59500 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 15, 27, 73 and 90

[MB Docket No. 03–15; FCC 04–192] 

Second Periodic Review of the 

Commission’s Rules and Policies 

Affecting the Conversion To Digital 

Television

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In this document, the 

Commission adopts final rules that 

resolve several issues important to the 

rapid conversion of the nation’s 

broadcast television system from analog 

to digital television. The Order adopts a 

multi-step channel election and 

repacking process through which 

broadcast licensees and permittees 

(‘‘licensees’’) will select their ultimate 

DTV channel inside the core. The Order 

also adopts deadlines for replication 

and maximization; provides for flash cut 

transition for satellite stations; 

eliminates simulcasting requirements; 

mandates broadcaster use of PSIP; 

clarifies rules concerning closed 

captioning and v-chip functionalities; 

amends interference protection rules; 

and permits limited use of distributed 

transmission systems.

DATES: Effective November 3, 2004 

except for § 73.1201 which contains 

information collection requirements that 

are not effective until approved by the 

Office of Management and Budget. The 

FCC will publish a document in the 

Federal Register announcing the 

effective date for those sections. The 

incorporation by reference of certain 

publications listed in the regulations is 

approved by the Director of the Federal 

Register, as of November 3, 2004.

FOR FURTHER INFORMATION CONTACT:

Evan Baranoff, Evan.Baranoff@fcc.gov,

(202) 418–7142. For additional 

information concerning the Paperwork 

Reduction Act information collection 

requirements contained in this 

document, contact Leslie Smith, Federal 

Communications Commission, Room 1–

A804, 445 12th Street, SW., 

Washington, DC 20554, or via the 

Internet to Leslie.Smith@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a 

summary of the Federal 

Communications Commission’s Report 

and Order FCC 04–192, adopted on 

August 4, 2004 and released on 

September 7, 2004. The full text of this 

document is available for inspection 

and copying during normal business 

hours in the FCC Reference Center, 445 

12th Street, SW., Washington, DC 

20554. The complete text may be 

purchased from the Commission’s copy 

contractor, Qualex International, 445 

12th Street, SW., Room CY–B402, 

Washington, DC 20554. The full text 

may also be downloaded at: 

www.fcc.gov. Alternative formats are 

available to persons with disabilities by 

contacting Brian Millin at (202) 418–

7426 or TTY (202) 418–7365 or at 

Brian.Millin@fcc.gov.

Paperwork Reduction Act 

This document contains modified 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995 (PRA), Public Law 104–13. It 

will be submitted to the Office of 

Management and Budget (OMB) for 

review under section 3507(d) of the 

PRA. OMB, the general public, and 

other Federal agencies will be invited to 

comment on the modified information 

collection requirements contained in 

this proceeding. 

Summary of the Report and Order 

1. With this Report and Order in our 

second periodic review, we resolve 

several issues important to the rapid 

conversion of the nation’s broadcast 

television system from analog to digital 

television (‘‘DTV’’). The Commission 

conducts these periodic reviews of the 

progress of the digital conversion to 

make any adjustments necessary to our 

rules and policies to ‘‘ensure that the 

introduction of digital television and the 

recovery of spectrum at the end of the 

transition fully serves the public 

interest.’’ In our first DTV periodic 

review, begun in March 2000, we 

addressed a number of issues important 

to the transition. In the Notice of 

Proposed Rulemaking (68 FR 7737, 

February 18, 2003) in this second 

periodic review, we revisited several 

issues addressed in the first periodic 

review and sought comment on 

additional issues that we consider 

necessary to resolve in order to ensure 

continued progress on the digital 

transition. We received numerous 

comments in response to our NPRM. 

2. In this Report and Order, we adopt 

a multi-step channel election and 

repacking process through which 

broadcast licensees and permittees 

(‘‘licensees’’) will select their ultimate 

DTV channel inside the core (i.e., 

channels 2–51). The process will start in 

November 2004 with licensees filing 

certain pre-election certifications. In 

December 2004, licensees currently with 

an in-core channel (whether one or two) 

will make their channel elections in the 

first round of elections. Licensees 

currently with only out-of-core channels 

(i.e., channels 52–69), as well as 

licensees electing to be treated like 

them, will file elections in the second 

round, expected in July 2005. Licensees 

without confirmed elections from the 

previous two rounds will file elections 

in the third round, expected in January 

2006. In a public notice released August 

3, 2004, the Media Bureau implemented 

a freeze on the filing of certain TV and 

DTV requests for allotment or service 

area changes to facilitate the channel 

election and repacking process. The 

freeze includes applications to swap 

channels, but will not apply to 

proposals for negotiated channel 

election arrangements submitted as part 

of the channel election process. The 

freeze is described in section IV. A., 

infra. 

3. We adopt the following replication 

and maximization protection deadlines:

• July 1, 2005—Use-it-or-lose-it 

deadline for DTV licensees affiliated 

with the top-four networks (i.e., ABC, 

CBS, Fox and NBC) in markets 1–100. 

Those licensees that receive a tentative 

DTV channel designation in the channel 

election process on their current digital 

channel must construct full, authorized 

facilities. Those licensees that receive a 

tentative DTV channel designation on a 

channel that is not their current DTV 

channel must serve at least 100 percent 

of the number of viewers served by the 

1997 facility on which their replication 

coverage was based. 

• July 1, 2006—Use-it-or-lose-it 

deadline for all other commercial DTV 

licensees as well as noncommercial 

DTV licensees. Those licensees that 

receive a tentative DTV channel 

designation in the channel election 

process on their current digital channel 

must construct full, authorized DTV 

facilities. Those licensees that receive a 

tentative DTV channel designation on a 

channel that is not their current DTV 

channel must serve at least 80 percent 

of the number of viewers served by the 

1997 facility on which their replication 

coverage was based. 

4. In evaluating service areas we will 

consider the population served within 

the geographic area reached by a 

station’s service area as defined under 

§ 73.622(d) of the Commission’s rules 

less any portions of that area that 

receive interference from other stations. 

Stations failing to meet the replication/

maximization requirements on their 

allotted DTV channels by our deadlines 

will lose interference protection to the 

unserved portions of their current DTV 

service areas, as well as to the 

equivalent unserved portion of their 

NTSC Grade B contours for stations 

using those channels for DTV service 

after the transition occurs. Those 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59501

stations wishing to maximize their 

service area must meet the above 

requirements in order to ‘‘carry over’’

their maximized service area to their incore assignment with a priority over 

Class A stations. We adopt limited 

exceptions for certain stations with outof-core DTV allotments and satellite 

stations, both of which may turn in their 

DTV allotments and ‘‘flash cut’’ to 

digital by the end of the transition 

without losing their replication/

maximization rights. We do not adopt 

an intermediate signal requirement, but 

retain the 7 dB increase in the principal 

community signal coverage required by 

December 31, 2004, for commercial 

stations and December 31, 2005, for 

noncommercial stations. 

5. In this Report and Order, we also 

eliminate, for the time being, the 

requirement that broadcasters air on 

their digital channel the programming 

aired on their analog channel 

(‘‘simulcasting’’). We retain, however, 

the minimum digital operating hours 

requirement currently tied to the 

simulcast rule. We permit satellite 

stations to surrender their paired DTV 

channels and flash cut to DTV by the 

end of the transition. We are also 

reviewing the issues raised in the 

comments concerning the need for 

point-of-sale labeling for digital and 

analog televisions. We are monitoring 

retailer and manufacturer efforts to 

improve information provided to 

consumers and will address this issue in 

a future item. We adopt Program and 

System Information Protocol (‘‘PSIP’’) 

and mandate its use by broadcasters. We 

also adopt new rules and clarify existing 

rules to support the functioning of 

closed captioning and v-chip on digital 

televisions. We approve in principle the 

use of distributed transmission system 

(‘‘DTS’’) technologies and defer to a 

separate ‘‘fast track’’ proceeding the 

development of rules for DTS operation 

and the examination of several policy 

issues related to its use. 

6. Finally, we sought comment in the 

NPRM on how we should interpret 

certain portions of section 309(j)(14) of 

the Communications Act, which 

requires the Commission to reclaim the 

6 MHz each broadcaster uses for 

transmission of analog television service 

by December 31, 2006, unless an 

extension is granted pursuant to the 

criteria established in section 

309(j)(14)(B). Commenters made a 

number of suggestions regarding the 

interpretation of various aspects of 

section 309(j)(14)(B). We are continuing 

to review these comments and to 

consider the issues raised in the NPRM 

regarding section 309(j)(14) and plan to 

address these issues in the near future. 

Background 

7. In January 2001, we released the 

First DTV Periodic Report and Order in 

which we made a number of 

determinations to further the transition. 

Among other things, we established 

channel election and interference 

protection deadlines. We also imposed 

a principal community coverage 

requirement that is stronger than the 

DTV service contour requirement 

adopted as an initial obligation in the 

Fifth Report and Order. This new 

principal community coverage 

requirement, which becomes effective 

December 31, 2004, for commercial 

stations and December 31, 2005, for 

noncommercial stations, was intended 

to improve the availability of service in 

the community of license and to prevent 

undue migration of stations from their 

communities of license. 

8. In the First DTV Periodic MO&O,

we revised a number of the 

determinations made in the First DTV 

Periodic Report and Order. To address 

broadcasters’ concerns that they could 

not meet certain requirements in the 

First DTV Periodic Report and Order,

we decided to allow stations to 

construct initial DTV facilities designed 

to serve at least their communities of 

license, while still retaining for the time 

being DTV interference protection to 

provide full replication at a later date. 

We did not, however, alter our decision 

to require stations to increase their 

signal strengths within their 

communities of license beyond those 

adopted as an initial requirement in the 

Fifth Report and Order. This principal 

community coverage requirement will 

become effective December 31, 2004, for 

commercial stations and December 31, 

2005, for noncommercial stations. We 

also determined that we would continue 

to provide DTV interference protection 

to the maximized service area specified 

in outstanding DTV construction 

permits for facilities in excess of those 

specified in the DTV Table of 

Allotments. Television broadcast 

licensees may seek to expand or shift 

(also referred to as ‘‘maximize’’) their 

DTV allotments by filing applications to 

increase power or change the site or 

height of their antenna in such a way 

that it increases their DTV service area 

in one or more directions beyond the 

area resulting from the station’s DTV 

allotment parameters. The term 

maximization can be confusing in that 

it does not necessarily entail enlarging 

the station’s service area. Rather, it 

might more accurately be characterized 

as alteration of a station’s previously 

allotted contour. Given that the term 

maximization is commonly used, 

however, we will continue to use it 

here. We temporarily deferred the 

replication protection and channel 

election deadlines established in the 

First DTV Periodic Report and Order.

We stated, however, that in the second 

DTV periodic review we would 

establish a firm date by which 

broadcasters must either replicate their 

NTSC coverage or lose DTV service 

protection of the unreplicated areas, and 

by which broadcasters with 

authorizations for maximized digital 

facilities must either provide service to 

the coverage area specified in their 

maximization authorizations or lose 

DTV service protection to the uncovered 

portions of those areas. We also stated 

that we would establish a deadline by 

which broadcasters with two in-core 

allotments must elect which channel 

they prefer to use at the end of the 

transition. We stated that these 

replication, maximization, and channel 

election deadlines may be earlier than, 

but will in no event be later than, the 

latest of either the end of 2006 or the 

date by which 85 percent of the 

television households in a licensee’s 

market are capable of receiving the 

signals of digital broadcast stations.

The reduced build-out requirements 

adopted in the First DTV Periodic 

MO&O allowed broadcasters to save 

both on construction and operating 

costs. In addition, we allowed DTV 

stations subject to the May 1, 2002, or 

May 1, 2003, construction deadlines to 

operate initially at a reduced schedule 

by providing, at a minimum, a digital 

signal during prime time hours, 

consistent with their simulcast 

obligations. Commencing April 1, 2003, 

DTV licensees and permittees were 

required to simulcast 50 percent of the 

video programming of the analog 

channel on the DTV channel. NCE 

stations were granted a six-month 

waiver of the simulcasting requirement, 

but not the minimum hours of operation 

requirement. This requirement stepped 

up to a 75 percent simulcast 

requirement in April 2004, and was to 

increase to a 100 percent requirement in 

April 2005. 47 CFR 73.624(f). Stations 

that were subject to the earlier 

construction deadlines (top four 

network affiliates in the top 30 markets) 

remained subject to the previous rule—

i.e., they must operate their DTV station 

at any time that the analog station is 

operating. For broadcasters unable to 

complete even the minimum permitted 

facilities by the applicable deadline, 

however, we revised our rules to permit 

applicants to seek an extension of time 

to construct a digital television station 

based on financial hardship. To qualify 

59502 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

for an extension of time to construct a 

digital television facility under the 

financial hardship standard, the 

applicant must demonstrate that the 

cost of meeting the minimum build-out 

requirements exceeds the station’s 

financial resources. The applicant must 

provide an itemized estimate of the 

costs of construction and a detailed 

explanation of why its financial 

condition precludes such expenditures. 

9. By permitting stations to elect a 

more graduated approach to providing 

DTV service, we allowed stations to 

focus their energies initially on 

providing digital service to their core 

communities, with the expectation that 

they would increase operating hours 

and expand their coverage area as the 

transition progresses. 

10. On January 27, 2003, we began 

this Second Periodic Review of the 

Commission’s Rules and Policies 

Affecting the Conversion to Digital 

Television. Among other things, we 

sought comment on new channel 

election, replication, and maximization 

deadlines for broadcast television 

service. We also sought comment on a 

number of other issues concerning the 

protection that must be provided to 

incumbent analog and digital 

broadcasters in channels 52–69 (698–

806 MHz, also referred to as the ‘‘700 

MHz band’’) during the transition. The 

Second DTV Periodic NPRM raised a 

number of other issues, including: (1) 

Whether the Commission should retain, 

revise, or remove the requirement that 

licensees simulcast a certain percentage 

of their analog channel programming on 

their DTV channel; (2) whether the 

Commission needs to take steps to assist 

noncommercial television stations in 

the transition; (3) whether labeling 

requirements for TV-related consumer 

equipment would assist the transition 

and protect consumers; (4) whether and 

how the Commission should license 

multiple lower-powered transmitters, 

similar to cellular telephone systems, 

called distributed transmission systems; 

(5) whether broadcasters should be 

required to include Program System and 

Information Protocol (‘‘PSIP’’) 

information within their digital signals 

to ensure the availability of certain 

functions; (6) whether the Commission 

should adopt digital V-chip and closed 

captioning requirements; and (7) what 

station identification requirements 

should apply to digital stations. In the 

Second DTV Periodic NPRM, we also 

invited commenters to update the 

records in the DTV Public Interest Form 

NPRM (MM Docket No. 00–168), 

Children’s DTV Public Interest NPRM 

(MM Docket No. 00–167), and the 

public interest NOI (MM Docket No. 99–

360), and directed that such comments 

be filed in those proceedings. We will 

address any comments on public 

interest issues filed in response to the 

Second DTV Periodic NPRM when we 

finalize the public interest proceedings 

in the near future. 

Progress Report 

11. The transition to digital television 

is a massive and complex undertaking, 

affecting virtually every segment of the 

television industry and every American 

who watches television. The spectrum 

that will be recovered at the end of the 

transition will bring tremendous 

benefits to consumers and the United 

States economy. Twenty-four megahertz 

of spectrum currently used for 

television broadcast channels 63, 64, 68, 

and 69 will be returned and used for 

first responders and other critically 

important public safety needs. The 

remaining 84 MHz in the 700 MHz band 

(currently television broadcast channels 

59–62 and 65–66) have been or will be 

auctioned for use by new wireless 

services. The Commission has been 

continuously involved in the migration 

to digital television by, among other 

things, adopting a standard for digital 

broadcasting, creating a DTV Table of 

Allotments, awarding DTV licenses, 

establishing operating rules for the new 

service, and overseeing the physical 

build-out of digital broadcast stations. 

Build-Out Status 

12. In 1997, the Commission set dates 

for construction and operation of 

broadcasters’ allotted digital broadcast 

facilities. Pursuant to the construction 

schedule set forth in § 73.624(d) of the 

Commission’s rules, affiliates of the top 

four networks in the top ten television 

markets were required to complete 

construction of their digital facilities by 

May 1, 1999; top four network affiliates 

in markets 11–30 by November 1, 1999; 

all remaining commercial television 

stations by May 1, 2002; and all 

noncommercial television stations by 

May 1, 2003. 

13. As of July 28, 2004, 1,658 

television stations in all markets 

(representing approximately 96 percent 

of all stations) have been granted a DTV 

construction permit (‘‘CP’’) or license. A 

total of 1,423 stations are now 

broadcasting a digital signal, 634 with 

licensed facilities or program test 

authority and 789 operating pursuant to 

special temporary authority (‘‘STA’’) or 

experimental DTV authority.

14. In the top 30 television markets, 

all 119 network-affiliated television 

stations are on the air in digital, 110 

with licensed DTV facilities or program 

test authority and nine with STAs. In 

markets 1–10, of the 40 network 

affiliates due to be on the air by May 1, 

1999, all are providing digital service, 

38 with licensed DTV facilities and two 

with STAs. Two stations that were 

licensed and on the air prior to 

September 11, 2001, went off the air due 

to the attack on the World Trade Center. 

WABC–DT and WNBC–DT are now 

back and operating at STA facilities, 

thereby completing the list of stations 

once on the air that have returned to 

operations In markets 11–30, all 79 

network affiliate stations required to be 

on the air by November 1, 1999 are 

providing digital service. Seventy-two 

have constructed their licensed DTV 

facilities and seven are on the air with 

STAs. 

15. Approximately 1,230 commercial 

television stations were due to 

commence digital broadcasts by May 1, 

2002. As of July 28, 2004, 1,018 of these 

stations (83 percent) are broadcasting a 

digital signal. In addition, 

approximately 373 noncommercial 

educational television stations were 

required to commence digital operations 

by May 1, 2003. As of July 28, 2004, 286 

(77 percent) of these stations are 

broadcasting a digital signal. 

DTV Equipment Availability 

16. In the NPRM, we asked several 

questions about the types and 

availability of DTV equipment on the 

market. We invited commenters to 

provide us with up-to-date information 

about the pace of DTV receiver sales and 

the price of such units as well as trends 

in consumer demand for digital 

equipment. 

17. The Consumer Electronics 

Association (‘‘CEA’’) reports that 

manufacturers offer more than 400 

models of HDTV monitors and 

integrated sets, which is three times the 

number from 2000. It reports an 11 

percent drop in HDTV monitor prices 

from March 2002 to March 2003, with 

a larger drop expected over the duration 

of 2003. The consumer electronics 

industry invested $15 billion in DTV 

products from 1998 through 2003. In 

addition, CEA reports that DTV 

products represented more than 10 

percent of all television sales in 2002. In 

the first quarter of 2003, according to 

CEA, 766,000 DTV product units were 

sold, which was up 86 percent over the 

first quarter unit sales of 2002. CEA 

projected that manufacturers would sell 

3.8 million DTV sets and displays in 

2003. 

18. According to the CEA’s website, 

4.1 million DTV products were sold in 

2003 for about $6.1 billion, a 44 percent 

increase in dollar sales and a 56 percent 

increase in unit sales from 2002. More 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59503

than 640,000 digital television sets were 

sold in December 2003 alone. CEA 

predicts that 5.8 million digital sets will 

be sold in 2004, 8.3 million in 2005, 

11.9 million in 2006 and 16.1 million in 

2007. CEA defines DTV products as 

integrated sets and monitors displaying 

active vertical scanning lines of at least 

480p and, in the case of integrated sets, 

receiving and decoding ATSC terrestrial 

digital transmissions. 

Ongoing Commission Efforts To 

Encourage the DTV Transition 

19. Since the First DTV Periodic 

Report and Order, we have taken a 

number of important steps to encourage 

the consumer adoption of digital 

television. On August 8, 2002, the 

Commission adopted the DTV Tuner 

Order requiring that all TV receivers 

manufactured or shipped in the U.S. 

with screen sizes 13 inches and above 

be capable of receiving DTV signals over 

the air no later than July 1, 2007. This 

requirement will be phased in beginning 

with the largest sets in 2004 to minimize 

the cost impact on consumers. Receivers 

with screen sizes 36 inches and above—

50 percent of a responsible party’s units 

must include DTV tuners effective July 

1, 2004; 100 percent of such units must 

include DTV tuners effective July 1, 

2005. Receivers with screen sizes 25 to 

35 inches—50 percent of a responsible 

party’s units must include DTV tuners 

effective July 1, 2005; 100 percent of 

such units must include DTV tuners 

effective July 1, 2006. Receivers with 

screen sizes 13 to 24 inches—100 

percent of all such units must include 

DTV tuners effective July 1, 2007. TV 

Interface Devices, VCRs, and DVD 

players/recorders, etc. that receive 

broadcast television signals—100 

percent of all such units must include 

DTV tuners effective July 1, 2007 The 

DTV tuner requirement was designed to 

facilitate the transition to digital 

television by promoting the availability 

of reception equipment, as well as to 

protect consumers by ensuring that their 

television sets go on working in the 

digital world just as they do today. 

20. In addition to the Order 

mandating DTV tuners, in October 2003, 

the Commission released a Second 

Report and Order and Second Further 

Notice of Proposed Rulemaking 

regarding Commercial Availability of 

Navigation Devices and Compatibility 

Between Cable Systems and Consumer 

Electronics Equipment. This Plug and 

Play Order was another step forward in 

the transition to digital television. 

Under the specifications developed by 

the cable and consumer electronics 

industries and adopted in the Plug and 

Play Order, consumers will be able to 

plug their cable directly into their 

digital TV set without the need of a settop box. The new rules will ease the 

transition to digital TV by promoting 

competition, convenience, and 

simplicity for consumers. 

21. In addition, we adopted a 

redistribution control system, also 

known as the ‘‘broadcast flag,’’ for 

digital broadcast television. The goal of 

the Broadcast Flag Order is to prevent 

the mass indiscriminate redistribution 

of digital broadcast television in order to 

foster the transition to digital TV and 

forestall potential harm to the viability 

of free, over-the-air broadcasting in the 

digital age. We found that the current 

lack of digital broadcast content 

protection could be a key impediment to 

the DTV transition’s progress. 

Specifically, we found that the absence 

of such content protection could lead to 

reduced availability of high value 

content on broadcast television and 

thereby harm the viability of free overthe-air television and slow the DTV 

transition. Given our progress on this 

front, we expect that such programming 

will not be unreasonably withheld from 

over-the-air television.

Issue Analysis 

Channel Election 

22. In the DTV Sixth Memorandum 

Opinion and Order, we determined that, 

after the transition, DTV service would 

be limited to a ‘‘core spectrum’’

consisting of current television channels 

2 through 51 (54–698 MHz). Although 

some licensees received DTV transition 

channels out of the core, and a few have 

both their NTSC and DTV channels 

outside the core, there will be sufficient 

spectrum to accommodate all DTV 

stations at the end of the transition. At 

this stage in the transition it is 

important for licensees with two in-core 

channels to indicate which one of their 

channels they prefer to use for digital 

broadcasting after the transition. In 

addition, we will require licensees with 

one in-core channel to make a decision 

about their in-core channel, and will 

require licensees involved in negotiated 

channel election arrangements with 

other licensees to inform us of these 

arrangements. This step is critical in 

determining what channels will be 

available for stations with two out-ofcore channels and in clearing the out-ofcore spectrum. 

23. In the First DTV Periodic Report 

and Order, we established December 31, 

2003, as the channel election deadline 

for commercial stations. Largely due to 

reports of difficulties some stations were 

facing in meeting our construction 

deadlines, we later decided that this 

date might be too early for some stations 

and suspended the channel election 

deadline, announcing that we would 

use this second periodic review to reestablish the date. We also stated in the 

First DTV Periodic Report and Order 

that we would resolve in a future DTV 

periodic review whether and when 

licensees with one or both of their 

channels out of the core will have the 

opportunity to make a channel election 

as well as the details and procedures for 

the election process. We stated that in

all cases, including licensees with both 

channels in-core, we reserve the right to 

select the final channel of operation in 

order to minimize interference and 

maximize the efficiency of broadcast 

allotments in the public interest. In the 

Second DTV Periodic NPRM, we stated 

that our goal was to establish a channel 

election deadline that gives broadcasters 

with two in-core channels enough time 

to make an informed decision about 

which of their two core channels they 

preferred to use for digital broadcasting, 

while at the same time providing 

licensees with two out-of-core 

assignments the time to plan their 

moves to in-core channels before the 

end of the transition. We proposed that 

commercial and noncommercial 

broadcast licensees with two in-core 

assigned channels make their final 

channel election by May 1, 2005. As an 

alternative, we sought comment on 

whether establishing the same 

deadline(s) for channel election as for 

replication and maximization protection 

and allowing broadcasters more time to 

increase to full power before they 

determine which channel is preferable 

for digital broadcasting would be more 

effective in speeding the transition. 

24. In this Report and Order, we are 

establishing firm deadlines for channel 

elections and a procedure and time 

frame for evaluating, processing and 

confirming the elections. These 

decisions are consistent with the 

majority of the comments received from 

a wide range of participants in this 

proceeding. Most of the commenters 

that address channel election support 

establishing a firm deadline for channel 

election. 

25. We initially established December 

31, 2003, as the channel election 

deadline for commercial stations, but 

suspended the date pending a date to be 

established in this Order. We now agree 

with the commenters, such as CEA and 

KM Companies, which state that the 

industry has had enough time to 

evaluate DTV operations. Circumstances 

are significantly different from the time 

we suspended the channel election 

deadline. At the time, less than 400 of 

the 1,688 full-power stations with 

59504 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

paired DTV channels commenced DTV 

operations; now more than 1,400 

stations have done so. Stations that 

chose to begin service at lower power 

have had an opportunity to operate DTV 

facilities and to test for interference or 

other service problems. DTV stations 

have had significant on-air time to 

conduct the necessary tests and evaluate 

available data in order to make reasoned 

channel election decisions. 47 CFR 

73.624(d) required construction to be 

completed more than two years ago for 

most commercial broadcasters, fourteen 

months ago for noncommercial 

broadcasters, and more than four years 

ago for top-four network affiliated 

broadcasters in the top markets. 

26. We therefore conclude that 

stations are likely to understand the 

performance characteristics of the DTV 

transmission standard and to know 

which channel they prefer to operate on 

after the transition, and reject the option 

that the channel election deadline be 

tied to replication requirements or DTV 

tuner penetration rates. As discussed 

more fully below in section IV.J.2., infra, 

we are adopting the ATSC A/65B 

(‘‘PSIP’’) standard and mandating its use 

by DTV stations. As part of PSIP, a 

broadcaster’s ‘‘major channel number’’

is its NTSC channel number. This major 

channel number is the station’s channel 

identity during and after the transition. 

Therefore, a station’s channel election 

decision will have no effect on the 

assignment of its NTSC channel number 

as its ‘‘major channel number’’ in PSIP. 

Consequently, channel election 

decisions need not be based on 

considering stations’ historic 

‘‘branding’’ to consumers, but instead 

may be based more on the operating 

characteristics of a particular frequency 

and the service populations the stations 

would project for each channel.

27. We find that the multi-step 

approach offered by MSTV has merit, 

and we adopt its proposal with 

modifications. We agree with many of 

the goals set forth by MSTV. First, the 

channel election process should provide 

the best possible DTV service to the 

public. Second, the plan should move 

the DTV transition along without undue 

delay. Third, we seek to create an 

orderly channel election process that 

produces as much clarity and 

transparency as possible. Fourth, 

licensees should be afforded the best 

opportunity for informed choice when 

making their channel election decisions. 

Fifth, we seek to provide every eligible 

station with a channel for operation 

after the end of the transition. Sixth, we 

seek to recognize industry expectations 

by protecting existing service and 

respecting investments already made, to 

the extent feasible. Finally, the channel 

election process should take into 

account overall spectrum efficiency, 

even as we seek to ensure to the extent 

possible that the final channel 

allotments accommodate replicated and 

maximized service areas for those 

stations certifying their intent to serve 

such areas. 

28. To enable us to complete the 

reallocations necessary to accommodate 

all stations with a channel in the core, 

we need to know each in-core licensee’s 

channel preference as soon as possible. 

