**Before the**

**Department of Commerce**

**National Telecommunications and Information Administration**

**1401 Constitution Avenue, NW**

**Washington, D.C. 20230**

+----------------------------------+---+------------------------------+
| United States Spectrum           | * | Docket No. 040127027-4027-01 |
| Management Policy for the 21^st^ | * |                              |
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+----------------------------------+---+------------------------------+

To: Norbert Schroeder, Strategic Spectrum Planning and Reform Division,
NTIA

**COMMENTS OF THE ASSOCIATION OF PUBLIC TELEVISION STATIONS**

The Association of Public Television Stations ("APTS") hereby submits
comments in the above-captioned proceeding.[^1] APTS is a nonprofit
organization whose members comprise the licensees of nearly all of the
nation's 357 CPB-qualified noncommercial educational television
stations. APTS represents public television stations in legislative and
policy matters before the Commission, Congress, and the Executive Branch
and engages in planning and research activities on behalf of its
members.

APTS believes that as the Administration develops and implements a
modernized United States spectrum policy in accordance with President
Bush's Executive Memorandum on Spectrum Policy,[^2] it should be aware
of a number of issues where federal policy can lead to a more efficient
use of scarce electromagnetic spectrum. In particular, the
Administration should support the transition of broadcast television
from analog to digital, a transition of which public television has been
an enthusiastic proponent.

In this regard, public television has been exploring the conditions
under which an early return of analog spectrum may be possible while
furthering public television's unique mission to deliver an over-the-air
broadcast service to all Americans. An early return of analog spectrum
has distinct advantages for public television stations, which must
shoulder the substantial costs of operating both digital and analog
stations for a period of time likely extending much beyond the end of
2006. An early analog return also has advantages for the wireless
industry, as well as the public safety community, which would like to
see portions of the television band above channel 51 cleared as soon as
possible. In addition, the American public would benefit from an early
return as the availability of this prime spectrum could generate
economic activity substantially greater than the mere value of the
spectrum auction proceeds deposited within the U.S. Treasury.[^3]

However, without mandatory cable and satellite carriage of digital
signals, it will be impossible to reach the more than 85 percent of
households that access local programming over these pay platforms, which
in turn would make an early return of analog spectrum a very difficult
proposition indeed. APTS urges the Administration to support mandatory
carriage on all such platforms to encourage the transition to digital
and the early return of spectrum. Additionally, APTS urges the
Administration to assist in developing a means of ensuring that the
remaining over-the-air analog viewers can receive digital signals
through set-top converters or by other means.

In addition, to preserve universal service, APTS urges the
Administration to support the promulgation of rules to ensure the
reception of public television signals via low power and spectrum
efficient digital translators and repeaters. Millions of Americans
living in rural communities rely on translators for over-the-air
reception and for cable reception of television service. When
considering its spectrum policy for the 21^st^ Century, the
Administration should pay particular attention to ensuring that Rural
America is not left behind in the digital transformation of this
nation's telecommunications infrastructure.

Lastly, APTS urges the Administration to continue to provide full
funding of the Public Telecommunications Facilities Program within the
Department of Commerce. This critical program provides much needed
funding for digital capital construction, improvement and repair and
will continue to assist the smooth roll-out of the digital transition
for public broadcasting.

> **A. Digital Television Will Use Less Spectrum and Result in Expanded
> Noncommercial Educational Broadcast Service**

It has been amply documented that digital over-the-air broadcasting is a
technically more spectrum-efficient means of delivering such services,
as channels can be allocated with fewer unused buffer channels in each
market, resulting in a significant reduction of the amount of spectrum
the TV broadcast service will occupy.

Since the inception of the digital proceedings, APTS has been an
enthusiastic proponent of digital television. With its higher quality
images and sound, and its inherent flexibility to broadcast either a
high-definition or multiple standard definition streams, along with
additional streams of data, digital television gives public television
stations new and exciting tools to expand their educational mission in
ways that were not possible in the analog world.

For instance, public television stations are regularly producing new and
exciting high-definition digital programming for national, regional and
local distribution. In addition, multicasting will bring new services to
the public that could not be made available under the constraints of a
single analog program stream, including an expanded distribution of
formal educational services, workforce development services, children's
programming, locally-oriented public affairs programming, and
programming addressed to traditionally unserved or underserved
communities. Lastly, a number of public television stations have plans
to provide various educational or public safety services over their
digital allotment through "datacasting," with data embedded in the
digital programming stream.

> **B. Public Television Is Exploring a Possible Early Return of Analog
> Spectrum**

As the American media landscape is undergoing this fundamental
transformation to a wholly digital infrastructure, public television
stations have therefore embraced digital technology as a means to
revitalize and expand the distribution of noncommercial educational
broadcast services. Yet despite this great promise, and the best efforts
of the FCC, Congress and the broadcasting industry, it is likely that
few communities will have successfully crossed the bridge to
digital-only broadcasting by the projected date of December 31, 2006. A
more protracted digital broadcast transition is highly probable.

However, it has quickly become apparent that the costs of a protracted
transition could be severely detrimental to the financial health of
public television stations. There are therefore major advantages for
public television stations to end analog transmission and embrace a date
certain for converting to digital transmission only. First, it is
projected that analog cessation would save public television \$36
million dollars a year in analog electricity costs alone. Second, early
return of analog spectrum would allow public television stations to
focus all of their energy and resources on the future, rather than on
maintenance and replacement of an aging analog distribution system.

An early return of analog spectrum also has advantages for the wireless
industry and the public safety community, which both benefit from having
portions of the television band above channel 51 cleared as soon as
possible. In addition, as indicated above, the American public would
benefit from an early return as the availability of this prime spectrum
could generate substantive economic activity.

The white paper attached at Appendix A, which was commissioned by the
APTS Board of Trustees, explores the possibilities and conditions under
which public television could support either a date-certain or early
return of analog spectrum. It explores two potential models to achieve
this end and discusses the successful digital transition underway in
Europe for purposes of comparison. In addition, this paper examines in
turn six critical policy questions that were identified by the APTS
Board of Trustees.

-   *What is public television's "universal service" responsibility for
    serving the remaining over-the-air analog audience, and what do we
    know about the population of viewers who get all or a combination of
    their programming through over-the-air analog transmissions?*

-   *How reliable is the ATSC Standard for over-the-air digital
    reception?*

-   *What are the costs for consumers to purchase digital equipment and
    receive digital signals?*

-   *What partnerships does Public Television need in order to
    successfully return analog spectrum early?*

-   *What regulatory and legislative strategies are necessary to achieve
    early return of analog spectrum?*

-   *Is the European experience applicable to the United States?*

Lastly, this paper presents a compressed outline of a possible action
plan to implement digital-only broadcasting.

-   This plan suggests the continuation of FCC policy to encourage
    band-clearing, coupled with amendments to the Communications Act to
    establish a series of rolling "hard" transition dates (based on DMA,
    over-the-air reliance, or some other objective measure) and to
    mandate a gradual decrease in analog power to effectuate a "fade to
    black."

-   The plan also suggests that some limited subsidy be created to
    ensure that the economically disadvantaged have access to digital
    signals when analog service ceases. This would most likely come in
    the form of a one-time subsidy or tax credit for the purchase of
    inexpensive over-the-air set-top boxes.

-   To supplement over-the-air reception, the plan also calls for
    changes to the Communications Act to either mandate full cable and
    satellite carriage of digital signals after the transition or,
    alternatively, to mandate the seamless inclusion of ATSC tuners in
    all digital cable and satellite set-top boxes, without which an
    early return of analog spectrum would be impossible.

-   In addition, the plan suggests that there be a comprehensive and
    complete publicity campaign regarding the timing of analog cessation
    and the means of continuing to receive broadcast TV signals, modeled
    on the success of the Berlin approach.

-   The plan also suggests that a successful transition to digital-only
    broadcasting can only occur through the strategic partnership of
    public broadcasters, commercial broadcasters, equipment
    manufacturers, consumer and affinity groups and others.

-   Lastly, the plan notes that a transition to digital-only
    broadcasting could be facilitated (but is not dependent on) the
    creation of the U.S. equivalent to Britain's Freeview service in
    order to encourage consumer adoption of digital over-the-air
    services through robust market forces.

As the Administration considers its plans for a modernized spectrum
policy, APTS urges it to consider the spectrum efficient proposals made
in the attached white paper and the associated need for policy changes
to support the final outcome of a successful digital transition.

> **C. Creating Rules to Allow for the Operation of Digital Translators
> Will Ensure A Means of Preserving Universal Service to Rural America
> That is Both Technologically Feasible and Spectrum Efficient**

Since May 29, 2002, public television has been advocating that the FCC
issue rules to allow for the operation of digital translators[^4] and
on-channel repeaters.[^5] On August 29, 2003, the FCC released a
comprehensive Notice of Proposed Rulemaking concerning the upgrade of
translators, repeaters and other low power television station to digital
operation.[^6] In addition Congress has repeatedly voiced its interest
in a federal policy that supports rural access to free, broadcast
service by appropriating nearly \$30 million dollars in federal funds to
the Rural Utilities Service in the U.S. Department of Agriculture for
the construction of a digital infrastructure in rural areas, including
the funding of digital translators.[^7]

APTS supports the rulemaking and hopes that the rules issued at the
conclusion of this proceeding will preserve universal service and bring
enhanced digital services to rural America through a means that is both
technologically feasible and spectrum efficient. Appendix B to this
comment reproduces the most recent of public television's FCC filings in
this proceeding.

Through its system of full-power transmitters and over 700 translators,
public television provides services to 99 percent of television
households to support its statutory mandate to provide universal service
to all Americans.[^8] Without rules to facilitate the conversion of
translators to digital operation, millions of rural Americans will
likely not receive critical educational and public safety services over
digital broadcast technology.[^9] Indeed, the importance of translators
to the delivery of local service is dramatically illustrated when one
examines typical cases in the western states. A review of the FCC
database reveals, for example, that of the over 700 public television
translators in service nationwide, over 70 are located in rural Utah,
repeating the signals of KUED, KULC and KBYU to communities that are
otherwise unable to receive these signals. Similarly, Idaho Public
Television operates five transmitters and 34 translators covering 80
percent of the state's population,[^10] while the public television
stations in New Mexico operate over 50 translators to deliver
noncommercial educational services to residents throughout that state.
Moreover, although national figures are unavailable, numerous small
cable systems in rural areas rely on the reception of television
translator signals at their headends to provide service to their
customers.[^11] Providing for the licensing of digital translators and
on-channel repeaters would therefore ensure distribution of digital
signals both to rural citizens who rely on over-the-air reception and to
rural cable subscribers as well.

Digital translators and on-channel repeaters are both a technically
feasible and a spectrum efficient means of accomplishing the goal of
universal access to digital broadcast service. A number of field trials,
for instance, have demonstrated that it is feasible to use low power
television translators to deliver DTV signals to rural and other remote
areas. For instance, using a two-year experimental license from the FCC,
Kent Parsons, an engineer with the University of Utah's public
television stations, has been able to confirm that digital translators
can deliver studio-quality television signals to rural viewers with high
reliability and reasonable cost.[^12] On March 22, 2004, the FCC will
host an in-depth tutorial on these real-world experiments with digital
television translators. Similar experimental tests have demonstrated the
feasibility and reliability of on-channel DTV repeater technology as
well.[^13]

Moreover, DTV translator and digital on-channel repeater technologies
are especially spectrum-efficient and supplement the DTV Table of
Allotments in ways that make the most of this limited national resource.
First, because translator and repeater channels are a secondary service,
they are not allocated frequencies in an established table of
allotments; rather they are specifically engineered to fit between
established allocations to serve rural and geographically isolated
areas. As such, they inherently take advantage of unused spectrum due to
terrain shielding and other factors that make reception of allocated
frequencies otherwise difficult. Second, both DTV translator and digital
repeater technologies use digital modulation, which is more
spectrum-efficient and less prone to cause interference with adjacent
channels and other services than analog technology. Third, while DTV
translators are spectrum-efficient, digital repeater technology is even
more spectrum-efficient, as it uses the same channel for both input and
output, reducing by half the number of frequencies needed to transmit a
local television broadcast service.

Moreover, as indicated above, Congress has made its commitment to the
digital upgrade of rural translators clear through its most recent
appropriations. Pursuant to Congressional directive, the Department of
Agriculture's Rural Utilities Service announced on February 20, 2004 the
award of approximately \$15 million in grants to fund the digital
conversion of 26 translators. Because the needs of rural America were
greater than the available funding in fiscal year 2003, Congress has
appropriated [an additional]{.underline} \$14 million for the same
program for fiscal year 2004. However, this funding cannot be used to
bring digital services to Rural America until the FCC issues final
rules.

APTS therefore urges the Administration to support the issuance of
digital translator rules as soon as possible to preserve and enhance the
broadcast service for Rural America.

> **D. The Public Telecommunications Facilities Program Should be Fully
> Funded**

Lastly, APTS urges the Administration to continue to support full
funding of the Public Telecommunications Facilities Program (PTFP)
within the Department of Commerce. This critical program provides much
needed funding for digital capital construction, improvement and repair
and will continue to assist the smooth roll-out of the digital
transition for public broadcasting. However, the President's Fiscal Year
2004 Budget proposes eliminating any new appropriations for PTFP, except
for a minimum amount designed to ensure the monitoring of existing
grants and miscellaneous administrative costs.[^14]

PTFP is a competitive, matching-grant program created for the purpose of
building and repairing public broadcasting's facilities and equipment.
Established in the 1960s, PTFP is the primary provider of federal
funding for public television equipment and infrastructure. As such,
PTFP has played an important role in the federally mandated transition
from analog to digital technology. Of the approximately \$300 million
that the federal government has provided to date for the digital
conversion, just over \$130 million, or slightly over 40 percent, has
been funded through PTFP.

Although not a large program by federal standards, PTFP plays an
indispensable role in providing seed money for infrastructure --
attracting many more non-federal dollars, which in turn deliver
innovative new programs and services. In a sense, PTFP is to public
broadcasters what venture capital markets are to private technology
firms: investing in physical capital to increase innovation,
productivity and overall quality in the services provided.

For example, in 2003, NTIA awarded 56 grants totaling \$25 million to
licensees in 31 states covering 103 stations. Those 2003 PTFP grants
once again represented a solid investment for the federal government, as
they helped to attract many times more non-federal dollars to public
television in the form of matching funds to fulfill the terms of the
grant, and funding to provide the new digital services made possible by
the station's upgrade as a result of the PTFP award.

Public television stations are seeking \$55 million to be appropriated
to PTFP for fiscal year 2005. Without adequate funding through PTFP,
public television stations will be hard-pressed to continue the purchase
of much-needed equipment and to continue with necessary analog and
digital repairs during the digital transition. We request that the
Administration support our FY 2005 funding request and include continued
funding for PTFP in the President budget for fiscal year 2006.

**Conclusion**

For the above stated reasons, public television is interested in
exploring the possibility of an early return of analog television
spectrum and urges the Administration to support the necessary changes
in federal policy in furtherance of this goal. This includes mandatory
carriage of digital signals on cable and satellite platforms, and a
means of assuring that the remaining over-the-air analog viewers,
particularly those that are disadvantaged, have access to set-top
converters that would allow them to receive digital signals. In
addition, public television urges the Administration to support FCC
rules to authorize the operation of digital translators and on-channel
repeaters to ensure continuity of service and to bring the digital
revolution to rural America. Lastly, public television urges the
Administration to continue to provide full funding of the Public
Telecommunications Facilities Program (PTFP) within the Department of
Commerce.

Respectfully submitted,

[/s/ John M. Lawson\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_]{.underline}

John M. Lawson

President & CEO

Lonna M. Thompson

Vice President & General Counsel

Andrew D. Cotlar

Assistant General Counsel

Association of Public Television Stations

666 Eleventh Street, NW, Suite 1100

Washington, D.C. 20001

[www.apts.org](http://www.apts.org/)

Telephone: 202-654-4200

Fax: 202-654-4236

March 18, 2004

**APPENDIX A: Digital-Only Broadcasting**

![](media/image1.jpeg){width="5.09375in" height="1.5208333333333333in"}

**[DIGITAL-ONLY BROADCASTING]{.smallcaps}**

## ***[A Roadmap for Early Return of Public Television's Analog Spectrum]{.smallcaps}***

Written by:

**[Andrew D. Cotlar]{.smallcaps}**

Assistant General Counsel

The Association of Public Television Stations

March 2004

**Executive Summary**

The American media landscape is undergoing a fundamental transformation
as the television broadcast service transitions to a wholly digital
infrastructure. Public television stations have embraced this transition
as a means to revitalize and expand the distribution of noncommercial
educational broadcast services. Yet despite this great promise, and the
best efforts of the FCC, Congress and the broadcasting industry, it is
likely that few communities will have successfully crossed the bridge to
digital-only broadcasting by the projected date of 2006. A more
protracted digital broadcast transition is highly probable.

However, it has quickly become apparent that the costs of a protracted
transition could be severely detrimental to the financial health of
public television stations. There are therefore major advantages for
public television stations to end analog transmission and embrace a date
certain for converting to digital transmission only. First, it is
projected that analog cessation would save public television \$36
million dollars a year in analog electricity costs. Second, early return
of analog spectrum would allow public television stations to focus all
of their energy and resources on the future, rather than on an aging
analog distribution system. Third, it could help public television in
securing post-transition digital carriage on cable and satellite systems
-- either through direct negotiations, FCC regulation or legislation.
Finally, it could give public television stations crucial leverage in
any efforts to retain the proceeds from the subsequent government
auction of analog TV spectrum.

The following white paper explores the possibilities and conditions
under which public television could support either a date-certain or
early return of analog spectrum. It explores two potential models to
achieve this end and discusses the successful digital transition
underway in Europe for purposes of comparison. In addition, this paper
examines in turn the following six critical policy questions.

-   *What is public television's "universal service" responsibility for
    serving the remaining over-the-air analog audience, and what do we
    know about the population of viewers who get all or a combination of
    their programming through over-the-air analog transmissions?*

-   *How reliable is the ATSC Standard for over-the-air digital
    reception?*

-   *What are the costs for consumers to purchase digital equipment and
    receive digital signals?*

-   *What partnerships does Public Television need in order to
    successfully return analog spectrum early?*

-   *What regulatory and legislative strategies are necessary to achieve
    early return of analog spectrum?*

-   *Is the European experience applicable to the United States?*

Lastly, this paper presents a compressed outline of a possible action
plan to implement digital-only broadcasting. This plan suggests the
continuation of FCC policy to encourage band-clearing, coupled with
amendments to the Communications Act to establish a series of rolling
"hard" transition dates (based on DMA, over-the-air reliance, or some
other objective measure) and to mandate a gradual decrease in analog
power to ensure a "fade to black." The plan also suggests that some
limited subsidy be created to ensure that the economically disadvantaged
have access to digital signals when analog service ceases. This would
most likely come in the form of a one-time subsidy or tax credit for the
purchase of inexpensive over-the-air set-top boxes. To supplement
over-the-air reception, the plan also calls for changes to the
Communications Act to either mandate full cable and satellite carriage
of digital signal after the transition or, alternatively, to mandate the
seamless inclusion of ATSC tuners in all digital cable and satellite
set-top boxes. In addition, the plan suggests that there be a
comprehensive and complete publicity campaign regarding the timing of
analog cessation and the means of continuing to receive broadcast TV
signals, modeled on the success of the Berlin approach. The plan also
suggests that a successful transition to digital-only broadcasting can
only occur through the strategic partnership of public broadcasters,
commercial broadcasters, equipment manufacturers, consumer and affinity
groups and others. Lastly, the plan notes that a transition to
digital-only broadcasting could be facilitated (but is not dependent on)
the creation of the U.S. equivalent to Britain's Freeview service in
order to encourage consumer adoption of digital over-the-air services
through robust market forces.

**TABLE OF CONTENTS**

Executive
Summary............................................................................
i

Table of
Contents..............................................................................
iii

I. The Media
Landscape................................................................
1

A. The DTV
Transition......................................................... 1

B. The Public Television Digital
Build-Out................................. 3

C. Advantages of Early Analog
Return....................................\... 5

D. Early Analog Return: Two
Models........................................ 6

1\. Voluntary Early Return Under Current FCC Rules............ 6

2\. Mandatory Early Return Pursuant to Legislative

> Changes to the Communications Act............................. 7

E.  The European
    Experience................................................... 7

> 1\. Berlin-Brandenburg: The First Digital-Only Region........... 8
>
> 2\. United Kingdom: From Pay DTV to Freeview.................. 9

F. Issues of
Concern............................................................. 10

II\. Preserving Universal
Service......................................................... 11

A.  Universal Service: The
    Challenge.......................................\... 11

> 1\.
> Background.........................................................\...
> 11
>
> 2\. Exclusive Reliance on Over-the-Air Reception.................. 12
>
> 3\. Reliance on Over-the-Air Reception for Additional
>
> Television
> Sets........................................................ 14

4.  Analog Cable Subscribers...........................................
    14

5.  Satellite
    Subscribers.................................................. 15

> B Universal Service: Potential
> Solutions..................................... 15
>
> 1\. Subsidies or Tax Credits to Encourage Digital Cable or
>
> Satellite
> Subscription................................................. 16

2.  Subsidies or Tax Credits for the Purchase of Over-the-

> Air Set-Top Boxes....................................................
> 18

3.  Analog "Fade to Black"..............................................
    20

4.  Public
    Outreach........................................................ 21

5.  United States
    Freeview.............................................\... 21

III\. How Reliable is the ATSC Standard for Over-the-Air Digital
Reception?\...\..... 22

IV\. What are the Costs for Consumers to Purchase Digital Equipment and

Receiver Digital
Signals?\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
25

A.  Integrated Digital Television Sets with ATSC
    Receivers.................. 25

B.  Over-the-Air Conversion Set-Top
    Boxes.................................\... 27

C.  Computer PC
    Cards.............................................................
    27

D.  Antenna
    Equipment.............................................................
    27

V. What Partnerships Does Public Television Need In Order to

Successfully Return Analog Spectrum
Early?\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
28

VI\. What Regulatory and Legislative Strategies Are Necessary to Achieve

Early Return of Analog
Spectrum?\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....
29

A. Changes to the Communications Act: Deletion of the Market-by-

Market Extension
Provision.................................................. 29

B.  Partial Subsidies for the Economically Disadvantaged to Access

> Digital
> Signals..................................................................
> 29

C.  Digital Cable
    Carriage......................................................... 29

D.  Digital Satellite
    Carriage...................................................... 30

E.  ATSC Tuners in Digital Cable and Satellite Set-Top
    Boxes.............. 31

VII\. Is the European Experience Applicable to the United
States?\...\...\...\...\...\...\...\...\.... 32

VIII\. Digital-Only Broadcasting: A Possible Action
Plan................................ 35

Appendix A: 47 U.S.C. §
309(j)(14).......................................................... 36

Appendix B: Digital Cable Subscription Rates and Analog DBS Subscription
Rates.. 37

Appendix C: Over-the-Air Reception Statistics from Highest Percentage of

Over-the-Air Reliance to
Lowest.............................................. 39

I.  **[The Media Landscape]{.smallcaps}**

***A. The DTV Transition***

Federal law requires that after December 31, 2006, all television
licensees must broadcast solely in digital unless the Federal
Communications Commission ("FCC") extends the deadline in a particular
local television market because, among other factors, direct DTV
reception, or indirect reception of DTV signals via cable or satellite,
is not widely available to at least 85 percent of households in that
market. In this regard, extensions of the deadline occur under any one
of the three following circumstances:

> \(A\) one or more of the stations in that market licensed to or
> affiliated with one of the four largest national television networks
> is not broadcasting a digital signal;
>
> \(B\) digital-to-analog converter technology is not generally
> available in that market; or
>
> \(C\) fifteen percent or more of the television households in the
> market do not subscribe to a "multichannel video programming
> distributor" that carries the DTV signal of each of the television
> stations broadcasting in DTV in the market, and do not have either:
>
> \(1\) at least one DTV television receiver or
>
> \(2\) at least one analog television receiver equipped with
> digital-to-analog converter technology.[^15]

At the end of the DTV transition, the spectrum not needed for digital
operation must be returned to the federal government for reallocation
through auctions.[^16]

To initiate this conversion, the FCC allocated to nearly all full-power
broadcast television stations an additional 6 MHz channel with which to
begin digital broadcasts,[^17] required these stations to construct DTV
facilities according to a graduated schedule,[^18] and set forth
operational rules governing the nature of digital broadcast operations,
including requirements concerning replication of the analog coverage
area,[^19] maximization beyond the analog coverage area,[^20]
analog-digital simulcasts,[^21] minimum hours of operation,[^22] and
penalties for unexcused failure to construct digital facilities on
time.[^23] A key feature of the FCC's plan to migrate television
broadcast operations solely to digital operation was a transition period
during which television licensees would be required for a period of time
to operate both their analog and their digital stations. In this regard,
it was determined that a transitional period was necessary to ensure
continuity of service until digital reception capability becomes so
widespread that the cessation of analog service would create a minimal
adverse impact on the public.[^24]

While a successful transition to a fully digital broadcast service may
seem to simply be a matter of time and consumer acceptance, there are a
number of factors affecting the pace of the digital transition. Such
factors include the widespread distribution of digital programming
content, an effective means by which digital programming content is
protected against illegal copying and distribution, the inclusion of
over-the-air receivers in all DTV sets or related devices, standards for
the connection of "cable ready" sets to cable systems, and carriage of
local broadcast DTV signals by multichannel video programming
distributors, such as cable or satellite. Recently, the FCC has made
great strides to address all of these issues, save the remaining issue
of cable carriage. It has encouraged the production of quality digital
content.[^25] It has recently adopted rules mandating that by July 1,
2005 all digital equipment capable of receiving broadcast digital
signals should recognize a "broadcast flag" designed to protect digital
broadcast content from illegal piracy.[^26] It has mandated the
phased-in inclusion of over-the-air digital tuners in all television
sets over a certain size.[^27] And it has conditionally approved an
industry agreement to facilitate the connection of consumer electronics
reception equipment and digital cable systems.[^28] While the FCC has
yet to effectively deal with the issue of transitional and multicast
cable carriage of digital broadcast television signals, having last
issued a tentative decision in January of 2001 that was not favorable to
broadcasters, the FCC has been reconsidering that decision and is slated
to resolve the matter in the first quarter of 2004.

