriage by cable operators, we clarify that their statutory carriage 
rights extend to broadcasting in digital.

II. Background

    3. Under the Act, cable systems are presumptively required to carry 
all local television stations in all television markets they serve. 
Commercial television stations may, however, choose to be carried 
pursuant to voluntary retransmission consent agreements rather than by 
mandatory carriage. Generally, every three years commercial television 
stations must elect to either grant retransmission consent or pursue 
their mandatory carriage rights. Noncommercial television stations may 
only elect mandatory carriage, but are nonetheless free to negotiate 
carriage with cable operators.
    4. In this docket, the Commission has determined the broadcast 
signal carriage responsibilities of cable television operators during 
and after the transition is completed. The statutory provision 
triggering this rulemaking is found in section 614(b)(4)(B) of the Act, 
which states:
    5. At such time as the Commission prescribes modifications of the 
standards for television broadcast signals, the Commission shall 
initiate a proceeding to establish any changes in the signal carriage 
requirements of cable television systems necessary to ensure cable 
carriage of such broadcast signals of local commercial television 
stations which have been changed to conform with such modified 
standards.
    6. The Notice of Proposed Rulemaking (``1998 NPRM'') in this 
proceeding sought to amend the cable television broadcast signal 
carriage rules, embodied in must-carry and retransmission consent, to 
accommodate the carriage of digital broadcast television signals.
    7. The Commission's First Report and Order and Further Notice of 
Proposed Rulemaking in this proceeding adopted rules for carriage of 
digital broadcast signals pursuant to retransmission consent and 
mandatory carriage when a local television station is broadcasting only 
a digital signal. The Commission

[[Page 64261]]

decided that a commercial television station broadcasting both an 
analog signal and a digital signal may choose must-carry or 
retransmission consent for its analog signal and retransmission consent 
for its digital signal. The Commission acknowledged that the Act does 
not specifically require mandatory carriage for noncommercial digital 
television signals, but concluded that Congress did not intend to 
exclude such signals from mandatory carriage. As an interim measure 
during the transition, a digital-only television station may demand 
that one of its video programming streams be carried on the cable 
system for delivery to subscribers in an analog format.
    8. In the First Report and Order, the Commission also concluded 
that the statutory term ``primary video'' required cable operators to 
carry only a single digital programming stream of a local digital 
television station as well as content related to that stream. The 
Commission further found that section 614(b)(4)(B) of the Act neither 
requires cable operators to carry nor prohibits them from carrying both 
the broadcaster's analog and digital signals (i.e., ``dual carriage'') 
during the transition period.
    9. In February 2005, the Commission issued the Second Report and 
Order and First Order on Reconsideration. Among other things, the 
Second Report and Order declined to require cable operators to carry 
any more than one programming stream of a digital television station 
that multicasts. The Commission's actions in the Second Report and 
Order were limited to questions of carriage of multiple signals or 
streams, however. In September 2007, we adopted the Third Report and 
Order and Third Further Notice of Proposed Rulemaking (``Viewability 
Order'') in order to address two important remaining issues.
    10. The Viewability Order ensures that all cable TV viewers, 
including the 98 million analog-only cable TV viewers, retain the same 
access to their local stations after the transition as they have today. 
The rules will require cable operators to comply with the statutory 
viewability requirement by choosing to either: (1) Carry digital 
signals in analog format, or (2) for all-digital systems, carry the 
signals only in digital format, provided that all subscribers have the 
necessary equipment to view the broadcast content. This decision 
rendered moot the outstanding questions about post-transition carriage 
of broadcast signals on a ``basic tier'' under 47 U.S.C. 543(b)(7) 
(raised in the First Report and Order). The requirement that signals 
carried pursuant to mandatory carriage be made actually viewable to all 
subscribers, regardless of their equipment or level of service, means 
that a cable operator may provide those signals solely in digital so 
long as all subscribers are capable of receiving and viewing digital 
signals. If some subscribers can only view analog signals, however, 
broadcast stations carried pursuant to mandatory carriage must also be 
made viewable to them. The viewability requirements will be in force 
from the date of the transition through February 2012, subject to 
review by the Commission during the last year of this period. The 
Commission also reaffirmed the existing material degradation standard 
for cable carriage of digital broadcast signals, prohibiting 
preferential treatment of cable programmers or retransmission consent 
stations and reiterating the requirement that cable systems carry high 
definition (``HD'') broadcast signals in HD format.
    11. Now, the conclusion of the transition approaches. Therefore, in 
this Order we explain the carriage election process for stations that 
will make their final transition from analog signals to digital signals 
for the February 17, 2009, transition deadline.
    12. In addition, although low-power broadcasters are not required 
to participate in the full-power digital transition, many have chosen 
to begin their transition. We therefore also take this opportunity to 
clarify the effect on carriage rights of a voluntary transition to 
digital by a low-power broadcaster that is qualified for mandatory 
carriage of its analog signal.