Therefore, we adopt December 2004, as 

the starting date for channel elections, 

by which time commercial and 

noncommercial broadcast licensees with 

an in-core channel must state their 

channel preference. As of this date, 

commercial and noncommercial 

broadcasters will have had ample time 

after their applicable digital 

construction deadlines to make their 

channel decisions. A December 2004, 

channel election deadline for in-core 

licensees will also provide out-of-core 

licensees time to plan for their move 

into the core. We recognize that this 

date is earlier than the election date 

proposed in the Second DTV Periodic 

NPRM. Given, however, our adoption of 

a multi-step channel election process as 

proposed by MSTV and other necessary 

election procedures, this deadline is 

necessary to arrive at a final election for 

all stations in a timely manner. The 

choice of this election deadline strikes 

an appropriate balance between the 

need for stations to have a sufficient 

amount of time in which to gain 

experience in DTV operation and 

allowing stations that will have to 

move—particularly from out-of-core to 

in-core—to plan for the DTV channel 

conversion. 

Channel Election and Repacking 

Process/New Allotment Process 

29. We adopt a multi-step channel 

election plan based in considerable part 

on the MSTV proposal, but which also 

incorporates certain modifications and 

refinements. Specifically, we adopt a 

seven-step channel election and 

repacking process as follows: (1) Step 1 

addresses any preliminary matters to the 

channel election and repacking process, 

which includes requiring all licensees to 

certify their intent to replicate their 

allotted facilities or maximize their 

already-authorized facilities; (2) Step 2 

is the first round of elections in which 

in-core licensees (i.e., those with at least 

one in-core channel) will file their 

channel election forms; (3) Step 3 

analyzes the interference conflicts 

arising out of the first round and gives 

licensees an opportunity to resolve 

them; (4) Step 4 is the second round of 

elections, at which point the remaining 

licensees—out-of-core only licensees 

who have not yet filed channel election 

forms and those now being treated like 

them—will make their elections; (5) 

Step 5 analyzes the interference 

conflicts arising out of the second round 

elections, at which time staff will seek 

to place as many licensees as possible 

on their election preferences; (6) Step 6 

is the third and final round of elections, 

at which point licensees not yet placed 

will file a final election preference; and 

(7) Step 7 is a Notice of Proposed 

Rulemaking to propose a new DTV 

Table of Allotments. 

a. Step 1: Pre-Channel Election Matters 

30. Database clean up. We agree with 

MSTV that it is important for our 

database to provide a consistent starting 

point. To that end, we ask that licensees 

review the accuracy of their database 

technical information and contact staff 

as quickly as possible with any 

submitted corrections. Any proposed 

corrections to database information 

must be consistent with station 

authorizations, as reflected in the 

Commission’s records. So that we may 

consider any proposed corrections to 

our database, licensees should contact 

staff by October 1, 2004, with any 

concerns. We note that it may not be 

possible to process and consider any 

proposed corrections to database 

information offered after this date. 

Database errors that are discovered after 

this date may be corrected at the 

discretion of Commission staff. To 

ensure that licensees timely review their 

database information, we will require 

them to certify that they have reviewed 

their database information on file with 

the Commission and that it is accurate 

to the best of their knowledge. Licensees 

will make this certification using the 

Pre-Election Certification Form, which 

must be filed by November 2004. The 

Pre-Election Certification Form will also 

include licensees’ certifications of their 

intent to replicate or maximize. While 

MSTV proposes a one-year period 

devoted to ‘‘database clean up,’’ we do 

not believe such an extended period is 

necessary. Moreover, we do not believe 

that there is a need for a formal process 

to invite licensees to submit information 

to ‘‘clean up the database’’ because we 

expect that licensees have informed us 

of any discrepancies as they arose. We 

note that MSTV has notified its 

members about the need to make sure 

their database information is accurate, 

and invited them to contact the 

Commission and MSTV concerning 

questions about database inaccuracies or 

discrepancies. MSTV also asked its 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59505

members to share this notice with other 

stations. As a result of this letter dated 

June 1, 2004, the Commission has 

received three letters from licensees. We 

remind licensees that they have an 

ongoing obligation to ensure the 

accuracy of their database information 

and to apprise us of any discrepancies 

between their authorized facilities and 

their operations.

31. Filing freeze. On August 3, 2004, 

the Media Bureau imposed a freeze on 

the filing of certain TV and DTV 

requests for allotment or service area 

changes to facilitate the channel 

election and repacking process. 

Included in the freeze are: (i) Petitions 

for rulemaking to change DTV channels 

within the DTV Table of Allotments, (ii) 

petitions for rulemaking to establish a 

new DTV channel allotment, (iii) 

petitions for rulemaking to swap in-core 

DTV and NTSC channels; 

Notwithstanding the freeze, negotiated 

channel election arrangements may be 

sought during the election process. (iv) 

applications to change DTV channel 

allotments among two or more 

licensees; (v) petitions for rulemaking 

by licensees/permittees to change NTSC 

channels or communities of license; (vi) 

applications to maximize DTV or analog 

TV facilities; and (vii) certain Class A 

station applications. Notwithstanding 

this freeze, licensees are not prevented 

from filing modification applications 

that would resolve international 

coordination issues. We do this to 

alleviate a burden on those licensees 

who are actively working to resolve 

their international coordination issues, 

or when a broadcast station seeks a new 

tower site due to the events of 

September 11, 2001. In addition, the 

Media Bureau will consider requests for 

waiver of the freeze on a case-by-case 

basis. Such a filing freeze is necessary 

to provide a stable baseline for 

developing a final DTV Table of 

Allotments. The freeze is discussed 

more fully in section IV.A.2., infra. 

32. Table of station assignment and 

service information. As a preliminary 

matter to the channel election process, 

the Media Bureau will issue a table of 

station assignment and service 

information (‘‘table of station 

information’’) for use by TV station 

licensees and other interested parties so 

they may determine and evaluate the 

DTV service populations to be used by 

the Commission to process stations’

channel elections and create the new 

DTV table of allotments. In developing 

the table of station information, the 

Commission will generally use the DTV 

and NTSC station locations and 

facilities authorized by license or 

construction permit (CP). Where station 

records include both a construction 

permit and license, we will use the 

construction permit given that the 

changes permitted in the construction 

permit reflect the station’s facilities for 

the future, as of October 1, 2004, a 

month before TV station licensees will 

be asked to file their Pre-Election 

Certification Forms. The Pre-Election 

Certification Form will require all 

broadcast licensees and permittees to 

certify to (1) the accuracy of their 

database information on file with the 

Commission, which will be reflected by 

the table; and (2) their intent to replicate 

or maximize pursuant to their existing 

authority, as will be defined by the 

table. We will issue this table of station 

information prior to the filing of the PreElection Certification Forms. (We note 

that the Media Bureau imposed a freeze 

on the filing of certain TV and DTV 

requests for allotment or service area 

changes in anticipation of generating 

this table of station information.) The 

data provided in the table of station 

information will be based on the 

technical information on file in the 

Commission database. Licensees should 

review the table of station information 

before making their pre-election 

certifications. We will update the table 

of station information to reflect service 

areas based on certifications to build to 

replication or maximization facilities 

and any other changes to station 

facilities prior to the first round election 

date. 

33. Station service evaluations based 

on currently authorized operations. As 

noted above, we will use current 

authorized station operations to 

determine and evaluate the DTV service 

populations in processing channel 

elections and creating the new DTV 

table of allotments. We believe that 

basing station service evaluations on 

current authorized station operations 

will more accurately reflect the current 

viewer access to station services than 

the parameters specified for the initial 

DTV Table of Allotments in 1997, and 

will at the same time preserve the 

service areas of those stations that 

constructed and are operating in 

accordance with the DTV buildout 

schedules. Consistent with MSTV ex 

parte submissions and discussions, we 

will define new interference as 

interference beyond that caused by 

NTSC and DTV operations, as described 

by the table of station information, in 

evaluating new interference to posttransition TV operations. 

34. On this basis, stations that 

operate, or plan to operate as authorized 

by a CP, in accordance with the 

facilities specified in the initial DTV 

Table of Allotments will have the same 

service as that contemplated in the DTV 

Second MO&O, less any changes in 

interference received from new stations 

or from stations that changed their 

operations. Stations that have departed 

from their initial DTV allotment 

facilities (including location and/or 

channel changes) or maximized (or in a 

few cases reduced) their operations 

through such modifications and new 

stations, will have service as authorized 

in those changes or new authorizations, 

again less interference from other 

stations. Stations granted a DTV channel 

change are generally authorized 

facilities that they requested if such 

operations do not cause new 

interference to other stations that exceed 

the de minimis interference standards of 

§ 73.623(c)(2) of the rules, 47 CFR 

73.623(c)(2). In some cases the new 

channel allotment facilities cover more 

area than the stations were authorized 

on their initial DTV channel allotment, 

while in other cases the stations cover 

less area. In the case of stations whose 

applications for maximization of DTV 

facilities are delayed in processing due 

to international negotiations, we will 

consider the service that would be 

provided based on those applications 

pending the resolution of those 

coordination issues and authorizations 

of specific facilities. All analyses of 

service and reduction of service due to 

interference will be based on population 

only. We will use population data from 

the year 2000 census in determining the 

populations served by stations and the 

impact of interference on stations’

service. In this regard, the more up-todate population data from the year 2000 

census will provide a more accurate 

indication of the station service and 

impacts of interference on that service 

than the older year 1990 population 

data used in computing the service data 

for the initial DTV Table of Allotments.

35. Border coordination. We agree 

with commenters that it is important to 

resolve international coordination 

issues as quickly as possible. To that 

end, we have reduced the number of 

coordination conflicts from several 

hundred to fewer than 50. We cannot, 

however, delay the implementation of 

our channel election and repacking 

process pending resolution of every 

outstanding case of Canadian or 

Mexican coordination. Parties with 

pending applications that are being 

delayed due to coordination issues are 

advised that while we will make every 

effort in negotiating on their behalf, we 

can provide no assurance that such 

issues will be resolved favorably. In 

nearly all of the remaining cases, the 

licensee can build a checklist facility. 

59506 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

Only a few stations cannot build 

checklist facilities because of border 

coordination issues. This list includes: 

WPXJ–DT, Batavia, NY (allotted DTV 

53); WNYO–DT, Buffalo, NY (allotted 

DTV 34); and KAJB–DT, Calipatria, CA 

(allotted DTV 50). In some cases, 

additional coordination actions will be 

needed to provide in-core channel 

assignments. If an election would 

require international coordination, then 

that channel may be elected at 

authorized replicated and maximized 

facilities, subject to the outcome of the 

international coordination. We 

recognize that maximization may cause 

coordination issues and that successful 

coordination may require reduction to 

replication facilities We encourage 

stations in markets or regions that 

require coordination to work together to 

identify in-core channels that are 

feasible. Such arrangements among 

stations will be accepted as part of the 

channel election process and will be 

accorded great weight in determining 

final assignments. The Commission will 

continue to work with licensees to 

resolve remaining international 

coordination issues as part of the 

process of developing new DTV 

allotments and will consider a station’s 

border coordination efforts when 

prioritizing channel assignments. 

Border coordination issues are 

discussed more fully below in section 

IV.A.3., infra. 

36. We are aware of some stations 

with a DTV channel outside of the core 

and an analog channel inside the core 

for which, according to the stations, the 

analog channel is not available for 

digital transmission because of 

international coordination issues with 

Canada. These stations should indicate 

this fact on their channel election form 

and attach a brief explanation of why 

their in-core channel is not available for 

digital use under the U.S.—Canada 

Letter of Understanding, which governs 

modifications of the initial DTV table of 

allotments within 400 km of the U.S./

Canadian border. Stations with an outof-core DTV channel and an in-core 

analog channel that is not available for 

digital transmission because of 

international coordination issues will be 

treated like stations with two out-of-core 

channels. 

Certifications for replication and 

maximization. We adopt a requirement, 

that stations that intend to fully 

replicate or maximize certify this 

commitment to the Commission by 

November 2004, subject to sanctions if 

the station fails to meet its commitment. 

In the Pre-Election Certification Form, 

licensees will certify their intent to 

build-out their allotted ‘‘replication’’

facilities or already-authorized 

‘‘maximization’’ facilities. Licensees are 

reminded that false certifications may 

result in fines and loss of license. 

Moreover, where stations do not buildout to their certified facilities, we will 

limit their station’s interference 

protection to the service population 

within the noise-limited contour 

predicted from the station’s operating 

facilities, as of the certification date. (In 

other words, a licensee’s failure to 

replicate or maximize to the extent it 

certified will result in the loss of 

interference protection to those service 

areas not replicated or maximized.) 

Licensees will be required to replicate 

and maximize by the replication/

maximization deadline (i.e., July 1, 

2005, for affiliates of the top-four 

networks in markets 1–100; and July 1, 

2006, for all other stations). Further, 

licensees may only certify to maximize 

pursuant to their existing authority to 

do so. Channel elections will be 

evaluated at this stage based on the 

coverage that is predicted from the 

certified authorized maximization or 

certified replication facilities. We 

anticipate that many licensees will have 

an opportunity to enlarge their final 

DTV allotment coverage after the final 

table has been adopted, pursuant to the 

rules for changes and applications 

established then. In developing rules for 

resolving or avoiding conflicts between 

stations requesting such coverage 

enlargements, we will consider giving 

priority to stations that can demonstrate 

that they had built-out their full 

authorized DTV facilities and had been 

unable to maximize on their transition 

DTV channel. 

37. Such certifications must be filed 

with the Commission in advance of the 

channel election date so that all 

licensees will be able to consider the 

commitments of other licensees in their 

channel elections. To provide sufficient 

time for this information to be useful, 

we will require that such certifications 

be filed in November 2004. Stations that 

do not submit certification forms by this 

date will be presumed not to intend to 

replicate or maximize, and such 

decision will be taken into account in 

determining final channel assignments. 

More specifically, in establishing the 

authorized facilities and service area for 

a station not certifying to fully replicate 

or maximize, we will provide for the 

station to serve the same geographic 

area served by its existing DTV 

facilities, operating as of the 

certification date. Certifications must be 

filed electronically and will be made 

accessible to the public. 

38. Election Forms. All broadcast 

licensees participating in the channel 

election process are required to file a 

pre-election certification form and a 

channel election form. Stations that do 

not timely submit a pre-election 

certification form will be presumed both 

(i) to agree that their database technical 

information on file with the 

Commission is accurate and complete, 

and (ii) not to intend to replicate or 

maximize, and such decision will be 

taken into account in determining final 

channel assignments. Stations that do 

not timely submit a channel election 

form will be assigned a post-transition 

DTV channel by the Commission prior 

to the end of the channel election 

process. Appendices E and F to this 

Report and Order illustrate the forms to 

be used in the channel election and 

repacking process. We have developed 

the following six forms: (1) Pre-Election 

Certification Form; (2) First Round 

Election Form; (3) First Round Conflict 

Decision Form; (4) Second Round 

Election Form; (5) Second Round 

Conflict Decision Form; and (6) Third 

Round Election Form. These forms, 

which are adopted by this Report and 

Order, must be filed electronically and 

will be made accessible to the public on 

the Commission’s database.

b. Step 2: First Round of Elections; 

Election Forms Filed 

39. We set December 2004 as the date 

for the first round of channel elections. 

Although we proposed in the NPRM an 

election date of May 1, 2005, we believe 

that the broadcasters making first round 

elections are able to make an informed 

statement of their final channel 

preference at this time. Moreover, given 

that we will be adopting a multi-step 

and multi-round approach that will 

occur over the course of several months, 

we find that we must begin the process 

as soon as possible in order to effectuate 

a timely transition. 

40. In this first round, licensees with 

in-core channels (i.e., licensees with 

two in-core channels and licensees with 

one in-core channel) will make their 

channel elections by filing a First Round 

Election Form. The First Round Election 

Form will provide up to three options 

for in-core licensees: (1) Elect one of its 

currently assigned in-core channels; (2) 

elect a negotiated channel pursuant to 

an agreement with another licensee(s); 

or, (3) if (i) a one-in-core licensee, or (ii) 

a two-in-core licensee with two low 

VHF channels (i.e., channels 2–6), then 

such a licensee may choose to make no 

election in the first round and instead 

elect to participate in the second round 

of elections. Licensees in this round 

may not elect a channel that is not 

assigned to them, unless rights to that 

channel are being sought through a 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59507

proposed negotiated channel election 

arrangement. Licensees that have 

negotiated channel election 

arrangements with other licensees must 

obtain Commission approval for the 

proposed channel changes in the 

arrangement in order for their election 

of a negotiated channel to be considered 

valid. Upon completion of the first 

round and subsequent interference 

conflict analysis, each licensee electing 

an in-core channel will receive an 

informal tentative channel designation, 

to the extent possible. Licensees with 

two in-core channels (including those 

with two low VHF channels (i.e., 

channels 2–6). We will permit two incore low VHF licensees to release both 

of their channels in the first round and 

agree to be treated as two out-of-core 

licensees and participate in the second 

round of elections. Licensees that 

choose to elect, and which receive a 

tentative channel designation for, their 

in-core low VHF channel will have an 

opportunity to make an alternate 

election in the third round) will make 

the first channel elections, choosing 

between their two in-core channels. 

Licensees with only one in-core channel 

will be required to elect whether to keep 

their in-core channel, or turn it in and 

be treated like a licensee with two outof-core channels. We believe that, by 

this time, one in-core licensees should 

know whether they intend to keep their 

in-core channel. This will further 

increase the number of channels 

available for future selection. Moreover, 

we are including in this one in-core 

licensee category those licensees with 

only one channel (i.e., in-core 

singletons). 

41. Negotiated Channel Election 

Arrangements. As an alternative to the 

channel election process, licensees may 

negotiate channel election arrangements 

with other stations. Such negotiated 

arrangements are subject to Commission 

approval, including particular 

consideration of the effect on the 

channel election rights of, and 

interference impact on, any licensee not 

a party to the negotiated channel 

election agreement. ‘‘Channel 

swapping’’ is an existing practice with 

beneficial results for the marketplace 

and consumers, and these channel 

election arrangements are similar in 

nature to them. We do not anticipate 

that channel election arrangements are 

likely to have anti-competitive effects. 

We will, however, review them for such 

effects. All licensees involved in a 

negotiated channel election arrangement 

must file a channel election form. 

Licensees will be asked to indicate their 

negotiated channel elections on their 

channel election forms. To select the 

channel they would use for digital 

operations after the transition if the 

negotiated channel election arrangement 

is approved, as well as the channel they 

would elect if the negotiated 

arrangement is not approved. Stations 

involved in the negotiated channel 

election arrangement must satisfy our 

DTV interference rules with regard to 

their relationship to other stations not 

involved in the negotiated arrangement. 

Evidence of a signed negotiated channel 

election arrangement and technical 

engineering information demonstrating 

compliance with § 73.623(g) of the 

Commission’s rules must be submitted 

to the Commission to enable us to 

consider negotiated channel election 

arrangement requests. In order to 

demonstrate the validity of their 

negotiated channel election 

arrangements, licensees will be required 

to provide the name(s) and call sign(s) 

of the other licensees involved in the 

arrangement. Licensees may, upon 

request, be required to provide a copy 

of the negotiated channel election 

agreement and/or engineering 

information to the Commission. The 

Commission may contact proponents of 

these arrangements, as may be 

necessary. We will review all 

agreements to assure compliance with 

the public interest and will not approve 

agreements proposing the acceptance of 

significant levels of interference or loss 

of service.

42. Election of DTV in-core channel. 

We conclude that if a two in-core 

licensee elects its DTV channel, then its 

NTSC channel will be released. By 

‘‘release,’’ we mean that the licensee 

relinquishes its post-transition rights to 

this channel and that the channel now 

becomes available for future selection 

by another licensee. The DTV channel 

will be ‘‘locked in.’’ By ‘‘locked in,’’ we 

mean that the channel assignment is 

confirmed. However, the amount of 

interference the station is subjected to 

may increase to some extent in the Final 

Table in an effort to provide all 

licensees with an in-core DTV channel 

that replicates their analog service, to 

the extent the station has certified intent 

to so replicate. In other words, even 

though channels may be ‘‘locked in,’’

licensees may be required at the end of 

the allotment process to accept 

interference resulting from 

establishment of DTV stations at full 

replication facilities to accommodate all 

stations with a channel in the DTV core 

spectrum. This system of ‘‘locking in’’

channels can be viewed as making an 

informal tentative channel designation 

to that licensee. While informal 

tentative channel designations in 

themselves cannot confer legal rights to 

licensees, they do come with a heavy 

presumption that these informal 

designations will be the channel 

assignments proposed in the new DTV 

Table of Allotments. (i.e., channel will 

be protected. By ‘‘protected,’’ we mean 

that a subsequent election may not 

cause an interference conflict to a 

‘‘locked in’’ channel to the extent the 

‘‘locked in’’ station’s coverage is 

certified, except against interference 

that may result from establishment of 

DTV stations at the end of the allotment 

process at full replication facilities to 

accommodate all stations with a 

channel in the DTV core spectrum. An 

interference conflict would occur where 

interference exists any greater than 

existing interference plus no more than 

0.1 percent additional reduction in 

service population. For purposes of this 

process, we will use this 0.1 percent 

interference protection standard 

proposed by MSTV. We agree with 

MSTV that ‘‘protect’’ in this context 

should mean that a subsequent election 

may not cause interference any greater 

than existing interference plus no more 

than 0.1 percent additional reduction in 

service population.) To the extent 

certified against future elections, except 

against interference that may result from 

establishment of DTV stations at full 

replication facilities to accommodate all 

stations currently allotted an out-of-core 

DTV channel with a channel in the DTV 

core spectrum). We recognize that a 

station that ends up keeping its in-core 

DTV channel as its final allotment might 

not have to incur any additional 

construction expenses. In contrast, a 

station that ends up operating in digital 

on its analog allotment would need to 

incur expenses to change its DTV 

operation to another channel. To allow 

stations to minimize the cost of this 

phase of the DTV transition whenever 

possible, we will afford the highest 

priority in the allotment process to 

maintaining existing DTV allotments 

selected on the channel election forms. 

43. Election of NTSC in-core channel. 

If a two in-core licensee elects its NTSC 

channel, then Commission staff will 

determine whether and to what extent 

DTV operations on this channel would 

cause new interference to the service 

populations of other DTV stations. For 

purposes of this analysis, DTV service 

populations will be those resulting from 

the allotted ‘‘replication’’ facilities or 

authorized ‘‘maximization’’ facilities, as 

certified. This interference conflict 

analysis will take place in Step 3, when 

we intend to resolve, to the extent 

possible, the interference conflicts 

59508 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

resulting from the first round of 

elections. 

44. We do not expect there to be 

widespread difficulties in fitting 

replicated DTV service into paired 

NTSC channels, as paired DTV channels 

were initially designed to be the best 

approximation of the NTSC Grade B 

contours. However, the interference 

relationships between DTV to DTV and 

NTSC to DTV operations are such that 

a DTV station would have a 1 dB greater 

interference impact on another cochannel DTV station than a NTSC 

station and an 8 dB greater impact on 

adjacent channel DTV station than an 

NTSC station, assuming the same 

coverage and locations for all stations. 

Thus, it is likely that in some cases DTV 

operation on an associated NTSC 

channel could result in new 

interference. In such cases, it may be 

possible to resolve the new interference 

by reducing the DTV station’s operating 

facilities. We would allow stations to 

make such adjustments to address such 

conflicts. For those stations electing 

their NTSC channel for their eventual 

in-core DTV channel, we will attempt to 

accommodate the broadcasters’

authorized maximized facilities into the 

NTSC ‘‘destination’’ channels. As 

discussed in section IV.B., infra, except 

for stations with out-of-core DTV 

channel allotments, stations failing to 

serve their authorized maximized 

service area by our replication/

maximization deadlines will lose 

interference protection to any unserved 

areas. In addition, the Community 

Broadcast Protection Act of 1999 

provides an interference protection 

priority to Class A TV stations with 

respect to certain maximized DTV 

facilities. Specifically, Class A stations 

are entitled to a protection priority with 

respect to those maximized DTV 

facilities, including technically 

necessary adjustments to those facilities, 

for which an applicant had not filed an 

application for maximization nor a 

notice of its intent to seek such 

maximization by December 31, 1999, or, 

if a notice of intent was timely filed, did 

not also file a bona fide application for 

maximization by May 1, 2000. 47 U.S.C. 

336(f)(1)(D). See also, 47 CFR 

73.623(c)(5). Thus, DTV broadcasters 

that did not meet these statutory filing 

deadlines are not entitled to carry over 

to their NTSC channels maximized DTV 

facilities that would conflict with a 

Class A TV station. See Class A Order, 

15 FCC Rcd at 6379, para. 60. However, 

if a broadcaster’s maximized DTV 

service area cannot be carried over to an 

NTSC channel or another DTV channel 

as part of a channel swap arrangement 

or it is not otherwise willing to reduce 

its operations, we may find it necessary 

to base its use of the new channel on its 

replication facilities or to assign the 

broadcaster another channel in the 

market that can accommodate its 

maximized facilities as part of the 

process of generating a new Table. 

45. Elections by one in-core licensees. 

Licensees with only one in-core channel 

(including singletons Singletons’ or 

‘‘single-channel licensees’’ refers to 

those licensees that do not have a 

second or ‘‘paired’’ channel to convert 

to DTV. In 1998, in the ‘‘Service 

Reconsideration Order,’’ the 

Commission decided to afford new 

NTSC permittees, whose applications 

were not granted on or before April 3, 

1997, and who were therefore not 

eligible for an initial DTV paired 

license, the choice to immediately 

construct either an analog or a digital 

station on the channel they were 

granted. Pursuant to this policy, the 

Commission specified that these new 

NTSC permittees, which we now 

sometimes refer to as ‘‘singletons’’ or 

‘‘single-channel licensees,’’ would not 

be awarded a second channel to convert 

to DTV, but could, instead, convert on 

their single 6 MHz channel. It was 

further decided that if they choose 

initially to build an analog station, they 

may request Commission authorization 

to convert to DTV at any point during 

the transition, up to the end of that 

period), including those with low VHF 

channels (2–6), must elect to either (1) 

keep their in-core channel or (2) release 

their in-core channel in favor of being 

treated like a licensee with two out-ofcore channels. MSTV proposed that we 

assume that such stations would decide 

to remain on their in-core channels; 

however, we find that it is more 

efficient to determine which in-core 

channels are unacceptable to these 

stations so that those channels can 

become available for future elections 

and to ensure that those stations are 

given an opportunity to identify a 

workable channel.

46. We expect that in most cases 

stations with only one in-core channel, 

where the channel is a DTV channel, 

will choose to remain on that channel. 

In such cases, that channel will be 

‘‘locked-in,’’ as defined above. If the one 

in-core licensee chooses not to elect its 

in-core DTV channel, then that channel 

will be released, and the licensee will be 

treated as a two out-of-core licensee. In 

being treated like a two out-of-core 

licensee, the licensee will be required to 

file a new election form in the second 

round of elections. Licensees with only 

one in-core channel (including 

singletons), where the in-core channel is 

the NTSC channel, must elect to either 

(1) keep their in-core NTSC channel or 

(2) release their in-core NTSC channel 

in favor of being treated like a two outof-core licensee. If a one in-core licensee 

elects its NTSC, then Commission staff 

will determine (in Step 3’s ‘‘interference 

conflict analysis’’) whether and to what 

extent this NTSC channel would cause 

new interference to the service 

populations of DTV stations. In light of 

their status, in-core NTSC channels of 

one in-core licensees will be afforded a 

high priority in permitting their 

conversion to a DTV channel. 

47. Later opportunity to change 

elections of low VHF channels and 

channels subject to international 

coordination. Licensees electing, and 

receiving a tentative channel 

designation for, a low VHF channel or 

a channel subject to a pending 

international coordination issue will be 

permitted to seek an alternate tentative 

channel designation in the third round 

of elections. See discussion in section 

IV.A.1.f., infra. 