B.  ***The Public Television Digital Build-Out***

Since the inception of the digital proceedings, Public Television has
played a leadership role in, and has been an active participant in, and
enthusiastic proponent of, digital television.[^29] With its higher
quality images and sound, and its inherent flexibility to broadcast
either a high-definition or multiple standard definition streams, along
with additional streams of data, digital television gives public
television stations new and exciting tools to expand their educational
mission in ways that were not possible in the analog world.

For instance, public television stations are regularly producing new and
exciting high-definition digital programming for national, regional and
local distribution. In addition, multicasting will bring new services to
the public that could not be made available under the constraints of a
single analog program stream, including an expanded distribution of
formal educational services, workforce development services, children's
programming, locally-oriented public affairs programming, and
programming addressed to traditionally unserved or underserved
communities. Lastly, a number of public television stations have plans
to provide various educational or public safety services over their
digital allotment through "datacasting."

However, despite the promise that digital broadcasting holds to enhance
and expand the educational mission of public television, public
television stations are facing a number of obstacles to completing the
digital build-out. Although the digital construction deadline for public
television stations was May 1, 2003, 197 public stations had applied to
the Commission for six month extension of time to construct their
digital facilities due to a number of factors that were beyond their
control, including a critical lack of funding, technical problems,
equipment delays, weather problems and legal issues that have made
conversion difficult.[^30] All of the initial noncommercial applications
for extensions of time have been either approved by the FCC or been
rendered moot by the station having later gone on-air with a digital
signal. By December 24, 2003, the FCC reported that 130 public
television stations had applied for a second six month extension of
time.[^31] Presently, 237 public television stations out of 357
CPB-qualified stations (or 66%) are on-air with a digital signal. Those
stations serve markets that include 85% of U.S. television households,
although actual reception by households may be lower because many
stations are on-air with low power facilities pursuant to FCC-approved
special temporary authority.[^32]

Regarding the financial cost of the digital conversion, it has been
estimated that it will cost public television stations a total of \$1.63
billion to fully convert.[^33] While public television stations have
raised a substantial amount of digital conversion funds, totaling \$733
million, from state, local and private sources,[^34] to date, the
Federal government has

allocated only \$313.84 million.[^35] In addition, a number of public
television stations are facing severe financial challenges due to
current economic conditions and state budget crises. Meanwhile stations
throughout the nation are simultaneously facing the increased operations
cost associated with operating two stations -- one analog and one
digital---until the DTV transition has run its course.[^36] In fact the
analog electricity costs alone for public television stations during the
transition are estimated to be approximately \$36 million each year.
This figure represents almost 10% of the amount of money Congress
appropriated to the Corporation for Public Broadcasting (CPB) for FY
2003 -- and almost 20% of the total amount of money CPB distributed to
public television stations last year as CSGs.

C.  ***Advantages of Early Analog Return***

It may, therefore, be in the best interests of public television
stations to consider the advantages of an early cessation of analog
service.

-   First, it is projected that analog cessation would save public
    television \$36 million dollars a year in analog electricity costs.

-   Second, it has been argued that early return of analog spectrum
    would allow public television stations to focus all of their energy
    and resources on the future, rather than on an aging analog
    distribution system.

-   Third, it could help public television in securing post-transition
    digital carriage on cable and satellite systems -- either through
    direct negotiations, FCC regulation or legislation.

-   Finally, supporting a hard date for cessation of analog service
    could give public television stations crucial leverage in any
    efforts to retain the proceeds from the return and government
    auction of the analog spectrum.

In view of the above, in an APTS survey in the summer of 2003, 88
percent of APTS member stations who participated in APTS' online
consultation indicated they would support a hard date for cessation of
analog service in return for certain policy concessions.

D.  ***Early Analog Return: Two Models***

To effectuate an early return of analog spectrum, public television
stations may enter either of two courses of action. On one hand, they
may voluntarily return their analog allotments early under the current
regulatory structure. On the other hand, they may support legislative
changes to the Communications Act to ensure a mandatory hard date for
return of analog spectrum.

> ***1. Voluntary Early Return Under Current FCC Rules***

Under the first course of action, public television stations may
voluntarily return their analog allotments to the FCC early within the
confines of current regulatory policy. Current FCC policy states that if
a television licensee with dual analog-digital channels wishes to return
one of its channels to the FCC prior to the end of the DTV transition,
it must demonstrate that cessation of analog service is in the public
interest. The public interest considerations vary slightly depending on
the channel allotment that is being returned.

If a station returns its analog channel in order to facilitate the
clearing of channels 59 through 69, early return of the spectrum is
presumed to be in the public interest if the applicant demonstrates
compliance with a number of public interest factors, *including a
demonstration that there would not be a loss of a community's sole
service on a channel reserved for noncommercial educational broadcast
service*.[^37] This last requirement may be particularly problematic for
those public television stations which are the sole station in their
community but less problematic for stations operating in markets with
multiple public television stations (so-called "overlap" markets).

With regard to the early return of channels 52 through 58, an applicant
must demonstrate compliance with substantially similar public interest
factors -- including the same requirement that there *not be a loss of a
community's sole service on a channel reserved for noncommercial
educational broadcast service*. [^38] Because the FCC has not required
mandatory band-clearing for channels 52 through 58, it will not presume
that cessation of analog service for those channels would be in the
public interest. Following this model, Commonwealth Broadcasting,
licensee of WNVT in Goldvein, VA successfully petitioned the FCC to
return its analog channel allotment at reserved channel 53 and to
operate solely in digital on reserved channel 30.[^39] WNVT was required
to demonstrate that early return of analog spectrum was in the public
interest and to assure the FCC that analog service would be replicated
either through down-converted analog cable subscription or the purchase
of DTV receivers for certain local schools. Importantly, WNVT was not a
sole noncommercial educational service in any community it served, so
its applicability as a model for other public television stations, which
may in fact be the sole NCE service in their community, may be limited.

Lastly, the FCC has not yet considered what public interest factors will
apply where a licensee desires to return channels 2 through 51 prior to
the end of the DTV transition.

> 2\. ***Mandatory Early Return Pursuant to Legislative Changes to the
> Communications Act***

An alternative approach would be to support legislative action to delete
the market extension provisions of the Communication Act. This would
have the effect of creating a mandatory hard date for cessation of
analog service without having to apply to the FCC and satisfy the public
interest factors outlined above. Although December 31, 2006 would be the
current default date of analog return, it is important to note that a
mandatory hard-date may be later than the end of 2006 and need not be
the same in all markets. Rather, it may be expedient to create several,
phased-in hard dates, with some markets having an earlier deadline and
other markets having a later deadline (based, perhaps, on DMA size,
geography, over-the-air reliance, or some other objective measure). In
addition, it may be expedient to mandate that stations in markets slated
for analog shut-off should slowly reduce the power of their analog
operations according to an established schedule to effectuate a "fade to
black." These possibilities are considered in more detail at Part II.B.3
of this paper.

E.  ***The European Experience***

While the U.S. has yet to implement mandatory early return of analog
spectrum, some portions of Europe have already completed portions of
this process or will soon

require it.[^40] In this regard, the experience of Berlin-Brandenburg
and the United Kingdom may be instructive.

***1. Berlin-Brandenburg: The First Digital-Only Region***

In Berlin-Brandenburg, an area with high cable and satellite
penetration,[^41] the government successfully shut down analog
television service on August 4, 2003 -- the first region in the world to
go digital-only. Berlin engaged in a massive publicity program through a
wide range of media, coupled with a subsidy for the purchase of
over-the-air set-top boxes for those on the social welfare rolls, to
successfully shut down all TV broadcast analog operations with a minimum
of social discomfort.[^42]

The analog shut-off occurred in three stages. At stage one, at least one
high-power analog channel was switched to digital transmission to
demonstrate the quality of digital television broadcasts and to provide
some orientation for the households affected regarding the need to
purchase new receivers. During stage two, (a) all high-power
transmitters were switched to digital transmission; (b) the analog
transmissions of all national commercial broadcasters ceased; and (c)
"public-sector" services continued analog transmission but only via
lower power frequencies. Lastly, at stage three, all analog frequencies
were switched off completely.[^43]

The publicity program entailed a concerted communication with the public
from October of 2002 through August of 2003 and involved (a) broadcast
spots, running bar information and local news and current affairs
coverage by broadcasters; (b) a letter sent to every home in February of
2003; (c) leaflets, brochures and newsletters distributed in local
shops; (d) close communication with the Berlin tenants' association and
local consumer associations; (e) a telephone hotline; and (f) an
Internet website.[^44] The costs were shared between broadcasters and
the Berlin-Brandenburg regulatory authority (mabb) and remained well
below the budgeted € 1.2 million.[^45]

To ensure a successfully switchover in a socially acceptable manner, the
authorities devised two separate subsidy programs. The first subsidy
program was private and market-driven, with the receiver industry
providing digital-to-analog over-the-air set-top boxes for € 8.50 per
month to entice purchase by low income homes. However little use was
made of this offer.[^46] The second subsidy was targeted to homes
entitled to a TV set under German social security rules. Homes dependent
on terrestrial reception were entitled to a government-paid subsidy of
25% for boxes that cost approximately € 100 (equivalent to \$127) each
over an estimated 6,700 sets.[^47]

***2. United Kingdom: From Pay DTV to Freeview***

In the United Kingdom, over-the-air digital television was initially
introduced as a subscription service (ITV Digital), which subsequently
failed to gain consumer acceptance due to a number of factors.[^48]
After the government reclaimed spectrum from the failed subscription
venture and reassigned it, the BBC, BSkyB and Crown Castle (a
transmitter company) engaged in a joint marketing effort, called
Freeview, whereby homes with the ITV Digital boxes could receive about
30 over-the-air channels (in addition to other services like music
channels) for free. Additional households could purchase over-the-air
digital set-top boxes to allow them to view digital signals on their
analog sets. Prices for the boxes have dropped to an average of £80-100
(equivalent to \$136-170).[^49] By December 17, 2003, there were 1.8
million sales, with average sales approaching 100,000 per month (and in
the middle of November, 100,000 sales in a week), prompting projections
that Freeview would be in 2.5 million homes and that 50% of the 24.9
million homes would have digital television by the end 2003.[^50] Of
those households that have adopted Freeview, consumer profiles
apparently reflect those of the general population, with Freeview
attracting consumers who would not ordinarily consider subscribing to a
pay television service.[^51] Interestingly, households with Freeview
still watch more than half of their total viewing via the analog signal,
bypassing their Freeview box altogether.[^52] The UK plans on ceasing
all analog television broadcasts by 2010.[^53]

F.  ***Issues of Concern***

Despite the apparent advantages of some sort of early analog return
(either voluntary or mandatory), and the apparent success of digital
broadcasting in two European nations, Public Television in the United
States must consider a number of issues of concern as well, including
the following, which will be addressed in turn:

-   *What is public television's "universal service" responsibility for
    serving the remaining over-the-air analog audience, and what do we
    know about the population of viewers who get all or a combination of
    their programming through over-the-air analog transmissions?*

-   *How reliable is the ATSC Standard for over-the-air digital
    reception?*

-   *What are the costs for consumers to purchase digital equipment and
    receive digital signals?*

-   *What partnerships does Public Television need in order to
    successfully return analog spectrum early?*

-   *What regulatory and legislative strategies are necessary to achieve
    early return of analog spectrum?*

-   *Is the European experience applicable to the United States?*

II. **[Preserving Universal Service]{.smallcaps}**

> ***A. Universal Service: the Challenge***
>
> ***1. Background***

Public Television in the United States operates under a federal mission
to provide a free, noncommercial educational television service to all
Americans.[^54] This is not only a statutory mission but also a
political expectation that provides the condition for continued federal
funding. Without additional safeguards, this mission may be compromised
if the free, over-the-air analog service is replaced with a free digital
over-the-air service that requires either a substantially prohibitive
investment in reception technology or a prohibitively expensive
subscription to a digital pay service for some Americans. Thus, if
analog over-the-air service were to be shut-down and replaced with its
digital counterpart, some mechanism, or combination of mechanisms, must
be in place, as a matter of political expediency and fundamental
fairness, to ensure continuity of service for the following
constituencies:

-   Consumers who, for whatever reason, rely exclusively on over-the-air
    reception;

-   Consumers who subscribe to a digital multichannel television service
    but who possess additional television sets that are not connected;

-   Consumers who subscribe to analog cable service only, unless their
    cable system is willing to down-convert a DTV-only station to analog
    for their analog customers; and

-   Consumers who subscribe to a local-into-local service via satellite,
    which relies on the uplink of local analog stations pursuant to the
    Satellite Home Viewer Improvement Act of 1999.

To understand the extent and nature of the problem, and to craft
effective solutions, it is necessary to examine how many households rely
on over-the-air reception -- either directly or indirectly---and to
understand the reasons for such reliance.

> ***2. Exclusive Reliance on Over-the-Air Reception***

Approximately 15 percent of all U.S. television households rely
exclusively on over-the-air reception of television signals ("OTA
households"), although the figure may be somewhat higher depending on
the methodology used to count such households.[^55] This statistic,
however, is an average. Over-the-air reliance is not uniform throughout
the nation because in some geographic areas, reliance on over-the-air
reception may be greater than in other areas.[^56] For a detailed
information on the percentage of television households that rely on
over-the-air reception in each DMA, see Appendix C to this report.

Among those households that rely exclusively on over-the-air reception,
we know the following, based on Nielsen data.

-   OTA households are much more likely to have lower incomes and much
    less likely to be in the highest income category:

 

  ---------------------- ------------- ------------- ----------------------
  HH Income              National      OTA           Difference
                         Average                     

  **Less then \$40K**    **44%**       **62%**       **18%**

  \$40K to \$60K         18%           18%           0%

  \$60K +                38%           20%           18%

  \$75K +                27%           13%           14%
  ---------------------- ------------- ------------- ----------------------

>  

-   African-American households (defined by Nielsen) are more likely to
    rely on OTA (18% OTA vs 12% general population).

-   Households headed by women with children are slightly more likely to
    rely on OTA.

-   Older Americans (55+) are slightly [less]{.underline} likely to rely
    on OTA.

-   There was no significant difference in the following categories:

> o        Head of households with college attainment (4+ years of
> college)
>
> o        Location of the households in a metro, suburban, small town
> or rural county.

On first blush it would seem that the socially disadvantaged segments of
the United States population are more likely to rely exclusively on
over-the-air reception, including the poor, the elderly and minorities.
However, family income is not necessarily a good predictor of
over-the-air reliance. For instance, while 62% of households with less
than \$40K income per year demonstrate reliance, the converse is even
more striking: 48% do [not]{.underline} rely exclusively on over-the-air
reception. These results are consistent with the findings of a 1998
study that concluded that household income was not a significant
influence on the decision to subscribe, although it did influence
whether subscribers would purchase additional cable services beyond the
basic tier.[^57] Based on data from a variety of sources, the 1998 study
concluded that "even for households in the lowest income bracket, the
decision not to subscribe to cable television is more often the result
of a preference than an inability to afford services."[^58] In fact one
study from 1989 established that most non-subscribers were former
subscribers, suggesting that consumer satisfaction with a cable
operator's service and offerings plays an important role in determining
cable subscribership, and that the motivation to subscribe initially
comes from a desire to obtain the unique video programming supplied by
cable operators.[^59]

Nor does the age of a viewer determine with any certainty the likelihood
of reliance on over-the-air reception. As the evidence above
demonstrates, older Americans aged 55 and above are slightly less likely
to demonstrate reliance, a fact confirmed in a recent telephone survey
of 1024 individuals conducted by Magid Media Futures. In this survey, of
those individuals aged 25 and older without any multichannel television
service, only 30% were 55 years or older (the percentage was lower (18%)
in an on-line survey that slightly favored younger adults). By way of
contrast, 25% fell within the 35-44 age group, and 26% fell within the
25-34 age group.[^60]

In addition, while according to the Nielsen data above, African American
households are slightly more likely to rely on over-the-air reception,
other studies have indicated that African Americans and Hispanics
constitute a larger proportion of cable subscribers than
non-subscribers.[^61]

> ***3. Reliance on Over-the-Air Reception for Additional Television
> Sets***

Numerous television households that do subscribe to a multichannel
television service possess additional televisions that are not connected
to either cable or satellite. In this regard, it has been estimated that
there are 34.5 million such sets.[^62] Cessation of service to these
television sets could be politically problematic from a consumer point
of view, although from a legal point of view, the Communications Act
does not account for additional, unconnected television sets. In fact,
by statute, the cessation of analog over-the-air service may continue
even if additional television sets in a household are not connected to a
multichannel television service (See Appendix A).[^63]

> ***4. Analog Cable Subscribers***

In addition, the cessation of analog over-the-air television service
also has the potential to affect analog cable subscribers. Cable systems
typically retransmit the programming of local television stations from
an off-air broadcast signal collected at the cable system's headend,
although in some circumstances where it is not possible to deliver a
good quality signal over the air to the headend, a broadcaster may
employ fiber, microwave or other means. If the analog broadcast service
were to cease, cable systems would have to either down-convert a digital
signal for analog customers or encourage analog customers to upgrade to
a digital subscription at additional cost.

> ***5. Satellite Subscribers***

Lastly, the cessation of analog over-the-air television service will
also affect satellite television subscribers as well. Pursuant to the
Satellite Home Viewer Improvement Act of 1999 (SHVIA), satellite
television providers like EchoStar and DirecTV retransmit the analog
broadcast signal of local television stations via satellite back into
those stations' local markets. If a satellite program provider
retransmits one local broadcast station, it must rebroadcast all local
broadcast stations in a market.[^64] Like cable, local stations
typically deliver their signal over the air to a local receive site (or
via other means if a good quality signal cannot be delivered via off-air
reception). There is currently no provision under SHVIA for mandatory
carriage of digital broadcast signals.[^65] Consequentially if analog
service in a market ceased, satellite subscribers would lose access to
local signals unless those signals were delivered via non-broadcast
technology.

B.  ***Universal Service: Potential Solutions***

Because the cessation of analog broadcast television could likely lead
to the disenfranchisement of these four groups of consumers, it is
important to consider a targeted, effective and cost-efficient means for
preserving access to over-the-air digital broadcast signals. In lieu of
such a targeted remedy, American consumers would have to rely on the
availability of integrated digital television sets with ATSC tuners to
receive digital broadcast signals. Such sets are still quite expensive
with little evidence that there will be significant decreases in cost in
the near future. In addition there is much consumer confusion regarding
the range of digital television products and little demonstrated
interest in purchase. Detailed findings regarding the cost, consumer
understanding, and consumer acceptance of digital equipment --
particularly integrated digital television sets---can be found at Part
IV of this report.

Without a doubt, under current circumstances to rely on the widespread
availability and consumer acceptance of integrated DTV television sets
would be folly. Therefore, to supplement the market for integrated
digital television sets equipped with ATSC receivers, and to address the
four constituencies that may be harmed by the cessation of analog
broadcast service, policy makers concerned about preserving universal
service may want to consider a range of potential solutions. These
include:

-   ***Subscription Subsidies or Tax Credits.*** A limited
    income-triggered subsidy for digital cable or satellite
    subscription, either in the form of direct payments or a tax
    incentive, coupled with full, mandatory carriage of digital
    television broadcast signals on these services (or a tuner
    requirement for cable and satellite set-top boxes).

-   ***Over-the-Air Set-Top Box Subsidies or Tax Credits.*** A similar
    income-triggered subsidy program for the one-time purchase of
    digital over-the-air set-top boxes, coupled with full, mandatory
    carriage of digital television broadcast signals on cable and
    satellite (or a tuner requirement for cable and satellite set-top
    boxes).

-   ***Analog "Fade to Black."*** A gradual cessation of analog service,
    whereby (a) analog service would be shut off on a rolling geographic
    or market basis, coupled with (b) a decrease in analog power levels
    over time as digital broadcasters increase to full power.

-   ***Publicity.*** Adequate and continuing publicity through a wide
    range of media concerning the schedule for the cessation of analog
    broadcast service and options for continuing to receive broadcast
    television.

-   ***United States Freeview.*** The creation of a cooperative
    marketing effort to package free digital over-the-air services in a
    way parallel to the Freeview service that was introduced in the
    United Kingdom.

Each of these elements will be discussed in turn. An effective means of
ensuring universal service would likely involve the one-time subsidy for
over-the-air set-top box purchase, coupled with an analog "fade to
black," adequate and continuing publicity, and possibly the creation of
a Freeview-like service in the United States. Subsidies for the purchase
of cable or satellite subscriptions, while having the advantage of
avoiding reliance on over-the-air reception, would, however, involve
prohibitively high recurring costs.

> ***1. Subsidies or Tax Credits to Encourage Digital Cable or Satellite
> Subscription***

One possible means to ensure universal access would be to create
subsidies or tax credits for qualified individuals to purchase a
subscription to digital cable or satellite services. One of the signal
advantages of this approach would be to ensure universal service without
relying on the effectiveness of direct over-the-air reception. While it
is true that only 20% of all TV Households (or 30% of all cable
subscribers) subscribe to digital cable (for comparisons with satellite
subscription, which carries analog local channels only, see Appendix
B),[^66] a subsidy and/or tax credit targeted to households that fall
below a specified income may increase this number. On one hand, it may
be more effective to use direct subsidies for poorer households, as tax
credits typically do not motivate the behavior of households that pay
little in the way of taxes. On the other hand, tax credits may be a more
economical means of motivating behavior with fewer budgetary and
political implications than a direct subsidy.

Nevertheless, the cost of a continuing subsidy (either through direct
payment or tax credits) would be both [prohibitively high and
recurring]{.underline}. Assuming a basic average digital cable
subscription rate of \$660 per year (\$55 per month[^67] x 12), and a
50% subsidy targeted only to households below \$25,000 per year in
income (30,261,220 households according to the 2000 Census), the cost
would be a staggering \$9,986,202,600 [each year]{.underline}. A more
conservative 25% subsidy would still cost \$4,993,101,300 per year. One
would project similar costs for a digital satellite subsidy if local
digital carriage were available.

Even if this approach were economically feasible, it would also require
full mandatory carriage on both cable and satellite systems, something
that would likely require legislative changes that would be strenuously
opposed by the affected industries. Moreover, with regard to satellite
carriage of digital signals, it is unclear at this time whether
satellite systems have the technical capability to carry all local
digital signals, although presumably if terrestrial analog service were
turned off and replaced with digital signals, the burden on satellite
capacity would be less than with analog, due to the inherent
efficiencies of digital signals and compression technology.

Moreover, in lieu of mandatory digital carriage (which may be
politically problematic) a technological solution that might reduce the
burden on cable and satellite capacity could be a requirement that all
cable and satellite set-top boxes be equipped with ATSC tuners and A/B
switches that would enable consumers to switch back and forth seamlessly
between proprietary and free, over-the-air signals. This technology is
reportedly deployed in some DirecTV set-top boxes[^68] (Samsung sells a
set-top box with a DTV over-the-air receiver for \$500) and Time Warner
cable boxes. A requirement to include such technology in set-top boxes
would also likely require additional legislation. Moreover, it should be
noted that consistent over-the-air DTV reception frequently requires
something more than a normal indoor antenna, and may require the
installation or replacement of an outdoor directional antenna, making an
integrated set-top box solution potentially difficult.

-   **Summary of Advantages and Disadvantages**

    -   [Advantages]{.underline}

        -   Addresses needs of the disadvantaged and ensures universal
            service.

        -   Does not rely on direct over-the-air reception.

    -   [Disadvantages]{.underline}

        -   Cost of subsidy or tax credit is high and recurs on a yearly
            basis.

        -   Requires additional legislation

            -   Either full digital carriage on cable and satellite, or

            -   Mandatory VSB over-the-air tuners in cable and satellite
                set-top boxes (which may require installation or
                replacement of an outdoor directional antenna).

> ***2. Subsidies or Tax Credits for the Purchase of Over-the-Air
> Set-Top Boxes***

A second, and more likely, means to ensure universal service would be to
create subsidies or tax incentives for the purchase of at least one
over-the-air DTV conversion box in each qualified household. As
discussed above, this model was followed in Berlin, where the regional
government offered a 25% subsidy for the purchase of over-the-air
set-top boxes that could convert digital signals to analog.

