[Federal Register Volume 74, Number 1 (Friday, January 2, 2009)]
[Proposed Rules]
[Pages 61-67]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31227]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MB Docket No. 08-253; FCC 08-278]


Replacement Digital Television Translator Service

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission proposes and seeks comment on 
rules that would create a new ``replacement'' digital television 
translator service. The new replacement

[[Page 62]]

digital television translator service will permit full-service 
television stations to continue to provide service to viewers within 
their coverage area who have lost service as a result of those 
stations' digital transition. We seek comment on how to implement this 
new service and tentatively conclude that it should be subject to all 
other rules for television translators with respect to secondary 
frequency use, filing and processing of applications, construction, and 
operation. Finally, we announce interim filing procedures to begin 
acceptance of applications for replacement translators and the 
authorization of temporary facilities.

DATES: Comments for this proceeding are due on or before January 12, 
2009; reply comments are due on or before January 22, 2009.

ADDRESSES: You may submit comments, identified by MB Docket No. 08-253 
and/or FCC 08-278, by any of the following methods:
    [dec221] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [dec221] Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
    [dec221] Mail: 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.
    [dec221] 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: Shaun Maher, [email protected] of the 
Media Bureau, Video Division, (202) 418-1600. For additional 
information concerning the Paperwork Reduction Act information 
collection requirements contained in this document, send an e-mail to 
[email protected] or contact Cathy Williams at (202) 418-2918, or via e-mail 
at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking, FCC 08-278, adopted on December 22, 2008, and 
released on December 23, 2009. 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. It may also be 
purchased from the Commission's duplicating contractor at Portals II, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554; the 
contractor's Web site: http://www.bcpiweb.com; or by calling (800) 378-
3160, facsimile (202) 488-5563, or e-mail [email protected]. 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.) Additionally, the complete item is available on the 
Federal Communications Web site at http://www.fcc.gov. 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).
    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 
CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking 
Portal, or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
    [dec221] 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 Web site for submitting 
comments.
    [dec221] 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.
    [dec221] 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.
    [dec221] 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.
    [dec221] 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.
    [dec221] U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to [email protected] or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (tty).

Initial Paperwork Reduction Act of 1995 Analysis

    This Notice of Proposed Rulemaking was analyzed with respect to the 
Paperwork Reduction Act of 1995 (``PRA'') \1\ and will revise an 
existing information collection.\2\ The Commission will seek approval 
under the PRA under OMB's emergency processing rules \3\ for this 
information collection requirement in order to

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implement the rules and policies for a new replacement digital low 
power television (LPTV) translator service that would permit full-
service television stations to continue to provide service to viewers 
within their coverage area who have lost service as a result of those 
stations' digital transition. We believe there is good cause for 
requesting emergency PRA approval from OMB due to the statutory digital 
television transition deadline of February 17, 2009.\4\
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    \1\ The Paperwork Reduction Act of 1995 (``PRA''), Public Law 
104-13, 109 Stat 163 (1995) (codified in Chapter 25 of Title 44 
U.S.C.).
    \2\ The existing information collection that will be revised to 
add the new proposed information collection requirement is OMB 
control number 3060-1086. The new proposed information collection 
requirement is contained in 47 CFR 74.787(a)(i)(5).
    \3\ See 5 CFR 1320.13.
    \4\ Due to the short time frame provided for the Commission to 
act on the new replacement digital low power television translator 
service, we requested and received OMB approval to waive Federal 
Register notice for this emergency request under the PRA. See 5 CFR 
1320.13(d).
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Synopsis

