EPA Region 3 is publishing this direct final Notice of Partial Deletion for the Rentokil, Inc. (Virginia Wood Preserving Division) Superfund Site (Site), from the National Priorities List (NPL). This partial deletion pertains to the soil and sediment of former Wetland Areas B and C and the ground water at former Wetland Area C. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), that EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended, 42 U.S.C. 9605. EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and maintains the NPL as the list of these sites. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Rentokil, Inc. (Virginia Wood Preserving Division) Superfund Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55,466 (Nov. 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions. Whenever there is a significant release from a site deleted or partially deleted from the NPL, the site shall be restored to the NPL.

Because EPA considers this action to be noncontroversial and routine, this action will be effective March 30, 2009 unless EPA receives adverse comments by February 26, 2009. Along with this direct final Notice of Partial Deletion, EPA is co-publishing a Notice of Intent for Partial Deletion in the “Proposed Rules” section of the Federal Register . If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely withdrawal of this direct final Notice of Partial Deletion before the effective date of the partial deletion and the partial deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses former Wetland Areas B and C of the Site and demonstrates how the deletion criteria are met. Section V discusses EPA's action to partially delete the Site parcels from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

The following procedures apply to the deletion of the soil and sediment of former Wetland Areas B and C and the ground water at former Wetland Area C of the Site:

(1) EPA has consulted with the Commonwealth of Virginia prior to developing this direct final Notice of Partial Deletion and the Notice of Intent for Partial Deletion co-published in the “Proposed Rules” section of the Federal Register .

(2) EPA has provided the Commonwealth 30 working days for review of this notice and the parallel Notice of Intent for Partial Deletion prior to their publication today, and the Commonwealth, through the Virginia Department of Environmental Quality (VDEQ), has concurred on the partial deletion of the Site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion is being published in a major local newspaper, the Richmond Times Dispatch. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.

(4) The EPA has placed copies of documents supporting the partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this partial deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Partial Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent for Partial Deletion and the comments already received.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a portion of a site from the NPL does not preclude eligibility for further response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the soil and sediment at former Wetland Areas B and C and the ground water at former Wetland Area C of the Rentokil, Inc. Superfund Site from the NPL:

The Rentokil, Inc. Superfund Site (Site) is a former wood treating facility that operated under the name of Virginia Wood Preservers and that ceased operating in January 1990. The Site is located at 3000 Peyton Street at the intersection of Peyton Street and Ackley Avenue in Henrico County, near Richmond, Virginia. The Site includes the former wood treatment process area, the wood drying areas, Wetland Area A, and the two former wetland areas (Wetland Areas B and C). None of the wetland areas were used in the wood treating process; these areas became contaminated by runoff from the Site. Wetland Area A, the area immediately north of the former process area, is located within the flood plain of an unnamed tributary to North Run. Wetland Area A was remediated and re-vegetated to remain a wetland. Former Wetland Area B, the area at the southeast corner of the Site, and former Wetland Area C, the area immediately south of the Site which is across Peyton Street, were connected by two culverts under Peyton Avenue. Surface runoff discharged from the Site through a ditch to former Wetland B, where it was retained and discharged to former Wetland C when flow was high. A ditch along the north side of Peyton Avenue also collected runoff from the Site. This runoff flowed through the west culvert to former Wetland Area C. A ditch parallel to the south side of Peyton Avenue carried runoff from former Wetland Area C to the east and ultimately to a 24-inch culvert under Ackley Avenue. Because the invert of the 24-inch culvert was about two feet above the flow line of the south ditch and the normal elevation of former Wetland Area C, Site-related runoff waters were retained within former Wetland Area C.

Wood treating operations at the Site were initiated in 1957 and continued under several different owners/operators. In 1974, Rentokil, Inc. purchased the stock of TaCo, one of the previous owners. Both TaCo and the Virginia Wood Preserving Corporation (the owner prior to 1974) were subsequently merged into Rentokil. Rentokil later changed its name to Rentokil SupaTimber, Inc. and, in September 1989, changed its name to Virginia Properties, Inc. (VPI), a wholly owned subsidiary of Rentokil, Inc.

The land immediately surrounding the Site is mostly open space/woodlands. Nearby development is comprised of light industrial, commercial, and low density residential. A private developer has purchased former Wetland Area B in preparation of placing new commercial/office buildings in this area. The surrounding area is served by public water supply.

EPA proposed that the Site be listed on the NPL in January 1987. The Site was placed on the NPL in March 1989. Pursuant to CERCLA, Rentokil, Inc. and EPA signed an Administrative Order by Consent in December 1987 to conduct a Remedial Investigation/Feasibility Study (RI/FS) to identify the types, quantities, and locations of contaminants and to develop ways of addressing Site contamination. The two phases of field work for the RI were conducted from May to August 1989 and from June to July 1991. In March 1992, VPI and EPA entered into an Administrative Order by Consent for Removal Action (Order). The purpose of the Order was to design and construct sediment control structures to prevent additional migration of contaminated sediment from the Site into North Run Creek. These structures were completed by June 22, 1992.

EPA issued a Record of Decision (ROD) for the Site on June 22, 1993. The ROD addressed all aspects of Site cleanup: Existing structures, “hot spots”, ground water, surface water, soil, sediment, mitigation for the loss of wetlands, and institutional controls, as described more completely below. A Consent Decree, whereby VPI agreed to implement the requirements of the ROD, was signed by VPI in 1994.

Analytical results of the sampling performed for the RI indicate that the surface soil, subsurface soil, ground water, and sediments posed unacceptable risks to human health and the environment, mainly through exposure to the following Site-related contaminants: Arsenic, chromium, copper, pentachlorophenol, and polynuclear aromatic hydrocarbons (from using creosote).

The major components of the remedy selected in the ROD include: Demolition, decontamination, and off-site disposal of the existing structures; excavation, treatment (if necessary) and off-site disposal of the on-site pond sediments; excavation and on-site disposal of the contaminated soil and sediment in Wetland Areas A, B, and C; construction of an impermeable cap; excavation, low temperature thermal desorption treatment, and on-site disposal of the “hot spots”, the soil in the CCA Disposal Area, the Fill Area, and the source material within 25 feet of the concrete drip pad, the on-site pond, and the former blowdown sump; construction of a slurry wall; construction of a dewatering system within the cap/slurry wall containment system; institutional controls; mitigation for the loss or damage to the wetland areas; and, long-term ground water monitoring.

Although Remedial Action Objectives were not specifically identified in the ROD, the following objectives can be inferred from the major components of the remedy: Reduce risks to human health by preventing direct contact with, and ingestion of, contaminants in the site soil, wetland sediments, and pond sediments, and by preventing potential ingestion of contaminated ground water; reduce risks to the environment by preventing direct contact with, and ingestion of, contaminants in the wetland sediments; minimize the migration of contaminants from site soil and wetland sediments that could result in surface water concentrations in excess of Ambient Water Quality Criteria; eliminate or minimize the threat posed to human health and the environment by preventing exposure to the contaminants in the ground water; and contain contaminated ground water to protect human health and the environment.

EPA amended the ROD on August 27, 1996, with the concurrence of VDEQ to delete the requirement for treatment of the “hot spots” at the Site because ground water modeling indicated that treating the “hot spots” had no effect on the levels of contaminants in the ground water.