Thomas Hazlett estimates that the cost to implement a similar program in
the United States would amount to a one-time cost of \$50 million.[^69]
However, at current costs at approximately \$400 per unit,[^70] and
assuming a 50% subsidy targeted at households below \$25,000 per year in
income, the one-time cost would be substantially more than that:
\$6,052,244,000. Under a more conservative 25% subsidy, the one-time
cost would drop to \$3,026,122,000. In addition, the above costs assume
the purchase of one set-top box per household. If the subsidy program
were to extent to the purchase of multiple set-top boxes in each
qualified household, in order to accommodate additional sets that rely
on over-the-air reception, the aggregate cost would be higher. On the
other hand, with mass production in a market the size of the United
States, the cost of set-top boxes could drop considerably. For instance,
in Britain, over-the-air set-top boxes, sold to receive the Freeview
service, currently retail between £80-100 (equivalent to \$136-170). It
is anticipated that with mass production, the cost could drop to £ 20
(\$34) in Britain.[^71] Assuming a conservative estimate of \$50 per
unit in the United States within the context of mass production and a
Freeview-type service, the one-time cost of a 50% subsidy would drop to
\$756,530,500 and a 25% subsidy would cost \$378,265,250.

Unlike the cable/satellite subscription subsidy program, a subsidy for
the purchase of set-top boxes would involve a substantially cheaper
one-time investment, rather than a recurring cost. In addition, no
legislation would be needed to require DTV carriage on cable and
satellite or mandatory VSB tuners in cable and satellite set-top boxes.

This approach also possesses some disadvantages, however. First, the
cost analysis above relies on the assumption of converting at least one
television per qualified household and does not address additional
television sets that rely on over-the-air reception, although this may
be less of an issue for disadvantaged households. Second, at the lower
end, over-the-air set-top boxes transmit only standard definition
programming and do not currently have the capability to convert and
display high-definition programming (even if it did have the ability to
convert HD, display would be problematic on an analog set). Most
importantly, however, this approach relies on the effectiveness of
over-the-air reception on consumer premises. In many cases, adequate DTV
reception requires something more than the usual indoor rabbit ears
consumers are familiar with, and in many instances may require the
installation or upgrade of directional rooftop antennas, either at the
consumer's home or, on the roof of a multiple dwelling unit for
apartment dwellers. This last issue will be discussed in more depth at
Part III of this paper.

-   **Summary of Advantages and Disadvantages**

    -   [Advantages]{.underline}

        -   Addresses needs of the disadvantaged and ensures universal
            service.

        -   No legislation would be needed to require DTV carriage on
            cable and satellite or mandatory VSB tuners in cable and
            satellite set-top boxes.

        -   Requires only a [one-time]{.underline} investment.

    -   [Disadvantages]{.underline}

        -   While lower than direct subsidies for cable and satellite
            subscription, cost is still high.

        -   At lower end, over-the-air set-top boxes transmit only
            standard definition programming, not high definition
            programming.

        -   Relies on the effectiveness of over-the-air reception, which
            may require the installation of new directional rooftop
            antennas in most cases.

> ***3. Analog "Fade to Black"***

Another means of making the transition to digital-only broadcasting
smoother would be to phase in the cessation of analog service through a
variety of means: a "fade to black" approach, rather than a "snap to
black."

One possible means would be to mandate a rolling market-by-market
turn-off, beginning with either the highest ranked DMAs, those DMAs with
the lowest over-the-air reliance, the most urban DMAs, or some other
objective measure. In this regard, the United Kingdom has explicitly
considered employing a similar approach by studying a geographic rolling
shut-down of analog service. As its Independent Television Commission
has observed:

> "One means by which DTT coverage could be increased prior to
> nationwide switchover, enabling the process to start earlier, would be
> to implement switchover in a rolling region-by-region manner rather
> than as a nationwide "big bang." With a rolling switchover process, as
> switchover were implemented in each region, the power of DTT
> transmissions within that region could be significantly increased,
> especially for any multiplexes for which analogue conversions were
> undertaken."[^72]

This approach has been thought to have a number of advantages from a
social standpoint.

> "In addition to potential coverage and reception benefits, a rolling
> switchover process seems likely to have substantial practical
> advantages. It would enable the considerable deployment of technical
> resources necessary to implement switchover to be broken down into
> manageable chunks and for the switchover process to be continually
> improved, building upon the experience gained in those regions which
> underwent switchover earlier. It should also enable the broadcasters
> to focus their investment on improving DTT coverage where it was
> needed most and, as a rolling process got underway, credibility could
> be built amongst consumers nationwide as they were persuaded that
> switchover was "for real", building momentum and, perhaps, encouraging
> some consumers to "future-proof" their next TV set."[^73]

A second and not inconsistent alternative would be to require that
analog stations gradually reduce power over time while DTV stations
would be required to increase to full power. To a certain extent, this
was the approach applied in Berlin, which as discussed above, required
that its public service broadcasters relocate to lower power channels
pending the transition. However, relocation is not necessary in the
United States, as stations could simply reduce their analog output power
over time according to an established schedule. As a result, more and
more over-the-air households would either lose analog service, or
experience a degradation in picture quality, but on a gradual basis
rather than on a single date. This approach would also have the
advantage of giving consumers time to adjust to the cessation of analog
service over time and to plan accordingly. It would also open up
spectrum for new non-broadcast technologies to use, as the gaps between
broadcast service areas gradually increase.

> ***4. Public Outreach***

In order to make the transition to digital-only broadcasting as socially
acceptable as possible, the government, with close coordination of the
private sector could also implement a comprehensive public outreach and
education effort. One model for this comes from Berlin, which, as
discussed above, involved a public-private partnership including: (a)
broadcast spots, running bar information and local news and current
affairs coverage by broadcasters; (b) a letter sent to every home with
details concerning the analog shut-off; (c) leaflets, brochures and
newsletters distributed through local retailers; (d) close communication
with local associations; (e) a telephone hotline; and (f) an Internet
website. Extensive use of the print press, radio and other advertising
methods (e.g. bus signs, billboards) could also likely be helpful to
ensure adequate notice to the populace concerning the cessation of
analog service.

> ***5. United States Freeview***

An additional means of making the transition to digital over-the-air
service easier for non-cable and non-satellite households would be the
creation of a cooperative marketing effort to package a free digital
over-the-air service, like the Freeview service in the United Kingdom.
Although an early return of analog spectrum could be accomplished
without establishing a United States Freeview service, it could present
a marketplace incentive to get over-the-air set-top boxes (or boxes with
VSB tuners) into the hands of consumers with a minimum of government
intervention. It could also revitalize the over-the-air service by
providing more channels than are available currently over-the-air
through an inexpensive and consumer friendly technology. In addition, if
successful, it could also evolve into a competitive multichannel video
service of its own, thus providing competition to cable and satellite
and reducing broadcasters' reliance on cable and satellite for the
distribution of their signals. Public television, consumer electronics
manufacturers, commercial broadcasters and others are exploring the
possibility of establishing such a service within the unique parameters
of the United States market.

III. **[How Reliable Is The ATSC Standard for Over-The-Air Digital
     Reception?]{.smallcaps}**

As discussed above, it is critically important to the preservation of
universal service, and to consumer and political expectations, that upon
the cessation of analog service, digital signals should be reliably
received in urban and rural environments. How reliable, therefore is the
ATSC standard for over-the-air digital reception?

A recent report by the Association of Maximum Service Television (MSTV)
indicates that current over-the-air digital reception is extensive and
reliable. As of October, 2003, MSTV found the following:

-   73.3% of U.S. television households were in markets where there were
    at least six over-the-air DTV facilities.

-   92.7% of the replication area populations of DTV stations on the air
    were being served by existing facilities.

-   At current power levels over 70 million U.S. DTV households were
    reached by six or more over-the-air DTV signals, 49 million U.S. TV
    households were reached by nine or more over-the-air DTV signals,
    and 30 million U.S. TV households were reached by 12 or more
    over-the-air digital signals.

-   The most popular television stations had operational DTV facilities
    that served most, if not all, of their replication areas. The
    weighted average audience market share for those stations was 81.6%
    of all viewing to local broadcast stations.[^74]

However, as Doug Lung has pointed out, this most recent report, like all
others, is based on projected coverage from computer model predictions
and does not take into consideration actual reception by receivers in
the field: the accuracy of the coverage conclusions is therefore based
on the accuracy of the underlying assumptions inherent in the predictive
computer model used, including assumptions about receiver performance.

> "My main concern \[is\] that the \[MSTV\] study was based on the FCC
> noise-limited threshold and OET-69 Longley-Rice coverage, not the 7-dB
> higher FCC "city grade" signal level or the even higher signal levels
> many studies have found are necessary for practical DTV reception,
> particularly when indoor antennas are used. ... \[M\]any, if not all,
> of the DTV receivers currently being sold do not meet the parameters
> used in the planning factors that are the basis of FCC coverage
> predictions. It is also well-known that Longley-Rice, as used on
> OET-69, over-predicts signal levels over most unobstructed paths. None
> of this invalidates the premise of the study, which compares current
> coverage to the coverage the FCC calculated in the DTV allocation
> table. With the possible exception of the use of the DTV "City Grade"
> signal level, there is no other widely accepted method for determining
> DTV coverage. While current DTV receiver performance can be estimated,
> the wide variations in performance make it difficult to specify what
> new planning factors should be used. Should the best DTV receivers be
> used, since they represent what most consumes will be buying, or
> should older receivers be included because they represent the
> installed base?"[^75]

Putting this general issue aside, a number of commentators have also
noted the difficulty with which digital signals are received in
multipath and mobile environments. Whether this arises from deficiencies
in current receiver design on one hand, or whether it is attributable to
an alleged deficiency in the ATSC standard itself on the other hand, is
a matter of considerable debate. To partially address this issue,
however, ATSC has developed a newly revised digital broadcast standard
called E-VSB, which it intends on putting to a membership vote in the
Spring of 2004.[^76] E-VSB alters, but doesn\'t replace, VSB by slowing
the data rate to 14-15 Mbps so the signal-to-noise ratio (S/N) decreases
to the 9.5-11 dB range from 15 dB. This is designed to ensure a more
robust transport stream to enhance reception in circumstances where
there is multipath interference (e.g. urban areas). In June of 2003, the
National Association of Broadcasters board approved of a resolution
supporting the introduction of E-VSB.[^77]

An additional issue that impacts reception concerns antennas. The
computer models typically used to predict DTV reception assume the use
of a rooftop antenna. In addition, anecdotal evidence in urban areas
indicates that a simple "rabbit-ear" type of antenna is insufficient to
enable consistent digital reception. To receive off-air digital signals,
consumers with DTV tuner-equipped electronics (either a set-top box or
integrated receiver) will have to either install or upgrade rooftop
antennas.[^78] In addition, there is some evidence that such antennas
must have directional capability in order to receive all the available
digital stations. For instance, in many communities, the public
television transmitter is not collocated with other broadcasters on
antenna farms. Thus, if the consumer antenna is oriented to receive
commercial broadcast signals, it may not adequately receive the public
broadcast signals emanating from a different geographic location. To
accommodate this problem, rooftop antennas must have the capability to
be rotated and adjusted from a remote location in the consumer dwelling.

A further issue arises in the context of multiple dwelling units, such
as apartment buildings or condominiums. If a rooftop antenna is required
for adequate digital reception, building owners of rental properties
will be required to upgrade or replace existing antennas for their
multiple tenants. In the context of condominiums or homeowners
associations, where the responsibility for antenna is on the individual
owner, condominium or homeowners association rules may interfere with
the placement of off-air antennas. Through its Over the Air Reception
Device Rule (OTARD) the FCC does purport to preempt unreasonable local
rules from interfering with the ability of consumers to install
equipment necessary to receive television signals. However, condominium
and homeowners associations may (and still do) impose a number of
"aesthetic" restrictions that may make installation uncomfortably
difficult or expensive, if not unduly so.[^79]

IV. **[What Are the Costs For Consumers to Purchase Digital Equipment
    and Receive Digital Signals?]{.smallcaps}**

An essential component of any adequate analysis of the success of
digital-only broadcasting is to understand the costs for consumers to
purchase equipment capable of receiving and displaying digital signals.
Necessary equipment may include any of the following: (a) integrated
digital television sets with ATSC receivers; (b) over-the-air DTV
conversion set-top boxes; (c) computer PC video cards; (d) DTV capable
antennas.

***A. Integrated Digital Television Sets with ATSC Receivers***

To encourage the availability of integrated receivers and the reception
of broadcast digital signals, the FCC has mandated that a phased-in
schedule for the inclusion of ATSC receivers in every television set by
July 1, 2006.[^80] However, at present, integrated television sets with
ATSC tuners are quite expensive. Presently, integrated television sets
with ATSC tuners cost between \$1850 for a 47" rear projection set to
\$3300 for a 65" rear projection, although Zenith now offers a flat
screen 32" product for \$1200---the lowest cost among integrated
receivers. In estimating the effect of its tuner order on the cost of
analog sets, the FCC concluded that in 2002, the additional cost would
be \$200 per television[^81] but that the additional cost would drop to
between \$50-70 towards 2006.[^82] Moreover, recent technological
developments announced by Intel may indicate further decreases in prices
for such sets.[^83]

Nevertheless, the FCC's ruling does not account for the problem of
existing (legacy) analog television sets that do not have DTV reception
capability, nor does it address the sale of HDTV monitors that lack any
off-air tuner and that are exempt from its tuner requirement. In this
regard, the FCC observed that in August of 2002, sales of integrated
sets with ATSC tuners had reached only 70,295 nationwide (128,845 DTV
set-

top boxes had also been sold), as compared to the 1.3 million digital
monitors sold.[^84] The FCC further observed that the number of
households reporting the ability to receive DTV signals over-the-air was
only .2% of the total number of U.S. TV Households, implying that a
significant number of integrated sets had been purchased by stores and
remained there (or had found their way to non-residential use).[^85]

Moreover, current evidence indicates that prices will have to fall quite
dramatically to gain consumer acceptance. In a recent survey of 1017
adults conducted by Pulse and CTAM, only 10% said they would very likely
purchase a DTV television set within the next three years if the price
were approximately \$1800, while more significantly, only 45% were very
likely to purchase if the product dropped to \$300 with a full 23% said
they were not at all likely to purchase a DTV set even at that
price.[^86]

A separate study concluded that while barriers to consumers purchasing
high definition TVs (HDTV) may be falling, many would-be buyers still
remain confused about the product. The survey of 1556 individuals by
Dove Consulting[^87] said 30% of non-HDTV owners indicated they were
willing to pay up to \$700 for an HDTV, with 20% willing to pay \$1,000.
However, 47% of consumers surveyed didn\'t know whether programming was
available in their area. In addition, the study found that the variety
of HDTV equipment remained confusing to consumers, as 23% were unsure
whether they had an HD-capable set, even though definitions and
descriptions of equipment were provided. Overall, 17% of consumers
reported having a good understanding of the equipment, while nearly 40%
lacked knowledge or understanding. Moreover a separate study by Magid
Associates indicates similar conclusions: a mere 14% of 1258 respondents
were familiar with HDTV, while 40% said they were only somewhat
familiar.[^88]

***B. Over-the-Air DTV Conversion Set-Top Boxes***

A cheaper alternative to digital reception can be accomplished through
the installation of over-the-air DTV conversion set-top boxes by
consumers. As indicated above, current retail prices for such equipment
in the United States, manufactured by Samsung and Motorola, range from
\$300 to \$700. In Britain, inexpensive set-top boxes, marketed in
conjunction with the Freeview service, retail from £80-100 (equivalent
to \$136-170).[^89] It is anticipated that with mass production, the
cost could drop to £20 (\$34) in Britain.[^90] With mass production for
the larger U.S. market, it is likely that the cost of set-top boxes
would drop substantially.

***C. Computer PC Cards***

An additional means of receiving digital television signals may be
through a consumer's computer by employing a PC card connected to an
antenna. At present, there are a few models of DTV PC-tuner cards
available for purchase by the public. For instance, Hauppauge has two
models of digital PC cards, one that is fully HD compatible for \$299
and one that receives DTV but not HD for \$199.[^91]

***D. Antenna Equipment***

Use of any of the above equipment to receive digital off-air signals may
require the installation or upgrade of an exterior roof-top antenna at
additional cost. As indicated above, in order to receive all off-air DTV
signals, the antenna may need to have directional capability that can be
modified from within the home. Depending on the local needs, the cost of
the equipment can vary and may require professional installation. The
approximate cost of a typical roof-top "HDTV compatible" antenna is
between \$50-100, depending on the type and size purchased; a rotator
device can cost \$70; and there may be additional costs associated with
mounting hardware, wires, splitters and amplifiers.[^92]

V.  **[What Partnerships Does Public Television Need In Order to
    Successfully Return Analog Spectrum Early?]{.smallcaps}**

While many public television stations are ready and willing to turn in
their analog spectrum, provided that universal service requirements can
be met in some manner, it is unlikely that a unilateral return of
spectrum would be successful. In this regard, public television stations
would need to enter into a number of partnerships to make early return
of analog spectrum a success.

For instance, without the participation of **commercial broadcasters**
with their higher viewership and extensive reach, it would be difficult
to effectively spread the message concerning any potential broad-based
analog shut-off and the means for maintaining service. In addition, if a
Freeview-like service were to be established, commercial broadcaster
participation would be essential for consumer acceptance.

A number of **equipment manufacturers**, such as Samsung and Dielectric,
have voiced an interest in digital-only broadcasting. These companies
would be instrumental in the development, manufacturing and mass
distribution of products to enable digital reception over the air, e.g.
through integrated television sets with ATSC receivers, digital set-top
boxes, and antennas, among others.

In addition, just as the Berlin regional government reached out to
**consumer and other affinity groups**, public television must also
engage consumer groups (such as the Consumer Federation of America and
Consumers Union) and affinity groups (such as the American Association
of Retired People) in a process of exploring how to inform their
constituency and to accommodate their interests in ensuring a smooth
consumer-friendly transition to digital broadcasting.

A number of other companies in industries that would like to use the
out-of-core DTV channels in the 700 MHz band would also be instrumental
partners in accomplishing a rapid and successful return of analog
spectrum. Once an early return of analog spectrum is accomplished, more
television channels can be moved into the core of channels 2 through 51
and out of the 700 MHz band. In this regard, public television should
work with **representatives of the 3G industry** (fixed and mobile
telephony and data companies) **and public safety community** to
facilitate financing and publicity.

Another potentially valuable partner would be companies in the
**personal computer industry**, such as Dell, Gateway and Microsoft, who
are seeking to enter the television market.

Lastly, it would be helpful to work closely with a number of
**influential think tanks**, such as the New America Foundation, The
American Enterprise Institute, the Manhattan Institute and the Cato
Institute, among others, all of whom have voiced an interest in making
reforms to spectrum policy and have advocated for the rapid return of
analog broadcast spectrum.

VI. **[What Regulatory and Legislative Strategies Are Necessary to
    Achieve Early Return of Analog Spectrum?]{.smallcaps}**

To achieve the goal of digital-only broadcasting, it is important to
consider what regulatory and legislative strategies public television
stations would need to pursue. First, as discussed above, legislative
changes may need to be sought to amend the Communications Act to delete
the 85% market-by-market extension, create a hard date for analog
cessation, and create a phased-in approach. Second, some form of subsidy
would have to be created, funding in part by federal appropriations, to
ensure that the economically disadvantaged have access to digital
signals. Public television stations would also need to seek full and
complete carriage of their digital signals on cable and satellite, or as
an alternative, mandated ATSC tuners in all digital cable and satellite
set-top boxes.

> ***A. Changes to the Communications Act: Deletion of the
> Market-by-Market Extension Provision***

As discussed above, a public television station may, without additional
legislation, voluntarily return its analog spectrum, pursuant to the
FCC's current band-clearing policies that require the station to
demonstrate that the cessation of analog service would be in the public
interest, including a demonstration that there would not be a loss of
the sole noncommercial educational television service to a community on
a reserved channel. Alternatively, it may be necessary to seek an
amendment to the Communications Act to create a hard date by which
analog spectrum should be returned for all broadcasters by deleting the
85% market-by-market extension and replacing it a new date coupled with
a phased-in approach (either a rolling geographic shut-off and/or a
schedule of power decreases) to effectuate a "fade to black."

> ***B. Partial Subsidies for the Economically Disadvantaged to Access
> Digital Signals***

As discussed above, to ensure that the economically disadvantaged will
continue to have access to over-the-air services, it will be necessary
to create a federally funded partial subsidy for either digital
cable/satellite subscriptions or the purchase of over-the-air set-top
converter boxes.

***C. Digital Cable Carriage***

Currently, broadcast television stations are not guaranteed full and
complete carriage of their digital signals on cable, even if they are a
digital-only station. The FCC's current rule states that if a television
licensee with dual analog-digital channels returns one of its channels
to the FCC prior to the end of the DTV transition, the digital channel
remaining will be guaranteed cable carriage under FCC rules. However,
carriage is limited to the broadcaster's "primary video" stream if it is
transmitting multiple programming streams simultaneously (i.e.
multicasting).[^93] A number of petitions for reconsideration have been
filed at the FCC concerning this issue, and the FCC may be poised to
resolve it in the Spring of 2004. Public television stations should
continue to pursue a regulatory reconsideration of this ruling. Public
television stations should also pursue legislative changes to clarify
that the words "primary video" at Section 614 and 615 of the
Communications act does not act to interfere with the mandatory carriage
of all freely available multicast programming streams in the digital
environment. Without such a change, digital-only broadcast stations face
the likelihood that even if their digital signals are carried on cable,
substantial portions of the programming in which they invest their
resources will still be unavailable to the public which they serve.

***D. Digital Satellite Carriage***

The Satellite Home Viewer Improvement Act (SHVIA) requires satellite
carriers to carry all local broadcast television stations in markets
where they carry at least one local broadcast television station.[^94]
However, SHVIA is limited to analog carriage, as there is no provision
under SHVIA for the carriage of local digital television broadcast
signals. Indeed, the legislative history indicates that Congress did not
take any position regarding mandatory carriage of digital signals by
satellite carriers.[^95] As part of its cable digital must-carry
proceeding, the FCC is currently considering whether it should apply
digital cable carriage rules to satellite carriers.[^96] However, it
seems unlikely that, in the absence of any stronger signals from
Congress, the FCC will act to mandate digital carriage on satellite.
Mandatory digital carriage would most likely be accomplished (if at all)
through additional legislation in conjunction with the reauthorization
of SHVIA's distant signal license, which expires by the end of 2004 and
which will be addressed by Congress this year.

***E. ATSC Tuners in Digital Cable and Satellite Set-Top Boxes***

As an alternative to pursuing legislative changes to mandate digital
carriage on either cable or satellite, or as an interim step, it may be
possible to request legislation to mandate ATSC tuners in all digital
cable and satellite set-top boxes. This would enable cable and satellite
subscribers to switch back and forth between subscription services and
free off-air services without constraining the capacity of cable or
satellite systems. This approach would have the advantage of freeing up
cable and satellite capacity while maintaining consumer access to free
off-air signals, and it would impose little or no burden on satellite
carriers themselves, as some industry leaders -- notably DIRECTV,
EchoStar and Cablevision's Voom satellite service---are already
providing this technology to their HD customers. On the other hand, it
may pose some navigation issues for those consumers who are less
technologically adept than their peers and may require modifications to
interfaces with additional equipment, such as VCR and PVR recording
devices.

VII. **[Is the European Experience Applicable to the United
     States?]{.smallcaps}**

As discussed above, the Berlin regional government and Great Britain
have already done a great deal of work to understand the consequences
of, and to manage, the cessation of analog television service. In
addition, the Commission of European Communities has recently asked
European Union member states to report by the end of 2003 on their plans
for analog switch-off. As part of this directive, it has set forth a
number of suggested elements that may be part of member plans. First, it
has suggested that market forces and informed consumer demand must drive
the process, emphasizing that it should be a "market-led process, not a
simple infrastructure change with no added value for citizens."[^97]
Second, it has suggested that plans should be "transparent, justified,
proportionate, and timely."[^98] Third, it has suggested that plans
should be non-discriminatory, technologically neutral and that analog
switch-off should only occur when digital broadcasting has achieved
almost universal penetration in order to minimize social cost.[^99]
Lastly, the Commission has stated that policy intervention to support
the cessation of analog television service should occur solely on the
national level with the EU possessing only an advisory and coordinating
function.[^100] In particular, it is not envisioned that the EU would
propose a common analog switch-off date, but rather that this would
occur at a time of each nation's choosing.[^101]

It is likely that the U.S. would benefit from an analysis of each EU
member state's plans once these are published. However, it is important
to consider whether and to what extent the European experience is
applicable at all to the United States.

-   For instance, in light of the fact that the EU has adopted a
    different digital standard than the US, are coverage patterns and
    over-the-air receivability different?

-   Second, DTV in Europe is primarily driven by an improved standard
    definition service rather than high definition or datacasting.

-   Third, the equivalent to public television has a higher profile and
    a better funding base in EU nations than in the United States.

-   Fourth, the European populace may be more economically homogenous
    than in the U.S.

-   Fifth, the European populace may be more geographically concentrated
    than in the U.S.

-   Sixth, there are fewer analog over-the-air viewing choices in EU
    nations as compared to the U.S. and possibly a higher reliance on
    cable and satellite reception.

-   Seventh, EU citizens are more accustomed to their governments being
    economically interventionist than the U.S. citizens.