Creation of New Replacement Digital Television Translator Service

    We tentatively conclude that replacement translators should be 
licensed only for digital operation and should be licensed only on 
channels 2-59 and not for out-of-core channels 60-69. In order to 
prevent possible interference to public safety entities, and avoid the 
potential for displacement of replacement translator facilities, we 
believe that replacement translators should not be licensed on channels 
60-69. We tentatively conclude that stations seeking a replacement 
translator on channels 52-59 be required to certify in their 
applications the unavailability of any suitable in-core channel for 
this purpose. We propose defining ``suitable in-core channel'' as one 
that would enable the station to produce a digital service area 
comparable to its analog service area. This is similar to the 
requirement we adopted for stations proposing a digital companion 
channel on channels 52-59.\5\ We further propose requiring stations 
seeking replacement translators on channels 52-59 to provide the 
notifications to wireless licensees that we adopted for low power 
television and TV translator stations seeking to flash cut or a digital 
companion channel on channels 52-59.\6\ We seek comment on these 
proposals.
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    \5\ See Amendment of Parts 73 and 74 of the Commission's Rules 
to Establish Rules for Digital Low Power Television, Television 
Translator, and Television Booster Stations and to Amend Rules for 
Digital Class A Television Stations, 19 FCC Rcd 19331, 71 (2004).
    \6\ Id. Low power television and TV translator station digital 
flash cut and digital companion channel applicants on channels 52-59 
are required to notify all potentially affected 700 MHz commercial 
wireless licensees of the spectrum comprising the proposed TV 
channel and the spectrum in the first adjacent channels thereto. 
They are also required to provide notification to co-channel and 
first adjacent channel licensees whose geographic service area 
boundaries lie within 75 miles and 50 miles, respectively, of the 
proposed digital LPTV or TV translator station location. A station 
seeking an on-channel digital conversion must provide such written 
notification at least 30 days in advance of filing its minor change 
application. An applicant for a digital companion channel must 
provide the required notifications within 30 days of submitting its 
``long-form'' application. In both cases, applicants must certify in 
their applications that the notification requirements have been met.
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    We further tentatively conclude that applications for replacement 
translators should be given licensing priority over all other low power 
television and TV translator applications except displacement 
applications (for which they would have co-equal priority). Therefore, 
a replacement translator application, when filed, would have processing 
priority over other applications for new stations, major changes and 
minor changes. Furthermore, we tentatively conclude that we should 
limit the eligibility for such service to only those full-service 
television stations that can demonstrate that a portion of their analog 
service area \7\ will not be served by their full, post-transition 
digital facilities and for translators to be used for that purpose. We 
seek comment on these tentative conclusions.
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    \7\ We define ``analog service area'' as the authorized service 
area actually served by the analog signal prior to analog 
termination for the transition, consistent with our approach in the 
DTS proceeding. See DTS Report and Order at 28.
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    In Unlicensed Operation in the TV Broadcast Bands, we adopted rules 
to allow unlicensed radio transmitters to operate in the broadcast 
television spectrum at locations where that spectrum is not being used 
by licensed services (this unused TV spectrum is often termed ``white 
spaces'').\8\ Unlicensed devices must fully protect the licensed 
services, such as television translators, that operate in the TV bands. 
We seek to comment on the effect, if any, of this new translator 
service on the prospects for future white spaces use of the spectrum.
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    \8\ See Unlicensed Operation in the TV Broadcast Bands, ET 
Docket No. 04-186, Second Report and Order and Memorandum Opinion 
and Order, FCC 08-260, November 14, 2008 (Unlicensed Operation in 
the TV Broadcast Bands).
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    We further tentatively conclude that the service area of the 
replacement translator should be limited to only a demonstrated loss 
area and seek comment on whether a replacement translator should be 
permitted to expand nominally a full-service station's post-transition, 
digital service area in order to fully cover the loss area. We 
recognize that it may be impossible for some full-service stations to 
site a translator that replaces a loss area without also slightly 
expanding the station's digital service area. Although we seek to limit 
these new translators to replacing service in a loss area, and not to 
expanding service, we tentatively conclude that we should allow de 
minimis expansion of service and seek comment on how to define the term 
``de minimis'' in this context.
    We tentatively conclude that replacement digital television 
translator stations should be licensed with ``secondary'' frequency use 
status. These stations would not be permitted to cause interference to, 
and must accept interference from, full-service television stations, 
certain land mobile radio operations and other primary services.\9\
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    \9\ See, e.g., 47 CFR 74.703, 74.709, 90.303.
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Licensing of Replacement Digital Television Translator Stations

    We tentatively conclude that, unlike other television translator 
licenses, the license for the replacement translator will be associated 
with the full power station's main license.\10\ Therefore, the 
replacement translator license could not be separately assigned or 
transferred and would be renewed or assigned along with the full-
service station's main license. We believe that such a measure is 
necessary to ensure that the replacement translator service is limited 
to only those situations where a station seeks to restore service to a 
loss area and is used for that purpose.
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    \10\ See 47 CFR 73.3540(e).
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    We tentatively conclude that the other rules associated with 
television translator stations would apply to the new replacement 
translator service, including those rules concerning the filing of 
applications,\11\ payment of filing fees,\12\ processing of 
applications,\13\ power limits,\14\ out-of-channel emission limits,\15\ 
call signs,\16\ unattended operation,\17\ and time of operation.\18\ We 
tentatively conclude that stations seeking a replacement digital 
television translator would submit a completed FCC Form 346 and pay the 
requisite $675.00 filing fee for a new station. The Commission would 
process such applications, and those found acceptable would be placed 
on a ``proposed grant'' public notice subject to petitions to deny. New 
stations would receive a call sign assigned to digital translator 
stations (e.g., K20AA-D). Although we expect full-service stations