Remedial construction of former Wetland Area B started in June 1998 with the clearing and grubbing of the existing vegetation. All of the clearing and grubbing materials were chipped in a tub grinder and were disposed of at the Old Dominion (BFI) landfill in Richmond, Virginia. Excavation of the top 24 inches of contaminated soil occurred in July 1998, immediately followed by backfilling the excavated area with clean soil. The remedial construction was completed in August 1998 when the area was seeded with an approved seed mix. A total of 3,339 cubic yards of contaminated soil was excavated and placed under the cap constructed in the area of the former rail spur.

Remedial construction of former Wetland Area C also started in June 1998 with the clearing and grubbing of the existing vegetation. All of the clearing and grubbing materials were chipped in a tub grinder and were disposed of at the Old Dominion (BFI) landfill in Richmond, Virginia. Excavation of the top 24 inches of contaminated soil occurred in August 1998, immediately followed by backfilling the excavated area with clean soil. The remedial construction was completed in October 1998 when the area was seeded with an approved seed mix. A total of 5,380 cubic yards of contaminated soil was excavated and placed under the cap constructed in the area of the former rail spur.

In the ROD, EPA, with the advice of the U.S. Fish and Wildlife Service, selected wetlands mitigation because of the damage caused to former Wetland Areas B and C. The mitigation consisted of purchasing approximately 6.81 acres of prior converted cropland and reconstructing the land to simulate natural wetland conditions. Mitigation occurred in the Virginia Wood Preserving portion of the Chickahominy LLC mitigation area located in Charles City County, Virginia, approximately 25 miles east of Richmond, in the Chickahominy River floodplain.

Arsenic was the primary contaminant of concern in the wetland areas. As such, all soil exceeding the site-specific cleanup level for arsenic of 33 mg/kg was excavated to a depth of 24 inches. Confirmatory sampling was performed during the remedial action to confirm that the soil cleanup level was achieved.

The cap at the Site is routinely monitored to make sure the fence is in good condition, to determine when to mow the grass, to check if there are any problems with erosion of the cap surface that needs repair, and to locate any trees which require cutting down.

Rentokil, Inc. takes ground water samples semi-annually to monitor the levels of contaminants. The selected remedy includes withdrawing ground water from within the area enclosed by the cap/slurry wall. However, EPA, with the concurrence of the VDEQ, has agreed to a request by Rentokil, Inc. to place a moratorium on the withdrawal of ground water to determine whether this practice has any effect on the levels or dispersion of the contaminants in the ground water outside of this enclosed area.

Institutional controls in the form of a Deed Notice and Declaration of Restrictive Covenants for Certain property at the Rentokil Superfund Site was recorded in the Clerk's Office of Henrico County on December 1, 2005. Included in the Restrictive Covenant are provisions precluding residential development and ground water use in former Wetland Area B. Even though the ground water at former Wetland Area B is not contaminated, EPA required the restriction on ground water use to prevent the possibility of drawing contamination in that direction. There are no use restrictions for former Wetland Area C.

EPA and the U.S. Fish and Wildlife Service continue to monitor progress at the mitigation site in Charles City County. Two issues were brought up as a result of the latest site visit in September 2007. First, Japanese honeysuckle, should be treated with an herbicide to allow other desirable vegetation to grow. Secondly, the tree tubes used during the initial planting effort should be removed because they are restricting the growth of the tree trunks.

EPA issued the first five-year review report for the Site on September 17, 2003. In the report, EPA stated that a protectiveness determination of the remedy could not be made until a determination is made as to whether the contaminant levels at monitoring well number 2 is due to leakage from the cap/slurry wall containment system. No issues were identified for the implementation of the remedy or the protectiveness at either former Wetland Area B or C.

The second five-year review report was issued on September 22, 2008. In the second five-year review report, EPA determined that the remedy is protective of human health and the environment. All threats at the Site associated with ingestion or dermal contact with contaminated soil and sediments have been addressed through capping of the Site and excavation and consolidation of those areas of contaminated soil and sediments previously located beyond the extent of the cap (including the soil and sediment at former Wetland Areas B and C). The ground water clean-up goals selected for the Site are protective of human health and the environment. In the interim, exposure pathways that could result in unacceptable risks are being controlled. Even though no one currently uses the contaminated ground water, institutional controls have been implemented to prevent exposure to, or ingestion of, contaminated ground water (an institutional control has also been placed on the ground water at former Wetland Area B to prevent drawing the contaminated ground water to that area). Long-term protectiveness of the remedial action will be verified by obtaining ground water samples to fully evaluate migration of the contaminant plume downgradient of the slurry wall. Current data indicated that the plume remains in the area of VPMW-02 and is not expanding.

EPA will need to conduct the next five-year review of the Site by September 2013. Former Wetland Area C will not be subject to future five-year reviews because all response actions are complete and conditions allow for unlimited use and unrestricted exposure.

The most recent community involvement activity for this Site was placing the newspaper ad informing the public that EPA was conducting a five-year review of the Site. The ad was placed in the Richmond Times Dispatch on August 21, 2008. In the ad, EPA solicited the general sentiment from the local community on how Site operations affected them and whether anyone had any comments, suggestions, or recommendations regarding the management or operation of the Site. No feedback was received from the community.

Concurrently with the publication of this direct final Notice of Partial Deletion, a notice of the availability of the parallel Notice of Intent for Partial Deletion will be published in the Richmond Times Dispatch. The newspaper notice will announce the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.

The soil and sediments in former Wetland Areas B and C and the ground water at former Wetland Area C are being proposed for deletion because the Responsible Party completed all appropriate response actions required by the ROD. The remedy selected in the ROD for these two areas included excavating the contaminated soil and disposing the material under the cap. All soil exceeding the site-specific cleanup level of 33 mg/kg of arsenic was excavated to a depth of 24 inches, with the extent of excavation determined by confirmatory sampling. The excavated areas were then backfilled with clean soil and seeded. This work was completed during the remedial action, as documented in the Preliminary Close Out Report dated September 2, 1999. Mitigation for the damage to the wetland areas occurred in the Virginia Wood Preserving portion of the Chickahominy LLC mitigation area located in Charles City County, Virginia.

EPA is deleting former Wetland Areas B and C from the NPL as requested by Parham Forest Partners, LLC, the purchaser of the former Wetland Area B parcel of the Site, and VDEQ. EPA Region 3 submitted the direct final Notice of Partial Deletion and the Notice of Intent of Partial Deletion to EPA Headquarters and to the VDEQ for their concurrence.

The EPA, with concurrence of the Commonwealth of Virginia through the Virginia Department of Environmental Quality, has determined that all appropriate response actions under CERCLA, other than operation and maintenance and five-year reviews, have been completed. Therefore, EPA is deleting the soil and sediments in former Wetland Areas B and C and the ground water at former Wetland Area C of the Rentokil, Inc. Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective March 30, 2009, unless EPA receives adverse comments by February 26, 2009. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of partial deletion before the effective date of the partial deletion and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to partially delete and the comments already received. There will be no additional opportunity to comment.

