**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | MB Docket No. 03-15          |
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| Second Periodic Review of the    | ) | RM 9832                      |
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ORDER

**Adopted: October 31, 2003** **Released: October 31, 2003**

By the Chief, Media Bureau:

1.  The Media Bureau has received three requests related to the digital
    television ("DTV") simulcast requirements in Section 73.624(f) of
    our rules.[^1] South Texas Public Broadcasting System, Inc.
    ("STPBS") permittee of noncommercial educational television station
    KEDT-DT, Corpus Christi, Texas, requests a four-month waiver of
    Section 73.624(f).[^2] Washburn University of Topeka ("WUT"),
    licensee of noncommercial educational television station KTWU-DT,
    Topeka, Kansas, requests a six-month waiver of Section
    73.624(f).[^3] WQED Multimedia ("WQED"), permittee of noncommercial
    educational television station WQED-DT, Pittsburg, Pennsylvania,
    requests a six-month waiver of Section 73.624(f).[^4] As discussed
    below, we grant STPBS's waiver request, and grant WUT's and WQED's
    waiver requests in part.

2.  *Background.* Section 73.624(f) of the Commission's rules requires
    DTV licensees to simulcast 50% of the video programming of their
    analog channel on their DTV channel by April 1, 2003. This
    requirement increases to a 75% simulcast requirement on April 1,
    2004, and a 100% requirement on April 1, 2005.[^5] The simulcasting
    requirement was intended to ensure that consumers enjoy continuity
    of free over-the-air video programming service when analog spectrum
    is reclaimed at the end of the transition. The Commission stated
    that it may be difficult to terminate analog broadcast service if
    broadcasters show programs on their analog channels that are not
    available on their digital channels.[^6]

3.  In the *Notice of Proposed Rule Making* initiating the second
    periodic review of the transition to digital television, adopted
    January 15, 2003 ("*Second DTV Periodic Review NPRM*"), the
    Commission sought comment on whether it should retain, revise, or
    remove the simulcast requirement.[^7] Among other questions, the
    Commission asked whether broadcasters have a market-based incentive
    to simulcast that makes a simulcast requirement unnecessary.[^8] The
    Commission also asked whether the simulcasting requirement is
    causing broadcasters to forego creative uses of digital technology,
    and if something less than the ultimate 100% simulcast requirement
    would be sufficient to protect analog viewers while allowing for
    innovation on DTV channels. The Commission also sought comment on
    how to define simulcasting, and whether the current dates for the
    phase-in of simulcast requirements are appropriate. The *Second DTV
    Periodic Review NPRM* did not propose to reduce or eliminate the
    minimum digital operating requirements that are currently pegged to
    the simulcast requirements.[^9]

4.  On April 29, 2003, the Media Bureau issued an *Order* granting to
    noncommercial educational ("NCE") stations a six-month waiver of
    certain simulcast requirements until November 1, 2003.[^10] In this
    *Simulcast Order* we found that in light of the burden faced by NCE
    stations in complying with both the construction and simulcasting
    requirements at once, and in light of our pending re-evaluation of
    our simulcasting requirements, good cause existed to grant NCE
    stations a six-month waiver of the simulcast requirements in Section
    73.624(f).[^11] We stated that the six-month waiver of our simulcast
    requirements would give NCE stations additional time to acquire and
    install the facilities necessary to meet the simulcast requirement.
    We also stated that we would consider requests for waiver extensions
    from NCE stations on their individual merits if the Commission has
    not yet acted on the simulcasting issues raised in the *Second DTV
    Periodic NPRM* by November 1, 2003.