[[Page 64]]

to quickly construct their replacement translator facilities, we seek 
comment on whether to limit the construction period for replacement 
translators to six months. Although TV translators are ordinarily 
afforded a three-year period for completion of construction,\19\ we 
believe that expedited construction of replacement translators is vital 
to the continued provision of television service following the digital 
transition and that a shorter construction period is warranted.
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    \11\ See 47 CFR 73.3572(a)(2).
    \12\ See 47 CFR 1.1102.
    \13\ See 47 CFR 73.3572(a). Cite rule on processing of 
translator applications.
    \14\ See 47 CFR 74.735.
    \15\ See 47 CFR 74.736.
    \16\ See 47 CFR 74.791.
    \17\ See 47 CFR 74.734.
    \18\ See 47 CFR 74.763.
    \19\ See 47 CFR 73.3598.
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Interim Filing Procedures

    In order to preserve service to possible loss areas and expedite 
the future consideration of applications for replacement translator 
facilities, we will begin accepting applications for replacement 
digital television translator stations following the release date of 
this Notice of Proposed Rulemaking. We will withhold the processing of 
such applications pending the outcome of this proceeding.\20\ In the 
interim full-service stations will be permitted to submit requests for 
special temporary authority (STA) pursuant to our existing STA 
procedures in order to operate temporary replacement translator 
facilities during the pendency of this proceeding. Applications will be 
filed on a first-come, first-serve basis.\21\ If we adopt our proposal 
to create this new service, and provide with them a processing 
priority, the processing of applications for replacement translators 
will be completed and mutually exclusive applications will be resolved 
by our broadcast competitive bidding rules.\22\ We propose to allow a 
10-day opportunity for mutually exclusive replacement translator 
applicants to settle or otherwise find an engineering solution to 
resolve their mutual exclusivity. We propose that this will expedite 
the final processing of such applications and ensure that stations are 
able to replace service to loss areas as quickly as possible.
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    \20\ We delegate to the Media Bureau authority to announce the 
exact date that applications for replacement translator stations 
will begin to be accepted and the interim procedures and policies 
that will be applied to such filings.
    \21\ Any applications filed on or before the effective date of 
any rules adopted in this proceeding will be treated as if they were 
filed the day after the effective date.
    \22\ See 47 CFR 73.5000 et seq.
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Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(``RFA'') \23\ the Commission has prepared this present Initial 
Regulatory Flexibility Analysis (``IRFA'') concerning the possible 
significant economic impact on small entities by the policies and rules 
proposed in this Notice of Proposed Rulemaking (NPRM). Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
indicated on the first page of the NPRM. The Commission will send a 
copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA).\24\ In addition, 
the NPRM and IRFA (or summaries thereof) will be published in the 
Federal Register.\25\
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    \23\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 
847 (1996).
    \24\ See 5 U.S.C. 603(a).
    \25\ See id. 603(a).
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Need for and Objectives of the Proposed Rules

