[Federal Register Volume 74, Number 38 (Friday, February 27, 2009)]
[Rules and Regulations]
[Pages 8868-8879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4256]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15, 27, 54, 73, 76, and 90

[MB Docket No. 09-17; FCC 09-11]


Implementation of the DTV Delay Act

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: This document issues the final rules in the Second Report and 
Order implementing the DTV Delay Act. It amends the requirements of the 
DTV Consumer Education Initiative, as well as extending the duration of 
certain licenses and construction permits, to conform to the new, June 
12, 2009, transition date. It announces the Commission's intent to 
apply the provisions of the Analog Nightlight Order to the period after 
June 12, 2009. And, it established March 17, 2009 as the date by which 
stations must notify the Commission of their planned timing to complete 
their transition and April 16, 2009 as the first date on which stations 
can terminate analog signals.

DATES: Effective February 27, 2009, except for Sec. Sec. Sec.  15.124, 
54.418, and 76.1630, which are effective April 1, 2009.

ADDRESSES: Federal Communications Commission, 445 12th Street, SW., 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: For more information, please contact 
Nazifa Sawez, <a href="/cdn-cgi/l/email-protection#1d537c67747b7c334e7c6a78675d7b7e7e337a726b"><span class="__cf_email__" data-cfemail="b5fbd4cfdcd3d49be6d4c2d0cff5d3d6d69bd2dac3">[email protected]</span></a>, at 202-418-7059 or Shaun Maher, 
<a href="/cdn-cgi/l/email-protection#f6a59e978398d8bb979e9384b6909595d8919980"><span class="__cf_email__" data-cfemail="da89b2bbafb4f497bbb2bfa89abcb9b9f4bdb5ac">[email protected]</span></a>, at 202-418-2324, of the Video Division, Media 
Bureau; or Evan Baranoff, <a href="/cdn-cgi/l/email-protection#bcf9caddd292feddceddd2d3dadafcdadfdf92dbd3ca"><span class="__cf_email__" data-cfemail="befbc8dfd090fcdfccdfd0d1d8d8fed8dddd90d9d1c8">[email protected]</span></a>, at 202-418-7142; Lyle 
Elder, <a href="/cdn-cgi/l/email-protection#de92a7b2bbf09bb2babbac9eb8bdbdf0b9b1a8"><span class="__cf_email__" data-cfemail="e0ac998c85cea58c848592a0868383ce878f96">[email protected]</span></a>, at 202-418-2120; or Kim Matthews, 
<a href="/cdn-cgi/l/email-protection#eaa18387c4a78b9e9e828f9d99aa8c8989c48d859c"><span class="__cf_email__" data-cfemail="e3a88a8ecdae8297978b869490a3858080cd848c95">[email protected]</span></a>, at 202-418-2154, of the Policy Division, Media 
Bureau; or Eloise Gore, <a href="/cdn-cgi/l/email-protection#e9ac8586809a8cc7ae869b8ca98f8a8ac78e869f"><span class="__cf_email__" data-cfemail="73361f1c1a00165d341c0116331510105d141c05">[email protected]</span></a>, at 202-418-7200, of the 
Media Bureau. For additional information concerning the Paperwork 
Reduction Act information collection requirements contained in this 
document, contact Cathy Williams on (202) 418-2918, or via the Internet 
at <a href="/cdn-cgi/l/email-protection#d383819293b5b0b0fdb4bca5"><span class="__cf_email__" data-cfemail="d585879495b3b6b6fbb2baa3">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order, FCC 09-11, adopted and released on February 20, 2009. 
(The companion Notice of Proposed Rulemaking (NPRM) to this document is 
published elsewhere in this issue of the Federal Register.) The full 
text of this document is available for public inspection and copying 
during regular business hours in the FCC Reference Center, Federal 
Communications Commission, 445 12th Street, SW., CY-A257, Washington, 
DC 20554. These documents will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in 
ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be 
purchased from the Commission's copy contractor, 445 12th Street, SW., 
Room CY-B402, Washington, DC 20554. To request this document in 
accessible formats (computer diskettes, large print, audio recording, 
and Braille), send an e-mail to <a href="/cdn-cgi/l/email-protection#2b4d48481e1b1f6b4d4848054c445d"><span class="__cf_email__" data-cfemail="761015154346423610151558111900">[email protected]</span></a> or call the

[[Page 8869]]

Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

Final Paperwork Reduction Act (``PRA'') Analysis

    This Report and Order was analyzed with respect to the Paperwork 
Reduction Act of 1995 (``PRA'') and contains modified information 
collection requirements. Specifically, this Report and Order modifies 
several existing DTV transition-related information collection 
requirements to reflect the statutory change in the nationwide 
transition date to June 12, 2009. The Commission has obtained OMB 
approval for these non-substantive changes, and is seeking OMB approval 
under OMB's emergency processing rules for the requirement on broadcast 
stations to file a binding notice of their proposed analog service 
termination date.

Summary of the Report and Order

I. Introduction

    1. In this Report and Order, the second in response to the 
Congressional extension of the digital television (DTV) transition 
period, we take a number of actions necessary to implement the ``DTV 
Delay Act,'' which was enacted into law on February 11, 2009. In the 
DTV Delay Act, Congress extended the DTV transition deadline from 
February 17, 2009, to June 12, 2009, in an effort to provide consumers 
additional time to prepare for the transition from analog to digital 
broadcasting. It afforded the FCC discretion to allow broadcasters to 
complete their transitions prior to June 12, 2009, subject to such 
rules as the Commission finds necessary or appropriate. The Act 
instructed the Commission to take any actions ``necessary or 
appropriate to implement the provisions, and carry out the purposes'' 
of the date extension, and to do so within 30 days. In addition, the 
DTV Delay Act amends the Digital Television and Public Safety Act of 
2005 (``DTV Act''), Public Law 109-171, 120 Stat. 4 (2006), to direct 
the Commission to ``take such actions as are necessary (1) to terminate 
all licenses for full-power television stations in the analog 
television service, and to require the cessation of broadcasting by 
full-power stations in the analog television service, by June 13, 2009; 
and (2) to require by June 13, 2009, * * * all broadcasting by full-
power stations in the digital television service, occur only on 
channels between channels 2 and 36, inclusive, or 38 and 51, inclusive 
(between frequencies 54 and 698 megahertz, inclusive).'' The Commission 
has already taken a number of steps to comply with this directive. We 
issued a series of public notices (PNs) establishing and implementing 
the early transition process for stations that transitioned on February 
17, 2009. In the first of these PNs, we also noted that early 
transitions are prohibited between February 18 and March 14. We also 
released the First Report and Order, 74 FR 7654 (Feb. 19, 2009), in the 
DTV Delay Act docket, extending the analog license terms and adjusting 
the construction permits for the full power television stations subject 
to the DTV Delay Act.
    2. As discussed in Section V below, we find that the matters 
addressed here are not subject to the rulemaking requirements of the 
Administrative Procedure Act (APA), Congressional Review Act (CRA), 
Regulatory Flexibility Act (RFA), or any other provision of law that 
otherwise would apply and would impede implementation of the statutory 
directives. As discussed below, we also find that there is good cause 
for departure from the rulemaking requirements of the APA under the 
circumstances here. Nevertheless, we are providing notice and an 
abbreviated opportunity for public comment regarding the issues 
addressed in Section IV below to allow interested parties to contribute 
to our consideration of these issues to the extent possible in the 
limited time Congress has provided.

