[Federal Register Volume 74, Number 47 (Thursday, March 12, 2009)]
[Rules and Regulations]
[Pages 10686-10688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5361]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

47 CFR Part 301

[Docket Number: 090212171-9172-01]
RIN 0660-AA19


Amendments to the Digital-to-Analog Converter Box Program to 
Implement the DTV Delay Act

AGENCY: National Telecommunications and Information Administration, 
U.S. Department of Commerce.

ACTION: Final rule.

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SUMMARY: On February 11, 2009, President Obama signed into law the DTV 
Delay Act, which extended the deadline for the digital conversion and 
the coupon application period for the Digital-to-Analog Converter Box 
Program (Coupon Program) by four months.\1\ The DTV Delay Act also 
authorized the National Telecommunications and Information 
Administration (NTIA) to issue replacement coupons to households whose 
coupons have otherwise expired unredeemed. These changes to the Coupon 
Program were conditioned upon enactment of new budget authority for the 
Coupon Program, which was recently provided by the American Recovery 
and Reinvestment Act of 2009.\2\
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    \1\ See DTV Delay Act, Pub. L. 111-4, 123 Stat. 112 (Feb. 11, 
2009).
    \2\ The American Recovery and Reinvestment Act, Pub. L. 111-5, 
123 Stat. 115 (Feb. 17, 2009).

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DATES: This final rule becomes effective March 12, 2009.

FOR FURTHER INFORMATION CONTACT: Milton Brown, NTIA (202) 482-1816 or 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The Digital Television Transition and Public Safety Act of 2005 
(the Act), among other things, directed the Federal Communications 
Commission (FCC) to require full-power television stations to cease 
analog broadcasting and to broadcast solely digital transmissions after 
February 17, 2009.\3\ Recognizing that consumers may wish to continue 
receiving broadcast programming over the air using analog-only 
televisions not connected to cable or satellite service, section 3005 
of the Act also authorized NTIA to establish and implement the Coupon 
Program.\4\ Accordingly, NTIA issued final regulations to implement the 
Coupon Program on March 15, 2007.\5\
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    \3\ See Section 3002 of Title III of the Deficit Reduction Act 
of 2005, Pub. L. No. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006) (the 
Act). Section 3002(a) of the Act previously amended Section 
309(j)(14)(A) of the Communications Act of 1934 so that analog full-
power television licenses will terminate on February 17, 2009. 
Section 3002(b) of the Act directed the FCC to terminate analog 
television licenses for full-power stations by February 18, 2009.
    \4\ Digital Television Transition and Public Safety Act Sec.  
3005, 120 Stat. at 23, 24.
    \5\ 47 C.F.R. Part 301. The regulations were subsequently 
amended to waive the ``eligible household'' application requirement 
for individuals living in nursing homes, intermediate care 
facilities and assisted living facilities, and to permit households 
that utilize post office boxes for residential mail delivery to 
apply for and receive coupons. 73 Fed. Reg. 54,325 (Sep. 19, 2008).
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    On February 11, 2009, President Obama signed into law the DTV Delay 
Act. The DTV Delay Act, among other things, extended the date by which 
the Federal Communications Commission must terminate all licenses for 
full-power television stations in the analog television services from 
February 18, 2009 until June 13, 2009.\6\ Specific to the Coupon 
Program, subsection 3(a) of the DTV Delay Act amended paragraph (1) of 
subsection 3005(c) of the Act to