III. Discussion

    13. As we approach the deadline for the full-power digital 
transition, we clarify that the full-power carriage elections that must 
be made by October 1, 2008, will determine a station's carriage rights 
throughout the entire 2009-2011 carriage election cycle. Low-power 
broadcasters, while not required to make their transition to digital by 
February 17, 2009, nevertheless are doing so in increasing numbers, and 
will continue to do so of their own volition. For those low-power 
stations that have the right to demand carriage by cable operators, we 
clarify that their statutory carriage rights apply to digital 
broadcasting.
A. Full-Power Carriage Elections
1. Effect of October 1, 2008 Elections
    14. The Cable Television Consumer Protection and Competition Act of 
1992 established the requirement that ``television stations, within one 
year after the date of enactment of [the Act] and every three years 
thereafter, make an election between the right to grant retransmission 
consent'' to cable operators or the right to mandatory carriage by 
those cable operators. In compliance with this statutory mandate, the 
Commission established a regular schedule for carriage elections. The 
election in 1996 covered 1997-1999, the election in 1999 covered 2000-
2002, etc. In accordance with this schedule, the Act requires 
broadcasters to elect, by October 1, 2008, whether they wish to engage 
in retransmission consent negotiations with cable operators or demand 
carriage on their systems for the three year period beginning January 
1, 2009. Full-power broadcasters may choose to be carried on all of 
those cable systems in the same DMA to which they can deliver a good 
quality signal (must-carry), or they may choose to require those cable 
systems to seek the broadcaster's consent before carrying the signal 
(retransmission consent). The broadcaster must notify affected cable 
systems if electing retransmission consent, or the station's status 
will default to must-carry. 47 CFR 76.64. As noted above, full-power 
broadcasters will cease all analog broadcasts by midnight on February 
17, 2009.
    15. We take this opportunity to clarify that the October 1, 2008, 
election determines carriage of a station's signal for the entire 2009-
2011 carriage cycle. The carriage election rule for stations that 
voluntarily return their analog spectrum allocation and begin operating 
as digital-only prior to the 2009-2011 carriage cycle in which the DTV 
transition concludes provides that ``stations that return their analog 
spectrum allocation and broadcast in digital only shall make their 
initial election any time between 60 days prior to commencing broadcast 
and 30 days after * * * commencing broadcasting in digital only; such 
initial election shall take effect 90 days after it is made.'' 47 CFR 
76.64(f)(4). If a station elects must-carry on October 1, 2008, for the 
2009-2011 carriage cycle, the cable operator(s) will provide carriage 
of the station's analog signal beginning (or continuing) on January 1, 
2009, and concluding no earlier than the actual termination of analog 
service by that broadcaster. Once the station terminates analog service 
and begins broadcasting in digital, the carrier shall commence carriage 
of the station's digital signal without any gap in carriage. To 
facilitate carriage and the final transition process, beginning January 
1, 2009, cable operators must immediately commence carriage of the 
digital signal of stations that cease analog broadcasting prior to the