II. Executive Summary

    3. This Report and Order carries out the most time sensitive of the 
remaining actions necessitated by the delay in the transition deadline. 
The most fundamental change to our rules, licenses, etc., made 
necessary by the DTV Delay Act is that all references to the transition 
deadline must be revised to conform to the new date established in that 
Act. Thus, for each rule or order addressed in this Omnibus order that 
refers to ``February 17, 2009,'' or otherwise references the date of 
the transition deadline, we revise the rule to read ``June 12, 2009'' 
or make other revisions as appropriate; for example, Section 2(c) of 
the DTV Delay Act extends certain license terms and construction 
deadlines for the recovered spectrum for 116 days. In many cases, some 
additional revision is or will be necessary. We make additional 
revisions in the following areas in this Report and Order, and we 
intend to follow up quickly with additional rulemakings as needed.
    4. DTV Consumer Education Initiative rules
    <bullet> We extend the duration of the DTV Consumer Education 
Initiative requirements, including reporting requirements, so that most 
expire at the end of the second calendar quarter, in which the 
transition now ends, rather than at the end of the first calendar 
quarter, in which the transition originally ended.
    <bullet> We revise the guidance text that is used as the basis for 
multichannel video programming distributor (MVPD), eligible 
telecommunications carrier (ETC), and manufacturer notices to reflect 
that the transition deadline has been extended and that many stations 
will transition or have transitioned prior to that date. We also 
require these notices to include contact information for the FCC Call 
Center and the NTIA Coupon Program, as well as a suggestion that 
readers contact their local television station for additional 
information. These revised requirements take effect April 1, in order 
to provide affected parties with sufficient time to prepare revised 
notices.
    <bullet> Broadcast stations must comply with one of three sets of 
requirements for consumer education, choosing Options One or Two if 
they are a commercial station, or Options One, Two, or Three if they 
are a noncommercial station. We find that Option One broadcasters must 
continue to provide viewers with the maximum level of consumer 
education, and revise the guidance text that is used as the basis for 
on-air notices to reflect that the transition deadline has been 
extended and that many stations will transition or have transitioned 
prior to that date.
    <bullet> We find that Option Two broadcasters must begin a new 100-
day countdown to the transition on March 4, 2009. Nevertheless, we also 
seek comment in the NPRM about whether this requirement should be 
modified to better educate and inform consumers. Pending any 
modifications as a result of our consideration of the comments filed in 
response to that NPRM, Option Two broadcasters must begin a new 100-day 
countdown on March 4.
    <bullet> We find that Option Three broadcasters must continue to 
provide viewers with the maximum level of consumer education.
    <bullet> We revise Form 388 to reflect the changes above, and 
remind broadcasters that they must continue to file it and post it 
online quarterly up to and including the final quarter in which they 
have education obligations under these rules.
    <bullet> We provide notice that the DTV.gov Transition Partners 
program has been

[[Page 8870]]

discontinued, and that as a result no additional filings will be 
required as a result of participation in the program.
    5. Third DTV Periodic Report and Order
    <bullet> We revise the analog service termination notification 
procedure contained in the Third DTV Periodic Report and Order, 72 FR 
37310 (July 9, 2007), and require all stations to notify the Commission 
no later than Tuesday, March 17 of the date they will terminate analog 
television service.
    <bullet> Consistent with the Third DTV Periodic Report and Order 
and the timing adopted in this Order, we require all full-power 
television stations to update their DTV Transition Status Reports, FCC 
Form 387, no later than Thursday April 16, 2009 to reflect their 
transition plans as a result of the delay in the nationwide transition 
deadline.
    <bullet> We revise our rules to reflect changes to construction 
deadlines and our rules for obtaining extensions of time to construct 
digital facilities.
    6. 700 MHz Band License Periods and Construction Requirements:
    <bullet> We extend the terms of the licenses for the ``recovered 
spectrum,'' including the applicable construction benchmark deadlines, 
for a period of 116 days pursuant to section 2(c) of the DTV Delay Act. 
We also modify sections 27.1310 and 90.1410 of the 700 MHz Public/
Private Partnership rules to conform these provisions to the license 
term extension.
    7. Analog Nightlight
    <bullet> We find that the Analog Nightlight program, implemented 
pursuant to the Analog Nightlight Act, will be in effect after the DTV 
transition deadline on June 12, 2009.
    8. Notice of Proposed Rulemaking
    <bullet> We invite comments, in an expedited, one-round, five (5) 
day cycle, in the Notice of Proposed Rulemaking (NPRM), published 
elsewhere in this issue of the Federal Register, regarding additional 
amendments to our rules and regulations to carry out the purposes of 
the DTV Delay Act.
    <bullet> In particular, we propose to revise the analog service 
termination requirements for stations still operating in analog. We 
believe that these proposed revisions to the procedures in the Third 
DTV Periodic Report and Order, in addition to the notification changes 
adopted in the Order, are necessary to implement the DTV Delay Act.
    <bullet> We also seek comment on possible revisions to the consumer 
education rules, particularly the adoption of a requirement that 
broadcasters notify viewers of predicted service loss. We ask whether 
broadcasters should provide information on rescanning with digital 
equipment, and, where applicable, information regarding the need for 
different equipment due to changes from UHF to VHF service, or vice 
versa. We also seek comment on amendments to the ``100-Day Countdown'' 
responsibility of Option Two broadcasters and the 30 minute 
informational video that is required in both Option Two and Option 
Three. Finally, we ask whether stations that participate in or support 
the post-transition analog nightlight program should be exempt from 
post-transition consumer education requirements.

III. Discussion

A. Consumer Education

    9. In early 2008, the Commission adopted a number of rules designed 
to educate viewers and consumers about the digital television 
transition. Many of these rules were specifically tied to the original 
February 17, 2009 nationwide transition date, and all were set to 
expire on a schedule reflecting that the transition would conclude in 
the first quarter of 2009. Therefore, now that the transition has been 
extended, most of these rules must be revised to continue to serve 
their educational purpose.
    10. The DTV Delay Act establishes a new ``hard'' deadline for the 
completion of the nation's transition to digital television for full 
power stations. However, unlike the Act establishing the original hard 
deadline, which left early transitions completely to the discretion of 
the Commission, the DTV Delay Act expressly contemplates a ``rolling'' 
transition, in which stations are permitted to cease providing analog 
service at various times prior to the nationwide conclusion of the 
transition consistent with the Commission's rules. Our revised consumer 
education rules therefore reflect not only the simple postponement of 
the transition deadline, but the fact that many consumers will begin to 
experience the switch to digital before June 12, if they have not 
already.
1. Comprehensive Changes
    11. In addition to updating references to the transition deadline 
in the Commission's rules and regulations, as discussed above, we must 
revise the rules governing the comprehensive consumer education 
campaign and its conclusion in response to the delay.
    12. The Consumer Education rules, as originally adopted, remain in 
effect until the conclusion of the calendar quarter in which the 
transition ended; thus, because the transition originally would have 
ended in the first quarter of 2009, the consumer education requirements 
would have remained in effect only through the end of March, 2009. The 
DTV Delay Act has postponed the transition deadline to the second 
quarter of 2009, and recognized that for many stations, and some entire 
markets, the transition will occur even sooner. Therefore, we find that 
it is appropriate for the revised consumer education requirements to 
remain in effect until the conclusion of the second quarter of 2009. We 
encourage broadcasters to revise their messaging as appropriate after 
the conclusion of the transition. We will exercise our prosecutorial 
discretion regarding the specific content of PSAs and crawls run 
pursuant to Option One. In each case where the Consumer Education rules 
refer to ``March 31, 2009,'' ``in March 2009,'' etc., we are revising 
them to reflect that the rules will conclude at the end of June, 2009. 
As a result, each of the rules discussed below will remain in effect 
through June 30, 2009, even where we find that no other change is 
necessary to bring the rule into compliance with the DTV Delay Act.
2. Manufacturer, ETC, and MVPD Notices
    13. Many of the rules in the DTV Consumer Education Initiative 
require industry stakeholders to provide their customers with paper or 
electronic notices that briefly explain the DTV transition. The rules 
governing manufacturers, ETCs, and MVPDs use identical language to 
describe the minimum information that must be provided in these 
notices:

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

Although this text is not mandatory, we recognize that many of the 
affected stakeholders follow it closely. In order to carry out the 
purposes of the DTV Delay Act, we find that we must revise this 
guidance to reflect not only that all full-power analog broadcasting 
will conclude on June 12, 2009, but that it may conclude earlier in 
many cases. We note that stations participating in the statutory 
nightlight program will continue to provide some analog service after 
June 12, 2009.
    14. Therefore, we adopt the following revised text to serve as 
guidance:


[[Page 8871]]


    The nationwide switch to digital television broadcasting will be 
complete on June 12, 2009, but your local television stations may 
switch sooner. After the switch, analog-only television sets that 
receive TV programming through an antenna will need a converter box 
to continue to receive over-the-air TV. Watch your local stations to 
find out when they will turn off their analog signal and switch to 
digital-only broadcasting. Analog-only TVs should continue to work 
as before to receive low power, Class A or translator television 
stations and with cable and satellite TV services, gaming consoles, 
VCRs, DVD players, and similar products.

