**Before the**

Federal Communications Commission

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | MB Docket No. 09-17          |
|                                  | * |                              |
| Implementation of the DTV Delay  | ) |                              |
| Act                              | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

Report and Order and *sua sponte* order on reconsideration

**Adopted: February 13, 2009 Released: February 13, 2009**

By the Commission:

# Introduction

1.  In this Report and Order, the first in response to the Congressional
    extension of the digital television (DTV) transition period, we
    extend the analog license terms and adjust the construction permits
    for the full power television stations subject to the DTV Delay Act
    that was enacted into law on February 11, 2009.[^1] In the DTV Delay
    Act, Congress extended the date for the completion of the nationwide
    DTV transition from February 17, 2009 to June 12, 2009. As a result,
    after June 12, 2009, full-power television broadcast stations must
    transmit only digital signals, and may no longer transmit analog
    signals except for limited analog "nightlight" service.[^2] Congress
    extended the transition date in order to permit analog service to
    continue until consumers have had additional time to prepare.[^3]
    The DTV Delay Act directs the Commission to take any actions
    "necessary or appropriate to implement the provisions, and carry out
    the purposes" of the DTV Delay Act, and to do so within 30 days.[^4]
    This Report and Order also delegates authority to the Media Bureau
    to rule on stations' filings regarding termination of analog service
    on February 17, 2009. We intend to follow up quickly with additional
    rulemakings as needed. Finally, we adopt a *Sua Sponte Order on
    Reconsideration* to make a minor adjustment to the Public Notice
    released on February 5, 2009, and to the conditions adopted in the
    Public Notice released on February 11, 2009.

# Discussion

2.  Initially, we conclude that the actions herein are not subject to
    the rule making requirements of the Administrative Procedure Act[^5]
    or any other provision of law that otherwise might apply but would
    impede implementation of the DTV Delay Act. The Act directs the
    Commission to postpone the DTV transition date from February 17 to
    June 12, 2009, and provides that, "\[n\]otwithstanding any other
    provision of law," the FCC must "adopt or revise its rules,
    regulations, or orders or take such other actions as may be
    necessary or appropriate to implement the provisions, and carry out
    the purposes, of this Act and the amendments made by this Act"
    within 30 days of the date of its enactment.[^6] The
    "notwithstanding" clause plainly excuses compliance with otherwise
    applicable legal requirements that would impede implementation of
    the DTV Delay Act by the statutory deadline.[^7] Even if the clause
    were ambiguous, we would interpret it to exempt the Commission from
    APA and other requirements that cannot be reconciled with the
    statutory deadline.[^8] The actions herein are necessary and
    appropriate to implement the DTV Delay Act and carry out its
    purposes, and must be accomplished before February 17, 2009, so that
    the effective deadline for our actions here is less than three
    business days. Because compliance with the APA and other
    requirements would frustrate our ability to meet that deadline, we
    conclude that our actions herein are exempt from such requirements.
    Moreover, we find that there is good cause for departure from the
    APA requirements of notice and comment and a 30-day delay before
    rules become effective.[^9] Again, with regard to the actions here,
    the effective deadline for Commission action is less than three
    business days.[^10] Our actions are of an interim nature, in that
    they will no longer be in force after June 13, 2009,[^11] and are
    largely ministerial, because they simply extend deadlines tied to
    the original DTV transition date of February 17, 2009 to the new
    statutory date.[^12] Accordingly, even if our actions are subject to
    the APA, we find that there is good cause for departure from APA
    requirements.

## Licenses and Construction Permits Extended Until New Transition Date

3.  By this Order, and pursuant to the authority set forth in the DTV
    Delay Act,[^13] we hereby revise and extend the following dates
    related to full-power broadcast television stations' licenses and
    construction permits: (1) the date of termination for a station's
    analog license is extended from February 17, 2009 to June 12, 2009
    (11:59:59 pm local time);[^14] (2) the construction permit deadline
    to construct a station's full-authorized post-transition (DTV)
    facility is extended from February 17, 2009 to June 12, 2009
    (11:59:59 pm local time);[^15] and (3) the date on which a station
    can commence operation of a facility authorized for post transition
    service without further Commission authorization is extended from
    12:00 am February 18, 2009 to 12:00 am June 13, 2009 (local time).
    Absent the extensions granted in this Report and Order, existing
    authorizations to provide analog broadcast service and to construct
    replacement digital facilities will expire on the former transition
    date and a gap in service would occur beginning on February 18th.
    This would directly contravene the purpose of the DTV Delay to
    afford viewers more time in which to prepare for the digital
    transition.