48. No first round election for two 

out-of-core licensees. Licensees with 

two out-of-core channels will not make 

an election in the first round. Requiring 

two out-of-core licensees to elect at this 

time would be premature and 

unnecessarily limit the channel choices 

available to these licensees. We disagree 

with MSTV that it would be beneficial 

for two out-of-core licensees to make 

elections in the first round a month after 

the two in-core licensees have elected. 

We note, for example, that under 

MSTV’s plan two out-of-core licensees 

would not know at this time whether a 

two in-core licensee selecting its NTSC 

channel in the first round would 

ultimately obtain that election. This 

situation would not be resolved until 

Step 3, through interference conflict 

analysis MSTV would have two out-ofcore licensees protect both channels of 

two-in-core licensees electing their 

NTSC channel, effectively denying two 

out-of-core licensees’ the ability to 

select certain otherwise available 

channels. Accordingly, as will be 

discussed below, two out-of-core 

licensees will make their elections in 

the second round, at which point two 

in-core and one in-core licensees may 

already have a channel ‘‘locked in’’ (as 

defined above) and have released an incore channel, making that in-core 

channel available for future selection. 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59509

a. Step 3: First Round Interference 

Conflict Analysis and Tentative 

Designations; 

Conflict Forms Filed 

49. The interference conflict analysis 

contemplated in our Step 3, which we 

expect to complete by February 2005, 

will determine whether and to what 

extent an elected in-core NTSC channel 

would cause interference to an existing 

or proposed in-core DTV channel. Using 

objective computer analysis, we will 

identify and communicate interference 

conflicts arising from the first round. 

We agree with MSTV that knowing what 

channels are available for selection in 

the second round is important in order 

to provide second round electors with 

an informed choice among all channels 

remaining after completion of the first 

round. Accordingly, through the 

interference conflict analysis process, 

we will set tentative channel 

designations for in-core licensees with 

channels that have been elected in the 

first round and ‘‘locked in.’’

50. Specifically, through our first 

round interference conflict analysis, 

Commission staff will determine 

whether and to what extent an elected 

in-core NTSC channel causes an 

interference conflict to: (1) An in-core 

DTV channel that was elected in the 

first round; (2) an in-core DTV channel 

of any licensee that elected its NTSC 

channel in the first round that still may 

need to revert to its DTV channel; or (3) 

another elected in-core NTSC channel 

in the first round. We note that the 

nature of the interference conflict differs 

with respect to an elected NTSC 

channel of a one-in-core station, which 

enjoys a special status, as opposed to an 

elected NTSC channel of a two-in-core 

station, which has the option to change 

its election to its currently assigned 

DTV channel. 

51. Upon completion of our first 

round interference conflict analysis, the 

Media Bureau will issue a letter to each 

licensee determined to cause an 

interference conflict(s). Licensees with 

interference conflicts will have 60 days 

from the date of this conflict notification 

letter in which to file their First Round 

Conflict Decision Forms, indicating how 

they intend to resolve their interference 

conflict. These First Round Conflict 

Decision Forms, which we expect to be 

filed in April 2005, will provide 

licensees with the opportunity to decide 

whether to maintain their in-core NTSC 

election, change their election to their 

in-core DTV channel, or, if a one-in-core 

licensee, elect to participate in the 

second round. Two in-core licensees 

may not release both in-core channels to 

participate in the second round of 

elections, except for the case of two incore low VHF channels. We note that 

two in-core licensees already have the 

advantage of having an in-core DTV 

channel. Licensees can maintain their 

in-core NTSC election if they resolve 

their interference conflict by (1) 

agreeing to accept interference and 

reduce facilities; In choosing this 

option, licensees would have to agree to 

accept interference or reduce facilities, 

as necessary. Licensees must certify that 

they will resolve their interference 

conflict(s), and will be required to 

demonstrate such by submitting 

technical engineering data. and/or (2) 

negotiating an agreement (i.e., conflict 

resolution agreement) with the 

licensee(s) with which they are in 

conflict. In choosing this option, 

licensees would have to negotiate a 

settlement with the licensee(s) with 

which they are in conflict. Licensees 

must certify that they will resolve their 

interference conflict(s), and will be 

required to demonstrate such by 

submitting evidence of a negotiated 

conflict resolution agreement and 

supplying engineering information, as 

may be necessary. Licensees’

submissions must evidence compliance 

with 47 CFR 73.623(g). 

52. Licensees currently allotted an 

out-of-core DTV channel will be 

afforded the opportunity for full 

replication facilities on an in-core DTV 

channel, unless they choose to accept 

less. The licensee may agree to accept 

interference as long as it is still able to 

serve all of its community of license. If 

the conflict is thus resolved, the 

licensee’s currently assigned in-core 

DTV channel is released. After receipt of 

the First Round Conflict Decision 

Forms, we will announce any additional 

channel elections that have been 

‘‘locked in’’ as tentative channel 

designations. Based on this information, 

second round electors will be able to 

determine which channels will be 

available for selection in the second 

round of elections.

53. An interference conflict exists 

when it is determined that more than 

tolerable new interference exists (i.e., in 

this context, 0.1 percent in addition to 

existing interference). If it is determined 

that no interference conflict exists 

(meaning in this context that the elected 

in-core NTSC station adequately 

protects stations in each of the three 

categories noted above, to the extent 

required), then the licensee’s elected 

NTSC channel will be ‘‘locked in’’ and 

its DTV channel will be released, if 

applicable. If it is determined that an 

interference conflict does exist, and 

would therefore prevent granting the incore NTSC channel election with the 

certified coverage, then the licensee 

must decide whether to reduce its 

facilities to eliminate the interference, 

Licensees electing to reduce their 

facilities will be required to submit data 

demonstrating specifying how they will 

eliminate the interference conflict. or 

change its election to its DTV channel, 

or be treated as a two out-of-core 

licensee if its paired DTV channel is out 

of core. The licensee will indicate its 

decision by filing a conflict decision 

form. The licensee may agree to reduce 

its facilities to eliminate interference as 

long as it is still able to serve all of its 

community of license. With regard to 

stations with an allotted out-of-core 

DTV channel electing to operate a DTV 

station on their in-core NTSC channel, 

we will permit the 0.1 percent 

additional interference limit to be 

exceeded on a limited basis in order to 

afford these stations an improved 

opportunity to select their NTSC 

channel. Such allowance is justified 

because these single channel licensees 

have only one in-core channel to select 

and may need this additional 

accommodation. We are concerned, 

however, that such operations not cause 

substantial interference to existing DTV 

service (e.g. interfering within the area 

in which service replication is already 

being achieved by an operating station). 

Although we do not expect such 

instances will be widespread, where we 

find it appropriate to do so, we may ask 

a station seeking DTV operation on its 

in-core NTSC channel to operate at a 

power level that would avoid large 

amounts of interference to existing DTV 

operations, even if this would preclude 

that station from operating with full 

replication facilities. Licensees should 

be aware that the burden is on them to 

ensure that the channel they elect can 

serve their community of license. 

Consequently, should it be determined 

when proposing a final DTV Table of 

Allotments that a licensee’s election 

does not cover its community of license, 

we will void that election and place the 

licensee on a more appropriate channel. 

54. The interference conflict analysis 

performed in the first round is 

illustrated through the following 

examples. In the case of a two-in-core 

licensee whose election of its in-core 

NTSC channel causes an interference 

conflict which prevents granting the incore NTSC channel with the certified 

coverage, the licensee will file a conflict 

decision form indicating whether it will 

accept its in-core NTSC channel with 

interference and reduced facilities or if 

it will revert to its DTV channel. The 

channel selected at this time would be 

‘‘locked in’’ and the other channel 

59510 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

would be released. In the case of a 

licensee with only one in-core NTSC 

channel (including singletons) that 

elected its in-core NTSC channel and an 

interference conflict was found that 

would prevent granting coverage to 

extent certified, the licensee will file a 

conflict decision form indicating 

whether it wishes to accept its in-core 

NTSC channel with interference or if it 

wishes to be treated as a two out-of-core 

licensee and file an election in the 

second round (see Step 4). Licensees are 

cautioned that it is possible that they 

may obtain a less preferable tentative 

channel designation than had they 

decided to keep their in-core NTSC 

channel election with interference and 

reduced facilities. We note that these 

licensees may include their reducedfacilities NTSC channel on their list of 

second round election preferences. 

There would be, however, no guarantee 

that their discarded in-core channel 

would be awarded back to them should 

their higher second round election 

preferences not be available to them. 

d. Step 4: Second Round Election Forms 

Filed 

55. In our second round of elections, 

which we expect to occur July 2005, 

licensees with two out-of-core channels 

and those now treated like them, This 

category includes those first round 

electors that indicated in their conflict 

decision forms that they wanted to be 

treated as two out-of-core licensees, 

rather than accept their in-core NTSC 

channel with interference and reduced 

facilities. Also included in this category 

are licensees that do not have an in-core 

channel (e.g., an out-of-core singleton). 

will be required to file a Second Round 

Election Form. 

56. Two out-of-core licensees. In their 

Second Round Election Form, two outof-core licensees may submit one 

channel election preference (two out-ofcore licensees may negotiate channel 

election arrangements with other 

licensees) or may request that the 

Commission determine a ‘‘best 

available’’ channel (i.e., one that 

minimizes new interference to all 

protected channels) for them at full 

replication facilities. Two out-of-core 

licensees wishing to ensure receipt of a 

tentative channel designation in the 

second round should consider making a 

Commission-determined ‘‘best 

available’’ channel their election 

preference. Thus, licensees that request 

that the Commission determine a ‘‘best 

available’’ channel for them at full 

replication facilities will be placed by 

Commission staff in this round. Second 

round electors may also submit one 

contingent channel preference which 

would be available for selection only if 

the licensee rescinds its original second 

round election as part of a negotiated 

conflict resolution or settlement 

agreement with another licensee. We do 

this in an effort to encourage licensees 

to resolve conflicting channel 

preferences through settlement 

negotiations. Licensees may also request 

that the Commission determine a ‘‘best 

available’’ channel for their contingent 

preference. 

e. Step 5: Second Round Interference 

Conflict Analysis and Tentative 

Designations 

57. We recognize that there may be a 

sizable number of election preferences 

filed in the second round and that 

licensees may list conflicting channel 

preferences. Second round electors may 

also be asked to accept a channel with 

interference and reduced facilities 

because of an interference conflict with 

a protected channel. In anticipation of 

these issues, our second round 

interference conflict analysis, which we 

expect to complete by September 2005, 

offers a process of identifying and 

resolving such interference conflicts. 

We will evaluate election preferences 

for interference conflicts (as defined 

above), and ‘‘lock in’’ second round 

election preferences as tentative channel 

designations, to the extent possible. We 

will accommodate the election 

preference of each licensee to the extent 

possible, but cannot guarantee that 

licensees will receive their selected 

channel. The Second Round Conflict 

Form will provide second round 

electors with the opportunity to decide 

whether the interference and reduced 

facilities to which they would have to 

agree to obtain their channel preference 

would be acceptable to maintain their 

election preference. Second round 

electors unwilling to accept its election 

preference with interference and 

reduced facilities or that otherwise 

cannot resolve their interference conflict 

may participate in the third round of 

elections. We believe that in many cases 

of conflicting second round channel 

preferences, licensees will be able to 

reach settlement agreements, thereby 

avoiding the necessity of having the 

Commission resolve their conflict after 

the third round of elections.

58. Upon completion of our second 

round interference conflict analysis, the 

Media Bureau will notify each licensee 

that is determined to cause an 

interference conflict(s). Licensees will 

have 60 days from the date of this 

conflict notification letter in which to 

file their Second Round Conflict 

Decision Forms, indicating how they 

intend to resolve their interference 

conflict. These Second Round Conflict 

Decision Forms, which we expect to be 

filed in November 2005, will provide 

licensees with the opportunity to decide 

whether to maintain their second round 

channel elections or instead participate 

in the third round. Licensees have 

several options available to them. 

Licensees can maintain their second 

round channel election if they resolve 

their interference conflict by (1) 

agreeing to accept interference and 

reduce facilities; Licensees must certify 

that they will resolve their interference 

conflict(s), and will be required to 

demonstrate such by submitting 

technical data. and/or (2) negotiating an 

agreement (i.e., conflict resolution 

agreement) with the licensee(s) with 

which they are in conflict. Licensees 

must certify that they will resolve their 

interference conflict(s), and will be 

required to demonstrate such by 

submitting evidence of a negotiated 

conflict resolution agreement and 

supplying engineering information, as 

may be necessary Licensees can decide 

to change their election to their 

contingent second round channel by 

entering into a negotiated channel 

election arrangement with another 

licensee whereby they surrender rights 

to their original channel preference to 

that licensee. Licensees may use their 

contingent channel election only in the 

context of a negotiated settlement with 

another licensee, and may not use their 

contingent channel election at all if 

such use would result in an interference 

conflict. Finally, licensees can decide 

that they are not willing to accept their 

election preference with interference 

and reduced facilities or that they 

cannot otherwise negotiate a resolution 

to their interference conflict and elect to 

participate in the third round of 

elections. We believe that in many cases 

of conflicting second round channel 

preferences, licensees will be able to 

reach settlement agreements, thereby 

avoiding the necessity of having the 

Commission resolve their conflict after 

the third round of elections. We note 

that where more than one station elects 

the same channel and those stations 

cannot negotiate a settlement agreement, 

the subject channel will become 

unavailable for selection in the second 

round and licensees will have the 

opportunity to select that channel in the 

third round. The Commission will 

resolve third round conflicts pursuant to 

certain criteria After receipt of the 

Second Round Conflict Decision Forms, 

we will announce any additional 

channel elections that have been 

‘‘locked in’’ as tentative channel 

designations. Upon completion of the 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59511

second interference conflict analysis 

and tentative channel designations, we 

expect that only a small number of 

licensees will remain with no channel 

‘‘locked in.’’ These licensees will be 

afforded an opportunity to file one 

additional election preference in the 

third and final round of elections. Based 

on this information, third round electors 

will be able to determine which 

channels are available to them for 

selection. 

f. Step 6: Third and Final Round of 

Elections 

59. We will hold a third round of 

elections, expected to occur in January 

2006, to find channels for licensees that 

were not ‘‘locked in’’ at tentative 

channel designations in the previous 

two rounds. This third round provides 

a subsequent round for two out-of-core 

licensees whose election preferences 

could not be accommodated in their 

initial round of elections. We agree with 

MSTV that these licensees, as well as 

any other licensees that remain 

unplaced at this time, should be 

afforded the opportunity to make one 

additional channel election preference. 

These licensees will file a Third Round 

Election Form Election preferences 

made in this round must protect all 

‘‘locked in’’ channels. Participants in 

the Third Round may elect from 

available channels and may file 

negotiated channel election 

arrangements. If a licensee is not able to 

specify a preferred channel on which it 

can operate satisfactorily without 

conflicting with a protected channel, it 

may ask the Commission to specify a 

channel for its use at full replication 

facilities. In such cases, the Commission 

will select a channel that minimizes 

new interference among all affected 

stations. 

60. In this third round, we will also 

permit licensees with a low VHF 

channel or a channel subject to 

international coordination issues to seek 

an alternate tentative channel 

designation. Although the data are 

incomplete at this time, we are 

persuaded that low VHF licensees 

should be afforded an additional 

opportunity to find a channel that may 

better serve the public. For this reason, 

we will also permit two in-core low 

VHF licensees to release both of their 

channels after the first round so that 

they may be treated as two out-of-core 

licensee and participate in the second 

round of elections. MSTV proposed an 

additional election round for licensees 

who found their prior election 

unacceptable and contemplated that 

licensees which had to choose between 

two low VHF channels would be among 

those possibly dissatisfied licensees. 

Specifically, to the extent a preferred 

channel is available in this final election 

round, we will allow such licensees to 

elect a different channel for their final 

DTV operations, notwithstanding that 

they have an elected and ‘‘locked in’’

channel. These licensees may also 

request that the Commission determine 

a ‘‘best available’’ channel for them at 

full replication facilities. We note that it 

may not be possible to accommodate 

these preferences. Moreover, it is 

possible that the low VHF channel may 

be the best available channel for the 

licensee. No other licensees with an 

elected (and ‘‘locked in’’) channel will 

be permitted to participate in this third 

and final round of elections. 

61. Conflicts among third round 

preferences. In deciding among third 

round election preferences, we will 

determine on a case-by-case basis what 

channel best replicates a station’s 

service area while minimizing new 

interference to other stations. If, for 

example, the channel elected conflicts 

with a DTV channel tentatively 

designated for post-transition use by 

another station, the Commission will 

resolve the conflict by determining the 

best available channel for the licensee, 

as described herein. This analysis 

includes considerations of service to the 

public ‘‘including service to local 

communities Considering licensees’’

ability to reach and provide coverage to 

local communities is consistent with the 

Commission’s statutory obligation to 

ensure that broadcasters are responsive 

to the needs and interests of local 

communities. ‘‘and overall spectrum 

efficiency. We will also consider in our 

analysis those factors enumerated by 

MSTV: (1) Whether the station was an 

early adopter of DTV technology (i.e., 

the length of time the station has been 

operating on DTV); (2) the impact on the 

public’s access to DTV services (i.e., the 

population served by the station’s 

digital signal and the percentage of 

replication population covered); (3) 

whether one or both of the station’s 

channels is/are in the low VHF band 

(which might weigh in favor of that 

station receiving priority); (4) whether 

coordination with or interference to or 

from Canada or Mexico is a problem; (5) 

the existence of any zoning, 

environmental or other such issues; and 

(6) any other factors that may be 

relevant at the time. 

g. Step 7: New DTV Table of Allotments 

and Authorizations Proposed and 

Adopted Through Rulemaking Process

62. After completion of our channel 

election and repacking process, 

expected by August 2006, we will issue 

a Notice of Proposed Rule Making to 

propose a New DTV Table of 

Allotments. In creating the new DTV 

allotments proposals, we will provide 

all eligible stations with channels for 

DTV operations after the transition. In 

developing the new allotments, we will 

attempt to accommodate the preferences 

of broadcasters to the extent possible. 

To clarify as requested by Cox 

Broadcasting, the process will account 

for interference agreements among 

stations under § 73.623(g) of the 

Commission’s rules and will generally 

preserve the protection afforded by 

those agreements. Our proposed Table 

will be based on the tentative channel 

designations established through our 

channel election process, as well as on 

our evaluation of overall spectrum 

efficiency and providing the best service 

to the public, including service to local 

communities. In the NPRM, we will 

seek comment on our proposed new 

DTV Table of Allotments. 

63. Only Commission licensees and 

permittees will participate in the 

channel election process. Applicants for 

new stations and petitioners for new 

allotments will not make elections. We 

note that there are remaining 

applications that have been pending 

since before 1997 to obtain 

approximately 50 new NTSC stations. 

These applications will be dismissed if 

found to be inconsistent with the 

current protection requirements. In 

developing the post-transition DTV 

table, we will generally protect those 

NTSC allotments with pending new 

station applications that have ‘‘cut-off’’

status (do not face an additional 

opportunity for filing of mutually 

exclusive applications). This is 

consistent with the protection that must 

be afforded by DTV applications 

pursuant to § 73.623(h)(2) of the rules. 

An exception to this protection is that 

we will not protect the existing channel 

allotment where the applications are 

associated with a rule making petition 

that requests another channel (but may 

protect the new channel proposed in the 

rule making petition in accordance with 

the discussion that follows). For 

mutually-exclusive groups of 

applications where there is a settlement, 

or the tentative selectee is known, we 

will consider the facilities proposed by 

the prevailing applicant in the 

settlement group or the tentative 

selectee. We will continue to process 

these protected applications to grant of 

an NTSC construction permit and note 

that these will be new single-channel 

stations, allowed to choose between 

NTSC and DTV operation during the 

transition, but required to become DTV 

59512 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

at the end of the transition. At the 

conclusion of the channel election and 

repacking process, remaining 

unprotected new station applications 

will be evaluated and may be 

accommodated with a post-transition 

DTV allotment or dismissed when we 

issue the NPRM proposing the new DTV 

Table of Allotments. 

64. Pursuant to opportunities the 

Commission provided, some of the pre1997 NTSC applicants have continued 

to pursue a new station authorization by 

filing rule making petitions requesting a 

different NTSC channel or a DTV 

channel. In addition, some petitions 

have been filed seeking DTV channel 

allotments for new stations. These 

pending NTSC and DTV rule making 

proposals will be dismissed if found to 

be inconsistent with the current 

protection requirements. Each rule 

making request, including those 

associated with applications and those 

seeking new DTV allotments, falls into 

one of three groups: (1) Pending 

petitions for rulemaking; (2) outstanding 

rule makings (Notice of Proposed Rule 

Making issued); or (3) completed rule 

makings that now have pending 

applications for a construction permit. 

We will attempt to protect allotments 

and proposed allotments in the second 

and third groups where we have already 

adopted a Notice of Proposed Rule 

Making or a Report and Order to 

establish a channel allotment. 

Protection of these rule making 

proceedings is consistent with the 

requirements placed on DTV 

applications by § 73.623(h)(2) of the 

rules. However, we advise these 

petitioners that there may be a few cases 

where we must modify, restrict or 

eliminate their requested allotment in 

order to accommodate all eligible 

broadcasters with a post-transition DTV 

allotment. Remaining rule making 

petitions will be evaluated at the 

conclusion of the channel election and 

repacking process and may be 

accommodated with a post-transition 

DTV allotment or dismissed when we 

issue the NPRM proposing the new DTV 

Table of Allotments. 

Freeze of Procedures To Change 

Allotments 

65. A stable database is not only 

crucial to the channel election process, 

but is vital to the completion of the 

technically difficult task of developing a 

new DTV Table of Allotments. To make 

the channel election process and the 

creation of the new DTV Table of 

Allotments as manageable as possible, 

the Media Bureau has temporarily 

suspended certain procedures for 

altering DTV and analog TV service 

areas and channels until after the new 

DTV Table of Allotments is complete. 

We will continue to process 

rulemakings in which a Notice of 

Proposed Rule Making has been issued 

prior to the adoption of this Order. 

Additionally, the Media Bureau staff is 

directed to dismiss all pending petitions 

to change the NTSC Table of Allotments 

in which a Notice of Proposed Rule 

Making has not been issued prior to the 

adoption of this Order. We note that the 

Media Bureau staff previously 

dismissed or denied a number of 

petitions for new or changed NTSC 

allotments on various grounds, thereby 

declining to issue a Notice of Proposed 

Rule Making for these petitions. Several 

petitioners have sought reconsideration 

or review of these actions. In view of 

our decision to dismiss all pending 

petitions for new NTSC allotments 

which have not been subject to the 

notice process, all pending petitions for 

reconsideration or review of NTSC 

allotment requests that have not 

advanced to the notice stage are hereby 

dismissed. Pursuant to the freeze, the 

Media Bureau we will not accept for 

filing, until further notice, the 

following: 

• Petitions for rulemaking to change 

DTV channels within the DTV Table of 

Allotments. 

• Petitions for rulemaking for new 

DTV allotment proceedings. 

• Petitions for rulemaking to swap incore DTV and NTSC channels. In the 

NPRM, we sought comment on whether 

we should allow stations to use an 

application process to make these 

swaps. We proposed to require that 

parties meet the spacing requirements 

for amending the analog Table of 

Allotments pursuant to 47 CFR 73.610 

and to allow parties to use Longley-Rice 

analysis to demonstrate that an analog 

TV station protects DTV stations and for 

amending the DTV Table of Allotments 

pursuant to 47 CFR 73.623. We invited 

comment on these proposals and on 

how the Commission should address 

any loss of analog service or cable 

carriage or other public interest issues 

that may arise in connection with 

analog/DTV channel swap proposals. 

Second DTV Periodic NPRM, 18 FCC 

Rcd at 1288, para. 28. Currently, two or 

more DTV licensees/permittees are 

allowed to request a swap of their DTV 

channel allotments by filing 

modification applications for each 

station. Few commenters address this 

issue on the record. Fewer state that 

they support channel swaps by 

application. See CEA Comments at 16; 

Thomas Smith Comments at 4. See also

NYS–OFT Comments at 12–13; NPSTC 

Reply at 3–4 (supporting easing Taboo 

restrictions on early DTV/In-core analog 

swaps); MSTV/NAB Comments at 7; 

Paxson Reply at 10; Sinclair Comments 

at 8. For the reasons stated above, we 

have determined that we will freeze all 

NTSC/DTV channel swaps upon 

adoption of this Order. We therefore do 

not reach the issue of streamlining the 

NTSC/DTV channel swap process.

• Applications to change DTV 

channel allotments among two or more 

licensees. 47 CFR 73.622(c)(1), 73.623. 

Stations hoping to participate in 

negotiated channel election 

arrangements, discussed supra, must 

notify the Commission in the channel 

election form. If these arrangements are 

approved, the participants will be 

notified. 

• Petitions for rulemaking by 

licensees/permittees to change NTSC 

channels or communities of license. 

• Television modification 

applications that would increase a 

station’s DTV service area in channels 

2–51 in one or more directions beyond 

the combined area resulting from the 

station’s parameters as defined in the 

following: (1) The DTV Table of 

Allotments; (2) Commission 

authorizations (license and/or 

construction permit); and (3) 

applications on file with the 

Commission prior to release of this 

Order; and television modification 

applications that would increase a 

station’s analog service area in channels 

2–51 in one or more directions beyond 

the combined area resulting from the 

station’s parameters as defined in the 

following: (1) Commission 

authorizations (license and/or 

construction permit) and (2) 

applications on file with the 

Commission prior to release of this 

Order. We froze maximization 

applications for channels 52–59 on June 

18, 2002. Public Notice, 17 FCC Rcd 

11290 (2002). We froze maximization 

applications for channels 60–69 on 

January 24, 2003. Public Notice, 18 FCC 

Rcd 627 (2003). We will continue to 

process applications on file as of the 

date this Order is adopted. The Media 

Bureau may consider, on a case by case 

basis and consistent with the public 

interest, amendments to those 

applications to, for example, resolve 

interference with other stations or 

pending applications or resolve mutual 

exclusivity with other pending 

applications. 

• Class A station displacement 

applications and applications for 

coverage changes that would serve any 

area that is not already served by that 

Class A station’s authorized facilities. 

As an exception to this freeze, on-air 

Class A stations demonstrating that they 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59513

face imminent disruption of service may 

request an STA to continue operations. 

Displacement applications filed by outof-core LPTV stations that have been 

deemed Class A-eligible requesting a 

move to an in-core channel where Class 

A authority could be granted will not be 

acted on during this freeze, but for such 

stations, immediate non-Class A LPTV 

displacement relief may be requested 

through an STA. 

66. Notwithstanding the freeze, 

licensees will not be prevented from 

filing modification applications when 

the application would help resolve 

international coordination issues or 

when a broadcast station seeks a new 

tower site due to the events of 

September 11, 2001. In addition, the 

Media Bureau will consider, on a caseby-case basis, requests for waiver of the 

freeze when the modification 

application is necessary or otherwise in 

the public interest for technical or other 

reasons, such as when zoning 

restrictions preclude tower construction 

at a particular site or when unforeseen 

events, such as extreme weather events 

or other extraordinary circumstances, 

require relocation to a new tower site. 

Border Interference Issues 

67. There are approximately 43 

stations with DTV applications awaiting 

international coordination. As of August 

4, 2004, there are 32 pending DTV 

applications/rule making proposals 

requiring Canadian approval and 11 

pending DTV applications/rule making 

proposals requiring Mexican approval. 

(These numbers do not reflect those 

applications which have failed the 

coordination process or which require 

further action by the applicant.) We 

recognize that certain issues may remain 

to be completed in connection with the 

Canadian approval process for these 

stations. We will still require, however, 

broadcasters to make timely channel 

elections. As noted above, broadcasters 

with an out-of-core DTV channel and an 

in-core analog channel that is not 

available for digital use under the LOU 

should indicate this fact on their 

channel election form. Like any one incore licensee, these licensees may 

release their in-core channel and 

participate in the second round of 

elections; however, we will also afford 

licensees a later opportunity in the third 

round to elect another channel in the 

event their elected channel remains 

subject to, or was in the interim 

adversely affected by, international 

coordination. Those broadcasters 

remaining on their DTV allotments that 

do not have applications to maximize 

should not have unusual difficulties in 

the approval process. With respect to 

post-transition DTV replication of 

stations’ current analog service, we must 

coordinate DTV use of NTSC channels 

in border areas. We will conduct this 

coordination in the course of the new 

allotment rulemaking. We will resolve 

any remaining international 

coordination issues as part of the 

process of developing new DTV 

allotments.