In addition to information about the transition itself, the rules 
require that these notices also provide contact information that will 
allow the recipients to seek additional information about the 
transition. We find that it is appropriate to revise this requirement 
to ensure that the notices include, at a minimum, the toll-free number 
and Internet site for the FCC's Call Center, as well as NTIA's toll-
free number and Internet site for the coupon program, and a suggestion 
to contact local television stations. Because of the delay of the final 
transition and the ``rolling'' transitions that will be taking place 
prior to June 12, 2009, it is even more important that citizens have 
access to locally targeted information about how the transition will 
affect them. We believe these requirements will help to ensure that 
consumers have access to up-to-date information in order to help them 
better prepare for the transition.
    15. Manufacturers, ETCs, and MVPDs should include language based on 
this revised guidance in their notices as soon as practicable, but in 
any case no later than April 1, 2009. Thus, ETC and MVPD notices mailed 
in April must include updated language, and the notices included with 
television receivers and related devices manufactured in April must 
include updated language. We recognize that some companies may have 
already printed sufficient transition notices to meet their needs 
through March 31, 2009, the original conclusion of the education 
campaign, and have no desire to penalize these companies for being 
prepared. Because the existing rules expire on March 31, 2009, a 
failure to begin distribution of revised notices by at least April 1 
will create a gap in the information provided to consumers. The 
original DTV Consumer Education Initiative was released by the 
Commission on March 3, 2008, and the rules became effective on April 
30, 2008, 30 days after OMB approval for the rules was published. 
Therefore, ETCs and MVPDs had 58 days to prepare to fully comply. As 
discussed in the Consumer Education Sua Sponte Reconsideration, the 
Consumer Electronics Association argued that consumer electronics 
manufacturers need the ``same time period for implementation of the 
notice requirement that is required of MVPDs'' and ETCs. That order was 
released on April 23, 2008 and provided for a start date of May 30, 
2008 for manufacturer rules, giving them 37 days to prepare to fully 
comply. Manufacturers had no difficulty doing so. A date certain of 
April 1, 2009 for all three groups will provide manufacturers with 
slightly more time to comply than they received in the reconsidered 
order, and MVPDs/ETCs with slightly less time, but we anticipate that 
the time provided will be sufficient to allow the parties to comply. 
All of the affected parties are already including DTV consumer 
education notices pursuant to the existing rules, so the only change 
will be to the text printed on those notices. As discussed in the DTV 
Consumer Education Initiative, a party responsible for manufacturer 
notices (such as, in some cases, retailers and distributors) can comply 
by placing a sticker on the outside of the packaging of a covered 
device (47 CFR 15.124(a)) that reflects the revised notice text and the 
change in the transition deadline. The party responsible for inclusion 
of the notice is the ``manufacturer,'' or the party acting as the 
manufacturer under our rules; i.e., the ``responsible party'' as 
defined in Section 2.909 of the Commission's Rules.
3. Broadcaster On-Air Consumer Education
    16. Broadcasters are required to regularly provide on-air consumer 
education about the transition. The Consumer Education Initiative 
offered broadcasters a choice of rules: Options One or Two, available 
to any broadcaster, or Option Three, available only to non-commercial 
stations. Among and within these Options, broadcasters have a range of 
techniques to choose from, resulting in a mix of public service 
announcements (PSAs), graphics and text superimposed over programming, 
and longer form informational programming. Elements of each Option must 
be revised in response to the DTV Delay Act, and are addressed below. 
We remind broadcasters that whatever option they elected, these on-air 
education requirements are separate from and in addition to any viewer 
notification requirements imposed on a station by the Third DTV 
Periodic Report and Order, the Commission's recent public notice 
addressing early transitions on February 17, 2009, or any other rule or 
regulation. We also direct broadcasters to the companion NPRM, which 
raises questions about additional or revised requirements for 
broadcasters, including a requirement to provide viewers with 
notifications about any predicted service loss.
a. Option One
    17. The rules require Option One broadcasters to air both PSAs and 
crawls, in every quarter of every day, with increasing frequency as the 
transition approaches. During the first calendar quarter in which the 
rules were in effect, they were at a minimum level of only one PSA and 
one crawl aired in each quarter of each day. The rules increased to 
their maximum level for the final two quarters of the consumer 
education campaign. Beginning on October 1, 2008, and extending 
``through the conclusion of the campaign,'' broadcasters were required 
to air three PSAs and three crawls in each quarter of the day. Thus, 
Option One broadcasters have already been engaged in this maximum level 
of consumer education, and have planned to continue to provide it 
through the conclusion of the first quarter of 2009. As discussed 
above, the conclusion of the nationwide consumer education campaign has 
now been extended to the end of the second quarter of 2009 (June 30, 
2009). Given that this delay was driven by the need for greater 
consumer awareness, and the change to the ``hard'' transition date, it 
would be inappropriate to diminish the amount of information available 
to television viewers now. Furthermore, broadcasters are now in the 
final two quarters of the transition, and the Commission has previously 
found that providing the most extensive information to viewers is 
essential during this time period. Therefore, we do not revise this 
rule, and Option One broadcasters must continue to air three PSAs and 
three crawls in each quarter of the day.
    18. Although the Commission did not dictate the content of the PSAs 
and crawls, Option One broadcasters do have to convey certain specific 
information to viewers, including describing changes in the geographic 
area or population served by the station during or after the 
transition. Some of this information is described using the same 
guidance text as the MVPD, ETC, and manufacturer rules. We find that 
the revisions applied to this text in the MVPD/ETC/manufacturer context 
are equally appropriate in this context, and revise the Option One 
rules accordingly.
b. Option Two
    19. The rules require broadcasters that selected Option Two to air 
a certain

[[Page 8872]]

number of PSAs and crawls, snipes, or tickers each calendar quarter 
(25% of which must be in prime time), and to provide a ``100-Day 
Countdown to the transition.'' We note that many of the Option Two 
requirements were proposed by the National Association of Broadcasters 
(``NAB'') and that the NAB has provided much of the material that 
broadcasters use to fulfill these requirements. The 100-Day Countdown 
supplements the initial requirements and consists of an at-least-once-
daily airing of a graphic or longer-form information segment that, at a 
minimum, gives the number of days remaining until the transition and 
provides a Web site or phone number viewers can call for more 
information. Stations that elected Option Two have been airing these 
countdown reminders on a daily basis since November 10, 2008. Now, 
however, more than 100 days remain until the national transition. 
Therefore, barring any additional Commission action prior to March 4, 
2009, we find that all Option Two stations must begin a new 100-day 
countdown to June 12, 2009 on March 4, 2009. Nevertheless, we are 
seeking comment in the attached NPRM on whether and how to modify the 
new 100-day countdown requirement to ensure that it provides the most 
accurate and useful information to viewers. Pending any modification as 
a result of our consideration of the comments filed in response to that 
NPRM, we conform the 100-Day countdown to the new, June 12, 2009, 
transition date, and require all Option Two stations to begin a new 
100-day countdown to June 12, 2009 on March 4, 2009.
c. Option Three
    20. Option Three, available only to noncommercial educational 
broadcasters (NCEs), does not require airing of a certain number of 
PSAs or crawls. Instead, it requires broadcasters to air several 
minutes of DTV education daily, allocated between PSAs and longer form 
messages as the broadcaster chooses. However it is allocated, NCEs must 
devote an increasing number of minutes to consumer education as the 
transition approaches. During the first period in which the rules were 
in effect, they were at a minimum level of only 1 minute of education 
daily, with 7.5 minutes a month in prime time. The rules increased to 
their maximum level for the final months prior to the transition. 
Beginning on November 1, 2008, and extending through March 31, 2009, 
broadcasters were required to air 3 minutes of education daily, with 
22.5 minutes a month in prime time. Thus, Option Three broadcasters 
have already been engaged in this maximum level of consumer education, 
and have planned to continue to provide it through the conclusion of 
the first quarter of 2009. As discussed above, the conclusion of the 
nationwide consumer education campaign has now been extended to the end 
of the second quarter of 2009 (June 30, 2009). Given that this delay 
was driven by the need for greater consumer awareness, and the change 
to the ``hard'' transition date, it would be inappropriate to diminish 
the amount of information available to television viewers now. 
Furthermore, broadcasters are now in the final months of the 
transition, and the Commission has previously found that providing the 
most extensive information to viewers is essential during this time 
period. Therefore, we will change only the end date of this rule, and 
Option Three broadcasters must continue to air 3 minutes of education 
daily, with 22.5 minutes a month in prime time.
d. Broadcaster Reporting
    21. The Consumer Education rules require that all broadcasters 
prepare reports summarizing their consumer education outreach efforts, 
file them with the Commission, and make them publicly available both 
online and in their public inspection forms. These reports must be 
prepared ``up to and including the quarter in which a station concludes 
its education campaign.'' This requirement needs no revision. 
Broadcasters must continue to file their reports through the second 
quarter of 2009 and, where appropriate, longer (after June 30, any 
station that has filed a request for an extension to complete 
construction of its full, authorized, post-transition facility or is 
operating under such an extension must continue its education campaign 
until the request is withdrawn or denied or, if granted, until it 
expires). They must also continue to retain their reports in the public 
file, and make them available online, for one year from the date they 
are filed. To facilitate our timely review of those reports, we remind 
broadcasters that their reports should reflect all notices aired on a 
broadcaster's stations, including PSA and crawls, snipes, or tickers 
originated by broadcast networks. We encourage the networks and their 
affiliates to cooperate to compile this information, to the extent they 
have not done so already. The instructions attached to Form 388, DTV 
Quarterly Activity Station Report, have been amended to reflect the 
changes to the 30 minute informational program and 100-day countdown 
requirements. The Commission has received approval from OMB for these 
minor changes to the forms.
    22. Further, we take this opportunity to remind broadcasters of 
their continued responsibility in ensuring an effective and seamless 
DTV transition for consumers. We applaud the substantial efforts that 
broadcasters have made in educating consumers about the DTV transition 
to date, but we reiterate the importance of their full compliance with 
the DTV consumer education requirements. As we continue to monitor the 
consistency of the DTV consumer education efforts by broadcasters via 
the review of the consumer education campaign selected in their 
respective FCC Form 388s, we emphasize that full compliance with each 
and every element of the consumer education campaign option selected is 
required. We believe that a failure to meet each element of the option 
selected would significantly jeopardize the successful transition to 
DTV by consumers.
4. Other Reporting
a. 700 MHz Auction Winner Consumer Education Reporting
    23. The rules governing 700 MHz auction winners do not require 
particular outreach efforts, but they do specify that auction winners 
must, for ``the remaining period of the DTV transition,'' file a report 
on a quarterly basis. This report must detail what, if any, DTV 
transition consumer education efforts they undertook in the previous 
quarter. The rules provide that the reporting requirement terminates 
with the filing of the report for the first quarter of 2009. We revise 
the rules to reflect the extension of the remaining period of the 
transition by noting that auction winner reports must be filed for the 
second quarter of 2009.
b. DTV.gov Partner Consumer Education Reporting
    24. The Commission is working closely with stakeholders from 
industry and federal, state, local, and tribal governments, all of whom 
are active partners in the DTV outreach and education effort. We find 
that the limited DTV.gov Transition Partners program, as part of the 
DTV.gov Web site, is no longer an accurate reflection of our extensive 
work with outside groups, and therefore discontinue the program, 
effective immediately. As a result, there is no further obligation for 
Partners to file quarterly outreach updates as originally required in 
the DTV Consumer Education Order.

