**Before the**

Federal Communications Commission

Washington, D.C. 20554

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report and order

**Adopted: February 19, 2008 Released: March 3, 2008**

> By the Commission: Chairman Martin issuing a statement; Commissioner
> Tate issuing a separate statement; Commissioner Copps concurring and
> issuing a separate statement; Commissioner McDowell approving in part,
> concurring in part and issuing a statement; and Commissioner Adelstein
> approving in part, dissenting in part and issuing a statement.

Table of Contents

Heading Paragraph \#

I. introduction 1

II\. Background 3

III\. DISCUSSION 5

A. Broadcaster Education and Reporting 7

1\. Broadcaster Education Option One 10

2\. Broadcaster Education Option Two 30

3\. Broadcaster Education Option Three 34

4\. Low-Power, Class A, and Translator Stations 36

B. Multichannel Video Programming Distributor Customer Bill Notices 38

C. Consumer Electronics Manufacturer Notices 46

D. DTV.gov Partner Consumer Education Reporting 50

E. Consumer Electronics Retailer Training and Education 52

F. Other Proposals 53

1\. Federal Universal Service Low-Income Program Participant Notices 53

2\. 700 MHz Auction Winner Consumer Education Reporting 59

3\. Consumer Contact Points 60

G. First Amendment Analysis 61

IV\. Procedural matters 68

A. Final Regulatory Flexibility Analysis 68

B. Paperwork Reduction Act Analysis 69

C. Congressional Review Act 70

D. Additional Information 71

V. ordering clauses 72

APPENDIX A -- Final Regulatory Flexibility Act Analysis

APPENDIX B -- Amended Rules

APPENDIX C -- Broadcaster Reporting Form

APPENDIX D -- Letter from the Honorable John D. Dingell, Chairman of the
Committee on Energy and Commerce, and the Honorable Edward J. Markey,
Chairman of the Subcommittee on Telecommunications and the Internet,
U.S. House of Representatives

APPENDIX E -- Reply from the Honorable Kevin J. Martin, Chairman,
Federal Communications Commission

# introduction

1.  In this Report and Order, we adopt several proposals relating to
    consumer education about the digital television ("DTV") transition.
    As the Nation's full-power television stations transition from
    analog broadcast television service to digital broadcast television
    service, the Commission has been committed to working with
    representatives from industry, public interest groups, and Congress
    to make the significant benefits of digital broadcasting available
    to the public. The digital transition will make valuable spectrum
    available for both public safety uses and expanded wireless
    competition and innovation. It will also provide consumers with
    better quality television picture and sound, and make new services
    available through multicasting. These innovations, however, are
    dependent upon widespread consumer understanding of the benefits and
    mechanics of the transition. The Congressional decision to establish
    a hard deadline of February 17, 2009, for the end of full-power
    analog broadcasting has made consumer awareness even more
    critical.[^1]

2.  As explained in more detail below, we thus impose the following
    requirements in this Order. First, broadcasters must provide on-air
    information to their viewers about the DTV transition, by compliance
    with one of three alternative sets of rules, and must report those
    efforts to the Commission and the public. Second, multichannel video
    programming distributors ("MVPDs") must provide monthly notices
    about the DTV transition in their customer billing statements.
    Third, manufacturers of television receivers and related devices
    must provide notice to consumers of the transition's impact on that
    equipment. Fourth, DTV.gov Partners must provide the Commission with
    regular updates on their consumer education efforts. Fifth,
    companies participating in the Low Income Federal Universal Service
    Program must provide notice of the transition to their low income
    customers and potential customers. Sixth, the winners of the 700 MHz
    spectrum auction must report their consumer education efforts.
    Finally, we offer our assistance to the National Telecommunications
    and Information Agency ("NTIA") in policing and enforcing the
    requirements of the digital converter box retail program. We find
    that these requirements are necessary to ensure that the American
    public is adequately prepared for the full-power digital transition,
    but that they will no longer be necessary after the full-power
    transition is fully complete. This Order therefore provides that
    these requirements will be in place for a limited time only.

# Background

3.  Congress has mandated that after February 17, 2009, full-power
    broadcast stations must transmit only in digital signals, and may no
    longer transmit analog signals.[^2] As the National Consumers League
    describes it, "\[t\]he transition to DTV is probably the most
    significant event for television-viewers since the invention of
    television itself. It is crucial for people to be aware of the
    change, understand its impact, and be able to make sound
    choices."[^3] We agree, and the Commission has been actively engaged
    in DTV consumer education and outreach efforts since before the
    establishment of the hard full-power transition deadline. Our
    longstanding and ongoing efforts include a wide range of activities,
    both completed and planned.[^4] For instance, the Chairman recently
    announced the creation of a DTV Task Force, formalizing the
    relationships among the numerous Offices and Bureaus involved in the
    transition.  The goal of the Task Force is to facilitate a smooth
    transition that minimizes the burdens on consumers while maximizing
    their opportunities to benefit from it.  As an extension of existing
    coordination efforts, the Task Force will: meet regularly to discuss
    and direct ongoing DTV transition efforts, coordinate with other
    federal agencies, shares ideas, and address any problems that arise
    or appear imminent.  The members of the Task Force will also meet
    regularly with various stakeholders from industry and federal,
    state, local, and tribal governments.

4.  Representatives John D. Dingell, Chairman of the Committee on Energy
    and Commerce, and Edward J. Markey, Chairman of the Subcommittee on
    Telecommunications and the Internet, recently wrote to the
    Commission to express interest in the pace and scope of consumer
    education about the full-power transition.[^5] As the Congressmen
    observed, "the Commission is particularly well suited to lead this
    effort given its existing expertise and resources."[^6] They
    proposed a number of specific actions that they believe the
    Commission should take. As discussed above, many of these
    recommendations are already being actively pursued by the
    Commission. The Commission released a Notice of Proposed Rulemaking
    on July 21, 2007,[^7] requesting comment on the best means of
    creating a coordinated, national DTV consumer education campaign.
    Comments were due September 17, 2007, and reply comments were due
    October 1, 2007. We reviewed over 30 comments, 6 reply comments, and
    over 100 ex parte presentations and comments from a wide range of
    sources, including individuals, trade associations, broadcasters,
    and nonprofits.

# DISCUSSION

5.  Insofar as the actions referenced in the Letter require regulatory
    action by the Commission, we adopt those proposals. As a general
    matter, it suggests that "the Commission could use its existing
    authority to compel industry to contribute time and resources to a
    coordinated, national consumer education campaign."[^8] We agree
    that the Commission should take whatever steps we can to promote a
    coordinated, national DTV consumer education campaign.[^9] Some
    industry commenters have objected to these requirements on the
    ground that the Commission has insufficient statutory authority to
    implement them. These objections are discussed in more detail below.
    As Telecommunication for the Deaf and Hard of Hearing, *et al*.
    observe, we have broad authority to require educational outreach
    efforts concerning the DTV transition.[^10] The Commission is
    statutorily required to promote the orderly transition of full-power
    stations from analog to digital television,[^11] and we have
    exercised that mandate to, among other things, prevent the continued
    importation and interstate shipment of analog-only sets and to
    require retailers to label those analog-only sets they continue to
    legally sell.[^12] Our statutory authority[^13] allows us to
    facilitate the transition by adopting rules requiring the
    dissemination of essential information about the transition.[^14]

6.  There is a clear and compelling need for educational efforts
    directed toward consumers. As Association of Public Television
    Stations ("APTS") found in its most recent quarterly consumer survey
    on the DTV transition, a majority of Americans do not fully
    understand the transition.[^15] Moreover, as the Commission's
    Consumer Advisory Committee ("CAC") points out, a substantial number
    of Americans have not yet made the switch to digital. By the end of
    2007, it was expected that only one-third of households would have a
    digital television.[^16] Of households that rely on over-the-air
    ("OTA") broadcasts, only seven percent own a digital
    television.[^17] Furthermore, the households that principally rely
    on OTA broadcasts are the most vulnerable and arguably the most
    difficult to reach; almost half have annual incomes of less than
    \$30,000, and two-thirds are headed by someone over 50 years of age
    or someone for whom English is a second language.[^18] Thus, we must
    take immediate and effective action to ensure that viewers are
    informed of the effect that the full-power digital transition will
    have on them and the options that are available to them to make the
    transition to digital television without losing full-power
    television service. This Order focuses on actions that television
    broadcasters, MVPDs, telecommunications carriers, retailers, and
    manufacturers must take to inform consumers about the transition.
    Nonetheless, because of the national importance of this issue, we
    also strongly encourage radio broadcasters to engage in efforts to
    educate and inform their listeners. Such efforts could be an
    important complement to consumer outreach by other public and
    private sector groups between now and the transition.

## Broadcaster Education and Reporting

7.  The National Association of Broadcasters ("NAB") and other broadcast
    industry commenters have argued that there is a public interest
    benefit in preserving some flexibility on the part of broadcasters
    to serve the needs of viewers in their widely divergent communities,
    and we agree.[^19] We therefore adopt rules that give both
    commercial and noncommercial broadcasters a choice of education and
    reporting requirements.[^20] Furthermore, we acknowledge that the
    ongoing educational efforts of industry have made a notable impact
    on consumer awareness, and anticipate continuing effective and
    creative measures from the industry to increase viewer awareness of
    the full-power digital transition.[^21] As discussed throughout this
    *Order*, we find a broad-based consumer education mandate essential
    given the importance of consumer awareness to the digital
    transition, but we will allow broadcasters the flexibility to choose
    which of these different plans to follow.

8.  Although the sets of requirements are distinct, we find that they
    each entail a similar level of commitment and engagement on the part
    of broadcasters. Where the first option calls for more frequent
    PSAs, the second calls for longer ones, and the third for the same
    total amount of education with less restriction on length. Where the
    first and third options allow for PSAs in specified parts of the
    day, the second option requires greater focus on the hours when most
    viewers tune in. Where the first option does not require any long
    educational messaging, the second and third mandate a 30 minute
    program dedicated to in-depth education. Where Option One requires a
    set number of crawls, Option Two allows broadcasters to use a
    variety of in-program messaging techniques to inform viewers, and
    Option Three requires only PSAs and longer messages**.** While
    Options One and Three do not directly address special additional
    education measures during the final months of the full-power
    transition, Option Two is more comprehensive in its focus on
    alternative approaches. All plans require quarterly reporting of
    both mandatory and voluntary outreach and education efforts. This
    will allow the Commission not only to monitor compliance, but also
    to stay informed of the creative approaches being taken by disparate
    broadcasters all over the country, and continue to serve in its role
    as the primary transition educator and coordinator of transition
    education efforts.

9.  The Commission's education requirement will go into effect upon the
    effective date of the rules. Every full-power commercial broadcaster
    must participate in option One or Two, and noncommercial
    broadcasters must participate in option One, Two, or Three.
    Whichever Option is elected, every broadcaster must conduct consumer
    outreach and education pursuant to that set of rules. Under each of
    the options, broadcasters must report on its educational and
    outreach activities by filing Form 388 with the Commission and
    placing it in the station's public file. Each broadcaster will elect
    the option with which it will comply no later than the first
    reporting deadline under the plans, by noting its chosen plan when
    it first files Form 388.[^22] Failure to comply with either the
    education or reporting requirements under any Option may result in
    enforcement action.

### Broadcaster Education Option One

#### Option One Consumer Education Requirements

10. Broadcasters who opt to comply with this option will be required to
    regularly air a mix of PSAs and crawls, with increasing frequency as
    the full-power transition approaches, that explain the various
    important issues of the full-power transition and explain how
    viewers can find more information.[^23] Specifically, a station must
    air one transition PSA, and run one transition crawl, in every
    quarter of every day. This requirement applies separately to a
    station's analog channel and its primary digital stream.
    This requirement will increase to two PSAs and crawls per quarter
    per day on April 1, 2008, and to three of each on October 1, 2008.
    [^24]  For the purposes of these education requirements, each
    broadcast day can be broken into four quarters; 6:01 am to 12:00 pm,
    12:01 pm to 6:00 pm, 6:01 pm to 12:00 am, and 12:01 am to 6:00 am.
    Stations are required to air PSAs or crawls at various times in any
    given day part, and we expressly require that at least one PSA and
    one crawl per day be run during primetime hours.[^25] We expect that
    broadcasters will air these DTV PSAs in addition to, and not in lieu
    of, PSAs on other issues of importance to their local communities.
    In addition, we require that the transition PSAs be
    closed-captioned.[^26]

11. These requirements will expire for most broadcasters on March
    31, 2009. [^27]  We will increase these requirements if we find,
    based on the overall progress of DTV consumer education, that it is
    necessary to revise the frequency, content or duration of the PSAs
    or crawls on a station-by-station basis, for a particular region, or
    for the country as a whole.

12. Crawls must run during programming for no less than 60 consecutive
    seconds across the bottom or top of the viewing area,[^28] and be
    provided in the same language as a majority of the programming
    carried by the station. Although we do not dictate the exact content
    of the crawls, we find that, over the 60 second duration, they must
    repeat a message that conveys the following information:

-   On February 17, 2009, full-power analog broadcasting will end, and
    analog-only televisions may lose the signal being viewed unless the
    viewer takes action.

-   That viewers can get more information by telephone or online, and
    how to do so.[^29]

    The crawl may also, at the broadcaster's discretion, provide other
    information, such as, for example, contact information for the DTV
    Transition Coalition.

13. Required PSAs must be at least 15 seconds.[^30] Each PSA must
    provide, at a minimum, the same information as required for crawls,
    above. We acknowledge the creativity of the private sector, as noted
    by SBA,[^31] and do not mandate the form of PSAs other than to
    require that, over the course of a broadcaster's education campaign,
    they give more detail about the following subjects: [^32]

-   what a viewer needs to do to continue watching the station, whether
    they are an OTA viewer or receive broadcast signals via their MVPD,
    and

-   where appropriate, specific details about the station's transition:
    for example, shifts in service area, channel numbering changes, the
    addition of multicast and/or High Definition channels, timing,[^33]
    etc.

14. Additionally, on-air outreach must contain no misleading or
    inaccurate statements.[^34] We do not limit stations to these
    efforts. For example, certain stations may find that additional PSAs
    in languages other than those in which a majority of their
    programming is presented would be beneficial to their viewers; for
    other stations, multilingual announcements may not be needed.[^35]
    Stations are free to use PSAs provided by outside sources such as
    NAB or networks, so long as their overall campaign touches on all
    the elements relevant to their particular transition. The
    flexibility of the rules we adopt today makes clear that we are
    focusing on Congress's command to promote an orderly full-power
    transition.[^36]

15. The Letter suggested that the Commission consider using its
    regulatory authority to "require television broadcasters to air
    periodic public service announcements and a rolling scroll about the
    digital transition."[^37] We have adopted this requirement, while
    giving broadcasters significant latitude to determine the best way
    to present the essential information on the timing and nature of the
    full-power transition and how to continue receiving the station's
    programming throughout and after the transition.[^38]

16. Most of the commenters who commented on this issue agreed with the
    Commission that broadcast consumer education efforts are the best
    way to reach viewers who will be most affected by the full-power
    transition, particularly those who rely primarily or exclusively on
    OTA television.[^39] For example, one commenter states that PSAs
    should be the "*primary* focus for transition education efforts,"
    and that an education program including PSAs must be mandated to
    ensure public education "in a timely manner."[^40] It is also
    important not to simply rely on one form of on-screen education or
    the other. Crawls and PSAs convey information very differently, and
    reach different groups of people as a result. Given the growing use
    of personal video recorders and other devices that can be used for
    time-shifting and commercial skipping, many consumers might not be
    reached by education efforts, such as PSAs, that air only during
    programming breaks. At the same time, a crawl can not reach those
    viewers whose eyesight is not strong enough to read its
    comparatively small print, or who are not able to read at all. Using
    both methods will ensure that education efforts reach more viewers.
    Broadcaster commenters are generally in agreement regarding the
    importance of their role in consumer education; for instance,
    Entravision, a Spanish language broadcaster, supports mandatory
    PSAs.[^41] Even those broadcasters who oppose regulation in this
    matter say that, regardless of our decision here, they plan to
    engage in consumer outreach and education that "far exceed any
    requirements the FCC could or should impose," because "the ability
    to reach *every household* is the foundation of broadcast
    television's public interest and operational success."[^42] A wide
    array of broadcaster activity is promised not just in this
    Commission docket, but also in testimony to Congress.[^43]

17. Despite commendable pledges by organizations like the State
    Broadcasters Association ("SBA") and NAB, we find that regulatory
    action is the only way to ensure a sustained, nationwide,
    station-by-station effort. As the Benton Foundation observes,[^44]
    these organizations have no power to bind individual stations. We
    acknowledge and appreciate the leadership and coordination efforts
    of NAB, and anticipate continuing to work with it on additional
    voluntary efforts. At the same time, we are convinced that DTV
    consumer education needs to be a nationwide station-by-station
    effort. As SBA says, consumer education is "critical" because
    interruption of broadcast service to even a single home is
    "unacceptable."[^45] Our rules will ensure that the critical need
    for education is met in every market. NAB and APTS both argue that
    we can simply rely on the interests of all broadcasters in
    preserving their over-the-air audience, and that we therefore need
    not require any broadcaster education efforts.[^46] While we agree
    that broadcasters have every incentive to prepare their viewers for
    the transition, a "baseline requirement" is necessary to ensure the
    public awareness necessary for a smooth and orderly transition. We
    have adopted NAB's proposal as an alternative method by which
    stations can meet this baseline requirement.[^47] As the CAC points
    out, there will be a number of contrary pressures on local
    broadcasters over the next 12 months.[^48] For example, it is
    possible that the viewers most likely to be left behind due to an
    insufficient educational effort are the ones least demographically
    attractive to advertisers.[^49] Finally, potential advertising
    revenue from such sources as presidential and other political
    campaigns may make it tempting, in the short run, not to devote
    advertising time to transition education.[^50]

18. APTS suggests that public television stations be exempt from any
    requirements because they have a good track record of informing the
    public and because they are limited in the time they have to air
    public service announcements.[^51] We disagree because the rules we
    impose are designed to complement efforts such as APTS'; if
    broadcasters are already engaging in these efforts, the rules will
    not be a burden. However, as with commercial stations, we have given
    noncommercial broadcasters the option to comply with our
    requirements via an alternative route.[^52]

19. *Statutory Authority.* NAB, alone among commenters, argues that the
    Commission does not have statutory authority to require that
    broadcasters inform their viewers of the full-power broadcast
    digital television transition.[^53] NAB argues that Section 326 of
    the Act, prohibiting us from interfering with the right of free
    speech by broadcasters, prevents us from acting here absent a grant
    of authority that specifically mentions DTV consumer education PSAs
    and crawls.[^54] We disagree. As discussed more fully in Section G,
    below, our actions here do not constitute an improper restriction on
    speech.[^55] NAB also asserts an artificially narrow conception of
    the Commission's statutory authority when it argues that we cannot
    act without a "specific statutory provision authorizing required
    PSAs and crawls, including content thereof."[^56] As noted above,
    Congress both mandated the digital transition and vested the
    Commission with the power to "prescribe such regulations as may be
    necessary for the protection of the public interest, convenience,
    and necessity" in connection with the digital transition.[^57]

20. Finally, broadcast licensees have a statutory obligation to "serve
    the public interest, convenience, and necessity."[^58] One can
    scarcely conceive a situation more illustrative of the "necessity"
    prong of this duty than the instant case, where certain viewers will
    cease having access to full-power broadcast services transmitted
    over the public airwaves on a date certain absent concerted
    informational efforts. There simply can be no national full-power
    digital broadcast transition if the very people who rely on
    broadcast television are unaware of it. As NAB acknowledges,
    "\[t\]he future of free-over-the air television depends upon a
    smooth transition.... For this to happen, the American public must
    understand what all-digital broadcasting means for them."[^59]

21. Broadcasters must take some responsibility for educating the public
    that they are bound to serve. If a blizzard hits Chicago on February
    18, 2009, all over-the-air viewers should be able to turn on their
    television and receive emergency information without missing a
    beat.[^60] Educating viewers so that they have access to digital
    transmissions is a keystone of the transition which the FCC is
    statutorily required to effectuate, and broadcasters must play a
    central role in that process. In reviewing other regulations
    designed to advance the digital transition, the D.C. Circuit held in
    *Consumer Electronics Ass'n v. FCC*[^61] that "\[g\]iven Congress'
    instruction to end analog broadcasts . . . and the Commission's
    finding that \[current trends were not such that the public would be
    ready for the transition\], . . . the Commission reasonably
    determined to take action . . . so that the DTV transition may move
    at the pace required by Congress."[^62] As in *CEA*, we must take
    action to ensure the orderly transition of broadcast service to
    digital and we have the statutory authority to do so.

22. Finally, the imposition here is similar to existing requirements for
    broadcaster station identification and broadcast of license renewal
    notices.[^63] The change from analog to digital broadcasting is at
    least as fundamental to the operation of a station as the possession
    of a broadcast license, and of more practical import to viewers.
    Given the extremely minimal requirements for producing a compliant
    PSA or crawl and the indispensable role that television stations
    must play in educating their viewers in how they can continue to
    have access to full-power television service after the transition,
    it does not avail NAB to claim that these public notices are
    fundamentally different from other broadcast notice requirements
    because they are "furthering a government policy."[^64]

23. The Commission, in a similar context, enforced broadcaster public
    interest obligations by requiring digital television stations to
    participate in the emergency alert system ("EAS"). In that
    proceeding, NAB agreed with the Commission that participation in EAS
    was a natural extension of broadcaster public interest
    obligations.[^65] The order noted that exemption from this
    requirement would not be in the public interest. It also noted that
    if participation in the Emergency Alert System were voluntary, some
    communities could be left without an EAS source, and such messages
    are too important to risk missing "because a person is tuned to the
    wrong channel."[^66] Similarly, in the case of the transition, an
    exemption from consumer education is contrary to the public interest
    because the public has a right to know how televisions will function
    after February 17, 2009. A voluntary program is inadequate because
    transition information is too important to risk that some viewers
    will lack the necessary information because the licensee serving
    them fails to provide that information in a timely fashion. If
    viewers see a blank screen on February 18, 2009, because they were
    not informed about the actions they needed to take to continue
    receiving television programming, they will effectively be deprived
    of access to all OTA television service \-- including EAS.[^67]

#### Option One Reporting Requirements

24. A broadcaster choosing to comply with Option One will be required to
    electronically report its consumer education efforts to the
    Commission on a quarterly basis, and place these reports in the
    broadcaster's public file and, if the broadcaster has a public
    website, on that website. These reports will be made available on
    the Commission's website in a centralized, searchable database. For
    each quarter of required consumer education, we require that
    broadcasters electing Option One complete Form 388 and file it
    electronically in this docket (07-148) by the tenth day of the
    succeeding calendar quarter, with a copy placed in the station's
    public inspection file by that same date. Because of the limited
    duration of the full-power transition period, only a limited number
    of these quarterly reports will be required. The first, covering the
    first quarter of 2008, must be filed no later than April 10, 2008,
    and the last, covering a station's final quarter of mandated
    educational efforts, will be filed no later than April 10, 2009, for
    most stations. Stations that are required to continue educational
    efforts beyond March 31, 2009, must also continue to file these
    quarterly reports, up to and including the final quarter in which
    they have active educational requirements.[^68]

25. The Letter suggested that the Commission consider requiring
    "broadcast licensees and permittees to report, every 90 days, their
    consumer education efforts, including the time, frequency, and
    content of public service announcements aired by each station in a
    market, with civil penalties for noncompliance."[^69] It also
    suggested that the Commission consider imposing "interim
    requirements for detailing a broadcaster's consumer education
    efforts in the required local public inspection file, such as by
    including coverage about the digital transition in the
    issues/programs list compiled every three months or by making
    announcements in local newspapers or on-air similar to public notice
    requirements for new stations or license renewal."[^70]

26. Broadcasters generally oppose this reporting requirement.[^71] As
    discussed above, broadcaster education efforts are a central part of
    consumer education concerning the transition. We require reporting
    to enforce these consumer education initiatives and ensure that the
    necessary efforts are underway. As the National Hispanic Media
    Coalition observes, "\[t\]here is no satisfactory alternative to
    this reporting."[^72] As with the Children's Television Programming
    requirements, self-reporting allows broadcasters to verify for
    themselves that they are fulfilling their obligations.[^73]
    Furthermore, because of the importance of these education
    requirements and the relatively short time frame of the full-power
    transition, the Commission needs to be able to monitor compliance
    with and enforce those obligations in a way that is not
    prohibitively cost- and time-consuming. Self-reporting is the most
    effective way to do this.

27. As to the form and format of the reports, the AARP and others take
    the position that the reports should include detailed information
    about each airing of a PSA and its content, and should be filed
    quarterly.[^74] The Benton Foundation suggests that the reports be
    filed in electronic form, and also be placed in the broadcaster's
    public file.[^75] As noted, we decline to require a specific format,
    but all of the above information must be included.