Replication and Maximization 

68. In the creation of the DTV Table 

of Allotments, each DTV channel 

allotment was chosen to allow DTV 

service thereon to best match the Grade 

B service contour of the NTSC station 

with which it was paired. We took this 

approach to ensure that broadcasters 

have the ability to reach the audiences 

that they have been serving with the 

NTSC analog transmission system and 

that viewers continue to have access to 

the stations that they are accustomed to 

receiving over the air. Although we have 

declined to make full signal replication 

mandatory, we continue to believe that 

most DTV broadcasters eventually will 

replicate their NTSC coverage with DTV 

service. As an incentive to replicate, we 

stated that DTV licensees must either be 

on the air replicating their April 1997 

NTSC Grade B service area as of the 

replication deadline or lose interference 

protection to the unreplicated portion of 

this service area outside the noiselimited signal contour. We stated that 

other full or low-power stations would 

then have the opportunity to expand 

their service areas to serve the viewers 

made available as a result of a DTV 

station’s failure to fully replicate. We 

also stated in the First DTV Periodic 

MO&O that we would treat stations 

seeking to maximize their service areas 

in a similar manner. First DTV Periodic 

MO&O, 16 FCC Rcd at 20606, paras. 29–

30. By maximizing, stations make power 

and antenna height increases above the 

values allotted in the DTV Table, and 

site changes that extend the service area 

of DTV facilities beyond the NTSC 

replication facilities. Class A Order, 15 

FCC Rcd at 6377, para. 52. Congress has 

recognized the importance of preserving 

the right of DTV stations to maximize 

and has established specific measures to 

protect coverage areas defined in 

maximization applications. In the 

Community Broadcasters Protection Act 

of 1999, Congress protected applications 

for maximization against new Class A 

stations. To be entitled to protection by 

low power television stations applying 

for primary Class A status, DTV stations 

were required to have filed an 

application for maximization or a notice 

of intent to seek maximization by 

December 31, 1999, and to have filed a 

bona fide application for maximization 

by May 1, 2000. We have emphasized 

DTV service maximization in the digital 

transition as a means by which stations 

may increase their DTV signal coverage 

and provide DTV service competitively 

within their respective markets. Sixth 

Report and Order, 12 FCC Rcd at 14605, 

para. 30. The Media Bureau froze 

maximization applications in the 698–

746 MHz band (channels 52–59 or the 

‘‘Lower 700 MHz band’’) to assist 

participants in Auction No. 44 to 

determine the areas potentially available 

in the band for the provision of service 

by auction winners before the channels 

are cleared. Public Notice, 17 FCC Rcd 

11,290 (2002). The Media Bureau later 

froze maximization applications in the 

746–806 MHz spectrum band (channels 

60–69 or the ‘‘Upper 700MHz band’’) to 

protect Guard Band and Public Safety 

entities from shifts or expansion in 

existing broadcast service, and to 

facilitate the eventual clearing of this 

spectrum and the auction of the 

commercial portions of the spectrum. 

69. In the First DTV Periodic MO&O, 

our goal in temporarily deferring the 

replication protection deadline 

established in the First DTV Periodic 

Report and Order was to permit stations 

to elect a more gradual build-out of their 

DTV facilities, and thereby increase the 

number of stations capable of 

commencing digital service to at least 

their core communities by the May 2002 

and May 2003 construction deadlines. 

We also gave DTV licensees seeking to 

maximize facilities, including analog 

UHF licensees, the same flexibility to 

implement graduated construction plans 

as analog VHF licensees. 

70. We stated in the First DTV 

Periodic MO&O that we would establish 

in this second DTV periodic review a 

date by which broadcasters must either 

replicate their NTSC coverage or lose 

DTV service protection to the 

unreplicated areas, and by which 

broadcasters with authorizations for 

maximized digital facilities must either 

provide service to the associated 

coverage area or lose DTV service 

protection to the uncovered portions of 

those areas. For DTV channels within 

the core spectrum, we proposed in the 

NPRM to set new replication and 

maximization protection dates: July 1, 

2005, for affiliates of the top-four 

networks (i.e., ABC, CBS, Fox and NBC) 

in markets 1–100; and July 1, 2006, for 

all other commercial DTV licensees as 

well as noncommercial DTV licensees. 

We sought comment on these dates, 

stating our goal to allow stations 

sufficient time to provide full 

replication and maximization service 

while also ensuring that stations 

59514 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

continue to progress toward an alldigital broadcast service. We requested 

comment on whether we should adopt 

the same or different replication and 

maximization interference protection 

deadlines for stations operating in the 

700 MHz band. We also sought 

comment on the disposition of 

construction permits or applications for 

replication or maximization pending 

after the deadline. 

71. We take seriously our mandate to 

speed the transition and to ensure that 

the spectrum is used efficiently. At the 

same time, we have attempted to 

accomplish these objectives without 

imposing undue cost and delay on 

broadcasters. After careful consideration 

of the comments, we will adopt the 

following use-it-or-lose-it replication 

and maximization deadlines: 

• July 1, 2005—Use-it-or-lose-it 

deadline for DTV licensees affiliated 

with the top-four networks (i.e., ABC, 

CBS, Fox and NBC) in markets 1–100. 

Those licensees that receive a tentative 

DTV channel designation in the channel 

election process on their current digital 

channel must construct full, authorized 

facilities. Those licensees that receive a 

tentative DTV channel designation on a 

channel that is not their current DTV 

channel must serve at least 100 percent 

of the number of viewers served by the 

1997 facility on which their replication 

coverage was based. The number of 

viewers served by a station’s 1997 

facility on which its replication is based 

will be determined using population 

data from the year 2000 census. Thus, 

the population that will be reported as 

served by a station’s 1997 facility on the 

table of station information that we plan 

to issue soon will generally be different 

(in most cases larger) than the 

population reported as served by that 

facility. 

• July 1, 2006—Use-it-or-lose-it 

deadline for all other commercial DTV 

licensees as well as noncommercial 

DTV licensees. Those licensees that 

receive a tentative DTV channel 

designation in the channel election 

process on their current digital channel 

must construct full, authorized DTV 

facilities. Those licensees that receive a 

tentative DTV channel designation on a 

channel that is not their current DTV 

channel must serve at least 80 percent 

of the number of viewers served by the 

1997 facility on which their replication 

coverage was based.

72. We adopt these deadlines for the 

following reasons. First, we believe that 

the time has come to ensure that 

consumers have access to a full range of 

digital programming services from their 

local broadcast stations. We note that, 

even according to MSTV’s own study, 

approximately 40 percent of stations 

operating pursuant to STAs are reaching 

less than 70 percent of their analog 

population with a digital signal. The 

unserved households are more likely to 

be in outlying or rural areas, since the 

minimum STA coverage requirement is 

that a station’s DTV signal covers its 

actual community of license. Those 

consumers, like all consumers, 

reasonably expect that when they buy a 

digital television set they will be able to 

receive the same broadcast stations in 

digital that they receive in analog. 

73. Second, our temporary deferral of 

the replication and maximization 

deadlines in 2001 recognized that, given 

the existing marketplace conditions, 

some broadcasters, particularly those in 

smaller markets, needed to take a more 

graduated build-out approach. In 

particular, we recognized the existing 

reality of modest DTV receiver 

penetration, which affected the financial 

decisions of broadcasters and those who 

fund them. The outlook for DTV 

receivers has changed dramatically 

since 2001. In August 2002, the 

Commission adopted a DTV tuner 

mandate. Beginning on July 1, 2004, 

television receivers shipped in the U.S. 

must include digital broadcast tuners on 

a phased-in basis; by July 2007, all 

television receivers 13 inches and above 

must include a digital broadcast tuner. 

In addition, in September 2003, the 

Commission adopted rules to permit the 

manufacture of cable-ready ‘‘plug-andplay’’ sets for one-way digital 

programming. By Commission mandate, 

each of these sets will also include an 

over-the-air digital tuner. Between these 

mandates and the overall increasing 

pace of the DTV transition, we expect 

that the penetration of digital televisions 

with off-air reception capability will 

dramatically increase in the coming 

years. Indeed, in testimony before 

Congress in June 2004, the Consumer 

Electronics Association (‘‘CEA’’) 

forecast that more than 85 million 

American homes will have DTV tuners 

by 2010. This emerging reality should 

alleviate the concerns of commenters 

stating that they do not wish to provide 

service in advance of widespread DTV 

set penetration. Therefore, we do not 

believe it is appropriate to further 

postpone replication and maximization 

deadlines. 

74. Third, we do not believe a 

replication/maximization deadline will 

impose an undue burden on 

broadcasters. Approximately 45 percent 

of broadcasters currently on the air have 

built licensed facilities and are 

operating at full power. Many of these 

full-power stations are located in 

smaller markets and/or are noncommercial. Not only did they incur 

higher build-out costs than a station 

building today, but they have been 

incurring higher power costs to operate 

at full power. It would be inequitable to 

permit broadcasters operating at lower 

power—who have already accrued 

significant benefits from the 

Commission’s STA policy—to continue 

to require the full-power broadcasters 

continue to shoulder a heavier load 

throughout the transition. 

75. Fourth, we do not believe that the 

build-out deadlines will result in undue 

‘‘stranded investment.’’ As an initial 

matter, we are not requiring stations to 

replicate or maximize. The ‘‘use-it-orlose-it’’ deadline simply means that 

after a reasonable build-out period has 

passed, if a station fails to provide a 

signal to serve certain viewers, another 

entity should have the opportunity to do 

so. After a reasonable build-out period, 

we believe that the objectives of 

providing service to the public and 

spectrum efficiency militate against 

further protection of the unserved areas. 

In addition, we have made a significant 

accommodation for those broadcasters 

moving to a new DTV channel at the 

end of the transition: The top-four 

network affiliates in the top 100 markets 

need only provide service to the same 

number of viewers as their replicated 

service area in order to preserve their 

right to maximize/replicate on their 

ultimate DTV channel; the remaining 

stations need only serve 80 percent of 

the number of viewers in their 

replicated service area to preserve their 

right to maximize/replicate on their 

ultimate DTV channel. If, as MSTV 

asserts, a significant amount of power 

(and hence, expense) is needed to 

‘‘push’’ a UHF television signal out the 

last few miles beyond the station’s ‘‘line 

of sight’’ or ‘‘radio horizon,’’ this should 

help address the concern. Moreover, we 

have made a special accommodation, 

described below, for many of the 

broadcasters for whom there would 

certainly be stranded investment—those 

with a DTV allotment outside of the 

core. We also note, according to Harris 

Corporation, that much of the 

investment in building out will not be 

stranded even if a station ultimately 

moves to another channel because some 

of the equipment can be re-used. 

Depending on the station’s power level 

and whether it ultimately moves to an 

in-core VHF or UHF channel, the 

‘‘stranded’’ investment caused by an 

intermediate power increase on the 

existing DTV channel could range from 

$345,000 for a higher power station (out 

of a total investment of $1,355,000 to 

$1,975,000) to $505,000 for a lower 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59515

power station (out of a total investment 

of $1,145,000 to $1,720,000). Finally, for 

those broadcasters with an in-core DTV 

allotment that may want to consider 

moving elsewhere at the end of the 

transition, whatever additional costs 

there are can be factored into that 

decision just like the sunk costs of the 

initial STA facility. In any event, these 

broadcasters would be in no worse 

position than the hundreds of 

broadcasters that have already built out 

to full power and may face a similar 

choice. 

76. Fifth, as with other aspects of the 

transition such as the initial 

construction deadlines, we recognize 

the particular needs of smaller market 

and non-commercial broadcasters by 

setting earlier deadlines for the larger 

market, commercial broadcasters 

expected to lead the transition. In 

addition, we are adopting a waiver 

process for stations that truly cannot 

afford to build out to these minimum 

requirements, or that cannot build out 

for other reasons beyond their control. 

77. Stations on any channel that have 

received construction permits with 

construction deadlines that extend 

beyond these replication/maximization 

interference protection dates must meet 

their replication/maximization 

requirements at the expiration date 

specified by their construction permit. 

In the First DTV Periodic MO&O, the 

Commission established a process 

whereby certain commercial stations 

and all noncommercial educational 

stations operating pursuant to a DTV 

STA would receive automatic DTV CP 

extensions until a future ‘‘use or lose’’

date. 16 FCC Rcd at 20608, para. 36. In 

the Second DTV Periodic NPRM, we 

sought comment on new replication and 

maximization protection dates and on 

the disposition of construction permits 

or applications for replication or 

maximization pending at the time of the 

deadline. In conjunction with the 

replication and maximization protection 

dates adopted herein, we clarify that we 

will also apply the DTV CP extension 

policy to all stations operating with a 

licensed DTV facility. Therefore, all 

properly authorized operating DTV 

stations with authorized CPs to make 

changes to their licensed facilities, 

including the network affiliate stations 

in the top 30 markets, will have their 

CPs extended until the replication/

maximization interference protection 

deadlines established in this order. We 

believe this change is appropriate in 

order to provide consistency in the 

treatment of stations with outstanding 

CPs that have already received a DTV 

license and those with an outstanding 

CP operating pursuant to a DTV STA. 

They must build facilities that meet the 

minimum requirements by that date or 

lose interference protection.

78. A station that fails to meet the 

above replication/maximization 

requirements will lose interference 

protection to the unused portion of the 

associated area as of the applicable 

interference protection deadline, as 

described more fully in section IV.D., 

infra. As a practical matter, nearly every 

station that has fully replicated its 

analog coverage will have maximized its 

DTV coverage by reaching at least some 

small areas beyond the analog Grade B 

contour. Where a station has maximized 

its DTV coverage by a coverage shift that 

leaves some of its replication coverage 

area unserved, then the station’s 

protection will shift to its maximized 

coverage area and it will lose 

interference protection to the unserved 

replication area. In addition, a station 

failing to meet the above deadlines will 

lose the ability to ‘‘carry over’’ its 

interference protection to its unserved 

DTV service area on its post-transition 

channel (e.g., on its in-core NTSC 

channel), as determined in the channel 

election process described above. 

Analog service will remain protected 

throughout the transition, but DTV 

service to the former analog area will 

not be protected after the transition 

unless replication deadlines are met. 

Some stations may currently have 

licenses or construction permits to serve 

areas smaller than the service area 

allotted to them in the DTV table of 

allotments. Unless broadcasters in this 

situation construct facilities to serve 

these unserved areas within the DTV 

allotment prior to the replication/

maximization interference protection 

deadline, they risk not being able to 

expand later to regain that service area. 

Thus, for example, if a station subject to 

the July 1, 2006 deadline builds out 

only to 60 percent of its replicated 

service population by that date, it will 

lose interference protection on its digital 

allotment beyond that 60 percent 

service area, and, if it seeks to move to 

its NTSC allotment at the end of the 

transition, it will not retain the ability 

to carry over interference protection 

beyond the 60 percent service area. 

79. By contrast, a station that meets its 

applicable build-out requirements will 

retain interference protection to its 

authorized service area on its DTV 

channel if it remains on that channel, as 

well as the ability to ‘‘carry over’’ its 

interference protection for its authorized 

DTV service area if it moves to a 

different DTV channel post-transition. 

This decision modifies our decisions in 

the Class A Order and Class A Recon. 

Class A Order, 15 FCC Rcd at 6379–80, 

para. 58; Class A Recon., 16 FCC Rcd 

8269–70, para. 67. In the Class A Order, 

in the context of relative interference 

protection priorities of Class A and DTV 

stations, we stated that ‘‘[t]o preserve 

their ability to maximize * * * within 

the core, we will require stations * * * 

to * * * maximize their DTV service 

area on their * * * DTV channel. These 

stations must have filed a notice of 

intent to maximize and must file an 

application to maximize within the 

deadlines mandated by the CBPA. [W]e 

will allow these stations to carry over to 

their in-core [NTSC] channel the 

maximized digital service area achieved 

on the [DTV] channel, to the extent that 

the [NTSC] channel facilities for 

maintaining the maximized service area 

provide required interference protection 

to other DTV stations.’’ Class A Order, 

15 FCC Rcd at 6379–80, para. 58. Under 

today’s decision, stations need only 

meet our replication/maximization 

build-out deadlines to preserve their 

ability to maximize on their ultimate 

DTV channel. Similarly, stations 

electing to forfeit their current DTV 

channel and ‘‘flash-cut’’ to digital on 

their analog channel under the options 

described below for stations with out-ofcore DTV allotments and satellite 

stations, will be entitled to interference 

protection as if they met the applicable 

replication/maximization build-out 

deadlines. However, a station moving to 

a different DTV channel at the end of 

the transition will lose interference 

protection during the transition to any 

unserved areas on its current DTV 

channel as of the applicable deadlines, 

notwithstanding the fact that it meets 

the minimum build-out requirements. 

For example, assume a broadcaster 

subject to the July 1, 2006 deadline will 

be changing DTV channels at the end of 

the transition and meets the 80 percent 

build-out requirement by serving 90 

percent of its replicated service 

population by July 1, 2006. Assume 

further that it was authorized to build 

maximized facilities, serving 120 

percent of its replicated service 

population. At the end of the transition, 

it will be entitled to ‘‘carry over’’ its full 

maximization service area, to the extent 

possible under our rules. However, 

during the transition, the station will 

lose interference protection on its 

existing DTV channel for those areas 

within its maximized service area that 

are unserved as of the deadline (i.e., 

those areas containing 90 percent–120 

percent of its service population). 

80. For those stations that are unable 

to provide the required service by our 

replication/maximization protection 

deadlines because of severe financial 

59516 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

constraints or circumstances beyond a 

station’s control, we will establish a 

limited waiver process and grant 

extensions of the applicable replication 

or maximization interference protection 

deadline on a six-month basis if good 

cause is shown. Broadcasters seeking a 

waiver on the basis of financial 

hardship must make a showing similar 

to that required to obtain a waiver of the 

DTV construction deadlines on financial 

hardship grounds. As with any request 

for waiver of our rules, a request for an 

extension of the applicable deadline 

will be granted only upon a showing of 

good cause and where grant of the 

extension will serve the public interest. 

Single Channel Broadcasters 

81. KM Companies requests that we 

specifically address the treatment of 

single channel broadcasters with respect 

to the interference protection deadline. 

As discussed elsewhere, single channel 

broadcasters will participate in the 

channel election process. Analysis of 

their channel elections will be based on 

their authorized facilities (construction 

permit for stations that have both a 

license and a construction permit). 

Whether their single-channel authority 

is analog or digital, a broadcaster that 

has not constructed or is not operating 

the appropriate facilities on which its 

election analysis is based will lose 

protection of the unserved area as of the 

applicable interference protection 

deadline (except in cases where the 

DTV allotment coverage is based on a 

construction permit that expires after 

the deadline, in which case they will 

keep their protection as long as the 

construction permit remains valid).

Early Surrender of DTV Out-of-Core 

Channels (‘‘Flash Cut’’) 

82. The Second DTV Periodic NPRM 

asked if we should establish earlier 

replication and/or maximization 

interference protection deadline(s) for 

out-of-core broadcasters (i.e., in the 700 

MHz band) than broadcasters operating 

on channels within the core in order to 

allow new services to be provided in 

portions of replication areas that a DTV 

licensee may never plan to serve in this 

spectrum. 

83. The Commission permits 

broadcasters with NTSC stations in the 

Upper 700 MHz (60–69) or the Lower 

700 MHz (52–59) to enter into voluntary 

band clearing arrangements consistent 

with the Commission’s existing bandclearing rules and Section 6 of the 

Auction Reform Act of 2002. Auction 

Reform Act of 2002, Pubic Law 107–

195, 116 Stat. 715 (‘‘Auction Reform 

Act’’) section 6(a), 47 U.S.C. 337 note. 

Section 6 of the Auction Reform Act 

restricts the Commission from waiving 

certain broadcast interference standards 

and the minimum spacing requirements 

for certain proposals to relocate Channel 

52–69 analog operations to a Channel 2–

51 DTV allotment, if such waiver ‘‘will 

result in any degradation in or loss of 

service, or an increased level of 

interference to any television household 

except as the Commission’s rules would 

otherwise expressly permit, exclusive of 

any waivers previously granted.’’ Id. 

These restrictions do not, however, 

apply to proposals to move Channel 63, 

64, 68, or 69 analog operations to incore DTV allotments ‘‘in order to make 

such frequencies available for public 

safety purposes.’’ Id., Section 6(b). In 

furtherance of the significant public 

interest in rapid band clearing, and in 

recognition of the fact that all out-ofcore DTV facilities will have to move at 

the end of the transition, we will permit 

stations with an in-core NTSC channel 

paired with an out-of-core DTV channel, 

as well as stations with two out-of-core 

channels, to surrender their out-of-core 

DTV channels and operate in analog on 

their analog channels. We will also 

permit single-channel DTV stations out 

of the core, upon Commission approval, 

to elect not to construct DTV facilities 

and instead to give up their assigned 

DTV channel in the 700 MHz band in 

return for a DTV channel inside the 

core. We will assign these broadcasters 

an in-core DTV channel when we 

generate a revised DTV Table of 

Allotments Stations have up to their 

initial channel election deadline to 

inform the Commission that they will 

use this option. We delegate the 

authority to grant these requests to the 

Media Bureau. Upon approval from the 

Commission, these stations will then 

surrender their out-of-core digital 

channel and be treated as single channel 

stations, allowed to ‘‘flash cut’’ to digital 

on their in-core channel no later than 

the end of the transition in the stations’

markets. These stations will retain their 

ability to replicate and/or maximize on 

their NTSC allotment as if they met the 

applicable replication/maximization 

build-out requirement. The station will 

then be responsible for meeting any 

DTV service obligations (e.g. hours of 

operation, and replication/maximization 

requirements), applicable to other like 

broadcasters on the date it commences 

DTV operations. Because of the greater 

potential for wasted expenditures in 

DTV facilities built in the 700 MHz 

band (since there will not be an 

opportunity to remain in that band after 

the transition), and given the potential 

for earlier use of this spectrum by public 

safety and other 700 MHz licensees, we 

will presume that granting such a 

request will be in the public interest if 

the station demonstrates that it is 

assigned a DTV channel out of the core 

and that grant of the request would not 

result in the loss of a DTV channel 

affiliated with one of the four largest 

national television networks (ABC, CBS, 

NBC, or Fox). We have consistently 

relied on affiliates of the four largest 

national television networks to achieve 

the necessary milestones throughout the 

DTV transition. These stations also must 

remain on the air in order to fulfill 

Congress’ directive that stations 

‘‘licensed to or affiliated with one of the 

four largest national television 

networks’’ must be ‘‘broadcasting a 

digital television service signal’’ in 

order for the transition to occur. We 

conclude that the presumption we 

establish is consistent with Congress’

objectives for this spectrum, should 

generally increase the attractiveness of 

the spectrum to potential 700 MHz 

licensees, and will not unduly delay the 

expeditious transition to DTV. 

84. This presumption, however, is 

neither conclusive nor dispositive. We 

will also consider whether special 

circumstances raised by the resulting 

loss of digital broadcast service would 

be sufficient to rebut the presumption. 

We find that the surrender of DTV 

channels of these out-of-core stations 

will generally not create a loss of 

particular programming to viewers 

during the transition because, as 

presented in Paxson’s comments, the 

stations will continue analog operations 

until switching to DTV by the end of the 

transition Also, for requests that do not 

meet the presumption, we would 

consider all the relevant public interest 

factors regarding opportunities for 

provision of wireless and public safety 

services, acceleration of the DTV 

transition, and the loss of broadcast 

service in deciding whether or not to 

approve the request. 

85. Stations that have been denied an 

extension of the construction 

requirements and admonished because 

they failed to demonstrate that they are 

meeting the necessary criteria for an 

extension and have not come into 

compliance are not eligible to surrender 

their out-of-core DTV channel. On April 

16, 2003, the Commission released an 

Order establishing remedial measures to 

be followed when a television station 

fails to meet its DTV construction 

deadline and fails to adequately justify 

an extension of its DTV construction 

deadline. Under the three-step 

graduated sanction process we will first 

deny the request for an unqualified 

extension and admonish the station for 

its failure to comply with its DTV 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59517

construction obligation. The station will 

then have six months to complete its 

construction, subject to reporting 

requirements and possible additional 

sanctions in the interim. Under the 

second step, if the station has not come 

into compliance with the DTV 

construction requirement within the sixmonth period, then, absent 

extraordinary and compelling 

circumstances, we will issue a Notice of 

Apparent Liability for forfeiture to the 

licensee and require that the station 

report every 30 days on its proposed 

construction milestones and its efforts 

to meet those milestones. Under the 

third and final step, if the station has 

continued to fail in its efforts to come 

into compliance with the DTV 

construction requirement within the 

second six-month period of time (i.e., 

one year from the date of the formal 

admonition), then, absent extraordinary 

and compelling circumstances, we will 

consider its construction permit for its 

DTV facilities to have expired and we 

will take whatever steps necessary to 

rescind the station’s DTV authorization.

Satellite Stations 

86. In the Second DTV Periodic 

NPRM we sought comment on whether 

the public interest would be served by 

allowing television satellite stations to 

turn in their digital authorization and 

‘‘flash-cut’’ to DTV transmission at the 

end of the transition period. TV satellite 

stations are full power terrestrial 

broadcast stations authorized under part 

73 of the Commission’s rules to 

retransmit all or part of the 

programming of a parent station that is 

typically commonly owned. Eligible 

satellite stations were assigned a paired 

DTV channel in the current DTV Table 

of Allotments. The Commission first 

authorized TV satellite operations in 

small or sparsely populated areas, 

which were deemed to have economic 

bases insufficient to support standalone, full-service operations. The 

Commission later authorized satellite 

stations in larger markets when the 

applicant demonstrated that the 

proposed satellite could not operate as 

a stand-alone, full-service station. The 

Commission has also allowed a fullservice station to convert to satellite 

operation upon a showing that the 

community no longer has a sufficient 

economic base to support a full-service 

operation. 

87. On October 16, 2003, the 

Commission deferred the digital 

construction deadlines for 30 satellite 

stations that had requested a third 

extension of time to construct. The 

Commission noted that the issue of 

whether to permit satellites to turn in 

their digital authorization and ‘‘flash 

cut’’ to DTV transmission at the end of 

the transition period is under 

consideration in this proceeding. 

88. To ensure that the channel 

election process described herein 

proceeds smoothly and that the 

channels being surrendered by satellite 

licensees are included, we will require 

all satellite stations to participate in the 

channel election process. We will 

permit satellite stations to surrender one 

of their paired channels (the one not 

elected on their channel-election form 

for use after the transition) and flash cut 

from analog to digital transmission by 

the end of the transition period. Satellite 

stations that choose to flash cut must 

make the flash cut decision and notify 

the Commission by their initial channel 

election deadline. Satellite stations 

choosing the flash cut option will be 

required to surrender one of their two 

broadcast channels. Except as provided 

below (for stations with out-of-core 

analog and in-core DTV channels), 

satellite stations that choose not to flash 

cut and instead choose to retain both an 

analog and a digital channel during the 

transition period must comply with the 

applicable digital construction 

deadlines, including any extension 

granted by the Commission. As noted 

above, a satellite station that surrenders 

one of its channels under the ‘‘flashcut’’ option will be treated as if it met 

the applicable replication/maximization 

build-out requirements. 

89. Satellite stations with an analog 

channel outside the core and that are 

electing their current in-core DTV 

channels for post-transition DTV service 

will not be required to surrender a 

channel at this time. To do so would 

require these stations to give up their 

DTV channels unnecessarily or to build 

DTV facilities now, unlike other satellite 

stations which, under the flash cut 

policy announced herein, may elect to 

wait to build their digital facilities until 

closer to the end of the transition 

period. In this instance, we believe the 

benefits of this approach outweigh our 

interest in rapid clearing of the out-ofcore television spectrum. Satellite 

stations with an out-of-core analog 

channel and an in-core digital channel 

may retain their out-of-core channel for 

continued analog service until the end 

of the transition or until they decide to 

build and transmit only in digital, 

whichever is earlier. 