[[Page 8873]]

B. Changes to Third DTV Periodic Report and Order

    25. We make the following revisions to the Third DTV Periodic 
Report and Order in order to implement the extension of the DTV 
transition date to June 12, mandated by the DTV Delay Act.
1. Analog Service Terminations
    26. We revise our analog (and pre-transition digital) service 
termination and reduction procedures to require all stations to file a 
binding notice of their proposed analog service termination date by 
March 17, 2009. The rule changes herein apply to analog service 
terminations and substantial reductions to analog service. In general, 
a ``substantial'' reduction is one that would affect 10 percent or more 
of the population in a station's service area, as represented by the 
predicted Grade B contour. References to ``termination'' here are 
intended to apply to such substantial reductions as well as to 
terminations. This notification, and the procedures that will be 
adopted in this docket, supersede the early analog termination 
procedures established in the Third DTV Periodic Report and Order. As a 
result, no service termination notifications may be filed prior to the 
adoption of the new procedures and form proposed in the companion NPRM. 
We find that this revision is necessary to implement and carry out the 
purposes of the DTV Delay Act. We establish March 17, 2009, as the date 
certain by which stations must notify us of the date on which they 
intend to terminate analog service. In this notification, stations must 
either commit to terminating on June 12, 2009, or on a date prior to 
the nationwide DTV transition deadline subject to the procedures to be 
adopted in this proceeding. Any station that does not notify us by 
March 17, 2009, will be assumed to be terminating on June 12, 2009, and 
will not be permitted to terminate their analog service prior to June 
12, 2009 (except in the case of equipment failure, natural disaster, or 
other unforeseeable emergency). We seek comment in the companion NPRM 
on proposed procedures and requirements for stations seeking to 
complete their transition prior to June 12, 2009. We expect to adopt an 
Order finalizing the requirements no later than March 13, 2009. We 
strongly encourage major network affiliates that intend to transition 
prior to June 12 to communicate with the other affiliates serving the 
same viewing area as early as possible.
    27. Congress extended the nationwide DTV transition deadline to 
allow time for consumers to be prepared for the transition. In 
particular, Congress and the President took note that the digital 
converter box program administered by the National Telecommunications 
and Information Administration of the Department of Commerce (``NTIA'') 
has a backlog of applications for coupons, now numbering more than four 
million. Moreover, the Commission and industry partners have recently 
undertaken to provide a unified toll-free number for consumers seeking 
assistance with the transition (1-888-CALL-FCC), and we have arranged 
through contractors and volunteers to provide hands-on assistance for 
consumers across the country. If stations plan to transition before 
June 12, 2009 despite the significant benefits to consumers of 
continuing analog service through the transition deadline, it is 
essential that the Commission, industry, and the public be fully 
informed well in advance. We conclude that the 30-day advance notice 
procedure adopted in December 2007 in the Third DTV Periodic Report and 
Order is insufficient for the present circumstances. We cannot forecast 
and deploy resources to prepare and assist consumers based on rolling, 
uncoordinated notifications. We believe that allowing any or all 
stations to terminate or substantially reduce analog service under the 
existing Third DTV Periodic Report and Order procedures would squander 
the time given to us and the country by the delay enacted by Congress 
and the President. Accordingly, we require all full-power television 
stations that have not terminated their analog service as of February 
17, 2009 to decide on a firm date by which they intend to terminate 
their regular analog television service and to notify us of that date 
no later than Tuesday, March 17, 2009. By this date, stations will have 
had ample time to consider their plans in light of other broadcasters' 
plans and the circumstances in their markets, and can finalize their 
own transition plans accordingly. Furthermore, as explained above, we 
need to establish an orderly and predictable process for any 
transitions prior to the statutory deadline. In order to establish and 
maintain such a process, we must know stations' firm dates for analog 
service termination in order to focus and deploy consumer education 
resources appropriately; and viewers, industry and other interested 
parties also need to know the relevant date for stations in their 
markets so they can appropriately prepare for the change in television 
service.
    28. In the companion NPRM, we seek to develop revised service 
termination procedures that will best enable us to evaluate and adjust 
deployment of our resources and to coordinate with other entities in 
order to prepare for stations' analog service terminations and protect 
the public interest while preserving broadcasters' flexibility to 
terminate analog operations. The Commission must make, adjust and 
prioritize arrangements for consumer outreach, call center staffing, 
and converter installation assistance and coordinate with contractors, 
partners, volunteers, and organizations throughout the country to 
address areas where stations will terminate their analog signals 
throughout the transition period. In addition, other broadcasters, 
cable operators, satellite carriers and other MVPDs, equipment 
manufacturers, and tower crews will be relying on stations' 
notifications of their analog service termination dates for their own 
planning purposes. The establishment of this date certain for 
notifications and the brief hiatus before notifications may be filed 
are essential steps that must be undertaken now to enable the 
Commission to implement the new procedures.
    29. As discussed below in the NPRM, we encourage stations that wish 
to transition before June 12, 2009 to file comments in the DTV Delay 
Act rulemaking docket (No. 09-17) indicating the date they would like 
to transition, why they need to transition early and the basis for the 
particular date they prefer. Such comments will be helpful to us in 
formulating the final procedures. However, dates listed in a station's 
comments will not represent binding commitments, and will not replace 
the March 17 notices that all stations must file. Indeed, any 
notifications filed with us before the adoption of new procedures 
through this rulemaking, including notices filed prior to the release 
of this Order, will be for informational purposes only and will not 
serve as official notice authorizing stations to terminate. Any 
stations that have already filed termination notifications will be 
required to re-file pursuant to the new procedures and form to be 
adopted. Nonetheless, we believe that having more information available 
to the Commission when drafting the specific requirements for early 
termination will result in a better outcome, and will consider all 
comments from stations in crafting revised procedures.
    30. We find that the DTV Delay Act, taken as a whole, authorizes 
the

[[Page 8874]]