28. Given our statutory authority to require the PSAs and crawls, as
    discussed above, we also have authority to require broadcasters to
    document and report their compliance efforts. We have statutory
    authority under the Communications Act to require broadcasters to
    provide information about their programming to the public and the
    Commission.[^76] Providing information to the public about their
    transition education efforts will make broadcasters more accountable
    for their public interest obligation to promote the continued
    availability of free television programming and ensure a smooth
    transition. Sections 303(r) and 4(i) of the Communications Act
    provide ample authority for the reporting requirement because
    providing this information will help us ensure broadcasters are
    acting as public trustees[^77] and the Commission is fulfilling its
    duty to oversee the full-power transition.[^78] In addition, Section
    4(k) of the Communications Act expressly authorizes the Commission
    to collect information and data "as may be considered of value in
    the determination of questions connected with the regulation of
    interstate ... radio communication and radio transmission of energy"
    to assist the Congress in its normal oversight
    responsibilities.[^79] Determining whether the American public is
    adequately informed and educated about the full-power DTV transition
    is of significant concern to Congress, and the reporting
    requirements will assist the Commission in gathering this important
    information. In addition, these reporting requirements are
    "necessary for the protection of the public interest, convenience,
    and necessity" in connection with the digital transition because
    they will assist the Commission in assessing consumer understanding
    of the transition and in determining whether adjustments to the
    educational efforts must be made.[^80] Further, without broadcasters
    reporting their efforts, the public and the Commission will be
    unable to determine at renewal time whether stations have complied
    with the consumer education rules.[^81] Indeed, these requirements
    are similar to the long-standing issues/programs list requirements
    which require stations to list every three months their programs
    that have provided the most significant treatment of community
    issues and retain these lists in their public file.[^82] As with
    on-air identifiers, our broad authority under the Communications Act
    to carry out the public interest requirement permits us to have
    broadcasters provide public service announcements to effectuate the
    public interest standard. Although we have not previously required
    broadcasters to air public service announcements, we have required
    stations to broadcast certain on-air announcements,[^83] to give
    public notice in a local newspaper for certain broadcast
    applications,[^84] and to make available certain information in a
    public file.[^85]

29. Similarly, the Commission's First Report and Order[^86] pursuant to
    the Children's Television Act [^87] relied on the authority cited
    above and the Commission's authority to enforce the public interest
    obligations of broadcasters[^88] to impose upon broadcasters
    mandatory quarterly[^89] children's programming reporting
    requirements. Here, the reporting requirement is much more lenient,
    as it is for a finite period of time.

### Broadcaster Education Option Two

#### Option Two Consumer Education Requirements

30. We find that the record also supports permitting broadcasters to
    choose to comply with our rules by following the alternative plan
    offered by the National Association of Broadcasters.[^90] Under this
    option, a broadcaster must air an average of sixteen transition PSAs
    per week, and an average of sixteen transition-related crawls,
    snipes, and/or tickers[^91] per week, over each quarter through the
    transition period between 5:00 am and 1:00 am. No PSAs or crawls,
    snipes, and/or tickers aired between the hours of 1:00 am and 5:00
    am will qualify as compliant for the purposes of these education
    requirements. Over the course of each calendar quarter, one fourth
    of all PSAs and crawls, snipes, and/or tickers must air between 6:00
    pm and 11:35 pm, Eastern and Pacific, and between 5:00 pm and 10:35
    pm, Central and Mountain. These requirements will expire for most
    broadcasters on March 31, 2009. [^92] This requirement applies
    separately to a station's analog channel and its primary digital
    stream. As with broadcasters electing Option One, we expect that
    broadcasters electing Option Two will air these DTV PSAs in addition
    to, and not in lieu of, PSAs on other issues of importance to their
    local communities. And, as under Option One, these transition PSAs
    must be closed-captioned.[^93] Stations are free to use PSAs
    produced in-house or provided by outside sources such as NAB or the
    networks.

31. Required PSAs must be at least 30 seconds in length. A broadcaster
    may, however, choose to air two PSAs of no less than 15 seconds in
    length in place of a single PSA of at least 30 seconds in
    length.[^94] Stations will also air at least one 30-minute
    informational program on the digital television transition between
    8:00 am -- 11:35 pm on at least one day prior to February 17, 2009.

32. Beginning on November 10, 2008, all stations must begin a 100-Day
    Countdown to the full-power transition. During this period, each
    station must air at least one of the following per day:

-   *Graphic Display*. A graphic super-imposed during programming
    content that reminds viewers graphically there are "x number of
    days" until the full-power transition. They will be visually
    instructed to call a toll-free number and/or visit a Website for
    details. The length of time will vary from 5 to 15 seconds, at the
    discretion of the station.

```{=html}
<!-- -->
```
-   *Animated Graphic*. A moving or animated graphic that ends up as a
    countdown reminder. It would remind viewers that there are "x number
    of days" until the full-power transition. They will be visually
    instructed to call a toll-free number and/or visit a Website for
    details. The length of time will vary from 5 to 15 seconds, at the
    discretion of the station.

```{=html}
<!-- -->
```
-   *Graphic and Audio Display*. Option #1 or option #2 with an added
    audio component. The length of time will vary from 5 to 15 seconds,
    at the discretion of the station.

```{=html}
<!-- -->
```
-   *Longer Form Reminders*. Stations can choose from a variety of
    longer form options to communicate the countdown message. Examples
    might include an "Ask the Expert" segment where viewers can call in
    to a phone bank and ask knowledgeable people their questions about
    the transition.[^95] The length of these segments will vary from 2
    minutes to 5 minutes, at the discretion of the station (Some
    stations may also choose to include during newscasts DTV "experts"
    who may be asked questions by the anchor or reporter about the
    impending February 17, 2009, deadline).

#### Option Two Reporting Requirements

33. We also find that the record supports a requirement that
    broadcasters electing Option Two electronically report their
    consumer education efforts to the Commission on a quarterly basis,
    and place these reports in the broadcaster's public file, just as
    under Option One. These reports will be made available on the
    Commission's website in a centralized, searchable database. For each
    quarter of required consumer education, we require that broadcasters
    electing Option Two complete Form 388 and file it electronically in
    this docket (07-148) by the tenth day of the succeeding calendar
    quarter, with a copy placed in the station's public inspection file
    by that same date. Because of the short remaining duration of the
    full-power transition period, only a limited number of these
    quarterly reports will be required. The first, covering the first
    quarter of 2008, must be filed no later than April 10, 2008, and the
    last, covering a station's final quarter of mandated educational
    efforts, will be filed no later than April 10, 2009, for most
    stations. Stations that are required to continue educational efforts
    beyond March 31, 2009, must also continue to file these quarterly
    reports up to and including the final quarter in which they have
    active educational requirements.[^96]

### Broadcaster Education Option Three

#### Option Three Consumer Education Requirements

34. This option is open only to noncommercial broadcasters. We find that
    the record also supports permitting some broadcasters to choose to
    comply with our rules by following the alternative plan offered by
    the APTS.[^97] Under this option, a broadcaster must air 60 seconds
    per day of on-air consumer education, in variable timeslots,
    including at least 7.5 minutes per month between 6:00 pm and 12:00
    am. Beginning May 1, 2008, this requirement doubles, and beginning
    November 1, 2008, it increases again, to 180 seconds per day and
    22.5 minutes per month between 6:00 pm and midnight. The transition
    PSAs must be closed-captioned.[^98] These requirements will expire
    for most broadcasters on March 31, 2009. [^99] Stations will also
    air a 30-minute informational program on the digital television
    transition between 8:00 am -- 11:35 pm on at least one day prior to
    February 17, 2009. This requirement applies separately to its analog
    channel and its primary digital stream.[^100] As with broadcasters
    electing Option One, we expect that broadcasters electing Option
    Three will air these DTV PSAs in addition to, and not in lieu of,
    PSAs on other issues of importance to their local communities.
    Stations are free to use PSAs produced in-house or provided by
    outside sources such as NAB or the networks. And, as under Option
    One, these transition PSAs must be closed-captioned.[^101]

#### Option Three Reporting Requirements

35. We also find that the record supports a requirement that
    noncommercial broadcasters electing Option Three electronically
    report their consumer education efforts to the Commission on a
    quarterly basis, and place these reports in the broadcaster's public
    file, just as under Option One. These reports will be made available
    on the Commission's website in a centralized, searchable database.
    For each quarter of required consumer education, we require that
    broadcasters electing Option Three complete Form 388 and file it
    electronically in this docket (07-148) by the tenth day of the
    succeeding calendar quarter, with a copy placed in the station's
    public inspection file by that same date. Because of the short
    remaining duration of the full-power transition period, only a
    limited number of these quarterly reports will be required. The
    first, covering the first quarter of 2008, must be filed no later
    than April 10, 2008, and the last, covering a station's final
    quarter of mandated educational efforts, will be filed no later than
    April 10, 2009, for most stations. Stations that are required to
    continue educational efforts beyond March 31, 2009, must also
    continue to file these quarterly reports up to and including the
    final quarter in which they have active educational
    requirements.[^102]

### Low-Power, Class A, and Translator Stations

36. Low-power ("LP") broadcast stations are not required to cease
    broadcasting in analog as of February 17, 2009. Although some
    already have or plan to independently transition to digital-only
    broadcasting, many of these stations will continue to broadcast in
    analog after the conclusion of the full-power transition. Thus, many
    consumers may receive some programming in digital and some
    programming in analog after the transition date.  Those
    consumers with analog televisions who are reliant on over-the-air
    broadcasting will need to acquire a digital to analog converter box
    to continue watching television after the transition.  Recently,
    concerns have been raised, by the Community Broadcasters Association
    among others,[^103] about the fact that the majority of Coupon
    Eligible Converter Boxes ("CECBs") certified by NTIA are not capable
    of "passing through" analog signals from the antenna to a connected
    set.[^104] As a result, LP stations (including Class A and
    translator stations) that continue to broadcast in analog will not
    be viewable to OTA viewers who rely on a converter box, unless they
    use one of the boxes with pass-through capability.

37. This issue was raised before the Commission after the record in this
    rulemaking had closed, and we therefore do not have a record on it.
    Accordingly, we have an insufficient basis upon which to adopt
    consumer education requirements relating to this issue in the
    instant proceeding.[^105] Nonetheless, given that converter boxes
    are already on the shelves of many retailers, and coupons are in the
    process of being mailed to consumers, we recognize the urgency of
    the problem for those consumers who may have difficulty viewing
    these low power stations. We therefore urge all LP broadcasters, but
    particularly those that plan to continue analog-only broadcasting,
    to immediately begin educating their viewers about this issue. For
    instance, such stations could notify their viewers that: (1) they
    are watching a low-power broadcast station that, unlike full-power
    stations, may continue to offer analog service after February 17,
    2009, and (2) viewers who plan to purchase a converter box in order
    to view digital signals should buy a model with analog pass-through
    capability in order to continue watching that station. The LP
    station could direct viewers to the NTIA converter box coupon
    program, and in particular the NTIA listing of certified converter
    boxes.[^106] We also urge industry and our private and public sector
    partners to do what they can to educate consumers generally about
    this situation, and to assist in the effort to ensure that no
    American loses a signal due to the transition.

## Multichannel Video Programming Distributor Customer Bill Notices

38. We will require that all MVPDs (*e.g.*, DBS carriers, cable
    operators, open video system operators, private cable operators,
    etc.) provide notice of the full-power DTV transition to their
    subscribers in monthly bills or billing notices.[^107] The notice
    must be provided as a "bill stuffer" or as part of an information
    section on the bill itself. It must be noticeable, and state that on
    February 17, 2009, full-power analog broadcasting will end, and
    analog-only televisions may be unable to display full-power
    broadcast programming unless the viewer takes action. It must also
    note that viewers can get more information by going to www.DTV.gov
    or calling the MVPD at a number provided, and more information about
    the converter box program by going to www.dtv2009.gov or calling the
    NTIA at 1-888-DTV-2009. The notice may also, at the MVPD's
    discretion, provide contact information for the DTV Transition
    Coalition. The message should be provided in the same language or
    languages as the bill, and explain clearly what impact, if any, the
    transition will have on the subscriber's access to MVPD
    service.[^108] The most important information may be to note that
    sets not connected to an MVPD service may need additional equipment
    (*i.e*. converter box) or may have to be replaced. MVPDs must begin
    including these monthly notices 30 days after the effective date of
    the rules and must continue including them monthly through
    March 2009. Beginning approximately one year before the full-power
    transition and running through March 2009 ensures that subscribers
    will be exposed to educational messages throughout the remainder of
    the transition, and will have sufficient opportunity to act on
    them.[^109]

39. The Letter suggested that the Commission consider requiring, "as a
    license condition or through customer service or other consumer
    protection or public interest requirements, all multichannel video
    programming distributors (MVPDs) to insert periodic notices in
    customer bills that inform consumers about the digital television
    transition and their customers' future viewing options, with civil
    penalties for noncompliance."[^110] These notices would go to all
    MVPD subscribers and provide them with information about the
    full-power transition generally and about how it will affect their
    service specifically. The New York State Consumer Protection Board
    is primarily concerned that MVPD subscribers understand what
    effects, if any, the transition will have on their service.[^111]
    The Benton Foundation not only supported this proposal, as "an
    optimal way to reach consumers that value television service," but
    also proposed a requirement that MVPDs run PSAs themselves.[^112]
    The National Cable and Telecommunications Association states in its
    comments that the cable industry has not only committed to exceed
    the Commission's proposal, but those of the commenters.[^113] The
    cable industry has committed to include DTV transition notices in
    subscriber bills, on a monthly basis beginning in 2008.[^114]
    Indeed, these commitments have been made not only to the Commission,
    but also to the Commerce Committees of both the United States House
    of Representatives and the United States Senate.[^115] NCTA argues
    that, given these commitments, the Commission should not impose any
    requirements for MVPD DTV education efforts.

40. Of course, we welcome the efforts of NCTA and its members. We note,
    however, that the commitments of NCTA do not bind its member cable
    operators, and that, of course, it does not speak for all MVPDs.
    DIRECTV and EchoStar, while pledging active education efforts both
    for their subscribers and for OTA viewers state that they have no
    plans to provide periodic notices with bills.[^116] Verizon,
    similarly, opposes the use of notices in bills, on the grounds that
    they would be expensive, ineffective, and potentially
    counterproductive.[^117] We disagree with Verizon because the
    overall record in this proceeding indicates that bill notices would
    contribute significantly to consumer education efforts. Such notices
    would reach viewers who are engaged with television viewing and well
    positioned both to act on the information regarding any OTA sets
    they may have and to serve as a source of information for others.

41. Several industry commenters object that the Commission does not have
    statutory authority to impose the notice requirement.[^118] We
    conclude, however, that we have ancillary authority to adopt notice
    requirements for Multichannel Video Programming Distributors under
    Titles I, III, and VI of the Communications Act of 1934, as amended
    ("Act").[^119] Courts have long recognized that, even in the absence
    of explicit statutory authority, the Commission has authority to
    promulgate regulations to effectuate the goals and provisions of the
    Act if the regulations are "reasonably ancillary to the effective
    performance of the Commission's various responsibilities" under the
    Act.[^120] The Supreme Court has established a two-part ancillary
    jurisdiction test: (1) the subject of the regulation must be covered
    by the Commission's general grant of jurisdiction under Title I of
    the Communications Act; and (2) the regulation must be reasonably
    ancillary to the Commission's statutory responsibilities.[^121] The
    requirements we adopt here regulate the disclosure obligations of
    companies providing services that fall within the Commission's
    jurisdiction under Titles I, III, and VI, advance our statutory
    obligation to promote the digital transition, and serve the public
    interest. We conclude, therefore, that we have ancillary
    jurisdiction to adopt DTV transition notice requirements in this
    proceeding.

42. For the most part, commenters do not argue that the Commission lacks
    jurisdiction over either the DTV transition or MVPDs. [^122] Rather,
    they argue that requiring MVPDs to provide billing notices regarding
    the full-power DTV transition is not reasonably ancillary to our
    authority over either broadcast television or MVPDs. Verizon and
    NTCA both argue that there is no connection between multichannel
    distribution and the full-power broadcast television transition, and
    that this would be a broadcast regulation imposed on parties not
    engaged in broadcasting. On the contrary, MVPDs are an inextricable
    part of the television market. Both DBS and cable have mandatory
    carriage requirements, and all MVPDs have requirements concerning
    retransmission of broadcast signals.[^123] Without the stations and
    viewers affected by this transition, MVPDs would be in a very
    different business. The Commission is statutorily obligated to
    promote the orderly transition to digital television, "a critical
    step in the evolution of broadcast television."[^124] Further, the
    Commission is authorized to "make such rules and regulations . . .
    as may be necessary in the execution of its functions," and to
    "\[m\]ake such rules and regulations . . . not inconsistent with
    law, as may be necessary to carry out the provisions of this Act . .
    ."[^125]

43. The rules we adopt today advance these statutory mandates and serve
    the public interest. USTA argues that the connection between such
    notices and the Commission's DTV transition authority is weak,
    because "the customers who would receive those notices *do not rely
    on the broadcast signals that will cease on the transition
    date*."[^126] Many of those very customers do in fact rely on
    broadcast signals for at least some of the televisions in their
    homes.[^127] Accurate and timely communication of the impending
    change from analog to digital transmission is a critical disclosure
    for all consumers. Not only will every DTV-educated consumer
    accelerate the spread of knowledge about the full-power transition,
    but as described in COAT's comments, many MVPD subscribers will in
    fact be directly impacted by the transition, even if only because
    they have some OTA sets in their home.[^128] Furthermore, broadcast
    channels carried on a system will tend to be clearer and crisper as
    a result of the broadcaster switch to digital,[^129] and every
    station broadcasting programming in HD, not just those carried
    pursuant to retransmission consent, will be available in HD.[^130]
    As discussed above, over half of consumers still are not aware of
    the impending full-power digital transition.[^131] Clearly,
    voluntary industry efforts to date have not been sufficient to
    ensure consumer awareness of the upcoming transition to digital
    television. Such consumer awareness is critical to our missions of
    promoting public safety and an orderly digital transition.[^132]

44. Exercising ancillary jurisdiction to adopt DTV transition notice
    requirements for MVPDs is consistent with prior exercises of the
    Commission's authority. The Commission previously relied on its
    authority under the Act and the ACRA to impose an analog-only
    labeling requirement in order to promote the orderly transition to
    digital television.[^133] In addition, the Commission recently
    relied on its ancillary jurisdiction in requiring interconnected
    Voice over Internet Protocol ("VoIP") service providers to
    distribute to their subscribers stickers or labels warning if E911
    service may be limited or unavailable, and to instruct subscribers
    to place them on or near the equipment used in conjunction with the
    interconnected VoIP service.[^134] The Commission also has numerous
    other labeling and disclosure requirements designed to further its
    statutory objectives and to protect consumers.[^135] In sum,
    therefore, we conclude that we have ancillary authority to adopt DTV
    transition notice requirements for MVPDs.

45. USTA makes two additional arguments about the limits of our
    ancillary jurisdiction in this case. First, it argues that because
    NTIA was given some express authority over DTV transition education,
    it "creates a strong presumption" that Congress did not mean for the
    Commission to have any authority in this area at all.[^136] On the
    contrary, Congress had no need to give the Commission specific
    authority over any one element of the transition, because as
    discussed above we have general authority to promulgate rules to
    advance the transition.[^137] USTA also argues, again almost in
    passing, that the Commission "may" not be permitted to exercise
    ancillary jurisdiction in any manner that could be seen as
    content-related regulation of speech. In support of this argument,
    USTA cites only the 2002 D.C. Circuit decision that struck down the
    Commission's video description requirements.[^138] *MPAA v. FCC* can
    not, however, be reasonably read to impose such a sweeping rule. The
    Court's decision focuses on the inability of the Commission to rely
    on Section 1 of the Act as a source of authority for restricting
    programming content. In this case, Section 1 is not the primary
    source of the Commission's authority, and programming content is not
    at issue. More to the point, the *MPAA* Court pointed to a clear
    Congressional directive that specifically spoke to video description
    and limited the Commission's sphere of authority to the creation of
    a report. Here, on the other hand, Congress has endowed the
    Commission with general authority to prescribe regulations that will
    "promote the orderly transition to digital television."[^139]

## Consumer Electronics Manufacturer Notices

46. We require that parties that manufacture, import, or ship interstate
    television receivers and devices designed to work with television
    receivers (including digital-to-analog converter boxes like the NTIA
    Coupon Eligible Converter Boxes) include information with those
    devices explaining to consumers what effect, if any, the full-power
    DTV transition will have on their use. This information must be
    included with all devices shipped, beginning on the effective date
    of these rules, until March 31, 2009. As with the notices included
    in MVPD bills, the information may be in any form preferred by the
    manufacturer. It must be noticeable, contain the minimum information
    about the full-power transition described in paragraph 12, above,
    and explain clearly what impact, if any, the transition will have on
    the use of the device. For example, with receivers with a digital
    OTA tuner, one sufficient form of notice would be a sticker on the
    outside of the packaging that reads: "Digital Television Transition
    Notice: This television receiver will display over the air
    programming after the end of full-power analog broadcasting on
    February 17, 2009. Some older television receivers may need a
    converter box to display over the air digital programming, but
    should continue to work as before for some purposes (e.g., for
    watching LPTV, Class A, or translator stations still broadcasting in
    analog, watching pre-recorded movies, or playing video games). For
    more information, please call \[the manufacturer\], go to
    www.DTV.gov, or, for converter box information, go to
    www.dtv2009.gov or call the NTIA at 1-888-DTV-2009."

47. As noted above, this requirement applies not only to television
    receivers, but also to electronic devices that are designed to be
    connected to, and are dependent on, television receivers. Notices
    included with these devices, which include DVD players and
    recorders, VCRs, and monitors, must not only provide the basic
    information about the transition. They must also make clear that,
    after the transition, the device will not serve its function, in
    regard to full-power OTA signals, unless connected to a device with
    a digital tuner.

48. The Letter suggested that the Commission consider requiring
    "manufacturers to include information with television receivers and
    related devices about the transition, with civil penalties for
    noncompliance."[^140] The only commenter to oppose this proposal,
    LG, conceived of it applying only to "television sets," and argued
    that the existing Labeling Order already resolves this issue.[^141]
    On the contrary, the Labeling Order's requirements apply only to
    sets without a digital receiver, which are no longer being
    manufactured for the US market.[^142] Therefore the two sets of
    requirements do not overlap at all. The Benton Foundation suggests
    that the included information should be standardized by the
    Commission.[^143]

49. No commenter challenged the Commission's statutory or constitutional
    authority to impose this requirement. As in the analog receiver
    labeling order,[^144] our authority to impose this requirement is
    ancillary to our responsibilities under the Communications Act and
    the All Channel Receivers Act. An electronic device that is
    dependent for its use, in whole or in part, on over-the-air
    reception of television broadcast channels, is an "apparatus"
    "incidental to . . . transmission" of television broadcasts and,
    therefore, within the scope of our Title I subject matter
    jurisdiction.[^145] As discussed in more detail in paragraphs 5 and
    19-23, above, the Commission is statutorily obligated to promote the
    orderly transition to digital television. Ensuring that consumers
    know how it will affect their devices, and why they may suddenly
    stop working or change their functionality, is essential to
    achieving that goal.

## DTV.gov Partner Consumer Education Reporting

50. We require DTV.gov Transition Partners to report their consumer
    education efforts, as a condition of continuing Partner
    status.[^146] Reports should be filed into the record of this
    proceeding on a quarterly basis, beginning on April 10, 2008.
    Additionally, individual copies of the reports should be sent, via
    electronic mail or hard copy format, to the Chief and to the Chief
    of Staff of the Commission\'s Consumer and Governmental Affairs
    Bureau, as well as sent electronically to <dtvreporting@fcc.gov>.
    This is in line with the Letter's suggestion that the Commission
    consider requiring "partners identified on the Commission's digital
    television Web site to report their specific consumer outreach
    efforts."[^147]

51. We appreciate the efforts made so far by our DTV.gov Partners to
    keep us apprised of their consumer education and outreach
    activities. As we move closer to the full-power transition date, the
    Commission will necessarily be accelerating its efforts, and further
    emphasizing its role as the coordinator and clearinghouse for DTV
    transition education. As NAB and MSTV observe, "coordination is
    critical to ensure that, in addition to messaging, industry,
    government agencies and other stakeholders are not either: (1)
    unnecessarily duplicating consumer education efforts or (2) failing
    to target key segments of the American population. The need for
    coordination is further underscored by the limited financial
    resources of the Commission."[^148] No commenters opposed this
    proposal, and several supported it.[^149] Furthermore, NAB and MSTV
    describe the DTV Transition Coalition as already committed to
    regularly updating the Commission. Therefore, moving forward we will
    require that DTV.gov Partners provide us with quarterly updates on
    their specific consumer outreach efforts, and we anticipate that we
    will use this full range of information to work with Partners on
    future education efforts. Any Partner listed that fails to work with
    the Commission in this process may lose Partner status and be
    removed from the DTV.gov Partners page.

## Consumer Electronics Retailer Training and Education 

52. We adopt the suggestion in the letter that the Commission work "with
    NTIA to require retailers who participate in the converter box
    coupon program to detail their employee training and consumer
    information plans and have Commission staff conduct spot inspections
    to ascertain whether such objectives are being met at stores."[^150]
    A number of commenters are in favor of this proposal. The
    Telecommunications Regulatory Board of Puerto Rico supports it
    because "direct contact with customers will play a crucial role in
    educating people on the DTV transition."[^151] We agree that
    retailers can play a central role, and we plan to work with NTIA to
    ensure that retailers are fulfilling their commitment to the
    converter box program. As the Consumer Electronics Retailers
    Coalition has explained, consumer electronics retailers
    independently planned to engage in extensive employee training and
    consumer outreach regarding the transition.[^152] These outreach
    efforts began early, as Radio Shack explains, with a standardized
    tip sheet developed and made available for distribution by all
    retailers.[^153] Several large retailers, including Circuit City,
    Target, and Best Buy, assured the Commission of their intention to
    engage in extensive outreach, and have since demonstrated an
    admirable degree of focus, ingenuity, and dedication to the needs of
    viewers as they approach the digital transition.[^154] Enforcement
    Bureau field agents will regularly visit participating retailer
    stores across the country to assess their employee training and
    consumer education efforts and whether the retailers' objectives are
    being met at stores. Through ongoing and close coordination, the
    Enforcement Bureau will provide the results of these site visits to
    NTIA for review and appropriate action. We appreciate and encourage
    these efforts on the part of retailers, particularly participants in
    the NTIA converter box program.