This is a summary of the Commission' s Report and Order (Order), FCC 09-2, adopted and released on January 15, 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. 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 fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. The Short-term Analog Flash and Emergency Readiness Act (“Analog Nightlight Act” or “Act”), Pub. L. 110-459, 122 Stat. 5121 (2008), requires the Commission to develop and implement a program by January 15, 2009, to “encourage and permit” continued analog TV service for a period of 30 days after the February 17, 2009 DTV transition date, to the extent technically feasible, for the purpose of providing “public safety information” and “DTV transition information” to viewers who may not obtain the necessary equipment to receive digital broadcasts by the transition deadline. This Report and Order (“Order”) adopts the requirements to implement the Act.

2. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals, and may no longer transmit analog signals. ( See Digital Television and Public Safety Act of 2005 (“DTV Act”), which is Title III of the Deficit Reduction Act of 2005, Public Law 109-171, 120 Stat. 4 (2006) (codified at 47 U.S.C. 309(j)(14) and 337(e)).) The Analog Nightlight Act is designed to ensure that those consumers who are not able to receive digital signals after the DTV transition on February 17, 2009 will not be left without access to emergency information. The Act is also intended to help consumers understand the steps they need to take in order to restore their television service. (The analog nightlight concept was first used by the broadcasters in Wilmington, North Carolina, who volunteered to transition their market on September 8, 2008. They ceased analog broadcasting on that date but continued to broadcast their analog signals for roughly one month, displaying a “slate” describing the transition and where people could obtain information about it.) In enacting the Analog Nightlight Act, Congress acknowledged that the FCC and others “have been working furiously” to inform viewers about the transition, but also recognized that there will inevitably be some consumers left behind. Congress also recognized that when viewers are cut off from their televisions, it is not just a matter of convenience but also one of public safety. The concern about readiness is especially acute with regard to the nation's more vulnerable citizens—such as the poor, the elderly, the disabled, and those with language barriers—who may be less prepared to ensure they will have continued access to television service.

3. The Analog Nightlight Act was signed into law on December 23, 2008. (The Analog Nightlight legislation (S. 3663) was adopted by Congress on December 10, 2008 and sent to the President for signature on December 12, 2008.) On December 24, 2008, the Commission adopted and released a Notice of Proposed Rule Making (“ NPRM ”) in this proceeding. ( See Implementation of Short-term Analog Flash and Emergency Readiness Act; Establishment of DTV Transition “Analog Nightlight” Program , MB Docket No. 08-255, Notice of Proposed Rule Making, 73 FR 80332 (December 31, 2008). In light of the extremely short period of time in which the Commission was directed to implement the Act ( i.e. , the January 15, 2009 statutory deadline), the Commission acted quickly to adopt and release the NPRM in order to give interested parties a short period of time in which to participate. Although the Commission found that there was good cause to dispense with notice and comment requirements under the Administrative Procedure Act (“APA”) because of this time frame, the Commission nonetheless sought comment from interested parties in order to assist in the development of the analog nightlight program. The Commission noted the “urgent necessity for rapid administrative action under the circumstances.”) Based on consideration of the comments and replies we received, this Report and Order adopts an analog nightlight program with practical procedures and maximum flexibility for participating broadcasters, consistent with the intent of the statute to permit and encourage participation. (A list of the comments and reply comments filed in response to the NPRM is attached hereto at Appendix B.) Specifically, we expand herein the list of stations pre-approved to provide nightlight service, adopt streamlined procedures for stations to follow to notify the Commission of participation in the nightlight program, and permit the provision of limited sponsorship information as part of nightlight programming to help stations defray the cost of providing critical nightlight service. The decisions made in this Order are guided solely by the goal of the Analog Nightlight Act to provide short-term assistance to viewers as we transition from analog to digital television service. Accordingly, we emphasize that these decisions are not intended to stand as precedent for future proceedings involving different circumstances. Nevertheless, we find these decisions are appropriate for the unique circumstances involved here.

4. We strongly encourage all eligible stations to participate in the provision of a nightlight service to assist consumers during the 30-day period following the digital transition. The revised, expanded list of eligible nightlight stations is attached as Appendix A hereto. In addition, we urge any station not listed on the attached Appendix A to consider and determine whether it can participate in providing analog nightlight service by demonstrating that it will not cause harmful interference to any digital station. (We note that the Community Broadcasters Association (“CBA”), which is concerned that continued occupancy of analog channels will delay the initiation of digital service by some Class A and Low Power Television (“LPTV”) stations, prefers that the Commission not pressure full power stations that prefer not to participate in the nightlight program to change their mind and participate, as long as there is at least one full power station in each Designated Market Area (“DMA”) that is willing and able to participate. While we recognize that some Class A and LPTV stations are waiting for analog spectrum to become available so they can commence digital service, we believe that our primary goal in implementing the Analog Nightlight Act is to ensure widespread participation to assist viewers that are unprepared for the transition. The nightlight period is short—limited to 30 days—so any delay caused to a Class A or LPTV station would be brief.) We also urge stations that are unable to provide nightlight service on their own analog channel to coordinate with other broadcasters in their service area to share the costs of analog nightlight operation to reach their viewers. We strongly encourage all stations to work together to ensure that at least one station serving each community provides a nightlight service to assist that community. As proposed in the NPRM , the station whose channel is being used to provide the nightlight service will remain responsible for the content of the programming.

5. The Commission, in conjunction with industry stakeholders, state and local officials, community grassroots organizations, and consumer groups, has worked hard to increase consumer awareness of the digital transition, and these efforts have made a significant impact. (Many industry members have been working hard to educate consumers about the upcoming transition, including broadcasters, multichannel video programming distributors, telecommunications companies, satellite providers, manufacturers, and retailers. According to the latest Nielsen DTV report, more than 92 percent of U.S. households are aware of and prepared, at least to some extent, for the transition.) All of our efforts will continue and intensify up to and beyond the transition deadline. However, it is inevitable that on February 17, 2009, some consumers will be unaware of the transition, some will be unprepared to receive digital signals, and others will experience unexpected technical difficulties. For those consumers, the analog nightlight program adopted by Congress and implemented herein will help to ensure that there is no interruption in the provision of critical emergency information and will provide useful information regarding the transition to help consumers establish digital service.

6. We find that the Act authorizes full-power television stations to provide analog nightlight service for up to 30 days after the February 17, 2009 transition date. Section 2(a) of the Analog Nightlight Act states:

7. Thus, as required by this Act, our analog nightlight program will permit eligible full-power television stations, as defined below, to continue their analog broadcasting for a period of up to 30 days beginning on February 18, 2009, for the limited purpose of providing public safety and digital transition information, as further described below. (One commenter proposed that we authorize Class A, LPTV, TV translator, and other secondary television stations to participate in making public service announcements regarding the DTV transition, and make an exception where necessary to any rules that might prohibit these stations from making such announcements ( e.g. , some secondary television stations are either prohibited from originating programming or restricted in the amount of programming they may originate.) Class A and LPTV stations are not prohibited from making such public service announcements and we encourage these stations to consider doing so, particularly if they serve rural areas that are served by few full-power stations.) The 30-day period ends at 11:59:59 p.m. local time on March 19, 2009. Cohen, Dippell and Everist, P.C. (“CDE”) request in their comments that the Commission permit continuation of analog service for more than 30 days following the transition deadline in special cases. We decline CDE's request as it is contrary to the explicit language of the Act.