5.  *STPBS Waiver Request.* STPBS requests a four-month waiver of
    Section 73.624(f) until March 1, 2004.[^12] STPBS states that
    KEDT-DT was activated under special temporary authority on September
    23, 2003.[^13] STPBS states that it is currently relying on the
    Public Broadcasting Service's national high definition feed, but it
    is working actively on finishing construction of the master control
    structure that will allow it to simulcast. STPBS states that the
    necessary encoding and multiplexing equipment will be installed by
    March 1, 2004.[^14]

6.  We find good cause to grant STPBS a waiver of the simulcast
    requirements in Section 73.624(f), until March 1, 2004.[^15] This
    four-month waiver of our simulcast requirements will give the
    station additional time to acquire and install the facilities
    necessary to meet the simulcast requirement. As the Commission has
    stated, we will consider granting special relief to NCE stations in
    certain circumstances, such as those presented here, because of the
    particular financial difficulties NCE stations face and the
    assistance they will need in the transition to DTV.[^16]

7.  *WUT and WQED Waiver Requests.* WUT requests a six-month waiver of
    Section 73.624(f).[^17] WUT states that it currently multicasts a
    high-definition digital stream and a standard definition digital
    stream on KTWU-DT. According to WUT, on the high-definition stream,
    KTWU broadcasts the Public Broadcasting Service ("PBS")
    High-Definition Demonstration Loop, HDTV feeds from PBS and American
    Public Television, PBS's primetime HDTV schedule, and delayed
    high-definition programming recorded by KTWU, all of which WUT
    characterizes as providing "a wide sampling of innovative
    high-definition programming."[^18] On the standard definition
    digital stream KTWU broadcasts a service consisting of all
    children's programming. WUT asserts that its plan to offer
    high-definition television programming demonstrating the advantages
    of DTV broadcasting, along with a dedicated children's program
    channel, is the most effective way to serve the public interest and
    stimulate community interest in DTV service.[^19]

8.  WQED also requests a six-month waiver of Section 73.624(f).[^20]
    WQED states that it currently broadcasts a high-definition signal
    which several local cable systems in the market have agreed to carry
    because the programming is unique in the market.[^21] WQED states
    that during the day it broadcasts the PBS High-Definition
    Demonstration Loop and in the evening it broadcasts the PBS special
    primetime HDTV schedule.[^22] WQED states that it does not yet have
    the encoding and decoding equipment necessary to generate both an
    HDTV signal and a standard definition digital stream to carry its
    local programming. According to WQED, that equipment will cost
    \$250,000, and it needs additional time to budget for that
    expenditure.[^23]

9.  We find good cause to grant WUT and WQED waivers of the simulcast
    requirements in Section 73.624(f). We do not grant the stations'
    requests for a six-month waiver, however, but instead grant the
    waivers pending the resolution of simulcasting issues in the second
    DTV periodic review.[^24] By temporarily waiving the current rules,
    we are permitting WUT and WQED to experiment with innovative uses of
    their digital signals by offering combinations of HDTV and SDTV
    programming. Following the issuance of an *Order* in the second DTV
    periodic review, WUT and WQED must bring their DTV stations into
    compliance within a period of time specified in that *Order*.

10. These actions in no way waive the existing rules regarding the
    minimum hours of operation on digital channels. Thus, each station
    must air a digital signal for an amount of time equivalent to at
    least 50% of the time it provides an analog signal. In addition, a
    digital video program signal must be aired during prime time hours.
    The minimum digital operating requirement increases to 75% on April
    1, 2004 (requiring airing of a digital signal for an amount of time
    equivalent to at least 75% of the time the station airs an analog
    signal), and to 100% on April 1, 2005. Stations, both commercial and
    NCE, that have been granted an extension of time to construct their
    DTV facilities must comply with the minimum digital operation
    requirements in effect at the time the station commences digital
    operations.

11. **IT IS HEREBY ORDERED** that, pursuant to the authority contained
    in Section 1.3 of the Commission's rules, 47 C.F.R. § 1.3, the
    Request for Waiver of DTV Simulcasting Requirements filed by South
    Texas Public Broadcasting System, Inc. **IS GRANTED** to the extent
    described herein.