## Other Proposals

### Federal Universal Service Low-Income Program Participant Notices

53. We will require that all eligible telecommunications carriers
    ("ETCs") that receive federal universal service funds provide DTV
    transition information in the monthly bills of their
    Lifeline/Link-Up customers.[^155] Similar to the requirements for
    MVPDs, the notice must be provided as a "bill stuffer" or as part of
    an information section on the bill itself. It must be noticeable,
    and state that on February 17, 2009, full-power analog broadcasting
    will end, and analog-only televisions may be unable to display
    full-power broadcast programming unless the viewer takes action. It
    must also note that viewers can get more information by going to
    www.DTV.gov, and more information about the converter box program by
    going to www.dtv2009.gov or calling the NTIA at 888-DTV-2009. The
    notice may also, at the ETC's discretion, provide contact
    information for the DTV Transition Coalition. The notice should be
    provided in the same language or languages as the bill. If the ETC's
    Lifeline/Link-Up customer does not receive paper versions of either
    a bill or a notice of billing, then that customer must be provided
    with equivalent monthly transition notices in whatever medium they
    receive information about their monthly bill. Finally, ETCs that
    receive federal universal service funds must provide this same basic
    information as part of any other Lifeline or Link-Up publicity
    campaigns.[^156] The customer bill notice requirement will run
    concurrently with the MVPD bill notice requirement (i.e., from 30
    days after the effective date of these rules through March 2009),
    and the publicity requirement will run for the same period.

54. The Letter suggested that the Commission "require, as an interim
    measure, that telecommunications carriers that receive funds under
    the Low Income Federal universal service program ... notify each of
    their low income customers of the digital transition and include
    such a notice in their required Lifeline and Link-Up publicity
    efforts."[^157] The strongest support for this requirement came from
    the New York State Consumer Protection Board, which suggested that
    "all telecommunications providers notify their low-income customers
    of the transition through their current Lifeline outreach
    efforts."[^158] The Benton Foundation and the Commission's Consumer
    Affairs Committee both suggest that we should "encourage"
    telecommunications companies to engage in this type of outreach,
    particularly with their low income customers, but they do not
    support a mandate. Several commenters oppose the requirement,
    arguing that the Commission lacks a sufficient nexus to exercise
    ancillary jurisdiction. All argue that this would be
    unconstitutional compelled speech. We disagree with these commenters
    for the reasons explained in Section G, below.[^159] Verizon also
    argues that this type of notice would confuse subscribers rather
    than educate them,[^160] and that these notices would lead to
    flooding phone company call centers with questions about the DTV
    transition. Finally, NTCA claims that the IRFA is deficient because
    it does not mention LECs. We reject NTCA\'s argument. The Commission
    provided sufficient notice, under the APA, that regulation of LECs
    was being considered.[^161] Furthermore, the Commission\'s FRFA has
    considered the possible economic impact on LECs as required under
    the RFA.[^162] We agree with the consumer advocates, and adopt the
    above proposals.

55. We conclude that we have authority under Title I of the Act to
    impose the DTV Consumer Education requirements on ETCs that receive
    federal universal service funds.[^163] Ancillary jurisdiction may be
    employed, in the Commission's discretion, when Title I of the Act
    gives the Commission subject matter jurisdiction over the service to
    be regulated[^164] and the assertion of jurisdiction is "reasonably
    ancillary to the effective performance of \[its\] various
    responsibilities."[^165] Both predicates for ancillary jurisdiction
    are satisfied here.

56. First, Section 2(a) of the Act grants the Commission subject matter
    jurisdiction over \[the services provided by\] telecommunications
    carriers.[^166] Section 254(e) provides that only eligible
    telecommunications carriers are eligible to receive federal
    universal service funds. [^167] Therefore, all ETCs that receive
    federal universal service funds are telecommunications carriers, and
    as a result, are the subject of the Commission's subject matter
    jurisdiction.

57. Second, our analysis requires us to evaluate whether imposing the
    DTV Consumer Education requirements is reasonably ancillary to the
    effective performance of the Commission's various responsibilities.
    We find that Sections 309 and 1 of the Act provide the requisite
    nexus. Section 309 requires the Commission to "take such actions as
    are necessary ... to terminate all licenses for full-power
    television stations in the analog television service, and to require
    the cessation of broadcasting by full-power stations in the analog
    television service, by February 18, 2009 . . . ."[^168] In a survey
    on the DTV transition, the GAO found that over-the-air households
    are more likely to have lower incomes than cable or satellite
    households and that approximately 48 percent of exclusive
    over-the-air viewers have household incomes less than
    \$30,000.[^169] The Commission already has in place the
    Lifeline/Link-Up programs that provide discounts off the initial
    installation and monthly costs of telephone service to millions of
    low-income consumers.[^170] Because the DTV transition will greatly
    affect lower income households and the Lifeline/Link-Up programs
    already serve this same demographic, we have an already established
    communication path that can be used to further the success of the
    DTV transition. By communicating with these lower income households,
    we ensure that all Americans will have the knowledge they need in
    order to prepare for the DTV broadcast transition. We therefore find
    that the extension of the DTV Consumer Education requirements to
    ETCs that receive federal universal service funds and are required
    to advertise to low-income consumers is reasonably ancillary to the
    effective performance of our duty to ensure the success of the DTV
    transition under the Digital Television and Public Safety Act of
    2005.

58. Further, Section 1 of the Act charges the Commission with
    responsibility for making available "a rapid, efficient,
    Nation-wide, and world-wide wire and radio communication service . .
    . for the purpose of *promoting safety of life and property* through
    the use of wire and radio communication."[^171] In light of our
    statutory mandate to clear the broadcast spectrum for public safety
    use,[^172] it is important that the Commission take all steps
    necessary to ensure that the DTV transition occurs without delay.
    Further, Americans' reliance on their televisions for emergency
    alerts through the country's Emergency Alert System[^173] requires
    that we ensure that all Americans have the ability to receive
    emergency notifications through their televisions. If Americans are
    unable to receive this potential life-saving information because
    they are unaware of the DTV broadcast transition, this might result
    in tragic consequences. Therefore, ensuring that all Americans
    receive notice of the upcoming DTV transition, including those that
    have been identified as at risk of not receiving the necessary
    information, is a critical step to achieving our statutory mandate
    to promote public safety. Thus, we conclude that extending the DTV
    Consumer Education requirements to ETCs that receive federal
    universal service funds is "reasonably ancillary to the effective
    performance of \[our\] responsibilities"[^174] under Sections 309
    and 1 of the Act, and "will 'further the achievement of
    long-established regulatory goals'"[^175] to ensure the success of
    the DTV transition and promote the safety of life and property.

### 700 MHz Auction Winner Consumer Education Reporting

59. We will require winning bidders in the 700 MHz spectrum auctions
    (Auctions 73 and 76) to detail what, if any, DTV transition consumer
    education efforts they are conducting. The Letter suggested that,
    "given the significant stake of 700 MHz auction winners in a
    successful transition, the Commission could require those entities
    to report their specific consumer outreach efforts."[^176] The rule
    we adopt conforms with this proposal. No commenters expressed
    opposition to this proposal.[^177] Specifically, during the DTV
    transition we will require each entity obtaining a 700 MHz license
    to file this report with the Commission on a quarterly basis, with
    the first such report due by the tenth day of the first calendar
    quarter following the initial grant of the license authorization
    that the entity holds.

### Consumer Contact Points 

60. With respect to comments regarding the need for a toll-free call
    center staffed with people skilled in answering questions about the
    full-power DTV transition, we emphasize that staff in the
    Commission's existing Consumer Center, including Spanish speakers,
    are available to take calls and emails about all aspects of the DTV
    transition and have been specifically trained to inform and assist
    consumers with any questions or concerns they may have. In addition,
    we note that NTIA, as part of its DTV transition education
    initiative, has established a center devoted specifically to taking
    calls about digital-to-analog converter boxes and the coupon
    program. Since January 1, 2008, the center has been staffed with
    representatives able to field and respond to calls in multiple
    languages, including English, Spanish, Chinese, Vietnamese, Tagalog,
    Russian, and French. The Commission and NTIA are working to
    coordinate their consumer center activities with the goal of
    ensuring that calls and emails to either agency, in whatever
    language, are handled in a thorough, consistent matter and that
    consumers can be transferred, when appropriate, from one agency to
    the other.

## First Amendment Analysis

61. The actions we take in this Order to ensure that television viewers
    are fully informed about the digital transition are entirely
    consistent with the First Amendment, because they are a narrowly
    tailored means of advancing the government's substantial interests
    in furthering the digital transition. The government's interests in
    promoting the continued availability of free television
    programming[^178] and in ensuring a smooth transition from analog to
    digital full-power television service[^179] are undoubtedly
    substantial. Free television service is a vital part of the Nation's
    communications system, and is particularly important for viewers who
    cannot afford other means of receiving video programming.[^180] In
    order to ensure uninterrupted access to over-the-air television
    programming after the transition, it is essential that the viewing
    public understand that full power analog signals will cease on
    February 17, 2009, and that television equipment without a digital
    tuner will require additional equipment or connections to continue
    receiving programming after that date.

62. As discussed above, the record indicates that a substantial number
    of households are at risk of losing television service after
    February 17, 2009. Approximately 22.5 million households rely solely
    on over-the-air broadcast television, and of those households only
    seven percent currently own a digital television set.[^181] Millions
    of households subscribing to an MVPD service have at least one set
    receiving over-the-air television signals.[^182] The record
    indicates, however, that the majority of Americans remain unaware of
    the DTV transition. One recent survey reveals that 51.3% of
    Americans have no idea that the DTV transition is taking place, and
    only 19.8% are "very much aware" of the transition.[^183] The
    government thus has a substantial interest in ensuring that the
    public is fully informed about the DTV transition and the steps
    necessary to continue receiving over-the-air broadcast signals after
    the transition.[^184]

63. The consumer education requirements we adopt today are narrowly
    tailored to advance these substantial governmental interests. Our
    rules are targeted at the specific industry groups that are best
    positioned to reach households most at risk of losing television
    service in February 2009.[^185] PSAs and crawls transmitted by the
    over-the-air broadcasters are, by definition, well-calculated to
    reach viewers of over-the-air television. But the record also shows
    that millions of MVPD customers use over-the-air broadcast as a
    secondary source of television service.[^186] Requiring MVPDs to
    provide information regarding the digital transition in their bill
    inserts serves to ensure that MVPD households with additional
    over-the-air analog televisions will be prepared for the digital
    transition. Likewise, telecommunications carrier participants in the
    Low Income Federal Universal Service Program are uniquely situated
    to reach low-income households -- one of the consumer groups
    identified as most at risk of losing television service after the
    transition. [^187] And the steps we take with regard to
    manufacturers and retailers recognize the importance to consumers of
    information provided at the point-of-sale regarding the capabilities
    of the equipment that they are purchasing.

64. Industry groups have acknowledged the significant role they must
    play in informing consumers about the transition.[^188] Thus, NAB
    reports that the broadcast industry has embarked on an "unparalleled
    and unprecedented" "multi-faceted" consumer education campaign
    designed to "reach out to all demographics, all geographical areas,
    urban and rural communities, the young and the old" that includes
    both PSAs and crawls.[^189] NCTA reports that the cable industry has
    launched a \$200 million digital TV transition consumer education
    campaign which "seeks to reach all cable customers and millions of
    non-cable viewers with useful information about the transition to
    digital television" that includes invoice messages on billing
    statements.[^190] DBS providers,[^191] the consumer electronics
    industry,[^192] retailers,[^193] and video and telephone service
    providers[^194] have all voluntarily committed to participate in
    efforts to educate the public about the DTV transition. Thus, to a
    large extent, the measures we adopt today do not impose an
    additional burden on the affected industries beyond their current
    voluntary efforts.

65. Despite their stake in the successful completion of the digital
    transition, broadcasters nonetheless argue that mandated PSAs and
    crawls constitute compelled speech in violation of the First
    Amendment.[^195] We disagree. First, we note that a less rigorous
    standard of First Amendment scrutiny applies where broadcasting is
    at issue.[^196] Even if this were not the case, the government has
    broad powers to require the disclosure of "factual and
    uncontroversial information" where commercial speech is concerned,
    especially to "dissipate the possibility of consumer confusion or
    deception," as long as such requirements are reasonably related to
    the government's regulatory goals.[^197] Here, the broadcaster PSAs
    and crawls we require are needed to eliminate any confusion stemming
    from the continuing public ignorance of the digital transition -- in
    particular, they are necessary to ensure that over-the-air viewers
    are not misled into thinking that the analog signals that are now
    being transmitted will remain available after February 17, 2009. We
    also emphasize that the information we require about the digital
    transition is purely factual and not subject to dispute.[^198] And
    so far as the broadcasters are concerned, our requirements involve
    commercial speech,[^199] since they relate directly to the
    broadcasters' economic interest in ensuring that viewers maintain
    access to broadcast television and successfully transition to
    digital television.[^200]

66. Similarly, we are not persuaded by the First Amendment objections
    raised by video service and telephone providers.[^201] Both industry
    groups have a direct link to viewers who will be affected by the
    transition, and through direct communication with their customers
    they are invaluable in ensuring that the American public is prepared
    for the transition. Requiring MVPDs and Low Income Federal Universal
    Service Program participants to send notices to their customers
    about the DTV transition is thus a reasonable means of ensuring that
    word gets out to all groups that will be affected by the transition.
    It is thus a narrowly tailored means of advancing the government's
    substantial interests in ensuring a smooth and orderly
    transition.[^202]

67. Nothing in the Supreme Court's plurality decision in *Pacific Gas &
    Elec. Co. v. Public Utility Comm'n of Calif*., 475 U.S. 1
    (1986),[^203] is to the contrary. In that case, the State agency
    ordered a utility to include in its billing envelopes a third-party
    newsletter containing a message with which the company
    disagreed.[^204] The purpose of the agency order was, among other
    things, to assist groups ... that challenge \[the utility\] in the
    Commission's ratemaking proceedings in raising funds." The agency
    order thus did "not simply award access to the public at large;
    rather, it discriminate\[d\] on the basis of the viewpoints of the
    selected speakers." [^205] In this case, by contrast, the message we
    require is purely factual and noncontroversial -- it must only
    describe when the transition will occur, the listing of how
    consumers can obtain additional information, a very basic
    explanation of potential impact on the consumer and actions the
    consumer may take. There is nothing in the required disclosure that
    could interfere with the provider's ability to communicate its own
    message, and indeed the MVPD or telephone provider may use the
    opportunity to market its own service. For this reason, the
    requirements fall comfortably within the government's power to order
    reasonable disclosures to serve the public interest,[^206] and will
    likewise empower consumers to take actions necessary to adjust to
    the digital transition.

# Procedural matters

## Final Regulatory Flexibility Analysis

68. As required by the Regulatory Flexibility Act of 1980 ("RFA"),[^207]
    the Commission has prepared a Final Regulatory Flexibility Analysis
    ("FRFA") relating to this *Third Report and Order*. The FRFA is set
    forth in Appendix A.

## Paperwork Reduction Act Analysis

69. This Report and Order was analyzed with respect to the Paperwork
    Reduction Act of 1995 ("PRA") and contains new information
    collection requirements, including the following: (1) broadcasters
    must provide information to their viewers about the DTV transition,
    and must report those efforts to the Commission and the public; (2)
    MVPDs must provide monthly notices about the DTV transition in their
    customer billing statements; (3) manufacturers of television
    receivers and related devices must provide notice to consumers
    buying their devices of the transition's impact on that
    equipment; (4) DTV.gov Partners must provide the Commission with
    regular updates on their consumer education efforts; (5) ETCs that
    receive federal universal service funds must provide notice of the
    transition to their low income customers and potential customers;
    and (6) the winners of the 700 MHz spectrum auction will be required
    to report their consumer education efforts. The information
    collection requirements contained in this Report and Order will be
    submitted to the Office of Management and Budget ("OMB") for review
    under Section 3507(d) of the PRA.[^208] The Commission will seek OMB
    approval for these information collection requirements and forms in
    accordance with OMB's emergency processing rules.[^209] The
    Commission will publish a separate Federal Register Notice seeking
    comments from OMB, the general public, and other Federal agencies on
    the final information collection requirements contained in this
    proceeding. In addition, pursuant to the Small Business Paperwork
    Relief Act of 2002, we will also seek specific comment on how we
    might "further reduce the information collection burden for small
    business concerns with fewer than 25 employees"[^210] in the Federal
    Register Notice seeking comment on the information collections.

## Congressional Review Act

70. The Commission will send a copy of this *Report and Order* in a
    report to be sent to Congress and the Government Accountability
    Office, pursuant to the Congressional Review Act.[^211]

## Additional Information

71. For more information on this *Report and Order*, please contact Lyle
    Elder, Lyle.Elder@fcc.gov, or Eloise Gore, Eloise.Gore@fcc.gov, of
    the Media Bureau, Policy Division, (202) 418-2120.

# ordering clauses

72. IT IS ORDERED that, pursuant to the authority contained in Sections
    4, 303, 614, and 615 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 154, 303, 534, and 535, this Report and Order IS
    ADOPTED and the Commission's Rules ARE HEREBY AMENDED as set forth
    in Appendix B. We find good cause for the rules, forms and
    procedures adopted in this Report and Order to be effective upon
    publication of the summary of the Report and Order in the Federal
    Register to ensure that consumers are informed about the digital
    television transition on February 17, 2009, the statutory deadline
    for all full power television broadcasters to transition to all
    digital service,[^212] provided, however, that the rules, forms and
    requirements contain information collection requirements subject to
    the PRA and are not effective until approved by the OMB. The
    Commission will publish a notice in the Federal Register announcing
    when OMB approval for these rule sections has been received and thus
    when these rules will take effect.

73. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Report and Order, including the Final Regulatory
    Flexibility Analyses, to the Chief Counsel for Advocacy of the Small
    Business Administration.

74. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this
    Report and Order in a report to be sent to Congress and the General
    Accounting Office pursuant to the Congressional Review Act, see 5
    U.S.C. § 801(a)(1)(A).

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**Final Regulatory Flexibility Act Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^213] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated into the *Notice of Proposed Rulemaking*
    (*Notice*).[^214] The Commission sought written public comment on
    the proposals in the *Notice*, including comment on the IRFA. The
    comments responsive to the IRFA are discussed below. This present
    Final Regulatory Flexibility Analysis (FRFA) conforms to the
    RFA.[^215]

## Need for, and Objectives of, the *Report and Order*

75. This *Report and Order* adopts rules requiring industry to
    participate in a coordinated, nationwide, consumer outreach
    campaign. Despite extensive consumer outreach efforts by the
    Commission and others, a large percentage of the public is not
    sufficiently informed about the DTV transition. This is a serious
    concern because the many benefits of the transition could be
    severely limited by insufficient consumer awareness. Therefore, this
    *Report and Order* adopts a number of proposals based on specific
    potential Commission initiatives raised by Congressmen Dingell and
    Markey.[^216] Our goals in doing so are to further educate consumers
    about the digital television transition; to engage all sectors of
    the television industry in support of that transition; and, in so
    doing, to facilitate the nation's transition to digital broadcast
    television.

76. First, the rules require all full-power television broadcasters to
    provide on-air transition education to their viewers. Broadcasters
    must comply with one of three alternative sets of rules in providing
    such information to their viewers and must report these consumer
    education and outreach efforts to the Commission and the public.
    Second, MVPDs must provide monthly notices about the DTV transition
    in their customer billing statements.[^217] Third, manufacturers of
    television receivers and related devices must provide notice to
    consumers of the transition's impact on that equipment. Fourth,
    DTV.gov Partners must provide the Commission with regular updates on
    their consumer education efforts. Fifth, companies participating in
    the Low Income Federal Universal Service Program must provide notice
    of the transition to their low income customers and potential
    customers. Sixth, the winners of the 700 MHz spectrum auction must
    report their consumer education efforts to the Commission and the
    public.

## Summary of Issues Raised by Public Comments in Response to the IRFA

77. We received one comment in response to the IRFA. The Reply Comments
    of the National Telecommunications Cooperative Association and the
    Organization for the Promotion and Advancement of Small
    Telecommunications Companies (Collectively, NTCA/OPASTCO) filed
    comments expressing concern about the lack of reference to local
    exchange carriers (LECs) in Section C of the IRFA. NTCA/OPASTCO
    argued that the absence of LECs from the IRFA constituted a failure
    to consider those operators, thus rendering the IRFA deficient as to
    small telephone providers. We disagree, and find that sufficient
    notice was clearly provided to LECs and their representatives, as
    demonstrated by the comments and replies filed in this docket.[^218]
    We find that the interests of small operators, like NTCA/OPASTCO's
    members, have been considered throughout the rulemaking process.

## Description and Estimate of the Number of Small Entities to Which the *Report and Order* Will Apply

78. The RFA directs the Commission to provide a description of and,
    where feasible, an estimate of the number of small entities that
    will be affected by the rules adopted herein.[^219] The RFA defines
    the term "small entity" as having the same meaning as the terms
    "small business," "small organization," and "small business concern"
    under Section 3 of the Small Business Act.[^220] Under the Small
    Business Act, a small business concern is one which: (1) is
    independently owned and operated; (2) is not dominant in its field
    of operation; and (3) satisfies any additional criteria established
    by the Small Business Administration (SBA).[^221] The rules adopted
    herein will directly affect small television broadcast stations,
    small MVPDs (cable operators and satellite carriers) and other small
    entities, such as LECs, consumer electronics (CE) retailers and CE
    manufacturers. A description of these small entities, as well as an
    estimate of the number of such small entities, is provided below.

79. *Television Broadcasting.* The SBA defines a television broadcasting
    station as a small business if such station has no more than \$13.0
    million in annual receipts.[^222] Business concerns included in this
    industry are those "primarily engaged in broadcasting images
    together with sound."[^223] The Commission has estimated the number
    of licensed commercial television stations to be 1,376.[^224]
    According to Commission staff review of the BIA Publications, Inc.
    Master Access Television Analyzer Database (BIA) on March 30, 2007,
    about 986 of an estimated 1,374 commercial television stations[^225]
    (or approximately 72 percent) have revenues of \$13.0 million or
    less and thus qualify as small entities under the SBA definition. We
    note, however, that, in assessing whether a business concern
    qualifies as small under the above definition, business (control)
    affiliations[^226] must be included. Our estimate, therefore, likely
    overstates the number of small entities that might be affected by
    our action, because the revenue figure on which it is based does not
    include or aggregate revenues from affiliated companies. The
    Commission has estimated the number of licensed noncommercial
    educational (NCE) television stations to be 380.[^227] The
    Commission does not compile and otherwise does not have access to
    information on the revenue of NCE stations that would permit it to
    determine how many such stations would qualify as small entities.

80. In addition, an element of the definition of "small business" is
    that the entity not be dominant in its field of operation. We are
    unable at this time to define or quantify the criteria that would
    establish whether a specific television station is dominant in its
    field of operation. Accordingly, the estimate of small businesses to
    which rules may apply do not exclude any television station from the
    definition of a small business on this basis and are therefore
    over-inclusive to that extent. Also as noted, an additional element
    of the definition of "small business" is that the entity must be
    independently owned and operated. We note that it is difficult at
    times to assess these criteria in the context of media entities and
    our estimates of small businesses to which they apply may be
    over-inclusive to this extent.

81. *Class A TV, LPTV, and TV translator stations*. The rules adopted
    herein may also apply to licensees of Class A TV stations, low power
    television (LPTV) stations, and TV translator stations, as well as
    to potential licensees in these television services. The same SBA
    definition that applies to television broadcast licensees would
    apply to these stations. The SBA defines a television broadcast
    station as a small business if such station has no more than \$13.0
    million in annual receipts.[^228] Currently, there are approximately
    567 licensed Class A stations, 2,227 licensed LPTV stations, 4,518
    licensed TV translators and 11 TV booster stations.[^229] Given the
    nature of these services, we will presume that all of these
    licensees qualify as small entities under the SBA definition. We
    note, however, that under the SBA's definition, revenue of
    affiliates that are not LPTV stations should be aggregated with the
    LPTV station revenues in determining whether a concern is small. Our
    estimate may thus overstate the number of small entities since the
    revenue figure on which it is based does not include or aggregate
    revenues from non-LPTV affiliated companies. We do not have data on
    revenues of TV translator or TV booster stations, but virtually all
    of these entities are also likely to have revenues of less than
    \$13.0 million and thus may be categorized as small, except to the
    extent that revenues of affiliated non-translator or booster
    entities should be considered.

82. *Cable and Other Subscription Programming*. The SBA has developed a
    small business size standard for cable and other subscription
    programming, which includes all such companies generating \$13.5
    million or less in revenue annually.[^230] This category includes,
    among others, cable operators, direct broadcast satellite services,
    fixed-satellite services, home satellite dish services, multipoint
    distribution services, multichannel multipoint distribution service,
    instructional television fixed service, local multipoint
    distribution service, satellite master antenna television systems,
    and open video systems.[^231] According to Census Bureau data, there
    are 1,311 total cable and other pay television service firms that
    operate throughout the year of which 1,180 have less than \$10
    million in revenue.[^232] Consequently, the Commission estimates
    that the majority of providers in this service category are small
    businesses that may be affected by the rules adopted herein. We
    address below each service individually to provide a more precise
    estimate of small entities.

83. *Cable Television Distribution Services*. Since 2007, these services
    have been defined within the broad economic census category of Wired
    Telecommunications Carriers; that category is defined as follows:
    "This industry comprises establishments primarily engaged in
    operating and/or providing access to transmission facilities and
    infrastructure that they own and/or lease for the transmission of
    voice, data, text, sound, and video using wired telecommunications
    networks. Transmission facilities may be based on a single
    technology or a combination of technologies." The SBA has developed
    a small business size standard for this category, which is: all such
    firms having 1,500 or fewer employees.[^233] To gauge small business
    prevalence for these cable services we must, however, use current
    census data that are based on the previous category of Cable and
    Other Program Distribution and its associated size standard; that
    size standard was: all such firms having \$13.5 million or less in
    annual receipts. According to Census Bureau data for 2002, there
    were a total of 1,191 firms in this previous category that operated
    for the entire year. Of this total, 1,087 firms had annual receipts
    of under \$10 million, and 43 firms had receipts of \$10 million or
    more but less than \$25 million. Thus, the majority of these firms
    can be considered small.

