**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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| Commission's Rules and Policies  | *  | MM Docket No. 99-360         |
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| Affecting the Conversion         | ** | MM Docket No. 00-167         |
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| To Digital Television            | *  | MM Docket No. 00-168         |
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| Public Interest Obligations of   | ** |                              |
| TV                               |    |                              |
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| Broadcast Licensees              | *) |                              |
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| Children's Television            |    |                              |
| Obligations of                   | *  |                              |
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| Digital Television Broadcasters  | ** |                              |
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| Standardized and Enhanced        | *  |                              |
| Disclosure                       | *) |                              |
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| Requirements for Television      |    |                              |
| Broadcast Licensee               | *  |                              |
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| Public Interest Obligations      | ** |                              |
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**ORDER**

**Adopted: April 28, 2003 Released: April 29, 2003**

By the Chief, Media Bureau:

1.  The Media Bureau has received three requests related to the DTV
    simulcast requirements in Section 73.624(f) of our rules.[^1]
    Noncommercial educational television stations collectively request a
    temporary suspension of the DTV simulcasting requirements as they
    apply to NCE stations. Paxson Communications Corporation ("Paxson")
    and Milwaukee Area Technical College ("MATC") request temporary
    waivers of Section 73.624(f). As discussed below, we grant NCE
    stations a six-month waiver of the DTV simulcast requirements. We
    also grant the waiver request of MATC and deny the Paxson waiver
    request.

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.[^2] 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.[^3]

3.  In the *Memorandum Opinion and Order on Reconsideration* in the
    first DTV periodic review ("*First DTV Periodic Review MO&O*"), the
    Commission allowed stations subject to the May 1, 2002, or May 1,
    2003, digital construction deadlines to operate initially at a
    reduced schedule by providing, at a minimum, a digital signal during
    prime time hours, consistent with their simulcast obligations.[^4]
    The minimum operating hours for these digital stations effectively
    increases as the simulcast obligations are phased in. Thus, for
    example, beginning April 1, 2003, a DTV station that was required to
    be on the air by May 1, 2002, must provide a simulcast digital
    signal at least 50% of the time it transmits an analog signal and,
    under the requirements of Section 73.624(b)(1), must also air a
    digital video program signal during prime time. Along with the
    simulcasting requirements, the minimum hours requirements step up to
    a 75% requirement in April 2004, and a 100% requirement in
    April 2005. Stations that were subject to the earlier DTV
    construction deadlines (top four network affiliates in the top
    thirty markets) are required to operate their DTV station at any
    time that the analog station is operating.[^5]

4.  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.[^6] Among other questions, the
    Commission asked whether broadcasters have a market-based incentive
    to simulcast that makes a simulcast requirement unnecessary. 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.[^7]

5.  *NCE Television Stations.* Dow, Lohnes & Albertson, Schwartz, Woods
    & Miller, the Public Broadcasting Service, and the Association of
    Public Television Stations (collectively referred to herein as "PBS,
    *et al*."), on behalf of NCE TV licensees, request that the FCC
    temporarily suspend the DTV simulcasting requirements as they apply
    to NCE stations pending FCC action on the simulcasting issues in the
    second DTV periodic review proceeding.[^8] The emergency request
    states that, although many NCE DTV stations will be able to transmit
    a digital television signal by the May 1, 2003, construction
    deadline, some stations do not yet have in place necessary studio
    transmitter links ("STLs") or other digital interconnection
    facilities between their studios and their transmitters to permit
    them to receive the simulcast programming feed from their studios.
    According to PBS, *et al*., some NCE stations also do not yet have
    the encoding equipment that enables the station to digitize its NTSC
    programming for DTV broadcast. PBS, *et al*. notes that, unlike
    commercial stations, which had a minimum of 11 months between the
    latest commercial DTV construction deadline (May 1, 2002) and the
    commencement of the simulcasting requirement on April 1, 2003, NCE
    stations are currently required to complete construction of their
    DTV facilities and meet the 50% simulcast requirement
    simultaneously. As a result, NCE stations are required to focus on
    transmission systems and encoding and STL systems at the same time,
    a challenge that many NCE stations have found impossible to meet.
    PBS, *et al*. also argues that, as the Commission is considering
    whether the simulcast requirements should be retained or modified,
    it makes sense to suspend temporarily the requirements for NCE DTV
    stations while these issues are under consideration.