[[Page 64262]]

February 17, 2009, statutory deadline; provided, however, that 
broadcasters must notify the cable operator(s) 30 days before the date 
on which they anticipate termination of their analog signal if it will 
be earlier than February 17, 2009.
2. Channel Placement
    16. We clarify that the channel placement options in sections 
614(b)(6) and 615(g)(5) of the Act, as implemented in Sec.  76.57 of 
the Commission's Rules, remain in effect after the digital transition. 
Section 614(b)(6) of the Act 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 agreeable channel position 
with the cable operator. Historically, channel positioning has been 
part of the carriage election process, with must-carry stations 
choosing from among the statutory options as part of the must-carry 
election. 47 U.S.C. 534(b)(6), 535(g)(5). There are four channel 
positioning options in the Act for commercial television stations. The 
statutory options are ``the channel on which it was carried on July 19, 
1985,'' ``the channel on which it was carried on January 1, 1992,'' 
``the channel number on which the local commercial television station 
is broadcast over the air'', or any alternative channel by mutual 
agreement. Noncommercial stations may not elect the channel number on 
which they were carried on January 1, 1992, but otherwise have 
identical options.
    17. As noted above, one of those statutory options is carriage on 
the broadcast channel number. In digital broadcasting, a broadcast 
station's channel number is no longer identified by reference to its 
over-the-air radio frequency. Instead, in compliance with the ATSC 
standard, the station's ``major channel number'' is identified in its 
program and system information protocol (``PSIP''). The Program and 
System Information Protocol (``PSIP'') contains metadata about both the 
program currently being aired and broadcast signal as a whole. One of 
the most important elements in the PSIP is the Major Channel Number 
(``MCN''), the channel ``location'' identified with a given station 
regardless of its over-the-air broadcast frequency. ATSC receivers 
(whether a TV set in a home or a receiver at a cable headend) can use 
this data to determine the information that will be displayed to 
viewers. Therefore, if the analog signal of a station was broadcast on 
channel 12, its digital signal will appear on channel 12 when tuned by 
an over-the-air viewer, even if the signal is being broadcast on a 
frequency corresponding to, for instance, channel 37. See Program and 
System Information Protocol for Terrestrial Broadcast and Cable, ATSC 
Document A/65 (Dec. 23, 1997). This usually corresponds to the radio 
frequency at which the station previously broadcast its analog signal. 
Therefore, in the First Report and Order, the Commission required that 
channel mapping information be passed through as part of the PSIP, 
linking the digital channel number with the appropriate primary video 
and program-related content. Thus, the cable operator can identify the 
correct channel location by reference to the PSIP.
    18. We clarify that any station carried pursuant to mandatory 
carriage may demand carriage on its major channel number as broadcast 
in the station's PSIP. We also clarify that although the First Report 
and Order did not specifically address the significance of the 
statutory provisions and rules with respect to the ``historic'' 
carriage options, these statutory options remain available to digital 
must-carry broadcasters, who will make digital channel placement 
elections pursuant to Sec. Sec.  76.57(a) or (b) just as they 