84. *Cable System Operators (Rate Regulation Standard)*. The Commission
    has developed its own small business size standard for cable system
    operators, for purposes of rate regulation. Under the Commission's
    rules, a "small cable company" is one serving fewer than 400,000
    subscribers nationwide.[^234] The most recent estimates indicate
    that there were 1,439 cable operators who qualified as small cable
    system operators at the end of 1995.[^235] Since then, some of those
    companies may have grown to serve more than 400,000 subscribers, and
    others may have been involved in transactions that caused them to be
    combined with other cable operators. Consequently, the Commission
    estimates that there are now fewer than 1,439 small entity cable
    system operators that may be affected by the rules and policies
    adopted herein.

85. *Cable System Operators (Telecom Act Standard)*. The Communications
    Act of 1934, as amended, also contains a size standard for small
    cable system operators, which is "a cable operator that, directly or
    through an affiliate, serves in the aggregate fewer than 1 percent
    of all subscribers in the United States and is not affiliated with
    any entity or entities whose gross annual revenues in the aggregate
    exceed \$250,000,000."[^236] The Commission has determined that
    there are 67,700,000 subscribers in the United States.[^237]
    Therefore, an operator serving fewer than 677,000 subscribers shall
    be deemed a small operator, if its annual revenues, when combined
    with the total annual revenues of all its affiliates, do not exceed
    \$250 million in the aggregate.[^238] Based on available data, the
    Commission estimates that the number of cable operators serving
    677,000 subscribers or fewer, totals 1,450. The Commission neither
    requests nor collects information on whether cable system operators
    are affiliated with entities whose gross annual revenues exceed
    \$250 million,[^239] and therefore is unable, at this time, to
    estimate more accurately the number of cable system operators that
    would qualify as small cable operators under the size standard
    contained in the Communications Act of 1934.

86. *Satellite Carriers.* The term "satellite carrier" includes entities
    providing services as described in 17 U.S.C. § 119(d)(6) using the
    facilities of a satellite or satellite service licensed under Part
    25 of the Commission's rules to operate in Direct Broadcast
    Satellite (DBS) or Fixed-Satellite Service (FSS) frequencies.[^240]
    As a general practice, not mandated by any regulation, DBS licensees
    usually own and operate their own satellite facilities as well as
    package the programming they offer to their subscribers. In
    contrast, satellite carriers using FSS facilities often lease
    capacity from another entity that is licensed to operate the
    satellite used to provide service to subscribers. These entities
    package their own programming and may or may not be Commission
    licensees themselves. In addition, a third situation may include an
    entity using a non-U.S. licensed satellite to provide programming to
    subscribers in the United States pursuant to a blanket earth station
    license.[^241]

87. *Direct Broadcast Satellite (DBS) Service.* DBS service is a
    nationally distributed subscription service that delivers video and
    audio programming via satellite to a small parabolic "dish" antenna
    at the subscriber's location. Because DBS provides subscription
    services, DBS falls within the SBA-recognized definition of Cable
    and Other Subscription Programming.[^242] This definition provides
    that a small entity is one with \$13.5 million or less in annual
    receipts.[^243] Currently, only two operators -- DirecTV[^244] and
    EchoStar Communications Corporation ("EchoStar")[^245] -- hold
    licenses to provide DBS service, which requires a great investment
    of capital for operation. Both currently offer subscription services
    and report annual revenues that are in excess of the threshold for a
    small business. Because DBS service requires significant capital, we
    believe it is unlikely that a small entity as defined by the SBA
    would have the financial wherewithal to become a DBS licensee.
    Nevertheless, given the absence of specific data on this point, we
    acknowledge the possibility that there are entrants in this field
    that may not yet have generated \$13.5 million in annual receipts,
    and therefore may be categorized as a small business, if
    independently owned and operated.

88. *Fixed-Satellite* Service *("FSS")*. The FSS is a radiocommunication
    service between earth stations at a specified fixed point or between
    any fixed point within specified areas and one or more
    satellites.[^246] The FSS, which utilizes many earth stations that
    communicate with one or more space stations, may be used to provide
    subscription video service. Therefore, to the extent FSS frequencies
    are used to provide subscription services, FSS falls within the
    SBA-recognized definition of Cable and Other Subscription
    Programming, which includes all such companies generating \$13.5
    million or less in revenue annually.[^247] Although a number of
    entities are licensed in the FSS, not all such licensees use FSS
    frequencies to provide subscription services. Both of the DBS
    licensees (EchoStar and DirecTV) have indicated interest in using
    FSS frequencies to broadcast signals to subscribers. It is possible
    that other entities could similarly use FSS frequencies, although we
    are not aware of any entities that might do so.

89. *Private Cable Operators (PCOs) also known as Satellite Master
    Antenna Television (SMATV) Systems*. PCOs, also known as SMATV
    systems or private communication operators, are video distribution
    facilities that use closed transmission paths without using any
    public right-of-way. PCOs acquire video programming and distribute
    it via terrestrial wiring in urban and suburban multiple dwelling
    units such as apartments and condominiums, and commercial multiple
    tenant units such as hotels and office buildings. The SBA definition
    of small entities for Cable and Other Subscription Programming
    includes PCOs and, thus, small entities are defined as all such
    companies generating \$13.5 million or less in annual
    receipts.[^248] Currently, there are more than 150 members in the
    Independent Multi-Family Communications Council (IMCC), the trade
    association that represents PCOs.[^249] Individual PCOs often serve
    approximately 3,000-4,000 subscribers, but the larger operations
    serve as many as 15,000-55,000 subscribers. In total, PCOs currently
    serve approximately one million subscribers.[^250] Because these
    operators are not rate regulated, they are not required to file
    financial data with the Commission. Furthermore, we are not aware of
    any privately published financial information regarding these
    operators. Based on the estimated number of operators and the
    estimated number of units served by the largest ten PCOs, we believe
    that a substantial number of PCOs qualify as small entities.

90. *Home Satellite Dish (HSD) Service.* Because HSD provides
    subscription services, HSD falls within the SBA-recognized
    definition of Cable and Other Subscription Programming, which
    includes all such companies generating \$13.5 million or less in
    revenue annually.[^251] HSD or the large dish segment of the
    satellite industry is the original satellite-to-home service offered
    to consumers, and involves the home reception of signals transmitted
    by satellites operating generally in the C-band frequency. Unlike
    DBS, which uses small dishes, HSD antennas are between four and
    eight feet in diameter and can receive a wide range of unscrambled
    (free) programming and scrambled programming purchased from program
    packagers that are licensed to facilitate subscribers' receipt of
    video programming. There are approximately 30 satellites operating
    in the C-band, which carry more than 500 channels of programming
    combined; approximately 350 channels are available free of charge
    and 150 are scrambled and require a subscription. HSD is difficult
    to quantify in terms of annual revenue. HSD owners have access to
    program channels placed on C-band satellites by programmers for
    receipt and distribution by MVPDs. Commission data show that, as of
    June 2005, there were 206,358 households authorized to receive HSD
    service.[^252] The Commission has no information regarding the
    annual revenue of the four C-Band distributors.

91. *Open Video Systems (OVS).* The OVS framework provides opportunities
    for the distribution of video programming other than through cable
    systems. Because OVS operators provide subscription services,[^253]
    OVS falls within the SBA-recognized definition of Cable and Other
    Subscription Programming, which provides that a small entity is one
    with \$13.5 million or less in annual receipts.[^254] The Commission
    has certified 25 OVS operators with some now providing service.
    Broadband service providers (BSPs) are currently the only
    significant holders of OVS certifications or local OVS franchises,
    even though OVS is one of four statutorily-recognized options for
    local exchange carriers (LECs) to offer video programming
    services.[^255] As of June 2005, BSPs served approximately 1.4
    million subscribers, representing 1.5 percent of all MVPD
    households.[^256] Affiliates of Residential Communications Network,
    Inc. ("RCN"), which serves about 371,000 subscribers as of June
    2005, is currently the largest BSP and 14th largest MVPD.[^257] RCN
    received approval to operate OVS systems in New York City, Boston,
    Washington, D.C. and other areas. The Commission does not have
    financial information regarding the entities authorized to provide
    OVS, some of which may not yet be operational. We thus believe that
    at least some of the OVS operators may qualify as small entities.

92. *Wireless Cable Systems.* Wireless cable systems use the Broadband
    Radio Service ("BRS"), formerly Multipoint Distribution Service
    ("MDS"),[^258] and Educational Broadband Service ("EBS"), formerly
    Instructional Television Fixed Service ("ITFS"),[^259] frequencies
    in the 2 GHz band to transmit video programming and provide
    broadband services to residential subscribers.[^260] These services
    were originally designed for the delivery of multichannel video
    programming, similar to that of traditional cable systems, but over
    the past several years licensees have focused their operations
    instead on providing two-way high-speed Internet access
    services.[^261] We estimate that the number of wireless cable
    subscribers is approximately 100,000, as of March 2005. *Id*. Local
    Multipoint Distribution Service ("LMDS") is a fixed broadband
    point-to-multipoint microwave service that provides for two-way
    video telecommunications.[^262] As previously noted, the SBA
    definition of small entities for Cable and Other Subscription
    Programming, which provides that a small entity is one with \$13.5
    million or less in annual receipts,[^263] appears applicable to MDS,
    ITFS and LMDS.

93. *Wireless Cable Systems (Commission Auction Standard).* The
    Commission has defined small MDS (now BRS) and LMDS entities in the
    context of Commission license auctions. In the 1996 MDS
    auction,[^264] the Commission defined a small business as an entity
    that had annual average gross revenues of less than \$40 million in
    the previous three calendar years.[^265] This definition of a small
    entity in the context of MDS auctions has been approved by the
    SBA.[^266] In the MDS auction, 67 bidders won 493 licenses. Of the
    67 auction winners, 61 claimed status as a small business. At this
    time, the Commission estimates that of the 61 small business MDS
    auction winners, 48 remain small business licensees. In addition to
    the 48 small businesses that hold BTA authorizations, there are
    approximately 392 incumbent MDS licensees that have gross revenues
    that are not more than \$40 million and are thus considered small
    entities.[^267] MDS licensees and wireless cable operators that did
    not participate in the MDS auction must rely on the SBA definition
    of small entities for Cable and Other Subscription Programming.
    Information available to us indicates that there are approximately
    850 of these licensees and operators that do not generate revenue in
    excess of \$13.5 million annually. Therefore, we estimate that there
    are approximately 850 small MDS (or BRS) providers as defined by the
    SBA and the Commission's auction rules.

94. Educational institutions are included in this analysis as small
    entities; however, the Commission has not defined a small business
    size standard for ITFS (now EBS).[^268] We estimate that there are
    currently 2,032 ITFS (or EBS) licensees, and all but 100 of these
    licenses are held by educational institutions. Thus, the Commission
    estimates that at least 1,932 ITFS licensees are small businesses.

95. In the 1998 and 1999 LMDS auctions,[^269] the Commission defined a
    small business as an entity that had annual average gross revenues
    of less than \$40 million in the previous three calendar
    years.[^270] Moreover, the Commission added an additional
    classification for a "very small business," which was defined as an
    entity that had annual average gross revenues of less than \$15
    million in the previous three calendar years.[^271] These
    definitions of "small business" and "very small business" in the
    context of the LMDS auctions have been approved by the SBA.[^272] In
    the first LMDS auction, 104 bidders won 864 licenses. Of the 104
    auction winners, 93 claimed status as small or very small
    businesses. In the LMDS re-auction, 40 bidders won 161 licenses.
    Based on this information, we believe that the number of small LMDS
    licenses will include the 93 winning bidders in the first auction
    and the 40 winning bidders in the re-auction, for a total of 133
    small entity LMDS providers as defined by the SBA and the
    Commission's auction rules.

96. *Incumbent Local Exchange Carriers (LECs).* Neither the Commission
    nor the SBA has developed a small business size standard
    specifically for incumbent local exchange services. The appropriate
    size standard under SBA rules is for the category Wired
    Telecommunications Carriers. Under that size standard, such a
    business is small if it has 1,500 or fewer employees.[^273]
    According to Commission data,[^274] 1,307 carriers have reported
    that they are engaged in the provision of incumbent local exchange
    services. Of these 1,307 carriers, an estimated 1,019 have 1,500 or
    fewer employees and 288 have more than 1,500 employees.
    Consequently, the Commission estimates that most providers of
    incumbent local exchange service are small businesses.

97. *Competitive Local Exchange Carriers, Competitive Access Providers
    (CAPs), "Shared-Tenant Service Providers," and "Other Local Service
    Providers."* Neither the Commission nor the SBA has developed a
    small business size standard specifically for these service
    providers. The appropriate size standard under SBA rules is for the
    category Wired Telecommunications Carriers. Under that size
    standard, such a business is small if it has 1,500 or fewer
    employees.[^275] According to Commission data,[^276] 859 carriers
    have reported that they are engaged in the provision of either
    competitive access provider services or competitive local exchange
    carrier services. Of these 859 carriers, an estimated 741 have 1,500
    or fewer employees and 118 have more than 1,500 employees. In
    addition, 16 carriers have reported that they are "Shared-Tenant
    Service Providers," and all 16 are estimated to have 1,500 or fewer
    employees. In addition, 44 carriers have reported that they are
    "Other Local Service Providers." Of the 44, an estimated 43 have
    1,500 or fewer employees and one has more than 1,500 employees.
    Consequently, the Commission estimates that most providers of
    competitive local exchange service, competitive access providers,
    "Shared-Tenant Service Providers," and "Other Local Service
    Providers" are small entities.

98. *Retailers*. The rules adopted herein will apply only to retailers
    that choose to participate in the converter box coupon program. The
    SBA has developed a small business size standard for Radio,
    Television, and Other Electronics Stores, which is: all such firms
    having \$8 million or less in annual receipts.[^277] The list of
    retailers who will be participating will not be finalized until
    March 2008,[^278] but they will likely include dedicated consumer
    electronics stores and internet-based stores.

99. *Radio, Television, and Other Electronics Stores.* The Census Bureau
    defines this economic census category as follows: "This U.S.
    industry comprises: (1) establishments known as consumer electronics
    stores primarily engaged in retailing a general line of new
    consumer-type electronic products; (2) establishments specializing
    in retailing a single line of consumer-type electronic products
    (except computers); or (3) establishments primarily engaged in
    retailing these new electronic products in combination with repair
    services."[^279] The SBA has developed a small business size
    standard for Radio, Television, and Other Electronics Stores, which
    is: all such firms having \$8 million or less in annual
    receipts.[^280] According to Census Bureau data for 2002, there were
    10,380 firms in this category that operated for the entire
    year.[^281] Of this total, 10,080 firms had annual sales of under
    \$5 million, and 177 firms had sales of \$5 million or more but less
    than \$10 million.[^282] Thus, the majority of firms in this
    category can be considered small.

100. *Electronic Shopping*. According to the Census Bureau, this
     economic census category "comprises establishments engaged in
     retailing all types of merchandise using the Internet."[^283] The
     SBA has developed a small business size standard for Electronic
     Shopping, which is: all such entities having \$23 million or less
     in annual receipts.[^284] According to Census Bureau data for 2002,
     there were 4,959 firms in this category that operated for the
     entire year.[^285] Of this total, 4,742 firms had annual sales of
     under \$10 million, and an additional 133 had sales of \$10 million
     to \$24,999,999.[^286] Thus, the majority of firms in this category
     can be considered small.

101. Electronics Equipment Manufacturers. The rules adopted herein will
     apply to manufacturers of television receiving equipment and other
     types of consumer electronics equipment. The SBA has developed
     definitions of small entity for manufacturers of audio and video
     equipment[^287] as well as radio and television broadcasting and
     wireless communications equipment.[^288] These categories both
     include all such companies employing 750 or fewer employees. The
     Commission has not developed a definition of small entities
     applicable to manufacturers of electronic equipment used by
     consumers, as compared to industrial use by television licensees
     and related businesses. Therefore, we will utilize the SBA
     definitions applicable to manufacturers of audio and visual
     equipment and radio and television broadcasting and wireless
     communications equipment, since these are the two closest NAICS
     Codes applicable to the consumer electronics equipment
     manufacturing industry. However, these NAICS categories are broad
     and specific figures are not available as to how many of these
     establishments manufacture consumer equipment. According to the
     SBA's regulations, an audio and visual equipment manufacturer must
     have 750 or fewer employees in order to qualify as a small business
     concern.[^289] Census Bureau data indicates that there are 554 U.S.
     establishments that manufacture audio and visual equipment, and
     that 542 of these establishments have fewer than 500 employees and
     would be classified as small entities.[^290] The remaining 12
     establishments have 500 or more employees; however, we are unable
     to determine how many of those have fewer than 750 employees and
     therefore, also qualify as small entities under the SBA definition.
     Under the SBA's regulations, a radio and television broadcasting
     and wireless communications equipment manufacturer must also have
     750 or fewer employees in order to qualify as a small business
     concern.[^291] Census Bureau data indicates that there 1,215 U.S.
     establishments that manufacture radio and television broadcasting
     and wireless communications equipment, and that 1,150 of these
     establishments have fewer than 500 employees and would be
     classified as small entities.[^292] The remaining 65 establishments
     have 500 or more employees; however, we are unable to determine how
     many of those have fewer than 750 employees and therefore, also
     qualify as small entities under the SBA definition. We, therefore,
     conclude that there are no more than 542 small manufacturers of
     audio and visual electronics equipment and no more than 1,150 small
     manufacturers of radio and television broadcasting and wireless
     communications equipment for consumer/household use.

## Description of Projected Reporting, Record Keeping, and Other Compliance Requirements for Small Entities

102. The rules adopted by this *Report and Order* impose reporting,
     recordkeeping and other compliance requirements on small entities.
     The *Report and Order* establishes rules requiring industry to
     participate in a coordinated, nationwide, consumer outreach
     campaign, and does not create alternative requirements for small
     entities. Some elements of the *Report and Order* are voluntary,
     applying, for instance, only to DTV.gov Transition Partners or
     participants in the NTIA Converter Box Coupon Program. The
     mandatory requirements vary for different sectors of the
     telecommunications industry.[^293]

## Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered

103. The RFA requires an agency to describe any significant alternatives
     that it has considered in reaching its proposed approach, which may
     include the following four alternatives (among others): (1) the
     establishment of differing compliance or reporting requirements or
     timetables that take into account the resources available to small
     entities; (2) the clarification, consolidation, or simplification
     of compliance or reporting requirements under the rule for small
     entities; (3) the use of performance, rather than design,
     standards; and (4) an exemption from coverage of the rule, or any
     part thereof, for small entities.[^294]

104. The National Association of Broadcasters has expressed its
     intention to make informative PSAs available to all broadcasters,
     even non-members, which will reduce the cost burden of the
     requirement to air them. Also, the mandatory broadcaster filing
     does not require a specialized form or extensive information
     gathering. Most importantly, although these requirements will
     impose some costs on small broadcasters, they will also ensure that
     small broadcasters continue to retain their audiences after the
     transition by fully informing viewers of the steps necessary to
     keep watching. Small broadcasters rely completely on their viewing
     audience for their revenue stream, so this benefit should far
     outweigh any costs for this temporary requirement.

105. Small MVPDs will have costs for printing "bill stuffer" transition
     notices to include with their bills and bill notices. These costs
     can be somewhat ameliorated by the use of electronic and automatic
     billing, and the transition education campaign could potentially
     result in an increase of MVPD subscriptions from over-the-air
     subscribers and increased equipment rentals from current
     subscribers who wish to extend service to all of their televisions
     prior to the transition. Furthermore, MVPDs will have an additional
     30 days to prepare for notice distribution. The costs for small
     MVPDs will therefore, likely not be significant.

106. The costs of reporting outreach efforts to the Commission by the
     winners of the 700 MHz auction will be *de minimis*, consisting
     solely of narrative reports in a flexible format describing
     outreach efforts the winner has chosen to make. On the other hand,
     small manufacturers of television receivers and related equipment,
     and small providers of telecommunications services to low-income
     households, will have costs to produce and distribute transition
     notices to their customers and subscribers, although ETCs will have
     an additional 30 days to prepare for notice distribution. These
     costs will not be any greater for small than for large companies,
     however. The very limited nature of the notification requirements
     for both groups mean that no lighter burden could be placed on
     small entities without essentially eliminating the benefit to
     consumers of a comprehensive transition education campaign.

## Report to Congress

107. The Commission will send a copy of the Report and Order, including
     this FRFA, in a report to be sent to Congress pursuant to the
     Congressional Review Act.[^295] In addition, the Commission will
     send a copy of the Report and Order, including this FRFA, to the
     Chief Counsel for Advocacy of the SBA. A copy of the Report and
     Order and FRFA (or summaries thereof) will also be published in the
     Federal Register.[^296]

**APPENDIX B**

**Amended Rules**[^297]

Parts 15, 27, 54, 73, and 76 of Title 47 of the Code of Federal
Regulations are amended as follows:

Part 15 -- Radio Frequency Devices

**1.** **The authority citation for Part 15 continues to read as
follows:**

AUTHORITY: 47 U.S.C. 154, 302a, 303, 304, 307, 336, and 544a.

**2. Section 15.124 is added and reads as follows:**

**§ 15.124 DTV Transition Notices by Manufacturers of Televisions and
Related Devices**

**(a) The requirements of this section shall apply to television
receivers and related devices. Related devices are electronic devices
that are designed to be connected to, and operate with, television
receivers, and which include, but are not limited to, DVD players and
recorders, VCRs and monitors, set-top-boxes (including NTIA Coupon
Eligible Digital-to-Analog Converter Boxes), and personal video
recorders.**

**(b) Television receivers and related devices shipped between the
effective date of these rules and March 31, 2009 must include notices
about the digital television (DTV) transition. These notices must:**

(1) **Be in clear and conspicuous print;**

(2) **Convey at least the following information about the DTV
    transition:**

    **(i) After February 17, 2009, a television receiver with only an
    analog broadcast tuner will require a converter box to receive full
    power over-the-air broadcasts with an antenna because of the
    Nation's transition to digital broadcasting. Analog-only TVs should
    continue to work as before to receive low power, Class A or
    translator television stations and with cable and satellite TV
    services, gaming consoles, VCRs, DVD players, and similar
    products.**

> **(ii) Information about the DTV transition is available from
> www.DTV.gov or this manufacturer at \[telephone number\], and from
> www.dtv2009.gov or 1-888-DTV-2009 for information about subsidized
> coupons for digital-to-analog converter boxes; and**

(3) **Explain clearly what effect, if any, the DTV transition will have
    on the use of the receiver or related device, including any
    limitations or requirements associated with connecting a related
    device to a DTV receiver.**

**(c) Parties that manufacture, import, or ship interstate television
receivers and related devices are responsible for inclusion of these
notices.**

Part 27 -- Miscellaneous Wireless Communications Services

**1.** **The authority citation for Part 27 continues to read as
follows:**

AUTHORITY: 47 U.S.C. 154, 301, 302, 303, 307, 309, 332, 336, and 337
unless otherwise noted.

**2. Section 27.20 is added and reads as follows:**

**§ 27.20 Digital Television Transition Education Reports**

**(a) The requirements of this section shall apply only with regard to
WCS license authorizations in Block A in the 698--704 MHz and 728--734
MHz bands, Block B in the 704--710 MHz and 734--740 MHz bands, Block E
in the 722--728 MHz band, Block C, C1, or C2 in the 746--757 MHz and
776--787 MHz bands, and Block D in the 758--763 MHz and 788--793 MHz
bands.**

**(b) By the tenth day of the first calendar quarter after the initial
grant of a WCS license authorization subject to the requirements of this
section -- and on a quarterly basis thereafter as specified in
subsection (c) -- the licensee holding such authorization must file a
report with the Commission indicating whether, in the previous quarter,
it has taken any outreach efforts to educate consumers about the
transition from analog broadcast television service to digital broadcast
television service (DTV) and, if so, what specific efforts were
undertaken. Thus, for example, if the license authorization is granted
during the April-June quarter of 2008, the licensee must file its first
report by July 10, 2008. Each quarterly report, either paper or
electronic, must be filed with the Commission in Docket Number 07-148.
If the quarterly report is a paper filing, the cover sheet must clearly
state "Report," whereas if the report is filed electronically using the
Commission's Electronic Comment File System (ECFS), the "Document Type"
on the cover sheet should indicate "REPORT."**

**(c) The reporting requirements under this section cover the remaining
period of the DTV transition. Accordingly, once the licensee files its
quarterly report covering the first quarter of 2009, the requirements of
this section terminate.**

Part 54 -- Universal Service

**1.** **The authority citation for Part 54 continues to read as
follows:**

AUTHORITY: 47 U.S.C. 151, 154(i), 201, 205, 214, and 254 unless
otherwise noted.

**2. Section 54.418 is added and reads as follows:**

**§ 54.418 Digital Television Transition Notices by Eligible
Telecommunications Carriers**

**(a) Eligible telecommunications carriers (ETCs) that receive federal
universal service funds shall provide their Lifeline or Link-Up
customers with notices about the transition for over-the-air full power
broadcasting from analog to digital service (the "DTV Transition") in
the monthly bills or bill notices received by such customers beginning
30 days after the effective date of these rules, and concluding in March
2009.**

**(b) The notice must be provided as part of an information section on
the bill or bill notice itself or on a secondary document mailed with
the bill or bill notice, in the same language or languages as the bill
or bill notice. These notices must:**

(1) **Be in clear and conspicuous print;**

(2) **Convey at least the following information about the DTV
    transition:**

    **(i) After February 17, 2009, a television receiver with only an
    analog broadcast tuner will require a converter box to receive full
    power over-the-air broadcasts with an antenna because of the
    Nation's transition to digital broadcasting. Analog-only TVs should
    continue to work as before to receive low power, Class A or
    translator television stations and with cable and satellite TV
    services, gaming consoles, VCRs, DVD players, and similar
    products.**

> **(ii) Information about the DTV transition is available from
> www.DTV.gov, and from www.dtv2009.gov or 1-888-DTV-2009 for
> information about subsidized coupons for digital-to-analog converter
> boxes;**

**(d) If an ETC's Lifeline or Link-Up customer does not receive paper
versions of either a bill or a notice of billing, then that customer
must be provided with equivalent monthly notices in whatever medium they
receive information about their monthly bill.**

**(e) ETCs that receive federal universal service funds shall provide
information on the DTV Transition that is equivalent to the information
provided pursuant to paragraph (b)(2) of this section as part of any
Lifeline or Link-Up publicity campaigns conducted by the ETC between the
effective date of these rules and March 31, 2009.**

Part 73 -- Radio Broadcast Services

**1.** **The authority citation for Part 73 continues to read as
follows:**

AUTHORITY:  47 U.S.C. 154, 303, 334, 336.