Addressing all these apparent differences in detail is beyond the scope
of this paper and would involve a degree of comparative research that
would be difficult to conduct at this time. Nevertheless, a number of
preliminary tentative observations can be made.

-   The fact that Europe has adopted a different digital standard with
    possibly different coverage characteristics may be irrelevant, as
    the final determinant of adequate reception may be the design and
    performance of the receiver, not what is transmitted from the
    broadcast tower. Nevertheless, this issue does require careful
    consideration.

-   Second, it is also difficult to understand the relevance of the fact
    that the European DTV market is more driven by standard-definition
    fare than by high-definition programming. What matters is the
    distribution of quality content that the consumer craves, not the
    nature of the cravings. On the other hand, if an over-the-air
    solution to digital distribution involves devices that are able to
    decode and display only standard-definition programming, and this is
    not what the American consumer wants, then it is likely that it will
    not meet with consumer acceptance, and the transition to
    digital-only broadcasting may be flawed.

-   Third, while it may be true that the European equivalent to public
    television possesses a higher profile and is better funded by
    national governments than American public television stations, the
    relevance of this comparison becomes less compelling if American
    public television stations were to engage in partnerships with their
    commercial brethren, equipment manufacturers and other strategic
    partners to bring about digital-only broadcasting.

-   Fourth, it is unclear whether the European population is more
    economically homogeneous than in the U.S., but even if this were the
    case, it is unclear why this would be a relevant comparison, except
    if it were to disproportionately affect the ability of the U.S.
    government (or American public-private partnerships) to craft an
    effective subsidy for the purchase of digital equipment by
    disadvantaged households.

-   Fifth, it is unclear whether the European population is more
    concentrated than the U.S. population, but even if it were true, the
    relevance of this comparison is questionable, unless it speaks to
    the greater difficulty of distributing digital signals in the U.S.
    to its numerous rural and remote areas.

-   Sixth, while it may be claimed that there are fewer analog
    over-the-air viewing choices in Europe than in the U.S., and a
    likely higher reliance on cable and/or satellite reception, it is
    unclear whether this may be relevant if an effective off-air
    strategy can be crafted in the U.S. Interestingly, in Great Britain,
    the rate of cable subscription is *lower* than in the U.S. (50% in
    Britain as compared to an average of 67% in the U.S.)[^102]

-   Lastly, while it may be true that EU citizens are more accustomed to
    their governments being economically interventionist than Americans,
    Americans have accepted a vast array of government-sponsored and
    regulated initiatives themselves when it is in their interest to do
    so. In fact, a market-sensitive approach to managing the transition
    to digital-only broadcasting would be optimal in both the U.S. and
    Europe, hence the European Commission's admonition that any analog
    shut-off scheme should be a "market-led process, not a simple
    infrastructure change with no added value for citizens."[^103]

VIII. **[Digital-Only Broadcasting: A Possible Action
      Plan]{.smallcaps}**

Based on the foregoing considerations, the following is a condensed
possible action plan for implementing digital-only broadcasting.

-   Voluntary Cessation of Analog Service

    -   Consider advantages and disadvantages of current FCC
        band-clearing policy.

-   Mandatory Cessation of Analog Services

    -   Legislation:

        -   Amend Communications Act:

            -   Established a new hard date (later than 2006?)

            -   Delete the 85% percent market-by-market extension

            -   Establish a phased in approach, either or both of the
                following:

                -   Rolling shut-off based on DMA, OTA reliance, or some
                    other objective measure

                -   Gradual decrease in analog power according to an
                    established schedule, i.e. "fade to black"

        -   Create a 50% or 25% federally funded subsidy (or tax credit)
            to ensure that the economically disadvantaged can access
            digital signals.

        -   Mandate full cable and satellite carriage of digital signals
            post-transition

            -   Alternative: mandate ATSC tuners in all digital cable
                and satellite set-top boxes.

-   Communications

    -   Implement a comprehensive and complete publicity campaign
        regarding the timing of analog cessation and means of continuing
        to receive signals, modeled on success of Berlin approach.

-   Partnerships

    -   Forge strategic partnerships with:

        -   commercial broadcasters,

        -   equipment manufacturers,

        -   consumer and other affinity groups,

        -   representatives of the 3G industry (fixed and mobile
            telephony and data companies) and public safety community,

        -   personal computer industry, such as Dell, Gateway and
            Microsoft, and

        -   influential think tanks, such as the New America Foundation,
            The American Enterprise Institute, the Manhattan Institute
            and the Cato Institute.

-   United States Freeview

    -   Create conditions for market forces to encourage consumer
        adoption of digital over-the-air services by creating a U.S.
        equivalent to Britain's Freeview.

**APPENDIX A**

47 U.S.C. § 309(j)(14)

 (14) Auction of recaptured broadcast television spectrum.\
      (A) Limitations on terms of terrestrial television broadcast
licenses. A television broadcast license that authorizes analog
television service may not be renewed to authorize such service for a
period that extends beyond December 31, 2006.\
      (B) Extension. The Commission shall extend the date described in
subparagraph (A) for any station that requests such extension in any
television market if the Commission finds that\--\
         (i) one or more of the stations in such market that are
licensed to or affiliated with one of the four largest national
television networks are not broadcasting a digital television service
signal, and the Commission finds that each such station has exercised
due diligence and satisfies the conditions for an extension of the
Commission\'s applicable construction deadlines for digital television
service in that market;\
         (ii) digital-to-analog converter technology is not generally
available in such market; or\
         (iii) in any market in which an extension is not available
under clause (i) or (ii), 15 percent or more of the television
households in such market\--\
            (I) do not subscribe to a multichannel video programming
distributor (as defined in section 602 \[[47 USCS §
522\])](http://www.lexis.com/research/buttonTFLink?_m=2d55eb9332ec7f42259149f56d4b6aa8&_xfercite=<cite cc%3D"USA"><!%5BCDATA%5B47 USCS %A7 309 %5D%5D><%2Fcite>&_butType=4&_butStat=0&_butNum=29&_butInline=1&_butinfo=47 USC 522&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlz-zSkAA&_md5=f0bcc7d384e468af82ef3c40f6138835)
that carries one of the digital television service programming channels
of each of the television stations broadcasting such a channel in such
market; and\
            (II) do not have either\--\
               (a) at least one television receiver capable of receiving
the digital television service signals of the television stations
licensed in such market; or\
               (b) at least one television receiver of analog television
service signals equipped with digital-to-analog converter technology
capable of receiving the digital television service signals of the
television stations licensed in such market.

**APPENDIX B**

**Digital Cable Subscription Rates and Analog DBS Subscription Rates**

[Total TV Households]{.underline}

106,641,910 (April, 2003)

Source: National Cable and Telecommunications Association,
[www.ncta.com](http://www.ncta.com/).

**Cable Figures**

[Total Cable Subscription (basic tier)]{.underline}

72,111,560 (July, 2003); 67.6% of all TV Households

Source: National Cable and Telecommunications Association,
[www.ncta.com](http://www.ncta.com/).

[Digital Cable Subscription]{.underline}

21,500,000 (Sept., 30, 2003); 20.2% of all TV Households or 30% of all
cable subscribers.

Source: National Cable and Telecommunications Association,
[www.ncta.com](http://www.ncta.com/).

![](media/image2.png){width="5.208333333333333in" height="3.53125in"}

**Non-Cable Figures**

[Total Subscribers to Non-Cable MVPD's.]{.underline}

23,660,000 (June, 2003)

Source: National Cable and Telecommunications Association,
[www.ncta.com](http://www.ncta.com/).

**Satellite Figures**

[DBS Subscription]{.underline}

21,541,000 (December, 2003)(excluding C-Band); 20.2% of all TV
Households.

![](media/image3.png){width="4.166666666666667in"
height="1.2291666666666667in"}

Source: [www.skyreport.com](http://www.skyreport.com/).

[DBS Local-into-Local Subscription Rates]{.underline}

Total: 54% of all DBS subscribers

DIRECTV: 75% of all residential customers

EchoStar: Figures not available

Dominion: Figures not available

Voom: Figures not available

Source: [Annual Assessment of the Status of Competition in the Market
for the Delivery of Video Programming]{.underline}, FCC 04-5 (rel.
January 28, 2004).

**APPENDIX C**

**Over the Air Reception Statistics from Highest Percentage of
Over-the-Air Reliance to Lowest**

  ------------ ---------------------------- ------------- ------------ -------- ------- --------
  **Nov-03**                                                                             

  ** **        **DMA**                      ** **         **Over the                    
                                                          Air**                         

  **DMA Rank** **Name**                     **TV HH**     **HH**       **Raw    **%**   **OTA%
                                                                       OTA              Rank**
                                                                       Rank**           

  97           Harlingen-Wslco-Brnsvl-McA   297,390       120,146      41       40.4    1

  203          Fairbanks                    31,840        10,826       174      34.0    2

  123          Boise                        222,490       72,309       68       32.5    3

  100          El Paso (Las Cruces)         283,870       89,987       54       31.7    4

  57           Fresno-Visalia               521,160       153,742      28       29.5    5

  36           Salt Lake City               786,030       229,521      18       29.2    6

  155          Anchorage                    135,950       37,658       111      27.7    7

  14           Minneapolis-St. Paul         1,635,650     451,439      6        27.6    8

  7            Dallas-Ft. Worth             2,255,970     615,880      4        27.3    9

  11           Houston                      1,848,770     495,470      5        26.8    10

  191          Laredo                       60,210        15,895       163      26.4    11

  33           Milwaukee                    871,490       228,330      19       26.2    12

  136          Duluth-Superior              172,360       44,124       96       25.6    13

  105          Ft. Wayne                    268,610       67,690       72       25.2    14

  68           Green Bay-Appleton           426,820       106,278      43       24.9    15

  78           Springfield, MO              389,150       96,898       47       24.9    16

  87           South Bend-Elkhart           330,200       80,239       62       24.3    17

  21           St. Louis                    1,202,170     290,925      11       24.2    18

  85           Madison                      355,010       85,557       56       24.1    19

  49           Albuquerque-Santa Fe         633,500       152,040      30       24.0    20

  147          Lubbock                      152,090       35,893       114      23.6    21

  153          Bangor                       139,550       31,957       124      22.9    22

  24           Portland, OR                 1,073,210     244,692      16       22.8    23

  134          Wausau-Rhinelander           178,910       40,255       106      22.5    24

  172          Yuma-El Centro               99,290        22,340       149      22.5    25

  73           Des Moines-Ames              404,580       90,626       51       22.4    26

  169          Missoula                     100,180       22,440       147      22.4    27

  15           Phoenix (Prescott), AZ       1,561,760     348,272      7        22.3    28

  146          Joplin-Pittsburg             153,130       33,995       117      22.2    29

  164          Idaho Falls-Pocatello        109,820       24,160       142      22.0    30

  192          Twin Falls                   58,840        12,945       164      22.0    31

  71           Tucson (Sierra Vista)        413,460       90,134       53       21.8    32

  38           Grand Rapids-Kalmzoo-B.Crk   724,290       151,377      31       20.9    33

  3            Chicago                      3,399,460     707,088      3        20.8    34

  2            Los Angeles                  5,402,260     1,118,268    1        20.7    35

  80           Spokane                      381,820       79,037       64       20.7    36

  127          Yakima-Pasco-Rchlnd-Knnwck   200,950       41,396       103      20.6    37

  120          Eugene                       226,870       46,055       92       20.3    38

  32           Cincinnati                   872,330       175,338      26       20.1    39

  139          Columbia-Jefferson City      166,500       33,467       120      20.1    40

  60           Tulsa                        505,000       101,000      45       20.0    41

  126          La Crosse-Eau Claire         207,370       41,474       102      20.0    42

  207          Helena                       24,910        4,957        201      19.9    43

  19           Sacramnto-Stktn-Modesto      1,278,430     250,572      15       19.6    44

  112          Traverse City-Cadillac       248,930       48,043       90       19.3    45

  190          Grand Junction-Montrose      62,380        12,039       172      19.3    46

  94           Davenport-R.Island-Moline    308,460       58,916       79       19.1    47

  132          Chico-Redding                185,920       35,139       116      18.9    48

  69           Toledo                       425,770       80,045       63       18.8    49

  118          Fargo-Valley City            232,850       43,776       99       18.8    50

  170          Billings                     99,470        18,700       155      18.8    51

  45           Oklahoma City                647,390       121,062      40       18.7    52

  50           Louisville                   624,470       116,776      42       18.7    53

  37           San Antonio                  736,240       136,941      35       18.6    54

  144          Sioux City                   157,970       29,382       128      18.6    55

  43           Memphis                      662,280       121,860      39       18.4    56

  84           Columbia, SC                 363,750       66,566       73       18.3    57

  199          Bend, OR                     50,980        9,329        182      18.3    58

  18           Denver                       1,399,100     254,636      13       18.2    59

  25           Indianapolis                 1,038,370     187,945      25       18.1    60

  23           Baltimore                    1,083,030     193,862      23       17.9    61

  54           Austin                       577,740       102,838      44       17.8    62

  166          Quincy-Hannibal-Keokuk       106,110       18,888       154      17.8    63

  194          Butte-Bozeman, MT            57,310        10,201       179      17.8    64

  88           Cedar Rapids-Wtrlo-IWC&Dub   328,060       58,067       80       17.7    65

  93           Colorado Springs-Pueblo      309,960       54,553       84       17.6    66

  10           Detroit                      1,923,230     334,642      8        17.4    67

  31           Kansas City                  875,090       152,266      29       17.4    68

  75           Rochester, NY                395,350       68,791       71       17.4    69

  110          Lansing                      252,040       43,855       98       17.4    70

  56           Little Rock-Pine Bluff       524,090       89,619       55       17.1    71

  184          Meridian                     71,090        12,156       169      17.1    72

  188          Great Falls                  64,000        10,816       175      16.9    73

  29           Raleigh-Durham (Fayetvlle)   947,750       159,222      27       16.8    74

  34           Columbus, OH                 854,040       143,479      32       16.8    75

  76           Paducah-Cape Girard-Harsbg   391,080       65,310       75       16.7    76

  133          Rockford                     178,930       29,881       126      16.7    77

  141          Erie                         159,140       26,576       136      16.7    78

  104          Charleston, SC               269,880       44,800       94       16.6    79

  152          Rochestr-Mason City-Austin   141,300       23,456       145      16.6    80

  16           Cleveland-Akron (Canton)     1,542,970     254,590      14       16.5    81

  113          Sioux Falls(Mitchell)        247,210       40,790       105      16.5    82

  168          Hattiesburg-Laurel           101,810       16,799       161      16.5    83

  64           Flint-Saginaw-Bay City       473,910       77,247       65       16.3    84

  114          Augusta                      244,490       39,852       109      16.3    85

  159          Minot-Bismarck-Dickinson     132,070       21,395       151      16.2    86

  58           Richmond-Petersburg          512,310       81,970       58       16.0    87

  81           Shreveport                   379,880       60,401       76       15.9    88

  130          Bakersfield                  189,650       29,965       125      15.8    89

  59           Dayton                       511,770       80,348       60       15.7    90

  99           Evansville                   284,000       44,588       95       15.7    91

  148          Terre Haute                  146,260       22,963       146      15.7    92

  89           Burlington-Plattsburgh       323,070       50,399       87       15.6    93

  181          Bowling Green                80,200        12,511       166      15.6    94

  67           Wichita-Hutchinson Plus      447,710       68,947       70       15.4    95

  129          Amarillo                     191,330       29,465       127      15.4    96

  137          Topeka                       171,660       26,436       137      15.4    97

  163          Abilene-Sweetwater           115,410       17,773       159      15.4    98

  30           Nashville                    904,380       138,370      33       15.3    99

  51           Las Vegas                    601,700       92,060       49       15.3    100

  135          Monroe-El Dorado             174,000       26,622       135      15.3    101

  35           Greenvll-Spart-Ashevll-And   806,930       122,653      38       15.2    102

  117          Peoria-Bloomington           241,200       36,662       112      15.2    103

  198          Mankato                      51,460        7,770        193      15.1    104

  193          Eureka                       57,520        8,628        189      15.0    105

  17           Miami-Ft. Lauderdale         1,510,740     225,100      20       14.9    106

  131          Columbus-Tupelo-West Point   187,780       27,979       130      14.9    107

  103          Greenville-N.Bern-Washngtn   270,560       40,043       108      14.8    108

  161          Sherman, TX-Ada, OK          122,000       18,056       157      14.8    109

  140          Medford-Klamath Falls        160,910       23,654       143      14.7    110

  42           New Orleans                  665,190       96,453       48       14.5    111

  197          Ottumwa-Kirksville           51,470        7,463        194      14.5    112

  101          Youngstown                   279,260       40,213       107      14.4    113

  12           Seattle-Tacoma               1,685,480     241,024      17       14.3    114

  77           Omaha                        389,270       55,666       83       14.3    115

  200          Casper-Riverton              50,720        7,202        196      14.2    116

  90           Jackson, MS                  322,480       45,470       93       14.1    117

  102          Lincoln & Hstngs-Krny Plus   274,480       38,702       110      14.1    118

  46           Greensboro-H.Point-W.Salem   645,430       90,360       52       14.0    119

  74           Portland-Auburn              398,500       55,790       82       14.0    120

  92           Waco-Temple-Bryan            310,280       43,439       100      14.0    121

  28           Charlotte                    986,830       137,169      34       13.9    122

  116          Reno                         242,080       33,407       121      13.8    123

  201          St. Joseph                   50,400        6,955        197      13.8    124

  52           Jacksonville, Brunswick      598,070       81,936       59       13.7    125

  86           Chattanooga                  349,260       47,499       91       13.6    126

  66           Roanoke-Lynchburg            450,090       60,312       77       13.4    127

  5            San Francisco-Oak-San Jose   2,440,920     324,642      9        13.3    128

  8            Washington, DC (Hagrstwn)    2,224,070     293,577      10       13.2    129

  40           Birmingham (Ann and Tusc)    697,570       91,382       50       13.1    130

  79           Syracuse                     384,290       49,958       88       13.0    131

  82           Champaign&Sprngfld-Decatur   378,560       49,213       89       13.0    132

  143          Wichita Falls & Lawton       158,290       20,578       152      13.0    133

  108          Ft. Smith-Fay-Sprngdl-Rgrs   259,680       33,499       119      12.9    134

  128          Corpus Christi               194,040       25,031       139      12.9    135

  158          Panama City                  132,860       17,139       160      12.9    136

  174          Rapid City                   93,610        12,076       170      12.9    137

  186          Charlottesville              69,670        8,987        184      12.9    138

  107          Tyler-Longview(Lfkn&Ncgd)    260,080       32,770       122      12.6    139

  109          Myrtle Beach-Florence        258,430       32,304       123      12.5    140

  44           Buffalo                      647,920       80,342       61       12.4    141

  185          Lima                         70,850        8,715        187      12.3    142

  13           Tampa-St. Pete (Sarasota)    1,644,270     200,601      22       12.2    143

  41           Norfolk-Portsmth-Newpt Nws   693,660       84,627       57       12.2    144

  55           Albany-Schenectady-Troy      542,670       66,206       74       12.2    145

  157          Odessa-Midland               133,170       16,247       162      12.2    146

  180          Harrisonburg                 85,850        10,474       177      12.2    147

  83           Huntsville-Decatur (Flor)    364,340       44,085       97       12.1    148

  121          Monterey-Salinas             226,380       27,392       131      12.1    149

  209          North Platte                 15,670        1,896        210      12.1    150

  62           Mobile-Pensacola (Ft Walt)   497,570       59,708       78       12.0    151

  122          Macon                        225,190       27,023       132      12.0    152

  47           Harrisburg-Lncstr-Leb-York   637,240       75,832       66       11.9    153

  125          Columbus, GA                 207,820       24,731       140      11.9    154

  142          Wilmington                   159,060       18,928       153      11.9    155

  145          Albany, GA                   156,610       18,637       156      11.9    156

  189          Lafayette, IN                63,130        7,449        195      11.8    157

  48           Providence-New Bedford       635,610       74,366       67       11.7    158

  176          Alexandria, LA               92,440        10,815       176      11.7    159

  61           Knoxville                    499,040       57,889       81       11.6    160

  183          Jackson, TN                  75,280        8,657        188      11.5    161

  177          Watertown                    91,280        10,315       178      11.3    162

  95           Baton Rouge                  299,980       33,598       118      11.2    163

  204          Victoria                     30,830        3,453        205      11.2    164

  91           Tri-Cities, TN-VA            322,130       35,756       115      11.1    165

  115          Montgomery (Selma)           243,000       26,730       134      11.0    166

  124          Lafayette, LA                215,830       23,525       144      10.9    167

  162          Gainesville                  117,310       12,787       165      10.9    168

  22           Pittsburgh                   1,175,410     126,944      36       10.8    169

  65           Lexington                    466,980       50,434       86       10.8    170

  111          Tallahassee-Thomasville      250,300       26,782       133      10.7    171

  208          Alpena                       18,220        1,950        209      10.7    172

  175          Lake Charles                 93,030        9,768        181      10.5    173

  138          Beaumont-Port Arthur         171,310       17,816       158      10.4    174

  206          Juneau, AK                   25,840        2,662        208      10.3    175

  182          Greenwood-Greenville         79,080        8,066        191      10.2    176

  205          Presque Isle                 29,930        3,053        206      10.2    177

  171          Dothan                       99,350        10,034       180      10.1    178

  4            Philadelphia                 2,874,330     287,433      12       10.0    179

  179          Jonesboro                    87,690        8,769        186      10.0    180

  210          Glendive                     49,680        4,968        200      10.0    181

  1            New York                     7,376,330     730,257      2        9.9     182

  20           Orlando-Daytona Bch-Melbrn   1,263,900     125,126      37       9.9     183

  98           Savannah                     288,830       28,594       129      9.9     184

  26           San Diego                    1,029,210     99,833       46       9.7     185

  119          SantaBarbra-SanMar-SanLuOb   230,400       22,349       148      9.7     186

  178          Marquette                    89,600        8,512        190      9.5     187

  9            Atlanta                      2,035,060     191,296      24       9.4     188

  106          Springfield-Holyoke          260,880       24,262       141      9.3     189

  156          Biloxi-Gulfport              133,530       12,285       167      9.2     190

  53           Wilkes Barre-Scranton        590,100       52,519       85       8.9     191

  196          Cheyenne, WY-Scottsbluff,    52,950        4,713        202      8.9     192

  202          Zanesville                   32,570        2,899        207      8.9     193

  154          Binghamton                   139,190       12,249       168      8.8     194

  6            Boston (Manchester)          2,391,830     208,089      21       8.7     195

  70           Ft. Myers-Naples             421,130       36,638       113      8.7     196

  63           Charleston-Huntington        495,190       42,586       101      8.6     197

  167          Utica                        105,300       8,845        185      8.4     198

  149          Salisbury                    145,280       12,058       171      8.3     199

  151          Wheeling-Steubenville        142,450       11,111       173      7.8     200

  195          San Angelo                   53,980        4,049        203      7.5     201

  96           Johnstown-Altoona            297,460       21,715       150      7.3     202

  27           Hartford & New Haven         1,001,320     71,094       69       7.1     203

  72           Honolulu                     412,190       26,380       138      6.4     204

  150          Bluefield-Beckley-Oak Hill   144,210       9,229        183      6.4     205

  160          Palm Springs                 125,270       7,892        192      6.3     206

  173          Elmira (Corning)             97,690        5,959        199      6.1     207

  187          Parkersburg                  64,560        3,938        204      6.1     208

  165          Clarksburg-Weston            106,430       6,279        198      5.9     209

  39           West Palm Beach-Ft. Pierce   709,290       41,139       104      5.8     210

               Total                        108,454,860   17,462,735   16.1%            
  ------------ ---------------------------- ------------- ------------ -------- ------- --------

Source: Dennis Haarsager and Television Bureau of Advertising (November,
2003)

**APPENDIX B: DIGITAL TRANSLATORS**

**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | MB Docket No. 03-185         |
|                                  | * |                              |
| 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              |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**COMMENTS OF THE ASSOCIATION OF PUBLIC TELEVISION STATIONS AND THE
PUBLIC BROADCASTING SERVICE**

The Association of Public Television Stations ("APTS") and the Public
Broadcasting Service ("PBS") (collectively, "Public Television")[^104]
hereby submit comments in the above-captioned proceeding.

Public Television applauds the Commission's recent adoption of a Notice
of Proposed Rulemaking that seeks comment on how to upgrade the
translator, low power and Class A service to digital operations[^105]
and looks forward to working with the Commission to resolve issues of
critical importance to Public Television and rural Americans. In this
regard, it is important that the Commission act swiftly to provide for
the licensing of digital translator and on-channel repeaters so that
rural America is not left behind in the digital revolution transforming
this country's media landscape. The Commission's Notice of Proposed
Rulemaking is a significant step in the right direction. In particular,
Public Television believes that, with limited modifications, the
proposed application processing procedures are both fair and reasonable.
Further, the Commission should allow for technological flexibility and
licensee autonomy to address local programming and technical needs.
Lastly, the Commission should act to protect the integrity of the
existing analog translator service, while maintaining its secondary
status, by encouraging mutually acceptable technical solutions prior to
any request that an analog translator cease operations due to a higher
priority use.

