[Federal Register Volume 74, Number 38 (Friday, February 27, 2009)]
[Proposed Rules]
[Pages 8889-8895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4257]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 09-17; FCC 09-11]


Implementation of the DTV Delay Act

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document seeks comment on issues relating to further 
implementation of the DTV Delay Act. The Commission proposes and seeks 
comment on a procedure for early termination of analog broadcasting by 
full-power television broadcasters, and asks whether stations should be 
allowed to terminate service at different times of day. It also asks 
whether the DTV Consumer Education Initiative rules should be revised, 
particularly to require stations to provide viewers with detailed 
information about service loss due to the move from analog to digital 
broadcasting.

DATES: Comments for this proceeding are due on or before March 4, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554. You may submit comments, identified by MB Docket 
No. 09-17, by any of the following methods:
    <bullet Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    <bullet Federal Communications Commission's 
Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for 
submitting comments.
    <bullet People with Disabilities: Contact the 
FCC to request reasonable accommodations (accessible format documents, 
sign language interpreters, CART, etc.) by e-mail: [email protected] or 
phone: 202-418-0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document. In addition to filing comments 
with the Secretary, a copy of any comments on the Paperwork Reduction 
Act information collection requirements contained herein should be 
submitted to the Federal Communications Commission via e-mail to 
[email protected] and to Nicholas A. Fraser, Office of Management and Budget, 
via e-mail to [email protected] or via fax at 202-395-
5167.

FOR FURTHER INFORMATION CONTACT: For more information, please contact 
Nazifa Sawez, [email protected], at 202-418-7059 or Shaun Maher, 
[email protected], at 202-418-2324, of the Video Division, Media 
Bureau; or Evan Baranoff, [email protected], at 202-418-7142; Lyle 
Elder, [email protected], at 202-418-2120; or Kim Matthews, 
[email protected], at 202-418-2154, of the Policy Division, Media 
Bureau; or Eloise Gore, [email protected], at 202-418-7200, of the 
Media Bureau. For additional information concerning the Paperwork 
Reduction Act information collection requirements contained in this 
document, contact Cathy Williams on (202) 418-2918, or via the Internet 
at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (``NPRM'') in MB Docket No. 09-17, FCC 09-11, 
adopted and released February 20, 2009. (The companion Second Report 
and Order to this document is published elsewhere in this issue of the 
Federal Register.) The full text of this document is available for 
public inspection and copying during regular business hours in the FCC 
Reference Center, Federal Communications Commission, 445 12th Street, 
SW., CY-A257, Washington, DC 20554. These documents will also be 
available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be 
available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The 
complete text may be purchased from the Commission's copy contractor, 
445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request 
this document in accessible formats (computer diskettes, large print, 
audio recording, and Braille), send an e-mail to [email protected] or call 
the Commission's Consumer and Governmental Affairs Bureau at (202) 418-
0530 (voice), (202) 418-0432 (TTY).

Initial Paperwork Reduction Act of 1995 Analysis

    This Notice of Proposed Rulemaking (NPRM) was analyzed with respect 
to the Paperwork Reduction Act of 1995, Public Law 104-13 (PRA) and 
contains modified information collection requirements. Specifically, 
this NPRM proposes to modify existing DTV transition-related 
information collection requirements to (1) expand viewer notification 
and other public interest obligations for early terminators of analog 
service; and (2) amend consumer education requirements to provide more 
detailed and accurate information to television viewers. The Commission 
is seeking OMB approval for these changes under OMB's emergency 
processing rules.
    The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collection 
requirements contained in this document, as required by the PRA. Public 
and agency comments are due March 4, 2009. Comments should address: (a) 
Whether the proposed collection of information is necessary for the 
proper performance of the functions of the Commission, including 
whether the information shall have practical utility; (b) the accuracy 
of the Commission's burden estimates; (c) ways to enhance the quality, 
utility, and clarity of the information collected; and (d) ways to 
minimize the burden of the collection of information on the 
respondents, including the use of automated collection techniques or 
other forms of information technology. In addition, pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we seek specific comment on how we might ``further 
reduce the information collection burden for small business concerns 
with fewer than 25 employees.''
    Summary of the Notice of Proposed Rulemaking:

I. Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking (NPRM), we seek comment on 
possible additional amendments to our rules that may be necessary or 
appropriate to carry out the purposes of the DTV Delay Act. In 
particular, we seek comment on revisions to the early analog 
termination procedures for stations that prefer to complete their 
transition before the new deadline of June 12, 2009. We also seek 
comment on whether to revise our consumer education rules, particularly 
by requiring broadcasters to provide service loss notices to viewers. 
We ask whether broadcasters should provide information on rescanning 
with digital equipment, and, where applicable, information regarding 
the need for different equipment due to changes from UHF to VHF 
service, or vice versa.