Commission to change the procedures established in the Third DTV 
Periodic Report and Order as necessary to implement and carry out the 
purposes of the DTV Delay Act. Section 4(a) of the Act provides that 
``[n]othing in this Act is intended to prevent'' early termination ``in 
accordance with the [FCC's] requirements in effect on the date of 
enactment of this Act, including the flexible procedures established in 
the [Third DTV Periodic Report and Order].'' Section 4(c) of the Act 
authorizes the Commission to ``adopt or revise its rules, regulations, 
or orders or take such other actions as may be necessary or appropriate 
to implement the provisions, and carry out the purposes, of this Act.'' 
Because Section 4(a) is written in permissive terms with a limiting 
proviso (``Nothing in this Act is intended to prevent * * *''), and 
does not prohibit the Commission from modifying its early termination 
procedures, and because Section 4(a) grants the Commission broad 
discretion to revise its rules ``as necessary or appropriate'' to carry 
out the Act's purposes, we find that the Act, as a whole, authorizes 
the Commission to modify the analog (and pre-transition digital) 
service termination procedures initially established in the Third DTV 
Periodic Report and Order. We find that Congress simply intended in 
Section 4(a) of the DTV Delay Act to make it clear that it was not 
overriding the FCC's existing termination procedures--not to prevent 
the FCC from modifying those procedures. We note, however, that the new 
procedures that we adopt herein and propose in the companion NPRM will 
provide stations with flexibility to terminate analog (and pre-
transition digital) television service before the new transition 
deadline of June 12, 2009.
    31. The Third DTV Periodic Report and Order established streamlined 
notification procedures for stations planning to terminate analog 
service on a date 90 days or less before the transition date. Such 
early terminations were permitted if ``necessary for purposes of the 
transition,'' and with notification to the Commission as well as to 
viewers. In the February 5 Public Notice, we stated that for analog 
terminations on or after March 14, stations must notify us at least 30 
days prior to the termination date and provide viewer notifications for 
at least 30 days prior to their termination of analog service pursuant 
to the Third DTV Periodic Report and Order procedures. Except in the 
case of equipment failure, we said we would not permit stations to 
terminate analog service with less than 30 days notice to the 
Commission and the stations' viewers. We reserved the right, however, 
to amend these rules and procedures, if necessary, and we do so here in 
order to carry out the purposes of the DTV Delay Act.
    32. Accordingly, only notifications filed prior to March 17, 2009, 
and in compliance with the procedures adopted in this docket will be 
accepted. Stations should not file 30-day advance notifications of 
intent to terminate analog service, and will not be authorized to 
terminate analog service prior to June 12, 2009 based upon the filing 
of any notification submitted before we finalize and release the analog 
service termination procedures. In the companion NPRM, we tentatively 
conclude that stations may terminate no earlier than April 16, 2009, to 
provide at least 30 days from the notification date for all parties to 
prepare and educate consumers. As required by the DTV Delay Act, we 
will establish final analog service termination procedures no later 
than Friday, March 13, 2009 (which date is 30 days after enactment of 
the DTV Delay Act).
2. Transition Status Reports (FCC Form 387)
    33. Consistent with the Third DTV Periodic Report and Order and the 
timing adopted in this Order, we require all full-power television 
stations to update their DTV Transition Status Reports, FCC Form 387, 
no later than Thursday April 16, 2009 to reflect their transition plans 
as a result of the delay in the nationwide transition deadline. 
Stations that already filed an update since enactment of the DTV Delay 
Act to show that they terminated analog television service on or before 
February 17, 2009 need not file this update. In the Third DTV Periodic 
Report and Order, the Commission established the Form 387 to require 
all full-power television stations to detail (1) their current 
transition status, (2) any additional steps needed to commence their 
full, digital operations, and (3) their timeline to meet the transition 
deadline. In addition to two mandatory filing dates in February and 
October of 2008, the Commission required stations to promptly update 
their forms as events warrant, until they reported the completion of 
their transition. Because all stations must reevaluate and adjust their 
plans in light of the delay of the transition date, we are requiring 
this mandatory update to the Form 387 for stations to provide the 
details of their revised transition plan, including if they intend to 
continue broadcasting an analog signal until June 12, 2009. We are also 
revising Form 387 to conform to the DTV Delay Act and reflect the new 
June 12, 2009 transition deadline. The Commission has received approval 
from OMB for these minor changes to the form. The Form 387 must be 
updated electronically using the Commission's Consolidated Database 
System (``CDBS'') Electronic Filing System.
3. Construction Deadlines, Extension Requests, and Tolling 
Notifications
    34. In the Third DTV Periodic Report and Order, the Commission 
established deadlines for full-power television stations to construct 
digital facilities and stricter standards for stations to obtain 
extensions of these deadlines. The Commission set construction 
deadlines of May or August 2008 for stations that were going to use 
their current (pre-transition) DTV channel for post-transition 
operations, but established a deadline of February 17, 2009 (the 
previous transition date) for stations that: (1) Were building digital 
facilities based on a new channel allotment in the post-transition DTV 
Table of Allotments, i.e., the station would be either returning to its 
analog channel or moving to a new digital channel for post-transition 
operations; or (2) demonstrated that a unique technical challenge, such 
as the need to reposition a side-mounted antenna, prevents them from 
completing construction of their final DTV facilities. The Commission 
also established stricter standards for granting extensions of time to 
construct digital facilities. More specifically, the Commission 
required stations with a construction deadline on or before February 
17, 2009 to apply for an extension under the revised extension request 
standard in Section 73.624(d)(3) of the rules and required stations 
with a construction deadline occurring February 18, 2009 or later to 
seek an extension under the even stricter tolling standard set forth in 
Section 73.3598(b) of the rules.
    35. In the First DTV Delay Order, we extended until June 12, 2009 
(the new transition deadline) the construction deadline for stations 
with a deadline of February 17, 2009 (the previous transition 
deadline). We now revise Section 73.624(d)(1)(vii) of the rules to 
reflect this change. Accordingly, these stations must complete 
construction of their digital facility no later than June 12, 2009. In 
addition, in the First DTV Delay Order, we also extended until June 12, 
2009 the analog license terms and adjusted the construction permits for 
full power television stations. In the First DTV Delay Order, we noted 
that a

[[Page 8875]]