I.  **Swift Commission Action will Ensure the Distribution of Digital
    Broadcast Television Services to Rural Americans**

Through its system of full-power transmitters and over 700 translators,
public television provides services to 99 percent of television
households in furtherance of its statutory mandate to provide universal
service.[^106] In multiple prior filings, Public Television presented
the Commission with evidence that without rules to facilitate the
conversion of translators to digital operation, millions of rural
Americans will likely not receive critical educational and public safety
services over digital broadcast technology.[^107]

If the Commission were to decline to establish digital translator
operational rules in this proceeding, as some may suggest, rural
Americans would unnecessarily be disadvantaged in the digital transition
that is currently transforming this nation's media landscape. For
instance a study conducted by the Corporation for Public Broadcasting in
1998 concluded that over 12 million Americans are served by public
television translators.[^108] Of these, over 2 million Americans receive
no other public television service.[^109]

Indeed, the importance of translators to the delivery of local service
is dramatically illustrated when one examines typical cases in the
western states. A review of the FCC database reveals, for example, that
of the over 700 public television translators in service nationwide,
over 70 are located in rural Utah, repeating the signals of KUED, KULC
and KBYU to communities that are otherwise unable to receive these
signals. Similarly, Idaho Public Television reports that it operates
five transmitters and 34 translators covering 80 percent of the state's
population,[^110] while the public television stations in New Mexico
operate over 50 translators to deliver noncommercial educational
services to residents throughout that state. Moreover, although national
figures are unavailable, numerous small cable systems in rural areas
rely on the reception of television translator signals at their headends
to provide service to their customers.[^111] Providing for the licensing
of digital translators and on-channel repeaters would therefore ensure
distribution of digital signals both to rural citizens who rely on
over-the-air reception and to rural cable subscribers as well.

As the above figures make clear, it is vitally important that as the
Commission guides the conversion of the analog broadcast infrastructure
to digital, rural Americans not be ignored. As Public Television
previously demonstrated, digital translators and on-channel repeaters
are both a technically feasible and a spectrum efficient means of
accomplishing this goal.[^112] To ensure the universal and fair
distribution of digital services, the Commission should act swiftly to
allow for the licensing of digital translators and on-channel repeaters.

> **II. With Limited Modifications, the Commission's Proposed
> Application Processing Policy is Both Fair and Reasonable**

The Commission seeks comment on the process for accepting applications
by LPTV and TV translators to operate digital facilities.[^113] The
Commission proposes accepting applications from LPTV and TV translators
that would like to make a "hot-switch" to digital on their current
analog channels as minor facilities changes, provided (a) there would be
no channel change (except to accommodate displacement) and (b) the
protected digital signal contour of the proposed facility would overlap
some portion of the protected contour of the analog authorization.[^114]
These applications will be accepted on a first-come, first-served
basis.[^115] Applications received on the same day that have
interference conflicts with other applications will be considered
mutually exclusive and will be resolved through auctions (a procedure
about which Public Television continues to have concerns for public
television applicants).[^116] Applications by stations seeking
replacement channels due to displacement would be accorded higher
priority than new facilities applications or modified facilities
applications.[^117]

For stations that wish to apply for additional channels on which to
operate a digital LPTV or TV translator station, the Commission proposes
announcing a digital-only filing window without geographic limitations
but limiting eligibility to existing translator, LPTV and Class A
licensees.[^118] The Commission suggests that mutually exclusive
applications should be resolved through auctions (again, a concern for
Public Television) but seeks comment on whether the applications for
digital channels are exempt from auctions pursuant to Section
309(j)(2)(B) of the Communications Act.[^119] If such applications are
exempt, the Commission seeks comment on a method to decide among
mutually exclusive LPTV and TV translator digital applications.[^120]
After the initial window has closed, the Commission has proposed
accepting applications by LPTV and TV translator stations for additional
digital channels through "rolling one-day filing windows" without any
applicant eligibility restrictions.[^121]

Public Television understands the difficulty of managing the process for
accepting and awarding thousands of low power and TV translator digital
applications in a way that maximizes the public interest while
preserving limited Commission resources. Public Television therefore
supports the Commission's proposed application processing procedures,
with some minor requested alterations, as a reasonable and fair means to
efficiently award such licenses in an expeditious manner. Public
Television requests some additional and limited modifications to
restrict spectrum speculation and to ensure that non-profits and small
communities have access to these valuable digital services.

First, in order to limit spectrum speculation, the Commission should
impose some reasonable geographic restrictions on the application
process. In this regard, the Commission rightly points out that in the
last LPTV and TV translator window, approximately 4700 applications were
filed with approximately 3700 of these applications being mutually
exclusive.[^122] One reason why there were so many mutual exclusivities
was that, although the Commission had restricted applications within 75
miles of major cities, it accepted applications without any further
geographic limitations. This resulted in chains of mutual exclusivity
that reached across several state borders. To avoid this, the Commission
should divide the application process for new digital channels into
regional windows.

Second, the Commission could reduce the incidences of mutual
exclusivities and discourage spectrum speculation by also limiting the
number of applications for each filing window.[^123] However, in so
doing, the Commission should be aware that many state licensees of
integrated and centrally programmed public television systems will need
to apply for multiple TV translator stations within their state. The
Commission should accommodate this need by limiting the number of
*multi-state* applications for LPTV and TV translator stations by a
single entity.

Third, Public Television notes its continuing objection to the use of
auction procedures where applicants propose a noncommercial educational
television service.[^124] The Commission has raised the question whether
all LPTV and TV translator applications for additional digital channels
are covered by the auction exemption provision at Section 309(j)(2)(B).
That provision states that competitive bidding authority shall not apply
to licenses or construction permits "for initial licenses or
construction permits for digital television service given to existing
terrestrial broadcast

licensees to replace their analog television service licenses."[^125]
Public Television supports Commission forbearance from using its auction
procedures in this case and supports the Commission's alternative
approach, which would allow parties to resolve their mutual exclusivity
through settlements and engineering solutions, subject to dismissal of
all mutually exclusive applications if settlements are not made within a
specified period of time.[^126]

On the whole, however, Public Television supports the Commission's
proposed application processing policy as both a fair and reasonable
approach to initiating a digital rural service, but requests the
inclusion of the above three modifications to greatly improve the
proposed process. Public Television requests inclusion of: (1)
geographic restrictions through a regional approach, (2) limitations on
the number of multi-state applications, and (3) forbearance from use of
auctions for digital translator and LPTV applications.

III. **The Commission Should Allow for Technological Flexibility and
     Licensee Autonomy to Address Local Programming and Technical
     Needs**

In its NPRM, the Commission seeks comment on a comprehensive range of
programming and technical issues related to the operation of digital
translators and digital boosters. In general, Public Television believes
that the Commission should allow licensees a degree of technological
flexibility and autonomy to meet the programming and technical needs of
their local communities.

***Construction Period***. The Commission has sought comment on the
possibility of reducing the construction period for a digital LPTV or TV
translator station from three years to two years.[^127] Public
Television urges the Commission to retain the three year period. First,
many public television stations will be seeking federal funding
assistance for digital translator and/or booster construction either
through the Department of Commerce's Public Telecommunications
Facilities Program or the Department of Agriculture's Rural Utilities
Service Public Television Station Digital Transition Grant Program.
Frequently, the time that it takes from the filing of the grant
application to an award is nearly a year, while a successful capital
campaign to provide matching funds may take another year. In addition,
many noncommercial educational translators are operated by university
licensees, which must operate under the unique timing of their own
budget cycles, while other sources of matching funding may depend on the
budget cycles of the various states. It is important, therefore, that
the construction period be long enough to accommodate these unique
circumstances.

***Available Channels***. Public Television supports the Commission's
proposal that digital translators and digital LPTV stations be allowed
to use channels 2 through 59 inclusive (except channel 37) for either
on-channel conversion or for new digital operations, and that translator
and LPTV operations on these channels be required to operate on a
non-interfering basis to primary users and to protect earlier-authorized
secondary users.[^128] The Commission also seeks comment on the
possibility of allowing digital translator and LPTV stations to use
channels 52 through 59 only if the applicant demonstrates that there are
no in-core channels available.[^129] In addition, the Commission seeks
comment on a similar restriction for channels 60-69 with the additional
proviso that only channels not allocated to public safety should be
used.[^130] The use of out-of-core channels is especially important to
public television stations. For instance, PBS estimates that more than
one-third (35 percent) of public television translators operate on
channels 52 and above, and approximately 25 percent of public television
translators operate on channels 60-69.[^131] While licensees would
prefer to use channels in the digital core for obvious reasons, in some
circumstances use of out-of-core channels is necessary. Public
Television requests that in such circumstances the Commission allow
licensees the flexibility to seek channel assignments that have the
technical features needed to serve their communities, without the
requirement of demonstrating that no in-core channels are available.

***Ancillary and Supplementary Services***. The Commission seeks comment
on whether it should extent its current rules concerning the provision
of "ancillary and supplementary services" by digital television
broadcast licensees to licensees of digital translators.[^132] The
Commission has recognized the value of these services when it authorized
full power noncommercial education digital television stations to
provide non-broadcast ancillary and supplementary services to their
communities provided that the entire DTV bit-stream is used "primarily"
for a noncommercial, nonprofit, educational broadcast service.[^133] For
instance, some public television stations are planning to use their
ancillary and supplementary transmission to enhance the delivery of
broadband services to their communities.  Ancillary and supplementary
transmissions may also be used to disseminate financial stock exchange
information, Congressional voting information, Statehouse voting
records, election returns and weather updates to targeted subscribers.
In addition, ancillary and supplementary transmissions can also be used
to enhance public safety. Still other public television stations plan to
use ancillary and supplementary transmissions to enhance educational
opportunity in their communities.  For instance, some stations plan on
offering subscription-based college courses, while others plan to
transmit non-broadcast digital interactive content overnight to schools
so that teachers can download it on demand during the school day. In
light of the Commission's decision and the compelling nature of the
public interest benefits such services provide, Public Television
strongly supports the Commission's proposal and requests that public
television digital translators be afforded the same degree of
flexibility as their "parent" stations providing ancillary and
supplementary services.

***Regulatory Fees***. The Commission seeks comment on whether LPTV and
TV translators should be subject to the Commission's application and
regulatory fees.[^134] Unlike commercial broadcasters, noncommercial
educational television stations are exempt from paying annual regulatory
fees, which, pursuant to federal law do not apply to governmental
entities or nonprofits.[^135] In addition, public television stations
are exempt from paying application fees that commercial broadcasters
must pay for license applications, renewals or construction
permits.[^136] The same application and regulatory fee exemptions should
apply to noncommercial educational translators or boosters that repeat
the main signal of a full-power exempt noncommercial educational
station.

***On-Channel Repeaters***. The Commission also requests comment on the
possibility of licensing "digital booster stations" that use the same
input and output channels.[^137] Public Television has previously
presented the Commission with evidence that such digital booster
stations are a technically feasible and spectrum efficient means of
distributing a digital signal to remote areas within a station's digital
contour that are not ordinarily reached due to terrain or other
factors.[^138] Where boosters are designed to serve the same population
as the main station with the same channel as the main station, Public
Television suggests that the Commission grant the same degree of
interference protection to the booster. The booster, in other words,
should be considered merely an extension of the main signal through
alternative technological means. Boosters may also be an effective means
of providing service beyond a main station's DTV contour. In such cases,
the usual rules for interference protection that apply to a secondary
service should apply.

***Other Technical Issues.*** In addition, Public Television requests a
limited number of policies concerning the technical operation of digital
translators. First, to ensure that licensees have the technological
flexibility to meet local needs, digital translators should be permitted
to use the same input signal delivery techniques as they do presently,
including but not limited to the signal of a full-power broadcast
station, a booster, another translator or translator relay (digital or
analog), a microwave relay link or a fiber optic circuit.[^139]

Second, the Commission seeks comment on whether digital translators
should be authorized to use either a heterodyne frequency conversion
mode, a regenerative digital mode or whether broadcasters should be able
to choose their mode of transmission based on individual
circumstances.[^140] The Commission notes that while a heterodyne
digital translator is less complex and therefore less costly, a
regenerative digital translator is particularly useful for multi-hop
translator networks.[^141] While on one hand public television stations
are sensitive to the issue of cost and prefer the most efficient and
least costly equipment consistent with their universal distribution
mission due to limitations on their financial resources, many public
television stations in the West operate multi-hop translator networks to
reach remote or difficult-to-access populations. Public Television
therefore believes that it is most reasonable for the Commission to
allow broadcasters to choose the mode of transmission based on the
compelling nature of individual circumstances that a local broadcaster
is best situated to assess.

Third, when predicting interference protection,[^142] the Commission
should, where possible, use the Longley-Rice method of predicting signal
propagation. The Longley-Rice method takes detailed topographic terrain
information into account and not only more accurately determines the
expected coverage area but also provides a more accurate estimate of
potential interference to, and from, translators. In addition, because
the frequency offset rules were designed to address the reception of
high-powered signals, digital TV translator stations should not be
required to operate with a frequency offset where an NTSC signal is on
the lower adjacent channel to the digital LPTV or translator in the same
area.[^143]

Fourth, regarding the use of out-of-channel emission masks,[^144] Public
Television notes that the nature of translators is to operate a
relatively low power levels compared to full-power stations.  Thus it
would be reasonable to believe that less attenuation of out-of-band
emissions would be acceptable for low power facilities if scaled
according to power level.  While a continuous scale may be too
cumbersome to implement, it should not be difficult to establish
multiple out-of-band emission masks for digital translator effective
radiated power levels of, for example, 1-10 watts, 10-100 watts,
100-1,000 watts, and 1,000-10,000 watts, while employing the standard
emission masks for power levels above 10,000 watts.

Fifth, in order to enhance flexibility and responsiveness to local
circumstances, Public Television agrees with the Commission that local
interference agreements freely entered into among digital LPTV and TV
translator stations and other primary services should be allowed to
supercede any interference protection standards adopted by the
Commission.[^145] For the same reasons, the Commission should allow the
use of co-located adjacent channels either on a waiver basis or pursuant
to a written agreement among all affected parties.[^146]

Sixth, Public Television believes that because it is difficult to insert
customized station identification into any configuration of a DTV
translator, there should be no requirement for the translator to
transmit a unique identification code.[^147]  Should there be a need to
identify the digital translator, the output signal contains adequate
information about the input signal station identification within the DTV
signal itself on a continuous basis.  Alternatively, however, if the
Commission were to require a unique station for a digital translator,
such a requirement should be limited only to those translators with an
ERP of 10,000 watts or more in order to be sensitive to the costs that
such a requirement would impose.

Lastly, because many translators are located at remote locations, such
as mountain tops or terrain that is difficult to access (especially
during winter), Public Television agrees that the Commission should
apply its current analog rules to the digital translator service for
unattended operation.[^148]

IV. **The Commission Should Act to Protect the Integrity of the Analog
    Translator Service while Maintaining its Secondary Status**

The Commission seeks comment on actions it might take to preserve the
analog service provided by LPTV and TV translator stations.[^149] Public
Television requests that the Commission act to protect the integrity of
the existing analog translator service while maintaining its secondary
status.

Because television translators are a secondary service, they must
protect other stations, including both full-power and low-power Class A
stations from interference.[^150] Even if a translator station provides
the only public television signal to a community, it must accommodate
the needs of neighboring full-power stations and some low-power stations
by seeking a replacement channel in increasingly congested spectrum or
go off the air. In addition, the Commission has held that because a
translator station operates as a secondary service it must vacate the
spectrum at channels 60-69 at the end of the DTV transition in its
market.[^151] Although the Commission has recently ruled that a
translator may continue to operate at channels 52-59 even after the end
of the DTV transition in its market, the Commission has made it clear
that a translator continues to be secondary to other services and that
it must not cause actual interference to either DTV stations or
licensees for new services.[^152] Consequentially, when new services are
introduced at channels 60-69 and later at 52-59, translators must
re-engineer into channels 2-51 under the constant threat of eviction.

Recognizing the plight of these essential television translator
services, the Commission has created some limited relief in its Sixth
Report and Order in the Advanced Television proceeding.[^153] For
instance, the Commission allows a displaced translator station to apply
on a first-come first-served basis for a suitable replacement channel in
the same geographic area without being subject to competing applications
and without having to wait for a filing window.[^154] The Commission has
also relaxed certain technical requirements pertaining to interference
standards and taboo restrictions.[^155]

While the Commission's displacement policies are helpful to a certain
extent, in many situations, the engineering and planning required to
successfully file displacement applications and construct in accordance
with any resulting construction permit are too costly for noncommercial
educational licensees and the rural communities they serve. Although
Public Television emphasizes that it does not advocate any change to the
secondary status accorded television translators, it submits that the
Commission can do much more to encourage mutually acceptable technical
solutions prior to any request that a translator cease operations due to
a higher priority use.

In this regard, Public Television respectfully requests that the
Commission should facilitate the relocation of analog translators to
their communities by continuing to process displacement applications at
any time and quickly. In addition to the displacement relief that the
Commission already has in place, Public Television proposes that the
Commission should encourage all new entrants to cooperate and work with
existing analog translators to accommodate them, if possible, in finding
technical solutions prior to requesting that the translator cease
operations.[^156] Examples of such technical solutions include, but are
not limited to, the use of directional antennas and limits on power
and/or antenna height.[^157] In this regard, significant technical
advances have been made that will achieve major spectrum efficiencies to
provide the spectrum needed for and during the transition to nationwide
digital television.[^158]

**Conclusion**

For the above reasons, Public Television urges the Commission to act
swiftly to authorize the licensing and operation of digital translators
and on-channel repeaters in rural areas and to protect the integrity of
the existing analog service while maintaining its secondary status.

Respectfully submitted,

+-----------------------------------+-----------------------------------+
| [/s/ Lonna M.                     | [/s/Jill D.                       |
| Thompson\_\_\_\_                  | Patrone\_\_\_\_\_\_\_\_           |
| \_\_\_\_\_\_\_\_\_\_]{.underline} | \_\_\_\_\_\_\_\_\_\_]{.underline} |
|                                   |                                   |
| Lonna M. Thompson                 | Katherine Lauderdale              |
|                                   |                                   |
| Vice President & General Counsel  | Senior Vice President and General |
|                                   | Counsel                           |
| Andrew D. Cotlar                  |                                   |
|                                   | Paul Greco                        |
| Senior Staff Attorney             |                                   |
|                                   | Vice President and Deputy General |
| Association of Public Television  | Counsel                           |
| Stations                          |                                   |
|                                   | Jill D. Patrone                   |
| 666 Eleventh Street, NW, Suite    |                                   |
| 1100                              | Associate General Counsel         |
|                                   |                                   |
| Washington, D.C. 20001            | Public Broadcasting Service       |
|                                   |                                   |
| [ww                               | 1320 Braddock Place               |
| w.apts.org](http://www.apts.org/) |                                   |
|                                   | Alexandria, Virginia 22314-1698   |
| Telephone: 202-654-4200           |                                   |
|                                   | [                                 |
| Fax: 202-654-4236                 | www.pbs.org](http://www.pbs.org/) |
|                                   |                                   |
|                                   | Telephone: 703-739-5000           |
|                                   |                                   |
|                                   | Fax: 703-837-3300                 |
+-----------------------------------+-----------------------------------+
| November 25, 2003                 |                                   |
+-----------------------------------+-----------------------------------+

**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | * | MB Docket No. 03-185         |
|                                  | * |                              |
| 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              |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  |   |                              |
|                                  | * |                              |
|                                  | * |                              |
|                                  | ) |                              |
|                                  | * |                              |
|                                  | * |                              |
+----------------------------------+---+------------------------------+

**REPLY COMMENTS OF THE ASSOCIATION OF PUBLIC TELEVISION STATIONS AND
THE PUBLIC BROADCASTING SERVICE**

The Association of Public Television Stations ("APTS") and the Public
Broadcasting Service ("PBS") (collectively, "Public Television")[^159]
hereby submit reply comments in the above-captioned proceeding.

In our Comments, Public Television argued that it is important that the
Commission act swiftly to provide for the licensing of digital
translator and on-channel repeaters so that rural America is not left
behind in the digital revolution transforming this country's media
landscape. The Commission's comprehensive Notice of Proposed Rulemaking
is a significant step in the right direction. Public Television
continues to believe that, with limited modifications, the proposed
application processing procedures are both fair and reasonable. Further,
the Commission should allow for technological flexibility and licensee
autonomy to address local programming and technical needs. Lastly, the
Commission should act to protect the integrity of the existing analog
translator service, while maintaining its secondary status, by
encouraging mutually acceptable technical solutions prior to any request
that an analog translator cease operations due to a higher priority use.

The Commission has received scores of comments from a diverse range of
interested parties in this proceeding, including those from full-power
commercial and noncommercial broadcasters, licensees of the rural
translator service, proponents for low power television and Class A
stations, new technology entrants in the lower 700 MHz band,
representatives of the public safety community, communications engineers
and the public. With a few exceptions, many of these parties support the
expedited creation of new rules to authorize digital translators, low
power, Class A and booster stations. However, a few segments of the
communications industry oppose the introduction of these digital
services for reasons that, while seemingly reasonable, are ultimately
unfounded. In order to support the conversion of its entire
infrastructure to digital, and to bring the power of digital
noncommercial educational services to rural Americans, Public Television
hereby responds to MSTV/NAB and the new licensees in the lower 700 MHz
band, both of whom oppose elements of the Commission's proposed rules.

I.  **Concerns About Potential Interference and Difficulty with
    Repacking the Broadcast Television Spectrum Do Not Counsel Delay in
    the Creation of Rules for and Acceptance of Applications for Digital
    Translators and On-Channel Boosters**

MSTV and NAB urge delaying the issuance of second channels to LPTV,
television translator and Class A stations until the end of the DTV
transition, citing apparent concerns regarding the possibility of
interference to full-power broadcast television services and difficulty
with the "repacking" of broadcast spectrum upon the completion of the
transition if low power stations were to operate second channels.[^160]
Both of these concerns are unfounded but in any event may be addressed
by focusing on upgrading the rural translator service first.

> **a. Federal Statute and Congressional Policy Mandate the Processing
> of Digital Translator Applications**

As an initial matter, the Commission should be aware that while it
weighs the advantages and disadvantages of authorizing a digital
translator (or on-channel booster) service, Congress has directly spoken
on the subject, requiring the Commission to accept applications for
digital upgrades by translator stations. Federal statute states in
relevant part:

> "Issuance of licenses for advanced television services to television
> translator stations and qualifying low-power television stations - The
> Commission is not required to issue any additional license for
> advanced television services to \... any licensee of any television
> translator station, but [shall accept a license
> application]{.underline} for such services proposing facilities that
> will not cause interference to the service area of any other broadcast
> facility applied for, protected, permitted, or authorized on the date
> of filing of the advanced television application. \... A licensee of a
> \... television translator station [may]{.underline}, [at the option
> of licensee]{.underline}, elect to convert to the provision of
> advanced television services on its analog channel, but shall not be
> required to convert to digital operation until the end of such
> transition period."[^161]

In this statute, Congress has stated that the Commission is not required
to allocate and assign additional channels on a general basis to all
translators for digital broadcast as it did for full-power television
broadcast licensees. Rather, the Commission is directed to accept any
individual application by television translator stations for either (1)
a second channel on which to operate in digital or (2) an on-channel
hot-switch at the end of the DTV transition.[^162] The language "at the
option of the licensee" in the context of the latter makes it clear that
the choice between an additional channel or an on-channel hot-switch is
the licensee's to make, not the Commission. Moreover, in the former
case, the only contingency is that an application for a second channel
not cause interference to any incumbent primary broadcast service. In
the latter case, no additional interference requirements are imposed.
Had Congress intended additional interference requirements to be imposed
on on-channel conversion requests, it would have stated as much. Many of
parties in this proceeding opposed to the introduction of a digital
translator or booster service act as if the Commission has full
discretion in this field but ignore the Congressional language that
states otherwise.

Moreover, Congress has made its commitment to the digital upgrade of
rural translators even more apparent through its most recent
appropriations. Pursuant to Congressional directive, the Department of
Agriculture's Rural Utilities Service is poised to announce in the near
future the award of approximately \$15 million in grants to fund
equipment \-- including digital translators \-- designed to facilitate
the delivery of digital television signals to rural areas.[^163] Because
the needs of rural America were greater than the available funding in
fiscal year 2003, Congress has appropriated [an additional]{.underline}
\$14 million for fiscal year 2004 in the current omnibus appropriations
bill "to convert analog to digital operation those noncommercial
educational television broadcast stations that serve rural areas and are
qualified for Community Service Grants by the Corporation for Public
Broadcasting under section 396(k) of the Communications Act of 1934,
[including associated translators, repeaters, and studio-to-transmitter
links]{.underline}."[^164] Through its appropriation process, Congress
has again spoken with remarkable clarity: the digital upgrade of
translators serving rural America is a Congressional priority that
brooks no delay, otherwise federal funds would have been encumbered in
vain.

> **(b) An On-Channel Flash-Cut is Not A Substitute for the Award of
> Second Channels for Digital Translator Broadcast Service**

To be sure, neither MSTV/NAB nor any other full-power broadcaster,
objects to applications for on-channel flash-cuts.[^165] This approach,
however, should in no way be considered an adequate substitute for a
second-channel approach, for as noncommercial educational licensees
Vermont Educational Television and KAET (Phoenix, AZ) have aptly noted
in their comments filed in this proceeding, a flash-cut conversion
ordinarily will occur only after the transition to digital is finished,
otherwise rural Americans would be disenfranchised by the sudden
cessation of analog service.[^166] Thus, the option to either flash-cut
on-channel or operate a second channel is critically important to
maintaining quality service to rural America, a fact recognized by a
number of full-power broadcasters who support the award of second
digital channels under certain circumstances,[^167] and by Congress in
the explicit working of Section 336(f)(4), as discussed above.

