[Federal Register Volume 76, Number 144 (Wednesday, July 27, 2011)]
[Rules and Regulations]
[Pages 44821-44829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-18742]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 73 and 74

[MB Docket No. 03-185; FCC 11-110]


Digital Low Power Television, Television Translator, and 
Television Booster Stations and To Amend Rules for Digital Class A 
Television Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In the Second Report and Order, the Commission takes steps to 
resolve the remaining issues in this proceeding in order to allow a 
timely and successful completion of the low power television digital 
transition. Although Congress established a hard deadline of June 12, 
2009 for full power stations to cease analog operations and begin 
operating only in digital, the statutory deadline did not apply to low 
power television stations. Therefore, while all full power television 
stations have ceased over-the-air analog broadcasting, many low power 
television stations are continuing to transmit analog signals.

DATES: Effective August 26, 2011, except for the amendment to 47 CFR 
73.624(g), which contains information collection requirements that have 
not been approved by the Office of Management and Budget (``OMB''). The 
Federal Communications Commission will publish a separate document in 
the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, [email protected] of the 
Media Bureau, Video Division, (202) 418-1600. For additional 
information concerning the information collection requirement contained 
in this Second Report and Order, contact the Office of Managing 
Director (``OMD''), Performance Evaluation & Records Management 
(``PERM''), Cathy Williams, [email protected], at 202-418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, FCC 11-110, adopted on July 15, 2011, and released on 
July 15, 2011. The full text of the Second Report and Order is 
available for inspection and copying during regular business hours in 
the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257, 
Portals II, Washington, DC 20554, and may also be purchased from the 
Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth 
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact 
BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer 
diskette, large print, audio record, and Braille). Persons with 
disabilities who need documents in these formats may contact the FCC by 
e-mail: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

Executive Summary

    In the Second Report and Order, the Commission takes steps to 
resolve the remaining issues in this proceeding in order to allow a 
timely and successful completion of the low power television digital 
transition. Specifically, in order to ensure a timely and successful 
completion to the low power television digital transition, the 
Commission takes the following steps: (1) Adopts a hard deadline of 
September 1, 2015 for the termination of all analog low power 
television facilities; (2) establishes rules permitting those stations 
needing additional time to complete their digital transition to obtain 
a ``last minute'' extension; (3) requires existing analog and digital 
low power television stations in the 700 MHz band (channels 52-69) to 
submit displacement applications by September 1, 2011, and to cease 
operations in the 700 MHz band by December 31, 2011; (4) increases the 
power limits for VHF low power television channels to 3 kilowatts (the 
current analog power limit); (5) delegates to the Media Bureau the

[[Page 44822]]

authority to establish timeframes and procedures for stations that have 
not already converted to notify the Commission of their conversion 
plans; (6) widens the class of low power television broadcasters 
subject to the Commission's ancillary and supplementary fee rules; (7) 
modifies the Commission's minor change rule so that it covers a 
proposed change in a low power television station's transmitter site of 
up to 30 miles (48 kilometers) from the reference coordinates of the 
station's transmitting antenna; (8) revises the vertical antenna 
patterns used in the prediction methodology for the low power 
television services; and (9) allow low power television stations to use 
the emission mask used by full power television stations.

Paperwork Reduction Act of 1995 Analysis

    The Second Report and Order adopts revised information collection 
requirements subject to the Paperwork Reduction Act of 1995 (``PRA''), 
Public Law 104-13 (44 U.S.C. 3501 through 3520) pertaining to DTV 
transition related issues. Specifically, the Second Report and Order 
will: (1) Require all low power television stations with facilities on 
channels 52-59 to submit a digital displacement application proposing 
an in-core channel (channels 2-51 excluding channel 37) not later than 
September 1, 2011; \1\ (2) require all low power television stations to 
provide notice of their upcoming digital transition to their viewers; 
\2\ (3) require low power television stations that have not taken steps 
to convert to digital by a date certain to submit a notification of 
their conversion plan; \3\ (4) require Class A TV station licensees to 
file a license application (FCC Form 302-CA) for either the ``flash 
cut'' channel on which they are now operating in analog or the digital 
companion channel they choose to retain for post-transition operations 
and certify therein that their proposed facilities meet all Class A 
interference protection requirements; \4\ (5) require permittees of low 
power television stations operating pursuant to a digital STA to file 
the annual ancillary and supplementary services report; \5\ and (6) 
permit applicants and permittees in the low power television service to 
submit actual vertical pattern relative field values as part of their 
applications (FCC Form 346 and 301-CA) on a voluntary basis.\6\
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    \1\ The Commission received preapproval from OMB for this 
requirement. See OMB Control No. 3060-0016.
    \2\ The Commission received preapproval from OMB for this 
requirement. See OMB Control No. 3060-1086.
    \3\ The Commission will seek approval for OMB for this 
requirement and will publish a separate document in the Federal 
Register announcing the effective date.
    \4\ The Commission has approval from OMB for FCC Form 302-CA. 
See OMB Control No. 3060-0928. The Commission also received 
preapproval for this requirement as it pertains to 47 CFR 
73.3572(h). See OMB Control Number 3060-0932.
    \5\ The Commission will seek OMB approval for this requirement 
and will publish a separate document in the Federal Register 
announcing the effective date.
    \6\ The Commission received preapproval from OMB for this 
collection. See OMB Control Numbers 3060-0016 and 3060-0932.
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    In addition, the Commission notes that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.''