[[Page 8890]]

We also seek comment on amendments to the ``100-Day Countdown'' that is 
required in Option Two and the 30 minute informational video that is 
required in both Option Two and Option Three. Finally, we ask whether 
stations that participate in or support the post-transition analog 
nightlight program should be exempt from post-transition consumer 
education requirements.

A. Analog Service Terminations Prior to June 12, 2009

    2. As discussed above, we find that revising the analog (and pre-
transition digital) service termination procedures established in the 
Third DTV Periodic Report and Order, 72 FR 37310 (July 9, 2007), is 
necessary to implement and carry out the purposes of the DTV Delay Act. 
We seek to develop revised service termination procedures that will 
best enable us to evaluate and adjust deployment of our resources and 
to coordinate with other entities in order to prepare for stations' 
analog service terminations and protect the public interest. The 
Commission must make, adjust and prioritize arrangements for consumer 
outreach, call center staffing, converter installation assistance and 
coordinate with contractors, partners, volunteers, and organizations 
throughout the country to address areas where stations will terminate 
their analog signals throughout the transition period. We therefore 
propose to allow stations to proceed with their planned terminations, 
as described in their March 17 notification to the Commission, without 
the need for action by the Commission; provided, however, that if a 
major network (ABC/CBS/FOX/NBC) affiliate intends to terminate service 
early, it must certify that: (1) At least 90% of its analog viewers 
will receive some analog service (full service or enhanced nightlight) 
until June 12, 2009; and (2) it will comply with the other public 
interest conditions described below on or before the day it terminates 
analog service and through June 12, 2009. Any major network affiliate 
that does not certify to both requirements must continue providing full 
analog service until June 12, 2009 (except in the case of equipment 
failure, natural disaster, or other unforeseeable emergency).
    3. In the companion Order published elsewhere in this issue of the 
Federal Register, we require all full-power television stations that 
have not terminated their analog service as of February 17, 2009, to 
decide on a firm date by which they intend to terminate their regular 
analog television service and to notify us of that date no later than 
Tuesday, March 17, 2009. We tentatively conclude that stations may 
terminate no earlier than April 16, 2009, to give all parties at least 
30 days from the notification date to prepare and educate consumers. 
Our proposals here are influenced by our experience planning for the 
partial transition by one-third of the full power stations on or just 
before February 17, 2009. We have found that advance planning and 
station commitment to nightlight service and public interest outreach 
contribute to a smoother transition.
    4. For the same reason, we also tentatively conclude that stations 
will not be permitted to change their date for analog service 
termination without a strong justification and express Commission 
approval. We propose that, except in the case of equipment failure, 
natural disaster, or other unforeseeable emergency, stations would only 
be permitted to terminate analog service on the date they elect. In 
addition, we propose that the timing and advance notice for analog 
terminations to be adopted in this proceeding will supersede the 
provisions of Section 73.1615. Stations would be able to rely on the 
flexibility of Section 73.1615 for brief terminations or reductions of 
service for technical reasons, as originally contemplated by that 
section. They would not, however, be permitted to rely on this 
provision to terminate analog service altogether, even in the days 
immediately prior to June 12, 2009. A station's analog service 
termination would only be permissible on the date permitted for it by 
the Commission. We seek comment on our tentative conclusion and 
proposals.
    5. The Third DTV Periodic Report and Order required stations to 
notify their viewers about a planned analog service termination at 
least 30 days prior to the termination. These ``viewer notifications'' 
are required to describe how viewers can continue to receive service 
from the station, and continue to apply to any station terminating 
prior to June 12. They are not limited to major network affiliates. We 
do not propose to modify the 30-day on-air viewer notification 
requirement for early service terminations, although we do encourage 
early transitioning stations to start viewer notifications as soon as 
their plans are set. We seek comment on whether to require a longer 
viewer notification period for early transitioning stations, up to 60 
days when possible, or if we should require that notifications commence 
uniformly on a date certain or, instead, as soon as the station's 
intended termination date is finalized. Under no circumstances will a 
station be permitted to air notifications for fewer than 30 days. Each 
station's on-air viewer notifications must include the specifics of the 
station's firm termination date. We also seek comment on whether to 
require all stations that are terminating prior to June 12, 2009, to 
air a crawl for the seven days prior to their termination, as was 
required for stations terminating on February 17, 2009.
    6. The Third DTV Periodic Report and Order required stations to 
make a showing with their notification that the analog service 
termination ``is necessary for purposes of the transition.'' Consistent 
with this requirement, we propose to require stations to provide us 
with sufficient information to enable us to determine whether an early 
analog termination is necessary and in the public interest. As 
described in the companion Order published elsewhere in this issue of 
the Federal Register, no service termination notifications may be filed 
prior to the release of the new procedures and form to be adopted in 
response to this NPRM. We propose to allow stations that notify us by 
March 17, 2009 to proceed with their planned terminations without 
specific individual approval, with limited exceptions. Under this 
proposal, we would review the termination notifications of major 
network affiliates. We propose that, in order to terminate analog 
service on their proposed early date, these stations will be required 
to certify both that there will be continuing analog service to a 
substantial portion of their analog audience until June 12, and that 
they will comply with the other public interest conditions proposed 
below.
    7. We propose that these stations must certify that at least 90 
percent of the population within their Grade B analog contour will 
continue to receive analog service through June 12, 2009. Analog 
service, for this purpose, may be full service analog programming from 
a major network affiliate or enhanced analog nightlight service, 
because either of these will include local news, public affairs and 
emergency information, as well as DTV educational information. Any 
major network affiliate that is certifying in order to terminate analog 
service early must include with its filing a list of the stations that 
will continue to provide such analog service to at least 90 percent of 
its analog viewers through June 12, 2009. Stations may cooperate to 
share responsibility for providing this analog service, but each 
station is individually responsible for its own analog viewers.
    8. We further propose that these stations must also certify that 
they will comply with the other public interest conditions detailed 
below. The ``On-Air