previously have for analog channel placement elections. Sec.  76.57(c), 
adopted in the First Report and Order, should be read as clarifying the 
manner in which cable operators are to determine the channel number on 
which a local commercial or qualified NCE station is ``broadcast over 
the air'' when implementing such a station's election under Sec. Sec.  
76.57(a) or (b). The statute also permits carriage on ``such other 
channel number as is mutually agreed upon by the station and the cable 
operator.'' This negotiated option, as reflected in our Rules, also 
remains an option. We also note that Sec.  76.57(f) continues to apply 
to determine where a station must be carried if it makes no affirmative 
election.
B. Low-Power Carriage Rights
    19. NCN Cable Advertising, licensee of WKFK-LP, Pascagoula, 
Mississippi (``WKFK''), filed a petition for a declaratory ruling that 
the FCC's cable must-carry rules apply to the digital signals of Class 
A, LPTV and TV translator stations after those stations flash-cut to 
digital operation and cease operating their analog signals. Currently, 
our Rules provide for cable carriage of low-power stations (including 
Class A) in specific and limited circumstances. WKFK argues that a 
clarifying order is necessary to eliminate uncertainty about digital 
carriage rights for low-power stations. WKFK is not seeking new or 
additional carriage for low-power stations but rather a confirmation 
that low-power stations will have the same carriage rights for their 
digital signals as they currently have for their analog signals. In 
addition, WKFK wants low-power stations to have the same downconversion 
option for their digital-only signals as digital-only full-power 
stations have for their digital signals.
1. Applicability of 76.55(d) to Low-Power Digital Broadcasters
    20. Under Section 614(c) of the Act and Sec.  76.56(b)(3) of our 
Rules, a cable operator is, in some circumstances, required to carry 
the signal of one or two ``qualified low-power stations.'' Like full-
power commercial broadcast stations, low-power stations can earn must-
carry status with regard to a specific cable system by conforming to a 
series of requirements (laid out in section 614(h)(2) of the Act). 47 
U.S.C. 534(h)(2). The Commission's Rules implementing this section 
state that a low-power station becomes qualified for mandatory carriage 
if the station conforms to the Commission's LPTV rules, broadcasts for 
at least the minimum number of hours required of commercial broadcast 
stations by the Commission, and adheres to certain Commission 
requirements regarding non-entertainment programming and employment. 
However, an LPTV station will not be qualified unless the Commission 
determines that the provision of programming by such station would 
address local news and informational needs not being adequately served 
by full-power television stations, because such full-power stations are 
distant from the LPTV station's community of license. In addition, the 
LPTV station must comply with the Commission's interference regulations 
for LPTV stations; it must be within 35 miles of the cable system's 
principal headend and deliver to the headend a good quality over-the-
air signal; its community of license and the franchise area of the 
cable system must both have been located outside of the largest 160 
Metropolitan Statistical Areas (``MSAs'') on June 30, 1990, and the 
population of the LPTV station's community of license on that date must 
not have exceeded 35,000; and there cannot be any full-power television 
station licensed to any community