**2. Section 73.674 is added and reads as follows:**

**§ 73.674 Digital Television Transition Notices by Broadcasters**

**(a) Each full-power commercial and noncommercial educational
television broadcast station licensee or permittee must air an
educational campaign about the transition from analog broadcasting to
digital television (DTV). For each such commercial station, a licensee
or permittee must elect, by the effective date of these rules, to comply
with either paragraph (c) or (d) of this Section. For each such
noncommercial station, a licensee or permittee must elect, by the
effective date of these rules, to comply with paragraph (c), (d), or (e)
of this Section. A licensee or permittee must note their election via
the filing of Form 388 as required by Section 73.3526 and 73.3527 of
this Part.**

**(b) The following requirements apply to paragraphs (c), (d), and
(e):**

1.  **The station must comply with the requirements of the paragraph it
    elects with respect to its analog channel and its primary digital
    stream.**

```{=html}
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(1) **Any Public Service Announcement aired to comply with these
    requirements must be closed-captioned, notwithstanding Section
    79.1(d)(6) of this chapter.**

(2) **The campaign must begin no later than the effective date of these
    rules and continue at least through March 31, 2009. After March 31,
    2009, any station that has filed a request for an extension to serve
    its full operating area or is operating under such an extension must
    continue its education campaign until the request is withdrawn or
    denied or, if granted, until it expires.**

**(c) Consumer Education Campaign Option One**

(1) **From the effective date of these rules through March 31, 2008, a
    licensee or permittee must, at a minimum, air one transition-related
    public service announcement (PSA), and one transition-related
    informative text crawl, in every quarter of every broadcast day.
    This minimum will increase to two of each, per quarter, from April
    1, 2008 through September 30, 2008, and to three of each, per
    quarter, from October 1, 2008 through the conclusion of the
    campaign. At least one PSA and one informative text crawl per day
    must be aired between 8:00 pm and 11:00 pm in the Eastern and
    Pacific time zones, and between 7:00 pm and 10:00 pm in the Mountain
    and Central time zones.**

(2) **For the purposes of this section, each broadcast day consists of
    four quarters; 6:01 am to 12:00 pm, 12:01 pm to 6:00 pm, 6:01 pm to
    12:00 am, and 12:01 am to 6 am.**

(3) **Informative text crawls must:**