Synopsis

    The Second Report and Order adopts a hard deadline of September 1, 
2015 for the termination of all analog low power television facilities. 
In adopting this deadline, the Commission took into account all of the 
factors outlined in the Further Notice of Proposed Rulemaking 
(FNPRM),\7\ as well as the wide variety of comments provided in this 
proceeding. In summary, the principal obstacle to establishing a hard 
deadline for the low power television digital transition--the need to 
wait for passage of the full power transition deadline in order to 
increase the number of viewers ready to receive a digital signal--has 
now been eliminated. Completion of the full power television digital 
transition on June 12, 2009,\8\ created an incentive for television 
viewers to transition to digital service (either through a digital 
receiver or analog converter) in order to be able to continue viewing 
full power television stations over the air. Furthermore, adoption of 
the September 1, 2015 date allows low power stations to avoid having to 
transition to a digital channel and then transition a second time as a 
result of the spectrum innovation proposals set forth the National 
Broadband Plan.\9\ The September 15, 2015 deadline will also be farther 
removed from the prolonged economic downturn, which began in late 2007, 
and will provide more time for operators to secure the necessary 
funding. Additionally, a deadline four years in the future will give 
these low power television stations time to determine the best location 
for their digital operation, prepare and file an application, obtain a 
grant of their construction permit, order equipment, hire an 
installation crew, complete installation, conduct testing, and carry 
out other necessary steps toward the transition. Finally, adopting a 
transition date of September 1, 2015 will allow low power television 
stations to have a better understanding of the overall spectrum 
landscape when determining their final transition plans, while also 
ensuring a date by which analog spectrum must be put to a more 
efficient digital use.
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    \7\ Amendment of Parts 73 and 74 of the Commission's Rules to 
Establish Rules for Digital Low Power Television, Television 
Translator, and Television Booster Stations and to Amend Rules for 
Digital Class A Television Stations, FNPRM, 25 FCC Rcd 13833, 13837 
(2010) (``FNPRM'').
    \8\ See DTV Delay Act. Pub. L. 111-4, 123 Stat. 112 (2009) 
(``DTV Delay Act''); Digital Television and Public Safety Act of 
2005 (``DTV Act''), which is Title III of the Deficit Reduction Act 
of 2005, Pub. L. 109-171, 120 Stat. 4 (2006) (codified at 47 U.S.C. 
309(j)(14) and 337(e)). DTV Act Section 3002(a) amended Section 
309(j)(14) of the Communications Act to establish February 17, 2009 
as the original hard deadline for the end of analog transmissions by 
full power stations. 47 U.S.C. 309(j)(14)(A). The DTV Delay Act 
extended the DTV transition date from February 17, 2009 to June 12, 
2009.
    \9\ See Connecting America: The National Broadband Plan at 94 
(March 2010); available at http://broadband.gov/plan/.
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    The Second Report and Order also extends all outstanding low power 
television digital construction permits to September 1, 2015, while 
dismissing as moot all pending extension applications. Those stations 
that diligently pursue completion of their digital facilities, but 
nevertheless face unexpected delays in the months leading up to the 
September 1, 2015 deadline, will be permitted to submit a ``last 
minute'' extension application no later than May 1, 2015 pursuant to 47 
CFR 74.788(c) and receive one last six-month extension of their digital 
construction permit to March 1, 2016. After May 1, 2015, stations will 
no longer be permitted to seek extensions of their digital construction 
permits pursuant to 47 CFR 74.788, but will be subject to the stricter 
tolling provisions in 47 CFR 73.3598. Although the extension provisions 
of 47 CFR 74.788 provide greater flexibility, the public interest in 
bringing the low power television transition to a timely conclusion 
outweighs the need to accommodate permittees who are unable to secure 
extensions under the tolling provisions in 47 CFR 73.3598.
    The Second Report and Order provides that the Commission will 
endeavor to continue its efforts to educate consumers and notify the 
public of the September 1, 2015 low power television digital 
transition. However, given the amount of lead time,

[[Page 44823]]