4.  We remind stations that they may complete construction of their
    post-transition digital facilities before June 12 at 11:59:59 pm,
    but may not operate such facilities before 12:00 am June 13, 2009
    (local time) without express Commission approval because operation
    of a facility that has been authorized for post-transition but not
    pre-transition service could cause impermissible interference to
    pre-transition broadcasting. Therefore, stations that wish to
    operate a post-transition facility before 12:00 am June 13, 2009
    (local time) must request special temporary authority (STA) from the
    Commission via the "DTV engineering STA," including the appropriate
    engineering analysis.[^16]

## February 11 Public Notice 

### Delegated Authority to Consider Waiver Reinstatement

5.  We hereby delegate authority to the Media Bureau to determine
    whether showings submitted in response to the Commission's February
    11, 2009 Public Notice justify reinstatement of the conditional
    waiver necessary to terminate analog service on February 17,
    2009.[^17] The *February 11 Public Notice* reconsidered the partial
    waiver granted in an earlier Public Notice with regard to a number
    of stations intending to terminate analog service on February 17,
    2009, based on the conclusion that termination by such stations
    poses a significant risk of substantial public harm.[^18] The
    stations in question, which are listed in the Appendix to the
    *February 11 Public Notice*, may not terminate analog service on
    February 17 unless they obtain reinstatement of the waiver of the
    procedures set forth in the *Third DTV Periodic Report and Order*
    by (1) making certain certifications by February 13 or (2) by
    showing "that extraordinary, exigent circumstances, such as the
    unavoidable loss of their analog site or extreme economic hardship,
    require that they terminate their analog service on February
    17th."[^19] A station electing to submit such a showing (as opposed
    to a station making a self-effectuating certification) "must await a
    determination by the Commission that its showing is sufficient
    before terminating analog service." The Commission stated in the
    *February 11 Public Notice* that we would try to make such
    determinations before February 17th.[^20] Accordingly, and to
    expedite such determinations, we delegate authority to the Media
    Bureau to make the required determinations and notify stations of
    the results.

### *Sua Sponte* Reconsideration

#### *February 5 Public Notice*

6.  By this Order we reconsider the limitation adopted in the *February
    5 Public Notice* that stated: "We expect that stations indicating
    their intent to terminate their analog service on February 17 will
    do so. Therefore, as a condition of the waiver granted herein, the
    Commission will not permit stations to withdraw or modify these
    notifications except in the event of emergency or disaster
    necessitating the continued operation of analog service. The analog
    operations of stations submitting notification of intent to
    terminate analog service on February 17, 2009 pursuant to this
    Public Notice will no longer be protected from interference after
    February 17, 2009."[^21] Some stations that were not on the Appendix
    to the *February 11 Public Notice* have expressed interest in
    withdrawing their notifications for good reasons associated with
    circumstances in their markets, but not rising to the level of an
    "emergency or disaster." We find that it is in the public interest
    to allow stations to withdraw their notifications of intent to
    terminate analog service on February 17, 2009.

7.  Due to the limited period of time remaining before February 17^th^,
    stations that wish to withdraw their notifications must notify us no
    later than 6:00 pm EST on Sunday, February 15, 2009. Stations should
    send an email to: Barbara.Kreisman@fcc.gov and place "Withdrawal of
    Termination Notification" in the subject line.[^22] Stations should
    also revise their "Viewer Notifications" to reflect their change in
    plans as soon as possible.

#### *February 11 Public Notice*

8.  By this Order, we also reconsider and make a minor adjustment to one
    of the conditions set forth in the *February 11 Public Notice*.[^23]
    The third condition stated, in relevant part: "Ensure that enhanced
    nightlight service concerning the DTV transition or emergency
    information will be provided in Spanish and English and accessible
    to the disability community . . ." Some stations have maintained
    that they do not have the capability of translating emergency
    information into Spanish. We also note that neither our rules nor
    the Analog Nightlight Act require emergency information in
    Spanish;[^24] rather the Analog Nightlight Act requires only that
    information concerning the DTV transition be provided in both
    English and Spanish.[^25]

9.  We recognize the value and importance of ensuring that emergency
    information is available in Spanish for many viewers. However, we do
    not wish to prevent stations that can otherwise comply fully with
    the eight public interest conditions set forth in the *February 11
    Public Notice* from doing so and proceeding with their analog
    termination, as provided in the *February 11 Public Notice*.
    Therefore, we will not require stations to provide emergency
    information in Spanish if the station does not otherwise provide
    Spanish language programming. We certainly encourage stations to
    broadcast emergency information in Spanish or other languages as
    needed by their viewers. The requirement for DTV transition
    information in Spanish remains in place.