8. Although we encourage stations that elect to participate in the analog nightlight program to provide nightlight service for the entire 30-day period provided by the Act, they are not required to do so. The Analog Nightlight Act limits the duration of the nightlight service but does not specify that the service must be provided for the entire 30-day period. Consistent with the Act, we find that participating stations have the flexibility to provide nightlight service for a shorter period of time and terminate service before March 19, 2009. However, we urge stations that volunteer to provide nightlight service to commit to airing the nightlight programming for at least two weeks, as we believe that a minimum period of two weeks is necessary to ensure that the information provided by the nightlight service reaches viewers who were unprepared for the transition. In addition, we believe that it is important for emergency information to remain available to all viewers during the 30-day nightlight period wherever possible. We require stations that elect to participate in the nightlight program to inform us in their notification, as described below, if they are planning to cease nightlight service before March 19, 2009.

9. Based on Section 3 of the Act, we conclude, as we proposed in the NPRM , that only stations operating on channels 2 through 51 are eligible to broadcast in analog pursuant to the Act. Section 3 of the Act requires, among other things, that the Commission consider “market-by-market needs, based on factors such as channel and transmitter availability” in developing the nightlight program, and requires the Commission to ensure that the broadcasting of analog nightlight information will not cause “harmful interference” to digital television signals. In addition, Section 3 prohibits the broadcasting of analog nightlight signals on spectrum “approved or pending approval by the Commission to be used for public safety radio services” and on channels 52-69.

10. We also conclude, as we proposed in the NPRM , that channels cannot be used for analog nightlight service if they cause harmful interference to digital television signals. (Section 3 also mandates that the Commission “not require” that analog nightlight signals be subject to mandatory cable carriage and retransmission requirements. Analog Nightlight Act, Section 3(3).) Therefore, a station that is “flashcutting” on its analog channel to post-transition digital operation will not be eligible to use its analog channel for the analog nightlight service because to do so would unavoidably interfere with its digital service. (As discussed below, a station that is approved for a phased transition to remain on its pre-transition digital channel may be permitted to use its analog channel for the analog nightlight program if doing so does not delay its transition to digital service. These circumstances will be evaluated on a case-by case basis.)

11. After reviewing the comments received on this issue, we have decided that we can increase the number of stations initially determined to be eligible for the analog nightlight program. We will expand the list of eligible stations, attached as Appendix A, to include 826 stations that cover 47 states, the District of Columbia and Puerto Rico, and 202 designated market areas (“DMAs”). (The eight DMAs without a station pre-approved for nightlight service are: Harrisburg-Lancaster-Lebanon-York, PA; Hattiesburg-Laurel, MS; Lafayette, IN; Palm Springs, CA; Presque Isle, ME; Providence, RI-New Bedford, MA; Springfield-Holyoke, MA; and Toledo, OH. In six of these eight DMAs, we have identified at least one station that might be able to provide analog nightlight service at reduced power (four stations in the Harrisburg-Lancaster-Lebanon-York DMA; one in the Hattiesburg-Laurel DMA, the Lafayette, IN DMA, and the Palm Springs DMA; two stations in the Providence (RI)-New Bedford (MA) DMA and three in the Toledo DMA. There are no eligible stations in the Springfield-Holyoke DMA because all of them either have an out-of-core analog channel, are using their analog channel for digital service, or would interfere with a co-channel station, but we believe portions of this market may be served by nightlight stations in adjacent markets. In the Presque Isle DMA, both stations in the market are using their analog channel for digital service, preventing them from providing nightlight service. We will continue to explore potential solutions for these markets.) We agree with those commenters, including the National Association of Broadcasters (“NAB”) and the Association for Maximum Service Television (“MSTV”), who advocate that we expand as much as possible the list of stations that are pre-approved for nightlight service and thus can participate in the nightlight program through a simple notification procedure. In developing the list of pre-approved eligible stations that we proposed in the NPRM (“ NPRM Appendix A”), our intention was to be conservative in order to fully protect digital signals rather than risk interference. (With respect to Section 3(2), in considering interference protection for digital TV stations, we developed minimum co-channel and adjacent channel spacing measures and presumed that analog stations that are located the specified distance or greater from any operating DTV stations would not cause interference to signals in the digital television service.) We find that adopting a less conservative approach will make it easier for stations to participate and thereby further the goal of encouraging widespread nightlight service. We also find that the approach set forth below, which relies on stations to address interference issues in the first instance based on market-by-market needs, is consistent with the Commission's discretion under the Act to provide for nightlight service that furthers the public interest. The list in NPRM Appendix A was not intended to be an exhaustive list of the stations that may be eligible to participate in the analog nightlight program, and we noted that it underestimated the stations that could qualify.

12. Accordingly, we will use the alternative list of pre-approved stations provided by NAB/MSTV in their comments, which contains more stations than our list in NPRM Appendix A, with some changes as discussed below. The NAB/MSTV list was developed by assuming that most analog stations now operating on low VHF channels 2-6 should be eligible for nightlight operations as there will be relatively few digital stations occupying these channels and therefore few chances for either co-channel or adjacent channel interference. Like the NPRM Appendix A list, the NAB/MSTV list relies on spacing criteria rather than individual interference analyses, an approach necessitated by the short time available to develop the list. In developing the spacing criteria used by the Commission, we assumed that both the analog station being studied and DTV stations in the same vicinity are operating at maximum power and antenna height allowed under the rules. (The maximum transmit antenna height above average terrain (antenna HAAT) and power limits for low-VHF (channels 2-6), high-VHF (channels 7-13), and UHF (channels 14-51) stations are set forth in 47 CFR 73.622(f). The maximum antenna HAAT allowed for DTV stations on channels 2-13 is 305 meters and on channels 14-51 is 365 meters (power reductions are required if higher antennas are used), the maximum power limits are (1) for low-VHF, 10 kW in Zone I and 45 kW in Zones II and III (2) for high-VHF, 30 kW in Zone I and 160 kW in Zone II and (3) for UHF, 1,000 kW. Certain stations were allowed to use somewhat higher power on their DTV channels in order to replicate their analog stations; however, for purposes of this brief 30-day extension of analog operation we assume that all stations are operating at power levels no higher than the maximum levels in the rules. The minimum technical criteria (D/U ratios) for protection of digital television signals from interference from analog signals are set forth in 47 CFR 73.623(c)(2). In developing these spacing measures we also used (1) the F(50,90) curves as derived from the F(50,50) and F(50,10) curves in 47 CFR 73.699, and the DTV service thresholds in 47 CFR 73.622(e), to calculate DTV service areas and (2) the analog maximum power and antenna height standards in 47 CFR 73.614, and the F(50,10) curves in Section 73.699 to calculate analog interference potential.) One difference between the lists is NAB/MSTV's application of a uniform 170 kilometer (km) co-channel spacing standard to expand the list of pre-approved stations, which is a shorter distance than we used for the NPRM Appendix A list. (The minimum spacing measures used in developing the NPRM Appendix A list were:

13. While NAB/MSTV acknowledges that its list may be more likely to result in interference at the outer edges of a DTV station's service area during the temporary 30-day nightlight period, it argues this result should be balanced against the need for DTV and emergency information throughout a station's market. NAB/MSTV notes that, while its priority generally is to protect digital stations from interference, in this proceeding, ensuring that as many stations as possible have the opportunity to provide nightlight service is vitally important. As stated above, we agree that a less conservative, more balanced approach than that proposed in the NPRM is warranted and would be consistent with the requirements of the Act, and we conclude that use of NAB/MSTV's list of pre-approved stations, with the modifications described below, will serve the public interest.