[[Page 8891]]

Crawl Prior to Termination'' requirement goes into effect, by its own 
terms, prior to the termination of the station's analog service. The 
``DTV Educational Information'' and ``Market Outreach'' obligations 
must be undertaken so that they are in place no later than the day on 
which the station terminates full service analog programming. The 
``Market Outreach'' requirements contemplate collective effort, in a 
market where more than one broadcaster has certified compliance with 
these conditions, but we remind major network affiliates who terminate 
early of their joint and several responsibility for compliance with 
these requirements. Due to different analog termination dates, each 
broadcaster in an area may become subject to these conditions at 
different times. Therefore, we will hold a broadcaster responsible for 
compliance with these requirements only during the period after the 
termination of its analog service. We emphasize that broadcasters that 
continue providing analog service through June 12, 2009, are not 
responsible for compliance with any of the requirements associated with 
early termination, or for any shared efforts or expenses incurred by 
early termination stations as a result of these requirements.
    9. We propose to require certification to the following conditions, 
which generally track the conditions that we applied to the network 
affiliates that sought to terminate on February 17, 2009:
Enhanced Analog Nightlight
     Ensure that at least one station that is currently 
providing analog service to an area within the DMA that will no longer 
receive analog service after the early termination date will continue 
broadcasting an analog signal providing, at a minimum, DTV transition 
and emergency information, as well as local news and public affairs 
programming (``enhanced nightlight'' service) for 60 days following the 
early termination date, but not beyond June 12, 2009; for the purposes 
of these early terminations, therefore, the enhanced nightlight must 
begin as soon as there is no network affiliate serving the area, and be 
provided only through June 12, 2009. The local news, public affairs, or 
other programming may include commercial advertising.
     Ensure that enhanced nightlight service concerning the DTV 
transition will be provided in Spanish and English and that both DTV 
transition and emergency information is accessible to the disability 
community (e.g., silent scrolls or slates do not provide information to 
the visually impaired, and therefore, broadcast notices must have an 
aural component, as well as being closed or open captioned).
Other Public Interest Conditions

DTV Educational Information

     Ensure that on-air educational information (prior to the 
early termination date and thereafter as part of ``enhanced 
nightlight'' service) will include demonstrations of converter box 
installations, antenna setups, and other helpful information, including 
the location of walk-in centers in the market and the phone number for 
the local or toll-free telephone assistance provided to the market, 
discussed in this section. The Commission will continue to publicize 
the location of local walk-in centers via our Web site at https://dtvsupport.fcc.gov/dtvtools.
     Ensure that the DTV educational information, both on-air 
and through other means, will provide information describing areas that 
may be losing over-the-air signal coverage temporarily or permanently 
as the station transitions to digital-only broadcasting. Such 
information may include detailed maps, listings of affected 
communities, and instructions on how to assess what type of antenna may 
be necessary to retain or regain the station's digital signal, as well 
as identifying specific locations that will not be able to receive a 
digital signal regardless of antenna. If educational information is 
prepared jointly, it must still specify the signal loss or change as 
relevant to each station.