the Commission concludes that it is not necessary to specify the form 
and extent of our consumer education at this time. However, the 
Commission shall continue its education and efforts guided by our 
experience from the full power DTV transition, completed on June 12, 
2009, as a guide as to how best to educate consumers about the 
forthcoming low power change to digital.
    The Second Report and Order requires low power stations on the 
``out-of-core'' channels (channels 52-69) to transition to an in-core 
digital channel at an earlier date--December 31, 2011. The Second 
Report and Order finds that low power television stations have had 
sufficient notice that they would be required to clear the 700 MHz band 
and that the continued successful development of new commercial 
wireless and public safety facilities in the 700 MHz band will be 
greatly facilitated by requiring that all remaining analog and digital 
low power television stations be cleared from these channels by this 
date.
    The Second Report and Order also requires all low power stations 
with facilities on channels 52-69 to submit a digital displacement 
application proposing an in-core channel (channels 2-51 excluding 
channel 37) not later than September 1, 2011. The Commission believes 
that September 1, 2011 provides time for those remaining low power 
television stations to identify a feasible in-core channel for 
permanent use, and to prepare and file a displacement application, 
considering the prior notice they have received. Those remaining low 
power television stations that are unable to identify a workable in-
core channel and submit a digital displacement application by September 
1, 2011 will be required to cease operations altogether by December 31, 
2011. In addition, any outstanding construction permit (analog or 
digital) for an out-of-core channel will be rescinded on December 31, 
2011, and any pending application (analog or digital) for an out-of-
core channel will be dismissed on December 31, 2011 if the permittee 
has not submitted a digital displacement application by the September 
1, 2011 deadline.
    In order to facilitate clearance of the 700 MHz band, the Second 
Report and Order extends the notification and termination provisions 
contained in 47 CFR 74.703(g) to analog LPTV and TV translator 
facilities in the 700 MHz band. These provisions provide procedures for 
a primary wireless licensee in the 700 MHz band to notify affected 
digital LPTV and TV translator stations of its intent to initiate or 
change operations and for the digital LPTV or TV translator station to 
vacate the band. Upon receipt of such notice, the digital low power 
television station must cease operation of any interference-causing 
facility within 120 days, unless it obtains the agreement of the 
primary licensee to continue operations. This adoption will enable 700 
MHz licensees to obtain rapid access to their licensed spectrum.
    The Second Report and Order modifies the Commission's rules to 
permit low power stations operating on VHF channels 2-13 to operate 
with up to 3 kilowatts of power, which is the maximum power such 
stations are permitted to operate within analog. Currently the power 
limit for low power VHF channels is 300 watts, whereas for UHF channels 
it is 15 kilowatts.\10\ As a result of the full power digital 
television transition, some full power stations on VHF channels have 
experienced reception problems and such problems have not been 
alleviated even by allowing these stations to operate with the maximum 
power permitted under the full power television rules. We expect that 
the same or even worse problems may arise when low power television 
stations operating on VHF channels convert to digital given the fact 
that low power stations operate with considerably less power than full 
power stations. At 3 kilowatts of power, low power television stations 
on UHF channels should be able to continue to provide coverage to their 
community of license without problems.
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    \10\ 47 CFR 74.735.
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    The Second Report and Order dismisses all applications for new 
analog low power television facilities that remain pending after the 
May 24, 2010 deadline to amend to specify digital facilities. The staff 
notified all pending applicants for new analog low power facilities 
that they must amend their pending applications to specify digital 
operations by May 24, 2010, and that the staff would not process those 
analog applications that were not amended by the deadline.
    The Second Report and Order adopts procedures for the surrender of 
channels. Stations that have not already taken steps to convert will be 
required to notify the Commission not later than 30 days before the 
September 1, 2015 transition date of their decision to either: (1) 
``Flash cut'' their existing analog facilities to digital (at which 
time their analog license will be replaced by a new digital license) or 
(2) surrender their analog station license and continue operating their 
digital companion channel. Stations that have already completed their 
digital conversion are not required to submit a notification. The Media 
Bureau is delegated authority to determine the timetable and procedures 
for these notifications.
    The Second Report and Order adopts a policy whereby, if an entity 
holds a construction permit for an unbuilt analog and unbuilt digital 
companion channel, and the analog permit expires and is forfeited, the 
digital construction permit also shall be forfeited notwithstanding the 
later expiration date on the digital construction permit. The 
Commission believes that adoption of this policy is necessary to ensure 
that low power television stations complete construction of their 
proposed facilities in a timely fashion and to ensure the efficient use 
of valuable television spectrum. Otherwise, an entity that obtained an 
analog construction permit with a three-year construction period could 
effectively extend the duration of that permit by obtaining a 
corresponding digital construction permit with a deadline beyond the 
one on its underlying analog permit. Furthermore, the Commission 
continues to believe that this approach is consistent with our 
established policy that analog and digital authorizations are part of 
single, unified authorization.
    The Second Report and Order requires all stations in the low power 
television services to notify their viewers of their transition to 
digital operations. LPTV stations with the technical capability to 
locally originate programming must provide on-air notification to their 
viewers at a time when the highest number of viewers is watching, while 
all others may choose another means of notification such as local 
publication in a newspaper. In all cases, the actual format and time-
frame of viewer notifications is left to the discretion of the 
stations.
    The Second Report and Order adopts procedures to enable Class A 
stations to choose to either ``flash cut'' to digital on their analog 
channel or to operate on their digital companion channel, while 
allowing Class A stations to preserve their primary, protected status 
for the channel they choose to retain for digital operations. The 
Commission concludes that it is in the public interest to provide Class 
A stations a method to select their digital channels because it will 
give them the opportunity to evaluate the market situation and make a 
determination as to which channel number, their analog channel or their 
digital companion channel, will provide the best, interference-free 
digital service to the public. Class A stations choosing to pursue a 
flash-cut conversion and Class A stations choosing to transfer

[[Page 44824]]