90. Stations electing to return their 

DTV channel to the Commission will 

retain interference protection to the 

areas defined in existing DTV 

replication or maximization 

applications on file with the 

Commission until the end of the 

transition when the station must 

commence digital transmissions. This 

interference protection will apply to the 

digital service area of the channel on 

which the station flash cuts to digital to 

the extent that the station replicates and 

maximizes at the time of the flash cut 

and to the extent consistent with our 

DTV interference protection rules. To 

ensure that satellite stations that have 

already constructed digital facilities or 

that do so before the end of the 

transition are not disadvantaged, we 

will also permit these stations to retain 

replication and maximization 

interference protection for their digital 

stations until the end of the transition 

in their market. Similarly, to provide 

satellite stations that have constructed 

digital facilities additional flexibility 

during the transition while maintaining 

an basic level of service to the public, 

we will also permit satellite stations that 

choose to construct separate digital 

facilities to operate only during prime 

time hours (at a minimum) until the end 

of the transition.

91. We believe that this approach will 

best ensure that satellite stations 

complete the conversion to digital 

format and continue to provide 

broadcast programming to viewers in 

their communities. We agree with 

LeSEA, Media General, and MSTV/NAB 

that many satellite stations may not be 

financially capable of operating both an 

analog and a digital facility 

concurrently. As these commenters 

point out, satellite stations provide 

programming to communities that 

cannot support operation of these 

stations on a full-service basis. Indeed, 

Media General and LeSEA state that 

their satellite stations continually 

operate at a loss and that, absent some 

relief from the requirement of 

constructing and operating dual 

facilities during the transition, they may 

be forced to turn in their satellite 

licenses and cease all operations. Unlike 

full-service stations, satellite stations 

have chosen to forego or relinquish fullservice status and instead retransmit the 

programming of a parent station because 

full-service operation of the satellite 

facility is not economically viable. We 

believe that the unique status of and 

circumstances faced by satellite stations 

warrant special treatment of these 

stations during the transition. 

92. We do not believe that granting 

this special relief to satellite stations 

will unduly hinder the overall transition 

to digital television. Some of the 

affected viewers may have access to 

other digital signals. According to a 

study of its satellite stations. Moreover, 

the alternative to the flash-cut option we 

are adopting today, that of requiring 

59518 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

satellites to operate dual facilities 

during the transition, could result in the 

cessation of all service, either analog or 

digital, by some satellite stations. The 

approach we adopt today will ensure 

that satellite stations provide digital 

service by the end of the transition and 

will help preserve television service in 

the historically underserved 

communities in which most satellite 

stations operate. 

Disposal of Construction Permits and 

Applications for Replication/

Maximization 

93. In the NPRM, we asked for 

comment on how the Commission 

should dispose of a station’s 

construction permit or application for 

replication or maximization facilities if 

the station fails to construct and operate 

facilities that fully replicate its NTSC 

service or provide signal coverage over 

an authorized maximized service area 

by the interference protection deadlines 

established in this proceeding. We 

stated that our inclination was to restrict 

any station that has failed to fully 

replicate or construct its authorized 

maximization facilities by the 

applicable deadline from filing an 

application to expand coverage for a 

certain period of time in order to allow 

other existing or new stations, including 

Class A eligible LPTV stations on outof-core channels, to apply to use this 

spectrum. 

94. We will dismiss any applications 

and cancel any construction permits for 

facilities in excess of those in actual 

operation by a station as of the 

applicable interference protection date. 

We will require broadcasters to file 

applications for licenses to cover their 

actual facilities served as of the 

interference protection deadline. We 

have given broadcasters ample 

opportunities over the past years to 

expand their service areas, and advance 

warning that if they elect not to provide 

their viewers with DTV the Commission 

may ensure the area is served in other 

ways. Therefore, we will permit existing 

DTV stations seeking to expand their 

coverage area and Class A eligible 

stations on out-of-core channels to 

apply for unused spectrum within the 

core. LPTV stations may also apply for 

secondary operation on unused 

spectrum. We will describe the 

procedures for filling in those unserved 

areas in a future public notice or as part 

of the periodic review process. 

Broadcasters failing to meet our 

replication or maximization deadlines 

will be permitted to reapply for 

authorization to provide service to those 

areas, but their applications will be 

subject to conflicting applications. This 

will allow other existing stations, 

including Class A eligible LPTV stations 

on out-of-core channels, the opportunity 

to apply to use this spectrum. The 

process for resolving conflicting 

applications will be announced in 

another public notice or proceeding. 

Pending DTV Construction Permit 

Applications 

95. Approximately 65 commercial and 

noncommercial television licensees 

have not yet been granted an initial DTV 

CP. Almost all of these licensees have 

filed an application for a digital CP, but 

grant of these applications has been 

delayed for a variety of reasons, 

including delays in international 

coordination with Canada and Mexico 

and unresolved interference issues. To 

date, these applicants have not been 

required to construct DTV facilities 

pending action on their outstanding 

DTV applications. To ensure that all 

licensees that have been allotted digital 

spectrum begin to provide digital 

service, we proposed in the Second DTV 

Periodic NPRM to require that all 

television licensees that have filed an 

application for a digital CP with the 

Commission that has not yet been 

granted commence digital service 

pursuant to special temporary authority 

(‘‘STA’’) within one year from adoption 

of the Report and Order in this 

proceeding.

96. It is crucial at this stage of the 

transition that all licensees with DTV 

CP applications that have not yet been 

granted begin to construct digital 

facilities. We will therefore adopt a 

proposal similar to that advanced in the 

NPRM. Rather than requiring licensees 

with pending DTV CP applications to 

construct at least the minimum initial 

facilities required to serve their 

communities of license within a year 

from the adoption of this Report and 

Order, as we proposed, we will instead 

require such licensees, within the same 

time frame, to construct and operate 

‘‘checklist’’ facilities that conform with 

the parameters of the DTV Table of 

Allotments and other key processing 

requirements. ‘‘Checklist’’ facilities have 

power and antenna height equal to or 

less than those specified in the DTV 

Table of Allotments and are located 

within a specified minimum distance 

from the reference coordinates specified 

in the DTV Table of Allotments. 

Because these facilities comply with the 

interference requirements specified in 

the rules, no further consideration of 

interference is required. In addition, 

because the DTV Table has been 

coordinated with Canada and Mexico, 

‘‘checklist’’ facilities generally do not 

require further international 

coordination. This approach best 

advances our goal of ensuring continued 

progress in the transition by requiring 

that all licensees begin to provide DTV 

service. ‘‘Checklist’’ applications are 

routinely processed by the Commission 

staff within three days of filing, and 

most do not require international 

coordination. Thus, this procedure is 

the most expeditious means of awarding 

DTV construction permits to those 

licensees who do not yet have them. 

97. Many licensees with pending DTV 

CP applications are facing delays 

beyond their control. Some are awaiting 

international coordination of pending 

applications or resolution of 

interference issues. Other licensees have 

applied for new DTV allotments either 

to replace an initial out-of-core 

allotment with one in the core or to 

otherwise improve their potential DTV 

service. Although the Commission will 

continue to work with applicants to 

resolve outstanding issues and to 

process pending applications for digital 

facilities as expeditiously as possible, 

we nonetheless agree with those 

commenters who argue that it is critical 

at this stage in the transition that all 

licensees begin working toward 

construction of DTV facilities.

98. We will allow licensees with 

pending DTV CP applications that file 

checklist applications to continue to 

pursue their non-checklist applications 

now on file. Thus, while these 

applicants will receive a construction 

permit for a checklist facility and will 

be required to construct such facilities 

within one year from adoption of the 

Report and Order in this proceeding, we 

will permit these applicants to continue 

to attempt to resolve the issues delaying 

approval of their non-checklist 

application currently on file with the 

Commission. If the non-checklist 

application is approved before 

construction of the checklist facility is 

complete, the permittee may request 

that the Commission substitute the nonchecklist CP for the checklist CP. The 

Commission will consider requests for 

waiver of the one year construction 

deadline, on a case-by-case basis, using 

the criteria for extension of DTV 

construction deadlines. Grounds for an 

extension must relate to the checklist 

facility, not the pending non-checklist 

application. 

Intermediate Signal Level 

99. In the First DTV Periodic MO&O, 

we allowed stations to commence 

digital operations by constructing and 

operating facilities that at least provide 

the required level of digital signal 

strength to their communities of license. 

We predicted that the ‘‘requirement that 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59519

broadcasters serve their community of 

license will ensure that, for most 

stations, the majority of their analog 

service populations will receive initial 

digital service.’’ We also decided to 

retain our enhanced principal 

community signal strength standard, 

which requires a 7dB increase in 

community of license coverage that 

must be met by December 31, 2004, for 

commercial stations and December 31, 

2005, for noncommercial stations. In the 

First DTV Periodic Report and Order, 

we imposed a principal community 

coverage requirement that is stronger 

than the DTV service contour 

requirement that we adopted as an 

initial obligation in the Fifth Report and 

Order. The purpose of our revised 

requirement was to improve the 

availability and reliability of DTV 

service in the community of license and 

provide an extra measure of protection 

from interference to DTV service in the 

community. The NPRM asked if 

significant numbers of consumers are 

not being served by stations operating 

under low-power STAs, and, if so, what 

actions the Commission should take. We 

asked whether we should establish a 

deadline by which stations must 

provide DTV service within the entire 

area of their analog ‘‘city-grade’’

coverage contour or their Grade A 

coverage. We also asked whether the 

7dB increase in community of license 

coverage will likely ensure that the 

majority of viewers are served without 

an additional coverage requirement. 

100. We conclude that we will not 

impose an intermediate signal level 

requirement. With the community of 

license signal strength increases set for 

2004 and 2005, we expect that more of 

broadcasters’ service areas will be 

covered as these dates approach. 

Increasing power is one way of 

increasing the signal strength within an 

area, such as the community of license. 

A 7 dB increase in a station’s power will 

result in a 7 dB increase in signal 

strength. A power increase will also 

increase the station’s service area. 

Increasing antenna height is another 

way to increase a station’s signal 

strength and service area. Nonetheless, 

we will closely monitor reports from 

consumers and other parties regarding 

broadcasters operating at insufficiently 

low power levels and will act on these 

reports should a pattern of abuse of our 

signal level requirements become 

evident. We may also, on our own 

initiative, conduct signal strength tests 

to ensure that broadcasters are operating 

at power levels that are consistent with 

the Commission’s requirements. 

Interference Protection of Analog and 

Digital Television Service in TV 

Channels 51–69 

Definition of ‘‘Actual’’ Parameters 

101. The Second DTV Periodic NPRM 

sought comment on an issue raised in 

the Public Safety Spectrum Report and 

Order. The NPRM explained that 

§§ 90.545(c) and 27.60(b) of the 

Commission’s rules describe alternative 

methods for a wireless applicant or 

licensee in the 700 MHz band to move 

closer to an analog TV or DTV antenna 

while still complying with the 

interference protection requirements in 

the rules. Pursuant to one of these 

alternatives, the applicant or licensee 

may submit an engineering study that 

considers the ‘‘actual,’’ rather than 

‘‘hypothetical,’’ parameters of the analog 

TV or DTV station and that 

demonstrates that the station’s actual 

coverage area is smaller than its 

hypothetical operating parameters—

because the station is operating, for 

example, with lower power than that 

presumed in the hypothetical 

parameters or because intervening 

terrain or other factors reduce the 

station’s coverage area—thereby 

permitting land mobile stations and 

these broadcast facilities to be more 

closely spaced. Reference to the Grade 

B contour of a ‘‘hypothetical’’ station 

permits an applicant or licensee to 

determine if there is any need to submit 

additional engineering studies or if 

there is not even a hypothetical station 

within the relevant area. If there is a 

hypothetical station, then the applicant 

or licensee must demonstrate how it 

would protect the actual (including 

authorized or applied for) parameters. 

The Public Safety Order allowed 

applicants to submit engineering studies 

showing how they propose to meet the 

appropriate desired to undesired (‘‘D/

U’’) signal strength ratio at the existing 

TV station’s ‘‘authorized or applied for’’

Grade B service contour or equivalent 

contour for DTV stations instead of 

providing the protection built into the 

distance spacing table, which is based 

on a standard TV station’s hypothetical 

Grade B contour. In the Second DTV 

Periodic NPRM, we tentatively 

concluded that §§ 90.545(c)(1)(ii) and 

27.60(b)(1)(iii) of our rules should be 

amended to make clear that the 

interference protection specified in 

those provisions should be afforded to 

authorized and/or applied for NTSC and 

DTV facilities, including the facilities 

specified on the broadcast station’s 

license or construction permit or both 

when a station has both a license and a 

construction permit. We sought 

comment on this tentative conclusion, 

as well as alternatives.

102. As proposed, we will amend 

§§ 90.545(c)(1)(ii) and 27.60(b)(1)(iii) to 

make clear that the interference 

protection specified in those provisions 

will be afforded to authorized and/or 

applied for NTSC and DTV facilities, 

including the facilities specified on the 

broadcast station’s license or 

construction permit or both when a 

station has both a license and a 

construction permit. In the TV and DTV 

broadcasting services, applicants file 

separately for a construction permit and 

a license to operate a facility when 

construction is completed. Licensees 

may also file applications for 

construction permits to modify their 

stations’ facilities. When applications 

are granted, the facilities are authorized 

by a construction permit or license. 

While some public safety and other 

entities in the 700 MHz band assert that 

protecting authorized and/or applied for 

NTSC and DTV facilities is unnecessary, 

this protection is necessary to permit 

broadcasters to increase their service to 

reach their replication and 

maximization levels without risk of 

interference from new services. 

Permitting stations to achieve 

replication and maximization coverage 

serves the transition to DTV by 

increasing the population with access to 

digital signals. In addition, as discussed 

in section IV.B., supra, replication on 

out-of-core DTV channels is necessary 

to preserve broadcasters’ opportunity to 

carry over their DTV service areas to 

their eventual in-core channels. As 

asserted by Sinclair, protecting less than 

the full replicated or maximized 

facilities could create loss of service to 

wireless or public safety providers when 

DTV stations increase to replicated or 

maximized facilities. Our existing bandclearing policies and newly introduced 

‘‘flash cut’’ policy discussed in section 

IV.B.2, supra, should alleviate some of 

the 700 MHz entities’ concerns by more 

rapidly freeing up additional spectrum 

in channels 52–69. New operations in 

the 700 MHz band will essentially need 

to provide the interference protection 

specified in §§ 90.545(c)(1)(ii) and 

27.60(b)(1)(iii) for authorized or applied 

for but un-built facilities only until the 

July 1, 2005, and July 1, 2006, 

replication/maximization interference 

protection dates. In limited 

circumstances we will grant interference 

protection beyond the replication/

maximization dates for stations granted 

construction extension waivers. As 

discussed above, if a broadcaster is not 

serving its fully authorized replication 

or maximization facilities on the 

59520 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

applicable interference protection 

deadline, we will require the 

broadcaster to obtain a license to cover 

its existing facility and will only protect 

that existing facility going forward. 

Applications for New Analog TV or DTV 

Facilities 

103. As we stated in the Second DTV 

Periodic NPRM, the Commission has 

determined it will not authorize new 

DTV facilities in channels 60–69. The 

Commission has also determined that it 

will not authorize additional new 

analog full-service television stations on 

channels 60–69, and that it would 

dismiss any application or allotment 

petition for a new analog facility that 

was not satisfactorily amended to 

specify a channel below channel 60 by 

the established deadline (referred to 

herein as the ‘‘July 15, 2000 filing 

window’’). Thus, there will be no new 

analog TV or DTV entrants in the 746–

806 MHz band, other than those 

acquired through auction, which 

wireless and other new service 

providers must protect. 

104. In the Lower 700 MHz Band 

Report and Order, we dismissed 

pending petitions for new NTSC 

channel allotments in the band 

comprising channels 52–59, stating that 

adding new analog TV allotments or 

stations at this stage of the transition 

would be inconsistent with the DTV 

transition process. With respect to 

pending applications for construction 

permits for new analog TV stations in 

this band, we provided a 45-day 

opportunity (referred to herein as the 

‘‘March 8, 2002 filing window’’) for 

applicants to request a change in their 

applications to either (1) provide analog 

or digital service in the core television 

spectrum, i.e., channels 2–51, or (2) 

provide digital service in the 698–740 

MHz band, i.e., channels 52–58. Any 

applications or rulemaking proposals 

and later associated applications filed 

by pending applicants during this 45-

day window must be protected by 

wireless and other entities. Because of 

the adjacent channel interference that 

new stations on channel 59 could cause 

to new licensees in the adjacent Upper 

700 MHz band, we concluded that we 

will no longer accept or grant any 

application for a new analog TV or DTV 

station on channel 59 nor permit an 

existing DTV station to modify its 

channel to channel 59. We required 

parties with outstanding applications 

specifying channel 59 to request another 

channel within 45 days after release of 

the Lower 700 MHz Band Report and 

Order. 

105. In the Second DTV Periodic 

NPRM we indicated that digital service 

in the Lower 700 MHz band could be 

proposed after the auction of channels 

in that band by a station with an 

existing DTV allotment on a channel 

outside the 52–58 band seeking to move 

to a channel inside this band or by a 

DTV station inside this band seeking to 

move to another channel inside the 

band. As we indicated in section IV. A. 

2, supra, we have determined herein 

that, in order to facilitate the channel 

election process, we will no longer 

accept, as of the date of adoption of this 

Report and Order, applications for DTV 

channel changes and swaps. Thus, there 

will be no new analog or DTV entrants 

in the 698–740 MHz band other than 

those acquired through auction. 

106. A few requests for DTV channels 

in the 52–58 band were filed during the 

July 15, 2000, and March 8, 2002, filing 

windows. The Commission has 

completed processing all but one of 

these petitions for rulemaking. While 

these parties may continue to pursue 

construction of their proposed facilities 

within the 52–58 band, we will permit 

these parties, upon Commission 

approval, to elect not to construct these 

facilities and instead to give up their 

assigned DTV channel in the 52–58 

band in return for a DTV channel inside 

the core. We will assign these 

broadcasters an in-core DTV channel 

when we generate a revised DTV Table 

of Allotments.

Channel 51 

107. In the Second DTV Periodic 

NPRM, we sought comment on the 

interference protection that should be 

afforded by wireless entities and other 

new service providers to future analog 

TV and DTV facilities on channel 51 

that are authorized or requested after the 

auction of the spectrum comprising 

channel 52. Channel 51 will remain 

allocated to broadcast use as part of the 

core television spectrum (channels 2–

51), and is available for use by existing 

and new analog TV and DTV stations. 

However, as we stated in the Second 

DTV Periodic NPRM, because channel 

51 is adjacent to channel 52 we are 

concerned about possible interference 

between new wireless and other 

licensees on channel 52 and operations 

on channel 51. In the Lower 700 MHz 

Report and Order, we declined to adopt 

a guard band or other specialized 

mechanism to protect DTV operations 

on channel 51, and stated that we would 

instead rely on interference protection 

criteria to ensure that new licensees 

adequately protect core channel TV and 

DTV operations. We noted that the 

adjacent channel protection for TV and 

DTV stations on channels 52–69 is no 

different from the protection for those 

stations in the core spectrum; only the 

duration of that protection differs. 

Because DTV stations on channels 52–

69 will eventually relocate to the core 

TV spectrum, the broadcast interference 

protection standards on channels 52–69 

will no longer apply after the transition. 

By contrast, the need for protection of 

broadcast operations on core TV 

channel 51 will continue indefinitely. In 

light of our concern about possible 

adjacent channel interference, we 

sought comment on whether we should 

provide the same level of adjacent 

channel protection to future analog and 

digital broadcast facilities on channel 51 

as is currently provided by wireless or 

other operators to incumbent analog and 

digital stations on this channel and, if 

so, how we can accomplish such 

protection without unduly restricting 

use of the channel 52 spectrum. 

108. We will accord the same level of 

adjacent channel protection to both 

incumbent and future analog and digital 

broadcast facilities on channel 51. Thus, 

wireless and other operators on channel 

52 must provide the interference 

protection prescribed in the Lower 700 

MHz Report and Order to all 

broadcasters on channel 51, including 

any that may commence operation after 

the auction of the adjacent channels in 

the 52–58 band. We agree with MSTV/

NAB that stations on channel 51 should 

receive the same level of protection as 

other stations on in-core channels, 

including protection from wireless and 

other new service providers. We 

disagree with Flarion that any 

interference protection the Commission 

adopts for channel 51 should be 

reciprocal. Channel 51 is part of the core 

channels reserved for broadcast use, and 

we do not believe use of channel 51 for 

broadcast purposes should be restricted 

in order to protect operations on 

channel 52, even if those operations 

predate the commencement of 

operations on channel 51. We also 

decline to adopt Flarion’s proposal that 

the Commission reduce or eliminate the 

required desired/undesired signal 

strength ratio for ‘‘distantly adjacent’’

wireless channels. This proposal to 

revisit the wireless to TV and DTV 

protection criteria established in the 700 

MHz proceedings is beyond the scope of 

this proceeding. The Commission’s 

rules do permit wireless and other 

operators in the 52–58 band to negotiate 

agreements with broadcasters and other 

operators to accept any interference that 

may be caused by operations on 

distantly adjacent frequencies. 

Licensees proposing new operations in 

the 700 MHz bands on a frequency 

‘‘distantly adjacent’’ to an existing 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59521

operation could also file a request for 

waiver of the interference requirements. 

Simulcasting 

109. In the DTV Fifth Report and 

Order, we adopted rules requiring DTV 

licensees to simulcast 50 percent of the 

video programming of their analog 

channel on their DTV channel by April 

1, 2003. This requirement increased to 

a 75 percent simulcasting requirement 

on April 1, 2004, and increases to a 100 

percent requirement on April 1, 2005. 

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. 

110. In the Second DTV Periodic 

NPRM, the Commission sought 

comment on whether we should retain, 

revise, or remove the simulcasting 

requirement in 47 CFR 73.624(f), how to 

define simulcasting, and whether the 

existing dates for implementation of the 

simulcasting requirements are 

appropriate. We asked in the Second 

DTV Periodic NPRM whether the 

ultimate requirement of 100 percent 

simulcasting other than at the very end 

of the transition creates a disincentive 

for broadcasters to innovate. We also 

asked whether a requirement to 

simulcast is necessary or whether 

broadcasters have a market-based 

incentive to simulcast and are currently 

simulcasting 100 percent of their analog 

programming on their digital channel. 

In addition, we sought comment on 

whether something less than a 100 

percent simulcasting requirement would 

be sufficient to protect analog viewers 

while allowing for innovation on the 

DTV channels.

111. In an Order adopted April 28, 

2003, the Media Bureau granted 

noncommercial educational television 

stations a six-month waiver of the DTV 

simulcasting requirements, until 

November 1, 2003. The Bureau noted 

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 sixmonth waiver of the simulcasting 

requirements in § 73.624(f) of the 

Commission’s rules. 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 or to 

permit stations to experiment with 

innovative uses of the digital channel. 

112. We believe that, at this point in 

the transition, mandating a requirement 

that the programming aired on the 

analog channel be simulcast on the 

digital channel is not necessary to 

advance transition progress. 

Simulcasting has been the general 

practice of broadcasters as the transition 

has progressed. Thus, broadcasters are 

not now treating their digital channel as 

a separate, unique program stream. We 

also agree with HDNet, Belo, and 

Disney/ABC that the availability of 

high-quality innovative digital content 

is critical to the advancement of the 

transition. There is evidence in the 

record that the simulcasting rule may 

impede the distribution of high 

definition programming to broadcasters. 

We are concerned that broadcasters not 

be impeded in developing, obtaining, or 

airing high definition and other 

innovative programming that could spur 

consumer demand for DTV. 

113. Accordingly, we will eliminate, 

for the time being, the requirement that 

broadcasters air on their digital channel 

the programming aired on their analog 

channel. We expect broadcasters to use 

this increased flexibility to provide 

innovative, value-added programming 

to consumers; if this expectation proves 

misplaced, we will take appropriate 

action. However, as we continue to 

monitor the progress of the transition in 

future DTV periodic reviews, we will 

continue to consider whether reimposition of a simulcasting 

requirement is advisable. Our concern is 

to ensure that, as the end of the 

transition nears, significant numbers of 

viewers will not be denied access to 

desirable programming aired only on 

analog channels. We believe that 

eliminating rather than reducing the 

simulcasting requirement is appropriate 

at this point in the transition. There is 

no evidence of the need for any 

simulcasting requirement at this time. 

While we recognize that, as NCTA 

argues, viewers could lose access to 

programs at the end of the transition if 

programs available on analog channels 

are not available on digital channels, we 

believe we can address this concern if 

the need arises closer to the end of the 

transition. Because we are eliminating 

the simulcasting requirement, we do not 

address herein the issue of how to 

define simulcasting in the context of the 

digital transition. 

114. Minimum hours of operation of 

digital stations. In the DTV Fifth Report 

and Order, we required DTV licensees 

and permittees to transmit at least one 

DTV signal at any time the licensee or 

permittee transmits an analog signal. In 

the First DTV Periodic MO&O, the 

Commission revised this requirement to 

allow stations subject to the May 1, 

2002, or May 1, 2003, digital 

construction deadlines to operate 

initially at a reduced schedule by 

providing, at a minimum, a digital 

signal during prime time hours, 

consistent with their simulcasting 

obligations. The top-four network 

affiliates in the top 30 television 

markets are required to operate their 

DTV stations whenever their analog 

stations are operating. The reduced 

digital operating schedule tied to the 

simulcasting requirements applies only 

to commercial stations in the top 30 

markets not affiliated with a top-four 

network, commercial stations in markets 

below the top 30, and noncommercial 

stations. The minimum operating hours 

for these digital stations effectively 

increases as the simulcasting obligations 

are phased in. For example, beginning 

April 1, 2003, DTV stations that were 

required to be on the air by May 1, 2002, 

are required to provide a simulcast 

digital signal at least 50 percent of the 

time they transmit an analog signal and, 

under the requirements of § 73.624(b)(1) 

of the Commission’s rules, are also 

required to air a digital video program 

signal during prime time. Along with 

the simulcasting requirements, the 

minimum hours requirements step up to 

a 75 percent requirement in April 2004, 

and a 100 percent requirement in April 

2005. Stations that were subject to the 

earlier DTV construction deadlines 

(May 1, 1999 for top-four network 

affiliates in the top 10 television 

markets and November 1, 1999 for all 

remaining top-four network affiliates in 

the top 30 television markets) are 

subject to our original rule requiring 

that they operate their DTV station at 

any time that the analog station is 

operating. 

115. We proposed in the Second DTV 

Periodic NPRM that, if we eliminate or 

reduce the simulcasting requirements in 

§ 73.624(f), we amend § 73.624(b)(1) of 

our rules in order to retain the same 

phased-in minimum DTV operating 

hours for smaller and smaller-market 

stations that were tied to the 

simulcasting requirements. A number of 

commenters argue that the Commission 

should postpone the date by which 

smaller-market stations have to expand 

59522 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

operating hours. For example, MSTV/

NAB argues that the Commission should 

maintain the DTV operating hours 

minimum at 75 percent for smaller and 

smaller-market broadcasters until the 

end of the transition, at which time a 

full-time operating requirement would 

begin. MSTV/NAB points out that, at 75 

percent, a station on the air in analog 

full time would provide digital service 

18 hours a day, leaving only the 

station’s least demanded hours of 

operation, such as the overnight hours, 

without DTV service.

116. As we proposed in the NPRM, 

we will retain the same minimum DTV 

operating hours for smaller and smallermarket stations as were in effect under 

the simulcasting requirements. Thus, 

DTV stations subject to the May 1, 2002, 

or May 1, 2003, construction deadlines 

will continue to be subject to the 

requirement, effective April 1, 2004, 

that they air a digital signal for an 

amount of time equivalent to 75 percent 

of the amount of time they provide an 

analog signal. Effective April 1, 2003 

and until the requirement increased on 

April 1, 2004, these stations were 

required to air a digital signal for 50 

percent of the time they provided an 

analog signal The digital signal must be 

aired during prime time hours. The 

minimum digital operation requirement 

will increase to 100 percent on April 1, 

2005 (requiring the airing of a digital 

signal for an amount of time equivalent 

to at least 100 percent of the amount of 

time the station airs an analog signal). 