```{=html}
<!-- -->
```
(i) **Air during programming;**

(ii) **Air for no fewer than 60 consecutive seconds;**

(iii) **Be displayed so that the text travels across the bottom or top
      of the viewing area at the same speed used for other informative
      text crawls concerning news, sports, and entertainment
      information;**

(iv) **Be presented in the same language as a majority of the
     programming carried by the station;**

(v) **Be displayed so that they do not block and are not blocked by
    closed-captioning or emergency information; and**

(vi) **Contain at least the following information, but may contain more,
     provided they contain no misleading or inaccurate statements:**

     **(A) After February 17, 2009, a television receiver with only an
     analog broadcast tuner will require a converter box to receive full
     power over-the-air broadcasts with an antenna because of the
     Nation's transition to digital broadcasting. Analog-only TVs should
     continue to work as before to receive low power, Class A or
     translator television stations and with cable and satellite TV
     services, gaming consoles, VCRs, DVD players, and similar
     products.**

> **(B) More information is available by phone and online, and provide
> appropriate contact information, including means of contacting the
> station or the network.**
>
> **(4) Public service announcements must have a duration of no fewer
> than 15 consecutive seconds, and contain, at a minimum, the
> information described in Paragraph (c)(3)(vi) of this section. They
> must also address the following topics at least once each during every
> calendar week:**

(i) **The steps necessary for an over-the-air viewer or a subscriber to
    a multichannel video programming distributor to continue viewing the
    station after the transition;**

(ii) **Changes in the geographic area or population served by the
     station during or after the transition;**

(iii) **The channel on which the station can be viewed after the
      transition;**

(iv) **Whether the station will be providing multiple streams of free
     video programming during or after the transition;**

(v) **Whether the station will be providing a High Definition signal
    during or after the transition;**

(vi) **The exact date and time that the station will cease analog
     broadcasting, if it has not already done so; and**

(vii) **The exact date and time that the station will begin digital
      broadcasting on its post-transition channel, if it has not already
      done so.**

**(d) Consumer Education Campaign Option Two**

(1) **A licensee or permittee must, at a minimum, air an average of
    sixteen transition-related PSAs per week, and an average of sixteen
    transition-related crawls, snipes, and/or tickers per week, over a
    calendar quarter.**

(2) **For the purposes of calculating the average number of PSAs aired,
    a 30-second PSA qualifies as a single PSA, and two 15-second PSAs
    count as a single PSA.**

(3) **PSAs, crawls, snipes, and/or tickers aired between the hours of
    1:00 am and 5:00 am do not conform to the requirements of this
    section and will not count toward calculating the average number of
    transition-related education pieces aired.**

(4) **Over the course of each calendar quarter, 25 percent of all PSAs,
    and 25 percent of all crawls, snipes, and/or tickers, must air
    between 6:00 pm and 11:35 pm (Eastern and Pacific time zones) or
    between 5:00 pm and 10:35 pm (Central and Mountain time zones).**

(5) **Stations must also air a 30-minute informational program on the
    digital television (DTV) transition between 8 am -- 11:35 pm on at
    least one day prior to February 17, 2009.**

(6) **Beginning on November 10, 2008, all stations will begin a 100-Day
    Countdown to the transition. During this period, each station must
    air at least one of the following per day:**

    i.  ***Graphic Display*. A graphic super-imposed during programming
        content that reminds viewers graphically there are "x number of
        days" until the transition. They will be visually instructed to
        call a toll-free number and/or visit a Website for details. The
        length of time will vary from 5 to 15 seconds, at the discretion
        of the station.**

    ii. ***Animated Graphic*. A moving or animated graphic that ends up
        as a countdown reminder. It would remind viewers that there are
        "x number of days" until the transition. They will be visually
        instructed to call a toll-free number and/or visit a Website for
        details. The length of time will vary from 5 to 15 seconds, at
        the discretion of the station.**

    iii. ***Graphic and Audio Display*. Option #1 or option #2 with an
         added audio component. The length of time will vary from 5 to
         15 seconds, at the discretion of the station.**

    iv. ***Longer Form Reminders*. Stations can choose from a variety of
        longer form options to communicate the countdown message.
        Examples might include an "Ask the Expert" segment where viewers
        can call in to a phone bank and ask knowledgeable people their
        questions about the transition.**[^298] **The length of these
        segments will vary from 2 minutes to 5 minutes, at the
        discretion of the station (Some stations may also choose to
        include during newscasts DTV "experts" who may be asked
        questions by the anchor or reporter about the impending February
        17, 2009 deadline).**

**(e) Consumer Education Campaign Option Three**

(1) **Only a licensee or permittee of a noncommercial television station
    may elect this option. Under this option, from the effective date of
    these rules, through April 30, 2008, a noncommercial broadcaster
    must, at a minimum, air 60 seconds per day of transition-related
    education (PSAs), in variable timeslots, including at least 7.5
    minutes per month between 6 pm and 12 am. From May 1, 2008, through
    October 31, 2008, a broadcaster must, at a minimum, air 120 seconds
    per day of transition-related education (PSAs), in variable
    timeslots, including at least 15 minutes per month between 6 pm and
    12 am. From November 1, 2008, through March 31, 2009, a broadcaster
    must, at a minimum, air 180 seconds per day of transition-related
    education (PSAs), in variable timeslots, including at least 22.5
    minutes per month between 6 pm and midnight.**

(2) **Noncommercial stations must also air a 30-minute informational
    program on the digital television (DTV) transition between 8 am --
    11:35 pm on at least one day prior to February 17, 2009.**

**3. Section 73.3526 is revised to read as follows:**

**§ 73.3526 Local Public Inspection File of Commercial Stations**

\* \* \* \* \*

\(e\) *Contents of the file.*

\* \* \* \* \*

**(11)(iv) *DTV Transition Education Reports.* For full-power commercial
TV broadcast stations, both analog and digital, on a quarterly basis, a
completed Form 388, DTV Consumer Education Quarterly Activity Report.
The Report for each quarter is to be placed in the public inspection
file by the tenth day of the succeeding calendar quarter. By this date,
a copy of the Report for each quarter must be filed electronically with
the Commission in Docket Number 07-148 using the Commission's Electronic
Comment File System (ECFS). The "Document Type" on the cover sheet must
indicate "REPORT." Stations electing to conform to the requirements of
Section 73.674(b) must also provide the form on the station's public
website, if such exists. The Report shall be separated from other
materials in the public inspection file. The first Report, covering the
first quarter of 2008, must be filed no later than April 10, 2008. The
Reports must continue to be included up to and including the quarter in
which a station concludes its education campaign. These Reports shall be
retained in the public inspection file for one year. Licensees and
permittees shall publicize in an appropriate manner the existence and
location of these Reports.**

**4. Section 73.3527 is revised to read as follows:**

**§ 73.3527 Local Public Inspection File of Noncommercial Educational
Stations**

\* \* \* \* \*

\(e\) *Contents of the file.*

\* \* \* \* \*

**(13) *DTV Transition Education Reports.* For full-power noncommercial
educational TV broadcast stations, both analog and digital, on a
quarterly basis, a completed Form 388, DTV Consumer Education Quarterly
Activity Report. The Report for each quarter is to be placed in the
public inspection file by the tenth day of the succeeding calendar
quarter. By this date, a copy of the Report for each quarter must be
filed electronically with the Commission in Docket Number 07-148 using
the Commission's Electronic Comment File System (ECFS). The "Document
Type" on the cover sheet must indicate "REPORT." Stations electing to
conform to the requirements of Section 73.674(b) must also provide the
form on the station's public website, if such exists. The Report shall
be separated from other materials in the public inspection file. The
first Report, covering the first quarter of 2008, must be filed no later
than April 10, 2008. The Reports must continue to be included up to and
including the quarter in which a station concludes its education
campaign. These Reports shall be retained in the public inspection file
for one year. Licensees and permittees shall publicize in an appropriate
manner the existence and location of these Reports.**

Part 76 -- Multichannel Video and Cable Television Service

**1.** **The authority citation for Part 76 continues to read as
follows:**

AUTHORITY: 47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308,
309, 312, 315, 317, 325, 336, 339, 503, 521, 522, 531, 532, 533, 534,
535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560,
561, 571, 572, 573.

#   {#section .unnumbered}

**2. Section 76.1630 is added and reads as follows:**

**§ 76.1630 MVPD Digital Television Transition Notices\
**

**(a) Multichannel video programming distributors (MVPDs) shall provide
subscribers with notices about the transition for over-the-air full
power broadcasting from analog to digital service (the "DTV Transition")
in the monthly bills or bill notices received by subscribers beginning
30 days after the effective date of these rules and concluding in March,
2009.**

**(b) The notice must be provided as part of an information section on
the bill or bill notice itself or on a secondary document mailed with
the bill or bill notice, in the same language or languages as the bill
or bill notice. These notices must:**

(1) **Be in clear and conspicuous print;**

(2) **Convey at least the following information about the DTV
    transition:**

    **(i) After February 17, 2009, a television receiver with only an
    analog broadcast tuner will require a converter box to receive full
    power over-the-air broadcasts with an antenna because of the
    Nation's transition to digital broadcasting. Analog-only TVs should
    continue to work as before to receive low power, Class A or
    translator television stations and with cable and satellite TV
    services, gaming consoles, VCRs, DVD players, and similar
    products.**

> **(ii) Information about the DTV transition is available from
> www.DTV.gov or this MVPD at \[telephone number and website if
> available\], and from www.dtv2009.gov or 1-888-DTV-2009 for
> information about subsidized coupons for digital-to-analog converter
> boxes;**

(3) **and explain clearly what effect, if any, the DTV Transition will
    have on the subscriber's access to MVPD service. It must also note
    that analog sets not connected to an MVPD service may need
    additional equipment (i.e. converter box) or may have to be
    replaced.**

**(c) To the extent that a given customer does not receive paper
versions of either a bill or a notice of billing, that customer must be
provided with equivalent monthly notices in whatever medium they receive
information about their monthly bill.**

**APPENDIX C**

**DTV Consumer Education Quarterly Activity Report**

**Instructions**

This form should be used to provide the Federal Communications
Commission (FCC) with information pertaining to [all]{.underline}
station activity to educate consumers on the transition to digital
television (DTV). All stations should log DTV Transition-Related Public
Service Announcements (PSAs) and other DTV activities using the
appropriate house (identification) numbers. These logs or records should
include the date and time that each DTV activity occurred. This form
must be filed in Docket Number 07-148 as Document Type: REPORT, and
placed in the station's Public Inspection File. This form must continue
to be filed for each quarter in which a station has DTV Transition
education obligations.

**Station Call Sign(s)**
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

**Report reflects information for quarter ending (mm/dd/yy)**

**Have you opted to comply with Option One, Two, or Three (once elected,
this choice may not change)?**

**Option One (A and D) Option Two (B and D) Option Three (C and D)**

**Over the past quarter, have you fully complied with the requirements
of this option?**

**Yes No**

**Simulcasting**

Are you simulcasting on your Analog channel and your primary Digital
stream?

**Yes** **No**

> If **YES**, complete only one form for both. If **NO,** complete a
> form for your Analog channel and a second for your primary Digital
> stream.

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+--------------+---+-----------+-----+-------+---+---+---------+---------+

**Section A (For broadcasters electing Option One)**

Stations that elect Option One must place a copy of this form on the
station's public website, if such exists.

On its analog channel, and its primary digital stream, a station must
air one transition PSA, and run one transition crawl, in every quarter
of every day. This requirement will increase to two PSAs and crawls per
quarter per day on April 1, 2008, and to three of each on October 1,
2008.  Stations are required to air PSAs or crawls at various times in
any given day part, and at least one PSA and one crawl per day must be
run during primetime hours. On-air education must not contain inaccurate
or misleading statements and must be provided in the same language as a
majority of the programming carried by the station. PSAs must be at
least 15 seconds, and closed-captioned. Crawls must run during
programming for no fewer than 60 consecutive seconds across the bottom
or top of the viewing area (See rules for additional details).

Have you aired a sufficient number of eligible PSAs (28, 56, or 84 per
week, depending on the reporting period) during the correct quarters of
the day?

**Yes No**

Have you aired a sufficient number of eligible crawls (28, 56, or 84 per
week, depending on the reporting period) during the correct quarters of
the day?

**Yes No**

**Section B (For broadcasters electing Option Two)**

On its analog channel, and its primary digital stream, a station must
run an average of 16 transition-related PSAs and 16 transition-related
crawls, snipes, and/or tickers per week in each quarter, all between the
hours of 5 a.m. and 1 a.m. . It must also run one 30 minute DTV-related
informational program once, and one 100-Day Countdown piece per day for
the 100 days prior to the conclusion of the transition. Comment boxes
MUST be used to describe these compliant activities (See rules for
additional details).

**Total Number of Eligible DTV Transition-Related PSAs and Crawls,
Snipes, and/or Tickers (CSTs) Run \-- Last Quarter**

How many DTV PSAs and CSTs did your station run between 5:00 a.m. and
1:00 a.m. last quarter?

Total 5:00 a.m. to 1:00 a.m. PSAs

> Total 5:00 a.m. to 1:00 a.m. CSTs

For informational purposes only, how many DTV PSAs and CSTs did your
station run in the last quarter from 6:00 a.m. to 9:00 a.m.?

> Total 6:00 a.m. to 9:00 a.m. PSAs

Total 6:00 a.m. to 9:00 a.m. CSTs

For stations located in the Eastern or Pacific Time Zone, how many DTV
PSAs and CSTs did your station run in the last quarter from 6:00 p.m. to
11:35 p.m. (must average at least 4 per week)?

Total 6:00 p.m. to 11:35 p.m. PSAs

Total 6:00 p.m. to 11:35 p.m. CSTs

For stations located in the Central or Mountain Time Zone, how many DTV
PSAs and CSTs did your station run in the last quarter from 5:00 p.m. to
10:35 p.m.(must average at least 4 per week)?

Total 5:00 p.m. to 10:35 p.m. PSAs

Total 5:00 p.m. to 10:35 p.m. CSTs

**30 Minute Educational Programs -- Last Quarter**

How many 30 minute, DTV-related informational programs did your station
run during the quarter? At least one such program must be run between
the hours of 8:00 a.m. and 11:35 p.m., prior to February 17, 2009.

Total number of 30 Minute Informational Programs

**100-Day Countdown Eligible Pieces -- Last Quarter**

Beginning on November 10, 2008, all stations participating in Option Two
will engage in special 100-Day "Countdown to DTV" activities. Stations
must execute a minimum of one "Countdown to DTV" on-air activity per day
during the 100 days leading up to February 17, 2009. During the last
quarter, how many of each eligible 100-Day "Countdown to DTV" pieces did
your station run?

> \_\_\_\_\_\_\_\_\_\_ *Graphic Displays*
>
> *\_\_\_\_\_\_\_\_\_\_ Animated Graphics*
>
> *\_\_\_\_\_\_\_\_\_\_ Graphic and Audio Displays*
>
> *\_\_\_\_\_\_\_\_\_\_ Longer Form Reminders*

**Section C (For Noncommercial broadcasters only)**

On its analog channel, and its primary digital stream, a station must
air 60 seconds per day of on-air consumer education, in variable
timeslots, including at least 7.5 minutes per month between 6 pm and 12
am. Beginning May 1, 2008, this requirement doubles, and beginning
November 1, 2008, it increases again, to 180 seconds per day and 22.5
minutes per month between 6 pm and midnight. It must also run one 30
minute transition education piece once (See rules for additional
details).

Have you aired a sufficient amount of consumer education (60, 120, or
180 seconds per day, depending on the date) during each day this
quarter?

**Yes No**

**30 Minute Educational Programs -- Last Quarter**

How many 30 minute, DTV-related informational programs did your station
run during the quarter? The comment box may be used to describe this
activity. At least one such program must be run between the hours of
8:00 a.m. and 11:35 p.m., prior to February 17, 2009.

Total number of 30 Minute Informational Programs

**Section D (For all broadcasters)**

**Additional DTV On-air Initiatives -- Last Quarter**

Did your station run additional on-air initiatives (such as news
reports, town hall meetings, etc.) during the quarter? The comment box
may be used to describe these initiatives.

Yes No

**Station Web Site Additional Activity Related to the DTV Transition --
Last Quarter**

Does your station have a Web site? Yes No

If YES, did your station provide additional DTV related information or
activities on that Web site? The comment box may be used to describe
what was posted on the station's Web site.

> Yes No

**Additional DTV Outreach Efforts \-- Last Quarter**

Check all of the DTV related activities listed below that your station
engaged in over the last quarter. The comment box may be used to
describe this activity.

Speaking Engagements

Community Events

Other (describe)

**This comment box may be used to include other comments or information
about your station's DTV activity over the last quarter.**

**STATION CERTIFICATION**

**I certify that the statements in this document are true, complete, and
correct to the best of my knowledge and belief, and are made in good
faith.**

**APPENDIX D**

**Letter from the Honorable John D. Dingell, Chairman of the Committee
on Energy and Commerce, and the Honorable Edward J. Markey, Chairman of
the Subcommittee on Telecommunications and the Internet, U.S. House of
Representatives, to the Honorable Kevin J. Martin, Chairman, the
Honorable Michael J. Copps, Commissioner, the Honorable Jonathan S.
Adelstein, Commissioner, the Honorable Deborah Taylor Tate,
Commissioner, and the Honorable Robert M. McDowell, Commissioner,
Federal Communications Commission.** (attached)

**APPENDIX E**

**Reply from the Honorable Kevin J. Martin, Chairman, Federal
Communications Commission, to the Honorable John D. Dingell, Chairman of
the Committee on Energy and Commerce, and the Honorable Edward J.
Markey, Chairman of the Subcommittee on Telecommunications and the
Internet, U.S. House of Representatives.** (attached)

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: DTV Consumer Education Initiative, MB Docket No. 07-148*

One of the Commission's top priorities is to do everything in its power
to facilitate a successful DTV transition. Ensuring that no Americans
are left in the dark after February 17, 2009 is an enormous undertaking.
Significantly, it is one which no single entity, public or private, can
achieve alone. Rather, it requires the commitment and cooperation of
government, industry, and consumer groups. It is the Commission's
responsibility to ensure these parties fulfill their commitments in a
correct, clear, and consistent manner. Today's item requires various
entities -- television broadcasters, multichannel video programming
distributors (MVPDs), manufacturers, retailers, and telecommunications
carriers - to come together and do their part to promote consumer
awareness about the transition and how to prepare for it.

I am pleased that many of these industry groups have already initiated
public awareness campaigns and the order we adopt today gives them the
flexibility to continue these efforts. By working together, and using
such tools as public service announcements, screen crawls, and
notifications in monthly bills, we will be able to reach as broad an
audience as possible, including those segments of the population that
are hard to reach including, senior citizens, non-English speaking and
minority communities, people with disabilities, low-income individuals,
and people living in rural and tribal areas.

The Commission will continue to take whatever actions are necessary to
minimize the potential burden the digital transition could impose on
consumers and maximize their ability to benefit from it. The next 12
months will undoubtedly be challenging. Nevertheless, it is my hope that
through the combined efforts of government, industry and advocacy groups
American consumers will reap the rewards that the digital transition has
to offer.

**CONCURRING STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

 

*Re:       DTV Consumer Education Initiative, MB Docket No. 07-148*

 

Today's Order finally adopts many of the suggestions made nine months
ago by Chairmen Dingell and Markey regarding steps the Commission could
take on its own authority to compel industry DTV consumer education
efforts.  Unfortunately, one of the most important steps is not
something the Commission can compel---the establishment of a federal
Inter-Agency Task Force to oversee and coordinate the government's
efforts. That is why Chairman Inouye and Chairman Dingell's recent call
for the White House to establish just such a Task Force is so critical. 
We need accountability and clear lines of authority, both among federal
agencies and in government's dealings with industry.  That was the way
the "Y2K" problem was addressed leading up to 2000.  I actively
participated in those efforts as Assistant Secretary of Commerce---I
know what a coordinated, well-organized and effective national effort
looks like.  It doesn't look like this. 

 

This transition actually requires more of individual consumers than did
Y2K.  The DTV transition requires millions of households (no one really
knows how many) to take significant action prior to the transition
date.  Consumers must not only become aware of the transition; they have
to understand whether and how it affects them, decide among various
course of action, take affirmative steps such as applying for government
coupons and purchasing a converter box, and physically install the new
equipment and make it work.  These challenges are compounded by the fact
that many of the consumers most affected by the transition may be harder
to reach or less technically savvy.  Our efforts must be designed to
reach the most vulnerable.  If we happen to over-inform some consumers
in the process, it is a small price to pay.  We will never get this
exactly right.  We can either do too little or do too much.  If we are
smart, we will err on the side of doing too much.   

 

The other thing we must do is tell consumers the truth.  The American
people do not want their information sugar-coated by marketing
consultants or hedged into obscurity by cautious lawyers.  They want it
straight, and they will forgive anything other than being lulled into a
false sense that the transition will be less disruptive than it turns
out to be. 

 

I wish today's item gave me more comfort that we are doing everything we
can to prepare the American people for the approaching deadline.  As
I've said before, the best way to reach analog television viewers is
through analog television programming.  Broadcasters' on-air efforts are
thus the linchpin of a successful transition. 

 

Which brings me to the National Association of Broadcasters' "safe
harbor" proposal.  The premise of this proposal is that the Commission
should step back and let the experts handle it.  The NAB cites its
extensive marketing experience as well as its hiring of Starcom
MediaVest Group to help develop a plan "to engage consumers across
numerous media elements."  Starcom evaluated the DTV campaign using its
exclusive "state-of-the-art television optimizer" named Tardiis, which
"harnesses the power of viewing at the program level to provide
optimized schedules for individual brands, as well as allocating
programs across multiple products."  The end result, according to NAB,
is that "we will generate public awareness of the DTV transition in the
form of over 132 billion impressions."

 

I readily admit that much of this marketing jargon is Greek to me.  I
would not know a state-of-the-art television optimizer if I tripped over
one.  But I am concerned about the apparent focus on creating consumer
awareness through billions of "impressions."  The goal is not simply to
bombard consumers with ephemeral "impressions" about the transition, but
to get consumers to ***act*** in ways that many will find confusing,
disruptive and daunting.  Indeed, a recent survey by the *Consumer
Reports National Research Center* found that even among the growing
number of consumers who are aware of the transition, 74% still have
"major misconceptions" about the how the conversion will affect them. 
In other words, in order for the transition to succeed, awareness must
be followed by understanding, planning and, ultimately, effective
action.  I can only hope that the implementation of the NAB plan will
reflect the true scope of the task before us. 

 

I know that many broadcasters are working diligently on the DTV
transition.  They are expending money and human resources to make it
happen.  But good intentions won't get us from here to there, nor will
spending money in helter-skelter fashion.  A national challenge of this
magnitude requires cooperation and coordination.  Some broadcasters have
told me that, yes, they are launching consumer education programs but,
no, they haven't coordinated their efforts with other stations in their
market.  That's a recipe for continued confusion and for leaving some
consumers behind.  So I continue to believe that a coordinated, private
sector-public sector partnership is absolutely essential---it may just
be our last best hope for something resembling a smooth DTV transition.

 

I concur to get some action started.  But I limit myself to concurrence
for want of what is truly needed.        

       

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**APPROVING IN PART, DISSENTING IN PART**

*Re: DTV Consumer Education Initiative, MB Docket No. 07-148*

This *Order* is long overdue.

After much delay, the Commission is finally adopting measures to ensure
that Americans are aware of the DTV transition. I support this item
because it is a critical *first* step towards developing a comprehensive
consumer education plan -- an essential part of the broader DTV
transition effort that has sorely lacked focus, leadership and
coordination. I am also pleased Chairman Martin has agreed to implement
my proposal to reconstitute the Commission's intra-agency DTV task force
that was improvidently dismantled some time ago. We should now act on
another one of my proposals -- a federal government-wide, inter-agency
task force.[^299]

With disappointment, I dissent in part from this item because the
majority of my colleagues have refused to agree to prepare a DTV
transition report to Congress and the American people with a detailed
plan to reach *and* assist at-risk, over-the-air reliant communities.
The Commission's unwillingness to prepare such a report ignores sound
management practices, snubs the recommendations of objective expert
observers, and, frankly, defies common sense. It perpetuates uncertainty
at a time when everyone needs to know and help execute the game-plan.
The quarterback needs to let other players know the play to execute;
that's the only way this nation will win on February 17, 2009.

Unfortunately, the Commission's refusal to prepare a DTV report to
Congress is the latest illustration of its stubborn unwillingness to be
proactive and to mitigate risks associated with the transition. While
oversight hearings and letters from Congress have certainly made us much
more engaged, congressional prodding is not a substitute for Commission
planning and leadership.

The Commission's passive, *reactive* approach has had real consequences
on the DTV transition. It has unnecessarily made the daunting task of
executing an under-funded, national transition even more difficult. For
example, the lack of an analog pass-through feature in the vast majority
of the digital-to-analog converter boxes available to consumers could
have been avoided. The Commission -- the federal agency with a most
talented, skilled staff of experts in communications -- should have
engaged the National Telecommunication Information Administration (NTIA)
and participated in the converter box coupon rulemaking proceeding. The
NTIA, the Department of Justice, and the Small Business Administration
have participated in Commission proceedings whenever they have had an
interest to do so. The Commission should have done the same. Instead of
lending its expertise to the process, the Commission equivocated about
its leadership role in the DTV transition which resulted in the failure
to participate in NTIA's coupon converter box proceeding. The
Commission's lack of engagement with NTIA, particularly during the
converter box coupon program rulemaking, has truly complicated the DTV
transition for television viewers and the entire broadcasting industry,
especially the millions of households that rely on Class A, Low Power
and analog translator stations.

Our painfully slow action on a comprehensive education effort is yet
another illustration of the Commission's stubborn unwillingness to take
proactive steps and to mitigate risks associated with the transition. As
the Government Accountability Office (GAO) has found, "not having a
comprehensive plan for the DTV transition limits the government's
ability to measure efforts against planned goals, set milestones, and
assess risks."[^300]

For nearly two years, I have been calling on this Commission to, among
other things, develop "a coordinated, comprehensive public/private
campaign to educate the American people" about the benefits of digital
broadcasting and the steps households need to take to continue receiving
the over-the-air signals of full-power television stations.[^301] I
urged the Commission to take advantage of the time we had -- *and have
now lost* -- to make the DTV transition a real national priority by
developing an outreach and education plan that integrated the efforts of
other federal agencies, state, local and tribal governments and
permitted private industry and consumer interest organizations to
develop their complementary activities. This coordination was, and still
is, needed because of the limited federal resources we have to target,
reach, inform and assist consumers to make the transition successfully.

After nine months since Congress prodded us to pay more attention to DTV
education,[^302] today the Commission is finally establishing baseline
consumer education standards for broadcasters, cable and direct
broadcast satellite operators and other industry regulatees. This
*Order* is an important step towards developing a coordinated DTV
transition message and national education effort. For instance, we
emphasize that consumers should specify that this is a transition for
"full power" stations. The Commission's own message on posters and some
education materials still reads "analog broadcasting end February 17,
2009," even though we know fully well that is not accurate. If we cannot
get the technical details straight, how can we possibly expect millions
of casual observers to do so?

While I approve many key features of this *Order*, I must dissent in
part because we continue to demonstrate an unwillingness to marshal the
expertise of Commission staff and the consultative services of public
relations and marketing vendors to develop a report to the nation about
the critical next and final steps necessary to ensure a smooth
transition on February 17, 2009.

The DTV transition is indeed an enormous undertaking, and doomsday
scenarios are counterproductive. But we should have a plan in place so
industry, Congress and the American people know what steps are coming
next. The half-hearted efforts of a reluctant regulatory agency have
made the transition more difficult to administer. As GAO recognized last
November, "\[s\]ince FCC has the broadest telecommunication
responsibilities in the federal government, it is in the best position
to increase assurances of a successful transition through increased
attention to high-level comprehensive planning, performance measurement,
and risk mitigation efforts."[^303] The Commission should begin to take
a more proactive leadership role in the DTV education effort. With less
than a year left in the transition for full power television stations,
time is running out.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Re: DTV Consumer Education Initiative, MB Docket No. 07-148*

I believe this Commission should be focused on two major policy goals:
broadband deployment to every corner of America, and a successful DTV
transition. These goals underscore our commitment to keep America safe,
informed, and connected. Today's Order provides an example of resolving
national public policy challenges through marketplace solutions, and
public-private partnerships with both the industry we oversee, as well
as non-traditional partners. This type of cooperative enterprise will
keep us on track for the greatest technological revolution since the
advent of color television. The plan outlined in today's Order provides
a reasoned approach, necessary tools, and certainty for American
consumers in this historic process.

The DTV transition is a unique situation which demands the involvement
and attention of the Commission, Congress, and other governmental
agencies- federal, state, and local. With only a year to go until the
transition, it is imperative that we continue to work together, as
industry leaders, regulators, and government officials, to ensure a
successful DTV transition. The DTV transition is a massive technological
conversion that affects us all. I applaud those broadcasters who are
working to ensure that every citizen receives critical news,
information, and emergency alerts both before and after the transition,
and I encourage others to do the same.

**STATEMENT OF**

**COMMISSIONER ROBERT M. McDOWELL**

**CONCURRING IN PART**

*Re: DTV Consumer Education Initiative, MB Docket No. 07-148*

The Commission's top priority this year is the success of the DTV
transition. We have worked hard on rules to guide broadcasters through
the technical work of the transition; and I applaud their investment in
digital facilities and commitment to serving their communities. The next
step is to ensure that every over-the-air viewer in every community in
America receives the message about the tremendous advances in picture
quality and sound that DTV will bring. Moreover, members of the public
need to know the practical steps they must take to make the transition
in their own homes work smoothly.

I am delighted that the private sector, working with its government
partners, has developed a strong plan to educate the American people
about the DTV transition. I enthusiastically support inclusion of this
plan as part of our order. The order permits broadcast stations to
choose among three options regarding consumer education obligations --
one suggested by the broadcast industry, one originated at the
Commission and the third by public television stations.

Broadcasters -- who have the greatest incentive to ensure that they keep
their viewers post-transition -- have developed a comprehensive and
multi-faceted plan to educate consumers about the transition. As
proposed by the industry, broadcasters who commit to this plan will
engage consumers through a combination of multilingual public service
announcements ("PSAs") throughout the day (including prime-time),
30-minute programs, stories on the local news, online resources,
community events and speakers and outdoor advertising. The plan was