Market Outreach

     Each station individually or collectively in the market 
commits to assisting viewers by providing local or toll-free telephone 
assistance, including engineering support. Such assistance may be 
provided jointly with other stations, organizations, and businesses in 
the area, but the certification must specify which station or stations 
are responsible. If no station is specified, the station making the 
certification is presumed responsible.
     Each station alone or together with other stations or 
local businesses and organizations in the market will provide a 
location and staff for a consumer ``walk-in'' center to assist 
consumers with applying for coupons and obtaining converter boxes, to 
demonstrate how to install converter boxes, to provide maps and lists 
of communities that may be affected by coverage issues, and to serve as 
a redistribution point for consumers who are willing to donate coupons, 
converter boxes, televisions and for those in need of these items. The 
certification must specify which station or stations are responsible 
for operating the walk-in center. If no station is specified, the 
station making the certification is presumed responsible.
     Each station will consider and is encouraged to coordinate 
with and use community resources to provide consumer outreach and 
support, including in-home assistance.

On-Air Crawl Prior to Termination

     Each station, individually, will broadcast a crawl on 
their analog channel regarding the station's termination of analog 
service, for the seven day period just prior to the date of early 
termination. For the first five days, the crawl must be aired for 5 
minutes of every hour of the station's analog broadcast day, including 
during primetime. For the final two days, the crawl must be aired for 
10 minutes of every hour of the station's analog broadcast day, 
including during primetime. Each station will include in the crawl the 
FCC toll-free number (1-888-CALLFCC, 1-888-225-5322). Stations that 
cannot broadcast a crawl because it is technically unfeasible may 
provide substitute information on an hourly basis, which should be 
indicated in their certification.
    10. We recognize that major network affiliates subject to the 
certification requirement may not be able to certify that they and the 
other stations in their market will provide continuing analog service 
and compliance with the other necessary public interest obligations 
discussed above. In such cases, these licensees may make an alternative 
showing to the Commission 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 their 
proposed date. This showing must also include information regarding 
analog service that will be available for the station's viewers. For 
example, a network affiliate might partner with another station serving 
the same area to ensure that its viewers may view local news, public 
affairs and emergency information. Some network affiliates 
transitioning on February 17 partnered with local PBS stations to 
provide local news programs, which the PBS station aired without 
commercials. The showing should not exceed five (5) pages, not 
including attachments. Stations attempting to make this showing bear a 
heavy burden of proof. Any station electing to make this showing must 
await a determination by

[[Page 8892]]

the Commission that its showing is sufficient before terminating analog 
service. The Commission will endeavor to resolve all of these cases 
prior to the stations' proposed termination date.
    11. Under our proposed approach, we would also retain the right to 
prevent any station from going forward with early termination if we 
find it in the public interest to do so. As the Commission did in the 
case of stations seeking to terminate on February 17, we would 
expeditiously provide notice to stations via public notice if major 
network affiliates subject to the certification requirement decline to 
certify, or if any other station will not be permitted to transition on 
its proposed date. After broadcasters have had an opportunity to review 
the Commission's decisions regarding the early termination of stations 
in their market and surrounding markets, they would have an opportunity 
to revoke their early termination decision and continue to broadcast 
analog service through June 12. Notice of this decision would have to 
be provided to the Commission and viewers, however, not later than 5 
days prior to the station's scheduled termination date.
    12. We believe that our proposals are consistent with the DTV Delay 
Act. They retain stations' flexibility to choose a transition date 
prior to June 12 that works for them, while also taking into 
consideration the needs and readiness of viewers in their markets. 
These proposals afford flexibility for stations consistent with 
consumer readiness and assistance. We require that stations decide and 
select a final transition date that will enable other interested 
parties to make their plans and preparations for the station's 
transition. We expect that network affiliates and other stations 
serving the same viewing area will closely coordinate if they intend to 
terminate analog service before June 12, 2009. We seek comment 
specifically on the benefits and hazards of allowing all or virtually 
all stations in a market to transition prior to June 12. We are 
concerned that doing so would deprive unprepared consumers of access to 
vital local news, public affairs and emergency information. We also 
seek comment from affected industry groups and, particularly, from 
consumers on the relative benefits and harms of our proposal.
    13. We also seek comment on whether stations should be allowed to 
terminate analog service at any time on June 12, 2009, or be required 
to continue broadcasting an analog signal until 11:59:59 p.m. local 
time. As noted in the First Report and Order, 74 FR 7654 (Feb. 19, 
2009), implementing the DTV Delay Act, full power stations' analog 
licenses expire at 11:59:59 p.m. on June 12, 2009. As explained above, 
stations may continue analog broadcasting after 11:59:59 p.m. only to 
the extent that they are participating in the Analog Nightlight 
program. However, the DTV Delay Act and the other relevant statutory 
provisions are silent as to the time of day on June 12, 2009 on which 
analog termination may occur. We do not believe it is necessary to 
treat analog termination on June 12 but prior to 11:59:59 p.m. as an 
``early'' termination and propose to leave it to stations to determine 
what time of day is most appropriate for their viewers. However, we 
propose to require that stations inform the Commission of the time of 
day they plan to terminate when they file the required notification on 
March 17, 2009 and notify viewers through their required PSAs, crawls 
and other consumer education broadcasts if they are planning to end 
analog service before 11:59:59 p.m.