number of stations are operating with reduced analog facilities 
pursuant to special temporary authority, based upon a showing that the 
service reduction was directly related to the construction and 
operation of their post-transition facilities, and extended the date of 
termination for these STAs from February 17, 2009 to June 12, 2009 
(11:59:59 p.m. local time). This extension, however, does not apply to 
STAs granted to stations for reasons not related to the DTV transition 
including those STAs filed for emergency reductions in power. These 
other stations must request Commission approval for an extension to 
remain at reduced power by filing an analog engineering STA. These STAs 
will be reviewed on a case-by-case basis. By this Order we also extend 
until June 12, 2009 (11:59:59 p.m. local time) the license terms for 
pre-transition digital operations and adjust the pre-transition digital 
authorizations, accordingly. Stations' construction permits expire on 
June 12, 2009 at 11:59:59 local time. We also note that a station which 
has a maximized construction permit that expires on June 12, 2009, and 
which completes construction of its initial post-transition authorized 
facility by that date may file an application for a license to cover 
the constructed initial facility, and may also request that the 
construction deadline for its maximized construction permit be extended 
to three years from the date its maximized construction permit 
applications was granted. Such requests should be directed via e-mail 
to Kevin Harding of the Media Bureau's Video Division at 
<a href="/cdn-cgi/l/email-protection#024967746b6c2c4a6370666b6c65426461612c656d74"><span class="__cf_email__" data-cfemail="95def0e3fcfbbbddf4e7f1fcfbf2d5f3f6f6bbf2fae3">[email protected]</span></a>.
    36. Consistent with our extension of the construction deadlines, we 
extend to June 12, 2009 the date for granting extensions of time to 
construct digital facilities. Accordingly, we revise Sections 
73.624(d)(3)(ii) and (iii) of our rules and will apply the extension 
request standard contained in Section 73.624(d)(3) to stations with 
construction deadlines on or before June 12, 2009 and the tolling 
standard set forth in Section 73.3598(b) to all construction deadlines 
occurring June 13, 2009 or later. This extension is consistent with the 
decision made in the Third DTV Periodic Report and Order to allow 
stations building their authorized post-transition facility to rely 
upon the extension standards until the date of the transition deadline 
and thereafter to apply the tolling standard that applies to other 
broadcast facilities. We take this opportunity to remind stations that 
if their construction deadline is extended beyond June 12, 2009, the 
tolling standard applies to the extended construction deadline, and 
stations may use only the tolling criteria as a basis for failing to 
complete construction. We revise Section 73.3598(b)(3) of our rules to 
reflect the new transition deadline.
    37. Phased Transition Provisions. We find there is no need to 
extend the Special Temporary Authority (STA) deadlines established for 
stations through the phased transition provisions of the Third DTV 
Periodic Report and Order. In the Third DTV Periodic Report and Order, 
the Commission adopted two provisions for a ``phased transition'' in an 
effort to offer broadcasters regulatory flexibility in meeting their 
post-transition construction deadlines without disappointing viewer 
expectations after the transition deadline. First, the Commission 
granted a six month STA to stations to temporarily remain on their pre-
transition DTV channel with an option to seek another six months, 
provided the station continues to satisfy the conditions for this STA. 
These stations must commence operations on their final, post-transition 
(digital) channel no later than February 18, 2010. Second, the 
Commission granted a one-time six-month STA to stations to build less 
than their full, authorized facility by their construction deadline. 
These stations must commence operations at full, authorized digital 
facilities no later than August 18, 2009. To qualify for these 
provisions, stations were required to meet a service requirement to 
minimize the loss of service after the transition deadline, were 
prohibited from causing impermissible interference to other stations or 
preventing other stations from making their transition, and were 
required to comply with a viewer notification requirement. Pursuant to 
the first phased transition provision, the Commission allowed stations 
that are moving to a different DTV channel for post-transition 
operations to temporarily remain on their pre-transition DTV channel 
while they complete construction of their final digital facilities, 
provided: (1) They build facilities that serve at least the same 
population that receives their current analog TV and DTV service so 
that over-the-air viewers will not lose TV service; and (2) They do not 
cause impermissible interference to other stations or prevent other 
stations from making their transition. Pursuant to the second phased 
transition provision, the Commission allowed stations to operate their 
post-transition facilities at less than their full, authorized 
facilities, provided they demonstrated either: (1) A ``unique technical 
challenge'' (as defined in the Third DTV Periodic Report and Order) and 
could serve at least 85 percent of the same population that receives 
their current analog TV and DTV service; or (2) A significant technical 
impediment to the construction of their full, authorized facilities 
that would not otherwise qualify for an extension of time to construct 
facilities under the new, stricter standard adopted in the Third DTV 
Periodic Report and Order and could serve at least 100 percent of the 
same population that receives their current analog TV and DTV service 
so that over-the-air viewers will not lose TV service. Both phased 
transition provisions also require the station to notify viewers on its 
analog channel about the station's planned delay in construction and 
operation of post-transition (DTV) service. The viewer notifications 
must occur every day on-air at least four times a day including at 
least once in primetime for the 30 days prior to the station's 
termination of full, authorized analog service. We note that stations 
that started these viewer notifications in advance of a previously 
planned February 17, 2009 termination that did not occur must restart 
airing these notifications 30 days in advance of their phased 
transition. We find it unnecessary at this time to automatically extend 
these STAs. In many cases, these phased transition STAs were granted to 
address construction impediments due to weather-related concerns. To 
the extent additional time is needed, stations with a phased transition 
STA must comply with Section 73.3598(b) tolling standard established 
the Third DTV Periodic Report and Order.

C. 700 MHz Band License Periods and Construction Requirements

    38. Section 2(c)(1) of the DTV Delay Act states that the Commission 
``shall extend the terms of the licenses for the recovered spectrum, 
including the license period and construction requirements associated 
with those licenses, for a 116-day period.'' Section 2(c)(2) defines 
``recovered spectrum'' as both ``the recovered analog spectrum, as such 
term is defined in section 309(j)(15)(C)(vi) of the Communications Act 
of 1934'' and ``the spectrum excluded from the definition of recovered 
analog spectrum by subclauses (I) and (II) of such section.'' Thus, 
``recovered spectrum,'' as defined in the DTV Delay Act, includes all 
spectrum between frequencies 698 and 806 megahertz, inclusive (700 MHz 
Band).
    39. In this Report and Order, we conform the license period in 
section

[[Page 8876]]

27.13, and construction deadlines provided in section 27.14, to the 
provisions of section 2(c) of the DTV Delay Act. Section 27.13 of our 
rules currently provides that the license period for the licenses 
associated with the 698-763 MHz and 776-793 MHz bands are for a term 
not to exceed ten years from February 17, 2009, the previous digital 
television transition date. Section 27.14 of our rules similarly ties 
the construction benchmarks and associated reporting requirements to 
February 17, 2009. Accordingly, we modify these dates to implement the 
116 day extension required by the DTV Delay Act.
    40. In addition, we conform sections 27.1310, 90.528, and 90.1410 
of the 700 MHz Public/Private Partnership rules to the provisions of 
section 2(c) of the DTV Delay Act. We note that these rules are under 
consideration in a pending rulemaking proceeding and may be further 
revised in that proceeding.

D. Analog Nightlight Program

    41. The Short-term Analog Flash and Emergency Readiness Act was 
enacted on December 23, 2008, prior to the enactment of the DTV Delay 
Act. It required the Commission to develop and implement a program to 
``encourage and permit'' continued analog television service during the 
30-day period after the DTV transition for the purpose of providing 
emergency and DTV transition information to viewers who had not 
obtained the necessary equipment to receive digital broadcasts by the 
transition deadline, which was then February 17, 2009. The Analog 
Nightlight Act specified that the analog nightlight program is to occur 
``during the 30-day period beginning on the day after the date 
established by law under section 3002(b) of the Digital Television 
Transition and Public Safety Act of 2005 for termination of all 
licenses for full-power television stations in the analog television 
service and the cessation of broadcasting by full-power stations in the 
analog television service.'' On January 15, 2009, the Commission 
adopted and released the ``Analog Nightlight Order'' implementing the 
Analog Nightlight Act and listing stations eligible to participate in 
the Analog Nightlight program. The DTV Delay Act amends Section 3002(b) 
of the Digital Television Transition and Public Safety Act of 2005 by 
striking ``February 18, 2009'' and inserting ``June 13, 2009.'' In 
light of the fact that the Analog Nightlight Act's language ties the 
provision of ``Nightlight'' service to the nationwide DTV transition 
deadline provided for by statute, rather to the original statutory 
deadline of February 17, 2009, we conclude that the 30-day period 
applicable to the Analog Nightlight program will begin following the 
new transition deadline and will run from and including June 13 through 
July 12, 2009. We note that this statutory post-transition Nightlight 
is distinct from the 60-day pre-transition ``enhanced nightlight'' 
adopted for some network affiliates that transitioned on February 17, 
2009, and proposed in the companion NPRM.
    42. We find that our interpretation of the Analog Nightlight Act is 
also the most practical and logical approach to fulfilling the purpose 
of the analog nightlight program. We expect that the additional time 
afforded by the DTV Delay Act will enable many more people to be fully 
prepared for the final transition of full-power analog to digital-only 
broadcasting on June 12. Nevertheless, we recognize that some people 
may not have their equipment in place even by June 12 and, therefore, 
could benefit from the continuing availability of analog television 
service for a limited period of time to provide information about the 
DTV transition and, if necessary, emergency information. Accordingly, 
we find that allowing analog nightlight operation pursuant to the 
Analog Nightlight Act during the 30-day period after June 13 is 
consistent with section 4(c) of the DTV Delay Act, which authorizes the 
Commission to take such actions as it deems necessary or appropriate to 
carry out the purposes of the DTV Delay Act and ensure a smooth 
transition.
    43. We see no reason to revise the Analog Nightlight program as we 
implemented it in the Analog Nightlight Order and will retain the 
parameters of the program without change except for the delay in 
timing. We note, however, that it is necessary to correct Appendix A to 
the Analog Nightlight Order by deleting three stations that were listed 
in error and correcting the column headings in that appendix for the 
``pre-'' and ``post-'' transition channels. The titles of columns G and 
H in Appendix A were reversed. Column G, which was titled Post-
Transition Channel, should be ``Pre-Transition Channel'' and Column H, 
which was titled Pre-Transition Channel, should be ``Post-Transition 
Channel.''
    44. The following stations were incorrectly listed in Appendix A of 
the Analog Nightlight Order as pre-approved to be eligible for the 
analog nightlight program: KXGN, Glendive, MT and KALO, Honolulu, HI, 
both of which have been authorized to use their analog channels for 
post-transition digital operation, and therefore cannot remain on their 
analog channels after the transition; and KPBS, San Diego, CA, whose 
analog channel 15 has been authorized for public safety use following 
the transition, thus eliminating it from eligibility as a nightlight.
    45. We intend to reevaluate the stations listed as eligible in 
Appendix A of the Analog Nightlight Order as we near the new June 12, 
2009 transition deadline to determine if there are changes in 
circumstances and facilities that call for adjustments to those listed. 
Stations that want to provide nightlight service may notify us in 
accordance with the filing procedures established in the Analog 
Nightlight Order. Stations that are pre-approved by the Commission to 
be eligible to participate in the analog nightlight program may notify 
the Commission of their intent to participate in the analog nightlight 
program by either filing a Legal STA electronically through the 
Commission's Consolidated Database System (``CDBS'') using the Informal 
Application filing form or by sending an e-mail to <a href="/cdn-cgi/l/email-protection#17797e707f637b7e707f635771747439707861"><span class="__cf_email__" data-cfemail="3b55525c534f57525c534f7b5d5858155c544d">[email protected]</span></a>; 
stations that are not pre-approved for the program by the Commission 
may, nonetheless, request Commission approval to participate in the 
analog nightlight program by filing an Engineering STA notification 
electronically through CDBS using the Informal Application filing form. 
We delegate to the Media Bureau or Office of Engineering and 
Technology, as appropriate, the authority to revise and adopt amended 
lists of pre-approved stations, as may be necessary, including issuing 
an Erratum to correct the Appendix A of the Analog Nightlight Order, 
consistent with the preceding paragraphs above.