    Full-service television stations have been undertaking changes to 
their final, post-transition digital facilities in order to continue to 
provide the high level of service to their community of license after 
the completion of the digital transition. In some cases, a portion of 
the existing analog service areas of some full-service stations will no 
longer be able to receive service after the station transitions to 
digital broadcasting. Some of these ``loss'' areas are a result of 
unavoidable engineering changes that stations were required to 
implement in order to avoid interference or other problems on their 
post-transition digital channel. At times, the analog signal of certain 
full-service stations could not be replicated because of technical 
complexities. To assist full-service stations to replace service to 
these loss areas, this NPRM proposes to establish a new ``replacement'' 
digital television translator service that would permit full-service 
television stations to obtain new digital translators to maintain 
existing service and request comment on an expedited basis.
    The NPRM tentatively concludes that replacement translators should 
be licensed only for digital operation and should be licensed on only 
channels 2-59 and not for out-of-core channels 60-69. The NPRM 
tentatively concludes that stations seeking a replacement translator on 
channels 52-59 be required to certify in their applications the 
unavailability of any suitable in-core channel for this purpose.
    The NPRM further tentatively concludes that applications for 
replacement translators should be given licensing priority over all 
other low power television and TV translator applications except 
displacement applications (for which they would have co-equal 
priority). The NPRM also tentatively concludes that the Commission 
should limit the eligibility for such service to only those full-
service television stations that can demonstrate that a portion of 
their analog service area will not be served by their full, post-
transition digital facilities and for translators to be used for that 
purpose. The NPRM further tentatively concludes that the service area 
of the replacement translator should be limited to only a demonstrated 
loss area and seeks comment on whether a replacement translator should 
be permitted to expand slightly a full-service station's post-
transition, digital service area. Finally, the NPRM tentatively 
concludes that replacement digital television translator stations 
should be licensed with ``secondary'' frequency use status.
    The NPRM tentatively concludes that, unlike other television 
translator licenses, the license for the replacement translator should 
be associated with the full power station's main license. Therefore, 
the replacement translator license could not be separately assigned or 
transferred and would be renewed or assigned along with the full-
service station's main license. The NPRM also tentatively concludes 
that the other rules associated with television translator stations 
would apply to the new replacement translator service including those 
rules concerning the filing of applications, payment of filing fees, 
processing of applications, power limits, out-of-channel emission 
limits, call signs, unattended operation, and time of operation. The 
NPRM seeks comment whether to limit the construction period for 
replacement translators to six months.
    In order to preserve service to possible loss areas, and expedite 
the future consideration of applications for replacement translator 
facilities, the NPRM announces that the Commission will begin accepting 
applications for replacement digital television translator stations 
following the release date of the NPRM. The Commission will withhold 
the processing of such applications pending the outcome of the 
rulemaking proceeding. In the interim, full-service stations will be 
permitted to submit requests for special temporary authority (STA) in 
order to operate temporary replacement translator facilities during the 
pendency of this proceeding. The NPRM delegates to the Media Bureau 
authority to announce the exact date that applications for replacement 
translator stations will begin to be

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accepted and the interim procedures and policies that will be applied 
to such filings. Applications will be filed on a first-come, first-
serve basis.

Legal Basis

    The authority for the action proposed in this rulemaking is 
contained in Sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309, 
312, 316, 318, 319, 324, 325, 336, 337, 614 and 615 of the 
Communications Act of 1934, 47 U.S.C. 151, 154(i) and (j), 157, 301, 
302a, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, 337, 534, 
and 535.