[[Page 64263]]

within the county or other political subdivision (of a State) served by 
the cable system. 47 CFR 76.55(d). As noted above, the Commission has 
previously made clear that Section 614(a) of the Act, which applies to 
both commercial full-power and low-power stations, ``does not 
distinguish between analog and digital signals and supports the 
argument that digital signals are entitled to mandatory carriage.'' As 
the Commission stated in 2001, when a broadcast station that is 
otherwise entitled to carriage terminates its analog signals and 
operates as a digital-only station, it does not lose its carriage 
rights. We clarify here that this determination applies equally to 
full- and low-power stations. The First Report and Order determined 
that, for a ``limited time,'' digital-only full-power stations could 
either demand carriage in digital or pay to downconvert their signal to 
analog for carriage in analog. This interim viewability rule has been 
in effect since 2001, giving full-power must-carry stations the option 
to demand analog downconversion in order to make their signals as 
widely viewable as possible.
    21. Although the First Report and Order did not specifically 
address the carriage of digital low-power stations, the Commission did 
tentatively conclude that, as to commercial full-power stations, low-
power stations, and noncommercial educational stations it had ``no need 
to deviate from the existing eligibility requirements for these three 
categories of stations.'' The provisions establishing mandatory 
carriage of low-power stations, at section 614(h)(2) of the Act, make 
no distinction between digital and analog low-power stations. Indeed, 
by their terms these provisions apply to ``any television broadcast 
station'' conforming to the Part 74 Rules and the elements of section 
614(h)(2). The Commission found in 2001 that simply the absence of a 
distinction between analog and digital supported mandatory digital 
carriage, and the stronger wording of section 614(h)(2) is 
significantly more persuasive. But, because of the growing number of 
low-power stations broadcasting in digital, and the potential for 
uncertainty, we see a need to provide additional guidance in this 
matter. We therefore clarify that qualified low-power digital-only 
stations should be accorded the carriage rights they could have 
demanded for their analog signal. The Communications Act at section 
614(b)(7) requires that all stations carried pursuant to mandatory 
carriage, including low-power stations, be made viewable to all 
subscribers. Nonetheless, in the period remaining before the full-power 
DTV transition, we will permit cable operators to carry low-power 
digital-only stations in the same manner as full-power digital-only 
stations--in either analog or digital, at the broadcaster's discretion. 
Thus, if a qualified low-power station becomes digital-only, it may 
elect carriage of its signal in digital, or may choose to pay to 
downconvert the signal for carriage in analog. As of February 18, 2009, 
all signals carried pursuant to mandatory carriage must again be made 
viewable to all subscribers.
    22. Although the language of the Act and our Rules does not 
distinguish between analog and digital-only stations, we do find that 
the Note to Sec.  76.55(d) is no longer fully accurate, as it addresses 
only the signal strength of analog signals. Just as for commercial 
full-power stations, the Note currently states that a good quality 
signal level for analog is -45 dBm for UHF signals and -49 dBm for VHF 
signals. The Cable Act, which established the -45/-49 dBm standard for 
commercial full-power stations, is silent on the definition of ``good 
quality signal'' for the purposes of carriage of low-power stations. 
Acknowledging this, in a Memorandum Opinion and Order issued to 
finalize several questions regarding implementation of the Cable Act, 
the Commission, on its own motion, adopted the full-power commercial 
signal quality standards for low-power stations (and noncommercial 
stations). In the 1998 NPRM, the Commission asked whether ``new good 
quality signal parameters'' were necessary for digital signals, and, 
consistent with the rules established in 1994, made no distinction 
among commercial, noncommercial, and low-power stations. In the First 
Report and Order, the Commission established -61 dBm as the signal 
level necessary to provide a ``good quality digital television signal 
at a cable system's principal headend,'' again making no distinction 
among commercial, noncommercial, and low-power stations.
    23. In line with the Commission's consistent practice of aligning 
the ``good quality signal'' standards for commercial, noncommercial, 
and low-power stations, we find good cause to adopt, on a temporary 
basis, a digital signal strength requirement for carriage of low-power 
stations also using -61 dBm at the cable system headend. WKFK's 
Petition makes clear that a delay in resolution of this question could 
inhibit investment on the part of low-power station owners who seek to 
transition their stations to digital. As discussed above, there is 
ample history supporting an alignment of the full-power and low-power 
standards, and thus no basis on which an industry participant might 
have reasonably assumed that there would be a distinction between them 
in digital. Furthermore, the Commission sought comment on what would 
constitute a ``good quality signal'' for all digital signals in the 
1998 NPRM, and there is no evidence in the record that would support 
making any distinction among digital signals from different sources. 
Thus, pending the adoption of a final amendment to the Note to Sec.  
76.55(d), we will permit low-power mandatory-carriage analog stations 
that begin broadcasting in digital-only to demand carriage of their 
digital signal so long as they provide a signal strength of at least -
61 dBm to the cable system's headend.
2. Petition for Declaratory Ruling of WKFK
    24. In light of this clarification, we grant WKFK's request for a 
declaratory ruling. If WKFK begins broadcasting in digital-only, it 
will have rights of carriage on the systems on which it may now demand 
carriage, so long as it provides a signal strength of -61 dBm at each 
system's headend.

IV. Ordering Clauses

    25. It is ordered that, pursuant to the authority contained in 
sections 1, 4, 303, 614, and 615 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154, 303, 534, and 535, this Declaratory Order 
is adopted.
    26. It is further ordered that the Petition for Declaratory Ruling 
filed by NCN Cable Advertising, licensee of WKFK-LP, Pascagoula, 
Mississippi, is granted to the extent described herein.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-25798 Filed 10-28-08; 8:45 am]
BILLING CODE 6712-01-P