their primary status from their analog channel to their digital 
companion channel will be required to file FCC Form 302-CA (Application 
for Class A Television Broadcast Station Construction Permit or 
License) and certify that their digital companion channel facilities 
meet all Class A interference protection and eligibility requirements.
    The Second Report and Order expands the requirements of the 
Commission's ancillary and supplementary rules to low power television 
permittees operating pursuant to STA. To ensure compliance with the 
mandate of Section 336(e) of the Communications Act,\11\ that the 
public recover a portion of the value of the public spectrum resource 
made available for commercial use, as well as to avoid unjust 
enrichment of broadcasters that use that resource, we conclude that low 
power television permittees operating pursuant to an STA also should be 
subject to this rule. Therefore, low power television permittees 
operating pursuant to an STA will be required to file the annual 
Ancillary and Supplementary Services Report (FCC Form 317) beginning 
December 1, 2011, and will be required to pay a fee of five percent of 
the gross revenues of any ancillary and supplementary services they 
provide.
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    \11\ 47 U.S.C. 336(e).
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    The Second Report and Order expands the so-called ``30-mile'' rule 
to modification applications filed in the low power television 
services. This change means that any digital low power television 
modification application that proposes a change in transmitter site of 
greater than 30 miles (48 kilometers) from the reference coordinates of 
the existing station's community of license, as provided in 47 CFR 
76.53, will be considered a ``major change'' proposal. Outside of the 
digital low power television displacement application context, low 
power television stations can currently file any modification 
application (both analog and digital) as a ``minor change'' as long as 
there is contour overlap between the proposal and the station's 
existing facilities. There is no limitation as to how far a station may 
relocate its transmitter site, as long as some contour overlap is 
demonstrated. Therefore, a station is able to frustrate the intent of 
the minor change rule by proposing a modified facility that is a 
substantial distance from the station's existing location while showing 
only a very slight amount of contour overlap. Viewers of such a 
station, who have come to rely on its service, may be left behind. 
Furthermore, because low power television minor change applications are 
not subject to a filing fee, stations are able to avoid paying an 
application filing fee when they seek consent to make these changes. 
Therefore, the Commission believes that expansion of the 30-mile rule 
to all modification applications (not just displacement applications) 
is necessary to enforce the original intent of the minor change rule.
    The Second Report and Order revises the Commission's rules to allow 
the acceptance of actual vertical pattern relative field values from 
applicants and permittees in the low power television service on a 
voluntary basis. The Commission concludes that by incorporating the 
actual vertical antenna patterns into its interference analysis, the 
Commission will achieve a more realistic determination of the service 
areas of these stations and their potential for interfering with other 
stations, as well as more accurate determinations of application mutual 
exclusivity. For applicants and permittees that choose not to submit 
their actual vertical patterns, the Commission will instead use the 
assumed vertical patterns set forth in 47 CFR 74.793(d).
    Finally, the Second Report and Order adopts rules allowing use of 
full-power DTV emission masks by low power television stations in order 
to provide more flexibility for low power television stations to secure 
channels. The Commission concludes that its current approach, using the 
two different emission masks that are part of the low power television 
rules, needlessly limits these stations from identifying a workable 
channel, and that use of the full power television DTV emission mask 
may be the preferable approach for some low power television stations.

Final Regulatory Flexibility Act Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(``RFA'') \12\ an Initial Regulatory Flexibility Analysis (``IRFA'') 
was included in the Further Notice of Proposed Rulemaking (FNPRM) in 
this proceeding.\13\ Written public comments were requested on the 
IRFA. This present Final Regulatory Flexibility Analysis.\14\
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    \12\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et. seq., has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 
847 (1996).
    \13\ See FNPRM, 25 FCC Rcd 13833.
    \14\ See 5 U.S.C. 604.
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A. Need for and Objectives of the Proposed Rules

    In the Second Report and Order, the Commission adopts rules to 
facilitate the low power television digital transition. The Commission 
takes the following steps as more fully described below: Adopted a 
September 1, 2015 analog shutoff date for low power television 
stations; adopted a December 31, 2011 transition date for low power 
television stations on TV channels 52-69 (the so-called ``out-of-core'' 
channels); adopted procedures for stations that have not already 
completed their transition to notify the Commission of their final 
digital channel; made low power television permittees subject to the 
Commission's ancillary and supplementary fee rules; modified the 
Commission's minor change rule so that it covers a proposed change in a 
low power television station's transmitter site of up to 30 miles (48 
kilometers) from the reference coordinates of the station's 
transmitting antenna; revised the vertical antenna patterns used in the 
prediction methodology for the low power television services; and 
allowed low power television stations to use the emission mask used by 
full power television stations.
    The Second Report and Order establishes an analog shutoff date of 
September 1, 2015 for low power TV, TV translator and Class A TV 
stations, giving these stations the flexibility of four additional 
years to convert to digital, i.e., analog station licenses would 
terminate at that time and analog construction permits would have to be 
modified for digital operations.
    The Second Report and Order established a date of December 31, 
2011, by which all existing analog and digital low power television 
stations on channels 52-69 (the so-called ``out of core'' channels) 
must terminate operations on their out-of-core channel and requires 
that those stations that have not already done so must file an 
application for an in-core channel 2-51 by September 1, 2011.
    The Second Report and Order increases to 3 kilowatts the maximum 
amount of power that low power stations operating on VHF channels may 
specify.
    The Second Report and Order delegates to the Media Bureau the 
authority to establish timeframes and procedures for stations that have 
not already transitioned to notify the Commission as to their final 
digital channel selection.
    The Second Report and Order mandates that stations with the

[[Page 44825]]

technical ability to locally-originate programming provide some type of 
notification to their viewers prior to ceasing analog operations and 
transitioning to digital while leaving the format and timeframe for 
such notification to the station's discretion.
    The Second Report and Order makes low power television station 
permittees subject to the Commission's ancillary and supplementary fee 
rules.
    The Second Report and Order changes the Commission's minor change 
rule to limit transmitter site changes in minor change applications to 
no more than 30 miles (48 kilometers) from the reference coordinates of 
the existing station's transmitting antenna.
    The Second Report and Order changes the Commission's rules to allow 
low power television stations to use the emission mask used by full 
power television stations.
    Finally, the Second Report and Order revises the vertical patterns 
used in the temporary interference prediction methodology for the low 
power television services that the FCC adopted in its 2004 Digital LPTV 
Order.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    There were no comments received in response to the IRFA.