B. Consumer Education Initiative Rules

1. 100 Day Countdown
    14. We also seek comment on whether we should revise the ``100 day 
countdown'' requirement that applies to Option Two broadcasters. As 
originally conceived, and as revised in this 2nd Report and Order, each 
Option Two broadcaster must air a daily reminder of the number of days 
until the conclusion of the DTV transition, beginning 100 days prior to 
the transition. A simultaneous nationwide countdown was appropriate 
when we expected that the vast majority of stations were planning to 
continue analog programming until the conclusion of the transition. Now 
that the transition has been delayed, however, many of the roughly 64% 
of stations that did not transition on or before February 17 may 
transition prior to or on June 12. Under the circumstances, we 
recognize that requiring an identical and simultaneous countdown to 
June 12 by all Option Two stations, including those that have already 
transitioned, may create more confusion than it would alleviate. We 
therefore seek comment on whether and how to revise this requirement.
    15. Should a station that will be transitioning before June 12 be 
required to count down to the date on which that station will terminate 
analog service? Should it provide a second countdown (simultaneous with 
the first?) that demonstrates the distinction between the station's and 
the nation's transitions? Should the requirement vary depending on 
whether a station's entire market is transitioning? If so, how should 
we define ``entire market'' for the purposes of these rules? Once a 
station has transitioned early, should it be required to run a 
countdown of any kind? We note that the educational obligation placed 
on pre-transition television stations arose not merely from their 
position as television stations watched by analog-only viewers, but 
also from their important position as an authoritative source of 
information for the affected community. Even when one station has 
completed its move to digital, it can still provide valuable 
information and education to its viewers regarding the transition by 
other stations.
2. 30 Minute Informational Videos
    16. Under the rules as revised in the companion Report and Order, 
Option Two and Three broadcasters must, on at least one day prior to 
June 12, 2009, air ``an informational program on the digital television 
transition.'' Many, if not most, of the affected broadcasters complied 
with this requirement when the transition was to take place on February 
17, and their informational programs necessarily reflected that date. 
For stations that have already transitioned, we find that such a 
program would have met the needs of their viewers. We seek comment, 
however, concerning whether such a pre-DTV Delay Act program should be 
considered sufficiently accurate and helpful to viewers of stations 
that have not yet transitioned, or if these stations should be required 
to air an up-to-date 30 minute informational program before they cease 
analog programming.
    17. We also seek comment on what specific information would need to 
be included in such a program for it to serve the consumer educational 
purposes of the DTV Delay Act. Specifically, we seek comment on whether 
this up-to-date 30-minute informational video should explain: (1) The 
change in the transition date; (2) when that particular station is 
transitioning; (3) when other stations in the market are transitioning; 
and/or (4) any change in the coverage area of the station.
3. Service Loss Notices
    18. The Commission's experience with stations that have already 
terminated analog service, particularly in those areas where an entire 
market has transitioned, is that loss of a station due to a change in 
the digital coverage area creates the greatest consumer confusion and 
distress. This will be true for stations that transition at any time, 
up to and including June 12. Indeed, it

