[Federal Register Volume 74, Number 32 (Thursday, February 19, 2009)]
[Rules and Regulations]
[Pages 7654-7657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-3600]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[MB Docket No. 09-17; FCC 09-9]


Implementation of the DTV Delay Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission takes the first step to 
implement the DTV Delay Act by; extending the dates in analog 
television licenses and digital television construction permits to 
reflect the statutory change of the nationwide DTV transition date from 
February 17, 2009 to June 12, 2009; and; delegating authority to the 
Media Bureau to rule on the filings stations made in connection with 
their requests for restoration of the partial waiver permitting them to 
terminate analog service on February 17, 2009.

DATES: Effective February 13, 2009.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Evan Baranoff, [email protected], of the Media Bureau, Policy 
Division, at (202) 418-7142.

SUPPLEMENTARY INFORMATION: This is a summary of document FCC 09-9, 
adopted and released on February 13, 2009. The full text 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, S.W., Room CY-B402, Washington, DC 20554. 
To request this document in accessible formats (computer diskettes, 
large print, audio recording, and Braille), send an e-mail to 
[email protected] or call the Commission's Consumer and Governmental 
Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Summary of the Report and Order and Sua Sponte Order on Reconsideration

I. Introduction

    1. In this Report and Order, the first in response to the 
Congressional extension of the digital television (DTV) transition 
period, we extend the analog license terms and adjust the construction 
permits for the full power television stations subject to the DTV Delay 
Act that was enacted into law on February 11, 2009. (See DTV Delay Act, 
Public Law 111-4, 123 Stat. 112 (2009). On February 11, 2009, the DTV 
Delay Act was signed by the President and enacted into law. The DTV 
Delay Act was passed by the United States Senate on January 29, 2009 
and passed by the United States House of Representatives on February 4, 
2009. The Commission

[[Page 7655]]

also has issued a number of public notices to facilitate Congress's 
postponement of the DTV transition deadline. See Public Notice, ``FCC 
Requires Public Interest Conditions for Certain Analog TV Terminations 
on February 17, 2009,'' FCC 09-7 (rel. Feb. 11, 2009) (February 11 
Public Notice); Public Notice, ``FCC Announces Procedures Regarding 
Termination of Analog Television Service On or After February 17, 
2009,'' FCC 09-6 (rel. Feb. 5, 2009) (``February 5 Public Notice'').) 
In the DTV Delay Act, Congress extended the date for the completion of 
the nationwide DTV transition from February 17, 2009 to June 12, 2009. 
As a result, after June 12, 2009, full-power television broadcast 
stations must transmit only digital signals, and may no longer transmit 
analog signals except for limited analog ``nightlight'' service. (The 
DTV Delay Act (to be codified at 47 U.S.C. 309(j)(14) and 337(e)), 
amends Section 309(j)(14) of the Communications Act to establish June 
12, 2009 as the new nationwide deadline for the end of analog 
transmissions by full-power stations. 47 U.S.C. 309(j)(14)(A) (``A 
full-power television broadcast license that authorizes analog 
television service may not be renewed to authorize such service for a 
period that extends beyond June 12, 2009.''). See also 47 U.S.C. 
337(e)(1) (``Any full-power television station licensee that holds a 
television broadcast license to operate between 698 and 806 megahertz 
may not operate at that frequency after June 12, 2009.''). See the 
Short-term Analog Flash and Emergency Readiness Act, Public Law 110-
459, 122 Stat. 5121 (2008).) Congress extended the transition date in 
order to permit analog service to continue until consumers have had 
additional time to prepare. The DTV Delay Act directs the Commission to 
take any actions ``necessary or appropriate to implement the 
provisions, and carry out the purposes'' of the DTV Delay Act, and to 
do so within 30 days. (In addition, the DTV Delay Act amends the 
Digital Television and Public Safety Act of 2005 (``DTV Act''), Public 
Law 109-171, 120 Stat. 4 (2006), to direct the Commission to ``take 
such actions as are necessary (1) to terminate all licenses for full-
power television stations in the analog television service, and to 
require the cessation of broadcasting by full-power stations in the 
analog television service, by June 13, 2009; and (2) to require by June 
13, 2009, * * * all broadcasting by full-power stations in the digital 
television service, occur only on channels between channels 2 and 36, 
inclusive, or 38 and 51, inclusive (between frequencies 54 and 698 
megahertz, inclusive).'' 47 U.S.C.A. 309 Note.) This Report and Order 
also delegates authority to the Media Bureau to rule on stations' 
filings regarding termination of analog service on February 17, 2009. 
We intend to follow up quickly with additional rulemakings as needed. 
Finally, we adopt a Sua Sponte Order on Reconsideration to make a minor 
adjustment to the public notice released on February 5, 2009, and to 
the conditions adopted in the public notice released on February 11, 
2009.