14. The revised list of stations pre-approved for nightlight service in Appendix A includes most of the stations listed on Appendix A to the NPRM , plus most of the stations on the NAB/MSTV list. (Consistent with the statute, the NPRM Appendix A and Appendix A adopted herein include only those stations that operate on analog channels 2-51. The NAB/MSTV list also includes only these stations.) We are excluding four stations that are not presently broadcasting. (The four stations are KYUK-TV, Bethel AK; 960703KK, Price UT; New34, Senatobia MS; and 960920LX, Tupelo MS. Bethel Broadcasting, Inc. filed comments on behalf of KYUK noting that the station was erroneously listed in the NPRM Attachment A.) NAB/MSTV did not include in their list stations that have requested and received permission from the Commission to remain on their pre-transition DTV channel after the February 17, 2009 transition date pursuant to the “phased-transition” relief provisions adopted in the Third DTV Periodic Report and Order and that were listed on the NPRM Appendix A. These stations' analog channels will be available for nightlight service and, accordingly, we have retained them in Appendix A, as adopted here. In addition, we have added to the NAB/MSTV list 12 stations (indicated in Appendix A in column I with an asterisk (*)) that our analysis indicates may operate with contour protection equivalent to that described in the NPRM . (In order to improve the accuracy of the initial analysis upon which the Appendix A list in the NPRM was based, we generated a revised list of eligible stations that were determined using spacing criteria for the individual station power levels and heights above average terrain using the appropriate propagation curves. As with the initial list, the spacing distances were calculated such that the interfering contour of the candidate analog station did not overlap the protected noise-limited contour of any potentially-affected DTV station. This improved analysis removed some stations that were on the Appendix A list in the NPRM , namely stations having facilities in excess of the maximum power and height specified in our rules for either the candidate analog station or the protected DTV station. This improved analysis also added to the list some stations that have facilities less than the maximum power and height specified in our rules. The resulting revised list contained about 360 stations, but did not significantly increase the number of DMAs that would have access to nightlight service. This revised list was compared with the list of stations submitted by NAB/MSTV, and all but 12 of the stations on our revised list also appeared on the NAB/MSTV list. Those 12 stations were added to the NAB/MSTV list to produce the list shown in Appendix A herein; those stations are indicated on that list by an asterisk.) Appendix A identifies those stations that have already indicated to the Commission that they are interested in providing nightlight service ( see column K).

15. We have also identified in Appendix A hereto the stations that, while they are pre-approved to provide nightlight service, may pose a greater risk of interference to digital stations under the less-conservative spacing methodology used to derive the Appendix A. These stations are identified by an asterisk in the column J headed “short spaced.” We note that NAB/MSTV state that, if interference were to occur, it can be easily identified and corrected by having the Nightlight stations reduce power. In this regard, we are continuing to perform analyses to identify any potential significant interference problems and will work with broadcasters to mitigate any such interference. In the meantime we urge these stations to consider providing nightlight service, but we also ask that they consider whether reducing their analog signal strength to mitigate possible interference to DTV stations can be done without significantly affecting the population receiving nightlight service. For example, if there are already several stations in the market providing nightlight service, it may be preferable for a station whose nightlight operation is short-spaced to support the service provided by other stations in the market rather than itself broadcasting an analog signal. If, however, a station listed in Appendix A that is short-spaced is the sole station that can provide nightlight service in a community, we urge that station to consider providing the service with reduced power so as to avoid harmful interference to digital stations.

16. Consistent with the Act and the public interest, we encourage stations to make these initial determinations on their own after considering circumstances in their local market area and in consultation with other stations. (This approach is consistent with the Act's directive that the Commission take into account market-by-market needs in developing the nightlight program.) Stations that decide to participate in the analog nightlight program using reduced analog power should so indicate in their notification to us. Stations that decide to reduce power after commencing provision of the nightlight service, likewise, must notify us of their power reduction via the notification process described below.

17. The Commission ultimately reserves the right to rescind any station's authority to provide analog nightlight service, including the authority of any station listed on Appendix A. Among other things, we will weigh the benefits of the 30-day nightlight service against the interference caused to post-transition digital service in making any such determination. We will rescind the authority of any station's analog nightlight transmission that results in a valid complaint of harmful interference. (Although we urge stations to work together to resolve any concerns regarding interference, complaints that cannot be resolved may be sent by e-mail to nightlight@fcc.gov. )

18. As we proposed in the NPRM , we will permit broadcasters whose stations are not listed in Appendix A and who are interested in providing nightlight service to submit engineering and other information to demonstrate why they believe they meet the criteria identified in the Act and the requirements we adopt here. We recognize that there are many analog stations that are currently operating close to digital stations without causing interference. In such cases, interference is avoided by stations operating at less than the maximum allowed technical facilities, terrain features, or other conditions affecting propagation. These stations may notify us through the Engineering STA process described below and explain how they could operate without causing harmful interference to nearby digital station(s). Such explanations may consist of analyses using the methods in OET-69 or other recognized methodologies for evaluating TV station interference. We anticipate that we will be able to rely on the submissions we receive and public review to identify stations that may pose a problem. As we stated in the NPRM , we delegate to the Media Bureau authority to address expeditiously issues that may arise associated with this process and to authorize additional stations to participate.

19. In the NPRM we proposed to permit a station not listed in Appendix A to provide nightlight service if the station would cause no more than 0.1 percent new interference to a digital station in addition to that reflected in the DTV Table Appendix B. (After February 17, 2009, any interference from a full power analog station to a post-transition digital signal will be treated as new interference. The details of each station's DTV (post-transition) channel assignment, including technical facilities and predicted service and interference information, are set forth in the Appendix B to the final order in the DTV Table proceeding, MB Docket No. 87-268 (“DTV Table Appendix B”).) We also proposed that, in areas where there is no station listed as eligible in Appendix A or that would meet the 0.1 percent interference standard, we will permit a station to cause up to, but no more than, 0.5 percent new interference to a digital station in addition to the interference included in DTV Table Appendix B. (For purposes of this discussion, an “area” means a viewing area, which may be a city, county, community, market, DMA, or other geographic area in which people receive over-the-air television service. Stations seeking to participate under this standard should make their argument and basis for inclusion clear in their STA submission.) Because we have adopted a more expansive list of pre-approved nightlight eligible stations herein, we find that it is appropriate to also be more flexible with respect to stations that are not listed in Appendix A but that wish to provide nightlight service. Accordingly, we will not require stations that wish to provide nightlight service but are not listed in Appendix A to demonstrate that they meet the proposed 0.1 percent new interference standard. Instead, these stations should demonstrate in their Engineering STA how they plan to provide nightlight service and how they plan to minimize interference to affected stations by, among other things, reducing analog power. We urge broadcasters not listed in Appendix A who desire to participate in the nightlight program to contact affected stations to try to reach an agreement on how nightlight service can be provided without causing harmful interference to digital stations. If there are already several stations in the market providing nightlight service, it may be prudent that a station not listed in Appendix A, and whose nightlight operation would cause interference to a digital station, to elect not to provide nightlight service but instead cooperate with the service provided by other stations in the market. If, however, a station not in Appendix A that desires to provide nightlight service would be the sole participant in its service area, we urge that station to try to come to an agreement with stations that could be affected by nightlight service on how the nightlight service can be provided without causing harmful interference. We ask stations to make these initial efforts to reach an agreement on their own after considering circumstances in their local market area and in consultation with other stations. As noted above, we reserve the right to rescind, at any time, any station's authority to provide analog nightlight service.