> **(c) The Likelihood of Interference from Rural Digital Translator
> Operations is Low**

While MSTV and NAB raise the reasonable concern that the proliferation
of low power stations might cause additional interference to full-power
broadcast operations (a concern Public Television shares), history and
current technical experience demonstrate that there should be little
concern. Indeed, the Commission has accurately remarked that "\[a\]
hallmark of the low power television service in its 20-year history has
been the few reported cases of interference caused by LPTV and TV
translator stations."[^168] And real-world experiments with DTV
translators by Kent Parsons in Utah suggest that the possibility of
interference from translators in rural areas, even on adjacent channels,
is negligible.[^169] Indeed, the National Translator Association has
presented additional evidence in its comments that "if an analog station
is converted to digital at 25% average digital power (-6dB), there is no
increase in predicted interference to any other station. That is, if all
other stations are protected by the analog operation, they will continue
to be protected. The protection actually increases except for the one
case of co-channel with offset where it remains the same."[^170]

MSTV and NAB also oppose the use of interference agreements among Class
A, LPTV and TV translators vis a vis full-power stations.[^171] While
MSTV and NAB recognize that current policy is to allow private
interference agreements,[^172] it objects that the digital context is
different because DTV reception is less predictable and interference can
result in a complete loss of reception.[^173] While Public Television is
sympathetic to this view and concurs with the need to preserve the
integrity of full-power operations, it also believes that a number of
interference disputes can be resolved through technical solutions
between the parties, especially in rural areas.[^174] In this regard,
the Commission should encourage the resolution of these disputes through
such means, including interference agreements, wherever possible.

> **(d) Digital Translators in Rural Areas Will Not Adversely Affect the
> "Repacking" Process**

MSTV and NAB also raise concerns that the authorization of a second
channel for translator, LPTV and Class A stations would adversely affect
the repacking of television broadcast channels into the core of channels
2 through 51 required for a successful transition to digital
television.[^175] Public Television shares this concern, as numerous
public television stations will need to migrate from out-of-core
channels into the DTV core of channels 2 though 51. However, as MSTV/NAB
and the Commission are well aware, translator and some low power
stations are considered secondary services that must protect not only
full-power operations but also Class A stations from interference.
Translators that operate out-of-core (approximately one-third of the
over 700 public television translators), will of course pose no problem
for full-power stations seeking in-core channels. Some of the remaining
translators that operate within the core will undoubtedly have to
relocate if a full-power station identifies the channel as a useful for
its final channel home. In this regard, given the secondary nature of
television translators, the channel repacking process would be no more
complicated by the addition of secondary services designed to serve
rural Americans in a spectrum efficient manner. Although full-power
stations may need to identify and coordinate with incumbent secondary
services as the full-power stations migrate to the core, the same number
of in-core channels will be available to full-power stations regardless
of the existence of secondary television services.

Nevertheless, even given the concerns of possible interference and
difficulty with repacking the television broadcast spectrum, the
Commission may act to address [rural]{.underline} access now -- where
interference and spectrum congestion is less of an issue -- while
perhaps deferring further consideration on [urban]{.underline}
allotments pending further study concerning the availability of spectrum
and the possibility of interference in urban environments. In this
regard, MSTV and NAB suggest that to alleviate the interference and
repacking issue, the Commission may, on a case-by-case basis, accept
applications for second channels with which to operate digital
translators in "geographically isolated areas," provided that the grant
of such applications would not "limit channel choices or result in any
additional interference to full service stations."[^176]

Public Television concurs with this approach as an acceptable
provisional alternative measure if the Commission declines to accept
applications for a second channel by incumbent translators and LPTV on a
general basis. As Public Television and some commercial broadcasters
have observed, television translators are distinct from LPTV and Class A
stations, largely because television translators are a predominantly
rural service (in addition to the fact that translators do not originate
programming).[^177] If the Commission were to focus on accepting
applications from rural translators for second channels, it may, as the
National Translator Association suggested, restrict applications to
those from communities with a maximum number of stations available over
the air,[^178] or it may as an alternative rely on the Rural Utilities
Service definitions of "rurality" as a

guideline.[^179]

II. **Concerns by Licensees in the 700 MHz Band Should Not Counsel Delay
    in Introducing Digital Services to Rural Americans**

The Commission has also received a number of comments from companies
licensed to operate in the lower 700 MHz band that oppose the
introduction of new channels for television translator, low power and
Class A operations in the band. These companies -- predominantly
representatives of the cell-phone industry--- raise a number of
objections including: (a) that introduction of secondary services in the
700 MHz band was somehow unexpected and unfair in light of the
substantial amounts paid at auction for the spectrum; (b) that secondary
services will create unwanted interference to new licensees in the 700
MHz band; and (c) that the introduction of secondary digital service in
rural areas will not significantly advance the DTV transition. None of
these concerns is warranted.

> **(a) Introduction of Secondary Services in the Lower 700 MHz Band
> Will Not Frustrate the Legitimate Expectations of Auction Winners**

Nearly all of the comments from 700 MHz licensees allege that it is
unfair to authorize additional channels (or in some instances to
authorize an on-channel flash-cut) in the 700 MHz band, because those
successful licensees in the auction placed bids under the assumption
that the band would be cleared of incumbents. These licensees variously
claim that the introduction of secondary services was somehow
unexpected, or even represented an actual reversal of Commission policy.
These licensees also claim that the proposed policy is unfair in light
of the substantial sums these licensees paid for spectrum in Actions 44
and 49.[^180]

In support of the claim that introduction of secondary services in the
700 MHz band was somehow unexpected, the 700 MHz licensees selectively
quote from paragraph 28 of the Commission's order establishing service
rules in the lower 700 MHz band,[^181] conveniently ignoring paragraph
27 where the [Commission quite explicitly authorized LPTV and translator
stations to continue operating in the band as a secondary
service]{.underline} [even after the DTV transition]{.underline},
provided that these stations did not cause actual interference to
primary licensees in the band.[^182]

This policy was surely not unexpected. As early as March 28, 2001, the
Commission announced its intentions to allow LPTV and TV translators
stations to operate as a secondary service in the lower 700 MHz band
after the DTV transition had been completed. It stated:

> \[W\]e believe that low power television should be permitted to
> continue to operate on the 698-746 MHz band on a secondary basis.
> Accordingly, we propose that LPTV and TV translator stations not be
> permitted to cause harmful interference to stations of primary
> services, including new licensees in Channels 52-59, and cannot claim
> protection from harmful interference from stations of primary
> services, including new licensees in Channels 52-59. However, as set
> forth in the *DTV Sixth Report and Order*, we propose that LPTV and TV
> translator operations will not be required to alter or cease their
> operations until they actually cause interference to a DTV station or
> new service provider\'s operations in the 698-746 MHz band.[^183]

And in its final order, released in January of 2002, the Commission
again made it clear that it was adopting its proposed policy to allow
LPTV and TV translator stations to operate in the lower 700 MHz band
after the DTV transition.[^184] Five months later, Auction 49 was
conducted between May 28 and June 13, while eight months after the final
order was issued, Auction 44 was conducted between August 27 and
September 18, 2002.

Thus, [for over two years]{.underline} potential new licensees in the
700 MHz band were on notice that the spectrum for which they would bid
at auction could likely be encumbered by secondary broadcast services.
And in any event several months prior to bidding on the spectrum, these
licensees [knew with certainty]{.underline} that this was the
Commission's policy. The fact that these licensees paid highly for
access to this band is therefore irrelevant. Any attempt by 700 MHz
licensees to undo the Commission's decision should therefore be
considered a late-filed petition for reconsideration and thus
disregarded.[^185]

In addition, the structure of the Communications Act makes it clear that
while band clearing of channels 60-69 is mandatory, no such statutory
mandate exists for channels 52 through 59, a statutory difference
recognized by the Commission in its lower 700 MHz service order.[^186]
Thus, as compared to the upper 700 MHz band, bidders for spectrum in the
lower 700 MHz band could not reasonably expect that the band would be
cleared of broadcast licensees.[^187] Licensees in the lower 700 MHz
band are simply trying to undo established Commission policy that was
based on explicitly articulated Congressional priorities.

Nevertheless, the Commission should be aware that it is the preference
of public television translator licensees to use in-core spectrum for
translator operations. Out-of-core allotments above channel 51 will be
considered only if core spectrum is unavailable or unusable.[^188] Thus,
Public Television agrees that applicants for television translator
service may reasonably be required to demonstrate the unavailability of
in-core channels before applying for channels out-of-core.[^189]
However, the Commission should be aware that even in rural areas
out-of-core channel use may, in certain circumstances, be necessary. In
this regard, more than one-third (35 percent) of public television
translators operate on channels 52 and above.[^190]

Further, to discourage spectrum speculation and spectrum squatting on
in-core channels, and thus to reduce ultimately the need to use
out-of-core channels, the Commission may require construction of
facilities in accordance with any approved construction permit within a
reasonable time.[^191]

**(b) Concerns about Interference Are Unfounded**

A number of 700 MHz licensees also raise concerns that existing and new
secondary services will create unwanted interference to their
operations, or, alternatively, that where interference is resolvable
through technical means, the process would be difficult and
expensive.[^192] As discussed above, however, the Commission has already
decided that television translator and LPTV service should be allowed in
the lower 700 MHz band on a non-interfering secondary basis, and that
interference agreements among 700 MHz licensees should be allowed.[^193]
Again, because this issue has been resolved with finality, any proposal
to ban television translators and LPTV station from the lower 700 MHz
band on the basis of potential interference issues should be considered
a late petition for reconsideration of the 700 MHz service rules order
and should be disregarded.

However, if the issue is not to ban television translator and LPTV
stations from the band but how to manage interference issues, the
Commission's NPRM does seek comment on how to extend its current rules
concerning interference with Land Mobile Radio and other primary
services to the context of digital LPTV and TV translators
operations.[^194] Public Television supports extension of the current
rules in this context.

Public Television wishes to note, however, that the possibility of
interference with mobile applications is significantly reduced in light
of the new "smart" technologies that are capable of seeking out
available spectrum on an opportunistic basis. In this regard, based on
the work of its Spectrum Policy Task Force and its most recently
announced Notice of Proposed Rulemaking on "smart" radios, as well as
past work on "cognitive radios," the Commission is currently examining
such technology as a means to enhance efficient spectrum use by multiple
parties on a non-interfering basis.[^195] In fact, the Commission has
observed that this technology is already being deployed by commercial
mobile wireless services and wireless local area networks.[^196]
Qualcomm's comparison between the average LPTV radiated power of 150
kilowatts and a typical handset's power of 10 milliwatts is therefore
misleading in two respects.[^197] First, it does not account for the
"smart" capabilities of many hand-sets. Second, it ignores the fact that
radiated power for the average rural translator is much less than that
for a typical LPTV operation: in many instances rural translators
operate with just a few watts of radiated power.

Public Television is willing to work with representatives of the cell
phone industry and other 700 MHz licensees to explore how interference
can be reduced and/or managed through mutually acceptable technical
solutions prior to any request by primary services to seek displacement.
In addition, if the Commission were to focus on rural translators alone,
as MSTV and NAB have suggested, the Public Television notes that the
potential for interference to 700 MHz licensees would be further
diminished.

> **(c) To Ensure a Fair and Equitable DTV Transition, the Commission
> Should Authorize Applications for Digital Rural Translators**

Lastly, a number of 700 MHz licensees advance the "red herring" argument
that digital TV translator and LPTV stations should not be allowed to
operate in the band because it would not significantly advance the DTV
transition.[^198] Other 700 MHz licensees, however, disagree, concurring
with the Commission that "\[t\]ranslators and LPTV stations will play a
significant rule in furthering the transition to digital
television."[^199] Regardless, as Public Television has stated in the
past, the fundamental issue at stake is one of fairness to rural
Americans as the digital transition progresses. Public Television has a
statutory mission to provide public telecommunications services to all
Americans regardless of their socioeconomic status, their ethnic
background or geographic location.[^200] Delivery of noncommercial
educational services over translator stations is critical to fulfilling
this statutory mission in rural areas and continues to be of critical
importance in the digital era.

III. **Other Issues**

In addition to the above, Public Television would like to reply
regarding a number of other issues raised in the comments filed,
including the following: (a) the proposed application processing
proposals; (b) transmission mode; (c) program/data origination; and (d)
boosters.

a.  **Proposed Application Processing Proposals**

Of the comments supporting the creation of a digital translator and LPTV
service, none oppose the Commission's proposed application processing
procedures, with many seeking only minor modifications.[^201] In its
Comments, Public Television voiced support for the Commission's proposed
application processing procedures but requested some minor alterations
to restrict spectrum speculation and to ensure that non-profits and
small communities have access to these valuable digital services. First,
it asked that in order to limit spectrum speculation, the Commission
should impose some reasonable geographic restrictions on the application
process. Second it requested that the Commission should restrict
spectrum speculation by limiting the number of *multi-state*
applications for LPTV and TV translator stations by a single entity.
Third, it reiterated its continuing objection to the use of auctions to
resolve mutual exclusivities. Public Television requests adoption of the
minor application processing modifications submitted in its comments to
the Commission.

b.  **Transmission Mode**

Public Television has asked that the Commission allow rural translators
to use either a heterodyne frequency conversion mode or a regenerative
digital mode at the broadcaster's option. A number of other comments
agree.[^202]

> **(c) Program Origination and Data Services**

Public Television has demonstrated that many public television stations
are interested in using their digital spectrum to provide a wide range
of ancillary and supplementary services to their communities[^203] and
has specifically requested that the Commission authorize translators to
offer such services.[^204] A few rural telephone companies that are also
interested in rolling out data services oppose allowing data delivery by
TV translators and LPTV stations for no reason other than it would
compete with their own service.[^205] These concerns are unfounded.

While there may be some overlap, public television stations are
primarily interested in providing data that serves their public service
mission and will not be directly competing with local telcos for
delivery of the same material. In this regard, two noncommercial
educational licensees, Vermont Educational Television and KAET, propose
that it would be helpful for the Commission to allow their translators
not only to offer pass-through ancillary and supplementary services
transmitted from the main station but to some extent to allow
translators to offer unique program streams and/or ancillary services to
address the local educational and public safety needs of remote
communities.[^206]

Public Television realizes that under current analog rules, a TV
translator may originate local public service announcements or messages
seeking or acknowledging financial support necessary for its continued
operation, not to exceed 30 seconds per hour, and that a TV translator
may also originate emergency warnings deemed necessary to protect life
and property.[^207] Public Television suggests that if it is not
feasible to change the definition of a translator to accommodate
expanded program and data origination, the Commission may do so on a
case-by-case basis through waivers of its rules, conditioned on the
consent of the main parent station.

MSTV and NAB also oppose any changes to the Commission's requirement
regarding program or data origination for television translators[^208]
but do not explain why they oppose modifications to the analog rule
except to say that it would "alter the fundamental nature of the
translator service."[^209] Public Television submits that if the rule
were to remain unchanged but subject to individualized waivers, no
change to the fundamental nature of the translator service as a whole
would occur.

**(d) Boosters**

In its Comments, Public Television has supported the authorization of
digital boosters (or on-channel repeaters) with interference protections
that are the same as the main station provided that the booster serves
the same population as the main channel on the main channel's
allocation. A number of other comments agree that the Commission should
go forward with authorizing digital boosters as a spectrum efficient
means of delivering digital signals to hard-to-reach areas.[^210] Only
MSTV and NAB oppose the authorization of a class of digital booster
stations, preferring that systems of boosters in networks of distributed
transmission be authorized instead.[^211] Public Television is on record
as supporting both approaches and disagrees that authorization of
singleton boosters would unnecessarily "divert" the Commission's
"attention" from other similar projects.[^212]

**Conclusion**

For the reasons articulated above, Public Television urges the
Commission to expedite the authorization of digital television
translator and LPTV stations.

Respectfully submitted,

+-----------------------------------+-----------------------------------+
| [\_/s/ Lonna M.                   | [\_/s/ Katherine                  |
| Thompson\_                        | Lauderdale\_                      |
| \_\_\_\_\_\_\_\_\_\_]{.underline} | \_\_\_\_\_\_\_\_\_\_]{.underline} |
|                                   |                                   |
| Lonna M. Thompson                 | Katherine Lauderdale              |
|                                   |                                   |
| Vice President & General Counsel  | Senior Vice President and General |
|                                   | Counsel                           |
| Andrew D. Cotlar                  |                                   |
|                                   | Paul Greco                        |
| Senior Staff Attorney             |                                   |
|                                   | Vice President and Deputy General |
| Association of Public Television  | Counsel                           |
| Stations                          |                                   |
|                                   | Jill D. Patrone                   |
| 666 Eleventh Street, NW, Suite    |                                   |
| 1100                              | Associate General Counsel         |
|                                   |                                   |
| Washington, D.C. 20001            | Public Broadcasting Service       |
|                                   |                                   |
| [ww                               | 1320 Braddock Place               |
| w.apts.org](http://www.apts.org/) |                                   |
|                                   | Alexandria, Virginia 22314-1698   |
| Telephone: 202-654-4200           |                                   |
|                                   | [                                 |
| Fax: 202-654-4236                 | www.pbs.org](http://www.pbs.org/) |
|                                   |                                   |
|                                   | Telephone: 703-739-5000           |
|                                   |                                   |
|                                   | Fax: 703-837-3300                 |
+-----------------------------------+-----------------------------------+
| December 23, 2003                 |                                   |
+-----------------------------------+-----------------------------------+

[^1]: Department of Commerce, National Telecommunications and
    Information Administration, United States Spectrum Management Policy
    for the 21^st^ Century, Notice of Inquiry, 69 FR 4923 (Feb. 2,
    2004).

[^2]: Presidential Memorandum on Spectrum Policy for the 21^st^ Century,
    69 FR 1568 (Jan. 9, 2004).

[^3]: It has been estimated, for instance, that the value of the
    additional economic activity generated from the return of this
    spectrum could be between \$14 billion to \$127 billion each year.
    Communications Daily, Mass Media Notes (Feb. 23, 2004).

[^4]: A digital translator typically operates at low power and receives
    the signal of either the main transmitter or another translator on
    one channel and "translates" it into another channel for output to a
    local area unable to receive the main signal.

[^5]: A digital on-channel repeater receives the signal of a main
    transmitter on one channel while distributing that signal on the
    same channel to a local area that is unable to receive the main
    signal.

[^6]: 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, Notice of Proposed Rulemaking,
    FCC 03-198, MB Docket No. 03-185 (rel. Aug. 29, 2003).

[^7]: Pursuant to Congressional directive, the Department of
    Agriculture's Rural Utilities Service has announced the award of
    approximately \$15 million in grants to fund equipment \-- including
    digital translators \-- designed to facilitate the delivery of
    digital television signals to rural areas. See
    <http://www.usda.gov/Newsroom/0079.04.html>. See also Sen. Rep.
    107-223, p. 123 (Jul. 25, 2002) (appropriating \$15,000,000).
    Because the needs of rural America were greater than the available
    funding in fiscal year 2003, Congress has recently appropriated [an
    additional]{.underline} \$14 million for fiscal year 2004. See H.
    Rep. 108-401, pp. 23-24 (Nov. 25, 2003).

[^8]: 47 U.S.C. §§ 396(a)(5), (7).

[^9]: See Association of Public Television Stations, Public Broadcasting
    Service and Corporation for Public Broadcasting, Petition for
    Rulemaking, [Enhancement of Broadband Access Through the
    Preservation of Public Television Translator Service and the
    Development of Digital Translators and Digital On-Channel
    Repeaters]{.underline} (May 29, 2002); Comments of the Association
    of Public Television Stations, the Corporation for Public
    Broadcasting and the Public Broadcasting Service, RM-10666 (May 16,
    2003); and Reply Comments of the Association of Public Television
    Stations, the Corporation for Public Broadcasting and the Public
    Broadcasting Service, RM-10666 (June 16, 2003).

[^10]: Reply Comments of Idaho Public Television, Rural and Small Market
    Access to Local Television Signals, National Telecommunications and
    Information Agency, Docket No. 000208032-0032-01, (May 15, 2000), p.
    1.

[^11]: For instance, it has been reported that in Utah, "Cable companies
    use the translators to provide the Salt Lake City television
    stations to rural viewers. Therefore, if a translator goes off the
    air, the cable company can't provide the station carried by the
    translator to its viewers." Bill McClure, "Free Rural Television May
    Soon Be A Thing of the Past," the Richfield Reaper (April 5, 2000),
    p. 1-A. "This system \[of translators\] not only fills the free
    airwaves, but also feeds local broadcasts to the cable systems, such
    as Peak Cablevision." Martin Renzhofer, "Rural Utah May Lose Free
    Television Feed," The Salt Lake Tribune (March 15, 2000),p. D1.

[^12]: See "DTV Goes to the Country: TV Engineer Successfully Tests
    8-VSB Over Challenging Terrain," Broadcasting and Cable (April 9,
    2001), available at:
    [www.broadcastingandcable.com.](http://www.broadcastingandcable.com./)
    See also "Multi-hop DTV Translators at Work in Utah," Broadcast
    Engineering (May 1, 2001), available at:
    [www.broadcastengineering.com](http://www.broadcastengineering.com/).

[^13]: Comments of the Merrill Weiss Group, MM Docket No. 00-39, p. 21
    (May 17, 2000), *citing* S.A. Lery, W.H. Paik, and R.M. Rast,
    "Extending HDTV Coverage using Low Power Repeaters---a Cellular
    Approach," IEEE Transactions on Broadcasting, Vol. 38, No. 3, pp.
    145-150 (Sept. 1992). See also Charles Rhodes, "Engineering and
    On-Channel Off-Air DTV Repeater," TV Technology (June 28, 2000); and
    Khalil Salehian, Michele Guillet, Bernard Caron, and Andre Kennedy,
    "On-Channel Repeater for Digital Television Broadcasting Service,"
    Communications Research Centre, Ottowa, Ontario, presented to the
    IEEE Broadcast Symposium (October, 2001, Washington, DC) (reporting
    on successful tests of on-channel repeaters using the 8-VSB
    standard).

[^14]: Budget of the United States Government, Fiscal Years 2004,
    Executive Office of the President of the United States, Office of
    Management and Budget, Appendix, pp. 224-225 (2003).

[^15]: 47 U.S.C. § 309(j)(14)(B).

[^16]: 47 U.S.C. § 309(j)(14)(B). In encouraging the development of DTV
    and in managing the statutory mandate to convert all television
    broadcasting to digital, the FCC has articulated a number of goals.
    They are: (a) to preserve a free, universal broadcasting service;
    (b) to foster an expeditious and orderly transition to DTV; (c) to
    recover contiguous blocks of spectrum; (d) to ensure that the
    spectrum will be used to serve the public interest; (e) to ensure
    confidence and certainty in the DTV transition; (f) to increase the
    availability of new products and services to consumers; (g) to
    encourage technological innovation and competition; and (h) to
    minimize regulation and to ensure that those regulations that are
    adopted do not last any longer than necessary. [Advanced Television
    Systems and Their Impact on the Existing Television Broadcast
    Service]{.underline}, Fifth Report & Order, 12 FCC Rcd 12809, ¶ 4
    (1997) ("Fifth R&O").

[^17]: [Advanced Television Systems and Their Impact on the Existing
    Television Broadcast Service]{.underline}, Sixth Report & Order, 12
    FCC Rcd 14588 (1997) ("Sixth R&O").

[^18]: Fifth R&O, ¶ 76 and 47 C.F.R. § 73.624(d).

[^19]: Sixth R&O, ¶ 33 and Fifth R&O, ¶¶ 74 n. 161, 91 (allowing initial
    broadcast of low power signal).

[^20]: Sixth R&O, ¶ 31, and 47 C.F.R. § 73.622(f)(5).

[^21]: 47 C.F.R. § 73.624(f).

[^22]: See 47 C.F.R. § 73.624(b) and [Second Period Review of the
    Commission's Rules and Policies Affecting the Conversion to Digital
    Television]{.underline}, Order, DA 03-1292 (rel. April 29, 2003).

[^23]: [Remedial Steps for Failure to Comply with Digital Television
    Construction Schedule]{.underline}, Report and Order and Memorandum
    Opinion and Order on Reconsideration, 68 Fed. Reg. 43329 (rel. April
    16, 2003).

[^24]: Fifth R&O, ¶¶ 2-4.

[^25]: See Letter from Michael K. Powell to Rep. W.J. Tauzin, CS Docket
    No 98-120 (April 4, 2002).

[^26]: The "broadcast flag" is a digital code that can be embedded into
    a digital broadcasting stream. It signals DTV reception equipment to
    limit the indiscriminate redistribution of digital broadcast
    content. See [Digital Broadcast Content Protection,]{.underline}
    Report and Order and Further Notice of Proposed Rulemaking, FCC
    03-273 (Nov. 4, 2003).

[^27]: [Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television]{.underline}, Second Report and
    Order and Second Memorandum Opinion and Order,17 FCC Rcd 15978 (Aug.
    9, 2002), *aff'd* *Consumer Electronics Association v. FCC*, 347
    F.3d 291 (D.C. Cir. 2003).