II. Discussion

    2. Initially, we conclude that the actions herein are not subject 
to the rule making requirements of the Administrative Procedure Act or 
any other provision of law that otherwise might apply but would impede 
implementation of the DTV Delay Act. The Act directs the Commission to 
postpone the DTV transition date from February 17 to June 12, 2009, and 
provides that, ``[n]otwithstanding any other provision of law,'' the 
FCC must ``adopt or revise its rules, regulations, or orders or take 
such other actions as may be necessary or appropriate to implement the 
provisions, and carry out the purposes, of this Act and the amendments 
made by this Act'' within 30 days of the date of its enactment. The 
``notwithstanding'' clause plainly excuses compliance with otherwise 
applicable legal requirements that would impede implementation of the 
DTV Delay Act by the statutory deadline. (In other contexts, the DC 
Circuit has interpreted similar ``notwithstanding'' language ``to 
supersede all other laws, stating that `a clearer statement is 
difficult to imagine.' '' Liberty Maritime Corp. v. United States, 928 
F.2d 413, 416 (DC Cir. 1991) (internal cites omitted).) Even if the 
clause were ambiguous, we would interpret it to exempt the Commission 
from APA and other requirements that cannot be reconciled with the 
statutory deadline. (See, e.g., Verizon Comm'ns, Inc. v. FCC, 535 U.S. 
467, 539 (2002) (under Chevron doctrine, courts generally defer to an 
agency's reasonable interpretation of an ambiguous provision in its 
enabling statute). Cf. Asiana Airlines v. FAA, 134 F.3d 393, 398 (DC 
Cir. 1998) (``when Congress sets forth specific procedures that 
`express its clear intent that APA notice and comment procedures need 
not be followed, an agency may lawfully depart from the normally 
obligatory procedures of the APA''), quoting Methodist Hospital of 
Sacramento v. Shalala, 38 F.3d 1225, 1235 (1994). The DC Circuit upheld 
agency findings that the APA did not apply in the absence of express 
exemptions in Asiana and Methodist, despite an APA provision that 
modifications must be express, because the statutes specified 
procedures that could not be harmonized with the APA.) The actions 
herein are necessary and appropriate to implement the DTV Delay Act and 
carry out its purposes, and must be accomplished before February 17, 
2009, so that the effective deadline for our actions here is less than 
three business days. Because compliance with the APA and other 
requirements would frustrate our ability to meet that deadline, we 
conclude that our actions herein are exempt from such requirements. 
Moreover, we find that there is good cause for departure from the APA 
requirements of notice and comment and a 30-day delay before rules 
become effective. (See 5 U.S.C. 553(b)(3)(B) (notice and comment not 
required ``when the agency for good cause finds * * * that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.''), 553(d)(1) (exception to 30-day waiting period 
for a rule's effectiveness where agency finds good cause and publishes 
finding with the rule). See also 5 U.S.C. 608 (agency ``may waive or 
delay the completion of some or all of the [initial regulatory 
flexibility analysis] requirements * * * by publishing in the Federal 
Register, not later than the date of publication of the final rule, a 
written finding * * * that the final rule is being promulgated in 
response to an emergency that makes compliance or timely compliance * * 
* impracticable.'').) Again, with regard to the actions here, the 
effective deadline for Commission action is less than three business 
days. (The DC Circuit has held that ``the extremely limited time given 
by Congress'' to an agency for adoption of regulations ``is a crucial 
factor in establishing `good cause' '' under the APA. Id. at 1200-01 
(upholding agency finding of good cause to adopt interim rule without 
notice and comment where statute directed agency to promulgate 
implementing regulations ``[n]ot later than 60 days after the date of 
enactment'').) Our actions are of an interim nature, in that they will 
no longer be in force after June 13, 2009, and are largely ministerial, 
because they simply extend deadlines tied to the original DTV 
transition date of February 17, 2009 to the new statutory date. (See 
American Federation of Gov't Employees v. Block, 655 F.2d 1153, 1156 
(good cause existed to issue new rates effective immediately without

[[Page 7656]]

notice and comment but not to make them permanent); see also Metzenbaum 
v. FERC, 675 F.2d 1282, 1291 (DC Cir. 1982) (agency orders that were 
nondiscretionary ministerial actions issued in conformity with statute 
were properly issued without notice and comment). Accordingly, even if 
our actions are subject to the APA, we find that there is good cause 
for departure from APA requirements.