20. We adopt a streamlined process for stations to notify us of their intent to participate in the analog nightlight program. In addition, we take the other steps discussed below to facilitate participation in the analog nightlight program. Notification by stations of participation is critical for three reasons. First, the Commission and the public need to know which stations are participating to help ensure the widest possible coverage of the nightlight service. By identifying the areas that will be covered, we can determine which areas will rely more heavily on other sources of continuing transition information, including radio broadcasts and local newspapers. Second, in the event of interference, the list of participants will help the Commission and local stations to determine whether a nightlight participant is the source of the interfering signal. Third, as described below, stations participating in the analog nightlight program will be granted an extension of their analog broadcast license for the limited purpose of providing this service. Stations must notify us of their participation in order to be included on the list and be eligible for this blanket extension.

21. In response to the concerns expressed by a number of commenters regarding the notification procedures we proposed in the NPRM , we adopt revised procedures to make participation easier and to reduce the time and costs potentially associated with notification. (NAB/MSTV supported expanding the list of pre-approved nightlight eligible stations in part to reduce the number of stations that would be required to submit additional engineering documentation in order to provide nightlight service.) First, we note that, by expanding the list of stations pre-approved as eligible to participate in the analog nightlight program, we have increased the number of stations that may simply notify the Commission of their intent to participate without providing any additional engineering information. This will simplify program participation for many stations. Second, as described below, we will permit pre-approved eligible stations identified in Appendix A to notify us of their participation in the analog nightlight program by either filing a Legal STA or by simply sending us an e-mail. The option of using an e-mail will make notification easier for stations that choose to use this method to announce their intention to participate. Stations that are not listed in Appendix A must file an Engineering STA if they wish to participate. Third, we will not require stations that elect to participate in the nightlight program to file an update to their Transition Status Report (FCC Form 387). Several commenters advocated eliminating this proposed requirement, and we agree.

22. We will permit pre-approved eligible stations identified on Appendix A to notify us of their participation in the analog nightlight program by either filing a Legal STA electronically through the Commission's Consolidated Database System (“CDBS”) using the Informal Application filing form or by sending an e-mail to nightlight@fcc.gov. Stations must inform us about their decision to participate in the program no later than February 10, 2009. This deadline will allow us to determine where the analog nightlight service will be available, which may influence our determination of whether to make additional stations eligible. We will not require an engineering or other showing from these stations and, as indicated in the NPRM , we will waive the fee for these notifications.

23. While we encourage stations to file a Legal STA through CDBS so that information about their participation in the analog nightlight program is readily available both to the Commission and the public, we realize that this filing procedure may be burdensome to some stations, especially small broadcasters, and could deter these stations from participating in the analog nightlight program. Accordingly, stations may simply provide notification by sending an e-mail message to the Commission at nightlight@fcc.gov. The e-mail should include the following information: (1) Name, title, phone number, and, if available, e-mail address and mobile telephone number of sender; (2) licensee name; (3) FCC Registration Number (FRN); (4) Facility Identification Number; (5) call sign; (6) city and state; (7) analog and digital channel numbers; and (8) name, title, phone number and, if available, e-mail address and mobile telephone number of a contact person (if different from sender) who can provide more information about the station's participation in the analog nightlight program. The e-mail should also provide information about the station's planned analog nightlight service, including whether the station plans to participate at reduced analog power, as well as the period of time analog nightlight service will be provided (if service will be discontinued before March 19, 2009). Stations that reduce power during their period of nightlight service should also notify the Commission of this change, either by filing another Legal STA or by sending an e-mail to nightlight@fcc.gov. The information provided in the e-mails will be entered into CDBS so that it will be available to the public.

24. The Media Bureau will announce publicly (by issuing a public notice and/or by posting a list on the Commission's Web site) those stations that have indicated their participation in the analog nightlight program via an e-mail notification. (We note that filings via CDBS are available to the public and interested parties, but e-mail notifications are not otherwise publicly available.) We note that NAB/MSTV has offered to coordinate with the Commission to assemble a complete list of the participating stations in Microsoft Excel or other searchable format, and we will post the list on the DTV.gov Web site.

25. As proposed in the NPRM and discussed above, we will permit stations that are not listed in Appendix A to request participation in the analog nightlight program by filing an Engineering STA notification electronically through CDBS using the Informal Application filing form. (We will not accept this type of notification via e-mail.) Stations must file these Engineering STA notifications no later than February 3, 2009. This deadline will allow the Commission, the public, and interested parties an opportunity to review and evaluate these requests. The Media Bureau will announce by public notice those stations that have filed a request to participate in the program. (The public notice will set forth a brief period of time within which an objection based on interference may be filed and will describe the expedited process for filing such objections.) In their Engineering STAs, stations should demonstrate how they plan to provide nightlight service while avoiding harmful interference to affected stations ( e.g. , due to intervening terrain or by reducing analog power). Stations with requests that are not subject to any pending objection will be considered eligible to participate in the program and will qualify for the blanket license extension discussed below. As noted above, the Commission reserves the right to require stations to cease or reduce analog nightlight service, in the event there are valid complaints of interference to DTV stations or other statutorily protected operations.

26. As we proposed in the NPRM , we hereby grant a blanket extension of license to broadcasters who are eligible to participate in the analog nightlight program and notify the Commission as required of their intent to operate analog nightlight service for a period of up to 30 days after February 17, 2009, i.e., until and including March 19, 2009. Television broadcast licenses currently contain the following language concerning analog service:

27. After stations have notified the Commission of their intention to provide nightlight service, and after stations and the public have had an opportunity to object to any notifications filed by stations not listed in Appendix A, the Media Bureau will issue a public notice prior to the transition date announcing those stations that are participating in the analog nightlight program. The Media Bureau will update that public notice later, if necessary. The Media Bureau's public notice will establish the right of those licensees whose stations are identified in the public notice to continue to operate their stations in analog on their analog channels solely for the purpose of providing the analog nightlight service as described in this Report and Order. Notification of participation pursuant to the requirements adopted in this Report and Order is necessary for a participating station to qualify for the blanket license extension.

