*Pages 1--4 from  Microsoft Word - 39795*
 Federal  Communications  Commission  DA  04-  1976 
 Before  the  Federal  Communications  Commission 
 Washington,  D.  C.  20554 

 In  the  Matter  of 
 Second  Periodic  Review  of  the  Commissions  Rules  and  Policies 
 Affecting  the  Conversion  to  Digital  Television 

 )  ) 
 )  ) 
 )  ) 
 )  ) 
 ) 

 MB  Docket  No.  03-  15 
 RM  9832 

 ORDER 
 Adopted:  June  29,  2004  Released:  June  30,  2004 
 By  the  Chief,  Media  Bureau: 
 1.  The  Media  Bureau  has  received  a  request  for  waiver  of  the  digital  television  (  DTV)  simulcasting  requirements  in  Section  73.624(  f)  1  of  our  rules  filed  on  behalf  of  Educational  Broadcasting 
 Corporation  (  EBC),  permittee  of  noncommercial  television  station  WNET-  DT,  Channel  61,  Newark,  New  Jersey.  2  As  discussed  below,  we  grant  EBCs  waiver  request. 

 2.  Background.  Section  73.624(  f)  of  the  Commissions  rules  requires  DTV  licensees  to  simulcast  50%  of  the  video  programming  of  their  analog  channel  on  their  DTV  channel  by  April  1,  2003.  This 
 requirement  increased  to  a  75%  simulcasting  requirement  on  April  1,  2004,  and  increases  to  a  100%  requirement  on  April  1,  2005.  3  The  simulcasting  requirement  was  intended  to  ensure  that  consumers  enjoy 
 continuity  of  free  over-  the-  air  video  programming  service  when  analog  spectrum  is  reclaimed  at  the  end  of  the  transition.  The  Commission  has  stated  that  it  may  be  difficult  to  terminate  analog  broadcast  service  if 
 broadcasters  show  programs  on  their  analog  channels  that  are  not  available  on  their  digital  channels.  4 
 3.  In  the  Notice  of  Proposed  Rule  Making  initiating  the  second  periodic  review  of  the  transition  to  digital  television,  adopted  January  15,  2003,  the  Commission  sought  comment  on  whether  it  should  retain, 

 revise,  or  remove  the  simulcasting  requirement.  5  Among  other  questions,  the  Commission  asked  whether  broadcasters  have  a  market-  based  incentive  to  simulcast  that  makes  a  simulcasting  requirement 

 1  47  C.  F.  R.    73.624(  f). 
 2  See  Letters  from  Barbara  K.  Gardner  to  Marlene  H.  Dortch,  dated  May  28,  2004  and  June  18,  2004. 
 3  47  C.  F.  R.    73.624(  f)(  i)-(  iii). 
 4  Fifth  Report  and  Order  in  MM  Docket  No.  87-  268,  12  FCC  Rcd  12809,  12833,    56  (1997)  (  Fifth  Report  and 
 Order),  on  recon.,  13  FCC  Rcd  6860,  on  further  recon.,  14  FCC  Rcd  1348  (1998),  recon.  dismissed,  DA  99-  1361  (rel.  July  12,  1999),  recon.  dismissed,  FCC  00-  59  (rel.  Feb.  23,  2000). 

 5  Second  Periodic  Review  of  the  Commissions  Rules  and  Policies  Affecting  the  Conversion  to  Digital  Television, 
 Public  Interest  Obligations  of  TV  Broadcast  Licensees,  18  FCC  Rcd  1279  (2003)  (  Second  DTV  Periodic  Review  NPRM). 
1
 Federal  Communications  Commission  DA  04-  1976 
 2 
 unnecessary.  6  The  Commission  also  asked  whether  the  simulcasting  requirement  is  causing  broadcasters  to  forgo  creative  uses  of  digital  technology,  and  whether  something  less  than  the  ultimate  100%  simulcasting 
 requirement  would  be  sufficient  to  protect  analog  viewers  while  allowing  for  innovation  on  DTV  channels.  The  Commission  also  sought  comment  on  how  to  define  simulcasting,  and  whether  the  current  dates  for  the 
 phase-  in  of  simulcasting  requirements  are  appropriate.  The  Second  DTV  Periodic  Review  NPRM  did  not  propose  to  reduce  or  eliminate  the  minimum  digital  operating  requirements  that  are  currently  pegged  to  the 
 simulcasting  requirements.  7 
 4.  On  April  29,  2003,  the  Media  Bureau  issued  an  Order  granting  noncommercial  educational  (  NCE)  stations  a  six-  month  waiver  of  certain  simulcasting  requirements  until  November  1,  2003.  8  In  this 