A. Licenses and Construction Permits Extended Until New Transition Date

    3. By this Order, and pursuant to the authority set forth in the 
DTV Delay Act, we hereby revise and extend the following dates related 
to full-power broadcast television stations' licenses and construction 
permits: (1) the date of termination for a station's analog license is 
extended from February 17, 2009 to June 12, 2009 (11:59:59 pm local 
time); (We note that a number of stations are operating with reduced 
analog facilities pursuant to special temporary authority, based upon a 
showing that the service reduction was directly related to the 
construction and operation of their post-transition facilities. We also 
extend the date of termination for these STAs from February 17, 2009 to 
June 12, 2009 (11:59:59 pm local time). Similarly, we extend the date 
of termination for stations operating pre-transition digital facilities 
pursuant to STAs which currently terminate on February 17th to June 12, 
2009 (11:59:59 pm local time).); (2) the construction permit deadline 
to construct a station's full-authorized post-transition (DTV) facility 
is extended from February 17, 2009 to June 12, 2009 (11:59:59 pm local 
time); (We note that the Third DTV Periodic Report and Order 
established certain construction deadlines, rules and procedures for 
requesting and obtaining extensions for build-out of digital 
facilities. See Third Periodic Review of the Commission's Rules and 
Policies Affecting the Conversion to Digital Television, MB Docket No. 
07-91, Report and Order, 72 FR 37310, 37322-37331 (July 9, 2007) 
(``Third DTV Periodic Report and Order''). We will address these 
deadlines, rules, and procedures if and as necessary in subsequent 
proceedings.); and (3) the date on which a station can commence 
operation of a facility authorized for post transition service without 
further Commission authorization is extended from 12:00 am February 18, 
2009 to 12:00 am June 13, 2009 (local time). Absent the extensions 
granted in this Report and Order, existing authorizations to provide 
analog broadcast service and to construct replacement digital 
facilities will expire on the former transition date and a gap in 
service would occur beginning on February 18th. This would directly 
contravene the purpose of the DTV Delay to afford viewers more time in 
which to prepare for the digital transition.
    4. We remind stations that they may complete construction of their 
post-transition digital facilities before June 12 at 11:59:59 pm, but 
may not operate such facilities before 12:00 am June 13, 2009 (local 
time) without express Commission approval because operation of a 
facility that has been authorized for post-transition but not pre-
transition service could cause impermissible interference to pre-
transition broadcasting. Therefore, stations that wish to operate a 
post-transition facility before 12:00 am June 13, 2009 (local time) 
must request special temporary authority (STA) from the Commission via 
the ``DTV engineering STA,'' including the appropriate engineering 
analysis.