developed by drawing on the extensive marketing experience of the
broadcasting industry about how to most effectively reach and educate
viewers. Each broadcaster has the flexibility to tailor the plan
according to what its expertise suggests will work best in its
community. Eighty-four percent of all stations -- both commercial and
noncommercial -- have already committed to the industry plan and these
efforts have commenced. I am pleased that the Commission has adopted
this plan as part of today's order. Forging a public-private partnership
with the industries most affected by the DTV transition will result in
an effective consumer education campaign that serves the public
interest.

For stations that do not commit to the industry plan, today's order
mandates that each broadcast day be divided into four quarters and
requires that stations air a certain number of PSAs and crawls during
each of those day parts during certain periods before and after the
February 17, 2009, transition date. The order also requires that the
PSAs and crawls contain specific information and be of a certain length.
These requirements will ensure that stations that are not taking a
multi-faceted approach at least use PSAs and crawls to inform viewers
about the transition.

I am pleased that our order presents a feasible option for public
television stations that recognizes the differences between commercial
and noncommercial stations. Public television has developed a
multi-faceted and targeted consumer education campaign of its own,
dedicating airtime, grass-roots efforts and other resources worth over
\$50 million. The order allows public television stations needed
flexibility to comply with consumer educations plans in ways that are
relevant to their stations.

I applaud the consumer education efforts of several other industries as
well. The Digital Television Transition Coalition \-- formed in February
2007 by business, trade and industry groups in broadcasting, cable,
satellite, consumer electronics, and retailers as well as grass-roots
and membership organizations \-- has commenced marketing and public
education strategies to distribute consistent, accurate information
about the transition to the public.

Separately, the cable industry launched an extensive campaign, which
includes \$200 million in TV advertising, to educate viewers about the
DTV transition. The campaign also includes community outreach through
websites, brochures, local programming and other communications. We as
viewers have begun to see the results of these efforts, with more to
come. I hope that the requirements in the order that apply to MVPDs,
consumer electronics companies and retailers give them sufficient
flexibility with respect to delivering the appropriate message to their
customers, while taking into consideration the government's interests in
ensuring that viewers receive accurate and relevant information.

When the government mandates speech, as the Commission does today, we
must adhere to the principles of the First Amendment and ensure that the
requirements are narrowly tailored to advance our interests. Clearly,
ensuring a smooth transition from analog to digital broadcasting is a
substantial governmental interest. Our order today, however, gives
stations a choice between a flexible and creative private sector
solution or more regulation.

On the other hand, I note my concerns about the First Amendment
implications of two parts of our order: first, requiring telephone
companies that receive Universal Service funds to provide DTV transition
information in the monthly bills of Lifeline/Link-up customers; and
second, requiring winning bidders in the currently open 700 MHz spectrum
auction to detail what, if any, consumer education efforts they are
conducting. In both cases, the nexus between our governmental purpose
and the means to achieve that purpose are quite remote. In the case of
telephone companies, it is unclear whether there is a correlation
between Lifeline and Link-up customers and over-the-air viewers. Our
order makes no such correlation. Yet, the order requires phone companies
to provide a message, on government's behalf, that is unrelated to the
services they provide. With respect to the winners of the 700 MHz
auction, they will not provide service until after the digital
transition ends, and when they do, the service may not be related to
television. Given the infirmities in rationale for both of these
requirements, I would have preferred not to adopt these mandates.
Therefore, I must concur in these parts of the order.

[^1]: Deficit Reduction Act of 2005, Pub. L. No. 109-171, Title III, §§
    3002(a), 3003, 3004, 120 Stat. 21, 22 ("A full-power television
    broadcast license that authorizes analog television service may not
    be renewed to authorize such service for a period that extends
    beyond February 17, 2009."). *See also* 47 U.S.C. § 337(e) and 47
    U.S.C. § 309(j)(14).

[^2]: *See* Digital Television and Public Safety Act of 2005 ("DTV
    Act"), which is Title III of the Deficit Reduction Act of 2005, Pub.
    L. No. 109-171, 120 Stat. 4 (2006) ("DRA") (*codified at* 47 U.S.C.
    §§ 309(j)(14) and 337(e)). DTV Act § 3002(a) amends Section
    309(j)(14) of the Communications Act to establish February 17, 2009,
    as a new hard deadline for the end of analog transmissions by
    full-power stations. 47 U.S.C. § 309(j)(14)(A). DTV Act § 3002(b)
    directs the Commission to "take such actions as are necessary (1) to
    terminate all licenses for full-power television stations in the
    analog television service, and to require the cessation of
    broadcasting by full-power stations in the analog television
    service, by February 18, 2009; and (2) to require by February 18,
    2009, ... all broadcasting by full-power stations in the digital
    television service, occur only on channels between channels 2 and
    36, inclusive, or 38 and 51, inclusive (between frequencies 54 and
    698 megahertz, inclusive)." 47 U.S.C. § 309 Note. DTV Act § 3005(a)
    also created a coupon program to subsidize the purchase of
    digital-to-analog ("D-to-A") converter boxes. *Id*.

[^3]: Comments of National Consumers League at 1.

[^4]: *See generally*, Letter from the Honorable Kevin J. Martin,
    Chairman, Federal Communications Commission, to the Honorable John
    D. Dingell, Chairman of the Committee on Energy and Commerce, and
    the Honorable Edward J. Markey, Chairman of the Subcommittee on
    Telecommunications and the Internet, U.S. House of Representatives,
    sent June 18, 2007 ("Martin Response") attached as Appendix E.

[^5]: Letter from the Honorable John D. Dingell, Chairman of the
    Committee on Energy and Commerce, and the Honorable Edward J.
    Markey, Chairman of the Subcommittee on Telecommunications and the
    Internet, U.S. House of Representatives, to the Honorable Kevin J.
    Martin, Chairman, the Honorable Michael J. Copps, Commissioner, the
    Honorable Jonathan S. Adelstein, Commissioner, the Honorable Deborah
    Taylor Tate, Commissioner, and the Honorable Robert M. McDowell,
    Commissioner, Federal Communications Commission, received May 24,
    2007 ("Letter") attached as Appendix D.

[^6]: *Id.* at 3.

[^7]: *DTV Consumer Education Initiative*, MB Docket No. 07-148, Notice
    of Proposed Rulemaking, 22 FCC Rcd 14091 (2007) ("DTV Consumer
    Education NPRM").

[^8]: Letter at 3.

[^9]: As summarized in ¶ 2, *supra*.

[^10]: Comments of Telecommunication for the Deaf and Hard of Hearing
    (TDHH) at 8-9.

[^11]: *See supra* note 2. *See also*, *e.g*., 47 U.S.C. §§ 336 note
    (requiring the Commission to assign paired digital television
    channels "to further promote the orderly transition to digital
    television"), 336(b) (expressing Congressional interest in the
    transition from analog to digital television and reading, in
    pertinent part, "\[i\]n prescribing the regulations required by
    subsection (a), the Commission shall ... (5) prescribe such other
    regulations as may be necessary for the protection of the public
    interest, convenience, and necessity.")

[^12]: *In the Matter of Review of the Commission's Rules and Policies
    Affecting the Conversion to Digital Television*, Second Report and
    Order and Second Memorandum Opinion and Order ,17 FCC Rcd 15978
    (2002), ("DTV Tuner Order") (addressing DTV receiver standards and
    labeling requirements); *In the Matter of Second Periodic Review of
    the Commission's Rules and Policies Affecting the Conversion to
    Digital Television*; Second Report and Order, 22 FCC Rcd. 8776
    (2007) ("Labeling Order").

[^13]: *See* Paragraphs 19-23, 28-29, 39-43, 47, 53-56.

[^14]: *See* *United States v. Southwestern Cable Co*., 392 U.S. 157,
    178 (1968) (Commission's authority under its general subject matter
    jurisdictional grant extends to matters "reasonably ancillary to the
    effective performance of the Commission's various responsibilities")
    ("*Southwestern Cable*").

[^15]: APTS "Over-the-Air Households Prefer Free Broadcast Television
    After DTV Transition" available at
    http://www.apts.org/news/OTA-Study-January-08.cfm (viewed Feb. 12,
    2008).

[^16]: Comments of the Federal Communication Commission's Consumer
    Advisory Committee at 7 (citing Arnold, Thomas K. "DEG: 52 mil HDTV
    homes in U.S. by \'08." The Hollywood Reporter. July 18, 2007.).
    *But see*, Comments of CEA at 3 (prediction that, by the end of
    2007, over half will have digital TVs).

[^17]: Comments of CAC at 11.

[^18]: *Id.* at 10 (*citing* Statement of Mark L. Goldstein, United
    States Government Accountability Office, Testimony Before the
    Subcommittee on Telecommunications and the Internet, Committee on
    Energy and Commerce, House of Representatives, at 7 (Feb. 17,
    2005)).

[^19]: Comments of SBA at 7; Comments of NAB at 10-11.

[^20]: NAB Ex Parte of February 11, 2008; APTS Ex Parte of February 11,
    2008.

[^21]: NAB Ex Parte of January 31, 2008 (showing very high awareness of
    the transition).

[^22]: Appendix C.

[^23]: A "crawl" is "text that advances very slowly across the bottom or
    top of the screen." *See In the* *Matter of Review of the Emergency
    Alert System*, 20 FCC 18625, 18657 note 222 (Rel. Nov. 10, 2005).
    *See* note 33, *infra*.

[^24]: This requirement is in line with the proposed minimums put forth
    by AARP, TDHH, and CaptionMax. Comments of AARP at 5; Comments of
    TDHH at 4; Comments of CaptionMax at 2.

[^25]: For the purposes of this item, "primetime" is defined as the
    hours between 8:00 pm and 11:00 pm in the Eastern and Pacific time
    zones, and between 7:00 pm and 10:00 pm in the Mountain and Central
    time zones.

[^26]: We recognize that our rules exempt PSAs that are shorter than ten
    minutes in duration from the captioning requirements. 47 C.F.R. §
    79.1(d)(6). Due to the critical information of these PSAs, however,
    we expressly require that transition PSAs be closed captioned
    regardless of their duration, notwithstanding the exemption in
    79.1(d)(6).

[^27]: This DTV education requirement will continue for any station that
    has requested or been granted an extension to serve less than its
    full authorized service area after March 31, 2009. Some broadcasters
    filed comments in the Third DTV Periodic describing circumstances
    that may prevent them from completing construction to reach their
    fully authorized service area by February 18, 2009. Any station that
    does not reach all of its pre-transition viewers on February 18,
    2009, will be required to continue its education efforts until its
    request for extension has been withdrawn or denied, or until a
    granted extension has expired.

[^28]: The crawls should not block any closed captioning or emergency
    information, and any closed captioning or emergency information
    should not block DTV Transition-related crawls.  *Cf*. 47 C.F.R. §
    79.2(b)(3) (prohibiting closed captioning from blocking emergency
    information, and vice versa).

[^29]: For example, viewers could be given the option of calling the
    station at a number provided or going to www.DTV.gov, and/or could
    be directed that they can get more information about the converter
    box program by going to www.dtv2009.gov or calling the NTIA at
    1-888-DTV-2009.

[^30]: Broadcasters are free to air additional PSAs that do not meet all
    these requirements, as long as the information included is accurate
    and not misleading.

[^31]: Comments of SBA at 7. *See also* the National Association of
    Broadcaster's request for flexibility. Comments of NAB at 10-11.

[^32]: Comments of Benton at 12 (urged PSAs to include information about
    the transition, benefits, options for consumers and set top box
    demonstrations); Comments of National Hispanic Media Coalition at 6
    (detailing a schedule for progressively more detailed PSA
    information segments as the transition date nears); Comments of COAT
    at 8 (supporting a requirement that PSAs explain 'key elements' of
    the transition); Comments of Entravision at 4-5 (suggests airing
    PSAs during all dayparts, suggests particular content and
    information about boxes and coupon program).

[^33]: *See* note 27, *supra*.

[^34]: *See* 47 C.F.R. § 73.674(c)(3)(vi) in Appendix B, Amended Rules,
    and Section A in Appendix C, Broadcaster Reporting Form.

[^35]: *See, e.g.*, Reply of COAT at 9 and Comments of Lincoln
    Broadcasting at 2.

[^36]: 47 U.S.C. § 336 note.

[^37]: Letter at 3. We note that although the Letter refers to
    "scrolls," commenters (including AARP, NAB, and APTS) understood
    this to refer to what in the closed captioning context we have
    called a "crawl." Indeed, the National Hispanic Media Coalition,
    which strongly supports PSA requirements and calls for "Y2K-level
    consumer education efforts," opposes vertical scrolls as
    unnecessary. Comments of NHMC at 3. For the sake of consistency and
    to reflect the generally understood intent of the proposal, we use
    the term "crawl" here. *See also* note 23, *supra*.

[^38]: This might be different because some stations have requested, in
    the Third DTV Periodic (MB Docket No. 07-91), that they be permitted
    to reduce or end their analog service on dates other than February
    17, 2009. *See, e.g.*, Comments of Bahakel at 3 (early transition);
    Reply of APTS at 4 (early and late transition); Reply of NAB and
    MSTV at 5 (early transition); Reply of MSTV and NAB reply at 11
    (late transition); Comments of The Association of Federal
    Communications Consulting Engineers at 6 (late transition); Comments
    of Red River Broadcast Co., LLC 4-5. *See also* Reply of Chris Llana
    at 2 (supporting these requests).

[^39]: National Hispanic Media Coalition at 1-2; Telecommunications
    Regulatory Board of Puerto Rico at 4; New York State Consumer
    Protection Board at 1; DTV Consumer Education NPRM at ¶5 (over the
    air programming is best way to educate consumers).

[^40]: Reply of Chris Llana at 3.

[^41]: Comments of Entravision at 1.

[^42]: Comments of the State Broadcasters Association (SBA) at 8, 2
    (emphasis in original); *See also* Reply of NAB at 3 (citing SBA's
    comments approvingly).

[^43]: *See generally*, Testimony of Marcellus Alexander, NAB Executive
    Vice President of Television, before the Committee on Aging, U.S.
    Senate (September 19, 2007).

[^44]: Comments of Benton at 11.

[^45]: Comments of SBA at 2.

[^46]: Comments of NAB at 11; Comments of APTS at 5.

[^47]: NAB Ex Parte of February 11, 2008.

[^48]: Comments of CAC at 16.

[^49]: Comments of Benton at 11.

[^50]: *Id.*

[^51]: Comments of APTS at 5.

[^52]: APTS Ex Parte of February 11, 2008.

[^53]: Comments of NAB at 11-12; Reply of NAB at 5-6.

[^54]: Comments of NAB at 12.

[^55]: *See* Section G, *infra*.

[^56]: Comments of NAB at 12.

[^57]: 47 U.S.C. § 303(r); § 336; *see also United States v. Storer
    Broadcasting Co*., 351 U.S. 192, 203 (1956); *National Broadcasting,
    Inc. v. United States*, 319 U.S. 190, 218-20 (1943); *FCC v.
    Pottsville Broadcasting Co*., 309 U.S. 134, 137-8 (1940) (supporting
    the Commission's authority to interpret the public interest standard
    on the Communications Act.)

[^58]: 47 U.S.C. §§ 303(r); 336; and 309(k).

[^59]: Comments of NAB at 2.

[^60]: *See also* Comments of Stephen Wong at 1.

[^61]: *Consumer Electronics Ass'n v. FCC*, 347 F.3d 291 (D.C. Cir.
    2003).

[^62]: *Id*. at 301.

[^63]: *See*, *e.g*., Comments of Benton at 19 (citing 47 C.F.R. §§
    73.1201 and 73.3580).

[^64]: Reply of NAB at 5, note 15.

[^65]: *Review of the Emergency Alert System*, EB Docket No. 04-296,
    First Report and Order and Further Notice of Proposed Rulemaking,
    20 FCC Rcd 18625, 18633 (2005).

[^66]: *Id.* at 18634.

[^67]: The Commission imposed a similar requirement upon broadcasters
    pursuant to the Children's Television Act ("CTA"). The First Report
    and Order in the Children's Television proceeding required
    broadcasters to "air three hours per week of core programming...or
    air a package of programming that demonstrates a level of commitment
    to educating and informing children that is at least equivalent to
    airing three hours per week of core programming." *See generally*,
    *In the Matter of Policies and Rules Concerning Children's
    Television Programming*, MM Docket No. 93-48, *Revision of
    Programming Policies for Television Broadcast Stations*, Report and
    Order, 11 FCC Rcd 10660 (1996). The Commission ordered the
    regulation because it found that market forces were insufficient to
    ensure that commercial stations would provide children\'s
    educational and information programming. The Commission concluded
    that "requiring broadcasters to serve the educational and
    informational needs of their child audience was clearly within the
    scope of the long recognized obligation of broadcasters to serve the
    public interest." *Id.* In this proceeding, the circumstances are
    similar. For the purpose of educating the national viewing audience
    who will not, on their own, inform themselves, the Commission must
    regulate all broadcasters. As some commenters admit, certain
    consumer education efforts do not serve their economic interests.
    *See*, for example, EchoStar at 4 (billing inserts are expensive);
    APTS at 11 (paperwork associated with government mandates is
    expensive); US Telecom Association at 1-2 (billing inserts useless
    and expensive).

[^68]: *See* note 23, *supra*.

[^69]: Letter at 3*.*

[^70]: *Id.*

[^71]: Comments of SBA at 8; Comments of North Carolina Association of
    Broadcasters at 1; Comments of APTS at 11. *But see* APTS Ex Parte
    of February 11, 2008 (proposing a reporting requirement for
    noncommercial broadcaster's education efforts).

[^72]: Comments of National Hispanic Media Coalition ("NHMC") at 7.

[^73]: *Policies and Rules Concerning Children's Television
    Programming*, MM Docket No. 93-48, Report and Order, 11 FCC Rcd.
    10660, ¶68 (1996) ("Children's Television Programming Order").

[^74]: Comments of AARP at 7; Comments of the Telecommunications
    Regulatory Board of Puerto Rico ("PR") at 4; Comments of NHMC at 7.

[^75]: Comments of Benton at 15-16, 22.

[^76]: 47 U.S.C. §§ 303(r); 336; *See also United States v. Storer
    Broadcasting Co*., 351 U.S. 192, 203 (1956); *National Broadcasting,
    Inc. v. United States*, 319 U.S. 190, 218-20 (1943); *FCC v.
    Pottsville Broadcasting Co*., 309 U.S. 134, 137-8 (1940).

[^77]: *Red Lion Broadcasting Co. v. FCC*, 395 U.S. 367, 383 (1969).

[^78]: *See* note 10, *supra*.

[^79]: *See* 47 U.S.C. § 154(k)(1) (directing the Commission to make an
    annual report to Congress which "shall contain"... "such information
    and data collected by the Commission as may be considered of value
    in the determination of questions connected with the regulation of
    interstate and foreign wire and radio communication and radio
    transmission of energy").

[^80]: 47 U.S.C. § 336(b)(5).

[^81]: 47 U.S.C. § 309(k).

[^82]: *See* 47 C.F.R. § 73.3526(e)(11).

[^83]: *See* 47 C.F.R. §§ 73.1201 (requiring station identification);
    73.1212 (requiring sponsorship identification).

[^84]: *See id*. § 73.3580.

[^85]: *See id*. §§ 73.3526, 73.3527.

[^86]: Children's Television Programming Order, 11 FCC Rcd 10660.

[^87]: 47 U.S.C. §§ 303(a), (b) and 394.

[^88]: Children's Television Programming Order, 11 FCC Rcd at para. 7.

[^89]: *Id.* at 10663.

[^90]: NAB Ex Parte of February 11, 2008.

[^91]: *Id.*

[^92]: This DTV education requirement will continue for any station that
    has requested or been granted an extension to serve less than its
    full authorized service area after March 31, 2009. Some broadcasters
    filed comments in the Third DTV Periodic describing circumstances
    that may prevent them from completing construction to reach their
    fully authorized service area by February 18, 2009. Any station that
    does not reach all of its pre-transition viewers on February 18,
    200,9 will be required to continue its education efforts until their
    request for extension has been withdrawn or denied, or until a
    granted extension has expired.

[^93]: We recognize that our rules exempt PSAs that are shorter than ten
    minutes in duration from the captioning requirements. 47 C.F.R. §
    79.1(d)(6). Due to the critical information of these PSAs, however,
    we expressly require that transition PSAs be closed captioned
    regardless of their duration.

[^94]: Broadcasters are free to air additional PSAs that do not meet all
    these requirements, as long as the information included is accurate
    and not misleading.

[^95]: NAB states that "\[t\]his has been successfully used by medical
    doctors who are often called on during the flu season,
    post-traumatic events or other local health related concerns. Adding
    the "expert" ensures people instinctively know they can rely on the
    advice and action suggested by the expert." NAB Ex Parte of February
    11, 2008.

[^96]: *See* note 27, *supra*.

[^97]: APTS Ex Parte of February 12, 2009.

[^98]: We recognize that our rules exempt PSAs that are shorter than ten
    minutes in duration from the captioning requirements. 47 C.F.R. §
    79.1(d)(6). Due to the critical information of these PSAs, however,
    we expressly require that transition PSAs be closed captioned
    regardless of their duration.

[^99]: This DTV education requirement will continue for any station that
    has requested or been granted an extension to serve less than its
    full authorized service area after March 31, 2009. Some broadcasters
    filed comments in the Third DTV Periodic describing circumstances
    that may prevent them from completing construction to reach their
    fully authorized service area by February 18, 2009. Any station that
    does not reach all of its pre-transition viewers on February 18,
    2009, will be required to continue its education efforts until their
    request for extension has been withdrawn or denied, or until a
    granted extension has expired.

[^100]: *I.e.*, a station must fully comply for its analog channel, and
    fully comply for its primary digital stream. Compliant
    transition-related education pieces may air simultaneously on a
    station's analog channel and its primary digital stream, but are not
    required to do so.

[^101]: We recognize that our rules exempt PSAs that are shorter than
    ten minutes in duration from the captioning requirements. 47 C.F.R.
    § 79.1(d)(6). Due to the critical information of these PSAs,
    however, we expressly require that transition PSAs be closed
    captioned regardless of their duration.

[^102]: *See* note 27, *supra*.

[^103]: Petition of CBA

[^104]: As of February 20, 2009, four of approximately forty certified
    boxes have pass-through capability.

[^105]: The Commission intends to issue a Notice of Proposed Rulemaking
    on potential consumer education requirements for low power
    television stations as part of an upcoming proceeding.

[^106]: A current list of coupon-eligible converter boxes is available
    at https://www.ntiadtv.gov/cecb_list.cfm. The converter box models
    that have analog pass-through capability are noted on the list with
    an asterisk next to them. In addition, NTIA will mail a list of
    current coupon-eligible converter boxes, noting with an asterisk
    those that have analog pass-through capability, to each household
    that receives converter box coupons. Viewers can also check with
    their retailer to determine whether a particular converter box has
    analog pass-through capability.

[^107]: To the extent that a given customer does not receive paper
    versions of either a bill or a notice of billing, that customer must
    be provided with equivalent monthly transition notices in whatever
    medium they receive information about their monthly bill.

[^108]: For example, DBS carriers must provide additional notice to all
    subscribers who do not receive local broadcast signals via
    satellite.  This additional notice would explain the steps that
    these subscribers would need to take to continue receiving broadcast
    signals, in particular the necessary steps if the subscriber relies
    on a tuner integrated into the DBS carrier's set-top box.

[^109]: These regulations do not supersede existing notice requirements
    that govern cable, such as 47 C.F.R. §§ 76.1601, 76.1603, and
    76.1622.

[^110]: Letter at 3.

[^111]: Comments of New York State Consumer Protection Board at 2.

[^112]: Comments of Benton at 16-17; *see also* Comments of CAC at 22;
    Comments of Coalition of Organizations for Accessible Technology
    (COAT) at 10.

[^113]: Comments of NCTA at 2. *See also*, Comments of Verizon at 7;
    Reply of NTCA at 6.

[^114]: *Id.* at 6. Specifically, as to periodic bill notices, they
    state that "\[i\]n 2008, educational messages and reminders about
    the transition will be sent to all cable customers through monthly
    statements on invoices and 'bill stuffers' in cable bills." *See
    also*, Letter from Kyle McSlarrow, President and CEO, NCTA, to the
    Honorable John D. Dingell, Chairman of the Committee on Energy and
    Commerce, the Honorable Joe Barton, Ranking Member of the Committee
    on Energy and Commerce, the Honorable Edward J. Markey, Chairman of
    the Subcommittee on Telecommunications and the Internet, and the
    Honorable Fred Upton, Ranking Member of the Subcommittee on
    Telecommunications and the Internet ,U.S. House of Representatives,
    dated September 6, 2007, at 2 ("McSlarrow House Letter").

[^115]: *See generally*, McSlarrow House Letter and Letter from Kyle
    McSlarrow, President and CEO, NCTA, to the Honorable Daniel K.
    Inouye, Chairman of the Committee on Commerce, Science and
    Transportation, and the Honorable Ted Stevens, Vice Chairman of the
    Committee on Commerce, Science and Transportation, U.S. Senate,
    dated September 6, 2007 ("McSlarrow Senate Letter").

[^116]: Comments of EchoStar at 3; Comments of DIRECTV at 3.

[^117]: Comments of Verizon at 6.

[^118]: *See, e.g.*, Comments of USTA at 11; Comments of Verizon at 15.

[^119]: 47 U.S.C. §§ 151, 152(a), 154(i), 154(o), 301, 303(r), 303(s),
    336, 532, 534, 535, 542, 573.

[^120]: *United States v. Southwestern Cable Co.*, 392 U.S. 157, 178
    (1968) (upholding Commission regulation of cable television systems
    as a valid exercise of ancillary jurisdiction). *See also Rural Tel.
    Coalition v. FCC*, 838 F.2d 1307, 1315 (D.C. Cir. 1988) (upholding
    Commission authority to establish a "Universal Service Fund" in the
    absence of specific statutory authority as ancillary to FCC
    responsibilities under sections 1 and 4(i) of the Act); *GTE Serv.
    Corp. v. FCC*, 474 F.2d 724, 731 (2d Cir. 1973) ("even absent
    explicit reference in the statute, the expansive power of the
    Commission in the electronic communications field includes the
    jurisdictional authority to regu­late carrier activities in an area
    as intimately related to the communica­tions industry as that of
    computer services, where such activities may substantially affect
    the efficient provision of rea­sonably priced communications
    service").

[^121]: *See American Library Ass'n v. FCC*, 406 F.3d 689, 700 (D.C.
    Cir. 2005) ("*ALA"*).

[^122]: *But see* USTA's explication of the Commission's authority over
    transition education, discussed in paragraph 35, *infra*.

[^123]: 47 U.S.C. §§ 338, 534.

[^124]: *2002 Biennial Regulatory Review*, 18 FCC Rcd 13620, 13825
    (2003). *See, e.g.*, 47 U.S.C. §§ 336 note (requiring the Commission
    to assign paired digital television channels "to further promote the
    orderly transition to digital television"), 336(b) (expressing
    Congressional interest in the transition from analog to digital
    television and reading, in pertinent part, "\[i\]n prescribing the
    regulations required by subsection (a), the Commission shall ... (5)
    prescribe such other regulations as may be necessary for the
    protection of the public interest, convenience, and necessity.").

[^125]: *Id.* at §§ 154(i), 303(r).

[^126]: Comments of USTA at 15 (emphasis in original).

[^127]: *See* Comments of Benton at note 9 (citing May 2007 findings
    from Leichtman Research Group, Inc. that 9% of TV sets in cable
    households are broadcast-only, and 19% of TV sets in DBS households
    are broadcast-only, representing approximately 35 million television
    sets). *Compare* Comments of CEA at 4 (reporting that there are
    roughly 5.5 million households subscribing to cable and satellite
    that have at least one set receiving over-the-air signals and there
    are a total of 9.5 million over-the-air television sets in these
    households). *See also, In the Matter of Third Periodic Review of
    the Commission's Rules and Policies Affecting the Conversion to
    Digital Television,* Notice of Proposed Rulemaking, 22 FCC Rcd 9478,
    9485 (2007) (in connection with the 2006 Competition Report, NAB
    reported that an additional 23.5 million television sets in 14.7
    million MVPD households remain unconnected to the MVPD service).

[^128]: Comments of COAT at 9-10.

[^129]: *See, generally*, www.DTV.gov.

[^130]: *Carriage of Digital Television Broadcast Signals: Amendment to
    Part 76 of the Commission's Rules*, CS Docket No. 98-120, Third
    Report and Order and Third Further Notice of Proposed Rule Making,
    FCC 07-170 (Rel. Nov. 30, 2007) ("Cable Viewability Order").

[^131]: Reply of APTS at 1.

[^132]: *See Consumer Electronics Ass'n v. FCC*, 347 F.3d 291, 301-02
    (D.C. Cir. 2003) (recognizing Congressionally mandated digital
    transition and Commission determination of consumer expectations
    that "the television they purchase . . . be able to receive
    over-the-air broadcast signals," and approving resulting Commission
    action to mandate DTV tuner phase-in).

[^133]: Labeling Order, 22 FCC Rcd. at ¶¶ 15-20.

[^134]: *IP-Enabled Services*, 20 FCC Rcd 10245, 10271 ¶ 48 (2005).

[^135]: *See, e.g., 2003 Navigation Devices Second Report and Order and
    FNPRM*, 18 FCC Rcd 20885 (2003) (adopting technical, labeling and
    encoding rules to permit television sets to be built with "plug and
    play" functionality for one-way digital cable services);
    *Truth-in-Billing and Billing Format*, 20 FCC Rcd 6448 (2005)
    (mandating that billing practices, including line items, be truthful
    and non-misleading), *vacated on other grounds*, *NASUCA v. FCC*,
    457 F.3d 1238 (11^th^ Cir. 2006); 47 C.F.R. § 20.19 (labeling
    requirements for hearing-aid compatible mobile handsets).

[^136]: Comments of USTA at 13. The very Congressional inquiries that in
    initiated this proceeding, however, make it clear that Congress does
    now and has always considered DTV transition education to be an
    integral part of the DTV transition which the Commission is leading.
    *See, generally*, Letter.

[^137]: Paragraph 5, *supra*.

[^138]: Comments of USTA at 14-15 (citing *Motion Picture Association of
    America, Inc. v FCC*, 309 F.3d 796 (D.C. Cir. 2002).

[^139]: 47 U.S.C. § 336(b)(5), Note to section 336.

[^140]: Letter at 3.

[^141]: Comments of LG Electronic USA, Inc. ("LG") at 7.

[^142]: Labeling Order, 22 FCC Rcd. at ¶ 14; *see generally*, DTV Tuner
    Order, 17 FCC Rcd at 15978.

[^143]: Benton at 18.

[^144]: Labeling Order, 22 FCC Rcd. 8776.

[^145]: 47 U.S.C. § 153(33).

[^146]: Listed at www.dtv.gov/partners.html.

[^147]: Letter at 4.

[^148]: Comments of NAB & MSTV at 14-15.

[^149]: *Id.*; Comments of Benton at 21; Comments of Nick Supuran at 1.

[^150]: Letter at 4.

[^151]: Comments of Telecommunications Regulatory Board of Puerto Rico
    at 5.

[^152]: Comments of CERC at 12-13.

[^153]: Comments of Radio Shack at 6. This conforms to the request of
    Commenter Nick Supuran. The Commission also has an independently
    developed DTV buying tip sheet that is available to consumer or for
    distribution by retailers. The Commission developed a DTV Tip Sheet
    in collaboration with CEA and CERC in 2004 and has updated the text
    as necessary. The Tip Sheet is available on
    [www.DTV.gov](http://www.DTV.gov/)
    (http://www.dtv.gov/dtvtipsheet.pdf ) and has been distributed to
    retailers.

[^154]: Circuit City ex parte (filed January 29, 2008); Target ex parte
    (filed January 29, 2008); Best Buy ex parte (filed January 22,
    2008).

[^155]: Lifeline and Link-Up (Lifeline/Link-Up) are universal service
    low-income programs. Lifeline provides low-income consumers with
    discounts off of the monthly cost of telephone service for a single
    telephone line in their principal residence, while Link-Up provides
    low-income consumers with discounts off of the initial costs of
    installing telephone service. *See Lifeline and Link-Up*, WC Docket
    No. 03-109, Report and Order and Further Notice of Proposed
    Rulemaking, 19 FCC Rcd 8302, 8306, para. 4 (2004); 47 C.F.R. Part
    54, Subpart E (Universal Service Support for Low-Income Consumers).

[^156]: Sections 54.405(b) and 54.411(d) of the Commission's Rules
    require all ETCs to publicize the availability of Lifeline and
    Link-Up services in a manner reasonably designed to reach those
    likely to qualify for those services. 47 C.F.R. §§ 54.405(b),
    54.411(d).

[^157]: Letter at 4.

[^158]: Comments of New York State Consumer Protection Board at 2.

[^159]: *See infra* section III.G.

[^160]: Comments of Verizon at 7. *See also* Comments of Qwest at 2 and
    Reply of NTCA at 2.

[^161]: Notice at ¶ 17.

[^162]: *See* Appendix A, *infra*.

[^163]: *See* note 155, *supra*.

[^164]: ^?^ *See Southwestern Cable Co.*, 392 U.S. 157, 177-78 (1968).,
    the lead case on the ancillary jurisdiction doctrine, upheld certain
    regulations applied to cable television systems at a time before the
    Commission had an express congressional grant of regulatory
    authority over that medium. *See id*. at 170-71. In *Midwest Video
    I*, the Supreme Court expanded upon its holding in *Southwestern
    Cable*. The plurality stated that "the critical question in this
    case is whether the Commission has reasonably determined that its
    origination rule will 'further the achievement of long-established
    regulatory goals in the field of television broadcasting by
    increasing the number of outlets for community self-expression and
    augmenting the public's choice of programs and types of services.'"
    *United States v. Midwest Video Corp.*, 406 U.S. 649, 667-68 (1972)
    ("*Midwest Video I"*) (quoting *Amendment of Part 74, Subpart K, of
    the Commission's Rules and Regulations Relative to Community Antenna
    Television Systems; and Inquiry into the Development of
    Communications Technology and Services to Formulate Regulatory
    Policy and Rulemaking and/or Legislative Proposals*, Docket No.
    18397, First Report and Order, 20 FCC 2d 201, 202 (1969) ("*CATV
    First Report and Order"*)). The Court later restricted the scope of
    *Midwest Video I* by finding that if the basis for jurisdiction over
    cable is that the authority is ancillary to the regulation of
    broadcasting, the cable regulation cannot be antithetical to a basic
    regulatory parameter established for broadcast. *See FCC v. Midwest
    Video Corp.*, 440 U.S. 689, 700 (1979) ("*Midwest Video II"*).

[^165]: *Southwestern Cable*, 392 U.S. at 178.

[^166]: Section 2(a) of the Act states that the Act applies "to all
    interstate and foreign communication by wire or radio . . . and to
    all persons engaged within the United States in such communication .
    . . ." 47 U.S.C. § 2(a).

[^167]: *See* 47 U.S.C. § 254(e).

[^168]: ^?^ 47 U.S.C. § 309 Note. The Note to Section 309 was codified
    after the Digital Television and Public Safety Act of 2005 (DTV
    Act), which is Title III of the Deficit Reduction Act of 2005, Pub.
    L. No. 109-171, 120 Stat. 4 (2006), was signed into law.

[^169]: *See* Statement of Mark L. Goldstein, United States Government
    Accountability Office, Testimony Before the Subcommittee on
    Telecommunications and the Internet, Committee on Energy and
    Commerce, House of Representatives at 7 (Feb. 17, 2005), *available
    at* http://www.gao.gov/new.items/d05258t.pdf.

[^170]: *See* Wireline Competition Bureau, FCC, *Trends in Telephone
    Service Report*, Table 19.9 (Feb. 2007) (estimating that more than