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

    Television Broadcasting The SBA defines a television broadcasting 
station as a small business if such station has no more than $14.0 
million in annual receipts.\15\ Business concerns included in this 
industry are those ``primarily engaged in broadcasting images together 
with sound.'' \16\ The Commission has estimated the number of licensed 
commercial television stations to be 1,390.\17\ According to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) as of January 31, 2011, 1,006 (or about 78 percent) of 
an estimated 1,298 commercial television stations \18\ in the United 
States have revenues of $14 million or less and, thus, qualify as small 
entities under the SBA definition. The Commission has estimated the 
number of licensed noncommercial educational (NCE) television stations 
to be 391.\19\ We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \20\ must be included. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. The Commission 
does not compile and otherwise does not have access to information on 
the revenue of NCE stations that would permit it to determine how many 
such stations would qualify as small entities.
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    \15\ See 13 CFR 121.201, NAICS Code 515120 (2007).
    \16\ Id. This category description continues, ``These 
establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \17\ See News Release, ``Broadcast Station Totals as of December 
31, 2010,'' 2011 WL 484756 (F.C.C.) (dated Feb. 11, 2011) 
(``Broadcast Station Totals''); also available at http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf.
    \18\ We recognize that this total differs slightly from that 
contained in Broadcast Station Totals, supra, note 15; however, we 
are using BIA's estimate for purposes of this revenue comparison.
    \19\ See Broadcast Station Totals, supra, note 15.
    \20\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has to power to control both.'' 13 CFR 
121.103(a)(1).
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    In addition, an element of the definition of ``small business'' is 
that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also, as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    Class A TV, LPTV, and TV translator stations. The same SBA 
definition that applies to television broadcast licensees would apply 
to these stations. The SBA defines a television broadcast station as a 
small business if such station has no more than $14 million in annual 
receipts.\21\
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    \21\ See 13 CFR 121.201, NAICS Code 515120.
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    Currently, there are approximately 522 licensed Class A stations, 
2,191 licensed LPTV stations, 4,527 licensed TV translators, and 11 TV 
booster stations.\22\ Given the nature of these services, we will 
presume that all of these licensees qualify as small entities under the 
SBA definition. We note, however, that under the SBA's definition, 
revenue of affiliates that are not LPTV stations should be aggregated 
with the LPTV station revenues in determining whether a concern is 
small. Our estimate may thus overstate the number of small entities 
since the revenue figure on which it is based does not include or 
aggregate revenues from non-LPTV affiliated companies. We do not have 
data on revenues of TV translator or TV booster stations, but virtually 
all of these entities are also likely to have revenues of less than $14 
million and thus may be categorized as small, except to the extent that 
revenues of affiliated non-translator or booster entities should be 
considered.
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    \22\ See ``Broadcast Station Totals as of December 31, 2010,'' 
News Release, February 11, 2011.
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    In addition, an element of the definition of ``small business'' is 
that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.
    Radio and Television Broadcasting and Wireless Communications 
Equipment Manufacturing. The Census Bureau defines this category as 
follows: ``This industry comprises establishments primarily engaged in 
manufacturing radio and television broadcast and wireless 
communications equipment. Examples of products made by these 
establishments are: transmitting and receiving antennas, cable 
television equipment, GPS equipment, pagers, cellular phones, mobile 
communications equipment, and radio and television studio and

[[Page 44826]]

broadcasting equipment.'' \23\ The SBA has developed a small business 
size standard for Radio and Television Broadcasting and Wireless 
Communications Equipment Manufacturing, which is: All such firms having 
750 or fewer employees. According to Census Bureau data for 2007, there 
were a total of 939 establishments in this category that operated for 
part or all of the entire year. Of this total, 784 had less than 500 
employees and 155 had more than 100 employees.\24\ Thus, under this 
size standard, the majority of firms can be considered small.
---------------------------------------------------------------------------

    \23\ The NAICS Code for this service 334220. See 13 CFR 121/201. 
See also http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.
    \24\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.
---------------------------------------------------------------------------

    Audio and Video Equipment Manufacturing. The SBA has classified the 
manufacturing of audio and video equipment under in NAICS Codes 
classification scheme as an industry in which a manufacturer is small 
if it has less than 750 employees.\25\ Data contained in the 2007 U.S. 
Census indicate that 492 establishments operated in that industry for 
part or all of that year. In that year 374 establishments had between 1 
and 19 employees; 82 had between 20 and 99 employees; and 36 had more 
than 100 employees. Thus, under the applicable size standard, a 
majority of manufacturers of audio and visual equipment may be 
considered small.
---------------------------------------------------------------------------

    \25\ 13 CFR 121.201, NAICS Code 334310.
---------------------------------------------------------------------------

D. Description of Projected Reporting, Recordkeeping and other 
Compliance

Requirements
    The Second Report and Order adopts the following new reporting 
requirements: (1) To require, where technically feasible, low power 
television services to provide notice of their upcoming digital 
transition to their viewers; (2) require low power television stations 
that have not taken steps to convert to digital by a date certain to 
submit a notification of their conversion plan; and (3) require 
permittees of low power television stations operating pursuant to a 
digital STA to file the annual ancillary and supplementary services 
report. These new reporting requirements will not differently affect 
small entities.