 Simulcast  Order  we  found  that,  in  light  of  the  burden  faced  by  NCE  stations  in  complying  with  both  the  construction  and  simulcasting  requirements  at  once,  and  in  light  of  our  pending  re-  evaluation  of  our 
 simulcasting  requirements,  good  cause  existed  to  grant  NCE  stations  a  six-  month  waiver  of  the  simulcasting  requirements  in  Section  73.624(  f).  9  We  also  stated  that  we  would  consider  requests  for  waiver  extensions 
 from  NCE  stations  on  their  individual  merits  if  the  Commission  had  not  yet  acted  on  the  simulcasting  issues  raised  in  the  Second  DTV  Periodic  NPRM  by  November  1,  2003.  The  Media  Bureau  has  granted  several 
 additional  requests  for  waiver  of  the  DTV  simulcasting  requirements  to  give  stations  additional  time  to  acquire  and  install  the  facilities  necessary  to  meet  the  simulcasting  requirement  10  or  to  permit  stations  to 
 experiment  with  innovative  uses  of  the  digital  channel.  11 
 5.  EBC  Waiver  Request.  EBC  requests  a  waiver  of  the  simulcasting  requirements  of  Section  73.624(  f)  pending  the  resolution  of  the  simulcasting  issues  in  the  Second  DTV  Periodic  Review  proceeding 

 to  permit  WNET-  DT  to  offer  a  new  digital  standard  definition  24-  hour  news,  public  affairs,  science,  and 

 6  Id.  at  1302,    66. 
 7  To  the  contrary,  the  Commission  proposed  that,  if  the  simulcasting  requirements  in  Section  73.  624(  f)  were  reduced 
 or  eliminated,  Section  73.  624(  b)(  1)  would  be  amended  to  require  DTV  stations  subject  to  the  May  1,  2002,  or  May  1,  2003,  construction  deadlines  to  air,  by  April  1,  2003,  a  digital  signal  for  an  amount  of  time  equivalent  to  50%  of  the 

 time  they  provide  an  analog  signal.  The  digital  signal  must  be  aired  during  prime  time  hours.  This  minimum  digital  operating  requirement  increased  to  75%  on  April  1,  2004  (requiring  airing  of  a  digital  signal  for  an  amount  of  time 
 equivalent  to  at  least  75%  of  the  time  the  station  airs  an  analog  signal),  and  to  100%  on  April  1,  2005.  Second  DTV  Periodic  Review  NPRM,  18  FCC  Rcd  at  1303,    68. 
 8  Order,  Second  Periodic  Review  of  the  Commissions  Rules  and  Policies  Affecting  the  Conversion  To  Digital 
 Television,  18  FCC  Rcd  8166  (2003)  (  Simulcast  Order).  9 
 Simulcast  Order,  18  FCC  Rcd  at  8168,    6.  10 
 See  Orders,  DA  03-  3507  (rel.  Oct.  31,  2003)  (granting  a  4-  month  waiver  of  Section  73.  624(  f)  until  March  1,  2004  to  South  Texas  Public  Broadcasting  System,  Inc.  (  STPBS));  DA  03-  3663  (rel.  Nov.  17,  2003)  (granting  six-  month 

 waivers  of  the  simulcasting  requirements  until  May  1,  2004  to  three  noncommercial  stations  in  New  Mexico);  DA  04-  1101  (rel.  April  27,  2004)  (granting  an  additional  6  month  waiver  to  STPBS  until  September  1,  2004  ). 
 11  See  Simulcast  Order,  18  FCC  Rcd  at  8169,    8-  10  (granting  a  waiver  of  the  simulcasting  requirements  to 
 Milwaukee  Area  Technical  College  (  MATC)  pending  issuance  of  a  Report  and  Order  in  the  Second  DTV  Periodic  Review  proceeding  to  allow  MATC  to  simulcast  the  analog  programming  of  its  two  NCE  stations  on  one  of  its 

 associated  digital  stations,  and  to  use  the  other  digital  station  to  air  high  definition  programming  full  time).  See  also  Orders,  DA  03-  3499  (rel.  Oct.  30,  2003)  (granting  a  waiver  until  issuance  of  an  order  in  the  Second  DTV  Periodic 
 Review  proceeding  to  permit  Twin  Cities  Public  Television,  Inc.  to  simulcast  the  analog  programming  of  both  of  its  two  NCE  stations  on  one  of  its  associated  digital  stations  and  to  use  the  other  digital  station  to  air  high  definition 
 programming  full  time);  DA  03-  3507  (rel.  Oct.  31,  2003)  (granting  a  waiver  of  the  simulcasting  requirements  to  KTWU-  DT  pending  the  resolution  of  simulcasting  issues  in  the  Second  DTV  Periodic  Review  where  the  station  was 
 providing  a  wide  sampling  of  innovative  high-  definition  programming  as  well  as  a  standard  definition  channel  devoted  to  childrens  programming). 
2
 Federal  Communications  Commission  DA  04-  1976 
 3 
 history  program  service,  Thirteen  World,  in  lieu  of  its  current  simulcast  of  WNETs  analog  signal.  12  EBC  states  that  WNET-  DT  currently  transmits  three  digital  program  streams,  each  24  hours  per  day,  seven  days 
 a  week:  (1)  Thirteen  HD    a  high  definition  program  service  featuring  premiere  and  encore  presentations  of  digital  programming  produced  by  WNET/  Thirteen  and  other  PBS  producers  nationwide;  (2)  Kids  Thirteen   
 a  standard  definition  24-  hour  digital  broadcast  educational  channel  for  children,  the  first  offered  in  the  New  York  metropolitan  area;  and  (3)  Thirteen    the  standard  definition  simulcast  of  analog  WNET  (Channel  13). 