We herein amend § 73.624 of our rules 

to retain the minimum operating hours 

requirements while deleting the 

simulcasting requirements. 

117. We disagree with Paxson that the 

minimum operating hours requirement 

should be delayed pending the 

Commission’s decision in the mustcarry proceeding. As we indicated in 

denying Paxson’s earlier request for a 

one-year waiver of the April 1, 2003 

operating hours requirement, we do not 

believe that the increase in the hours of 

digital programming offered to viewers 

needs to await finalization of the 

Commission’s separate proceeding 

regarding mandatory carriage of analog 

and digital signals during the transition. 

118. We also disagree with the other 

commenters who support a delay in the 

increase in the minimum operating 

hours of DTV stations. Increasing the 

operating hours of digital stations 

subject to the May 1, 2002, and May 1, 

2003, digital construction deadlines will 

help further the transition by helping to 

drive DTV set penetration and 

encouraging content producers and 

advertisers to invest in DTV. These 

stations have been on notice since the 

November 2001 adoption of the phasedin simulcasting requirement in the First 

DTV Periodic MO&O that their DTV 

operating hours must be stepped-up on 

April 1, 2004, and April 1, 2005. 

Postponing the required, gradual 

increase in the digital operating hours of 

these stations would be inconsistent 

with the ultimate goal of this proceeding 

of moving to an all digital television 

service. 

119. Finally, MSTV/NAB suggests 

that the Commission permit DTV 

stations coming on the air later than the 

April 1, 2003, and April 1, 2004, 

minimum operating hour deadlines (i.e., 

stations that have been granted an 

extension of time to complete 

construction of their DTV facilities and 

stations that have not yet been granted 

a DTV construction permit) to ramp up 

their hours of operation gradually. In 

the Second DTV Periodic NPRM, we 

stated that stations that have been 

granted an extension of time to 

construct beyond the simulcast 

deadlines must comply with the 

minimum digital operating 

requirements in effect at the time the 

station commences digital operations. 

We continue to believe that this 

approach is appropriate. We disagree 

with MSTV/NAB that these stations 

should be entitled to postpone 

increasing their digital hours of 

operation while other similar sized 

stations are required to provide more 

digital service. 

Noncommercial Educational Television 

Stations 

120. Noncommercial television 

broadcasters were scheduled to 

complete construction of their digital 

stations and commence digital service 

by May 1, 2003. Of the 373 

noncommercial television stations, 84 

were on the air either on time or ahead 

of this construction deadline and 

approximately 214 requested extensions 

of the deadline. The Commission has 

granted all of these extension requests. 

Other NCE stations have construction 

permits that have not yet expired or 

have filed construction permit 

applications with the Commission that 

have been processed and are awaiting 

additional information or international 

coordination, or are mutually exclusive. 

We invited comment in the Second DTV 

Periodic NPRM on what steps, if any, 

the Commission should take to assist 

noncommercial stations in the transition 

to DTV. In particular, we sought 

comment on whether the financial 

hardship standard for grant of an 

extension of time to construct a digital 

television station should be applied 

differently to noncommercial licensees. 

121. As we have acknowledged 

before, noncommercial stations face 

unique financial difficulties in 

constructing digital facilities. According 

to Public Television, 24 percent of the 

public television stations seeking an 

extension of the May 1, 2003, 

construction deadline cited funding 

difficulties as a motivating reason for 

the extension request. For those stations 

facing funding shortfalls we have and 

will continue to consider the unique 

funding needs of noncommercial 

educational broadcasters in assessing a 

station’s request for an extension of time 

to construct a DTV facility. As the 

unique circumstances of noncommercial 

stations are being considered under our 

current extension criteria, we do not 

believe it is necessary at this time to 

revise those criteria for noncommercial 

stations or to change the way we are 

applying the current criteria to this 

group. 

122. According to Public Television, 

NCE stations cite non-financial 

impediments to construction more 

frequently than financial impediments 

as the cause for delay in completing 

their DTV facilities. However, there is 

no evidence that noncommercial 

licensees face unique non-financial 

obstacles to completing construction. 

Thus, we also do not believe it is 

necessary at this time to revise our 

criteria for evaluating non-financial 

grounds for an extension for 

noncommercial licensees to assist this 

group to complete the digital transition. 

We will continue to monitor the 

progress of noncommercial educational 

television stations in their conversion to 

digital transmissions, however, and will 

continue to assess whether further steps 

are needed to assist these stations in 

accomplishing the conversion.

DTV Transmission Standard and PSIP 

Update of the DTV Transmission 

Standard 

123. In the DTV Tuner Order, we 

revised our rules to specify that the 

August 7, 2001, version of the ATSC] 

DTV standard A/53B should be used in 

place of the September 16, 1995, version 

originally adopted. We revised 

§ 73.682(d) of the rules to specify ATSC 

Doc. A/53B (ATSC Digital Television 

Standard, 7 Aug. 01), except for § 5.1.2 

(‘‘Compression format constraints’’) of 

Annex A (‘‘Video Systems 

Characteristics’’) and the phrase ‘‘see 

Table 3’’ in Section 5.1.1 Table 2 and 

Section 5.1.2 Table 4). We also 

acknowledged the likelihood that there 

will be further improvements made to 

the DTV standard over time, and stated 

our intention to consider incorporation 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59523

into our rules of proposed changes that 

reflect the kind of broad industry 

consensus developed through ATSC’s 

standards-making procedures. In the 

NPRM, we sought comment on whether 

our rules should be further changed to 

reflect any revisions to the ATSC DTV 

standard A/53B since the August 7, 

2001, version. 

124. We find that it is desirable and 

appropriate to update our DTV rules to 

recognize Amendment 1 (May 23, 2002) 

to ATSC DTV Standard A/53B (August 

7, 2001). We decline to mandate that 

broadcasters use the AFD when the 

active video portion picture does not 

completely fill the coded picture. The 

revisions in the new version of the 

ATSC DTV Standard were developed 

through careful consideration and 

deliberation within the technical 

committees of ATSC and thus reflect a 

consensus agreement based on the input 

of parties from various segments of the 

industry. While broadcasters will have 

the option to use AFD, if a station 

includes AFD data it must follow the 

ATSC DTV standard. As more 

consumers acquire widescreen aspect 

ratio sets, the problem of ‘‘postage 

stamp video’’ will become more 

prevalent if not addressed by 

broadcasters. Broadcasters should have 

every incentive to make their 

programming attractive to viewers and 

to avoid disenfranchising those viewers 

as they begin to adopt DTV. 

125. We will update our DTV rules to 

recognize Amendment 2, as released by 

the ATSC on May 19, 2003. Updating 

the rules to reflect improvements in the 

standard will benefit both the public 

and broadcasters by allowing 

broadcasters to make technical 

improvements in their service that will 

enhance the quality of DTV services 

they provide. Accordingly, we are 

revising § 73.682(d) of the rules to 

specify ATSC Doc A/53B (ATSC Digital 

Television Standard, 7 Aug 01), 

Revision B with Amendment 1 and 

Amendment 2. We also continue to 

encourage further improvements to the 

DTV standards. Although it will be 

necessary to conduct additional rule 

making activity to incorporate such 

changes in the rules, we nonetheless 

will endeavor to pursue such rule 

making as quickly as possible, either 

through our periodic review of the DTV 

transition or through separate 

proceedings as may be appropriate. 

126. The ATSC also adopted 

Amendment 2 to A/53B, which revises 

the transport section of the ATSC Digital 

Television Standard, Annex C, to 

update normative references to avoid 

conflicts, and to establish a common 

methodology for carriage of private data 

in the ATSC Transport Stream. The 

amendment defines the ATSC Private 

Information Descriptor for the carriage 

of private descriptor-based data, and it 

also clarifies rules for use of the MPEG–

2 Registration Descriptor mechanism for 

management of private data in the 

digital multiplex. To be consistent with 

the current version of the ATSC A/52 

Digital Audio Compression Standard, 

Amendment 2 revises the way audio 

language is signaled in the ATSC system 

and specifies the use of ISO–639 

language encoding to identify written 

and spoken languages. Amendment 2 

also specifies some requirements that 

had been implemented in transmission 

and receiving equipment but not 

properly specified in A/53B. These 

included the requirement that each 

service with an audio component must 

include at least one ‘‘complete main’’

audio service and the requirement that 

the video Elementary Stream 

component be identified with MPEG–2 

stream-type value 2. Upon final 

approval of the ATSC membership, 

ATSC suggests that the Commission 

incorporate Amendment 2 to A/53B into 

its rules. 

PSIP 

127. In the DTV Tuner Order, we 

stated that we would seek comment on 

whether the Commission should adopt 

the ATSC Program System and 

Information Protocol (‘‘PSIP’’) standard 

into our rules as part of the DTV 

periodic review process. We stated that 

in the interim we will continue to 

support and encourage the voluntary 

use of the PSIP specification by 

broadcasters and cable operators and its 

inclusion in consumer electronics 

equipment. Section 73.682(d) of our 

rules includes a reference to the ATSC 

PSIP Standard as a document that 

licensees may consult for guidance PSIP 

is data that is transmitted along with a 

station’s DTV signal that tells DTV 

receivers information about the station 

and what is being broadcast. PSIP 

provides a method for DTV receivers to 

identify a DTV station and to determine 

how a receiver can tune to it. PSIP 

identifies both the DTV channel and the 

associated NTSC channel and enables 

DTV receivers to associate the two 

channels, thereby making it easy for 

viewers to tune to the DTV station even 

if they do not know the channel 

number. Linkages between analog and 

DTV channels are managed through the 

DTV ‘‘Transport Stream Identifier’’ and 

analog ‘‘Transmission Signal ID’’ (Both, 

‘‘TSID’’). The Association for Maximum 

Service Television (‘‘MSTV’’) has 

undertaken the task of maintaining a list 

of TSIDs. In addition to identifying the 

channel number, PSIP tells the receiver 

whether multiple program channels are 

being broadcast and, if so, how to find 

them. It also identifies whether the 

programs are closed captioned, and 

conveys available v-chip information, 

among other things. As will be 

discussed in sections J. 3 and K., infra, 

PSIP enables the proper functioning of 

v-chip and closed captioning. The 

Commission has recognized the utility 

that the ATSC PSIP Standard offers for 

both broadcasters and consumers. The 

channel mapping protocols contained in 

the PSIP identification stream could 

help resolve issues associated with 

digital channel positioning. In the 

NPRM, we sought comment on whether 

to require the use of PSIP and which 

aspects of PSIP should be adopted into 

our rules. We also sought comment on, 

among other things, whether and how 

broadcasters include PSIP information 

with their digital broadcast signals and 

also how consumer electronics 

equipment manufacturers build 

equipment to search for information in 

DTV signals.

128. We conclude that adoption of 

ATSC A/65B (PSIP) into our broadcast 

transmission standards will serve the 

public interest. As pointed out by 

commenters, during the development of 

PSIP, the ATSC carefully considered 

which elements of PSIP should be 

mandatory and which should be 

optional. Further, based its experience 

with the deployment of over 180 PSIP 

systems, Harris states that it is not aware 

of any difficulties that are experienced 

by either the broadcaster or the viewing 

consumer if the ATSC A/65B PSIP 

standard is properly implemented. We 

find the cost to broadcasters of 

implementing PSIP will be minor in 

comparison to the overall costs of 

converting to DTV and will provide 

many options to expand on the 

investments they have made to convert 

to DTV. Harris reports that based on its 

experience as a manufacturer of 

broadcast station PSIP equipment, it 

currently would cost a DTV broadcast 

station $29,900 for full implementation 

of PSIP, including all Program and 

System tables. Harris Comments at 9. 

We therefore require that broadcasters 

fully implement PSIP to the extent that 

ATSC A/65B requires. According to

A/65, the PSIP mandatory tables are: 

Master Guide Table (MGT); Terrestrial 

Virtual Channel Table (TVCT); Event 

Information Tables (EIT–0 to EIT–3); 

System Time Table (STT); Rating Region 

Table (RRT). According to A/65, the 

RRT is not mandatory for the U.S. 

region (0x01). Transmission of the RRT 

is not necessary where the content 

59524 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

advisory ratings table is fixed, as is the 

case now in the U.S. If the ratings 

system were to change, however, or an 

addition to the ratings system were to be 

adopted, broadcasters would have to 

transmit a new RRT in order to transmit 

the new or additional ratings 

information. See section IV.J.3., infra, 

for discussion of the RRT. In order to 

give broadcasters adequate time to come 

into compliance, this requirement shall 

take effect 120 days after publication in 

the Federal Register. We expect 

broadcasters to populate the required 

tables and descriptors with the proper 

information to help receivers assemble 

functioning guides. All tables and 

descriptors that require one time setup 

should be set correctly, including TSID, 

Short Channel Name, Service Type, 

Modulation Mode, Source ID, and 

Service Location Descriptor. ATSC A/

65B also requires that broadcasters send 

populated EITs covering at least a 12 

hour period. These EITs should be 

populated with the correct information, 

so that the user knows what programs 

are on for this 12 hour period. Also, we 

expect that manufacturers will have 

every incentive to build equipment that 

looks to PSIP for its basic functionality, 

but we will revisit the issue if necessary. 

Standardized use of the data transmitted 

through PSIP will ensure that the full 

benefits and innovations of the new 

digital system will be available to the 

public. PSIP enables improvements to 

program guides, closed captioning, and 

use of v-chip, and enables channel 

number navigation using the familiar 

analog channel numbers to tune to new 

digital channel assignments. 

129. Major/Minor Channel Numbers. 

In the NPRM, we noted that the ATSC 

PSIP standard attaches the assignment 

of ‘‘major channel number’’ values to a 

broadcaster’s current NTSC RF channel 

number regardless of the actual RF 

channel used for DTV transmission, and 

sought comment on whether there was 

any need to modify this standard. For 

example, a broadcaster who operates an 

NTSC service on channel 4 and a DTV 

service on channel 27 would use the 

major channel 4. The PSIP ‘‘minor 

channel number’’ is used to identify 

programs and other services, which are 

a part of the DTV service. For example, 

channel 4.1 may be an HDTV program 

service and it may be multiplexed with 

an SDTV service, which is channel 4.2. 

According to ATSC, this allows a viewer 

to easily ‘‘surf’’ from, for example, 4.0 

(NTSC) to 4.1 (HDTV) to 4.2 (SDTV). 

ATSC, MSTV/NAB, and others state that 

the major/minor channel number 

scheme established in ATSC A/65B will 

be useful. ATSC states that the PSIP 

Standard defines specific requirements 

for use of ‘‘major channel numbers’’ to 

provide viewers with a uniform 

methodology to access DTV services and 

to avoid conflict with duplicative 

numbers in a market. The major channel 

number also allows broadcasters to 

maintain their local brand 

identification. We see no reason to 

modify this standard. During the 

development of PSIP, ATSC recognized 

that in some situations broadcasters 

would need to deviate from the rule that 

the major channel number is the same 

as the broadcaster’s NTSC channel 

number and created certain exceptions. 

Exceptions are, for example: (1) If a 

broadcaster without an NTSC broadcast 

license applies and receives a license for 

a digital broadcast channel, the major 

channel number should be the same as 

the DTV RF channel; (2) if a broadcaster 

owns or controls broadcast licenses for 

two or more different RF channels 

having overlapping service areas, a 

common major channel number for all 

services on all channels may be used; 

(3) if a broadcaster includes in its DTV 

service programming originating from a 

different licensed broadcaster, the major 

channel number of the original 

broadcast may be used as long as it is 

coordinated to avoid conflicts; and, (4) 

for a translated signal, the major/minor 

channel numbers shall remain the same 

as the original broadcast station unless 

the major channel conflicts with a 

broadcaster operating in the service area 

of the translator. In that case, the 

translator changes the major number to 

a non-conflicting number. We agree 

with ATSC and MSTV/NAB that these 

exceptions should provide broadcasters 

with the necessary flexibility to address 

most circumstances. To the extent 

broadcasters have a unique situation 

that is not provided for in PSIP, the 

Commission may grant exceptions on a 

case-by-case basis. The correct TSIDs 

must be used to ensure that receivers 

link the analog and digital channels 

properly. Accordingly, broadcasters are 

required to transmit the TSIDs assigned 

for their stations in their digital 

transmission. During the transition 

period while both analog and digital 

signals are broadcast, stations are 

required to transmit the NTSC TSID in 

line 21, field 2 in order for the receiver 

to locate the programs referenced in 

PSIP. 

PSIP and DTV V-Chip 

130. In the NPRM we asked if the 

Commission needs to do more to ensure 

that v-chip functionality is available in 

the digital world. While the 

Commission’s rules require that digital 

television receivers have the capability 

to enable viewers to block the display of 

programs with a common rating, the 

technical standards to achieve this goal 

are not specified. We expressed concern 

that the lack of a specific requirement 

may lead to confusion among 

broadcasters and manufacturers with 

regard to where to place program rating 

information, resulting in the failure of 

the blocking functionality that the vchip provides. Accordingly, we sought 

comment on whether the Commission 

should adopt the provisions of the 

ATSC A/65A standard that requires all 

digital television broadcasters to place 

v-chip rating information in the PSIP. 

We also asked whether it was necessary 

to require equipment manufacturers to 

develop equipment that accesses 

program rating information in the PSIP. 

Finally, we requested comment on a 

Petition for Rulemaking filed by CEA 

which sought to incorporate industry 

standard EIA/CEA—766 into the 

Commission’s rules to facilitate v-chip 

functionality in digital receivers. 

131. As an initial matter, we reiterate 

that this Order adopts the ATSC A/65 

PSIP standard in its entirety. This Order 

also requires that broadcasters transmit 

all mandatory tables and descriptors of 

PSIP with their digital programming. 

Accordingly, the Event Information 

Tables (‘‘EITs’’) defined within PSIP 

will contain any available Content 

Advisory Descriptors (‘‘CADs’’) for 

broadcast programming. The PSIP 

requirements do not mandate 

broadcaster use of v-chip but rather 

require that broadcasters that choose to 

provide v-chip blocking information do 

so by following the PSIP protocols. For 

terrestrial broadcast, if parental advisory 

information is to be provided, the 

Content Advisory Descriptor is required 

in the EIT, which is an element of the 

PSIP Standard. This uniform 

transmission practice will ensure that 

various receiver manufacturers can 

more readily design products which 

will search for and react to program 

rating information on a consistent basis. 

Sharp Electronic Corporation states that 

numerous consumer electronics 

companies are currently designing and/

or selling digital televisions that utilize 

the content advisory data as defined in 

the PSIP. While we believe that this is 

indeed the case, we are nonetheless 

adopting rules to require digital 

television receivers to look for the 

content advisory descriptors in the EITs. 

47 U.S.C 330(c) instructs the 

Commission to oversee ‘‘the adoption of 

standards by industry for blocking 

technology,’’ and to ensure that blocking 

capability continues to be available to 

consumers as technology advances.

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59525

132. The PSIP carries the Rating 

Region Table (‘‘RRT’’), which describes 

the content advisory rating system being 

used. Without the information in the 

RRT, the program rating icons (e.g., TV–

Y7 or PG–13) will be displayed, but the 

explanations of the icons will not. ATSC 

in their comment states that: ‘‘The PSIP 

Standard does provide the ability to 

extend or replace the content advisory 

system in the U.S. by assignment of a 

new, different rating region code. 

Receivers that are built compliant with 

CEA standards and recommended 

practices will support an additional new 

system with one or more independent 

categories, each with a series of levels 

definable by a new RRT.’’ Some have 

expressed concern that the current 

ratings system is ‘‘hard-wired’’ into 

digital televisions, making 

modifications impossible on existing 

sets. We generally believe that the 

ability to modify the current content 

advisory system is beneficial. The 

suggestion by ATSC to use a different 

U.S. rating region code for any 

additional new rating system ensures 

that the older RRT remains intact for 

legacy digital receivers that have not 

been designed to process newer versions 

of the RRT. These legacy digital 

receivers could continue to be used and 

would not be rendered obsolete. At the 

same time, newer digital receivers 

would be able to recognize and respond 

to an additional rating system. 

Accordingly, to ensure the ability to 

modify the content advisory system, 

receivers must be able to process newer 

RRT version numbers or use new rating 

region codes as suggested by ATSC. 

133. As requested by CEA, we are 

adopting by reference CEA–766 CEA–

766 specifies the exact syntax to be used 

to define the U.S. and Canadian RRTs in 

accordance with A/65, as well as exact 

syntax to be used for the CADs that 

convey the rating information. U.S. and 

Canadian Rating Region Tables (RRT). 

We note that the adoption of the 

standard will not preclude 

manufacturers from incorporating 

additional blocking standards or 

techniques into receivers. Therefore, 

additional blocking techniques that are 

dependent only on inputs such as the 

date, time of day, or television channel, 

may be incorporated into television 

receivers as manufacturers see fit. 

134. Additionally, we are adopting 

our proposal to apply v-chip rules to 

digital television receivers with displays 

in the 16:9 aspect ratio that are 7.8 

inches or greater in height. Furthermore, 

we are requiring that v-chip technology 

be included in all digital television 

receivers with integrated 4:3 displays 

measuring at least 13 inches diagonally. 

Similar to our requirements for closed 

caption capabilities in digital television 

receivers, the rules will also be 

applicable to DTV tuners which are sold 

without an associated display device. 

135. Finally, we are inclined to 

provide a transition period for 

manufacturers to begin producing 

compliant digital television receivers. 

We understand that the design cycle of 

a television receiver model is generally 

about 18 months. The Commission has 

previously taken into consideration 

receiver design cycles in proceedings 

that required the introduction of new 

television technology. We also 

understand that many manufacturers are 

currently relying on CEA 766 to comply 

with the Commission’s v-chip 

requirements as applied to digital 

receivers. Our existing requirement that 

digital television receivers react in a 

similar manner as analog televisions 

when programmed to block specific 

rating categories ensures that digital 

receivers will continue to respond to vchip information during the phase-in 

period. Therefore, we believe it is 

reasonable to provide an 18 month 

transition period. After the transition 

period, all digital television receivers 

will be required to provide v-chip 

functions following the regulations that 

we adopt in this proceeding. 

PSIP and LPTV/TV Translators 

136. We also requested comment on 

issues concerning the implications of 

PSIP on the operation of TV translator 

facilities. We requested comment on 

how the proper PSIP information is to 

be provided on TV translator 

rebroadcasts and who will be 

responsible for ensuring that that 

information is provided. We also 

requested comment regarding the costs 

of providing PSIP information on TV 

translators as well as any other concerns 

that translator operators might have in 

implementing PSIP on their DTV 

operations. We further note that a 

similar issue arises with cable service 

when a broadcast DTV signal or its 

associated analog signal is carried on a 

cable system on a channel that is 

different from its broadcast signal. PSIP 

in the context of cable carriage is a topic 

in a pending proceeding. We received 

comments from CEA, ATSC, Public 

Television, and Harris in response to 

our questions. In August 2003, the 

Commission initiated a proceeding to 

examine issues related to the 

authorization of digital translators and 

boosters. Because the record will be 

more specifically tailored to LPTV, 

translators, and boosters, we will 

address the implications of PSIP on 

those facilities in connection with the 

Digital LPTV proceeding. 

DTV Closed Captioning 

137. The Television Decoder Circuitry 

Act of 1990 requires generally that 

television receivers contain circuitry 

that is able to decode and display closed 

captioning. The Act also directs the 

Commission to take such action that it 

determines appropriate to ensure that 

closed captioning service continues to 

be available to consumers as new 

technology is developed. In accordance 

with the Act, in July, 2000, the 

Commission adopted regulations with 

regard to the functioning of digital 

television receivers and closed 

captioning services. The DTV Closed 

Captioning Order incorporated Section 

9 of the EIA/CEA standard EIA–708–B 

with minor modifications into the 

Commission’s rules. This industry 

standard provides guidelines for caption 

providers as well as encoder and 

decoder manufacturers to implement 

closed captioning services with digital 

television technology. The DTV Closed 

Captioning Order also amended § 79.1 

of the Commission’s regulations to 

require an increasing amount of digital 

programming to be captioned in a 

format that can be recovered and 

displayed by decoders meeting the EIA–

708–B standard.

138. As part of Second DTV Periodic 

NPRM, the Commission sought 

comment on whether there was 

additional action that it should take to 

ensure the accessibility and functioning 

of closed captioning service for digital 

television. Several commenters asserted 

that some issues need to be clarified in 

order for closed captioning services to 

be consistently and effectively 

delivered. For example, NCAM 

contends that in some cases 

broadcasters may not be delivering true 

DTV caption data intended for digital 

television receivers. Instead, those 

broadcasters are delivering NTSC type 

data, intended for use when digital 

programming is down-converted for 

display on analog receivers. NCAM 

states that, without DTV captioning 

data, digital receivers may not be able to 

function in the manner in which the 

Commission intended. In fact, some of 

these receivers may not display any 

captions at all. 

139. We note that the EIA–708 

standard provides comprehensive 

instructions for the encoding, delivery, 

and display of closed caption 

information for digital television 

systems. The standard provides for a 

larger set of captioning characters than 

the analog captioning standard, EIA–

608. However, EIA–708 also supports 

59526 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

transport of the analog EIA–608 

captioning information for use when a 

digital broadcast is being viewed on an 

analog receiver through a DTV 

converter. The rules adopted in the DTV 

Closed Captioning Order were intended 

to require that the decoder circuitry in 

digital tuners respond primarily to any 

digitally formatted caption information. 

Accordingly, consumers who purchase 

DTV receivers will be confident that 

they will be able to take advantage of 

the new capabilities of captioning in the 

digital environment. Therefore, we 

hereby clarify that digital television 

receivers must first search for and 

respond to native EIA–708 closed 

caption information. Only if that 

information is not available in the DTV 

datastream should the receiver search 

for any available transcoded analog 

captioning data conforming to the EIA–

608 standard. Furthermore, broadcasters 

should be aware that receivers will be 

searching for EIA–708 data in all digital 

broadcasts. If digital programming is to 

be captioned, it must contain EIA–708 

data. This applies to all digital broadcast 

programming, regardless of whether the 

programming is delivered in standard 

definition or high definition. 

140. In the DTV Closed Captioning 

Order, the Commission observed that 

viewers will be able to watch digital 

programming on existing analog 

displays by using a DTV converter. With 

regard to the broadcasters’ responsibility 

to deliver closed caption data, the DTV 

Closed Captioning Order states that, 

‘‘[I]n order for programming distributors 

to count captioned digital television 

programming toward their closed 

captioning requirements in 47 CFR 

Section 79.1, they must also transmit 

captions than can be decoded by the 

decoder in that analog set.’’ Therefore, 

while all captions supplied with new 

digital programming should conform to 

the standards for ‘‘native’’ EIA–708 style 

captions as detailed in the standard, 

analog captions must also be provided 

if a broadcaster wishes to count the 

programming towards its quarterly 

captioning requirements. 

141. In the Second DTV Periodic 

NPRM we noted that at the time the 

DTV Closed Captioning Order was 

adopted the Commission had not made 

broadcasters’ adherence to the ATSC

A/65 (PSIP) standard a requirement. We 

stated that the standard requires the 

caption service descriptor to be in the 

EITs and makes optional the presence of 

the caption service descriptor in the 

Program Mapping Table (PMT). EIA–

708 standard requires the caption 

service descriptor to be in the PMT and, 

when present, in the EITs. We 

questioned whether a requirement for 

all digital television broadcasters to 

place the caption service descriptor in 

the EITs alone would eliminate 

situations in which digital television 

receivers that search for closed 

captioning information in the EITs are 

not able to find any captioning 

information although it is present in the 

PMT according to EIA–708. We believe 

that our decision to adopt the PSIP 

standard in its entirety along with the 

previous adoption of the EIA–708 

results in the caption service descriptor 

being present in both EITs and in the 

PMTs. This proposal to require the 

caption service descriptor to be present 

in both places will ensure that legacy 

digital receivers that have been designed 

according to EIA–708 alone could 

continue to find the caption service 

descriptor in the PMT and would not be 

rendered obsolete. 