[[Page 8893]]

is true even before stations terminate their analog service as more and 
more viewers come to rely on digital service. Therefore, we seek 
comment on whether every station should be required to provide specific 
notice to analog viewers who are likely to lose over-the-air service 
from the station due to changes in the stations' coverage area.
    19. Broadcasters electing Option One are already required to 
provide information to their viewers, at least once per week, about any 
``[c]hanges in the geographic area or population served by the station 
during or after the transition.'' They must do so via their regularly-
aired PSAs. We propose to require broadcasters who have elected Options 
Two or Three to provide similar information to their viewers via PSAs, 
if 2 percent or more of their analog viewers are predicted to lose 
service as a result of a change in their geographic coverage area (even 
if the station gains viewers elsewhere). The Commission has created a 
tentative list of stations anticipated to lose 2 percent or more of 
their analog viewers, which can be found on the FCC Web site at http://www.fcc.gov/dtv/markets/report2.html. For purposes of the notice 
requirement, we would not include those stations where the losses are 
due solely to propagation effects such as a change from a VHF to UHF 
channel. Stations would be required to provide geographically specific 
information detailing areas that are covered by the Grade B analog 
contour but are not predicted to receive digital service. We would also 
require stations to provide educational information describing areas 
where analog signal strength is generally sufficient for viewers to 
rely on an indoor antenna but where it is likely that they will need an 
outdoor antenna to receive the digital signal.
    20. We seek comment on how the information should be presented in a 
manner that is both accurate and understandable to viewers. Should we 
permit stations to convey the geographic specificity in different ways? 
For example, would PSAs referencing particular communities, ZIP codes, 
or neighborhoods be sufficient, or should stations be required to show 
maps demonstrating their changed service area? Should service area 
information be provided to viewers more frequently than once per week? 
Alternatively, should broadcasters be required or permitted to provide 
information directly to populations expected to lose service, via, for 
instance: direct mail to addresses in the affected area? We note that 
radio broadcasts and local newspapers are another means of targeting 
viewers who are likely to experience loss. Stations may also point out 
to their viewers any areas in which their over-the-air service will 
improve or expand. There may well be viewers who currently rely on 
subscription service who may be able to rely, instead, on free over-
the-air broadcasting and thus realize one of the benefits of the DTV 
transition, particularly where the station offers multicast channels.
    21. We also propose to require all stations to provide information 
to consumers about the need to periodically ``rescan'' when using over-
the-air digital reception equipment, particularly through the end of 
the transition. We propose to further require stations that are 
changing their broadcast frequency from VHF to UHF (or vice versa) to 
include as part of their required consumer education activities notice 
about the need for additional or different equipment to avoid loss of 
service. The implementation of Major Channel Numbers as part of the 
Program System Information Protocol (PSIP) makes it more difficult for 
consumers to determine this information on their own, because a 
station's ``channel'' no longer necessarily reflects its over the air 
frequency.
4. Waiver of Post-Transition Consumer Education Requirements
    22. We propose to waive the post-transition consumer education 
requirements for stations that participate in the statutory nightlight 
program. The broadcasters in Wilmington, North Carolina, who 
volunteered to transition their market on September 8, 2008, ceased 
analog broadcasting on that date but voluntarily participated in a 
``nightlight''-type program for roughly one month afterward, displaying 
a ``slate'' describing the transition and explaining how people could 
obtain additional information about it. In consideration of the fact 
that the entire market was transitioning at once, and upon the request 
of the broadcasters, the Commission found that the nightlight fulfilled 
the Wilmington stations' consumer education obligations, and waived the 
remainder of those obligations for both the analog and digital signals.
    23. As discussed above, after the conclusion of the nationwide 
transition many stations will have the option to participate in the 
statutory nightlight program created by Congress and implemented in our 
Analog Nightlight Order. Should we, as we did in Wilmington, consider 
participation in this program, or support of another station's 
participation, sufficient to meet a station's consumer education 
obligations, to the extent that they apply after June 12, 2009? We seek 
comment on this proposal.

C. Other Issues

    24. Finally, we welcome comment on any actions ``necessary or 
appropriate to implement the provisions, and carry out the purposes'' 
of the DTV Delay Act that have not been resolved by or addressed above.