[^28]: "FCC Eases Digital TV Transition for Consumers," Federal
    Communications Commission Press Release (Sept. 10, 2003), available
    at: <http://www.fcc.gov/headlines.html>.

[^29]: Public television played an active role in developing the
    transmission standard for digital television and served on the
    Commission's Advisory Committee on Advanced Television Service,
    whose recommendations gave rise to the adoption of the "ATSC
    Standard." In addition, PBS was one of the founding members of the
    Advanced Television Test Center, which conducted laboratory tests of
    the Grand Alliance System. PBS also conducted field tests of the
    Grand Alliance system in Charlotte, North Carolina. WMVT, the public
    television station in Milwaukee, was the first broadcaster to
    provide an HDTV satellite test signal. And in 1998, KCTS in Seattle
    was the first public broadcaster to begin transmitting digital
    signals using the ATSC standard and was the first station in the
    United States to produce HDTV programming.

[^30]: In this regard, 24% cited funding difficulties; nearly 80% cited
    technical difficulties (including lack of tower crews, delays in
    obtaining necessary equipment, and interference disputes); and 43%
    cited legal obstacles (such as zoning disputes or delays in
    obtaining necessary permissions from authorities). In addition,
    fifteen state licensees (with multiple transmitters) had filed for
    an extension of time to construct at least one of their digital
    transmitters.

[^31]: <http://www.fcc.gov/mb/video/files/dtvsum.html>. Of the extension
    requests, 83.3% cited technical reasons, 19% cited funding reasons,
    31.8% cited legal reasons, and 19.9% cited other reasons for the
    delay.

[^32]: [www.apts.org](http://www.apts.org/). On October 31, 2003, PBS
    has reported that of their member stations on air as of November,
    over 75% were operating at over 50% power or greater, with the
    remaining stations committed to increasing to full power levels as
    soon as their funding permits. The FCC separately reported that as
    of November 19, 2003, of the 219 DTV NCE stations were on-air, 90
    were broadcasting with STAs. See
    [www.fcc.gov/mb/video/files/dtvonairsum.html](http://www.fcc.gov/mb/video/files/dtvonairsum.html).
    (Nov. 19, 2003).

[^33]: Corporation for Public Broadcasting Appropriation Request and
    Justification FY 2004 and FY 2006, Submitted to the Labor, Health
    and Human Services, Education and Related Agencies Subcommittee of
    the House Appropriations Committee and to the Labor, Health and
    Human Services, Education and Related Agencies Subcommittee of the
    Senate Appropriations Committee, p. 9 (February 2003), available at:
    <http://www.cpb.org/about/reports/appropriation/fy04_fy06/index.html>.
    Conversion of public radio will cost \$171 million, which added to
    the television digital conversion costs yields \$1.8 billion.

[^34]: Approximately \$473 million in state funds have gone to aid in
    the digital conversion and well over \$260 million in private funds
    have been raised for the digital transition.
    <http://www.cpb.org/digital/funding/dig_funding.html>. The
    Association of Public Television Stations reports a slightly
    different number of \$771 for private and state funding for the
    digital conversion. See
    <http://www.apts.org/html/digital/dtv/funding.htm>.

[^35]: This includes approximately \$131.87 million in digital funds
    through the Department of Commerce Public Telecommunications (\$14.1
    million for FY 2000, \$34.7 million for FY 2001, \$36.2 million for
    FY 2002, \$25 million for FY 2003, and \$21,870,200 for FY 2004),
    <http://www.ntia.doc.gov/otiahome/ptfp/awards/earlieryears.htm>;
    \$153.05 million for CPB digital appropriations (\$20 million for FY
    2001, \$25 million for FY 2002, \$48.4 million for FY 2003, and
    \$59,646,000 for FY 2004),
    <http://www.cpb.org/digital/funding/dig_funding.html>; and \$28.92
    million through the Rural Utilities Service for digital upgrades in
    rural areas (\$15 million for FY 2003 and \$13.92 million for FY
    2004), Department of Agriculture, Rural Utilities Service, Public
    Television Station Digital Transition Grant Program, Notice of Funds
    Availability, 68 Fed. Reg. 42680 (July 18, 2003).

[^36]: Comments of the Association of Public Television Stations, the
    Corporation for Public Broadcasting and the Public Broadcasting
    Service, MB Docket 03-15, p 10 (April 21, 2003).

[^37]: See [Service Rules for the 746-764 and 776-794 MHz Bands and
    Revisions to Part 27 of the Commission's Rules, Carriage of the
    Transmissions of Digital Television Broadcast Stations, Review of
    the Commission's Rules and Policies Affecting the Conversion to
    Digital Television]{.underline}, Memorandum Opinion and Order and
    Further Notice of Proposed Rulemaking, 15 FCC Rcd 20845, FCC 00-224,
    ¶ 61 (June 30, 2000); and [Service Rules for the 746-764 and 776-794
    MHz Bands, and Revisions to Part 27 of the Commission's
    Rules]{.underline}, Third Report and Order, FCC 01-25, ¶16 (rel.
    Jan. 23, 2001).

[^38]: [Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52 -59]{.underline}), Report and Order, FCC
    01-364, ¶ 184 (rel. Jan. 18, 2002).

[^39]: See Letter to John M. Burgett, Esq. from Barbara Kreisman, Media
    Bureau, File 1800E3-JLB, DA 03-2845 (Sept. 3, 2003).

[^40]: The eEurope 2005 Action Plan requires member states of the EU to
    publish their analog-to-digital switchover plan by the end of 2003.
    "Digital Broadcasting and Switchover," Press Release, European
    Commission (Sept. 22, 2003), available at:
    [http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.getfile=gf&doc=IP/03/1276\|0\|RAPID&lg=EN&type=PDF](http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.getfile=gf&doc=IP/03/1276|0|RAPID&lg=EN&type=PDF).
    For the full policy document, see:
    <http://europa.eu.int/information_society/topics/ecomm/doc/shortcuts/digital_broadcasting/acte_en_vf.pdf>.

[^41]: In Berlin, which has 1.8 million television households, 160,000
    homes relied on over-the-air reception and 90,000 homes received
    over-the-air signals for second and third television sets. Mark
    Landler, \"German Way to Go Digital: No Dawdling,\" New York Times
    (Nov. 3, 2003).

[^42]: Mark Landler, \"German Way to Go Digital: No Dawdling,\" New York
    Times (Nov. 3, 2003). See also "Berlin Goes Digital: the Switchover
    of Terrestrial Television from Analogue to Digital Transmission in
    Berlin-Brandenburg, Experiences and Perspectives," available at:
    <http://www.digital-law.net/switch-off/berlin_project_report.pdf>.

[^43]: "Berlin Goes Digital," p. 4.

[^44]: [Id]{.underline}. at p. 6.

[^45]: [Id]{.underline}.

[^46]: [Id]{.underline}. at p. 8.

[^47]: [Id]{.underline}. at pp. 8, 15. See also Mark Landler, \"German
    Way to Go Digital: No Dawdling,\" New York Times (Nov. 3, 2003), and
    Thomas Hazlett, "Finally, Something Good on German TV: Berlin has
    digital television. Why can't the U.S. follow?" (Oct. 7, 2003),
    available at: <http://slate.msn.com/id/2089424/>.

[^48]: These included a limited number of channels that failed to
    compete with BSkyB's 500 channels and a costly deal to cover the
    Football League. Stephen Dowling, "Freeview marks its first year"
    BBC News, (Oct. 30, 2003), available at:
    <http://news.bbc.co.uk/go/pr/fr/-/1/hi/entertainment/tv_and_radio/3197802.stm>.

[^49]: "Freeview reaches first birthday," BBC News (Oct. 30, 2003),
    available at:
    <http://news.bbc.co.uk/go/pr/fr/-/1/hi/entertainment/tv_and_radio/3225241.stm>.
    See also Matt Wells, "Digital TV at turning point as converts top
    50%," The Guardian (Dec. 17, 2003).

[^50]: "Half of UK 'Getting Digital TV," BBC News (Dec. 17, 2003); Matt
    Wells, "Digital TV at turning point as converts top 50%," The
    Guardian (Dec. 17, 2003). The 2.5 million figure is derived from
    adding sales of Freeview-type boxes to existing ITV boxes that
    already receive the Freeview service. The 50% figure is derived from
    adding up Sky's 7 million subscribers, the 2.2 million digital cable
    subscribers, owners of integrated digital sets, owners of ITV boxes
    and Freeview boxes. Matt Wells, "Digital TV at turning point as
    converts top 50%," The Guardian (Dec. 17, 2003). See also BBC Press
    Release About the Success of Digital TV, (Dec. 17, 2003), available
    at:
    [www.digitag.org/news/newsdetail.php?Id=334](http://www.digitag.org/news/newsdetail.php?Id=334).

[^51]: BBC Press Release About the Success of Digital TV, (Dec. 17,
    2003). See also Independent Television Commission and the BBC, "A
    Report on Progress Towards Digital Switchover," pp. 24 et. seq.
    (April 2003), available at:
    <http://www.digitaltelevision.gov.uk/pdfs/ITC_BBC_switchover_report.pdf>.

[^52]: Clair Cozens, "Freeview Fails to Boost Multichannel Ratings," The
    Guardian (Dec. 19, 2003). See also Broadcast, Communications Daily
    (January 8, 2004) (reporting on British Home Office study stating
    that while almost 50% of homes have digital television, 13% planned
    not to use it).

[^53]: "Half of UK 'Getting Digital TV," BBC News (Dec. 17, 2003).

[^54]: 47 U.S.C. §§ 396(a)(5), (a)(7), (a)(9).

[^55]: [Annual Assessment of the Status of Competition in the Market for
    the Delivery of Video Programming]{.underline}, Tenth Annual Report,
    FCC 04-5, ¶ 7 (Rel. Jan. 28, 2004) (85.25% of all TV households
    subscribe to a multichannel video programming distributor; by
    implication 14.75% do not). This average figure has not
    substantially declined over the past year. See [Annual Assessment of
    the Status of Competition in the Market for the Delivery of Video
    Programming]{.underline}, Ninth Annual Report, FCC 02-338, Table B-1
    (Dec. 31, 2002) (figures as of June, 2002). This does not account
    for additional over-the-air reliant television sets in households
    with cable or DBS attached to one set. One way to account for this
    is to count TV sets, not households. See Comments of the National
    Association of Broadcasters, *In the Matter of Annual Assessment of
    the Status of Competition in the Market for the Delivery of Video
    Programming*, CS Docket 01-129 (Aug. 3, 2001) (46.5 million
    television sets rely on OTA reception). According to information
    supplied by PBS, at present 16% of Nielsen households (837 out of
    5,191) receive their television over the air. According to Dennis
    Haarsager, who conducted a November 2003 analysis of Television
    Bureau of Advertising (TVB) and Nielsen data, 17.5 million, or 16.1
    % of 108,462,735 TV Households rely exclusively on over-the-air
    reception. In addition, a number households that subscribe to DBS
    but not to local-into-local rely on over-the-air reception for local
    stations. These total approximately 3.2 million additional
    households, raising the total reliance on over-the-air reception to
    20.7 million or 19.1% of all television households.

[^56]: For instance, even in the largest DMA's over-the-air reception
    approaches 21% of TV Households in the Los Angeles and Chicago DMAs;
    10% in New York; and 12% in Washington, DC. Among the smallest
    DMA's, a similar variation exists, with 12% over-the-air reception
    in North Platte, NE (DMA 209); 6% in Clarksburg-Weston, WV (DMA
    165); and 34% in Fairbanks (DMA 203) and 40% in Harlington, TX (DMA
    97). Similarly, Dennis Haarsager has estimated that the national
    average of cable penetration (67.6% of all TV Households) is also
    subject to geographic variation, with penetration is as high as
    89.4% in the Honolulu DMA and as low as 40.5% in the Boise DMA. In
    addition, while satellite subscription rates (excluding C-Band) are
    18.6% of all TV Households on average, a similar geographic
    variation for this service exists among DMAs as well.

[^57]: Robert Kieschnick and B.D. McCullough, *Why Do People Not
    Subscribe to Cable Television? A Review of the Evidence* (1998),
    available at:
    [www.tprc.org/abstracts98/kieschnick.pdf](http://www.tprc.org/abstracts98/kieschnick.pdf).

[^58]: Kieschnick and McCullough, p. 4. The authors of the study also
    reported that at the time, "70% of the households not subscribing to
    cable television services \[were\] above the poverty line."
    [Id]{.underline}. at 5. This result may also be consistent with
    previous studies of the purchasing behaviors of indigent households,
    where it was determined that such households frequently purchase
    cable television subscriptions before purchasing basic telephone
    service. *See* Kieschnick and McCullough, p. 5, n. 10, citing Milton
    Mueller and Jorge R. Schement, *Universal Service from the Bottom
    Up: A Profile of Telecommunications Access in Camden, New Jersey,*
    Report, Rutgers University School of Communication, Information and
    Library Studies (1995).

[^59]: Kieschnick and McCullough, p. 7.

[^60]: Ages 45-54 represented 18% of respondents; ages 35-44 represented
    25%; and ages 25-34 represented 26%. The following were the
    percentages in the on-line survey: ages 55+, 18%; ages 45-54, 21%;
    ages 35-44, 25%; ages 25-34, 25%; and ages 21-24, 11%. Age and
    Income of Non-Multichannel Households, Frank N. Magid Associates,
    Inc (January, 2004).

[^61]: Kieschnick and McCullough, p. 8. See also [Id]{.underline}. at p.
    26, citing Alan B. Albarran and Don Umphrey, *Marketing Cable and
    Pay Cable Services: Impact of Ethnicity, Viewing Motivations, and
    Program Types*, Journal of Media Economics, 7:3, pp. 47-58 (1994).

[^62]: Comment of the National Association of Broadcasters, *In the
    Matter of Annual Assessment of the Status of Competition in the
    Market for the Delivery of Video Programming*, CS Docket 01-129
    (Aug. 3, 2001). See also [Review of the Commission's Rules and
    Policies Affecting the Conversion to Digital
    Television,]{.underline} Second Report and Order and Second
    Memorandum Opinion and Order, FCC 02-230, 17 FCC Rcd 15978, ¶ 33
    (Aug. 9 2002).

[^63]: 47 U.S.C. § 309(j)(14)(B)(iii).

[^64]: 47 U.S.C. § 338(a)(1).

[^65]: "By directing the FCC to promulgate these must-carry rules, the
    conferees do not take any position regarding the application of
    must-carry rules to carriage of digital television signals by either
    cable or satellite systems." Joint Explanatory Statement of the
    Committee of Conference on H.R. 106-1554, 145 Cong. Rec. at H11792,
    H11795 (Daily ed. Nov. 9, 1999).

[^66]: See National Cable and Telecommunications Association,
    [www.ncta.com](http://www.ncta.com/).

[^67]: This figure was derived from the cost of basic digital cable
    subscription on a typical Cox system in Fairfax County, VA. The
    average cost for basic analog cable subscription was \$36.47 in
    2002. "Issues Related to Competition and Subscriber Rates in the
    Cable Television Industry," United States General Accounting Office,
    GAO-04-8, p. 20 (October 2003).

[^68]: In its merger review, DirecTV and Newscorp reported that they
    were "exploring the potential of incorporating digital terrestrial
    television tuners into DirecTV set-top boxes." [In the Matter of
    General Motors Corporation and Hughes Electronics Corporation,
    Transferors and the News Corporation Limited, Transferee, for
    Authority to Transfer Control,]{.underline} FCC 03-330, ¶ 324 (rel.
    January 14, 2003). DirecTV and Newscorp also claimed that "\[b\]y
    mounting a small antenna for receiving broadcast signals at the same
    point where the satellite dish is located, most subscribers would be
    able to receive digital television broadcast signals from their
    local stations over-the-air." [Id.]{.underline} at n. 883 In
    addition, they further claim that "these digital signals can be
    seamlessly processed by the set-top-box with the DirecTV satellite
    signal in a manner that will be transparent to the viewer."
    [Id.]{.underline} at ¶ 324. However, the FCC specifically found that
    the applicants' claims had not been demonstrated with sufficient
    credibility. [Id.]{.underline} at 328.

[^69]: Thomas Hazlett, "Finally, Something Good on German TV: Berlin has
    digital television. Why can't the U.S. follow?" (Oct. 7, 2003),
    available at: <http://slate.msn.com/id/2089424/>. Thomas W. Hazlett
    is a Senior Fellow at the Manhattan Institute for Policy Research
    and a Columnist for the Financial Times' New Economy Policy Forum @
    FT.com. He is currently a Senior Research Associate at the Columbia
    Institute for Tele-Information and a Fellow of the AEI-Brookings
    Joint Center for Regulatory Studies.
    <http://www.manhattan-institute.org/html/hazlett.htm>.

[^70]: Samsung sells two models of digital over-the-air set-top boxes
    retailing for \$450 and \$400, while Motorola sells a model
    retailing for \$300 (prices quoted from Circuit City).

[^71]: Stephen Dowling, "Freeview marks its first year," BBC News, (Oct.
    30, 2003), available at:
    <http://news.bbc.co.uk/go/pr/fr/-/1/hi/entertainment/tv_and_radio/3197802.stm>.

[^72]: Independent Television Commission and the BBC, "A Report on
    Progress Towards Digital Switchover," pp. 11-12 (April 2003),
    available at:
    <http://www.digitaltelevision.gov.uk/pdfs/ITC_BBC_switchover_report.pdf>.

[^73]: [Id]{.underline}. at 12.

[^74]: Mark R. Fratrik, "Reaching the Audience: An Analysis of Digital
    Broadcast Power and Coverage," Prepared for the Association of
    Maximum Service Television, Inc (BIA Financial Network, October 17,
    2003).

[^75]: Doug Lung's RF Report, TVTechnology.com (November 3, 2003),
    available at:
    <http://www.tvtechnology.com/features/On-RF/index.shtml>.

[^76]: "New Technologies," Communications Daily, (Nov. 18, 2003).

[^77]: "Broadcast," Communications Daily (June 13, 2003).

[^78]: It appears this is not unique to the ATSC standard. In Britain,
    which uses a different digital standard, its Freeview service
    requires connection to a rooftop antenna as well. Independent
    Television Commission and the BBC, "A Report on Progress Towards
    Digital Switchover," pp. 10, 22-23 (April 2003), available at:
    <http://www.digitaltelevision.gov.uk/pdfs/ITC_BBC_switchover_report.pdf>.

[^79]: For a fact sheet on the OTARD Rules, see
    <http://wireless.fcc.gov/siting/otard.html>. See also 47 C.F.R.
    §1.4000. The rule prohibits restrictions that impair the
    installation, maintenance or use of antennas used to receive video
    programming. The rule applies to video antennas including direct-to-
    home satellite dishes that are less than one meter (39.37\") in
    diameter (or of any size in Alaska), TV antennas, and wireless cable
    antennas. The rule prohibits most restrictions that: (1)
    unreasonably delay or prevent installation, maintenance or use; (2)
    unreasonably increase the cost of installation, maintenance or use;
    or (3) preclude reception of an acceptable quality signal. Effective
    January 22, 1999, the Commission amended the rule so that it also
    applies to rental property where the renter has an exclusive use
    area, such as a balcony or patio. On October 25, 2000, the
    Commission further amended the rule so that it also will apply to
    customer-end antennas that receive and transmit fixed wireless
    signals.

[^80]: Under the phase-in schedule: (1) 50% of TVs 36\" and larger must
    include tuners by July 1, 2004, and 100% of them by July 1, 2005.
    (2) 50% of TVs 25\" to 35\" must have tuners by July 1, 2005, 100%
    of them by July 1, 2006. (3) 100% of TVs 13\"-24\" must include
    tuners by July 1, 2007. (4) 100% of TV interface devices such as
    VCRs and DVD players/recorders must include DTV tuners by July 1,
    2007. [Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television,]{.underline} Second Report and
    Order and Second Memorandum Opinion and Order, FCC 02-230, 17 FCC
    Rcd 15978, ¶ 40 (Aug. 9 2002), *aff'd* [Consumer Electronics
    Association v. FCC]{.underline}, 347 F.3d 291 (D.C. Cir. 2003).

[^81]: [Id]{.underline}. at ¶ 39.

[^82]: Recognizing the widely differing estimates, the FCC cited
    estimates by Motorola that the additional cost would be \$50 per set
    by 2006, estimates by Thompson that the additional cost per set
    would be \$75 by 2007-2008 and a study by ADL that that the
    additional cost would be \$16 by 2006. [Id]{.underline}. at ¶ 42.

[^83]: John Markoff, "New Intel Chip for Digital TV Could Remake the
    Market," New York Times (Dec. 16, 2003).

[^84]: [Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television,]{.underline} Second Report and
    Order and Second Memorandum Opinion and Order, FCC 02-230, 17 FCC
    Rcd 15978, ¶ 34 (Aug. 9 2002). In its most recent video competition
    report the FCC noted that as of the second quarter of 2003, only
    about 700,000 of HDTV-capable sets "with a built-in tuner or add-on
    decoder box required for receiving and HDTV broadcast" had been
    sold. [Annual Assessment of the Status of Competition in the Market
    for the Delivery of Video Programming]{.underline}, FCC 04-5, ¶103
    (rel. January 28, 2004).

[^85]: [Review of the Commission's Rules and Policies Affecting the
    Conversion to Digital Television,]{.underline} Second Report and
    Order and Second Memorandum Opinion and Order, FCC 02-230, 17 FCC
    Rcd 15978, ¶ 35 (Aug. 9 2002).

[^86]: "HDTV---At What Price," Pulse/ Cable & Telecommunications
    Association for Marketing, pp. 6-7.

[^87]: See Dove Consulting, "Barriers to Purchase HDTV Are Falling, But
    Consumers Remain Confused About the Product, Dove Study Finds,"
    (Nov. 28, 2003), available at:
    [www.doveconsulting.com/PR-2003-11-28HDTV.htm](http://www.doveconsulting.com/PR-2003-11-28HDTV.htm).
    See also Communications Daily (Dec. 1, 2003).

[^88]: "I Want my HDTV??? Consumer Perspectives on High Definition
    Television 2003," Frank N. Magid Associates, Iowa DTV Symposium,
    2003.

[^89]: "Freeview reaches first birthday," BBC News (Oct. 30, 2003); Matt
    Wells, "Digital TV at turning point as converts top 50%," The
    Guardian (Dec. 17, 2003).

[^90]: Stephen Dowling, "Freeview marks its first year," BBC News, (Oct.
    30, 2003), available at:
    <http://news.bbc.co.uk/go/pr/fr/-/1/hi/entertainment/tv_and_radio/3197802.stm>.

[^91]: [www.hauppauge.com](http://www.hauppauge.com/). B2C2 also makes a
    digital PC card for either DVB or ATSC. See
    [www.b2c2.com/products/pc-products.html](http://www.b2c2.com/products/pc-products.html).

[^92]: Costs of equipment are from
    [www.radioshack.com](http://www.radioshack.com/), as of January 8,
    2004.

[^93]: [Carriage of Digital Television Broadcast Signals; Amendments to
    Part 76 of the Commission's Rules; Implementation of the Satellite
    Home Viewer Improvement Act of 1999; Local Broadcast Signal Carriage
    Issues; Application of Network Non-Duplication Syndicated
    Exclusivity and Sports Blackout Rules to Satellite Retransmission of
    Broadcast Signals]{.underline}, First Report and Order and Further
    Notice of Proposed Rulemaking, 16 FCC Rcd 2598, ¶ 57 (rel. January
    23, 2001).

[^94]: 47 U.S.C. §338(a)(1).

[^95]: "By directing the FCC to promulgate these must-carry rules, the
    conferees do not take any position regarding the application of
    must-carry rules to carriage of digital television signals by either
    cable or satellite systems." Joint Explanatory Statement of the
    Committee of Conference on H.R. 106-1554, 145 Cong. Rec. at H11792,
    H11795 (Daily ed. Nov. 9, 1999).

[^96]: [Carriage of Digital Television Broadcast Signals; Amendments to
    Part 76 of the Commission's Rules; Implementation of the Satellite
    Home Viewer Improvement Act of 1999; Local Broadcast Signal Carriage
    Issues; Application of Network Non-Duplication Syndicated
    Exclusivity and Sports Blackout Rules to Satellite Retransmission of
    Broadcast Signals]{.underline}, First Report and Order and Further
    Notice of Proposed Rulemaking, 16 FCC Rcd 2598, ¶ 136 (rel. January
    23, 2001).

[^97]: Commission of the European Communities, Communications from the
    Commission to the Council, the European Parliament, the European
    Economic and Social Committee and the Committee of the Regions, on
    the transition from analogue to digital broadcasting (from digital
    "switchover" to analog "switch-off"), SEC(2003)992, p. 4 (Sept. 17,
    2003).

[^98]: [Id.]{.underline}

[^99]: [Id.]{.underline}

[^100]: [Id.]{.underline}

[^101]: [Id.]{.underline}

[^102]: "The cable networks currently reach around 50 per cent of UK
    households of which 50 per cent have currently been upgraded to
    digital operation." Independent Television Commission and the BBC,
    "A Report on Progress Towards Digital Switchover," p. 9 (April
    2003), available at:
    <http://www.digitaltelevision.gov.uk/pdfs/ITC_BBC_switchover_report.pdf>.