12. **IT IS FURTHER ORDERED** that the Request for Waiver of DTV
    Simulcasting Requirements filed by Washburn University of Topeka
    **IS GRANTED IN PART** to the extent described herein.

13. **IT IS FURTHER ORDERED** that the Request for Waiver of DTV
    Simulcasting Requirements filed by WQED Multimedia **IS GRANTED IN
    PART** to the extent described herein.

14. This action is taken pursuant to authority delegated by Sections
    0.61(h) and 0.283 of the Commission's rules, 47 C.F.R. §§ 0.61(h),
    0.283.

    FEDERAL COMMUNICATIONS COMMISSION

    W. Kenneth Ferree

    Chief, Media Bureau

[^1]: 47 C.F.R. § 73.624(f).

[^2]: STPBS, Request for Waiver of DTV Simulcast Requirements (Oct. 16,
    2003) ("STPBS Request").

[^3]: Washburn University of Topeka, Request for Waiver of DTV Simulcast
    Requirements (Oct. 21, 2003) ("WUT Request").

[^4]: WQED Multimedia, Request for Waiver of DTV Simulcast Requirements
    (Oct. 31, 2003) ("WQED Request").

[^5]: 47 C.F.R. § 73.624(f)(i)-(iii).

[^6]: *Fifth Report and Order* in MM Docket No. 87-268, 12 FCC Rcd
    12809, 12833, ¶ 56 (1997) ("*Fifth Report and Order*"), *on recon*.,
    13 FCC Rcd 6860, *on further recon*., 14 FCC Rcd 1348 (1998),
    *recon. dismissed*, DA 99-1361 (rel. July 12, 1999), *recon.
    dismissed*, FCC 00-59 (rel. Feb. 23, 2000).

[^7]: *Second Periodic Review of the Commission's Rules and Policies
    Affecting the Conversion to Digital Television*, *Public Interest
    Obligations of TV Broadcast Licensees*, 18 FCC Rcd 1279 (2003).

[^8]: *Id.* at 1302, ¶ 66.

[^9]: To the contrary, the Commission proposed that, if the simulcasting
    requirements in Section 73.624(f) were reduced or eliminated,
    Section 73.624(b)(1) would be amended to require DTV stations
    subject to the May 1, 2002, or May 1, 2003, construction deadlines
    to air, by April 1, 2003, a digital signal for an amount of time
    equivalent to 50% of the time they provide an analog signal. The
    digital signal must be aired during prime time hours. This minimum
    digital operating requirement would increase to 75% on April 1, 2004
    (requiring airing of a digital signal for an amount of time
    equivalent to at least 75% of the time the station airs an analog
    signal), and to 100% on April 1, 2005. *Second DTV Periodic Review
    NPRM*, 18 FCC Rcd at 1303, ¶ 68.

[^10]: *Second Periodic Review of the Commission's Rules and Policies
    Affecting the Conversion To Digital Television*, 18 FCC Rcd 8166
    (2003) ("*Simulcast Order"*).

[^11]: *Simulcast Order*, 18 FCC Rcd at 8168, ¶ 6.

[^12]: *STPBS Request* at 1.

[^13]: *Id.*

[^14]: *Id.* at 2.

[^15]: *See* 5 U.S.C. § 553(b)(3)(B). The Commission may waive its rules
    when good cause is shown. *See* 47 C.F.R. § 1.3; *Wait Radio* v.
    *FCC*, 418 F.2d 1153 (D.C. Cir. 1969).

[^16]: *See* *Fifth Report and Order*, 12 FCC Rcd at 12852, ¶ 104.

[^17]: *WUT Request* at 1.

[^18]: *Id.* at 1-2.

[^19]: *Id.* at 2.

[^20]: *WQED Request* at 1.

[^21]: *Id.*

[^22]: *Id.* at 1-2.

[^23]: *Id.* at 2.

[^24]: *See* 5 U.S.C. § 553(b)(3)(B). *See also*, *supra* n. 15.