IV. Procedural Matters

A. Statutory Authority and Good Cause Findings

    46. For the reasons below, pursuant to section 4(c) of the DTV 
Delay Act, we conclude that the rule changes and other actions herein 
are not subject to the rulemaking requirements of the Administrative 
Procedure Act, 5 U.S.C. 551, et seq. (APA), Congressional Review Act, 5 
U.S.C. 801, et seq. (CRA), Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq. (RFA), or any other provision of law that otherwise would apply 
and would impede implementation of the statutory directives. In any 
event, we also conclude that there is good cause for departure from 
such requirements here. Nevertheless, we are providing notice and an 
abbreviated opportunity for public comment regarding the issues 
addressed in Section IV above to allow

[[Page 8877]]

interested parties to contribute to our consideration of these issues 
to the extent possible in the limited time that Congress has provided.
    47. Section 4 of the DTV Delay Act provides that, 
``[n]otwithstanding any other provision of law,'' the Commission must 
``adopt or revise its rules, regulations, or orders or take such other 
actions as may be necessary or appropriate to implement the provisions, 
and carry out the purposes, of this Act and the amendments made by this 
Act'' within 30 days of the date of its enactment. The 
``notwithstanding'' clause plainly excuses compliance with otherwise 
applicable legal requirements that would impede FCC actions to 
implement the DTV Delay Act by the statutory deadline. In other 
contexts, the DC Circuit has interpreted similar ``notwithstanding'' 
language ``to supersede all other laws, stating that `a clearer 
statement is difficult to imagine.' '' The plain meaning of the DTV 
Delay Act's language is reinforced by the circumstances surrounding its 
passage. Congress extended the imminent DTV transition deadline to 
enhance national preparedness for the DTV transition, and examination 
of the legislative history reflects its recognition that accomplishing 
this goal would require extraordinary and immediate action by the 
Commission and others. Thus, the Act requires the FCC to act not later 
than 30 days after the date of enactment, and grants it broad 
discretion within that brief period to take such actions ``as may be 
necessary or appropriate'' to accomplish the Act's goals. For the 
reasons explained elsewhere in this Order, we find that the rulemaking 
and other actions herein are necessary and appropriate to implement the 
DTV Delay Act and carry out its purposes. As discussed below, 
compliance with the APA and other procedural administrative law 
requirements would frustrate or impede the FCC's ability to meet the 
statutory deadline. Therefore, section 4(c) of the Act supersedes such 
legal requirements.
    48. Even if the statutory language were ambiguous, we would 
interpret it to exempt the Commission from APA and other procedural 
administrative law requirements that cannot be reconciled with the 
statutory mandate. As stated above, the Act requires the FCC to 
implement its provisions and purposes within 30 days. The fact that 
many Commission rules, regulations and orders are tied to the original 
statutory deadline of February 17, 2009, combined with the Act's 
enactment only a few business days before February 17, reduced the time 
frame for many of the necessary actions from one month to a matter of 
days. Moreover, given the number and complexity of rulemaking and other 
actions required to implement the DTV Delay Act and accomplish its 
purposes, combined with the fact that the Act itself postpones the 
nationwide DTV transition for a limited period, the FCC cannot fulfill 
the statutory mandate and comply with otherwise applicable rulemaking 
and other legal requirements. There is insufficient time to publish a 
Notice of Proposed Rulemaking in the Federal Register, allow time for 
meaningful comment and consider those comments before taking all of the 
necessary legal actions. The APA also requires Federal Register 
publication at least 30 days before a rule's effective date. Here, a 
standard comment period after Federal Register publication and a 30-day 
waiting period before rules become effective would exceed the 30-day 
period after enactment during which agency implementation is required. 
Other legal requirements cited above likewise require more time than 
circumstances allow. Therefore, even if the statute were ambiguous, we 
would interpret it to supersede requirements that cannot be harmonized 
with the statutory mandate, including the APA, CRA, and RFA.
    49. We also find that there is good cause for departure from the 
APA requirements of notice and comment, the requirements of the CRA, 
and a 30-day delay before rules become effective under the 
circumstances here. As discussed above, the extraordinary circumstances 
surrounding the DTV Delay Act create an urgent need for rapid action. 
The statutory deadline for Commission action is no more than 30 days 
from enactment. The DC Circuit has held that ``the extremely limited 
time given by Congress'' to an agency for adoption of regulations ``is 
a crucial factor in establishing `good cause' '' under the APA. We note 
that many of our actions are of an interim nature, in that they will no 
longer be in force after June 13, 2009. Moreover, some of our actions, 
such as extending the terms of the licenses for the recovered spectrum 
(including the license period and construction requirements associated 
with those licenses) for 116-day period, are non-discretionary or 
ministerial in nature. Accordingly, even if our actions were subject to 
the APA (and, as explained above, they are not), we find that there is 
good cause for departure from APA requirements because the 
circumstances make compliance impracticable or unnecessary. 
Nevertheless, as indicated above, we are providing notice and an 
abbreviated opportunity for public comment regarding the issues 
addressed in Section IV above to allow interested parties to contribute 
to our consideration of these issues to the extent possible in the 
limited time that we have. We find that the five-day comment period 
provided herein is the maximum possible opportunity for public comment 
that we can provide and still fulfill our statutory mandate to take 
such actions as are necessary or appropriate to implement the DTV Delay 
Act and accomplish its purposes within 30 days of the Act's enactment, 
or no later than March 13, 2009.

B. Petitions for Reconsideration To Be Expeditiously Resolved

    50. Although, as discussed above, the DTV Delay Act did not provide 
sufficient time to take comments on each aspect of the necessary rule 
revisions, Petitions for Reconsideration of this Order will be 
addressed and resolved in an expeditious manner.

V. Ordering Clauses

    51. It is ordered that, pursuant to the authority contained in 
Sections 1, 2, 4, 7, 303, 309, and 337 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154, 157, 303, 309, and 337, and 
Sections 2 and 4 of the DTV Delay Act, Public Law 111-4, 123 Stat. 112, 
to be codified at 47 U.S.C. 309(j)(14) and 337(e), this Report and 
Order is adopted and the Commission's Rules ARE hereby amended as set 
forth in the Appendix.
    52. It is also ordered, pursuant to the authority contained in 
Section 4(c) of the DTV Delay Act, DTV Delay Act Sec.  4(c), the rules, 
forms and procedures adopted in this Report and Order will be effective 
upon publication of the summary of the Report and Order in the Federal 
Register, except for the revisions to Parts 15, 54, and 76 of Title 47 
of the Code of Federal Regulations, which are effective beginning April 
1, 2009. We anticipate that the summary of the Order will be published 
in the Federal Register at least 30 days before the effective date of 
April 1, 2009. In the event that publication is delayed, however, we 
find good cause for these rules to be effective on April 1, 2009, to 
ensure that consumers are informed about the digital television 
transition that is occurring on a rolling basis nationwide, and no 
later than June 12, 2009.

[[Page 8878]]

List of Subjects

47 CFR Part 15

    Communications equipment, Digital Television, and Digital 
Television Equipment.

47 CFR Part 27

    Communications common carriers, Radio, Wireless Communications 
Services, 700 MHz Band.

47 CFR Part 73

    Digital Television, Reporting and recordkeeping requirements, and 
Television.

47 CFR Part 76

    Cable Television and Digital Television.