 6.  EBC  proposes  to  substitute  Thirteen  World  for  Thirteen.  According  to  EBC,  of  the  four  primary  cable  providers  in  the  DMA,  only  one  carries  Thirteen,  the  digital  simulcast  of  WNETs  analog 
 channel.  EBC  states  its  understanding  that  the  other  three  providers  do  not  carry  Thirteen  because  it  is  duplicative  of  the  WNET  analog  service  that  each  already  carries  as  an  analog  must-  carry  signal.  EBC 
 states  that  it  expects  that  the  local  cable  systems  will,  however,  carry  Thirteen  World,  thereby  providing  cable  subscribers  with  access  to  an  additional  digital  program  stream.  EBC  argues  that  permitting  WNET-DT 
 to  carry  Thirteen  World  instead  of  Thirteen  is  a  far  more  productive  use  of  the  spectrum  as  it  will  provide  cable  and  over-  the-  air  viewers  with  access  to  an  additional  digital  program  service  without 
 depriving  viewers  of  access  to  WNETs  analog  programming,  which  is  available  over  the  air  and  as  a  must-carry  signal.  EBC  states  that  adding  Thirteen  World  as  a  third  standard  definition  digital  program  stream 
 without  deleting  the  Thirteen  simulcast  would  significantly  degrade  the  quality  of  WNET-  DTs  other  digital  program  streams  unless  costly  additional  multiplexing  and  encoding  equipment  were  purchased  and 
 installed.  EBC  also  states  that,  as  more  programming  becomes  available  in  high  definition,  Thirteen  HD  will  likely  simulcast  HD  versions  of  programs  airing  on  WNET  Channel  13,  permitting  Thirteen  HD  to 
 evolve  into  EBCs  primary  program  stream. 
 7.  We  find  good  cause  to  grant  EBC  a  waiver  of  the  simulcasting  requirements  in  Section  73.624(  f),  pending  the  issuance  of  a  Report  and  Order  in  the  Second  DTV  Periodic  review,  to  permit  it  to 

 implement  the  plan  it  proposes  in  its  waiver  request.  13  By  temporarily  waiving  the  current  rules,  we  are  permitting  EBC  to  experiment  with  innovative  uses  of  its  digital  channel  and  to  offer  additional  digital 
 programming  to  the  community  while  the  Commission  considers  whether  to  retain,  revise,  or  eliminate  the  simulcasting  requirement.  In  view  of  the  continued  pendancy  of  the  Second  DTV  Periodic  Review 
 proceeding  and  EBCs  commitment  to  airing  digital  programming,  grant  of  the  waiver  requested  by  EBC  is  warranted. 

 8.  The  action  we  take  today  does  not  waive  the  existing  rules  regarding  the  minimum  hours  of  operation  on  digital  channels.  Thus,  WNET-  DT  must  air  a  digital  signal  for  an  amount  of  time  equivalent 
 to  at  least  75%  of  the  time  it  provides  an  analog  signal.  In  addition,  a  digital  video  program  signal  must  be  aired  during  prime  time  hours.  The  minimum  digital  operating  requirement  increases  to  100%  on  April  1, 
 2005  (requiring  airing  of  a  digital  signal  for  an  amount  of  time  equivalent  to  at  least  100%  of  the  time  the  station  airs  an  analog  signal).  Stations,  both  commercial  and  NCE,  that  have  been  granted  an  extension  of 
 time  to  construct  their  DTV  facilities  must  comply  with  the  minimum  digital  operation  requirements  in  effect  at  the  time  the  station  commences  digital  operations. 

 9.  IT  IS  HEREBY  ORDERED  that,  pursuant  to  the  authority  contained  in  Section  1.3  of  the  Commissions  rules,  47  C.  F.  R.    1.3,  the  Request  for  Waiver  of  Simulcasting  Requirement  filed  on  behalf 
 of  Educational  Broadcasting  Corporation  IS  GRANTED  to  the  extent  described  herein. 

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

 13  5  U.  S.  C.    553(  b)(  3)(  B).  The  Commission  may  waive  its  rules  where  good  cause  is  shown.  See  47  C.  F.  R.    1.3; 
 Wait  Radio  v.  FCC,  418  F.  2d  1153  (D.  C.  Cir.  1969). 
3
 Federal  Communications  Commission  DA  04-  1976 
 4 
 10.  This  action  is  taken  pursuant  to  authority  delegated  by  Sections  0.61(  h)  and  0.  283  of  the  Commissions  rules,  47  C.  F.  R.    0.  61(  h),  0.283. 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 W.  Kenneth  Ferree  Chief,  Media  Bureau 
4