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

    The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the proposed rules, if adopted.\26\ The RFA generally 
defines the term ``small entity'' as having the same meaning as the 
terms ``small business,'' ``small organization,'' and ``small 
government jurisdiction.'' \27\ In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act.\28\ A small business concern is one 
which: (1) Is independently owned and operated; (2) is not dominant in 
its field of operation; and (3) satisfies any additional criteria 
established by the SBA.\29\
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    \26\ Id. at 603(b)(3).
    \27\ 5 U.S.C. 601(6).
    \28\ Id. Section 601(3) (incorporating by reference the 
definition of ``small business concern'' in 15 U.S.C. 632). Pursuant 
to 5 U.S.C. 601(3), the statutory definition of a small business 
applies ``unless an agency, after consultation with the Office of 
Advocacy of the Small Business Administration and after opportunity 
for public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \29\ 15 U.S.C. 632. Application of the statutory criteria of 
dominance in its field of operation and independence are sometimes 
difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
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    Television Broadcasting. The SBA defines a television broadcasting 
station as a small business if such station has no more than $14 
million in annual receipts.\30\ Business concerns included in this 
industry are those ``primarily engaged in broadcasting images together 
with sound.'' \31\ According to Commission staff review of the BIA 
Publications, Inc. Master Access Television Analyzer Database (BIA) on 
March 30, 2007, about 986 of an estimated 1,374 commercial television 
stations \32\ (or approximately 72 percent) have revenues of $13.5 
million or less and thus qualify as small entities under the SBA 
definition. We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \33\ must be included. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. The Commission 
has estimated the number of licensed NCE television stations to be 
380.\34\ The Commission does not compile and otherwise does not have 
access to information on the revenue of NCE stations that would permit 
it to determine how many such stations would qualify as small entities.
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    \30\ See 13 CFR 121.201, NAICS Code 515120 (adopted Oct. 2002).
    \31\ NAICS Code 515120. This category description continues, 
``These establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \32\ Although we are using BIA's estimate for purposes of this 
revenue comparison, the Commission has estimated the number of 
licensed commercial television stations to be 1374. See News 
Release, ``Broadcast Station Totals as of December 31, 2006'' (dated 
Jan. 26, 2007); see http://www.fcc.gov/mb/audio/totals/bt061231.html.
    \33\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has to power to control both.'' 13 CFR 
121.103(a)(1).
    \34\ Broadcast Stations Total as of December 31, 2006.
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    Class A TV, LPTV, and TV Translator Stations. The same SBA 
definition that applies to television broadcast licensees would apply 
to these stations. The SBA defines a television broadcast station as a 
small business if such station has no more than $14 million in annual 
receipts.\35\
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    \35\ See 13 CFR 121.201, NAICS Code 515120.
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    Currently, there are approximately 567 licensed Class A stations, 
2,227 licensed LPTV stations, 4,518 licensed TV translators and 11 TV 
booster stations.\36\ Given the nature of these services, we will 
presume that all of these licensees qualify as small entities under the 
SBA definition. We note, however, that under the SBA's definition, 
revenue of affiliates that are not LPTV stations should be aggregated 
with the LPTV station revenues in determining whether a concern is 
small. Our estimate may thus overstate the number of small entities 
since the revenue figure on which it is based does not include or 
aggregate revenues from non-LPTV affiliated companies. We do not have 
data on revenues of TV translator or TV booster stations, but virtually 
all of these entities are also likely to have revenues of less than $13 
million and thus may be categorized as small, except to the extent that 
revenues of affiliated non-translator or booster entities should be 
considered.
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    \36\ See News Release, ``Broadcast Station Totals as of December 
31, 2006'' (dated Jan. 26, 2007); http://www.fcc.gov/mb/audio/totals/bt061231.html.
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    In addition, an element of the definition of ``small business'' is 
that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply does not exclude any television station from the 
definition of a small business on this basis and is therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    The NPRM proposes one new reporting requirement. The NPRM proposes 
that full-service stations seeking a new replacement digital television 
translator station submit a showing with their FCC Form 346 that they 
have a loss area as a result of their transition to digital and that 
the proposed replacement translator will serve the loss area. The new 
reporting requirement will not differently affect small entities.

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

    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,

[[Page 66]]