[[Page 10687]]

extend the date by which households may apply for coupons for digital-
to-analog converter boxes from March 31, 2009 until July 31, 2009.
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    \6\ See DTV Delay Act at Subsection 2(a).
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    Subsection 3(b) of the DTV Delay Act amended paragraph (1) of 
subsection 3005(c) of the Act to add a new subparagraph (D) that 
authorizes the NTIA Assistant Secretary to issue one replacement coupon 
per requesting household for each coupon previously issued to such 
household that expired without being redeemed. Subsection 3(c) of the 
DTV Delay Act amended paragraph (1) of subsection 3005(c) of the Act to 
clarify that the Assistant Secretary's obligation to ensure the two-
coupon per household maximum was based on the number of coupons the 
household redeems rather than the number it receives via the United 
States Postal Service.
    Subsection 3(d) of the bill provided that the amendments made by 
Section 3 of the DTV Delay Act would not take effect until additional 
budget authority for the Coupon Program was subsequently enacted. On 
February 17, 2009, President Obama signed into law the American 
Recovery and Reinvestment Act of 2009, which provided that subsequent 
budget authority.\7\
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    \7\ The American Recovery and Reinvestment Act of 2009 
(providing in pertinent part, ``For an amount for `Digital-to-Analog 
Converter Box Program', $650,000,000, for additional coupons and 
related activities under the program implemented under section 3005 
of the Digital Television Transition and Public Safety Act of 2005 . 
. .'').
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II. Discussion

    Because of the amendments to the Coupon Program necessitated by the 
DTV Delay Act, NTIA hereby revises and amends its regulations. 
Accordingly, 47 C.F.R. Part 301 is amended as discussed below.

Application Deadline

    The DTV Delay Act revised Section 3005(c)(1)(A) of the Digital 
Television Transition and Public Safety Act of 2005 to change the last 
day that households can request coupons for digital-to-analog converter 
boxes from March 31, 2009, to July 31, 2009. Accordingly, NTIA amends 
its regulations at 47 C.F.R. Sec.  301.3(c), to reflect this change and 
to permit households to apply for coupons until July 31, 2009. The 
change in date will not ensure that funds will be available to fill all 
coupon requests at that time.

Reissuance of Coupons

    The DTV Delay Act authorized NTIA to issue replacement coupons to 
households if those households were previously issued coupons that had 
expired without being redeemed.\8\ Because the issue of replacement 
coupons has not previously been addressed in the Coupon Program 
regulations, NTIA now adds a new section to provide that a household 
may request one replacement coupon for each coupon that was issued to 
such household and that expired without being redeemed. NTIA also 
requires that a request for a replacement coupon otherwise be made in 
accordance with the Coupon Program regulations. Thus, the application 
process for replacement coupons remains the same as that for households 
requesting coupons for the first time.
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    \8\ The specific language of Section 3(b) of the DTV Delay Act 
provided that ``[t]he Assistant Secretary may issue to a household, 
upon request by the household, one replacement coupon for each 
coupon that was issued to such household and that expired without 
being redeemed.''
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United States Postal Service

    The DTV Delay Act also amended Section 3005(c)(1)(A) of the Digital 
Television Transition and Public Safety Act of 2005 to strike the words 
``receives, via the United States Postal Service,'' and inserts the 
word ``redeems'' to conform to the new authority for reissuance. 
Accordingly, NTIA amends 47 C.F.R. Sec.  301.4(d) to add at the end 
thereof ``or by other means as determined by the Agency.'' This change 
has the effect of providing NTIA with additional flexibility with 
respect to the manner with which it distributes coupons to U.S. 
households. Moreover, because the regulations linked the coupon 
issuance date to the date that the coupon was placed with the United 
States Postal Service, NTIA must revise its regulations to reflect the 
change made by the DTV Delay Act. Accordingly, 47 C.F.R. Sec.  301.4(e) 
is amended to add at the end of the second sentence of that provision 
``or the date upon which the Agency otherwise forwards the coupon to 
the requesting household.'' The effect of this change is that the 
coupon issuance date, for purpose of the 90-day expiration, commences 
on the date that NTIA places the coupon with the United States Postal 
service or otherwise forwards it to a requesting household.