6.  We recognize that, unlike commercial licensees, the deadlines to
    complete construction of digital facilities and to comply with the
    50% simulcasting requirement for noncommercial educational licensees
    were the same. PBS, *et al.* state that many NCE stations will be
    unable to both begin digital operations and comply with our current
    simulcasting obligations by May 1, 2003. In light of the burden
    faced by NCE stations in complying with both the construction and
    simulcasting requirements simultaneously, and in light of our
    pending re-evaluation of our simulcasting requirements, we find that
    good cause exists to grant NCE stations a six-month waiver of the
    simulcast requirements in Section 73.624(f).[^9] Thus, until
    November 1, 2003, noncommercial educational television stations will
    not be required to simulcast on their digital channel the
    programming that is aired on their analog channel. This six-month
    waiver of our simulcast requirements will give NCE stations
    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.[^10] Although
    NCE stations requested a waiver until resolution of the simulcasting
    issues raised in the *Second DTV Periodic NPRM*, we do not believe
    it is necessary to grant a blanket waiver to all NCE stations for an
    indefinite period of time. We believe that a six-month waiver should
    provide sufficient time for those NCE stations that do not already
    have simulcasting equipment to obtain and install such equipment. In
    the event the Commission has not yet acted on the simulcasting
    issues raised in the *Second DTV Periodic NPRM* by November 1, 2003,
    and in the event some NCE stations decide to request a waiver for an
    additional period of time, we will consider those requests at that
    time on their individual merit. In taking this action we are not
    making a final ruling on the matters raised for comment in the
    *Second DTV Periodic NPRM.*

7.  This action in no way waives the existing rules regarding the
    minimum hours of operation on digital channels. Thus, NCE stations
    must air, by May 1, 2003, a digital signal for an amount of time
    equivalent to at least 50% of the time they provide 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.

8.  *MATC Waiver Request*. MATC, licensee of two noncommercial
    educational television stations in Milwaukee, Wisconsin, requests a
    temporary waiver of Section 73.624(f), for an unspecified period of
    time, to permit it to simulcast the analog programming of both of
    its NCE stations on one of its associated digital stations, and to
    use the other digital station to air high definition programming
    full time.[^11] MATC states that it has been operating WMVS-DT,
    associated with WMVS, Channel 10, since early 2000, and that it will
    comply with the simulcasting requirements applicable to that
    station. MATC has been granted an extension of time to complete
    construction of WMVT-DT, associated with WMVT, Channel 36, and
    expects that station to be on the air in July 2003. MATC states that
    the waiver it seeks will be needed only at the point that WMVT-DT
    commences operations.

9.  MATC notes that, because it plans, at least initially, to provide
    its simulcast service on WMVS-DT, which has a larger predicted
    coverage area than WMVT-DT, each potential DTV viewer of MATC's
    stations should be able to receive the simulcast programming of both
    stations. MATC argues that its plan would satisfy the purpose behind
    the simulcasting requirement and allow MATC to investigate the
    feasibility in the market of an all-HDTV programming service. MATC
    also argues that its plan could stimulate the sale of DTV sets in
    its market, thereby furthering the transition.

10. We find good cause to grant MATC a waiver of the simulcast
    requirements in Section 73.624(f), pending the issuance of a Report
    and Order in the second DTV periodic review, to permit it to
    implement the plan it proposes in its waiver request.[^12] We note
    that, under MATC's proposal, it will be providing simulcast digital
    service of both of its analog channels to its community. Thus,
    though not complying literally with the simulcast rule, it will be
    serving the purposes underlying the rule. By temporarily waiving the
    current rules, we are permitting MATC to experiment with innovative
    uses of its other digital channel and to offer additional digital
    programming to the community. Because MATC has committed to
    providing simulcasting, in the manner proposed in its waiver
    request, allowing it to offer additional digital programming to the
    community, we believe that it is appropriate to grant MATC a longer
    waiver to implement its proposed simulcasting plan than the waiver
    given to other NCE stations**.** In the second DTV periodic review,
    the Commission will consider, among other issues related to the
    simulcast requirement, whether the current simulcast rules should be
    amended to facilitate similar and other innovative uses of digital
    stations. As in the case of the temporary simulcast waiver granted
    above to all NCE stations, MATC will be required to comply with the
    existing rules regarding minimum hours of operation of digital
    channels.[^13]

11. *Paxson Waiver Request.* Paxson, corporate parent of the licensees
    of twenty-eight commercial DTV stations, requests a one-year waiver
    of Section 73.624(f), and in particular the minimum operating hours
    requirements currently pegged to the Section 73.624(f) simulcasting
    requirements.[^14] Paxson notes that regulatory uncertainty remains
    in two areas central to broadcasters' transition planning: DTV
    must-carry and DTV simulcasting requirements. Paxson argues that,
    without cable carriage, adherence to the simulcast requirement will
    not advance the DTV transition or improve service to television
    viewers, while placing undue financial and technical burdens on
    Paxson's DTV stations. Paxson notes that the 50% simulcast
    requirement that became effective April 1, 2003, represents a
    four-fold increase in Paxson's DTV stations' operating schedule,
    with corresponding increases in the stations' operating costs.
    Paxson argues that until broadcasters obtain carriage of their DTV
    signals, it should not be required to expand DTV service beyond
    prime-time as most viewers will not be able to view DTV broadcasts
    until cable carriage is achieved. Paxson also notes that the
    Commission is considering whether to alter or eliminate the
    simulcasting requirements.