## Additional Information

10. For additional information, contact Evan Baranoff,
    Evan.Baranoff@fcc.gov, of the Media Bureau, Policy Division,
    at (202) 418-7142.

# Ordering Clauses

11. IT IS ORDERED that, pursuant to the authority contained in Sections
    4, and 303 of the Communications Act of 1934, as amended, 47 U.S.C.
    §§ 154and 303, and Sections 2 and 4(c) of the DTV Delay Act, DTV
    Delay Act §§ 2, 4(c), this Report and Order IS ADOPTED.

12. IT IS ALSO ORDERED, pursuant to the authority contained in Section
    4(c) of the DTV Delay Act, DTV Delay Act § 4(c), the actions herein
    are effective upon release of this Report and Order. As discussed
    above, the actions herein must be effective no later than February
    17, 2009 at 11:59:59 p.m. to avoid a gap in analog broadcast service
    that would harm viewers and directly contravene the purposes of the
    DTV Delay. The Commission is releasing this Report and Order on
    Friday, February 13, 2009, only two days after the DTV Delay Act's
    enactment on February 11, 2009, and the last business day before
    February 17, 2009 (Monday, February 16 is a federal holiday). As a
    result, we find that there is good cause to make the actions herein
    effective today upon release of this Report and Order.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: *See* DTV Delay Act, Pub. L. No.111-4, 123 Stat. 112 (2009). On
    February 11, 2009, the DTV Delay Act was signed by the President and
    enacted into law. The DTV Delay Act was passed by the United States
    Senate on January 29, 2009 and passed by the United States House of
    Representatives on February 4, 2009. The Commission also has issued
    a number of public notices to facilitate Congress's postponement of
    the DTV transition deadline. *See* Public Notice, "FCC Requires
    Public Interest Conditions for Certain Analog TV Terminations on
    February 17, 2009," FCC 09-7 (rel. Feb. 11, 2009) (*February 11
    Public Notice*); Public Notice, "FCC Announces Procedures Regarding
    Termination of Analog Television Service On or After February 17,
    2009," FCC 09-6 (rel. Feb. 5, 2009) ("*February 5 Public Notice")*.

[^2]: The DTV Delay Act (to be *codified at* 47 U.S.C. §§ 309(j)(14) and
    337(e)), amends Section 309(j)(14) of the Communications Act to
    establish June 12, 2009 as the new nationwide deadline for the end
    of analog transmissions by full-power stations. 47 U.S.C. §
    309(j)(14)(A) ("A full-power television broadcast license that
    authorizes analog television service may not be renewed to authorize
    such service for a period that extends beyond June 12, 2009."). *See
    also* 47 U.S.C. § 337(e)(1) ("Any full-power television station
    licensee that holds a television broadcast license to operate
    between 698 and 806 megahertz may not operate at that frequency
    after June 12, 2009."). *See* *also* the Short-term Analog Flash and
    Emergency Readiness Act, Pub. L. No.110-459, 122 Stat. 5121 (2008)
    ("*Analog Nightlight Act*").

[^3]: *See*, *e.g.*, Cong. Rec. H895 (daily ed. February 4, 2009).

[^4]: DTV Delay Act § 4(c). In addition, the DTV Delay Act amends the
    Digital Television and Public Safety Act of 2005 ("DTV Act"), Pub.
    L. No. 109-171, 120 Stat. 4 (2006), to direct the Commission to
    "take such actions as are necessary (1) to terminate all licenses
    for full-power television stations in the analog television service,
    and to require the cessation of broadcasting by full-power stations
    in the analog television service, by June 13, 2009; and (2) to
    require by June 13, 2009, ... all broadcasting by full-power
    stations in the digital television service, occur only on channels
    between channels 2 and 36, inclusive, or 38 and 51, inclusive
    (between frequencies 54 and 698 megahertz, inclusive)." 47 U.S.C.A.
    § 309 Note.

[^5]: 5 U.S.C. §§ 551, *et seq.* (APA).

[^6]: DTV Delay Act § 4(c).

[^7]: In other contexts, the D.C. Circuit has interpreted similar
    "notwithstanding" language "to supersede all other laws, stating
    that 'a clearer statement is difficult to imagine.'" *Liberty
    Maritime Corp. v. United States*, 928 F.2d 413, 416 (D.C. Cir. 1991)
    (internal cites omitted).