II. Procedural Matters

A. Statutory Authority and Good Cause Findings

    25. For the reasons below, pursuant to section 4(c) of the DTV 
Delay Act, we conclude that the rule changes and other actions herein 
are not subject to the rulemaking requirements of the Administrative 
Procedure Act, Congressional Review Act, Regulatory Flexibility Act, or 
any other provision of law that otherwise would apply and would impede 
implementation of the statutory directives. In any event, we also 
conclude that there is good cause for departure from such requirements 
here. Nevertheless, we are providing notice and an abbreviated 
opportunity for public comment regarding the issues addressed in 
Section IV above to allow interested parties to contribute to our 
consideration of these issues to the extent possible in the limited 
time that Congress has provided.
    26. Section 4 of the DTV Delay Act provides that, 
``[n]otwithstanding any other provision of law,'' the Commission 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 FCC actions to 
implement 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.' '' The plain meaning of the DTV 
Delay Act's language is reinforced by the circumstances surrounding its 
passage. Congress extended the imminent DTV transition deadline to 
enhance national preparedness for the DTV transition, and examination 
of the legislative history reflects its recognition that accomplishing 
this goal would require extraordinary and immediate action by the 
Commission and others. Thus, the Act requires the FCC to act

[[Page 8894]]

not later than 30 days after the date of enactment, and grants it broad 
discretion within that brief period to take such actions ``as may be 
necessary or appropriate'' to accomplish the Act's goals. For the 
reasons explained elsewhere in this Order, we find that the rule making 
and other actions herein are necessary and appropriate to implement the 
DTV Delay Act and carry out its purposes. As discussed below, 
compliance with the APA and other procedural administrative law 
requirements would frustrate or impede the FCC's ability to meet the 
statutory deadline. Therefore, section 4(c) of the Act supersedes such 
legal requirements.
    27. Even if the statutory language were ambiguous, we would 
interpret it to exempt the Commission from APA and other procedural 
administrative law requirements that cannot be reconciled with the 
statutory mandate. As stated above, the Act requires the FCC to 
implement its provisions and purposes within 30 days. The fact that 
many Commission rules, regulations and orders are tied to the original 
statutory deadline of February 17, 2009, combined with the Act's 
enactment only a few business days before February 17, reduced the time 
frame for many of the necessary actions from one month to a matter of 
days. Moreover, given the number and complexity of rule making and 
other actions required to implement the DTV Delay Act and accomplish 
its purposes, combined with the fact that the Act itself postpones the 
nationwide DTV transition for a limited period, the FCC cannot fulfill 
the statutory mandate and comply with otherwise applicable rule making 
and other legal requirements. There is insufficient time to publish a 
Notice of Proposed Rulemaking in the Federal Register, allow time for 
meaningful comment and consider those comments before taking all of the 
necessary legal actions. The APA also requires Federal Register 
publication at least 30 days before a rule's effective date. Here, a 
standard comment period after Federal Register publication and a 30-day 
waiting period before rules become effective would exceed the 30-day 
period after enactment during which agency implementation is required. 
Other legal requirements cited above likewise require more time than 
circumstances allow. Therefore, even if the statute were ambiguous, we 
would interpret it to supersede requirements that cannot be harmonized 
with the statutory mandate, including the APA, CRA, and RFA.
    28. We also find that there is good cause for departure from the 
APA requirements of notice and comment, the requirements of the CRA, 
and a 30-day delay before rules become effective under the 
circumstances here. As discussed above, the extraordinary circumstances 
surrounding the DTV Delay Act create an urgent need for rapid action. 
The statutory deadline for Commission action is no more than 30 days 
from enactment. 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. We note 
that many of our actions are of an interim nature, in that they will no 
longer be in force after June 13, 2009. Moreover, some of our actions, 
such as extending the terms of the licenses for the recovered spectrum 
(including the license period and construction requirements associated 
with those licenses) for 116-day period, are non-discretionary or 
ministerial in nature. Accordingly, even if our actions were subject to 
the APA (and, as explained above, they are not), we find that there is 
good cause for departure from APA requirements because the 
circumstances make compliance impracticable or unnecessary. 
Nevertheless, as indicated above, we are providing notice and an 
abbreviated opportunity for public comment regarding the issues 
addressed in Section IV above to allow interested parties to contribute 
to our consideration of these issues to the extent possible in the 
limited time that we have. We find that the five-day comment period 
provided herein is the maximum possible opportunity for public comment 
that we can provide and still fulfill our statutory mandate to take 
such actions as are necessary or appropriate to implement the DTV Delay 
Act and accomplish its purposes within 30 days of the Act's enactment, 
or no later than March 13, 2009.

