**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: June 29, 2004 Released: June 30, 2004**

By the Chief, Media Bureau:

1.  The Media Bureau has received a request for waiver of the digital
    television ("DTV") simulcasting requirements in Section
    73.624(f)[^1] of our rules filed on behalf of Educational
    Broadcasting Corporation ("EBC"), permittee of noncommercial
    television station WNET-DT, Channel 61, Newark, New Jersey.[^2] As
    discussed below, we grant EBC's waiver request.

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1.  *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 increased to a 75% simulcasting requirement on April 1,
    2004, and increases to a 100% requirement on April 1, 2005.[^3] 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 has 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.[^4]

2.  In the *Notice of Proposed Rule Making* initiating the second
    periodic review of the transition to digital television, adopted
    January 15, 2003, the Commission sought comment on whether it should
    retain, revise, or remove the simulcasting requirement.[^5] Among
    other questions, the Commission asked whether broadcasters have a
    market-based incentive to simulcast that makes a simulcasting
    requirement unnecessary.[^6] The Commission also asked whether the
    simulcasting requirement is causing broadcasters to forgo creative
    uses of digital technology, and whether something less than the
    ultimate 100% simulcasting 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
    simulcasting 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
    simulcasting requirements.[^7]

3.  On April 29, 2003, the Media Bureau issued an *Order* granting
    noncommercial educational ("NCE") stations a six-month waiver of
    certain simulcasting requirements until November 1, 2003.[^8] 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 simulcasting
    requirements in Section 73.624(f).[^9] We also stated that we would
    consider requests for waiver extensions from NCE stations on their
    individual merits if the Commission had not yet acted on the
    simulcasting issues raised in the *Second DTV Periodic NPRM* by
    November 1, 2003. The Media Bureau has granted several additional
    requests for waiver of the DTV simulcasting requirements to give
    stations additional time to acquire and install the facilities
    necessary to meet the simulcasting requirement[^10] or to permit
    stations to experiment with innovative uses of the digital
    channel.[^11]

4.  *EBC Waiver Request.* EBC requests a waiver of the simulcasting
    requirements of Section 73.624(f) pending the resolution of the
    simulcasting issues in the Second DTV Periodic Review proceeding to
    permit WNET-DT to offer a new digital standard definition 24-hour
    news, public affairs, science, and history program service,
    *Thirteen World*, in lieu of its current simulcast of WNET's analog
    signal.[^12] EBC states that WNET-DT currently transmits three
    digital program streams, each 24 hours per day, seven days a
    week: (1) *Thirteen HD* -- a high definition program service
    featuring premiere and encore presentations of digital programming
    produced by WNET/Thirteen and other PBS producers nationwide; (2)
    *Kids Thirteen* -- a standard definition 24-hour digital broadcast
    educational channel for children, the first offered in the New York
    metropolitan area; and (3) *Thirteen* -- the standard definition
    simulcast of analog WNET (Channel 13).

5.  EBC proposes to substitute *Thirteen World* for *Thirteen*.
    According to EBC, of the four primary cable providers in the DMA,
    only one carries *Thirteen*, the digital simulcast of WNET's analog
    channel. EBC states its understanding that the other three providers
    do not carry *Thirteen* because it is duplicative of the WNET analog
    service that each already carries as an analog must-carry signal.
    EBC states that it expects that the local cable systems will,
    however, carry *Thirteen World*, thereby providing cable subscribers
    with access to an additional digital program stream. EBC argues that
    permitting WNET-DT to carry *Thirteen World* instead of *Thirteen*
    is a far more productive use of the spectrum as it will provide
    cable and over-the-air viewers with access to an additional digital
    program service without depriving viewers of access to WNET's analog
    programming, which is available over the air and as a must-carry
    signal. EBC states that adding *Thirteen World* as a third standard
    definition digital program stream without deleting the *Thirteen*
    simulcast would significantly degrade the quality of WNET-DT's other
    digital program streams unless costly additional multiplexing and
    encoding equipment were purchased and installed. EBC also states
    that, as more programming becomes available in high definition,
    *Thirteen HD* will likely simulcast HD versions of programs airing
    on WNET Channel 13, permitting *Thirteen HD* to evolve into EBC's
    primary program stream.

6.  We find good cause to grant EBC a waiver of the simulcasting
    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.[^13] By
    temporarily waiving the current rules, we are permitting EBC to
    experiment with innovative uses of its digital channel and to offer
    additional digital programming to the community while the Commission
    considers whether to retain, revise, or eliminate the simulcasting
    requirement. In view of the continued pendancy of the Second DTV
    Periodic Review proceeding and EBC's commitment to airing digital
    programming, grant of the waiver requested by EBC is warranted.

7.  The action we take today does not waive the existing rules regarding
    the minimum hours of operation on digital channels. Thus, WNET-DT
    must air a digital signal for an amount of time equivalent to at
    least 75% 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 100% on April
    1, 2005 (requiring airing of a digital signal for an amount of time
    equivalent to at least 100% of the time the station airs an analog
    signal). 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.  **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 Simulcasting Requirement filed on behalf of
    Educational Broadcasting Corporation **IS GRANTED** to the extent
    described herein.

9.  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]: *See* Letters from Barbara K. Gardner to Marlene H. Dortch, dated
    May 28, 2004 and June 18, 2004.

[^3]: 47 C.F.R. § 73.624(f)(i)-(iii).

[^4]: *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).

[^5]: *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)
    ("*Second DTV Periodic Review NPRM*").

[^6]: *Id.* at 1302, ¶ 66.

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

[^9]: *Simulcast Order*, 18 FCC Rcd at 8168, ¶ 6.

[^10]: *See* Orders, DA 03-3507 (rel. Oct. 31, 2003) (granting a 4-month
    waiver of Section 73.624(f) until March 1, 2004 to South Texas
    Public Broadcasting System, Inc. ("STPBS")); DA 03-3663 (rel. Nov.
    17, 2003) (granting six-month waivers of the simulcasting
    requirements until May 1, 2004 to three noncommercial stations in
    New Mexico); DA 04-1101 (rel. April 27, 2004) (granting an
    additional 6 month waiver to STPBS until September 1, 2004 ).

[^11]: *See* *Simulcast Order*, 18 FCC Rcd at 8169, ¶¶ 8-10 (granting a
    waiver of the simulcasting requirements to Milwaukee Area Technical
    College ("MATC") pending issuance of a Report and Order in the
    Second DTV Periodic Review proceeding to allow MATC to simulcast the
    analog programming of its two NCE stations on one of its associated
    digital stations, and to use the other digital station to air high
    definition programming full time). *See also* Orders, DA 03-3499
    (rel. Oct. 30, 2003) (granting a waiver until issuance of an order
    in the Second DTV Periodic Review proceeding to permit Twin Cities
    Public Television, Inc. to simulcast the analog programming of both
    of its two NCE stations on one of its associated digital stations
    and to use the other digital station to air high definition
    programming full time); DA 03-3507 (rel. Oct. 31, 2003) (granting a
    waiver of the simulcasting requirements to KTWU-DT pending the
    resolution of simulcasting issues in the Second DTV Periodic Review
    where the station was providing a wide sampling of innovative
    high-definition programming as well as a standard definition channel
    devoted to children's programming).

[^12]: According to EBC, *Thirteen World* is intended as a destination
    channel for viewers interested in those non-fiction genres, and will
    feature both encores from favorite PBS series such as *NOVA*,
    *Nature*, and *Frontline*, and special programs that will air
    exclusively on this channel.

[^13]: 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).