[^8]: *See, e.g., Verizon Comm'ns, Inc. v. FCC*, 535 U.S. 467, 539
    (2002) (under *Chevron* doctrine, courts generally defer to an
    agency's reasonable interpretation of an ambiguous provision in its
    enabling statute). *Cf. Asiana Airlines v. FAA*, 134 F.3d 393, 398
    (D.C. Cir. 1998) ("when Congress sets forth specific procedures that
    'express its clear intent that APA notice and comment procedures
    need not be followed, an agency may lawfully depart from the
    normally obligatory procedures of the APA"), *quoting Methodist
    Hospital of Sacramento v. Shalala*, 38 F.3d 1225, 1235 (1994). The
    D.C. Circuit upheld agency findings that the APA did not apply in
    the absence of express exemptions in *Asiana* and *Methodist*,
    despite an APA provision that modifications must be express, because
    the statutes specified procedures that could not be harmonized with
    the APA.

[^9]: *See* 5 U.S.C. §§ 553(b)(3)(B) (notice and comment not required
    "when the agency for good cause finds ... that notice and public
    procedure thereon are impracticable, unnecessary, or contrary to the
    public interest."), 553(d)(1) (exception to 30-day waiting period
    for a rule's effectiveness where agency finds good cause and
    publishes finding with the rule). *See also* 5 U.S.C. § 608 (agency
    "may waive or delay the completion of some or all of the \[initial
    regulatory flexibility analysis\] requirements ... by publishing in
    the Federal Register, not later than the date of publication of the
    final rule, a written finding ... that the final rule is being
    promulgated in response to an emergency that makes compliance or
    timely compliance ... impracticable.").

[^10]: The D.C. Circuit has held that "the extremely limited time given
    by Congress" to an agency for adoption of regulations "is a crucial
    factor in establishing 'good cause'" under the APA. *Id.* at 1200-01
    (upholding agency finding of good cause to adopt interim rule
    without notice and comment where statute directed agency to
    promulgate implementing regulations "\[n\]ot later than 60 days
    after the date of enactment").

[^11]: *See American Federation of Gov\'t Employees v. Block*, 655 F.2d
    1153, 1156 (good cause existed to issue new rates effective
    immediately without notice and comment but not to make them
    permanent).

[^12]: *See Metzenbaum v. FERC*, 675 F.2d 1282, 1291 (D.C. Cir. 1982)
    (agency orders that were nondiscretionary ministerial actions issued
    in conformity with statute were properly issued without notice and
    comment).

[^13]: *See* DTV Delay Act § 2 and 4(c).

[^14]: A number of stations are operating with reduced analog facilities
    pursuant to special temporary authority, based upon a showing that
    the service reduction was directly related to the construction and
    operation of their post-transition facilities. We also extend the
    date of termination for these STAs from February 17, 2009 to June
    12, 2009 (11:59:59 pm local time). Similarly, we extend the date of
    termination for stations operating pre-transition digital facilities
    pursuant to STAs which currently terminate on February 17^th^ to
    June 12, 2009 (11:59:59 pm local time).

[^15]: We note that the *Third DTV Periodic Report and Order*
    established certain construction deadlines, rules and procedures for
    requesting and obtaining extensions for build-out of digital
    facilities. *See Third Periodic Review of the Commission's Rules and
    Policies Affecting the Conversion to Digital Television*, MB Docket
    No. 07-91, Report and Order, 23 FCC Rcd 2994, 3014-42, ¶¶ 37-97
    (Section V.B.) (2007) ("*Third DTV Periodic Report and Order*"). We
    will address these deadlines, rules, and procedures if and as
    necessary in subsequent proceedings.

[^16]: *See id*.

[^17]: *February 11 Public Notice*.

[^18]: *Id*. at 2. *See* *also* *February 5 Public Notice*.

[^19]: *Id*. at 5.

[^20]: *Id*.

[^21]: *February 5 Public Notice*, at 8-9.

[^22]: Stations listed in the Appendix to the *February 11 Public
    Notice* that have chosen not to terminate their analog service will
    so indicate by 6:00 pm EST on Friday, February 13, 2009 on the form
    described in footnote 10 to the *February 11 Public Notice*; they
    should not and need not send notifications to this e-mail address.

[^23]: *See February 11 Public Notice,* at 4.

[^24]: *See* Section 2(b) of the *Analog Nightlight Act*, *supra* note
    2; *see also Implementation of Short-term Analog Flash and Emergency
    Readiness Act; Establishment of DTV Transition "Analog Nightlight"
    Program*, MB Docket No. 08-255, Report and Order, FCC 09-2 at ¶¶
    28-29 and 36 (rel. Jan. 15, 2009) ("*Analog Nightlight Order*").

[^25]: *Id.* We also urge stations to provide DTV transition information
    in other languages as appropriate for their viewers. *Id.* at ¶ 29.