28. We find that the Analog Nightlight Act authorizes the broadcast of only emergency information, information regarding the digital television transition, and the related sponsorship information set forth below. Section 2(b) of the Act describes the programming that stations will be permitted to broadcast during the nightlight period. That section states that the nightlight program shall provide for the broadcast of:

(1) Emergency information, including critical details regarding the emergency, as broadcast or required to be broadcast by full-power stations in the digital television service (Section 4 of the Act states that the term “emergency information” has the same meaning as that term has under Part 79 of the FCC's rules);

(2) Information, in both English and Spanish, and accessible to persons with disabilities, concerning—

(A) The digital television transition, including the fact that a transition has taken place and that additional action is required to continue receiving television service, including emergency notifications; and

(B) The steps required to enable viewers to receive such emergency information via the digital television service and to convert to receiving digital television service, including a phone number and Internet address by which help with such transition may be obtained in both English and Spanish; and

(3) Such other information related to consumer education about the digital television transition or public health and safety or emergencies as the Commission may find to be consistent with the public interest.

29. Consistent with the explicit language of the Act, with the exception of the limited sponsorship information that we will permit (as set forth below) we conclude that nightlight programming may convey only emergency information and information regarding the digital transition. As we stated in the NPRM , the Act does not contemplate the provision of other programming that is unrelated to these two categories. Thus, we deny the request made by CDE that the Commission permit, under unique circumstances, analog service to continue after the transition with regular programming aired during the majority of the broadcast period in addition to public safety and DTV transition information. (Other commenters that addressed this issue agreed that nightlight programming should be limited to transition-related and emergency programming.) DTV transition information should be available in both English and Spanish, and all nightlight information should be accessible to persons with disabilities. We encourage participating stations to provide the information in additional languages where appropriate and beneficial for their viewers. One commenter asked whether station identification will be required for nightlight stations. We conclude that nightlight stations should comply with station identification requirements to ensure that the source of the programming is readily identifiable. In addition, we expect stations that provide nightlight service to maintain the same hours of operation that were in effect on their analog channel prior to the transition deadline.

30. We also tentatively concluded in the NPRM that the Act does not contemplate the provision of advertisements as part of nightlight programming. After further consideration of this issue, we conclude that the provision of limited sponsorship information as part of nightlight programming is consistent with the Act and will be permitted to help stations defray the cost of providing nightlight service.

31. In the event of an emergency situation during the 30-day analog nightlight service period, stations may broadcast video and audio programming with emergency information, including but not limited to a crawl or text describing the emergency and live or taped action regarding the emergency. Licensees providing emergency information must make that information accessible to persons with disabilities under 47 CFR 79.2. We also conclude that the Emergency Alert System (“EAS”) applies to the analog nightlight service if an emergency arises during the 30-day time frame. EAS “provides the President with the capability to provide immediate communications and information to the general public at the National, State and Local Area levels during periods of national emergency,” and, in addition, “may be used to provide the heads of State and local government, or their designated representatives, with a means of emergency communication with the public in their State or Local Area.” (Part 11 of the Commission's rules describes the required technical standards and operational procedures of the EAS for TV broadcast and other stations. As noted, in addition to compliance with EAS standards the Commission requires TV broadcast stations that provide emergency information to make the critical details of that information accessible to people with hearing and visual disabilities.)

32. For implementation of the analog nightlight, “emergency information” is as defined in part 79 of our rules. (47 CFR 79.2(a)(2) defines emergency information as follows:

33. In its reply comments, NAB/MSTV state that, while they are in full agreement that nightlight stations should provide emergency information, stations may face some practical implementation problems, particularly with respect to communicating late-breaking emergency information. NAB/MSTV note that, if there is late breaking emergency information, the only effective means of communicating the emergency information from the studio to the nightlight station may necessitate using the station's digital transmission, which could result in broadcasting the station's standard news and emergency programming may be broadcast over the nightlight station, including traditional programming and commercials.

34. In establishing rules providing for the analog nightlight emergency service, we seek to support broadcasters' efforts to provide EAS and other emergency information to their viewers during the limited 30-day nightlight service window. While the Act permits nightlight stations to broadcast only emergency and DTV transition-related information, and does not permit the broadcast of standard programming and commercials, we recognize that flexibility may be required during this limited 30-day window to ensure that nightlight stations provide critical emergency information. (As discussed below, we conclude that limited sponsorship announcements are permitted as part of nightlight programming.) Thus, while nightlight stations must provide only DTV transition-related and emergency information pursuant to the Act, if a circumstance arises that requires other programming to be transmitted for a limited period of time in order that the emergency information can be provided in a timely manner, we will not be inclined to sanction the broadcaster for violation of the Act. We limit this flexibility to those circumstances where, for technical reasons, other programming must be transmitted in order to transmit emergency information, and only for the period of time necessary to adequately convey the emergency information to viewers. (Our flexibility in this regard only applies to those programming segments containing the emergency information. For instance, if emergency information were being provided solely during a specific portion of a newscast, other portions of the newscast should not be transmitted.)

35. With respect to the digital television transition, as proposed in the NPRM we conclude that stations airing a nightlight signal may broadcast any information that is relevant to informing viewers about the transition and how they can continue to obtain television service. (Commenters that addressed this issue generally supported giving stations flexibility regarding the DTV transition-related information they can display.) Examples of the kind of information a station may want to air include, but are not limited to: General information about the transition; information about how viewers can receive digital signals; information about the circumstances related to the DTV transition in the station's market; answers to commonly asked questions and other useful information ( e.g. , how to re-position an antenna, install a converter box, or rescan for new channels); where viewers can obtain more information about the transition, including national or local call centers, converter box manufacturer help lines, a telephone number and Web site address for local stations in the community, and any other local sources of transition information and assistance; information about the DTV converter box coupon program; and information or links to other Web sites containing DTV information, including the Federal Communications Commission (“FCC”), National Association of Broadcasters (“NAB”) and National Telecommunications and Information Administration (“NTIA”).

36. Section 2(b)(2) of the Act provides for the broadcast of information, “in English and Spanish and accessible to persons with disabilities,” concerning the digital transition and certain other information. We conclude that such information must be captioned to assist persons with hearing disabilities, and may be made available in either open or closed captioning. In addition, such information must not only be accessible to individuals who are deaf and hard of hearing, but also to individuals who are blind or have low vision. This may be achieved through open aural description of the critical aspects of the transition information that is appearing on the screen. In addition, as the Act provides, the analog nightlight information should include a telephone number and Internet address by which help with the transition may be obtained in both English and Spanish. This information must also be made accessible. We urge stations to consider broadcasting information in additional languages, consistent with the needs of their particular viewing audience.

37. The analog nightlight information may be aired using a “slate” with text and audio of the text or other DTV information, as well as information, if necessary describing the steps viewers must take to obtain emergency information. Participants in the analog nightlight program may also air a video loop with audio, or broadcast live action with audio format, or any combination thereof. (Stations choosing a video loop format may use the FCC's educational video showing how to install a converter box. See http://www.dtv.gov/video_audio.html. ) Additional formats of the video are available upon request. We note that during the early transition in Wilmington, NC, stations used a slate to provide nightlight service. The text of the “slate” consisted of the following: “At 12 noon on September 8, 2008, commercial television stations in Wilmington, North Carolina began to broadcast programming exclusively in a digital format. If you are viewing this message, this television set has not yet been upgraded to digital. To receive your television signals, upgrade to digital now with a converter box, a new TV set with a digital (ATSC) tuner or by subscribing to a pay service like cable or satellite. For more information call: 1-877-DTV-0908 or TTY: 1-866-644-0908 or visit www.DTVWilmington.com. ”) NAB has also recently announced that it will produce and distribute a brief DTV educational video that stations can air as part of the analog nightlight program.