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

    The RFA requires an agency to describe any significant alternatives 
that it has considered in reaching its proposed approach, which may 
include the following four alternatives (among others): (1) The 
establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.\26\
---------------------------------------------------------------------------

    \26\ 5 U.S.C. 603(c)(1) through (c)(4).
---------------------------------------------------------------------------

    The Commission's adoption of an analog shutoff date of September 1, 
2015 will minimize impact on small entities by allowing them four 
additional years from the full power television transition that 
occurred on June 12, 2009, to complete their transition to digital. 
Adoption of an earlier low power transition date was rejected as it was 
felt that many small entities would not be ready to transition any 
sooner and would be forced off the air.
    With respect to the adoption of extending all outstanding low power 
television station digital construction permits to September 1, 2015, 
this adoption will minimize the impact on small entities as it will 
provide them with additional time to complete construction of their 
digital facilities. Requiring that these outstanding construction 
permits expire pursuant to their original construction deadlines, prior 
to the September 1, 2015 low power digital transition deadline, was 
rejected as digital operations is not required until September 1, 2015. 
The Commission felt that many small entities may be forced to abandon 
digital construction and subsequently forced off the air should they 
unnecessarily be forced to complete construction prior to September 1, 
2015, pursuant to their original digital construction permits.
    The Commission's dismissal as moot of all pending low power 
television station digital construction permit extension applications 
will minimize the impact on small entitles as these stations will no 
longer have to use resources to pursue these applications. Small 
entities will still receive the benefit of an extension as all 
outstanding low power television station digital construction permits 
have been extended until September 1, 2015. The Commission rejected 
maintaining these extension applications as these applications are moot 
and would unnecessarily force small entities to expend resources to 
continue to pursue them.
    With regards to the adoption of the ``last minute'' extensions for 
low power stations who demonstrate that they meet the criteria pursuant 
to 47 CFR 74.788(c), this adoption will minimize the impact on 
qualified small entities as these small entities will be given one last 
six-month extension to complete construction of their digital 
facilities. The Commission rejected disallowing a ``last minute'' 
extension for qualified low power stations because without the ``last 
minute'' extension, small entities may be forced to abandon 
construction and to go off the air due to unexpected delays in the 
months leading up to the September 1, 2015 transition date.
    Concerning the Commission's adoption of the hard deadline of May 1, 
2015, after which low power stations must meet the stricter tolling 
criteria established in 47 CFR 73.3598 of the rules, to apply for a 
``last minute'' extension pursuant to the criteria set forth in Sec.  
74.788(c) of the rules,\27\ the Commission found that the burden on 
small entities is justified. The Commission determined that the burden 
of requiring small entities to meet the stricter tolling criteria 
established in 47 CFR 73.3598 after May 1, 2015 is outweighed by the 
public interest in bringing the low power digital transition to a 
successful and timely conclusion and by the ample time low power 
stations will have had to complete their transition to digital.
---------------------------------------------------------------------------

    \27\ 47 CFR 74.788(c).
---------------------------------------------------------------------------

    With respect to requiring stations on out-of-core channels to 
transition at an earlier date--on December 31, 2011, the Commission 
found that the burden on small entities of adopting this earlier 
deadline is more than outweighed by the need to clear out-of-core 
channels for new uses by commercial wireless (including mobile 
broadband) and public safety entities. The Commission determined that 
adoption of a later transition date for low power television stations 
on these channels would delay progress on clearing these channels.
    With regards to requiring all out-of-core low power television 
stations to file a displacement application for an in-core channel by 
September 1, 2011, the Commission found that this deadline is necessary 
to meet the December 31, 2011 out-of-core digital transition deadline. 
Furthermore, as with the December 31, 2011 transition deadline,

[[Page 44827]]

the burden on small entities to meet the September 1, 2011 out-of-core 
displacement application deadline is outweighed by the need to clear 
out-of-core channels for new uses by commercial wireless (including 
mobile broadband) and public safety entities. Additionally, the 
Commission determined that adoption of a later out-of-core displacement 
application deadline would delay progress on clearing these channels.
    The Commission adopted streamlined procedures for stations to 
notify the Commission as to whether they intend to convert to digital 
on their existing analog channel (a so-called ``flash cut'') or if they 
intend to continue to operate their second digital channel and 
terminate operations on their analog channel help to prevent a 
significant impact on small entities. As a result of the streamlined 
procedures, low power stations will not be burdened with having to 
complete and file a lengthy progress report, as was required of full 
power television stations, but rather will only have to file a simple 
informal notification to make their final digital choice known to the 
Commission.
    With respect to requiring all stations in the low power television 
service, which terminate their analog service after the effective date 
of the rule provisions in this proceeding, to notify their viewers of 
their transition to digital operations, the Commission determined that 
the burden on small entities is outweighed by the public's need to be 
informed of individual stations' digital transitions. The Commission, 
however, eased the impact on small entities by giving those low power 
stations that locally originate programming and would be required to 
notify their viewers with on-air announcements, the option to notify 
their viewers by some other reasonable means should compliance cause 
financial hardship.
    The Commission's adoption of streamlined procedures for Class A 
stations to choose to either ``flash cut'' to digital on their analog 
channel or to operate on their digital companion channel, while 
preserving their primary, protected status on the channel they chose to 
retain, will aid to prevent a significant impact on small entities. As 
a result of these streamlined procedures, Class A stations will not be 
burdened with filing a minor change application with the Commission to 
transfer their primary protected status from their analog channel to 
their desired digital channel.
    With respect to subjecting low power television station permittees 
to the Commission's ancillary and supplementary fee rules, the 
Commission found that the burden on small entities of having to comply 
with these rules is outweighed by the need to eliminate ambiguity in 
the rules and to provide efficient use and administration of spectrum.
    The Commission did not find that there would be a significant 
impact on small entities by its proposed change to its Commission's low 
power television minor change rule. The change would have little impact 
and any impact would affect all entities equally.
    The Commission did not find that there would a significant impact 
on small entities by its decision to permit stations to use the 
emission mask used by full power television stations. Use would be 
voluntary and any impact would affect all entities equally.
    The Commission's decision to revise the vertical patterns used in 
the temporary interference prediction methodology for the low power 
television services would not have a significant impact on small 
entities. Use of the actual vertical patterns of proposed low power 
television facilities will simplify the engineering filings on FCC Form 
346, making it easier for all applicants to complete the form, and thus 
saving applicants time and money. Any burden from this requirement 
would impact all entities equally.