Prioritizing Coupon Distribution

    NTIA has found it necessary in the past to place applicants from 
eligible households on a waiting list until funds from expired coupons 
become available to distribute more coupons.\9\ The additional funding 
provided by the American Recovery and Reinvestment Act of 2009 will 
enable NTIA to liquidate the current waiting list of approximately 4.2 
million coupons in two to three weeks after the Coupon Program is able 
to access such funds. However, if the Coupon Program experiences a high 
demand, it may be necessary for NTIA to once again place applicants on 
a waiting list. Thus, NTIA reserves the right to prioritize the 
distribution of coupons to over-the-air only households in the event 
that a waiting list becomes necessary, or if any other circumstances 
arise in which NTIA deems such prioritization appropriate. This 
decision is based on NTIA's goal of maximizing the benefits of the 
Coupon Program in the transition to digital television broadcasts.\10\ 
Accordingly, NTIA adds a new section to its regulations that permits 
NTIA to prioritize the distribution of coupons to over-the-air only 
households if NTIA deems it appropriate.
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    \9\ See Press Release, Commerce's NTIA Announces New Coupon 
Applicants Will be Placed on Waiting List Due to High Demand for TV 
Converter Box Coupons (Jan. 5, 2009) available at http://www.ntia.doc.gov/press/2009/DTV_WaitList_090105.pdf.
    \10\ See Rules to Implement and Administer a Coupon Program for 
Digital to Analog Converter Boxes, 72 Fed. Reg. 12,097, 12,098 
(March 15, 2007).
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Administrative Procedure Act

    As permitted by the good cause exception to the Administrative 
Procedures Act (APA), 5 U.S.C. Sec.  553(b)(B), NTIA finds that it is 
impracticable and contrary to the public interest to provide notice and 
a public procedure on this final rule. Under the APA, notice and 
comment is impracticable when the agency cannot both follow section 553 
and execute its statutory duties. The limited duration of the statutory 
extension of the application period provided in the DTV Delay Act 
requires swift action on the part of NTIA to amend its rules and 
implement program changes prior to the new application period's 
expiration.\11\

[[Page 10688]]

To the extent that NTIA provided a public procedure on this final rule, 
it would not be able to execute the statutory duties required by the 
DTV Delay Act. The current regulations prohibit households from 
applying for coupons after March 31, 2009. A normal rulemaking process 
involving notice and comment to extend the application deadline to July 
31, 2009, in conformance with the DTV Delay Act, could extend well 
beyond March 31, 2009. Likewise, NTIA must amend its existing 
regulations to issue replacement coupons to households that previously 
received coupons that expired without being redeemed. To ensure that 
these households receive coupons prior to the end of analog 
transmission, regulations must be promulgated expeditiously.
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    \11\ See also DTV Delay Act, Sec.  4(c). The DTV Delay Act 
required the Federal Communications Commission and the NTIA to 
expeditiously implement the provisions and amendments made by the 
DTV Delay Act. Specifically, it provided that such actions should be 
taken within 30 days of enactment of the DTV Delay Act. Although the 
DTV Delay Act also provided that the amendments to the authority 
related to the Coupon Program ``shall not take effect until the 
enactment of additional budget authority after the enactment of this 
Act,'' it is nevertheless clear that Congress' intent was rapid 
implementation of the changes to the Coupon Program upon subsequent 
enactment of the new budget authority for the program. See DTV Delay 
Act Sec.  3(d). Courts have found that where Congress has given an 
agency an extremely short period of time to promulgate a rule, a 
determination that waiving notice and comment as impracticable is 
reasonable and not arbitrary. Philadelphia Citizens in Action v. 
Schweiker, 669 F.2d 877 (3rd Cir. 1982).
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    Moreover, for the reasons above, NTIA finds good cause to waive the 
30-day delay in effectiveness required by 5 U.S.C. Sec.  553(d) because 
it is impracticable and contrary to the public interest. The limited 
duration of the statutory extension of the application period provided 
in the DTV Delay Act requires swift action on the part of NTIA to amend 
its rules and implement program changes prior to the new application 
period's expiration. To the extent that NTIA provided a 30-day delay in 
effectiveness for this final rule, it would not be able to execute the 
statutory duties required by the DTV Delay Act. To ensure that these 
households receive coupons prior to the end of analog transmission, 
NTIA waives the 30-day delay in effectiveness.