DTV Labeling Requirements and 

Consumer Awareness 

142. The Second DTV Periodic NPRM

requested comment on the need for 

labeling requirements to provide 

consumers with information on the 

capabilities of digital television 

equipment at the point of sale. We noted 

that a General Accounting Office 

(‘‘GAO’’) Report to Congress in 2002 

found that at least 40 percent of the 

public was unfamiliar with the digital 

transition, and 68 percent of those 

surveyed did not know that when the 

transition ends, consumers with analogonly sets will be unable to continue 

receiving over-the-air broadcast 

television without use of an external 

digital tuner or converter. Only 14 

percent of those surveyed by the GAO 

were ‘‘very familiar’’ with the difference 

between analog and digital televisions. 

GAO speculates that even this number 

may be high because consumers may be 

confusing current digital television 

services provided by cable or satellite 

with DTV. In addition, we sought 

comment on whether to require a 

disclosure label on analog-only sets or a 

digital conversion fact sheet to inform 

consumers that a converter or external 

DTV tuner will be needed to ensure 

reception of television broadcast signals 

after stations in the consumer’s market 

complete conversion to digital-only 

broadcasting.

143. In the first DTV periodic review 

proceeding, we sought comment on 

whether we should require digital 

television equipment that cannot 

receive over-the-air digital broadcast 

signals to carry a label informing 

consumers of this limitation on the 

receivers’ functionality. In the DTV 

Tuner Order, we observed that the 

reluctance of the public to buy digital 

receivers is the problem with reaching 

the 2007 target date for completing the 

transition. We required that all TV 

receivers with screen sizes greater than 

13 inches manufactured in the U.S. after 

July 1, 2007 be capable of receiving DTV 

signals over-the-air. As DTV tuners 

reach the market, consumers will only 

buy them if they understand what they 

are and that the future utility of analogonly televisions is limited. We decided 

not to require in that proceeding that 

television receivers that cannot receive 

over-the-air digital broadcast signals 

carry a label informing consumers of 

this limitation but we resolved to 

monitor the marketplace and take steps 

as necessary to protect consumers’

interests. 

144. Accurate communication of the 

impending change from analog to digital 

transmission is a highly material 

disclosure for consumers contemplating 

the purchase of a television. Retailers 

sell analog-only televisions for over 

$500 without prominent disclosure that 

they will not receive television signals 

without additional equipment after the 

analog spectrum is returned. We 

believe, as retailers and manufacturers 

agree, that communicating product 

attributes and features spur sales. We 

agree with Thompson that it is 

important to use the same nomenclature 

and definitions industry-wide. CEA has 

developed uniform nomenclature that 

appears in its Consumer Guide to 

HDTV, but the labeling recommended 

has not been adopted by manufacturers 

and retailers on a widespread basis. For 

example, Best Buy offers ‘‘HD-Ready’’

televisions, which is not a term defined 

in CEA’s consumer guide. Best Buy’s 

website defines it as ‘‘Fully capable of 

high-definition display when connected 

to an optional HDTV source. 

Conventional analog TV reception is 

provided via a built-in NTSC tuner.’’

The prices for such ‘‘HD-Ready’’

televisions range from $999.99 

(Samsung) to $1999.99 (Toshiba). 

Recent ex parte filings indicate that the 

relevant industries, manufacturers and 

some retailers, are working on improved 

sales materials and clear, standard 

terminology and an increasing amount 

of information available for consumers 

who research on the Internet or in 

industry publications. However, much 

of the mass advertising and point of sale 

information remains confusing, 

inconsistent, and lacks explanation of 

the eventual limitations on analog-only 

equipment. For example, a sign or cling 

label displayed at point of sale could 

say: ‘‘Analog only—Not digital; will 

need separate converter box for over-air 

reception.’’ We have been reluctant to 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59527

require specific labeling and expected 

that manufacturers and retailers would 

develop consistent, clear and uniform 

terminology to convey to consumers 

prior to purchase the features and 

limitations of television products, such 

as a chart of available features with 

‘‘Yes’’ or ‘‘No’’ or checkmark indicated 

for each feature, including whether the 

equipment is analog-only and will 

require additional equipment to receive 

television signals after the transition. 

We are working with the parties and 

consumer organizations to develop 

materials and techniques for consumer 

education. Therefore, at this time, we 

will not determine whether it is 

necessary for the Commission to require 

labeling. We will reserve that 

determination for further consideration 

in the Second Report and Order in the 

Second DTV Periodic Review, which 

will address the interpretation of section 

309(j)(14). 

DTV Station Identification 

145. Under our current rules, 

television stations are required to make 

station identification announcements at 

the beginning and end of each time of 

operation as well as hourly. 47 CFR 

73.1201(a). Section 73.1705 (‘‘Time of 

Operation’’) of the FCC’s rules specifies 

whether commercial and 

noncommercial TV and radio stations 

may be licensed for unlimited time 

operation, share time operation, and/or 

specified hours operation (such as 

daytime-only). 47 CFR 73.1705. Official 

station identification may be made 

visually or aurally, and must consist of 

the station’s call letters immediately 

followed by the community or 

communities specified in the station’s 

license as the station’s location. 47 CFR 

73.1201(b). Digital television stations 

have been assigned the same call letters 

as their associated analog TV stations, 

except that the digital station is 

identified with the suffix ‘‘DT.’’ Either 

or both the name of the licensee and the 

station’s channel number may be 

inserted between the call letters and the 

station location, but no other insertion 

is permissible. Television satellite 

stations must include in their station 

identification announcements the 

number of the channel on which each 

station is operating. 47 CFR 

73.1201(c)(3)(i). 

146. We will adopt our proposal and 

require digital television stations to 

follow the same rules for station 

identification as analog television 

stations. Thus, digital stations will be 

required to make station identification 

announcements, either visually or 

aurally, at the beginning and end of 

each time of operation as well as hourly. 

As with analog stations, we will require 

that the identification consist of the 

station’s call letters followed by the 

community or communities specified in 

the station’s license as the station’s 

location. Stations may insert between 

the call letters and the station’s 

community of license the station’s 

frequency, channel number, name of the 

licensee, and/or the name of the 

network, at their discretion. We will not 

adopt the proposal of WDLP to permit 

stations to omit the station’s call letters 

in their identification. Each station’s 

call letters are unique; thus, call letters 

serve as the clearest means of 

distinguishing among stations. As 

stations transition to digital format and 

provide multicast programming, thereby 

increasing the number of program 

streams potentially available to the 

public, clear identification of the station 

providing the programming viewers are 

watching becomes increasingly 

important, both for viewers and for 

stations themselves. 

147. If a station chooses to include its 

channel number in its station 

identification, we will require that the 

station use the major (analog) channel 

number. As discussed above, we have 

decided to adopt the ATSC A/65B 

standard into our rules. One of the most 

important benefits of PSIP is that it 

defines specific requirements for use of 

‘‘major’’ channel numbers to provide 

viewers with a uniform methodology to 

access DTV services and avoid conflict 

with duplicative numbers in a market. 

PSIP will allow viewers to see a 

broadcaster’s major channel number 

regardless of the broadcaster’s allocated 

digital broadcast channel. Thus, PSIP 

allows broadcasters to keep their 

existing channel number in the digital 

world, thereby assisting viewers who 

have come to identify these numbers 

with particular broadcasters and 

preserving the investment broadcasters 

have made in marketing these numbers. 

We believe that it is consistent with our 

adoption of the PSIP standard into our 

rules to require stations electing to 

identify themselves by channel number 

to use their major channel number, 

which is defined in the PSIP standard 

as the broadcaster’s current NTSC RF 

(analog) channel number. Thus, a 

broadcaster who operates an NTSC 

service on channel ‘‘26’’ and a DTV 

service on channel ‘‘27’’ would use the 

major channel ‘‘26’’ in station 

identification announcements. We will 

permit stations that choose to multicast 

to include additional information in 

their station announcements identifying 

each program stream. Thus, a station 

with major channel number 26 might 

have channel 26.0 (NTSC program 

stream), channel 26.1 (HDTV) and 26.2 

(SDTV). Stations may also provide 

information in the station 

announcement identifying the network 

affiliation of the program service (e.g., 

‘‘WXXX–DT, channel 26.1, YYY 

(community of license), your WB 

network channel’’).

148. For stations simulcasting their 

analog programming on the digital 

channel, we will permit station 

identification announcements to be 

made simultaneously for both stations 

as long as the identification includes 

both call signs (e.g., ‘‘WXXX–TV and 

WXXX–DT’’) if it is intended to serve as 

the identification for both stations. Our 

rules currently allow co-owned AM/FM 

radio stations licensed to the same 

community simultaneously 

broadcasting the same programming on 

both stations to make joint station 

identification announcements for both 

stations. 47 CFR 73.1201(c)(2). If they 

chose to make simultaneous 

identifications for more than one 

channel, stations should ensure that 

these announcements are adequate to 

identify both program streams. 

Distributed Transmission Technologies 

149. In the Second DTV Periodic 

NPRM we sought comment on whether 

we should provide for DTV stations 

using distributed transmission 

technologies. A DTV distributed 

transmission system would employ 

multiple synchronized transmitters 

spread around a station’s service area. 

Each transmitter would broadcast the 

station’s DTV signal on the same 

channel, relying on the performance of 

‘‘adaptive equalizer’’ circuitry in DTV 

receivers to cancel or combine the 

multiple signals plus any reflected 

signals to produce a single signal. Such 

distributed transmitters could be 

considered to be similar to analog TV 

booster stations, a secondary, low power 

service used to ‘‘fill in’’ holes in the 

parent station’s coverage area, but DTV 

technology has the potential to enable 

this type of operation in a much more 

efficient manner. The Commission’s 

Spectrum Policy Task Force has 

recommended that digital television 

broadcasters be permitted to operate 

single frequency low power distributed 

transmission systems within their 

present service areas. For analog TV 

boosters, in contrast, significant selfinterference will occur unless there is 

substantial terrain blocking the arrival 

of multiple signals into the same area 

(for example, one signal from the 

primary analog station directly and one 

signal from a booster station). 

59528 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

150. In addition to the fundamental 

question of whether to allow distributed 

transmission technology, we sought 

comment on many related issues, such 

as whether such facilities should have 

primary or secondary regulatory status, 

whether we should limit the location of 

or area served by distributed 

transmitters, how interference to and 

from such transmitters should be 

calculated, and what power, antenna 

height, or other technical standards or 

limits should be imposed. 

151. We agree with the generally 

supportive comments that the 

technology has potential benefits to the 

public and the reported testing to date 

is encouraging. Thus, in principle, we 

approve of the use of DTS technology. 

As suggested by MSTV/NAB, we will 

soon open a separate ‘‘fast track’’

proceeding to propose rules for DTS 

operation and to develop an adequate 

record on several technical and policy 

issues related to its use. In that 

proceeding, we will address the 

regulatory status of DTS facilities, 

limitations on where DTS facilities can 

provide service, and how DTS facilities 

are treated from the standpoint of 

interference they would be predicted to 

cause to other broadcast stations and 

interference they would receive from 

other stations. In addition, we will 

consider policy issues such as how to 

avoid situations where stations could 

fail to serve significant populations 

within their nominal coverage area and 

how stations employing DTS facilities 

should be evaluated with respect to 

meeting replication and maximization 

deadlines. 

152. While that DTS proceeding is 

conducted, we will allow stations to 

request DTS operation on a case-by-case 

basis based on conservative parameters. 

Specifically, interim DTS operations 

will not be allowed if they would 

provide predicted service beyond a 

station’s currently authorized area 

(including its replication area as well as 

any maximization area resulting from 

facilities granted by a construction 

permit or license). An interim DTS 

proposal will only be approved if it is 

designed to serve essentially all of its 

replication coverage area. An acceptable 

application during this interim period 

must show that all viewers within the 

station’s replicated service area who are 

predicted to be served by their current 

analog transmitter would likewise be 

predicted to receive the minimum signal 

strength from at least one DTT 

transmitter. A station’s desire to explore 

DTS operation will not be acceptable 

grounds for it requesting an extension of 

the replication and maximization 

interference protection deadline. 

Beyond these decisions, our staff will 

determine on a case-by-case basis the 

adequacy of other aspects of proposed 

operation (including permissible power, 

antenna height, and the acceptability of 

interference showings). We note that the 

record in this proceeding does not 

reflect current successful and practical 

operation of DTS technology. We will 

authorize additional experimentation 

and development work through our 

Special Temporary Authority (STA) 

process. Operation under such authority 

will be allowed to continue while we 

conduct the rule making proceeding. 

Depending upon the outcome of that 

proceeding, we may then convert the 

STAs to regular authorizations. 

Procedural Matters 

153. Accessibility Information. 

Accessible formats of this Report and 

Order (computer diskettes, large print, 

audio recording and Braille) are 

available to persons with disabilities by 

contacting Brian Millin, of the 

Consumer & Governmental Affairs 

Bureau, at (202) 418–7426, TTY (202) 

418–7365, or at bmillin@fcc.gov.

154. Paperwork Reduction Act of 

1995 Analysis. This Report and Order 

contains new or modified information 

collection(s) subject to the Paperwork 

Reduction Act of 1995 (PRA), Public 

Law 104–13. It will be submitted to the 

Office of Management and Budget 

(OMB) for review under section 3507(d) 

of the PRA. The Commission is 

requesting OMB approval under the 

emergency processing provisions of the 

1995 Act (5 CFR 1320.13) of the 

information collection requirements and 

forms contained in this Report and 

Order. OMB, the general public, and 

other Federal agencies are invited to 

comment on the new or modified 

information collection(s) contained in 

this proceeding. 

155. Written comments by the public 

on the proposed information 

collection(s) are due 60 days from date 

of publication of this Report and Order 

in the Federal Register. Written 

comments must be submitted by the 

public, Office of Management and 

Budget and other interested parties on 

the proposed information collection(s) 

on or before 60 days from date of 

publication of this Report and Order in 

the Federal Register. In addition to 

filing comments with the Secretary, a 

copy of any comments on the 

information collection(s) contained 

herein should be submitted to Judith F. 

Herman, Federal Communications 

Commission, Room 1–A804, 445 12th 

Street, SW., Washington, DC 20554, or 

via the Internet to JudithB.Herman@fcc.gov, and to Kristy L. 

LaLonde, OMB Desk Officer, Room 

10234 NEOB, 725 17th Street, NW., 

Washington, DC 20503, or via the 

Internet to Kristy L. 

LaLonde@omb.eop.gov, or via fax at 

202–395–5167. 

156. Regulatory Flexibility Act. As 

required by the Regulatory Flexibility 

Act, the Commission has prepared a 

Final Regulatory Flexibility Analysis 

(‘‘FRFA’’) relating to this Report and 

Order. 

Final Regulatory Flexibility Analysis 

157. As required by the Regulatory 

Flexibility Act of 1980, as amended 

(‘‘RFA’’), an Initial Regulatory 

Flexibility Analysis (‘‘IRFA’’) was 

incorporated in the Notice of Proposed 

Rule Making (‘‘NPRM’’). The 

Commission sought written public 

comment on the proposals in the NPRM, 

including comment on the IRFA. One 

comment was received on the IRFA and 

is discussed below. This Final 

Regulatory Flexibility Analysis 

(‘‘FRFA’’) conforms to the RFA.

158. Need for and Objectives of the 

Report and Order. The policies and 

rules set forth herein are required to 

ensure a smooth transition of the 

nation’s television system from analog 

to digital format. In the Commission’s 

DTV proceeding (MM Docket No. 87–

268), the Commission stated its 

intention to hold periodic reviews of the 

progress of the digital conversion and to 

make any adjustments necessary to our 

rules and policies to ‘‘ensure that the 

introduction of digital television and the 

recovery of spectrum at the end of the 

transition fully serves the public 

interest.’’ In this second periodic 

review, we revisit, as we indicated we 

would, several issues addressed in the 

first periodic review, and address a 

number of additional issues that we 

consider essential to resolve in order to 

ensure continued progress on the digital 

transition. The objective of this second 

periodic review is to make adjustments 

to our rules and policies to facilitate the 

introduction of digital television and the 

recovery of spectrum at the end of the 

transition. 

159. Foremost among the steps taken 

in this item, the Report and Order 

establishes the timing and procedures 

necessary to establish a new Table of 

DTV Allotments that will determine the 

post-transition channels for all digital 

stations. Specifically, the item 

commences a three-round channel 

election process in the fall of 2004. 

Licensees are encouraged to ensure 

accuracy of database technical 

information on-file with the 

Commission before October 1, 2004. The 

Commission will issue a Table of 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59529

Station Information (based on licensees’

on-file database information) so that 

station licensees will know the DTV 

service populations to be used in the 

channel election process. In November 

2004, the channel election process 

begins with all stations certifying their 

database technical information; and 

certifying intent to replicate or 

maximize on their post-transition 

channel. In December 2004, round one 

begins and station licensees with two 

in-core (channels 2–51) channels elect 

the channel they prefer to retain for 

digital broadcasting, and licensees with 

one in-core and one out-of-core 

(channels 52–69) channel elect whether 

to use their in-core channel for posttransition digital operation. In round 

two, expected in July 2005, station 

licensees without a current in-core 

channel assignment elect a channel 

from those available after round one. In 

round three, expected in January 2006, 

station licensees not yet assigned a 

channel, or assigned channel 2 through 

6, may elect a channel from those 

available after round two. Between each 

round, the Commission will announce 

which channels are protected, which are 

in conflict, and which are available. 

Station licensees with conflicts will 

decide whether to accept interference 

and remain on elected channels or move 

to the next election round. After round 

three, the Commission will resolve 

remaining conflicts based on relevant 

factors. Finally, the Commission will 

issue a Notice of Proposed Rulemaking, 

expected by August 2006, proposing 

and seeking comment on new DTV 

Table of Allotments. 

160. To facilitate the election process, 

the Media Bureau has implemented a 

freeze on certain requests for allotment 

and service area changes by TV and 

DTV stations. Notwithstanding the 

freeze, stations with international 

coordination issues or other problems 

beyond their control may amend 

applications as necessary. 

161. In addition, the Order finds that 

firm but fair replication and 

maximization dates are necessary to 

increase DTV service to the public and 

also to advance the clearing of spectrum 

in the Lower and Upper 700 MHz bands 

(comprising television channels 52–69). 

The Order establishes two replication 

and maximization deadlines. The first 

deadline is July 1, 2005 and it applies 

to the top four affiliates in the top 100 

markets. If they will remain on their 

digital channel assignments after the 

transition, they must fully replicate and 

maximize by this date. If they will move 

to another channel post-transition, they 

must be serving by July 1, 2005 100% 

of the number of viewers served by the 

1997 facility on which their replication 

was based. The second deadline, July 1, 

2006, applies to all other stations. If 

they will remain on their current digital 

channel after the transition, they must 

fully replicate and maximize by this 

date. If they will move to another 

channel post-transition, they must be 

serving by July 2006 at least 80% of the 

number of viewers served by the 1997 

facility on which their replication was 

based. Failure to replicate or maximize 

by these deadlines will result in loss of 

interference protection to the unserved 

areas. If they have met these deadlines, 

the item would allow stations that are 

going to move to a different channel 

after the transition to carry-over their 

authorized maximized area to their new 

channels. 

162. The Order does not adopt an 

intermediate signal requirement, but 

retains the 7 dB increase required by 

December 31, 2004, for commercial 

stations and December 31, 2005, for 

noncommercial stations. 

163. To provide additional flexibility 

and fairness for many of the stations 

that are currently out-of-core, the Order 

allows such stations to return out-ofcore digital channels before the 

transition and ‘‘flash cut’’ to digital on 

their in-core channels without losing 

replication or maximization protection 

on their eventual in-core channel 

assignments. 

164. In addition to resolving the 

channel election, replication and 

maximization issues, the item 

encourages creative and value-added 

programming on digital channels by 

removing the requirement that licensees 

simulcast their analog video 

programming on their digital channel, 

while retaining the requirements for 

minimum hours of operation. This 

‘‘simulcast requirement’’ could be 

reinstituted near the end of the 

transition if warranted.

165. In addition, the Report and Order 

permits satellite stations to ‘‘flash-cut’’

from analog to digital at the end of the 

transition; clarifies the interference 

protection parameters of broadcast 

stations on channels 51–69; and 

requires stations to use Program and 

System Information Protocol (‘‘PSIP’’), 

which will facilitate digital operations 

and features, including channel 

numbering, v-chip, and closed 

captioning, and will establish technical 

requirements that will permit the TV 

ratings system to be modified in the 

future. 

166. Finally, the Report and Order 

approves in principle the use of 

distributed transmission technologies 

for digital television service. Digital 

Transmission Systems (‘‘DTS’’) would 

employ multiple synchronized 

transmitters spread around a station’s 

service area, enabling broadcasters to fill 

gaps in service coverage. The item states 

the Commission will open a separate 

‘‘fast track’’ proceeding to propose rules 

for DTS operation and to address related 

technical and policy issues. In the 

interim, the Order allows stations to 

request authorization for DTS operation 

on a case-by-case basis based on 

conservative parameters. 

167. The Report and Order defers 

action on whether to require point-ofsale labels describing TV equipment 

capabilities (such as, high definition, 

digital monitor only, or analog) and on 

the issue of how the Commission should 

interpret the Section of the 

Communications Act that sets December 

31, 2006, as the deadline for return of 

analog spectrum and establishes criteria 

for extensions of that deadline. The 

Order states that the Commission plans 

to address these issues in the near 

future. 

168. Summary of Significant Issues 

Raised by Public Comments in Response 

to the IRFA. The American Cable 

Association (‘‘ACA’’) filed a comment in 

response to the IRFA in this proceeding. 

ACA states that the Commission’s DTV 

transition regulations must 

accommodate the unique circumstances 

and higher cost structures of smaller 

cable systems. In particular, ACA asks 

that the Commission address the 

following issues: (1) The 

disproportionate cost of the DTV 

transition for smaller cable systems due 

to headend and set-top box costs; (2) the 

disproportionate burden of dual mustcarry for smaller cable systems due to 

more limited channel capacity; (3) the 

unwillingness of some broadcasters to 

deliver an adequate quality DTV signal 

to outlying areas of their markets; and 

(4) the ‘‘continuing abuse’’ of 

retransmission consent of a handful of 

media conglomerates, which is 

constraining channel capacity, raising 

costs, and hampering small systems’

ability to develop solutions to DTV 

carriage. ACA urges the Commission to 

consider alternatives to its rules that 

would minimize any significant 

economic impact on small entities, 

including exemption from coverage of 

the rule or parts thereof for small 

entities. 

169. The issues raised by ACA 

regarding the impact of the transition on 

smaller cable systems are more 

pertinent to the Commission’s pending 

must-carry proceeding than to this DTV 

periodic review. The rules and policies 

addressed herein apply primarily to 

broadcasters and equipment 

manufacturers, and relate only 

59530 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

indirectly to cable operators. A copy of 

ACA’s comments have been associated 

with the file in the must-carry 

proceeding. 

170. Although we decline to address 

the issues raised by ACA in this 

proceeding, we do adopt herein a 

number of policies that take into 

consideration the legitimate needs and 

interests of small businesses. For 

example, the item provides for a later 

replication and maximization 

interference protection deadline of July 

1, 2006 for smaller stations (not 

affiliated with a top-four network) and 

those in smaller markets. Affiliates of 

the top-four networks (i.e., ABC, CBS, 

Fox, and NBC) in markets 1–100 are 

given an earlier replication and 

maximization interference protection 

deadline of July 1, 2005. In addition, 

smaller stations and those in smaller 

markets that will move to another 

channel post-transition are permitted to 

serve only 80% (rather than 100%) of 

the number of viewers served by the 

1997 replication coverage area by the 

July 2006 deadline to carry-over their 

authorized maximized service area to 

their new channel. To assist stations 

facing severe financial constraints or 

obstacles beyond a station’s control that 

are specific to the DTV transition 

process, the item permits these stations 

to apply for a six-month waiver of the 

interference protection deadline. 

171. The Report and Order also 

permits certain stations with an in-core 

NTSC channel paired with an out-ofcore DTV channel, as well as stations 

with two out-of-core channels, to 

surrender their out-of-core DTV channel 

before the end of the transition and 

operate in analog on their in-core 

channel. The item also permits singlechannel DTV stations out of the core, 

upon Commission approval, to elect not 

to construct DTV facilities and instead 

give up their out-of-core DTV channel in 

return for a DTV channel inside the 

core. Upon approval from the 

Commission, these stations will ‘‘flashcut’’ to digital operations on their incore channel no later than the end of the 

transition in the station’s market. This 

‘‘flash-cut’’ policy will assist stations 

with an out-of-core DTV channel that 

are concerned about the cost of 

constructing DTV facilities outside the 

core that cannot be operated after the 

transition. In addition, the Report and 

Order permits satellite stations to 

surrender one of their paired channels 

and flash cut from analog to digital 

transmissions by the end of the 

transition period. This flash-cut option 

should provide significant financial 

relief for satellite stations, many of 

which are small and all of which serve 

communities unable to support a fullservice station.

172. Description and Estimate of the 

Number of Small Entities to Which the 

Proposed Rules Will Apply. 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 proposed 

rules. The RFA generally defines the 

term ‘‘small entity’’ as having the same 

meaning as the terms ‘‘small business,’’

‘‘small organization,’’ and ‘‘small 

government entity.’’ 5 U.S.C. 601(3) 

(incorporating by reference the 

definition of ‘‘small business concern’’

in 15 U.S.C. 632. Pursuant to the RFA, 

the statutory definition of a small 

business applies, ‘‘unless an agency, 

after consultation with the Office of 

Advocacy of the SBA and after 

opportunity for public comment, 

establishes one or more definitions of 

such the term which are appropriate to 

the activities of the agency and 

publishes such definition(s) in the 

Federal Register. In addition, the term 

‘‘small business’’ has the same meaning 

as the term ‘‘small business concern’’

under the Small Business Act. 5 U.S.C. 

601(3) (incorporating by reference the 

definition of ‘‘small business concern’’

in the Small Business Act, 15 U.S.C. 

632. Pursuant to 5 U.S.C. 601(3), the 

statutory definition of a small business 

applies ‘‘unless an agency, after 

consultation with the Office of 

Advocacy of the Small Business 

Administration and after opportunity 

for public comment, establishes one or 

more definitions of such term which are 

appropriate to the activities of the 

agency and publishes such definition(s) 

in the Federal Register.’’ 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’’). 15 U.S.C. 632. 

Application of the statutory criteria of 

dominance in its field of operation, and 

independence are sometime difficult to 

apply in the context of broadcast 

television. Accordingly, the 

Commission’s statistical account of 

television stations may be overinclusive. 

173. Television Broadcasting. The 

Small Business Administration defines 

a television broadcasting station that has 

no more than $12 million in annual 

receipts as a small business. Business 

concerns included in this industry are 

those ‘‘primarily engaged in 

broadcasting images together with 

sound.’’ NAICS Code 515120. 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. According to Commission 

staff review of the BIA Publications, Inc. 

Master Access Television Analyzer 

Database as of May 16, 2003, about 814 

of the 1,220 commercial television 

stations in the United States have 

revenues of $12 million or less. We 

note, however, that, in assessing 

whether a business concern qualifies as 

small under the above definition, 

business (control) affiliations ‘‘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 CFR 121.103(a)(1). 

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. There are also 

2,127 low power television stations 

(LPTV). Given the nature of this service, 

we will presume that all LPTV licensees 

qualify as small entities under the SBA 

definition. 

174. 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 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59531

they apply may be over-inclusive to this 

extent. 

175. Cable and Other Program 

Distribution. The SBA has developed a 

small business size standard for cable 

and other program distribution services, 

which includes all such companies 

generating $12.5 million or less in 

revenue annually. This category 

includes, among others, cable operators, 

direct broadcast satellite (‘‘DBS’’) 

services, home satellite dish (‘‘HSD’’) 

services, multipoint distribution 

services (‘‘MDS’’), multichannel 

multipoint distribution service 

(‘‘MMDS’’), Instructional Television 

Fixed Service (‘‘ITFS’’), local multipoint 

distribution service (‘‘LMDS’’), satellite 

master antenna television (‘‘SMATV’’) 

systems, and open video systems 

(‘‘OVS’’). According to the 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. 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. We address below each 

service individually to provide a more 

precise estimate of small entities.