B. Initial Paperwork Reduction Act of 1995 Analysis

    29. This NPRM was analyzed with respect to the Paperwork Reduction 
Act of 1995 (PRA) and contains modified information collection 
requirements. Specifically, this NPRM proposes to modify existing DTV 
transition-related information collection requirements to (1) expand 
viewer notification and other public interest obligations for early 
terminators of analog service; and (2) amend consumer education 
requirements to provide more detailed and accurate information to 
television viewers. The Commission is seeking OMB approval for these 
changes under OMB's emergency processing rules.
    30. Written comments by the public on the new and/or modified 
information collections are due on or before 5 days after the date of 
publication in the Federal Register. In addition to filing comments 
with the Office of the Secretary, a copy of any comments on the 
proposed information collection requirements contained herein should be 
submitted to Cathy Williams, Federal Communications Commission, 445 
12th St., SW., Room 1-C823, Washington, DC 20554, or via the Internet 
to [email protected].
    31. Further Information. For additional information concerning the 
PRA proposed information collection requirements contained in this 
NPRM, contact Cathy Williams at 202-418-2918, or via the Internet to 
[email protected].

C. Filing Requirements

    32. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding subject to the ``permit-but-disclose'' 
requirements under Section 1.1206(b) of the Commission's rules. Ex 
parte presentations are permissible if disclosed in accordance with 
Commission rules, except during the Sunshine Agenda period when 
presentations, ex parte or otherwise, are generally prohibited. Persons 
making oral ex parte presentations are reminded that a memorandum 
summarizing a presentation must contain a summary of the substance of 
the presentation and not merely a listing of the subjects discussed. 
More than a one- or two-sentence description of the views and arguments 
presented is generally required. Additional rules pertaining to oral 
and written presentations are set forth in Section 1.1206(b).
    33. Comments. Pursuant to Sections 1.415 and 1.419 of the 
Commission's rules, 47 CFR 1.415, 1.419, interested parties may file 
comments on or before the date indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (``ECFS'') or by filing paper copies. See 
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 
(1998). To request materials in accessible formats for people with 
disabilities (braille, large print, electronic files, audio format), 
send an e-mail to [email protected] or call the Consumer & Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). We find 
that the five-day comment period provided herein is the maximum 
possible opportunity for public comment that we can provide and still 
fulfill our statutory mandate to take such actions as are necessary or 
appropriate to implement the DTV

[[Page 8895]]

Delay Act and accomplish its purposes within 30 days of the Act's 
enactment; therefore, we find good cause to waive the requirement for 
Reply Comments established in our rules.
    34. Comments filed through ECFS can be sent as an electronic file 
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, 
only one copy of an electronic submission must be filed. In completing 
the transmittal screen, commenters should include their full name, U.S. 
Postal mailing address, and the applicable docket number. Parties may 
also submit an electronic comment by Internet e-mail. To get filing 
instructions for e-mail comments, commenters should send an e-mail to 
[email protected], and should include the following words in the body of the 
message: ``get form .'' A sample form and 
directions will be sent in reply.
    35. Parties who choose to file by paper must file an original and 
four copies of each filing. Filings can be sent by hand or messenger 
delivery, by commercial overnight courier, or by first-class or 
overnight U.S. Postal Service (although we continue to experience 
delays in receiving U.S. Postal Service mail). The Commission's 
contractor, Natek, Inc., will receive hand-delivered or messenger-
delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building. Commercial overnight mail 
(other than U.S. Postal Service Express Mail and Priority Mail) must be 
sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal 
Service first-class mail, Express Mail, and Priority Mail, should be 
addressed to 445 12th Street, SW., Washington, DC 20554. All filings 
must be addressed to the Commission's Secretary: Office of the 
Secretary, Federal Communications Commission.
    36. Availability of Documents. Comments, reply comments, and ex 
parte submissions will be available for public inspection during 
regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. Persons with disabilities who need assistance in the FCC 
Reference Center may contact Bill Cline at (202) 418-0267 (voice), 
(202) 418-7365 (TTY), or [email protected]. These documents also will 
be available from the Commission's Electronic Comment Filing System. 
Documents are available electronically in ASCII, Word 97, and Adobe 
Acrobat. Copies of filings in this proceeding may be obtained from Best 
Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554; they can also be reached by telephone, at 
(202) 488-5300 or (800) 378-3160; by e-mail at [email protected]; or via 
their Web site at http://www.bcpiweb.com. To request materials in 
accessible formats for people with disabilities (braille, large print, 
electronic files, audio format), send an e-mail to [email protected] or 
call the Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E9-4257 Filed 2-25-09; 11:15 am]
BILLING CODE 6712-01-P