[^103]: Commission of the European Communities, Communications from the
    Commission to the Council, the European Parliament, the European
    Economic and Social Committee and the Committee of the Regions, on
    the transition from analogue to digital broadcasting (from digital
    "switchover" to analog "switch-off"), SEC(2003)992, p. 4 (Sept. 17,
    2003).

[^104]: APTS is a nonprofit organization whose members comprise the
    licensees of nearly all of the nation's 357 CPB-qualified
    noncommercial educational television stations. APTS represents
    public television stations in legislative and policy matters before
    the Commission, Congress, and the Executive Branch and engages in
    planning and research activities on behalf of its members. PBS is a
    nonprofit membership organization of the licensees of the nation's
    public television stations. PBS distributes national public
    television programming and provides other program-related services
    to the nation's public television stations.

[^105]: [Amendment of Parts 73 and 73 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]{.underline}, Notice of Proposed
    Rulemaking, FCC 03-198, MB Docket No, 03-185 (rel Aug. 29, 2003)
    ("NPRM").

[^106]: 47 U.S.C. §§ 396(a)(5), (7).

[^107]: See Association of Public Television Stations, Public
    Broadcasting Service and Corporation for Public Broadcasting,
    Petition for Rulemaking, [Enhancement of Broadband Access Through
    the Preservation of Public Television Translator Service and the
    Development of Digital Translators and Digital On-Channel
    Repeaters]{.underline} (May 29, 2002); Comments of the Association
    of Public Television Stations, the Corporation for Public
    Broadcasting and the Public Broadcasting Service, RM-10666 (May 16,
    2003); and Reply Comments of the Association of Public Television
    Stations, the Corporation for Public Broadcasting and the Public
    Broadcasting Service, RM-10666 (June 16, 2003).

[^108]: See Reply Comments of the Association of America's Public
    Television Stations, and the Public Broadcasting Service, Rural and
    Small Market Access to Local Television Broadcast Signals,
    Department of Commerce, National Telecommunications and Information
    Administration, Docket No. 000208032-0031-01 (May 15, 2000), citing
    Jerry Ostertag, *Analysis of Impact of Elimination of Translators*,
    Corporation for Public Broadcasting, September 18, 1998.

[^109]: The Department of Commerce's National Telecommunications and
    Information Administration has informed us that it is conducting a
    study of the coverage of public television stations nationwide,
    including both full-power and translator coverage, a project that is
    expected to be completed by the Summer of 2004.

[^110]: Reply Comments of Idaho Public Television, Rural and Small
    Market Access to Local Television Signals, National
    Telecommunications and Information Agency, Docket No.
    000208032-0032-01, (May 15, 2000), p. 1.

[^111]: For instance, it has been reported that in Utah, "Cable
    companies use the translators to provide the Salt Lake City
    television stations to rural viewers. Therefore, if a translator
    goes off the air, the cable company can't provide the station
    carried by the translator to its viewers." Bill McClure, "Free Rural
    Television May Soon Be A Thing of the Past," the Richfield Reaper
    (April 5, 2000), p. 1-A. "This system \[of translators\] not only
    fills the free airwaves, but also feeds local broadcasts to the
    cable systems, such as Peak Cablevision." Martin Renzhofer, "Rural
    Utah May Lose Free Television Feed," The Salt Lake Tribune (March
    15, 2000),p. D1.

[^112]: Association of Public Television Stations, Public Broadcasting
    Service and Corporation for Public Broadcasting, Petition for
    Rulemaking, [Enhancement of Broadband Access Through the
    Preservation of Public Television Translator Service and the
    Development of Digital Translators and Digital On-Channel
    Repeaters]{.underline} , p. 13, *et. seq*. (May 29, 2002).

[^113]: NPRM, ¶ 92 et. seq.

[^114]: NPRM ¶ 92.

[^115]: Id.

[^116]: Id.

[^117]: Id.

[^118]: NPRM ¶ 93 et. seq.

[^119]: NPRM ¶ 94.

[^120]: NPRM ¶ 95.

[^121]: NPRM ¶ 98.

[^122]: NPRM, n. 169.

[^123]: See NPRM ¶ 107.

[^124]: See NPRM n. 156 and [Reexamination of the Comparative Standards
    for Noncommercial Educational Applications,]{.underline} 18 FCC Rcd
    6691 ¶¶ 15-18 (2003) (holding that the auction exemption extends
    only to LPTV and TV translator applications for which the proposed
    facilities would be owned and operated by municipalities that would
    transmit only educational programming). See also Comments of the
    Association of Public Television Stations, MM Docket 95-31 (May 15,
    2002); Reply Comments of the Association of Public Television
    Stations, MM Docket 95-31 (June 17, 2002); and Ex Parte Supplemental
    Memorandum of the Association of Public Television Stations, MM
    Docket 95-31 (December 16, 2002).

[^125]: 47 U.S.C. § 309(j)(2)(B). *But see* H.R. Conf. Rep. No. 217,
    105^th^ Cong., 1^st^ Sess. 1997, at 573; 1997 U.S.C.C.A.N. 176,
    ("Any mutually exclusive applications received after June 30, 1997,
    shall be subject to the Commission's rules regarding competitive
    bidding, including applications for secondary broadcast services
    such as low power television, television translators, and television
    booster stations.")

[^126]: NPRM, ¶ 95.

[^127]: NPRM, ¶ 116.

[^128]: NPRM, ¶ 28.

[^129]: NPRM, ¶ 29.

[^130]: NPRM, ¶ 30.

[^131]: Comments of the Association of America's Public Television
    Stations and the Public Broadcasting Service, MM Docket No. 87-268
    (Nov. 22, 1996), p. 16.

[^132]: NPRM, ¶ 16.

[^133]: 47 C.F.R. § 621(i). See also [Ancillary or Supplementary Use of
    Digital Television Capacity by Noncommercial Licensees]{.underline},
    Report and Order, FCC 01-306, (rel. October 17, 2001) ("A&S NCE
    Order"). Thus, a "substantial majority" of a station's entire
    digital capacity must be used for a noncommercial, nonprofit,
    educational purpose as measured on a weekly basis. A&S NCE Order, ¶¶
    15-16. On May 9, 2003, the U.S. Court of Appeals for the District of
    Columbia Circuit unanimously affirmed the FCC rules. The Court held
    that the Commission had reasonably interpreted federal law
    prohibiting the broadcast of advertisements by public television
    stations and that the FCC's decision to allow public television
    stations to offer subscription services was neither arbitrary nor
    capricious in light of prior commission precedent, the high cost of
    digital technology and its greater flexibility. [United Church of
    Christ v. FCC]{.underline}, 327 F.3d 1222 (D.C. Cir. 2003).

[^134]: NPRM, ¶ 124.

[^135]: See 47 C.F.R. § 1.1162(e) and 47 U.S.C. § 159(h)(1).

[^136]: 47 C.F.R. § 1.1114(c)(full power stations) and 47 C.F.R. §
    1.1114(e)(2) (noncommercial educational translators) ("An applicant
    for a translator or low power television station that proposes a
    noncommercial educational service will be entitled to a refund of
    fees paid for the filing of the application when, after grant, it
    provides proof that it has received funding for the construction of
    the station through the National Telecommunications and Information
    Administration (NTIA) or other showings as required by the
    Commission.").

[^137]: NPRM, ¶ 118 et. seq.

[^138]: Association of Public Television Stations, Public Broadcasting
    Service and Corporation for Public Broadcasting, Petition for
    Rulemaking, [Enhancement of Broadband Access Through the
    Preservation of Public Television Translator Service and the
    Development of Digital Translators and Digital On-Channel
    Repeaters]{.underline} , p. 13, *et. seq*. (May 29, 2002).

[^139]: See NPRM, ¶ 17.

[^140]: NPRM, ¶ 14.

[^141]: Id.

[^142]: See NPRM ¶ 41 et. seq.

[^143]: NPRM ¶ 57.

[^144]: NPRM ¶ 64.

[^145]: NPRM ¶ 50.

[^146]: NPRM ¶ 54.

[^147]: NPRM ¶ 85, et. seq.

[^148]: NPRM, ¶ 84.

[^149]: NPRM, ¶ 105 et. seq.

[^150]: See 47 C.F.R. § 74.703 et seq.

[^151]: [Reallocation of Television Channels 60-69, the 746-806 MHz
    Band]{.underline}, ET Docket No. 97-157, Report and Order, ¶¶ 25, 29
    (January 6, 1998); [Reallocation of Television Channels 60-69, the
    746-806 MHz Band]{.underline}, Memorandum Opinion and Order, FCC
    98-261, ET Docket No. 97-157, ¶ 13 (rel. Oct. 9, 1998). See also
    <http://www.fcc.gov/oet/faqs/dtv-tvtx.html>.

[^152]: [Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59)]{.underline}, Report & Order, FCC
    01-364, ¶¶24-30. (rel. January 18, 2002). The Commission also
    allowed translator licensees to negotiate interference agreements
    with new service providers. [Id]{.underline}. at ¶ 27.

[^153]: See [Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service]{.underline}, Sixth Report &
    Order, FCC 97-115, MM Docket No. 87-268, ¶ 141 et. seq. (April 21,
    1997).

[^154]: [Id]{.underline}. at ¶144.

[^155]: [Id]{.underline}. at ¶145. See also NPRM, ¶ 105.

[^156]: See [Advanced Television Systems and Their Impact upon the
    Existing Television Broadcast Service]{.underline}, Memorandum
    Opinion &Order on Reconsideration of the Sixth Report & Order, FCC
    98-24, ¶ 107 (rel. Feb. 23, 1998).

[^157]: See [Id.]{.underline} at ¶ 77.

[^158]: Examples of such technical advances include those in
    interference prediction, digital television allocation criteria
    (e.g., FCC OET Bulletin #69), favorable power ratios and
    interference protection, adjacent channel operation, directional
    transmitting antennas, and the potential relaxation of UHF
    \"taboos\" (as a result of recent tests of DTV and analog television
    receivers).

[^159]: APTS is a nonprofit organization whose members comprise the
    licensees of nearly all of the nation's 357 CPB-qualified
    noncommercial educational television stations. APTS represents
    public television stations in legislative and policy matters before
    the Commission, Congress, and the Executive Branch and engages in
    planning and research activities on behalf of its members. PBS is a
    nonprofit membership organization of the licensees of the nation's
    public television stations. PBS distributes national public
    television programming and provides other program-related services
    to the nation's public television stations.

[^160]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185 (Nov. 25,
    2003).

[^161]: 47 U.S.C. § 336(f)(4) (emphasis added). See also Conference
    Report, H. Rep. 106-464 p. 153 (Nov. 9, 1999).

[^162]: The contrary argument, advanced by MSTV and NAB, that the
    statute authorizes the [acceptance]{.underline} of second channel
    digital applications without requiring the [grant]{.underline} of
    such applications is clearly erroneous. See Comments of the
    Association of Maximum Service Television and the National
    Association of Broadcasters, MB Docket 03-185, p. 10 (Nov. 25,
    2003). Why would Congress require the Commission to process an
    application without authorizing it to grant it if the public
    interest requires it? Public Television submits that its reading of
    the first sentence -- as not requiring the grant of second channels
    en masse, as was done with the full-power television broadcast
    service -- is the more reasonable reading of the statute.

[^163]: See Department of Agriculture, Rural Utilities Service, Public
    Television Station Digital Transition Grant Program, Notice of Funds
    Availability, 68 Fed. Reg. 42680 (July 18, 2003); Sen. Rep. 107-223,
    p. 123 (Jul. 25, 2002) (appropriating \$15,000,000).

[^164]: See H. Rep. 108-401, pp. 23-24 (Nov. 25, 2003) (emphasis added).

[^165]: See Comments of the Association of Maximum Service Television
    and the National Association of Broadcasters, MB Docket 03-185, pp.
    12-13 (Nov. 25, 2003); Comments of Cox Broadcasting, Inc and the
    Liberty Corporation, MB Docket 03-185, p. 1 (Nov. 25, 2003); and
    Comments of Paxson Communications Corp, MB Docket 03-185, p. 2 (Nov.
    25, 2003).

[^166]: Comments of Vermont Educational Television, MB Docket 03-185,
    pp. 5-6 (Nov. 25, 2003); and Comments of KAET, MB Docket 03-185, p.
    8 (Nov. 25, 2003).

[^167]: See, e.g., Comments of Fox Television Stations, Inc and Fox
    Broadcasting Company, MB Docket 03-185 (Nov. 25, 2003); Comments of
    Vermont Educational Television, MB Docket 03-185, pp. 5-6 (Nov. 25,
    2003); and Comments of KAET, MB Docket 03-185, p. 8 (Nov. 25, 2003).
    See also Comments of the National Translator Association, MB Docket
    03-185, p 29. (Nov. 25 2003).

[^168]: [Amendment of Parts 73 and 73 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]{.underline}, Notice of Proposed
    Rulemaking, FCC 03-198, MB Docket No. 03-185, ¶ 36 (rel Aug. 29,
    2003) ("NPRM").

[^169]: See Comments of R. Kent Parsons, MB Docket No. 03-185, p. 10
    (Nov. 24, 2003).

[^170]: Comments of the National Translator Association, MB Docket No.
    03-185, p. 22 (Nov. 25, 2003).

[^171]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185, p. 18
    (Nov. 25, 2003).

[^172]: [Id]{.underline}. at 17; and NPRM ¶ 50.

[^173]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185, p. 18
    (Nov. 25, 2003).

[^174]: Comments of the Association of Public Television Stations and
    the Public Broadcasting Service MB Docket 03-185, p. 18 (Nov. 25,
    2003).

[^175]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185, pp. 4
    et. seq. (Nov. 25, 2003). See also Comments of Paxson
    Communications, MB Docket 03-185, p. 7 (Nov. 25, 2003).

[^176]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185, p. 4,
    note 10 (Nov. 25, 2003). Abacus Television, an LPTV licensee,
    concurs, stating that the FCC should "focus on the spectrum
    environment in which they \[translators\] predominantly operate and
    the public they predominantly serve," i.e. rural areas and
    populations. Comments of Abacus Television, MB Docket 03-185, p. 2
    (Nov. 25, 2003).

[^177]: See generally, Comments of the Association of Public Television
    Stations and the Public Broadcasting Service MB Docket 03-185 (Nov.
    25, 2003). See also Comments of Fox Television Stations, Inc and Fox
    Broadcasting Company, MB Docket 03-185, p. 2 (Nov. 25, 2003).

[^178]: See National Translator Association, Petition for Rulemaking, p.
    4 (Nov. 6, 2002), and Comments of the Association of Public
    Television Stations, the Corporation for Public Broadcasting and the
    Public Broadcasting Service, RM 10666, pp. 4 et. seq. (May 16, 2003)
    (seeking limited modifications to NTA rurality criteria).

[^179]: The term "rural" has been subject to varying definitions,
    depending on the context. For instance, the U.S. Department of
    Commerce and U.S. Department of Agriculture have used the U.S.
    Census definition of the term when examining the deployment of
    advanced telecommunications services to rural areas. "Advanced
    Telecommunications In Rural America: The Challenge of Bringing
    Broadband Service to All Americans," U.S. Department of Commerce,
    National Telecommunications and Information Administration, and U.S.
    Department of Agriculture, Rural Utilities Service (April, 2000)
    ("NTIA/RUS Report"), p. 4. Thus, in this context, "rural" means
    "towns of fewer than 2,500 inhabitants as well as areas outside of
    towns, including farmland, ranchland, and wilderness." *Id*. (citing
    U.S. Census Bureau, Urban and Rural Definitions and Data at
    [www.census.gov/population/censusdata/urdef.html](http://www.census.gov/population/censusdata/urdef.html)).
    Because the Census definition can encompass both traditionally small
    and rural towns and outlying areas, as well as areas that are
    developing or urbanizing (e.g. new suburban developments), the
    Department of Commerce and Department of Agriculture have cautioned
    analysts on the use of the term and have focused primarily on rural
    areas outside of towns and suburbs. *Id*. at p. 5. Indeed, the
    Department of Agriculture's Rural Utilities Service has recognized
    three levels of "rurality" for purposes of its distance learning and
    telemedicine program. An "exceptionally rural area" means any area
    that is not included within the boundaries of any incorporated or
    unincorporated city, village or borough having a population "in
    excess of 5,000 inhabitants." A "rural area" means any such area
    with a population over 5,000 but not exceeding 10,000 inhabitants. A
    "mid-rural area" refers to an area having a population with a
    population over 10,000 and not exceeding 20,000 inhabitants. 7
    C.F.R. § 1703.126(b)(2)(i).

[^180]: Some licensees even claim that the Commission's proposal policy
    would represent an intrusion on their property rights under the
    Fifth Amendment to the U.S. Constitution. See, e.g. Comments of Corr
    Wireless, MB Docket 03-185 (Nov. 25, 2003).

[^181]: See, e.g. Comments of Qualcomm, Inc. MB Docket 03-185, pp 8-9
    (Nov. 25, 2003); Comments of the Rural 700 MHz Band Licensees, MB
    Docket 03-185, pp.10-11 (Nov. 25, 2003).

[^182]: [Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59),]{.underline} Report and Order, FCC
    01-364, ¶ 27(Jan. 18, 2002).

[^183]: [In the Matter of Reallocation and Service Rules for the 698-746
    MHz Spectrum Band (Television Channels 52-59),]{.underline} Notice
    of Proposed Rulemaking, FCC-01-91, GN Docket No. 01-74, 16 FCC Rcd
    7278, ¶ 18 (March 28, 2001) (citations omitted).

[^184]: [Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59),]{.underline} Report and Order, FCC
    01-364, ¶¶ 25, 27(Jan. 18, 2002).

[^185]: For similar reasons, because the lower 700 MHz licensees
    acquired their licenses knowing full well that the band would be
    encumbered by secondary services during and after the DTV
    transition, no Fifth Amendment takings issues are implicated.

[^186]: See 47 U.S.C. § 337(e)(1) ("Any person who holds a television
    broadcast license to operate between 746 and 806 megahertz
    \[television channels 60-69\] may not operate at that frequency
    after the date on which the digital television service transition
    period terminates, as determined by the Commission."). In January of
    2002, the Commission noted the key differences between the lower 700
    MHz and upper 700 MHz band. It sated that, for instance, "there is
    no public safety allocation in the Lower 700 MHz Band, and there is
    a significantly greater degree of broadcast incumbency relative to
    the Upper 700 MHz Band. In addition, we note that Congress has
    directed the Commission to reclaim the Upper 700 MHz Band for public
    safety and commercial use under an accelerated time frame, but did
    not accord the same priority to recovery of the Lower 700 MHz Band."
    [Reallocation and Service Rules for the 698-746 MHz Spectrum Band
    (Television Channels 52-59),]{.underline} Report and Order,
    FCC01-364, ¶ 184 (Jan. 18, 2002).

[^187]: In this regard, the Commission has also received comments from
    Motorola and the Association of Public-Safety Communications
    Officials-International opposing the use of the upper 700 MHz band
    by LPTV and television translator stations, comments with which
    Public Television concurs. Comments of Motorola, Inc. MB Docket
    03-185, p. 1 (Nov. 25, 2003); Comments of the Association of
    Public-Safety Communications Officials- International, Inc., MB
    Docket 03-185, p. 2 (Nov. 25, 2003).

[^188]: The Commission should be aware, however, that because rural
    access to television signals is frequently provided through "daisy
    chains" of multiple transmitters, the need to use out-of-core
    spectrum for one link in the chain will necessarily affect service
    at other transmitter sites.

[^189]: NPRM, ¶ 29

[^190]: About 25 percent of public television translators operate on
    channels 60-69. Comments of the Association of America's Public
    Television Stations and the Public Broadcasting Service, MM Docket
    No. 87-268 (Nov. 22, 1996), p. 16.

[^191]: See NPRM, ¶ 116. Previously, Public Television suggested a three
    year maximum period for construction based on the uniqueness of
    federal, state and institutional funding cycles. See Comments of the
    Association of Public Television Stations and the Public
    Broadcasting Service, MB Docket 03-185, p. 9 (Nov. 25, 2003). Other
    licensees may be required to construct within a shorter period, e.g.
    two years.

[^192]: See, e.g. Comments of Qualcomm, Inc. MB Docket 03-185, pp.12-13
    (Nov. 25, 2003).

[^193]: [Reallocation and Service Rules for the 698-746 MHz Spectrum
    Band (Television Channels 52-59),]{.underline} Report and Order,
    FCC01-364, ¶ 27 (Jan. 18, 2002) ("\[W\]e will allow LPTV stations to
    operate until they cause actual interference to a DTV station or new
    licensee and will allow LPTV stations to negotiate interference
    agreements with new service providers.").

[^194]: NPRM, ¶ 59.

[^195]: See Federal Communications Commission, Spectrum Policy Task
    Force, Report, ET Docket No., 02-135, p. 14 (November 2002); "FCC
    Opens Proceeding on Smart Radios," News Release (Dec. 17, 2003);

[^196]: "FCC Opens Proceeding on Smart Radios," News Release (Dec. 17,
    2003) ("Certain smart radio capabilities are employed to some extent
    today in applications such as commercial mobile wireless services
    and wireless local area networks (WLANs)").

[^197]: See Comments of Qualcomm, Inc. MB Docket 03-185, p. 13 (Nov. 25,
    2003).

[^198]: See Comments of Harbor Wireless, MB Docket 03-185 (Nov. 25,
    2003); Comments of Qualcomm, p. 10, MB Docket 03-185 (Nov. 25,
    2003); Comments of Cavalier Group, LLC, MB Docket 03-185 (Nov. 25,
    2003).

[^199]: Comments of Motorola, MB Docket 03-185, pp. 1-2 (Nov. 25, 2003).

[^200]: 47 U.S.C. §§ 396(a)(5), (7).

[^201]: See Comments of Fox Television Stations, Inc and Fox
    Broadcasting Company, MB Docket 03-185, p. 5(Nov. 25, 2003)
    (supporting FCC proposed procedures); Comments of Cordillera
    Communications, MB Docket 03-185, p. 1-3 (Nov. 25, 2003) (supporting
    procedures limited to incumbents but opposing application for new
    service); Comments of the National Translator Association, MB Docket
    03-185, p. 26 (supporting procedures but advocating use of lotteries
    instead of auctions); Comments of Abacus Television, MB Docket
    03-185, p. 21 (Nov. 25, 2003).

[^202]: See Comments of Wyoming Public Television, MB Docket 03-185, p.
    2 (Nov. 25, 2003); Comments of Vermont Educational Television, MB
    Docket 03-185, p. 5 (Nov. 25, 2003); Comments of KAET, MB Docket
    03-185, p. 10 (Nov. 25, 2003); Comments of the National Translator
    Association, MB Docket 03-185, pp. 5-6 (Nov. 25, 2003) (allow
    regenerative for translators 30 watts and above with heterodyne as
    fall-back in limited circumstances); Comments of the Elko Television
    District, MB Docket 03-185, p. 3 (Nov. 25, 2003). See also Comments
    of the Association of Federal Communications Consulting Engineers
    and Comments of Greg Best Consulting.

[^203]: For instance, some public television stations are planning to
    enhance the delivery of broadband services, as well as to
    disseminate financial stock exchange information, Congressional
    voting information, Statehouse voting records, election returns and
    weather updates to targeted subscribers. In addition, ancillary and
    supplementary transmissions can also be used to enhance public
    safety. Still other public television stations plan to use ancillary
    and supplementary transmissions to enhance educational opportunity
    in their communities by offering subscription-based college courses,
    while others plan to transmit non-broadcast digital interactive
    content overnight to schools so that teachers can download it on
    demand during the school day.

[^204]: Comments of the Association of Public Television Stations and
    the Public Broadcasting Service MB Docket 03-185, pp. 10-11 (Nov.
    25, 2003).

[^205]: See Comments of Arctic Slope Telephone, et al, MB Docket 03-185,
    p. 7 (Nov. 25, 2003).

[^206]: For examples, see Comments of Vermont Educational Television, MB
    Docket 03-185, pp. 1-5 (Nov. 25, 2003) and Comments of KAET, MB
    Docket 03-185, pp. 2-6 (Nov. 25, 2003).

[^207]: 47 C.F.R. § 74.731.

[^208]: See Comments of the Association of Maximum Service Television
    and the National Association of Broadcasters, MB Docket 03-185, pp.
    21-23 (Nov. 25, 2003).

[^209]: [Id]{.underline}. at 23. See also Comments of the National
    Translator Association, MB Docket 03-185, pp. 6-7 (Nov. 25, 2003)
    (asking to maintain status quo); and Comments of the Elko Television
    District, MB Docket 03-185, p, 3 (Nov. 25, 2003).

[^210]: See Comments of the National Association of Translators, MB
    Docket 03-185, p. 26 (Nov. 25, 2003); Comments of Television, MB
    Docket 03-185 (Nov. 25, 2003); Comments of Southern Oregon Public
    Television, Inc, MB Docket 03-185 (Nov. 25, 2003); Comments of R.
    Kent Parsons, MB Docket 03-185, p. 16 (Nov. 25, 2003); Comments of
    the Association of Federal Communications Consulting Engineers, MB
    Docket 03-185 (Nov. 25, 2003), Comments of Greg Best, MB Docket
    03-185, p. 8 (Nov. 25, 2003.

[^211]: Comments of the Association of Maximum Service Television and
    the National Association of Broadcasters, MB Docket 03-185, pp.
    23-24 (Nov. 25, 2003).

[^212]: [Id]{.underline}. at 24.