consolidation, or simplification of compliance or 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.\37\
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    \37\ 5 U.S.C. 603(c)(1)-(c)(4).
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    The Commission is aware that some full service television stations 
operate with limited budgets. Accordingly, every effort was taken to 
propose rules that impose the least possible burden on all licensees, 
including smaller licensed entities. Existing rules, forms and 
procedures will be used to implement this new service thereby reducing 
the burden on small entities.
    The NPRM tentatively concludes that replacement translators should 
be licensed only for digital operation and should be licensed on only 
channels 2-59 and not for out-of-core channels 60-69. Alternatively, 
the Commission could have allowed stations to file for analog 
facilities but the digital transition for full power stations is 
closely approaching thus making the need for further analog service 
unnecessary. Further, the Commission could have allowed for replacement 
translators to be filed on channels 60-69, but it is likely that these 
stations would very quickly be displaced by wireless and public safety 
entities and small entities would waste their resources and time having 
to find a new channel for their proposed facility. The NPRM tentatively 
concludes that stations seeking a replacement translator on channels 
52-59 be required to certify in their applications the unavailability 
of any suitable in-core channel for this purpose. The alternative 
approach would be to not require a certification, but that could lead 
to administrative delay and a waste of administrative resources as the 
staff would have to verify the lack of channels.
    The NPRM further tentatively concludes that applications for 
replacement translators should be given licensing priority over all 
other low power television and TV translator applications except 
displacement applications (for which they would have co-equal 
priority). The Commission could have proposed allowing no such 
priority, but this alternative was not considered because it would 
result in many more mutually exclusive filings and delay the 
implementation of this valuable service. The NPRM also tentatively 
concludes that the Commission should limit the eligibility for such 
service to only those full-service television stations that can 
demonstrate that a portion of their analog service area will not be 
served by their full, post-transition digital facilities and for 
translators to be used for that purpose. Alternatively, the Commission 
could have allowed all interested parties to file for new translators, 
however such approach was not considered because it would also result 
in numerous mutually exclusive filings and would greatly delay 
implementation of this needed service. The NPRM further tentatively 
concludes that the service area of the replacement translator should be 
limited to only a demonstrated loss area and seeks comment on whether a 
replacement translator should be permitted to expand slightly a full-
service station's post-transition, digital service area. Once again, 
the Commission could have allowed stations to file for expansion of 
their existing service areas but such an alternative was not seriously 
considered because it could result in the use of valuable spectrum that 
the Commission seeks to preserve for other uses such as new digital low 
power service. Finally, the NPRM tentatively concludes that replacement 
digital television translator stations should be licensed with 
``secondary'' frequency use status. The Commission could have proposed 
that replacement translators be licensed on a primary frequency use 
basis, but this alternative was not proposed because it would result in 
numerous interference and licensing problems and could disrupt the 
full-power digital transition.
    The NPRM tentatively concludes that, unlike other television 
translator licenses, the license for the replacement translator should 
be associated with the full power station's main license. Therefore, 
the replacement translator license could not be separately assigned or 
transferred and would be renewed or assigned along with the full-
service station's main license. Alternatively, the Commission could 
have proposed that the replacement translator license be separate from 
the main station's license, however this approach was not seriously 
considered because it could result in licenses being sold or modified 
to serve areas outside of the loss area, would undermine the purpose of 
this new service. The NPRM also tentatively concludes that the other 
rules associated with television translator stations would apply to the 
new replacement translator service including those rules concerning the 
filing of applications, payment of filing fees, processing of 
applications, power limits, out-of-channel emission limits, call signs, 
unattended operation, and time of operation. The alternative could have 
been to design all new rules for this service, but that alternative was 
not considered as it would adversely impact stations' ability to 
quickly implement these new translators. The NPRM seeks comment whether 
to limit the construction period for replacement translators to six 
months. Alternatively, the Commission could have proposed that the 
existing three-year construction period be allowed, however that 
alternative was not proposed in an effort to ensure that replacement 
translators are built and operating quickly to replace loss areas.

Federal Rules Which Duplicate, Overlap, or Conflict With the 
Commission's Proposals

    None.
    The Commission will send a copy of the Notice of Proposed 
Rulemaking, including the Initial Regulatory Flexibility Analysis, to 
the Chief Counsel for Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 74

    Television, Television broadcasting, Low power television.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 74 as follows:

PART 74--EXPERIMENTAL RADIO AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

    1. The authority for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.


Sec.  74.787  [Amended]

    2. Section 73.787 is amended by adding paragraph (a)(5) to read as 
follows:


Sec.  74.787  Digital licensing.

    (a) * * *
    (5) Application for replacement digital television translator.
    (i) An application for replacement digital television translator 
may be filed by a full-service television station that can demonstrate 
that a portion of its analog service area will not be served by its 
full, post-transition digital facilities. Replacement digital 
television translator may operate on channels 2-59. Applications for 
replacement digital television translator shall be given licensing 
priority over all other low power television and TV translator 
applications except displacement applications (for which they shall 
have

[[Page 67]]

co-equal priority). The service area of the replacement translator 
shall be limited to only a demonstrated loss area. The license for the 
replacement digital television translator will be associated with the 
full power station's main license and may not be separately assigned or 
transferred and will be renewed with the full-service station's main 
license.
    (ii) Each original construction permit for the construction of a 
replacement digital television translator station shall specify a 
period of six months from the date of issuance of the original 
construction permit within which construction shall be completed and 
application for license filed. The provisions of Sec.  74.788(c) shall 
apply for stations seeking additional time to complete construction of 
their replacement digital television translator station.
    (iii) A public notice will specify the date upon which interested 
parties may begin to file applications for replacement digital 
television translators. Such applications shall be filed on FCC Form 
346, shall be subject to the appropriate application fee and shall be 
accepted on a first-come, first-serve basis. Mutually exclusive 
applications shall be resolved via the Commission's part 1 and 
broadcast competitive bidding rules, Sec.  1.2100 et seq. and Sec.  
73.5000 et seq. of this chapter.
* * * * *
[FR Doc. E8-31227 Filed 12-29-08; 4:15 pm]
BILLING CODE 6712-01-P