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

    None.

G. Report to Congress

    The Commission will send a copy of the Second Report and Order, 
including the FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act.\28\ In addition, the Commission will send a 
copy the Second Report and Order, including FRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration. A copy of this 
Second Report and Order and FRFA (or summaries thereof) will be 
published in the Federal Register.\29\
---------------------------------------------------------------------------

    \28\ See 5 U.S.C. 801(a)(1)(A). The Congressional Review Act is 
contained in Title II, section 251, of the CWAAA, see Public Law 
104-121, Title II, section 251, 110 Stat. 868.
    \29\ See 5 U.S.C. 604(b).
---------------------------------------------------------------------------

List of Subjects

47 CFR Part 73

    Radio broadcast services.

47 CFR Part 74

    Auxiliary, Experimental radio, Special broadcast and other program 
distributional services.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 73 and 74 as follows:

PART 73--RADIO BROADCAST SERVICES

0
1. The authority citation for part 73 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 334 and 336.


0
2. Section 73.624 is amended by revising paragraph (g) introductory 
text to read as follows:


Sec.  73.624  Digital television broadcast stations.

* * * * *
    (g) Commercial and noncommercial DTV licensees and permittees, and 
low power television, TV translator and Class A television stations DTV 
licensees and permittees, must annually remit a fee of five percent of 
the gross revenues derived from all ancillary and supplementary 
services, as defined by paragraph (b) of this section, which are 
feeable, as defined in paragraphs (g)(2)(i) and through (ii) of this 
section.
* * * * *

0
3. Section 73.3572 is amended by adding paragraph (h) to read as 
follows:


Sec.  73.3572  Processing of TV broadcast, Class A TV broadcast, low 
power TV, TV translators, and TV booster applications.

* * * * *
    (h) Class A TV station licensees shall file a license application 
for either the flash cut channel or the digital companion channel they 
choose to retain for post-transition digital operations. Class A TV 
stations will retain primary, protected regulatory status on their 
desired post-transition digital channel. Class A TV applicants must 
certify that their proposed post-transition digital facilities meet all 
Class A TV interference protection requirements.

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

0
4. The authority citation for Part 74 is revised to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 309, 336 and 554.


0
5. Section 74.731 is amended by adding paragraph (l) to read as 
follows:


Sec.  74.731  Purpose and permissible service.

* * * * *

[[Page 44828]]

    (l) After 11:59 pm local time on September 1, 2015, low power 
television, TV translators and Class A television stations may no 
longer operate any facility in analog (NTSC) mode.


0
6. Section 74.735 is amended by revising paragraph (b)(1) to read as 
follows:


Sec.  74.735  Power limitations.

* * * * *
    (b) * * *
    (1) 3 kW for VHF channels 2-13; and
* * * * *

0
7. Section 74.786 is amended by adding paragraph (g) to read as 
follows:


Sec.  74.786  Digital channel assignments.

* * * * *
    (g) After 11:59 pm local time on December 31, 2011, low power 
television and TV translator stations may no longer operate any analog 
(NTSC) or digital facilities above Channel 51.


0
8. Section 74.787 is amended by revising paragraph (b)(1) and adding 
paragraph (c) to read as follows:


Sec.  74.787  Digital licensing.

* * * * *
    (b) * * *
    (1) Applications for major changes in digital low power television 
and television translator stations include:
    (i) Any change in the frequency (output channel) not related to 
displacement relief;
    (ii) Any change in transmitting antenna location where the 
protected contour resulting from the change does not overlap some 
portion of the protected contour of the authorized facilities of the 
existing station; or
    (iii) Any change in transmitting antenna location of greater than 
30 miles (48 kilometers) from the reference coordinates of the existing 
station's antenna location.
* * * * *
    (c) Not later than 11:59 pm local time on September 1, 2011, low 
power television or TV translator stations operating analog (NTSC) or 
digital facilities above Channel 51, that have not already done so, 
must file a digital displacement application for a channel below 
Channel 52 pursuant to the procedures in subsection (a)(4) of this 
rule. Low power television and TV translator stations operating analog 
(NTSC) or digital facilities above Channel 51 that have not submitted a 
digital displacement application by 11:59 pm local time on September 1, 
2011 will be required to cease operations altogether by December 31, 
2011. These stations' authorization for facilities above Channel 51 
shall be cancelled. Any digital displacement application submitted by a 
low power television or TV translator station operating analog (NTSC) 
or digital facilities above Channel 51 that is submitted after 11:59 pm 
local time on September 1, 2011 will be dismissed. In addition, any 
outstanding construction permit (analog or digital) for an channel 
above Channel 51 will be rescinded on December 31, 2011, and any 
pending application (analog or digital) for a channel above Channel 51 
will be dismissed on December 31, 2011, if the permittee has not 
submitted a digital displacement application by 11:59 pm local on 
September 1, 2011.