12. We do not believe that it is appropriate at this stage in the
    transition to reduce or eliminate the mandatory hours of operation
    of digital stations. Increasing the operating hours of digital
    stations subject to the May 1, 2002, and May 1, 2003, digital
    construction deadlines will help further the transition by helping
    to drive DTV set penetration and encouraging content producers and
    advertisers to invest in DTV. These stations have been on notice
    since the November 2001 adoption of the phased-in simulcast
    requirements in the *First DTV Periodic Review MO&O* that their DTV
    operating hours must be stepped-up beginning on April 1, 2003. We
    also do not believe that the required, gradual increase in the hours
    of digital programming offered to viewers on these stations needs to
    await finalization of the Commission's separate proceeding regarding
    mandatory carriage of analog and digital signals during the
    transition.[^15] It is neither appropriate nor necessary to waive or
    reduce the minimum operating hours of digital broadcast stations,
    thereby slowing the transition, pending the outcome of that
    proceeding. Finally, the Commission did not contemplate altering the
    minimum hours of operation of DTV stations in the *Second DTV
    Periodic Review NPRM*; therefore, the pendancy of that proceeding
    does not provide grounds for deferring the effective date of the
    increased operating requirements.

13. **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, NCE TV
    stations **ARE GRANTED** a six-month waiver of the simulcast
    requirements in Section 73.624(f) of the Commission's rules, 47
    C.F.R. § 73.624(f), until November 1, 2003, as described herein.

14. **IT IS FURTHER ORDERED** that the Request for Temporary Waiver of
    DTV Simulcasting Requirements filed by Milwaukee Area Technical
    College **IS GRANTED** to the extent described herein.

15. **IT IS FURTHER ORDERED** that the Request for Temporary Waiver of
    Section 73.624(f) of the Commission's Rules, filed by Paxson
    Communications Corporation, **IS DENIED**.

16. 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]: 47 C.F.R. § 73.624(f)(i)-(iii).

[^3]: *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).

[^4]: *In the Matter of Review of the Commission's Rules and Policies
    Affecting the Conversion to Digital Television*, 16 FCC Rcd 20594,
    20598, ¶ 11, (2001), *recon. denied*, 17 FCC Rcd 15978 (2002),
    *Third Memorandum Opinion and Order on Reconsideration*, 17 FCC Rcd
    18571 (2002).

[^5]: *Id*. at 20599, ¶ 11. *See also* 47 C.F.R. § 73.624(b).

[^6]: *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). The
    deadline for filing comments on the *Second DTV Periodic Review
    NPRM* was extended to April 21, 2003, and the deadline for filing
    reply comments was extended to May 21, 2003. Order, MB Docket No.
    03-15, RM 9832, MM Docket Nos. 99-360, 00-167, 00-168, DA 03-872
    (rel. March 26, 2003).

[^7]: 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.

[^8]: PBS, *et al.*, Emergency Request for Temporary Suspension of DTV
    Simulcasting Requirements for NCE TV Stations Pending Resolution of
    Second Periodic Review (March 24, 2003).

[^9]: 5 U.S.C. § 553(b)(3)(B). The Commission may waive its rules where
    good cause is shown. *See* 47 C.F.R. § 1.3; *Wait Radio* v. *FCC*,
    418 F.2d 1153 (D.C. Cir. 1969).

[^10]: *See* *Fifth Report and Order*, 12 FCC Rcd at 12852, ¶ 104.

[^11]: MATC, Request for Temporary Waiver of DTV Simulcast Requirements
    (March 20, 2003).

[^12]: 5 U.S.C. § 553(b)(3)(B). *See also*, *supra* n. 9.

[^13]: *See*, *supra* ¶ 7.

[^14]: Paxson Communications Corporation, Request for Temporary Waiver
    of Section 73.624(f) of the Commission's Rules (March 20, 2003).

[^15]: *See*, *Carriage of Digital Television Broadcast Signals*, *First
    Report and Order and Further Notice of Proposed Rulemaking*, 16 FCC
    Rcd 2598 (2001).