47 CFR Part 90

    Radio, Private Land Mobile Radio Services, Public Safety 
Communications, 700 MHz Band.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR parts 15, 27, 54, 73, 76 and 90 to read as 
follows:

PART 15--RADIO FREQUENCY DEVICES

0
1. The authority citation for part 15 continues to read as follows:

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


0
2. Amend Sec.  15.124 as follows:
0
a. In paragraph (a), remove the date ``May 30, 2008'' and add in its 
place the date ``April 1, 2009'' and remove the date ``March 31, 2009'' 
and add in its place the date ``June 30, 2009''.
0
b. Revise paragraphs (b)(2)(i) and (ii) to read as follows:


Sec.  15.124  DTV transition notices by manufacturers of televisions 
and related devices.

* * * * *
    (b) * * *
    (2) * * *
    (i) The nationwide switch to digital television broadcasting will 
be complete on June 12, 2009, but your local television stations may 
switch sooner. After the switch, analog-only television sets that 
receive TV programming through an antenna will need a converter box to 
continue to receive over-the-air TV. Watch your local stations to find 
out when they will turn off their analog signal and switch to digital-
only broadcasting. Analog-only TVs should continue to work as before to 
receive low power, Class A or translator television stations and with 
cable and satellite TV services, gaming consoles, VCRs, DVD players, 
and similar products.
    (ii) Information about the DTV transition is available from your 
local television stations, http://www.DTV.gov, or 1-888-CALL-FCC (TTY 
1-888-TELL-FCC), and from http://www.dtv2009.gov or 1-888-DTV-2009 (TTY 
1-877-530-2634) for information about subsidized coupons for digital-
to-analog converter boxes; and
* * * * *

PART 27--MISCELLANEOUS WIRELESS COMMUNICATIONS SERVICES

0
3. 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.


0
4. Amend Sec.  27.13 to revise paragraph (b) to read as follows:


Sec.  27.13  License period.

* * * * *
    (b) 698-763 MHz, 776-793 MHz, 775-776, and 805-806 MHz bands. 
Initial authorizations for the 698-763 MHz and 776-793 MHz bands will 
extend for a term not to exceed ten years from June 13, 2009, except 
that initial authorizations for a Part 27 licensee that provides 
broadcast services, whether exclusively or in combination with other 
services, will not exceed eight years. Initial authorizations for the 
775-776 MHz and 805-806 MHz bands shall not exceed April 27, 2015. 
Licensees that initiate the provision of a broadcast service, whether 
exclusively or in combination with other services, may not provide this 
service for more than eight years or beyond the end of the license term 
if no broadcast service had been provided, whichever period is shorter 
in length.
* * * * *


Sec.  27.14  [Amended]

0
5. In Sec.  27.14, paragraphs (g), (g)(1), (h), (h)(1), (i)(1), (l), 
and (m)(1) remove the date ``February 17'' and add in its place the 
date ``June 13'' each place it appears.


Sec.  27.20  [Amended]

0
6. In Sec.  27.20, paragraph (c), remove the words ``first quarter'' 
and add in their place the words ``second quarter''.


Sec.  27.1310  [Amended]

0
7. In Sec.  27.1310, paragraph (j), remove the date ``February 17'' and 
add in its place the date ``June 13''.

PART 54--UNIVERSAL SERVICE

0
8. The authority citation for part 54 continues to read as follows:

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

Sec.  54.418  [Amended]

0
9. Amend Sec.  54.418 as follows:
0
a. In paragraph (a), remove the words ``April 30, 2008'' and add in 
their place the date ``April 1, 2009,'' and remove the words ``in 
March'' and add in their place the words ``on June 30,''.
0
b. Revise paragraphs (b)(2)(i) and (ii) to read as set forth below.
0
c. In paragraph (d), remove the date ``March 31, 2009'' and add in its 
place the date ``June 30, 2009''.


Sec.  54.418  Digital television transition notices by eligible 
telecommunications carriers.

* * * * *
    (b) * * *
    (2) * * *
    (i) The nationwide switch to digital television broadcasting will 
be complete on June 12, 2009, but your local television stations may 
switch sooner. After the switch, analog-only television sets that 
receive TV programming through an antenna will need a converter box to 
continue to receive over-the-air TV. Watch your local stations to find 
out when they will turn off their analog signal and switch to digital-
only broadcasting. Analog-only TVs should continue to work as before to 
receive low power, Class A or translator television stations and with 
cable and satellite TV services, gaming consoles, VCRs, DVD players, 
and similar products.
    (ii) Information about the DTV transition is available from your 
local television stations, http://www.DTV.gov, or 1-888-CALL-FCC (TTY 
1-888-TELL-FCC), and from http://www.dtv2009.gov or 1-888-DTV-2009 (TTY 
1-877-530-2634) for information about subsidized coupons for digital-
to-analog converter boxes;
* * * * *

PART 73--RADIO BROADCAST SERVICES

0
10. The authority citation for part 73 continues to read as follows:

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


Sec.  73.624  [Amended]

0
11. Amend Sec.  73.624 as follows:
0
a. In paragraphs (d)(1)(vii) and (d)(3)(iii), remove the date 
``February 17, 2009'' and add in its place, the date ``June 12, 2009''.

[[Page 8879]]

0
b. In paragraph (d)(3)(ii), remove the date ``February 18, 2009'' and 
add in its place the date ``June 13, 2009''.
0
12. Amend Sec.  73.674 as follows:
0
a. In paragraphs (b)(3), (c)(1), (d)(5), (e)(1) and (e)(2), remove the 
date ``February 17, 2009'' and add in its place the date ``June 12, 
2009'' each place it appears, and remove the date ``March 31, 2009'' 
and add in its place the date ``June 30, 2009'' each place it appears.
0
b. In paragraphs (d)(6) and (d)(6)(iv), remove the date ``November 10, 
2008'' and add in its place the date ``March 4, 2009'' and remove the 
date ``February 17, 2009'' and add in its place the word 
``transition''.
0
c. Revise paragraph (c)(3)(vi)(A), to read as follows:


Sec.  73.674  Digital television transition notices by broadcasters.

* * * * *
    (c) * * *
    (3) * * *
    (vi) * * *
    (A) The nationwide switch to digital television broadcasting will 
be complete on June 12, 2009, but your local television stations may 
switch sooner. After the switch, analog-only television sets that 
receive TV programming through an antenna will need a converter box to 
continue to receive over-the-air TV. Watch your local stations to find 
out when they will turn off their analog signal and switch to digital-
only broadcasting. Analog-only TVs should continue to work as before to 
receive low power, Class A or translator television stations and with 
cable and satellite TV services, gaming consoles, VCRs, DVD players, 
and similar products.
* * * * *
0
13. In Sec.  73.3598, paragraph (b)(3), remove the date ``February 17, 
2009'' and add in its place the date ``June 12, 2009''.

PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE

0
14. The authority citation for part 76 continues to read as follows:

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


0
15. Amend Sec.  76.1630 as follows:
0
a. In paragraph (a), remove the words ``April 26, 2008'' and add in 
their place the date ``April 1, 2009,'' and remove the words ``in 
March'' and add in their place the words ``on June 30,''.
0
b. Revise paragraphs (b)(2)(i) and (ii) to read as follows:


Sec.  76.1630  MVPD Digital Television Transition Notices.

* * * * *
    (b) * * *
    (2) * * *
    (i) The nationwide switch to digital television broadcasting will 
be complete on June 12, 2009, but your local television stations may 
switch sooner. After the switch, analog-only television sets that 
receive TV programming through an antenna will need a converter box to 
continue to receive over-the-air TV. Watch your local stations to find 
out when they will turn off their analog signal and switch to digital-
only broadcasting. Analog-only TVs should continue to work as before to 
receive low power, Class A or translator television stations and with 
cable and satellite TV services, gaming consoles, VCRs, DVD players, 
and similar products.
    (ii) Information about the DTV transition is available from your 
local television stations, http://www.DTV.gov, 1-888-CALL-FCC (TTY 1-
888-TELL-FCC), or this MVPD at [telephone number and Web site if 
available], and from http://www.dtv2009.gov or 1-888-DTV-2009 (TTY 1-
877-530-2634) for information about subsidized coupons for digital-to-
analog converter boxes;
* * * * *

PART 90--PRIVATE LAND MOBILE RADIO SERVICES

0
16. 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), and 332(c)(7).


Sec.  90.528  [Amended]

0
17. In Sec.  90.528, paragraph (d), remove the date ``February 17'' and 
add in its place the date ``June 13''.


Sec.  90.1410  [Amended]

0
18. In Sec.  90.1410, paragraph (j), remove the date ``February 17'' 
and add in its place the date ``June 13''.

[FR Doc. E9-4256 Filed 2-25-09; 11:15 am]
BILLING CODE 6712-01-P


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