38. In the NPRM we tentatively concluded that advertisements would not be permitted to be included in the analog nightlight program. However, after further consideration, we conclude that permitting limited mention of sponsors to encourage stations to provide nightlight service and to defray the cost is appropriate and consistent with the Analog Nightlight Act. Accordingly, we will permit stations providing nightlight service to include brief announcements identifying sponsors that have made financial or other contributions to the nightlight service, including commercial entities such as retailers and manufacturers. According to NAB/MSTV, these contributors might include other stations in the market that are not themselves providing nightlight service, multichannel video programming distributors (“MVPDs”), local municipalities, retailers, or other entities. Consistent with the Analog Nightlight Act provisions discussed below, the sponsorship announcements should be very brief and should not interfere with or obscure the DTV or emergency-related information being provided. For example, a brief statement at the bottom of the screen that: “this programming is paid for, sponsored, or furnished by X” would be appropriate under the Analog Nightlight Act and would fulfill any applicable sponsorship identification requirements. The sponsorship information may be visual or aural. If stations use a visual identification, however, the visual identification should only remain on the screen for as long as necessary to provide a reasonable identification. Keeping a visual identification, such as a corporate logo or “bug,” on the screen throughout the sponsored programming might violate the Act's limitation of programming to only public safety, digital transition and information related to consumer education about the digital transition that is consistent with the public interest.

39. We agree with those commenters who argued that the Analog Nightlight Act can be interpreted to permit stations to provide sponsorship information in order to help defray the cost of providing nightlight service. Section 2(a) of the Act directs the Commission to implement a nightlight program “subject to such limitations as the Commission finds to be consistent with the public interest and the requirements of this Act * * *.” Section 3 of the Act lists the explicit “limitations” of the nightlight program, none of which addresses programming. Section 2(a) of the Act permits “the broadcasting in the analog television service of only the public safety information and digital transition information specified in subsection (b) * * *.” Sections 2(b)(1) and (2) require the Commission to provide for the broadcast of specified information (i.e., emergency information and information relating to the digital television transition) and Section 2(b)(3) allows the broadcast of “such other information related to the digital transition * * * as the Commission may find to be consistent with the public interest.”

40. We find that the mention of the sponsor or source of the information related to consumer education about the digital transition is “related” information within the meaning of Section 2(b)(3). We also believe that permitting the broadcast of limited sponsorship information will increase the number of stations that volunteer to provide critical nightlight service and thus would further the public interest in facilitating the transition to digital television. In this regard, NAB/MSTV states that maintaining analog service during the nightlight period could cost stations between $3,500 to over $15,000 per station, while the state broadcasters associations estimate the cost, including electricity, production and other costs, will range from $10,000 to $20,000 per station for the 30-day nightlight period. APTS states that the Public Broadcasting Service has estimated that public television stations spend $3 million per month just in electricity costs to provide analog service, a cost they had planned to shed after the transition deadline. (In addition, APTS urges the Commission to examine ways to provide funding for stations, including public television stations, who would like to participate in the nightlight program but lack the financial means to do so.) For many stations, the issue of the cost associated with nightlight service could be determinative of their ability to participate in the nightlight program. For these reasons, we interpret the Analog Nightlight Act to allow licensees to include in their nightlight programming a brief aural or visual announcement identifying the sponsor of the program.

41. Finally, we note that, if a station broadcasts programming during the nightlight period for which it receives or is promised money, service, or other valuable consideration from any third party, it must comply with the sponsorship identification requirements in Section 317 of the Act and our rules. In addition to the restrictions discussed above, non-commercial educational broadcast stations must also comply with Section 399B of the Communications Act.

42. We find that no Final Regulatory Flexibility Analysis (FRFA) is required for this Report and Order. In the NPRM , the Commission determined that no Regulatory Flexibility Analysis was required. The Commission found that, in light of the extraordinarily short time period for it to meet the analog nightlight statutory deadline of January 15, 2009, there was good cause to dispense with notice and comment requirements under the Administrative Procedure Act (“APA”). For this reason, we find that a FRFA is not required.

43. This Report and Order was analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”) and contains a modified information collection requirement. (The Paperwork Reduction Act of 1995 (“PRA”), Pub. L. 104-13, 109 Stat 163 (1995) (codified in Chapter 35 of Title 44 U.S.C.).) On December 29, 2008, after release of the NPRM in this proceeding, the Commission received OMB approval for the modified information collection requirement contained in this Report and Order. ( See Notice of Office of Management and Budget Action, OMB Control No. 3060-0386 (approved Dec. 29, 2008). The Commission sought and obtained approval under OMB's emergency processing rules ( see 5 CFR 1320.13) for this modified collection in order to implement the Congressional mandate for the FCC to develop and implement a program by January 15, 2009, to encourage and permit TV broadcast stations to use this opportunity to provide public safety information and DTV transition information.) For additional information concerning the information collection requirement contained in this Report and Order, contact Cathy Williams at 202-418-2918, or via the Internet to Cathy.Williams@fcc.gov.

44. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act. ( See 5 U.S.C. 801(a)(1)(A). The Congressional Review Act is contained in Title II, sec. 251, of the CWAAA; see Pub. L. 104-121, Title II, sec. 251, 110 Stat. 868.)

45. For more information on this Report and Order, please contact Kim Matthews, Kim.Matthews@fcc.gov , or Evan Baranoff, Evan.Baranoff@fcc.gov , in the Policy Division, Media Bureau at (202) 418-2120.

46. Accordingly, it is ordered that, pursuant to Sections 1, 4(i), 303(r), 316, and 336 of the Communications Act of 1934, 47 U.S.C. 151, 154(i), 303(r), 316, and 336, and the Short-term Analog Flash and Emergency Readiness Act of 2008, Pub. L. No. 110-459, this Report and Order is adopted and shall be effective upon the date of publication of the summary of the Report and Order in the Federal Register . We find good cause under the APA for the analog nightlight program adopted in this Report and Order to be effective upon publication of the summary of the Report and Order in the Federal Register because of the January 15, 2009 statutory deadline for implementing the Analog Nightlight Act, which was enacted by Congress only last month, as well as the brief 30-day period during which the Act's provisions will be in force. ( See 5 U.S.C. 553(d)(3) (“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.”).) In addition, any delay in implementing this program, which was mandated by Congress, can result in harm to TV stations, and, in turn, to their viewers.

47. It is further ordered that, pursuant to Section 5(c) of the Communications Act of 1934, 47 U.S.C. 155(c), the Chief, Media Bureau, is granted delegated authority to implement the analog nightlight program described in this document.

48. It is further ordered that, pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), the Commission shall send a copy of this Report and Order in a report to Congress and the General Accounting Office.

49. It is further ordered that the Reference Information Center, Consumer Information Bureau, shall send a copy of this Report and Order to the Chief Counsel for Advocacy of the Small Business Administration.