Executive Order 12866

    This regulation has been determined to be economically significant 
for purposes of Executive Order 12866; and therefore has been reviewed 
by the Office of Management and Budget (OMB). In accordance with 
Executive Order 12866, an Economic Analysis was completed, outlining 
the costs and benefits of implementing this rule change. The complete 
analysis is available from NTIA upon request.

Congressional Review Act

    It has been determined that this final rule is major under 5 U.S.C. 
Sec.  801 et seq. NTIA finds good cause under 5 U.S.C. Sec.  808(2) 
that prior notice and public comment are impracticable and contrary to 
the public interest. To the extent that NTIA provided a 60-day delay in 
effectiveness pursuant to the Congressional Review Act, it would not be 
able to execute the statutory duties required by the DTV Delay Act in a 
timely manner prior to the expiration of its extended authority. 
Accordingly, this final rule shall take effect upon publication in the 
Federal Register.

Regulatory Flexibility Act

    Because NTIA finds good cause under 5 U.S.C. 553 Sec.  (b)(B) to 
waive prior notice and opportunity, the Regulatory Flexibility Act does 
not apply and therefore does not necessitate the preparation of a 
regulatory flexibility analysis.

Executive Order 13132

    This rule does not contain policies having federalism implications 
requiring preparation of a Federalism Summary Impact.

Paperwork Reduction Act

    This document does not contain new collection-of-information 
requirements subject to the Paperwork Reduction Act (PRA). Households 
are subject to the same information collection requirements that were 
approved by OMB Control Numbers 0660-0024, 0660-0026, and 0660-0027.

List of Subjects in 47 CFR Part 301

    Antennas, Broadcasting, Cable television, Communications, 
Communications equipment, Electronic products, Telecommunications, 
Television.


0
For the reasons stated in the preamble, the National Telecommunications 
and Information Administration amends 47 CFR Part 301 as follows:

PART 301--DIGITAL-TO-ANALOG CONVERTER BOX COUPON PROGRAM

0
1. The authority citation is revised to read as follows:

    Authority: Title III of the Deficit Reduction Act of 2005, Pub. 
L. No. 109-171, 120 Stat. 4, 21 (Feb. 8, 2005) (47 U.S.C. Sec.  309 
note); DTV Delay Act, Pub. L. No. 111-4, 123 Stat. 112 (Feb. 11, 
2009); American Recovery and Reinvestment Act of 2009, Pub. L. No. 
111-5, 123 Stat. 115 (Feb. 17, 2009).
0
2. Amend Sec.  301.3 by revising paragraphs (c) and (e), and adding 
paragraphs (f) and (g), to read as follows:


Sec.  301.3  Household eligibility and application process.

* * * * *
    (c) Requests for coupons must be submitted to the Agency no later 
than July 31, 2009.
* * * * *
    (e) A household may request one replacement coupon for each coupon 
that was issued to such household and that expired without being 
redeemed. A request for a replacement coupon must otherwise be made in 
accordance with this section.
    (f) If the Agency deems it appropriate, NTIA may prioritize the 
distribution of coupons to households that have certified that they do 
not receive cable, satellite or other pay television service.
    (g) If an applicant does not meet the above eligibility 
requirements, the request will be denied.
0
3. Amend Sec.  301.4 by revising paragraphs (d) and (e) to read as 
follows:


Sec.  301.4  Coupons.

* * * * *
    (d) Coupons will be sent to Eligible Households via the United 
States Postal Service or by other means as determined by the Agency.
    (e) Coupons expire 90 days after the issuance date. Issuance date 
means the date upon which the coupon is placed with the United States 
Postal Service or the date upon which the Agency otherwise forwards the 
coupon to the requesting household.
* * * * *

    Dated: March 6, 2009.
Anna M. Gomez,
Acting Assistant Secretary for Communications and Information.
[FR Doc. E9-5361 Filed 3-11-09; 8:45 am]
BILLING CODE 3510-60-S