    7.1 million people paid reduced rates under the Lifeline program in
    2005, and more than 1.7 million people paid reduced charges under
    the Link-Up program since 2005).

[^171]: 47 U.S.C. § 151 (emphasis added).

[^172]: *See* 47 U.S.C. § 309(j)(14)(B)(i)(II).

[^173]: *See* 47 C.F.R. § 11.1 *et seq.* EAS is a national public
    warning system that, together with other emergency notification
    mechanisms, is part of an overall public alert and warning system.
    *See Review of the Emergency Alert System*, EB Docket No. 04-296,
    First Report and Order and Further Notice of Proposed Rulemaking, 20
    FCC Rcd 18625. 18627, para. 5 (2005).

[^174]: *Southwestern Cable*, 392 U.S. at 178.

[^175]: *Midwest Video I*, 406 U.S. at 667-68 (quoting *CATV First
    Report and Order*, 20 FCC 2d at 202).

[^176]: *Id.*

[^177]: Certain commenters supported not only a reporting requirement,
    but also a requirement that auction winners actually engage in some
    unspecified amount and type of consumer education. We support
    efforts by 700 MHz auction winners to provide consumer education on
    the DTV transition. To the extent that auction winners do conduct
    DTV outreach, the reporting requirement will better equip the
    Commission to coordinate all DTV transition outreach efforts across
    various industry sectors. Comments of PR at 5; Comments of Benton at
    23-24.

[^178]: *See Turner Broadcasting System, Inc. v. FCC*, 512 U.S. 622,
    646-647 (1994).

[^179]: *See* H.R. Rep. No. 276, 109^th^ Cong., 1^st^ Sess. 2005
    (recognizing that the completion of the digital transition will
    expedite the benefits of digital television for the American
    consumers, clear spectrum for critical public safety and commercial
    uses; and the "increase in DTV programming, services, and equipment,
    and the provision of products and services that use the cleared
    spectrum, will improve America's global competitiveness and result
    in significant investment and innovation, boosting the U.S. economy
    and creating new jobs"). *See also*, [*Second Periodic Review of the
    Commission\'s Rules and Policies Affecting the Conversion To Digital
    Television*, FCC 07-69, ¶¶ 9-14 (rel. May 3,
    2007)](http://web2.westlaw.com/find/default.wl?rs=WLW7.09&serialnum=2012165925&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-1&db=1016&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications)
    (adopting a labeling requirement for analog-only television
    receivers while noting that "\[t\]he government has a strong
    interest in ensuring a timely conclusion of the digital
    transition"); [*Requirements for Digital Television Receiving
    Capability*, 21 FCC Rcd. 9478, 9480, ¶ 7
    (2006)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.09&referencepositiontype=S&serialnum=2009750862&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=9480&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications)
    (stating that "consumers must be able to receive digital TV signals
    for the DTV transition to move forward to a successful completion");
    [*Requirements for Digital Television Receiving Capability*, 20 FCC
    Rcd 18607, 18609, ¶ 6
    (2005)](http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW7.09&referencepositiontype=S&serialnum=2007664014&fn=_top&sv=Split&tc=-1&findtype=Y&referenceposition=18609&db=4493&vr=2.0&rp=%2Ffind%2Fdefault.wl&mt=Communications)
    (stating that consumers\' ability to receive digital TV signals is
    essential to a successful completion of the DTV transition). *See
    also* Comments of NAB at i ("The future of free-over-the-air
    television depends upon a smooth transition to digital with minimum
    disruption to TV consumers").

[^180]: *See Turner*, 512 U.S. at 646-647. *See also,* Comments of
    Benton at 5 ("Television has never played a more important role in
    our lives. It is our primary source of news and entertainment and
    emergency alerts.").

[^181]: *See* Comments of CAC at 7. *See also* Comments of Benton at 6
    (*citing* Statement of Mark L. Goldstein, United States Government
    Accountability Office (GAO), Testimony Before the Subcommittee on
    Telecommunications and the Internet, Committee on Energy and
    Commerce, House of Representatives, at 7 (Feb. 17, 2005) (GAO found
    that 19% or 20.8 million households rely exclusively on free
    over-the-air television)); Comments of CAC at 6 (citing 2005 GAO
    finding that 21 million homes -- nearly one in five of all
    television-equipped households -- rely on free, over-the-air
    broadcasts); Comments of CEA at 4 (estimating that approximately 11%
    of U.S. households rely solely on over-the-air broadcasting, which
    translates to 13.5 million households, and that those households own
    a total of 27 million television sets). *See also, In the Matter of
    Third Periodic Review of the Commission's Rules and Policies
    Affecting the Conversion to Digital Television,* Notice of Proposed
    Rulemaking, 22 FCC Rcd 9478, 9485 (2007) (noting that in connection
    with the 2006 Competition Report, NAB indicated that there were
    nearly 19.6 million households relying solely on over-the-air
    broadcast television, and that these households owned approximately
    45.5 million sets of which only approximately 1.3 million were
    digital sets).

[^182]: Benton at note 9 (citing May 2007 findings from Leichtman
    Research Group, Inc. that 9% of TV sets in cable households are
    broadcast-only, and 19% of TV sets in DBS households are
    broadcast-only, representing approximately 35 million television
    sets). *Compare* CEA at 4 (reporting that there are roughly 5.5
    million households subscribing to cable and satellite that have at
    least one set receiving over-the-air signals and there are a total
    of 9.5 million over-the-air television sets in these households).
    *See also, In the Matter of Third Periodic Review of the
    Commission's Rules and Policies Affecting the Conversion to Digital
    Television,* Notice of Proposed Rulemaking, 22 FCC Rcd 9478, 9485
    (2007) (in connection with the 2006 Competition Report, NAB reported
    that an additional 23.5 million television sets in 14.7 million MVPD
    households remain unconnected to the MVPD service).

[^183]: Reply of APTS at 1. *See also* Benton at 6, note 10 (*citing*
    APTS survey as reported Jan 31, 2007).

[^184]: The House Appropriations Committee recently expressed concern
    "about the approaching February 2009 deadline for transition to
    digital television (DTV) and the level of awareness in the general
    public concerning this deadline," and particularly about the
    preparedness of "viewers in disadvantaged and lower-income
    communities, including Hispanic, African American, disabled, and
    senior citizen communities." H.R. Rep. No. 207, 110^th^ Cong., 1^st^
    Sess. 2007. *See also,* Comments of CEA at 5 ("Consumer education is
    the critical component of a smooth transition"); Comments of CAC at
    7 ("The success of the DTV transition is dependent upon widespread
    consumer understanding of the benefits and mechanics of the
    transition); Comments of Benton at 5 ("In order for the DTV
    transition to be successful, consumers must be well-informed and
    primed to adapt successfully to the new technology. This cannot
    occur unless there is a comprehensive, coordinated and robust
    national consumer outreach effort").

[^185]: *See* Comments of Benton at 6-7 (citing to January 2007 APTS
    survey which indicates that 60% of Americans remain unaware of the
    DTV transition \-- identifying low-income households, foreign
    language speakers and older Americans most at risk of losing TV
    service after the transition).

[^186]: *See* note 178, *supra*.

[^187]: *See* Comments of Benton at 6 ("The consumers most at risk of
    losing TV service after the transition -- low income households,
    foreign-language speakers, older Americans -- are the most
    vulnerable in our communities and the hardest to reach"); Statement
    of Mark L. Goldstein, United States Government Accountability
    Office, Testimony Before the Subcommittee on Telecommunications and
    the Internet, Committee on Energy and Commerce, House of
    Representatives at 7 (Feb. 17, 2005) (a GAO survey on the transition
    found that over-the-air households are more likely to have lower
    incomes than cable or satellite households and that approximately
    48% of exclusive over-the-air viewers have household incomes less
    than \$30,000). *But see* Comments of USTA at 10 (*citing* a 2006
    study examining users of Lifeline and Link-Up services in Florida
    which found that a majority of low-income families subscribed to
    cable or DBS).

[^188]: *See, e.g.,* Comments of NCTA at 3 ("Over two years ago, the
    cable industry acknowledged that cable and other affected industries
    have an important role to play in ensuring that the transition from
    analog to digital broadcasting is successful for all American
    consumers").

[^189]: Comments of NAB at 2. NAB explains that the education plan will
    include (i) a PSA package consisting of on-air announcements in both
    English and Spanish, a video package to help stations develop
    stories for their newscasts, story ideas and copy for stations to
    use in their newscasts, graphic elements that stations can use to
    create their own spots, 30-second advertisements, half-hour DTV
    educational TV program, crawls, non-English language spots; (ii)
    attending more than 20 regional and national conferences to better
    educate opinion leaders and communities disproportionately impacted
    by the DTV transition; (iii) the launch of a national DTV Road Show
    -- a traveling media event that will reach more than 200 cities
    before February 2009; and (iv) a national DTV Speakers Bureau to
    directly educate consumers on the transition with over 8,000
    speaking engagements nationwide. *Id.* at 6-8.

[^190]: Comments of NCTA at 3-4. NCTA states that the education campaign
    will consist of (i) airing \$200 million of English and Spanish
    language advertising on cable and broadcast television stations and
    networks; (ii) sending cable systems nationwide a customer
    communication "tool kit" which will include invoice messages to be
    included on billing statements, electronic messages for digital
    cable boxes, on-screen scrolls for local origination channels,
    telephone "on-hold" messaging for customer call centers, sample
    emails to be sent to broadband customers, and website "banners" for
    MSO and network websites; (iii) creating local origination and
    on-demand programming to provide a brief tutorial on the benefits of
    the digital transition and how cable can help customers navigate
    through it; (iv) sending educational messages and reminders about
    the transition to customers through monthly statements on invoices
    and 'bill stuffers" in cable bills; and (v) other community outreach
    through brochures, websites, local programming, system-originated
    messaging and other communications with the public;

[^191]: Comments of DIRECTV at 2 (DIRECTV is planning its own
    independent public relations, advertising, and promotional campaigns
    that will run in 2008); Comments of EchoStar at 3 (educational
    outreach efforts include dedicated online information on the DISH
    Network website addressing digital transition issues; informational
    options for customers contacting its call centers; and information
    on Channel 101 of DISH Network).

[^192]: *See, e.g.,* Comments of CEA at 5-7 (consumer education efforts
    include operating various informational websites; distributing a DTV
    Toolkit for lawmakers that contained material for answering
    constituent questions about the transition; plans for producing HDTV
    Handbooks for Retailers and Consumers; developing and producing a
    number of short videos on topics such as the transition, converter
    boxes and HDTV for use on various websites and at retail locations;
    assisting in the development of PSAs; and exhibiting at relevant
    conferences); Comments of LG Electronics at 5-7 (education measures
    directed at both retailers and consumers include online tutorials
    about DTV and HDTV, an online consumer advisory about the transition
    and DTV transition options, enhancing sales training efforts, and
    enhancing its toll-free customer call center with additional
    Spanish-speaking customer service agents)

[^193]: Comments of CERC at 2-3 (voluntary efforts have included
    publishing a comprehensive Consumer Guide to the DTV Transition and
    the CECB Converter Box Program, maintaining DTV Transition
    information on its website, undertaking several joint public
    education efforts with the Commission, working with NTIA to
    facilitate the converter box program; in addition, member companies
    have instituted consumer educational and associate training
    measures).

[^194]: *See, e.g.,* Comments of Verizon at 4 (Verizon is voluntarily
    participating in national efforts to educate consumers about the
    transition, including "brief\[ing\] organizations representing
    consumers, seniors, the disabled, and the civil rights community,
    among others on the broadcast transition and the implementation of
    the converter-box coupon program").

[^195]: Comments of NAB at 12-14.

[^196]: *Red Lion Broadcasting Co., Inc. v. FCC,* 395 U.S. 367, 388
    (1969). *See also Turner Broadcasting System, Inc. v. FCC,* 512 U.S.
    622, 637 (1994).

[^197]: *Zauderer v. Office of Disciplinary Counsel of the Supreme Court
    of Ohio*, 471 U.S. 626, 651-52 (1985) (upholding rule requiring
    attorneys who advertise contingent fee services must disclose that
    client may be liable for costs). *Accord National Electrical
    Manufacturers Ass'n v. Sorrell*, 272 F.2d 104, 113-16 (2d Cir.
    2001), *cert. denied*, 536 U.S. 905 (2002) (rejecting First
    Amendment challenge to state requirement that manufacturers of
    products containing mercury -- including fluorescent lightbulbs --
    include a label warning consumers of that fact and that the product
    should be disposed of as hazardous waste). *See also* *Environmental
    Defense Center, Inc. v. U.S EPA*, 344 F.3d 832, 848-51 (9^th^ Cir.
    2003), *cert. denied*, 541 U.S. 1085 (2004) (upholding requirement
    that providers of storm sewers that discharge into national waters
    educate the public about the impact of storm water discharge on
    water bodies and inform the public about the hazards of improper
    waste disposal).

[^198]: Our PSA and crawl requirements thus bear no resemblance to the
    controversial political compelled speech requirements at issue in
    *West Virginia State Bd. of Ed. v. Barnette*, 319 U.S. 624 (1943)
    (holding unconstitutional a requirement that children in public
    schools salute the American flag), or in *Wooley v. Maynard*, 430
    U.S. 705 (1977) (striking down as unconstitutional the requirement
    that individual drivers display "Live Free or Die" motto on state
    license plate), upon which NAB relies. Comments of NAB at 12-13.
    Quite plainly, informing the public about the upcoming DTV
    transition "is non-ideological; it involves no 'compelled recitation
    of a message' and 'affirmation of belief.'" *Environmental Defense
    Center*, 344 F.3d at 850 (citation omitted).

[^199]: Simply because NCE broadcasters are \"noncommercial entities\"
    does not mean a higher First Amendment standard of scrutiny
    automatically applies.  In this type of case, the critical inquiry
    is whether the speech at issue relates to \"the economic interests
    of the speaker and the audience,\" as was found with the electric
    utility in *Central Hudson,* and as found in this case with respect
    to broadcasters \-- both commercial and NCEs.  *Central Hudson Gas &
    Electric v. PSC of New York, *447 U.S. 557, 561 (1980). 
    Noncommercial stations have an economic interest in ensuring that
    their viewers continue to have access to their programming \-- and
    continue to make donations to support it \-- even though the
    stations do not sell advertising.  In any event, because
    broadcasting is involved, a less rigorous standard of First
    Amendment scrutiny applies in this context.  *See Red Lion,* 395
    U.S. at 388.

[^200]: For this reason, the Court's decision in *Riley v. National
    Fed'n of the Blind of N.C*., 487 U.S. 781 (1988) (*see* Comments of
    NAB at 12), is inapposite. *Riley* involved state regulation of
    speech that the Court found was inextricably intertwined with fully
    protected political speech, see 487 U.S. at 796; the lesser
    standards applicable to commercial speech thus did not apply. We
    also find the circumstances in *United States v.* *United Foods,
    Inc.,* 533 U.S. 405 (2001) (*see* Comments of NAB at 12),
    distinguishable from the situation here. In *United Foods*, the
    Court sustained a compelled-subsidy challenge to an assessment whose
    *only purpose* was to fund generic mushroom advertising, which
    conveyed a message objectionable to respondent. 533 U.S. at 415-16.
    In contrast, the consumer education requirements we impose here are
    designed to further an overarching statutory mandate to move the
    Nation's broadcasting service from analog to digital and to which
    broadcasters are already subject. To the extent that broadcasters
    object that the requirements adopted in his Order effectively and
    unconstitutionally compel them to subsidize government speech by
    "donating" resources necessary for DTV education efforts, that
    objection misses the mark. A recent case that is instructive in this
    regard is *Johanns v. Livestock Marketing Ass'n*, 544 U.S. 550
    (2005). That case arose from an Act of Congress announcing a policy
    of promoting the marketing and consumption of beef products and
    directing the Department of Agriculture to implement this policy.
    The resulting Department of Agriculture order required beef
    producers to contribute to a fund used to promote the marketing and
    consumption of beef products, and the producers challenged the order
    on First Amendment grounds. The Supreme Court rejected the
    challenge, noting that it had "generally assumed, though not yet
    squarely held, that compelled funding of government speech does not
    alone raise First Amendment concerns." *Id*. at 559; *see also Board
    of Regents of Univ. of Wisconsin Sys. v. Southworth*, 529 U.S. 217,
    229 (2000) ("The government, as a general rule, may support valid
    programs and policies by taxes or other exactions binding on
    protesting parties. Within this broader principle it seems
    inevitable that funds raised by the government will be spent for
    speech and other expression to advocate and defend its own
    policies").

[^201]: Comments of Verizon at 9-14; Comments of USTA at 4-11; NTCA
    Reply of NTCA at 3-4.

[^202]: Although no commenter challenged the Commission's constitutional
    authority to impose a requirement on manufacturers to include
    information with television receivers and related devices (*see*
    paragraph 31, *supra*), we find this requirement on manufacturers
    also to be within the permissible bounds of the First Amendment for
    the same reasons indicated above.

[^203]: *See* Comments of Verizon at 10, USTA Comments of USTA at 6.

[^204]: Comments of USTA at 15-16.

[^205]: *Id.* at 12-13.

[^206]: We note that in *Time Warner Entertainment Co. v. FCC,* 93 F.3d
    957, 981-83 (D.C. Cir. 1986), the D.C. Circuit upheld as
    constitutional a provision in the 1992 Cable Act requiring cable
    operators to give 30 days notice to subscribers before offering a
    free preview of premium channels which offer movies rated X, NC-17
    or R. To the extent there was a First Amendment issue at all, the
    court found the provision's minimal burdens entirely reasonable to
    enable parents to decide whether they wished their families to have
    access to such programming. *Time Warner,* 93 F.3d at 981-83.

[^207]: *See* 5 U.S.C. § 604. The RFA, *see* 5 U.S.C. § 601 et. seq.,
    has been amended by the Small Business Regulatory Enforcement
    Fairness Act of 1996 ("SBREFA"), Pub. L. No. 104-121, Title II, 110
    Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract
    With America Advancement Act of 1996 ("CWAAA").

[^208]: 44 U.S.C. § 3507(d).

[^209]: 5 C.F.R. §1320.13.

[^210]: The Small Business Paperwork Relief Act of 2002 ("SBPRA"), Pub.
    L. No. 107-198, 116 Stat 729 (2002) (codified in Chapter 35 of title
    44 U.S.C.); *See* 44 U.S.C. 3506(c)(4).

[^211]: 5 U.S.C. § 801(a)(1)(A).

[^212]: *See* 5 U.S.C. § 553(d)(3) ("The required publication or service
    of a substantive rule shall be made not less than 30 days before its
    effective date, except...as otherwise provided by the agency for
    good cause found and published with the rule."). *See also* 47
    C.F.R. §§ 1.103(a), 1.427(b). As described in this Order, the
    Commission has found that the public must be better informed
    regarding the digital television transition prior to its conclusion
    on February 17, 2009. Because of the limited period of time
    remaining prior to that date, we believe it is essential that
    coordinated, nationwide education efforts begin as soon as possible.
    Without sufficient accurate information to guide decisionmaking,
    consumers may be unprepared for the digital transition when it
    arrives, and may be unable to obtain critical information in
    emergencies after the transition. In such instances, consumers would
    be financially harmed and deprived of service at a critical time.
    Because delay can result in such harms to consumers and because
    affected parties will be afforded a reasonable opportunity to comply
    with the rule, we find that there is good cause to expedite the
    effective date of this rule. For these reasons, we are also
    requesting emergency PRA approval from OMB.

[^213]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. § 601 -- 612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^214]: *DTV Consumer Education Initiative*, MB Docket No. 07-148,
    Notice of Proposed Rulemaking, 22 FCC Rcd 14091 (2007) (DTV Consumer
    Education NPRM).

[^215]: *See* 5 U.S.C. § 604.

[^216]: *See* Report and Order note 4, *supra*.

[^217]: The information must also be made available to customers who
    rely on electronic or automatic billing.

[^218]: *See, e.g.*, Comments of USTA, Comments of Verizon, Comments of
    Qwest, Reply of NTCA/OPASTCO.

[^219]: 5 U.S.C. § 604(b).

[^220]: 5 U.S.C. § 601(3) and (6).

[^221]: 15 U.S.C. § 632.

[^222]: *See* 13 C.F.R. § 121.201, NAICS Code 515120.

[^223]: *Id*. This category description continues, "These establishments
    operate television broadcasting studios and facilities for the
    programming and transmission of programs to the public. These
    establishments also produce or transmit visual programming to
    affiliated broadcast television stations, which in turn broadcast
    the programs to the public on a predetermined schedule. Programming
    may originate in their own studios, from an affiliated network, or
    from external sources." Separate census categories pertain to
    businesses primarily engaged in producing programming. *See* Motion
    Picture and Video Production, NAICS code 512110; Motion Picture and
    Video Distribution, NAICS Code 512120; Teleproduction and Other
    Post-Production Services, NAICS Code 512191; and Other Motion
    Picture and Video Industries, NAICS Code 512199.

[^224]: *See* News Release, "Broadcast Station Totals as of December 31,
    2006" 2007 WL 221575 (dated Jan. 26, 2007) ("*Broadcast Station
    Totals*"); see
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-269784A1.doc>.

[^225]: We recognize that this total differs slightly from that
    contained in Broadcast Station Totals, supra FRFA note 23; however,
    we are using BIA's estimate for purposes of this revenue comparison.

[^226]: "\[Business concerns\] are affiliates of each other when one
    concern controls or has the power to control the other or a third
    party or parties controls or has to power to control both." 13
    C.F.R. § 121.103(a)(1).

[^227]: *See* *Broadcast Station Totals*, *supra* FRFA note 11.

[^228]: *See* 13 C.F.R. § 121.201, NAICS Code 515120.

[^229]: *See* *Broadcast Station Totals*, *supra* FRFA note 11.

[^230]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^231]: Those MVPDs relying primarily or exclusively on satellite
    transmission could also be considered to fall under the "Satellite
    Telecommunications" category. 13 C.F.R. § 121.201 (NAICS Code
    517410).

[^232]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1997 Economic Census, Subject Series -
    Establishment and Firm Size, Information Sector 51, Table 4 at 50
    (2000). The amount of \$10 million was used to estimate the number
    of small business firms because the relevant Census categories
    stopped at \$9,999,999 and began at \$10,000,000. No category for
    \$12.5 million existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^233]: 13 C.F.R. § 121.201 (NAICS Code 517210).

[^234]: 47 C.F.R. § 76.901(e). The Commission developed this definition
    based on its determination that a small cable system operator is one
    with annual revenues of \$100 million or less. *See Implementation
    of Sections of the 1992 Cable Act: Rate Regulation, Sixth Report and
    Order and Eleventh Order on Reconsideration*, 10 FCC Rcd 7393
    (1995).

[^235]: Paul Kagan Associates, Inc., Cable TV Investor, February 29,
    1996 (based on figures for December 30, 1995).

[^236]: 47 U.S.C. § 543(m)(2).

[^237]: *See* Public Notice, "FCC Announces New Subscriber Count for the
    Definition of Small Cable Operator," 16 FCC Rcd 2225 (2001) ("*2001
    Subscriber Count PN*"). In this Public Notice, the Commission
    established the threshold for determining whether a cable operator
    meets the definition of small cable operator at 677,000 subscribers,
    and determined that this threshold will remain in effect until the
    Commission issues a superseding Public Notice. We recognize that the
    number of cable subscribers was recently estimated by the Commission
    to be 65.4 million in June 2005; *see* *Annual Assessment of the
    Status of Competition in the Market for the Delivery of Video
    Programming, Twelfth Annual Report,* 21 FCC Rcd 2503, 2507, ¶ 10
    (2006) ("*2005 Cable Competition Report*"). However, because the
    Commission has not issued a public notice subsequent to the *2001
    Subscriber Count PN,* we propose to rely on the subscriber count
    threshold established by the *2001 Subscriber Count PN*.

[^238]: 47 C.F.R. § 76.901(f).

[^239]: The Commission does receive such information on a case-by-case
    basis if a cable operator appeals a local franchise authority's
    finding that the operator does not qualify as a small cable operator
    pursuant to § 76.901(f) of the Commission's rules. *See* 47 C.F.R. §
    76.909(b).

[^240]: Part 100 of the Commission's rules was eliminated in 2002 and
    now both FSS and DBS satellite facilities are licensed pursuant to
    Part 25 of the rules. *Policies and Rules for the Direct Broadcast
    Satellite Service*, 17 FCC Rcd 11331 (2002); 47 C.F.R. § 25.148.

[^241]: *See, e.g., Application Of DirecTV Enterprises, LLC, Request For
    Special Temporary Authority for the DirecTV 5 Satellite; Application
    Of DirecTV Enterprises, LLC, Request for Blanket Authorization for
    1,000,000 Receive Only Earth Stations to Provide Direct Broadcast
    Satellite Service in the U.S. using the Canadian Authorized DirecTV
    5 Satellite at the 72.5° W.L. Broadcast Satellite Service Location,*
    19 FCC Rcd. 15529 (Sat. Div. 2004).

[^242]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^243]: *Id.*

[^244]: DirecTV is the largest DBS operator and the second largest MVPD,
    serving an estimated 14.67 million subscribers nationwide, as of
    June 2005; *see* *2005 Cable Competition Report*, 21 FCC Rcd at 2540
    ¶ 73.

[^245]: EchoStar, which provides service under the brand name Dish
    Network, is the second largest DBS operator and the third largest
    MVPD, serving an estimated 11.45 million subscribers nationwide, as
    of June 2005. *Id*.

[^246]: *See* 47 C.F.R. § 2.1(c).

[^247]: 13 C.F.R. § 121.201, NAICS code 515210.

[^248]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^249]: *See 2005 Cable Competition Report*, 21 FCC Rcd 2564-65, ¶ 130.

[^250]: *See id.*

[^251]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^252]: *See 2005 Cable Competition Report*, 21 FCC Rcd 2544, ¶ 80.

[^253]: *See* 47 U.S.C. § 573.

[^254]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^255]: *See 2005 Cable Competition Report*, 21 FCC Rcd 2549, ¶ 88. BSPs
    are newer firms that are building state-of-the-art, facilities-based
    networks to provide video, voice, and data services over a single
    network.

[^256]: *See id*. at 2507, ¶ 14.

[^257]: *See id*. at 2549, ¶ 89. WideOpenWest is the second largest BSP
    and 16th largest MVPD, with cable systems serving about 292,000
    subscribers as of June 2005. The third largest BSP is Knology, which
    currently serves approximately 170,800 subscribers as of June 2005.
    *Id*.

[^258]: MDS, also known as Multichannel Multipoint Distribution Service
    ("MMDS"), is regulated by Part 21 of the Commission's rules; *see*
    47 C.F.R. Part 21, subpart K; and has been renamed the Broadband
    Radio Service (BRS); *see* *Amendment of Parts 1, 21, 73, 74 and 101
    of the Commission's Rules to Facilitate the Provision of Fixed and*
    *Mobile Broadband Access, Educational and Other Advanced Services in
    the 2150-2162 and 2500-2690 MHz Bands; Part 1 of the Commission\'s
    Rules - Further Competitive Bidding Procedures; Amendment of Parts
    21 and 74 to Enable Multipoint Distribution Service and the
    Instructional Television Fixed Service Amendment of Parts 21 and 74
    to Engage in Fixed Two-Way Transmissions; Amendment of Parts 21 and
    74 of the Commission\'s Rules With Regard to Licensing in the
    Multipoint Distribution Service and in the Instructional Television
    Fixed Service for the Gulf of Mexico*; 19 FCC Rcd 14165 (2004)
    ("*MDS/ITFS Order"*).

[^259]: ITFS systems are regulated by Part 74 of the Commission's rules;
    *see* 47 C.F.R. Part 74, subpart I. ITFS, an educational service,
    has been renamed the Educational Broadband Service (EBS); *see*
    *MDS/ITFS Order*, 19 FCC Rcd 14165. ITFS licensees, however, are
    permitted to lease spectrum for MDS operation.

[^260]: *See 2005 Cable Competition Report*, 21 FCC Rcd 2565, ¶ 131.

[^261]: *Id*.

[^262]: *See Local Multipoint Distribution Service*, 12 FCC Rcd 12545
    (1997) ("*LMDS Order*").

[^263]: 13 C.F.R. § 121.201 (NAICS Code 515210).

[^264]: MDS Auction No. 6 began on November 13, 1995, and closed on
    March 28, 1996. (67 bidders won 493 licenses.)

[^265]: 47 C.F.R. § 21.961(b)(1).

[^266]: *See ITFS* *Order*, 10 FCC Rcd at 9589.

[^267]: 47 U.S.C. § 309(j). Hundreds of stations were licensed to
    incumbent MDS licensees prior to implementation of Section 309(j) of
    the Communications Act of 1934, 47 U.S.C. § 309(j). For these
    pre-auction licenses, the applicable standard is SBA's small
    business size standards for "other telecommunications" (annual
    receipts of \$12.5 million or less). *See* 13 C.F.R. § 121.201,
    NAICS code 517910.

[^268]: In addition, the term "small entity" under SBREFA applies to
    small organizations (nonprofits) and to small governmental
    jurisdictions (cities, counties, towns, townships, villages, school
    districts, and special districts with populations of less than
    50,000). 5 U.S.C. §§ 601(4)-(6). We do not collect annual revenue
    data on ITFS licensees.

[^269]: The Commission has held two LMDS auctions: Auction 17 and
    Auction 23. Auction No. 17, the first LMDS auction, began on
    February 18, 1998, and closed on March 25, 1998. (104 bidders won
    864 licenses.) Auction No. 23, the LMDS re-auction, began on April
    27, 1999, and closed on May 12, 1999. (40 bidders won 161 licenses.)

[^270]: *See LMDS* *Order,* 12 FCC Rcd at 12545.

[^271]: *Id.*

[^272]: *See* Letter to Daniel Phythyon, Chief, Wireless
    Telecommunications Bureau (FCC) from A. Alvarez, Administrator, SBA
    (January 6, 1998).

[^273]: 13 C.F.R. § 121.201, NAICS code 517110.

[^274]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    page 5-5 (Feb. 2007) (Trends in Telephone Service). This source uses
    data that are current as of October 20, 2005.

[^275]: 13 C.F.R. § 121.201, NAICS code 517110.

[^276]: Trends in Telephone Service at Table 5.3.

[^277]: 13 C.F.R. § 121.201, NAICS code 443112.

[^278]: 47 C.F.R. § 301.6 (2007).

[^279]: U.S. Census Bureau, 2002 NAICS Definitions, "443112 Radio,
    Television, and Other Electronics Stores";
    <http://www.census.gov/epcd/naics02/def/NDEF443.HTM>.

[^280]: 13 C.F.R. § 121.201, NAICS code 443112.

[^281]: U.S. Census Bureau, 2002 Economic Census, Industry Series:
    Retail Trade, Table 4, Sales Size of Firms for the United States:
    2002, NAICS code 443112 (issued November 2005).

[^282]: *Id*. An additional 123 firms had annual sales of \$10 million
    or more. As a measure of small business prevalence, the data on
    annual sales are roughly equivalent to what one would expect from
    data on annual receipts.

[^283]: U.S. Census Bureau, 2002 NAICS Definitions, "454111 Electronic
    Shopping";
    <http://www.census.gov/epcd/naics02/def/NDEF454.HTM#N4541>.

[^284]: 13 C.F.R. § 121.201, NAICS code 454111.

[^285]: U.S. Census Bureau, 2002 Economic Census, Subject Series: Retail
    Trade, Table 4, "Sales Size of Firms for the United States: 2002,"
    NAICS code 454111 (issued Nov. 2005);
    <http://www.census.gov/prod/ec02/ec0244sssz.pdf>. As a measure of
    small business prevalence, the data on annual sales are roughly
    equivalent to what one would expect from data on annual receipts.

[^286]: *Id*. An additional 84 firms had annual sales of \$25 million or
    more.

[^287]: 13 CFR § 121.201, NAICS Code 334310.

[^288]: 13 CFR § 121.201, NAICS Code 334220.

[^289]: 13 CFR § 121.201, NAICS Code 334310.

[^290]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1997 Economic Census, Industry Series -
    Manufacturing, Audio and Video Equipment Manufacturing, Table 4 at 9
    (1999). The amount of 500 employees was used to estimate the number
    of small business firms because the relevant Census categories
    stopped at 499 employees and began at 500 employees. No category for
    750 employees existed. Thus, the number is as accurate as it is
    possible to calculate with the available information.

[^291]: 13 CFR § 121.201, NAICS Code 334220.

[^292]: Economics and Statistics Administration, Bureau of Census, U.S.
    Department of Commerce, 1997 Economic Census, Industry Series -
    Manufacturing, Radio and Television Broadcasting and Wireless
    Communications Equipment Manufacturing, Table 4 at 9 (1999). The
    amount of 500 employees was used to estimate the number of small
    business firms because the relevant Census categories stopped at 499
    employees and began at 500 employees. No category for 750 employees
    existed. Thus, the number is as accurate as it is possible to
    calculate with the available information.

[^293]: *See* paragraph 10, *supra*.

[^294]: 5 U.S.C. § 603(c)(1) -- (c)(4)

[^295]: *See* 5 U.S.C. § 801(a)(1)(A).

[^296]: *See* 5 U.S.C. § 604(b).

[^297]: Changes are indicated in **bold**.

[^298]: NAB states that "This has been successfully used by medical
    doctors who are often called on during the flu season,
    post-traumatic events or other local health related concerns. Adding
    the "expert" ensures people instinctively know they can rely on the
    advice and action suggested by the expert." NAB Ex Parte of February
    11, 2008.

[^299]: For nearly two years, I have repeatedly called on the FCC and
    the NTIA to take leadership in creating an *inter*-agency task
    force. See Keynote Address of Jonathan S. Adelstein, Commissioner,
    FCC, "I Want My DTV: Building a National DTV Consumer Education
    Campaign," Entertainment Technology Policy Summit, Consumer
    Electronics Association (March 15, 2006), at p. 4.
    <http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-264354A1.pdf>.

    Congressional leaders from both political parties have made similar
    requests, leading to the extraordinary step by Senate Chairman
    Inouye and House Chairman Dingell to send a letter to the President
    urging the creation a federal inter-agency task force.

[^300]: "Increased Federal Planning and Risk Management Could Further
    Facilitate the DTV Transition," U.S. Government Accountability
    Office, GAO-08-34 (November 2007) at p. 33.

[^301]: Keynote Address of Jonathan S. Adelstein, Commissioner, FCC, "I
    Want My DTV: Building a National DTV Consumer Education Campaign,"
    at p. 2.

[^302]: This is in sharp contrast to the Commission's urgency to adopt
    the so-called "viewability," dual carriage order on September 11,
    2007. To the surprise of many observers, the Media Bureau circulated
    a draft order three business days after reply comments were due, and
    the Commission adopted final rules within three weeks.

[^303]: GAO-08-43 at 33.