B. February 11 Public Notice

1. Delegated Authority To Consider Waiver Reinstatement
    5. We hereby delegate authority to the Media Bureau to determine 
whether showings submitted in response to the Commission's February 11, 
2009 Public Notice justify reinstatement of the conditional waiver 
necessary to terminate analog service on February 17, 2009. The 
February 11 Public Notice reconsidered the partial waiver granted in an 
earlier public notice with regard to a number of stations intending to 
terminate analog service on February 17, 2009, based on the conclusion 
that termination by such stations poses a significant risk of 
substantial public harm. The stations in question, which are listed in 
the Appendix to the February 11 Public Notice, may not terminate analog 
service on February 17 unless they obtain reinstatement of the waiver 
of the procedures set forth in the Third DTV Periodic Report and Order 
by (1) making certain certifications by February 13 or (2) by showing 
``that extraordinary, exigent circumstances, such as the unavoidable 
loss of their analog site or extreme economic hardship, require that 
they terminate their analog service on February 17th.'' A station 
electing to submit such a showing (as opposed to a station making a 
self-effectuating certification) ``must await a determination by the 
Commission that its showing is sufficient before terminating analog 
service.'' The Commission stated in the February 11 Public Notice that 
we would try to make such determinations before February 17th. 
Accordingly, and to expedite such determinations, we delegate authority 
to the Media Bureau to make the required determinations and notify 
stations of the results.
2. Sua Sponte Reconsideration
a. February 5 Public Notice
    6. By this Order, we reconsider the limitation adopted in the 
February 5 Public Notice that stated: ``We expect that stations 
indicating their intent to terminate their analog service on February 
17 will do so. Therefore, as a condition of the waiver granted herein, 
the Commission will not permit stations to withdraw or modify these 
notifications except in the event of emergency or disaster 
necessitating the continued operation of analog service. The analog 
operations of stations submitting notification of intent to terminate 
analog service on February 17, 2009 pursuant to this Public Notice will 
no longer be protected from interference after February 17, 2009.'' 
Some stations that were not on the Appendix to the February 11 Public 
Notice have expressed interest in withdrawing their notifications for 
good reasons associated with circumstances in their markets, but not 
rising to the level of an ``emergency or disaster.'' We find that it is 
in the public interest to allow stations to withdraw their 
notifications of intent to terminate analog service on February 17, 
2009.
    7. Due to the limited period of time remaining before February 
17th, stations that wish to withdraw their notifications must notify us 
no later than 6:00 pm EST on Saturday, February 14, 2009. Stations 
should send an e-mail to: [email protected], and place 
``Withdrawal of Termination Notification'' in the subject line. 
(Stations listed in the Appendix to the February 11 Public Notice that 
choose not to terminate their analog service may so indicate on the 
form as described in footnote 10 to the February 11 Public Notice; they 
should not and need not send notifications to this e-mail address.) 
Stations should also revise their ``Viewer Notifications'' to reflect 
their change in plans as soon as possible.
b. February 11 Public Notice
    8. By this Order, we also reconsider and make a minor adjustment to 
one of the conditions set forth in the February 11 Public Notice. The 
third condition stated, in relevant part: ``Ensure that enhanced 
nightlight service concerning the DTV transition or emergency 
information will be provided in Spanish and English and accessible to 
the

[[Page 7657]]

disability community * * *'' Some stations have maintained that they do 
not have the capability of translating emergency information into 
Spanish. We also note that neither our rules nor the Analog Nightlight 
Act require emergency information in Spanish; rather the Analog 
Nightlight Act requires only that information concerning the DTV 
transition be provided in both English and Spanish. (See Section 2(b) 
of the Short-term Analog Flash and Emergency Readiness Act. We also 
urge stations to provide DTV transition information in other languages 
as appropriate for their viewers.)
    9. We recognize the value and importance of ensuring that emergency 
information is available in Spanish for many viewers. However, we do 
not wish to prevent stations that can otherwise comply fully with the 
eight public interest conditions set forth in the February 11 Public 
Notice from doing so and proceeding with their analog termination, as 
provided in the February 11 Public Notice. Therefore, we will not 
require stations to provide emergency information in Spanish if the 
station does not otherwise provide Spanish language programming. We 
certainly encourage stations to broadcast emergency information in 
Spanish or other languages as needed by their viewers. The requirement 
for DTV transition information in Spanish remains in place.

C. Additional Information

    10. For additional information, contact Evan Baranoff, 
[email protected], of the Media Bureau, Policy Division, at (202) 
418-7142.

III. Ordering Clauses

    11. It is ordered that, pursuant to the authority contained in 
Sections 4, and 303 of the Communications Act of 1934, as amended, 47 
U.S.C. 154 and 303, and Sections 2 and 4(c) of the DTV Delay Act, DTV 
Delay Act 2, 4(c), this Report and Order is adopted.
    12. It is also ordered, pursuant to the authority contained in 
Section 4(c) of the DTV Delay Act, DTV Delay Act Section 4(c), the 
actions herein are effective upon release of this Report and Order. As 
discussed above, the actions herein must be effective no later than 
February 17, 2009 at 11:59:59 pm to avoid a gap in analog broadcast 
service that would harm viewers and directly contravene the purposes of 
the DTV Delay. The Commission is releasing this Report and Order on 
Friday, February 13, 2009, only two days after the DTV Delay Act's 
enactment on February 11, 2009, and the last business day before 
February 17, 2009 (Monday, February 16 is a federal holiday). As a 
result, we find that there is good cause to make the actions herein 
effective upon release of this Report and Order by the Commission 
(i.e., February 13, 2009).

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E9-3600 Filed 2-17-09; 11:15 am]
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