176. Cable Operators. The 

Commission has developed our own 

definition of a small cable system 

operator for the purposes of rate 

regulation. Under the Commission’s 

rules, a ‘‘small cable company’’ is one 

serving fewer than 400,000 subscribers 

nationwide. 47 CFR 76.901(e). The 

Commission developed this definition 

based on its determinations that a small 

cable system operator is one with 

annual revenues of $100 million or less. 

Sixth Report and Order and Eleventh 

Order on Reconsideration, 10 FCC Rcd. 

7393 (1995). We last estimated that 

there were 1,439 cable operators that 

qualified as small cable companies. 

Since then, some of those companies 

may have grown to serve over 400,000 

subscribers, and others may have been 

involved in transactions that caused 

them to be combined with other cable 

operators. Consequently, we estimate 

that there are fewer than 1,439 small 

entity cable system operators that may 

be affected by the decisions and rules in 

this Report and Order. 

177. The Communications Act, as 

amended, also contains a size standard 

for a small cable system operator, 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.’’ The 

Commission has determined that there 

are 68,500,000 subscribers in the United 

States. Therefore, an operator serving 

fewer than 685,000 subscribers shall be 

deemed a small operator if its annual 

revenues, when combined with the total 

annual revenues of all of its affiliates, do 

not exceed $250 million in the 

aggregate. Based on available data, we 

find that the number of cable operators 

serving 685,000 subscribers or less totals 

approximately 1,450. Although it seems 

certain that some of these cable system 

operators are affiliated with entities 

whose gross annual revenues exceed 

$250,000,000, we are unable at this time 

to estimate with greater precision the 

number of cable system operators that 

would qualify as small cable operators 

under the definition in the 

Communications Act. 

178. Direct Broadcast Satellite 

(‘‘DBS’’) Service. Because DBS provides 

subscription services, DBS falls within 

the SBA-recognized definition of Cable 

and Other Program Distribution 

Services. This definition provides that a 

small entity is one with $12.5 million or 

less in annual receipts. There are four 

licensees of DBS services under part 100 

of the Commission’s rules. Three of 

those licensees are currently 

operational. Two of the licensees that 

are operational have annual revenues 

that may be in excess of the threshold 

for a small business. The Commission, 

however, does not collect annual 

revenue data for DBS and, therefore, is 

unable to ascertain the number of small 

DBS licensees that could be impacted by 

these proposed rules. DBS service 

requires a great investment of capital for 

operation, and we acknowledge, despite 

the absence of specific data on this 

point, that there are entrants in this field 

that may not yet have generated $12.5 

million in annual receipts, and therefore 

may be categorized as a small business, 

if independently owned and operated. 

179. Home Satellite Dish (‘‘HSD’’) 

Service. Because HSD provides 

subscription services, HSD falls within 

the SBA-recognized definition of Cable 

and Other Program Distribution 

Services. This definition provides that a 

small entity is one with $12.5 million or 

less in annual receipts. The market for 

HSD service is difficult to quantify. 

Indeed, the service itself bears little 

resemblance to other MVPDs. HSD 

owners have access to more than 500 

channels of programming placed on Cband satellites by programmers for 

receipt and distribution by MVPDs, of 

which 150 channels are scrambled and 

approximately 350 are unscrambled. 

HSD owners can watch unscrambled 

channels without paying a subscription 

fee. To receive scrambled channels, 

however, an HSD owner must purchase 

an integrated receiver-decoder from an 

equipment dealer and pay a 

subscription fee to an HSD 

programming package. Thus, HSD users 

include: (1) Viewers who subscribe to a 

packaged programming service, which 

affords them access to most of the same 

programming provided to subscribers of 

other MVPDs; (2) viewers who receive 

only non-subscription programming; 

and (3) viewers who receive satellite 

programming services illegally without 

subscribing. Because scrambled 

packages of programming are most 

specifically intended for retail 

consumers, these are the services most 

relevant to this discussion. 

180. Multipoint Distribution Service 

(‘‘MDS’’), Multichannel Multipoint 

Distribution Service (‘‘MMDS’’) 

Instructional Television Fixed Service 

(‘‘ITFS’’) and Local Multipoint 

Distribution Service (‘‘LMDS’’). MMDS 

systems, often referred to as ‘‘wireless 

cable,’’ transmit video programming to 

subscribers using the microwave 

frequencies of the MDS and ITFS. LMDS 

is a fixed broadband point-to-multipoint 

microwave service that provides for 

two-way video telecommunications. 

181. In connection with the 1996 

MDS auction, the Commission defined 

small businesses as entities that had 

annual average gross revenues of less 

than $40 million in the previous three 

calendar years. This definition of a 

small entity in the context of MDS 

auctions has been approved by the A. 

The MDS auctions resulted in 67 

successful bidders obtaining licensing 

opportunities for 493 Basic Trading 

Areas (‘‘BTAs’’). Of the 67 auction 

winners, 61 met the definition of a small 

business. MDS also includes licensees 

of stations authorized prior to the 

auction. As noted, the SBA has 

developed a definition of small entities 

for pay television services, which 

includes all such companies generating 

$12.5 million or less in annual receipts. 

This definition includes multipoint 

distribution services, and thus applies 

to MDS licensees and wireless cable 

operators that did not participate in the 

MDS auction. Information available to 

us indicates that there are 

approximately 850 of these licensees 

and operators that do not generate 

59532 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

revenue in excess of $12.5 million 

annually. Therefore, for purposes of the 

FRFA, we find there are approximately 

850 small MDS providers as defined by 

the SBA and the Commission’s auction 

rules.

182. The SBA definition of small 

entities for Cable and Other Program 

Distribution Services, which includes 

such companies generating $12.5 

million in annual receipts, seems 

reasonably applicable to ITFS. There are 

presently 2,032 ITFS licensees. All but 

100 of these licenses are held by 

educational institutions. Educational 

institutions are included in the 

definition of a small business. SBREFA 

also applies to nonprofit organizations 

and governmental organizations such as 

cities, counties, towns, townships, 

villages, school districts, or special 

districts, with populations of less than 

50,000. 5 U.S.C. 601(5). However, we do 

not collect annual revenue data for ITFS 

licensees, and are not able to ascertain 

how many of the 100 non-educational 

licensees would be categorized as small 

under the SBA definition. Thus, we 

tentatively conclude that at least 1,932 

licensees are small businesses. 

183. Additionally, the auction of the 

1,030 LMDS licenses began on February 

18, 1998, and closed on March 25, 1998. 

The Commission defined ‘‘small entity’’

for LMDS licenses as an entity that has 

average gross revenues of less than $40 

million in the three previous calendar 

years. An additional classification for 

‘‘very small business’’ was added and is 

defined as an entity that, together with 

its affiliates, has average gross revenues 

of not more than $15 million for the 

preceding calendar years. These 

regulations defining ‘‘small entity’’ in 

the context of LMDS auctions have been 

approved by the SBA. There were 93 

winning bidders that qualified as small 

entities in the LMDS auctions. A total of 

93 small and very small business 

bidders won approximately 277 A Block 

licenses and 387 B Block licenses. On 

March 27, 1999, the Commission reauctioned 161 licenses; there were 40 

winning bidders. Based on this 

information, we conclude 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. 

184. In sum, there are approximately 

a total of 2,000 MDS/MMDS/LMDS 

stations currently licensed. Of the 

approximate total of 2,000 stations, we 

estimate that there are 1,595 MDS/

MMDS/LMDS providers that are small 

businesses as deemed by the SBA and 

the Commission’s auction rules. 

185. Satellite Master Antenna 

Television (‘‘SMATV’’) Systems. The 

SBA definition of small entities for 

Cable and Other Program Distribution 

Services includes SMATV services and, 

thus, small entities are defined as all 

such companies generating $12.5 

million or less in annual receipts. 

Currently, there are approximately 250 

SMATV operators providing service to 

approximately 1.2 million residential 

subscribers. The best available estimates 

indicate that the largest SMATV 

operators serve between 15,000 and 

55,000 subscribers each. Most SMATV 

operators serve approximately 3,000–

4,000 customers. 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 SMATVs, we believe that a 

substantial number of SMATV operators 

qualify as small entities. 

186. Open Video Systems (‘‘OVS’’). 

Because OVS operators provide 

subscription services, OVS falls within 

the SBA-recognized definition of Cable 

and Other Program Distribution 

Services. This definition provides that a 

small entity is one with $ 12.5 million 

or less in annual receipts. The 

Commission has certified 25 OVS 

operators with some now providing 

service. Affiliates of Residential 

Communications Network, Inc. (‘‘RCN’’) 

received approval to operate OVS 

systems in New York City, Boston, 

Washington, DC, and other areas. RCN 

has sufficient revenues to assure us that 

they do not qualify as small business 

entities. Little financial information is 

available for the other entities 

authorized to provide OVS that are not 

yet operational. Given that other entities 

have been authorized to provide OVS 

service but have not yet begun to 

generate revenues, we conclude that at 

least some of the OVS operators qualify 

as small entities. 

187. Electronics Equipment 

Manufacturers. Rules adopted in this 

proceeding could affect manufacturers 

of DTV receiving equipment and other 

types of consumer electronics 

equipment. The SBA has developed 

definitions of small entity for 

manufacturers of audio and video 

equipment as well as radio and 

television broadcasting and wireless 

communications equipment. 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. 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. 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. 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. 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. 

Economics and Statistics 

Administration, Bureau of Census, U.S. 

Department of Commerce, 1997 

Economic Census, Industry Series—

Manufacturing, Radio and Television 

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59533

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. 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.

188. Electronic Computer 

Manufacturers. The Commission has not 

developed a definition of small entities 

applicable to computer manufacturers. 

Therefore, we will utilize the SBA 

definition of electronic computers 

manufacturing. According to SBA 

regulations, a computer manufacturer 

must have 1,000 or fewer employees in 

order to qualify as a small entity. Census 

Bureau data indicates that there are 563 

firms that manufacture electronic 

computers and of those, 544 have fewer 

than 1,000 employees and qualify as 

small entities. The remaining 19 firms 

have 1,000 or more employees. We 

conclude that there are approximately 

544 small computer manufacturers. 

189. Description of Projected 

Reporting, Recordkeeping and other 

Compliance Requirements. The Report 

and Order requires all full power 

commercial and noncommercial 

television broadcast licensees and 

permittees to file a pre-election 

certification form by November 2004. In 

addition, full power licensees and 

permittees choosing to participate in the 

channel election process will file 

channel election forms in one or more 

of the three election rounds, and may 

file conflict decision forms based on the 

outcome of their election. The purpose 

of these filings is to permit stations to 

inform the Commission of their 

preference for a final DTV channel. 

Without these election forms, stations 

could not inform the Commission of 

their preferred channel for posttransition DTV operation. The decision 

as to which channel to elect for posttransition operation may be a difficult 

and time-consuming one for some 

broadcasters. However, channel election 

and the development of a new DTV 

Table of Allotments are steps integral to 

the digital transition. Factors that could 

make the channel election decision time 

consuming are not likely to be related to 

whether the entity is small or large. 

Licensees may elect not to participate in 

the channel election process and not file 

these forms and instead have the FCC 

assign them a post-transition channel at 

the end of the election process. 

190. Steps Taken to Minimize 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered. 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. 

191. In a number of instances, while 

adopting a given rule for larger entities, 

the Report and Order considers and 

adopts alternative requirements for 

small or smaller market entities to assist 

these entities in completing the digital 

conversion. For example, the Report and 

Order adopts the following interference 

protection deadlines for DTV channels 

within the core spectrum: July 1, 2005, 

for affiliates of the top-four networks 

(i.e., ABC, CBS, Fox, and NBC) in 

markets 1–100; and July 1, 2006, for all 

other commercial DTV licensees as well 

as noncommercial DTV licensees. Thus, 

smaller stations and stations in smaller 

markets are given more time to meet the 

interference protection deadline. In 

addition, smaller stations planning to 

move to another channel post-transition 

are given lesser requirements than larger 

stations. For top four affiliates in the top 

100 markets, if they will remain on their 

digital channel assignments after the 

transition, they must fully replicate and 

maximize by July 1, 2005. If they will 

move to another channel post-transition, 

they must be serving by July 1, 2005 

100% of the number of viewers served 

by the 1997 facility on which their 

replication was based. The second 

deadline, July 1, 2006, applies to all 

other stations. If they will remain on 

their current digital channel after the 

transition, they must fully replicate and 

maximize by this date. If they will move 

to another channel post-transition, they 

must be serving by July 2006 at least 

80% of the number of viewers served by 

the 1997 facility on which their 

replication was based. Failure to 

replicate or maximize by these 

deadlines will result in loss of 

interference protection to the unserved 

areas. If they have met these deadlines, 

the item would allow stations that are 

going to move to a different channel 

after the transition to carry-over their 

authorized maximized area to their new 

channels. 

192. While the Commission 

considered applying the same deadline 

and replication and maximization 

requirements to all stations, it 

concluded that a later deadline and 

reduced requirement for smaller and 

smaller market stations is warranted. In 

addition, to assist stations facing severe 

financial constraints or obstacles 

beyond a station’s control that are 

specific to the DTV transition process, 

the item permits these stations to apply 

for a six-month waiver of the 

interference protection deadline. 

193. In some instances, a rule was 

adopted applicable to large and small 

entities in the same way conferring the 

same benefits upon both. In furtherance 

of the significant public interest in rapid 

band-clearing and to address the 

potential for stranded investment in 

facilities outside of core channels, the 

Report and Order permits certain 

stations with an in-core NTSC channel 

paired with an out-of-core DTV channel, 

stations with two out-of-core channels, 

and single-channel DTV stations out-ofthe-core, to surrender their out-of-core 

DTV channel before the end of the 

transition and operate in analog on their 

in-core channel. Upon approval from 

the Commission, these stations will 

‘‘flash-cut’’ to digital operations on their 

in-core channel no later than the end of 

the transition in the station’s market. 

This ‘‘flash-cut’’ policy will assist both 

smaller and larger stations with an outof-core DTV channel that are concerned 

about the cost of constructing DTV 

facilities outside the core that cannot be 

operated after the transition. These 

entities will be permitted to surrender 

early their out-of-core channel and 

operate only in analog on their in-core 

channel until they flash-cut to digitalonly operation on that channel no later 

than the end of the transition. The 

Commission considered not permitting 

these stations to flash-cut, but finally 

concluded that permitting this flash-cut 

option would best advance the 

transition and the clearing of the out-ofcore spectrum. 

194. In addition, the Report and Order 

permits satellite stations to surrender 

one of their paired channels and flash 

59534 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

cut from analog to digital transmissions 

by the end of the transition period. This 

flash-cut option should provide 

significant financial relief for satellite 

stations, many of which are small and 

all of which serve communities unable 

to support a full-service station. 

195. The Report and Order also 

adopts another waiver that will most 

likely benefit smaller stations as 

opposed to larger stations. The Report 

and Order requires television licensees 

that have not yet been granted an initial 

DTV CP to construct, within a year from 

the adoption date of this Report and 

Order, a ‘‘checklist’’ facility that 

conforms with the parameters of the 

DTV Table of Allotments and other key 

processing requirements. The 

Commission will consider requests for 

waiver of the one year construction 

deadline, on a case-by-case basis, using 

the criteria for extension of DTV 

construction deadlines. Grounds for an 

extension must relate to the checklist 

facility, not the pending non-checklist 

application. This waiver procedure 

permits stations facing financial 

hardship as well as other obstacles to 

construction of digital facilities to make 

a showing why waiver of the 

construction deadline would serve the 

public interest. The waiver is available 

to all stations regardless of size or 

income, but it likely to benefit smaller 

stations more as these stations are more 

likely to encounter financial hardships 

in constructing DTV checklist facilities.

196. The Report and Order declines to 

postpone the existing phased-in 

minimum operating hours for smaller 

and smaller-market digital television 

stations. However, these phased-in dates 

permit these stations to step up 

gradually the number of hours of digital 

programming they offer. In contrast, topfour network affiliates in the top 30 

television markets are required to 

operate their DTV station at any time 

that the analog station is operating. 

197. Federal Rules Which Duplicate, 

Overlap, or Conflict with the 

Commission’s Proposals. None. 

198. Report to Congress. 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. 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. 

Ordering Clauses 

199. It is ordered that pursuant to the 

authority contained in sections 1, 4(i) 

and (j), 5(c)(1), 7, 301, 302, 303(f), 

303(r), 303(u), 303(w), 303(x), 307, 308, 

309, 316, 319, 324, 336(c), 336(f), 337, 

330(b), 330(c), 332(c) of the 

Communications Act of 1934, 47 U.S.C 

151, 154(i) and (j), 155(c)(1), 157, 301, 

302, 303(f), 303(r), 303(u), 303(w), 

303(x), 307, 308, 309, 316, 319, 324, 

336(c), 336(f), 337, 330(b), 330(c), 332(c) 

that this Report and Order is adopted

and the Commission’s rules are hereby 

amended as set forth in Appendix B, 

and shall become effective November 3, 

2004 except for § 73.1201 which 

contains information collection 

requirements under the PRA is not 

effective until approved by OMB. The 

FCC will publish a document in the 

Federal Register announcing the 

effective date for this section. 

200. It is further ordered that, 

pursuant to 47 U.S.C. 155(c), the Chief, 

Media Bureau, is granted delegated 

authority to implement the electronic 

Channel Election Forms and the specific 

dates adopted in this Order. 

201. 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 Analysis, to 

the Chief Counsel for Advocacy of the 

Small Business Administration. 

202. 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).

List of Subjects 

47 CFR Part 15 

Communications equipment, 

Computer technology, Incorporation by 

reference, Labeling, Radio, Reporting 

and recordkeeping requirements, 

Security measures, Telephone, 

Wiretapping and electronic 

surveillance. 

47 CFR Part 27 

Communications common carriers, 

Radio. 

47 CFR Part 73 

Civil defense, Communications 

equipment, Defense communications, 

Education, Equal employment 

opportunity, Foreign relations, 

Incorporation by reference, Mexico, 

Political candidates, Radio, Reporting 

and recordkeeping requirements, 

Television. 

47 CFR Part 90 

Administrative practice and 

procedure, Business and industry, Civil 

defense, Common carriers, 

Communications equipment, Emergency 

medical services, Individuals with 

disabilities, Radio, Reporting and 

recordkeeping requirements.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR parts 15, 27, 

73 and 90 as follows:

PART 15—RADIO FREQUENCY 

DEVICES

■ 1. The authority for part 15 continues 

to read as follows:

Authority: 47 U.S.C. 154, 302, 303, 304, 

307, 336, and 544A.

■ 2. Section 15.38 is amended by adding 

paragraph (b)(13) to read as follows:

§ 15.38 Incorporations by reference.

* * * * *

(b) * * * 

(13) CEA–766–A: ‘‘U.S. and Canadian 

Region Rating Tables (RRT) and Content 

Advisory Descriptors for Transport of 

Content Advisory Information using 

ATSC A/65–A Program and System 

Information Protocol (PSIP),’’ April 

2001, IBR approved for § 15.120.

* * * * *

■ 3. Section 15.120 is amended by 

revising paragraphs (c)(2) and (d)(2) to 

read as follows:

§ 15.120 Program blocking technology 

requirements for television receivers.

* * * * *

(c) * * * 

(2) Digital television program rating 

information shall be transmitted in 

digital television signals in accordance 

with § 73.682(d) of this chapter. 

(d) * * * 

(2) Digital television receivers shall 

react in a similar manner as analog 

televisions when programmed to block 

specific rating categories. Effective 

March 15, 2006, digital television 

receivers will receive program rating 

descriptors transmitted pursuant to 

industry standard EIA/CEA–766–A 

‘‘U.S. and Canadian Region Rating 

Tables (RRT) and Content Advisory 

Descriptors for Transport of Content 

Advisory Information using ATSC

A/65–A Program and System 

Information Protocol (PSIP),’’ 2001 

(incorporated by reference, see § 15.38). 

Blocking of programs shall occur when 

a program rating is received that meets 

the pre-determined user requirements. 

Digital television receivers shall be able 

to respond to changes in the content 

advisory rating system.

* * * * *

Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 59535

PART 27—MISCELLANEOUS 

WIRELESS COMMUNICATIONS 

SERVICES

■ 4. 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.

■ 5. Section 27.60 is amended by 

revising paragraph (b)(1)(iii) to read as 

follows:

§ 27.60 TV/DTV interference protection 

criteria.

* * * * *

(b) * * * 

(1) * * * 

(iii) Submit an engineering study 

justifying the proposed separations 

based on the parameters of the land 

mobile station and the parameters, 

including authorized and/or applied for 

facilities, of the TV/DTV station(s) it is 

trying to protect; or,

* * * * *

PART 73—RADIO BROADCAST 

SERVICES

■ 6. The authority for part 73 continues 

to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

■ 7. Section 73.624 is amended by 

revising paragraphs (b) introductory text, 

(b)(1), and paragraph (f) to read as 

follows:

§ 73.624 Digital television broadcast 

stations.

* * * * *

(b) DTV broadcast station permittees 

or licensees must transmit at least one 

over-the-air video program signal at no 

direct charge to viewers on the DTV 

channel. Until such time as a DTV 

station permittee or licensee ceases 

analog transmissions and returns that 

spectrum to the Commission, and 

except as provided in paragraph (b)(1) of 

this section, at any time that a DTV 

broadcast station permittee or licensee 

transmits a video program signal on its 

analog television channel, it must also 

transmit at least one over-the-air video 

program signal on the DTV channel. The 

DTV service that is provided pursuant 

to this paragraph must be at least 

comparable in resolution to the analog 

television station programming 

transmitted to viewers on the analog 

channel. 

(1) DTV broadcast station permittees 

and licensees required to construct and 

operate a DTV station by May 1, 2002, 

or May 1, 2003, pursuant to paragraph 

(d) of this section must, at a minimum, 

beginning on the date on which the DTV 

station is required to be constructed, 

provide a digital video program signal, 

of the quality described in paragraph (b) 

of this section, during prime time hours 

as defined in § 79.3(a)(6) of this chapter. 

These licensees and permittees must 

also comply with the minimum 

operating hours requirements in 

paragraph (f) of this section.

* * * * *

(f)(1) Commencing on April 1, 2003, 

DTV television licensees and permittees 

required to construct and operate a DTV 

station by May 1, 2002, or May 1, 2003, 

must transmit at least one over-the-air 

video program signal at no direct charge 

to viewers on their DTV channel at least 

50 percent of the time they are 

transmitting a video program signal on 

their analog channel. 

(2) Commencing on April 1, 2004, 

DTV licensees and permittees described 

in paragraph (f)(1) of this section must 

transmit a video program signal as 

described in paragraph (f)(1) of this 

section on the DTV channel at least 75 

percent of the time they are transmitting 

a video program signal on the analog 

channel. 

(3) Commencing on April 1, 2005, 

DTV licensees and permittees described 

in paragraph (f)(1) of this section must 

transmit a video program signal as 

described in paragraph (f)(1) of this 

section on the DTV channel at least 100 

percent of the time they are transmitting 

a video program signal on the analog 

channel. 

(4) The minimum operating hours 

requirements imposed in paragraphs (f) 

(1) through (3) of this section will 

terminate when the analog channel 

terminates operation and a 6 MHz 

channel is returned by the DTV licensee 

or permittee to the Commission.

* * * * *

■ 8. Section 73.682 is amended by 

revising paragraph (d) to read as follows:

§ 73.682 TV transmission standards.

* * * * *

(d) Digital broadcast television 

transmission standard. Effective 

February 1, 2005, transmission of digital 

broadcast television (DTV) signals shall 

comply with the standards for such 

transmissions set forth in ATSC A/52: 

‘‘ATSC Standard Digital Audio 

Compression (AC–3)’’ (incorporated by 

reference, see § 73.8000), ATSC Doc.

A/53B, Revision B with Amendment 1 

and Amendment 2: ‘‘ATSC Digital 

Television Standard,’’ except for Section 

5.1.2 (‘‘Compression format 

constraints’’) of Annex A (‘‘Video 

Systems Characteristics’’) and the 

phrase ‘‘see Table 3’’ in Section 5.1.1. 

Table 2 and Section 5.1.2 Table 4 

(incorporated by reference, see

§ 73.8000), and ATSC A/65B: ‘‘ATSC 

Program and System Information 

Protocol for Terrestrial Broadcast and 

Cable,’’ (Revision B) 2003 (incorporated 

by reference, see § 73.8000). Although 

not incorporated by reference, licensees 

may also consult ATSC Doc. A/54, 

Guide to Use of the ATSC Digital 

Television Standard, (October 4, 1995), 

and ATSC Doc. A/69, Recommended 

Practice PSIP Implementation 

Guidelines for Broadcasters (June 25, 

2002) (Secs. 4, 5, 303, 48 Stat., as 

amended, 1066, 1068, 1082 (47 U.S.C. 

154, 155, 303)).

■ 9. Section 73.1201 is amended by 

revising paragraphs (b)(1) and (c)(1) to 

read as follows:

§ 73.1201 Station identification.

* * * * *

(b) Content. (1) Official station 

identification shall consist of the 

station’s call letters immediately 

followed by the community or 

communities specified in its license as 

the station’s location; Provided, That the 

name of the licensee, the station’s 

frequency, the station’s channel 

number, as stated on the station’s 

license, and/or the station’s network 

affiliation may be inserted between the 

call letters and station location. DTV 

stations choosing to include the 

station’s channel number in the station 

identification must use the station’s 

major channel number and may 

distinguish multicast program streams. 

For example, a station with major 

channel number 26 may use 26.1 to 

identify an HDTV program service and 

26.2 to identify an SDTV program 

service. No other insertion between the 

station’s call letters and the community 

or communities specified in its license 

is permissible.

* * * * *

(c) Channel—(1) General. Except as 

otherwise provided in this paragraph, in 

making the identification 

announcement the call letters shall be 

given only on the channel, or channels 

in the case of a broadcaster that is 

multicasting more than a single channel, 

identified thereby.

* * * * *

■ 10. Section 73.8000 is amended by 

revising paragraphs (b)(2) and (b)(3) to 

read as follows:

§ 73.8000 Incorporation by reference.

* * * * *

(b) * * * 

(2) ATSC A/53B: ‘‘ATSC Digital 

Television Standard,’’ dated August 7, 

2001, Revision B, with Amendment 1 

dated May 23, 2002 and Amendment 2 

59536 Federal Register / Vol. 69, No. 191 / Monday, October 4, 2004 / Rules and Regulations 

dated May 19, 2003, IBR approved for 

§ 73.682, except for section 5.1.2 of 

Annex A, and the phrase ‘‘see Table 3’’

in section 5.1.1. Table 2 and section 

5.1.2 Table 4. 

(3) ATSC A/65B: ‘‘ATSC Program and 

System Information Protocol for 

Terrestrial Broadcast and Cable,’’

(Revision B) March 18, 2003, and IBR 

approved for § 73.682, IBR approved for 

§§ 73.9000–73.9001.

* * * * *

PART 90—PRIVATE LAND MOBILE 

RADIO SERVICES

■ 11. The authority citation for part 90 

continues to read as follows:

Authority: Sections 4(i), 11, 303(g), 303(r), 

and 332(c)(7) of the Communications Act of 

1934, as amended, 47 U.S.C. 154(i), 161, 

303(g), 303(r), 332(c)(7).

■ 12. Section 90.545 is amended by 

revising paragraph (c)(1)(ii) to read as 

follows:

§ 90.545 TV/DTV interference protection 

criteria.

* * * * *

(c) * * * 

(1) * * * 

(ii) Submit an engineering study 

justifying the proposed separations 

based on the parameters of the land 

mobile station and the parameters, 

including authorized and/or applied for 

facilities, of the TV/DTV station(s) it is 

trying to protect; or,

* * * * *

[FR Doc. 04–22189 Filed 10–1–04; 8:45 am] 

BILLING CODE 6712–01–P