0
9. Section 74.788 is amended by revising paragraphs (c)(1) and (c)(3) 
and removing paragraph (c)(4); and adding paragraphs (d), (e) and (f) 
to read as follows:


Sec.  74.788  Digital construction period.

* * * * *
    (c) * * *
    (1) For the September 1, 2015 digital construction deadline, 
authority is delegated to the Chief, Media Bureau to grant an extension 
of time of up to six months beyond September 1, 2015 upon demonstration 
by the digital licensee or permittee that failure to meet the 
construction deadline is due to circumstances that are either 
unforeseeable or beyond the licensee's control where the licensee has 
take all reasonable steps to resolve the problem expeditiously.
* * * * *
    (3) Applications for extension of time shall be filed not later 
than May 1, 2015, absent a showing of sufficient reasons for late 
filing.
    (d) For construction deadlines occurring after September 1, 2015, 
the tolling provisions of Sec.  73.3598 of this chapter shall apply.
    (e) A low power television, TV translator or Class A television 
station that holds a construction permit for an unbuilt analog and 
corresponding unbuilt digital station and fails to complete 
construction of the analog station by the expiration date on the analog 
construction permit shall forfeit both the analog and digital 
construction permits notwithstanding a later expiration date on the 
digital construction permit.
    (f) A low power television, TV translator or Class A television 
station that holds a construction permit for an unbuilt analog and 
corresponding unbuilt digital station and completes construction of the 
digital station by the expiration date on the analog construction 
permit, begins operating and files a license application for the 
digital station may forego construction of the unbuilt analog station.


0
10. Section 74.793 is amended by revising paragraphs (c) and (d) to 
read as follows:


Sec.  74.793  Digital low power TV and TV translator station protection 
of broadcast stations.

* * * * *
    (c) The following D/U signal strength ratio (db) shall apply to the 
protection of stations on the first adjacent channel. The D/U ratios 
for ``Digital TV-into-analog TV'' shall apply to the protection of 
Class A TV, LPTV and TV translator stations. The D/U ratios for 
``Digital TV-into-digital TV'' shall apply to the protection of DTV, 
digital Class A TV, digital LPTV and digital TV translator stations. 
The D/U ratios correspond to the digital LPTV or TV translator 
station's specified out-of-channel emission mask.

----------------------------------------------------------------------------------------------------------------
                                                    Stringent
                                      Simple mask      mask                     Full service mask
----------------------------------------------------------------------------------------------------------------
Digital TV-into-analog TV...........           10            0  Lower (-14)/Upper (-17)
Digital TV-into-digital TV..........           -7          -12  Lower (-28)/Upper (-26)
----------------------------------------------------------------------------------------------------------------

     (d) For analysis of predicted interference from digital low power 
TV and TV translator stations, the relative field strength values of 
the antenna vertical radiation pattern if provided by the applicant 
will be used instead of the doubled values in Table 8 in OET Bulletin 
69 up to a value of 1.0.
* * * * *

0
11. Section 74.794 is amended by revising paragraph (a)(1) and by 
adding paragraph (a)(2)(iii) to read as follows:

[[Page 44829]]

Sec.  74.794  Digital emissions.

    (a) (1) An applicant for a digital LPTV or TV translator station 
construction permit shall specify that the station will be constructed 
to confine out-of-channel emissions within one of the following 
emission masks: Simple, stringent or full service.
    (2) * * *
    (iii) Full service mask: (A) The power level of emissions on 
frequencies outside the authorized channel of operation must be 
attenuated no less than the following amounts below the average 
transmitted power within the authorized channel. In the first 500 kHz 
from the channel edge the emissions must be attenuated no less than 47 
dB. More than 6 MHz from the channel edge, emissions must be attenuated 
no less than 110 dB. At any frequency between 0.5 and 6 MHz from the 
channel edge, emissions must be attenuated no less than the value 
determined by the following formula:
    Attenuation in dB = -11.5([Delta]f + 3.6);

Where:

[Delta] f = frequency difference in MHz from the edge of the 
channel.

    (B) This attenuation is based on a measurement bandwidth of 500 
kHz. Other measurement bandwidths may be used as long as appropriate 
correction factors are applied. Measurements need not be made any 
closer to the band edge than one half of the resolution bandwidth of 
the measuring instrument. Emissions include sidebands, spurious 
emissions and radio frequency harmonics. Attenuation is to be measured 
at the output terminals of the transmitter (including any filters that 
may be employed). In the event of interference caused to any service, 
greater attenuation may be required.
* * * * *

0
12. Section 74.798 is added to subpart G to read as follows:


Sec.  74.798  Digital television transition notices by broadcasters.

    (a) Each low power television, TV translator and Class A television 
station licensee or permittee must air an educational campaign about 
the transition from analog broadcasting to digital television (DTV).
    (b) Stations that have already terminated analog service and begun 
operating in digital prior to effective date of this rule shall not be 
subject to this requirement.
    (c) Stations with the technical ability to locally-originate 
programming must air viewer notifications at a time when the highest 
number of viewers is watching. Stations have the discretion as to the 
form of these notifications.
    (d) Stations that lack the technical ability to locally-originate 
programming, or find that airing of viewer notifications would pose 
some sort of a hardship, may notify their viewers by some other 
reasonable means, e.g. publication of a notification in a local 
newspaper. Stations have discretion as to the format and time-frame of 
such local notification.

[FR Doc. 2011-18742 Filed 7-26-11; 8:45 am]
BILLING CODE 6712-01-P