Federal Register / Vol. 74, No. 38 / Friday, February 27, 2009 / Proposed Rules 8889 

For additional information, see the 

direct final rule which is located in the 

Rules Section of this Federal Register. 

Dated: January 27, 2009. 

Ira W. Leighton, 

Acting Regional Administrator, EPA New 

England. 

[FR Doc. E9–4135 Filed 2–26–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 09–17; FCC 09–11] 

Implementation of the DTV Delay Act 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: This document seeks 

comment on issues relating to further 

implementation of the DTV Delay Act. 

The Commission proposes and seeks 

comment on a procedure for early 

termination of analog broadcasting by 

full-power television broadcasters, and 

asks whether stations should be allowed 

to terminate service at different times of 

day. It also asks whether the DTV 

Consumer Education Initiative rules 

should be revised, particularly to 

require stations to provide viewers with 

detailed information about service loss 

due to the move from analog to digital 

broadcasting. 

DATES: Comments for this proceeding 

are due on or before March 4, 2009. 

ADDRESSES: Federal Communications 

Commission, 445 12th Street, SW., 

Washington, DC 20554. You may submit 

comments, identified by MB Docket No. 

09–17, by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Federal Communications 

Commission’s Web Site: http:// 

www.fcc.gov/cgb/ecfs/. Follow the 

instructions for submitting comments. 

• People with Disabilities: Contact 

the FCC to request reasonable 

accommodations (accessible format 

documents, sign language interpreters, 

CART, etc.) by e-mail: FCC504@fcc.gov 

or phone: 202–418–0530 or TTY: 202– 

418–0432. 

For detailed instructions for submitting 

comments and additional information 

on the rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. In addition to filing 

comments with the Secretary, a copy of 

any comments on the Paperwork 

Reduction Act information collection 

requirements contained herein should 

be submitted to the Federal 

Communications Commission via e-mail 

to PRA@fcc.gov and to Nicholas A. 

Fraser, Office of Management and 

Budget, via e-mail to 

Nicholas_A._Fraser@omb.eop.gov or via 

fax at 202–395–5167. 

FOR FURTHER INFORMATION CONTACT: For 

more information, please contact Nazifa 

Sawez, Nazifa.Sawez@fcc.gov, at 202– 

418–7059 or Shaun Maher, 

Shaun.Maher@fcc.gov, at 202–418– 

2324, of the Video Division, Media 

Bureau; or Evan Baranoff, 

Evan.Baranoff@fcc.gov, at 202–418– 

7142; Lyle Elder, Lyle.Elder@fcc.gov, at 

202–418–2120; or Kim Matthews, 

Kim.Matthews@fcc.gov, at 202–418– 

2154, of the Policy Division, Media 

Bureau; or Eloise Gore, 

Eloise.Gore@fcc.gov, 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 

PRA@fcc.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Notice of 

Proposed Rulemaking (‘‘NPRM’’) in MB 

Docket No. 09–17, FCC 09–11, adopted 

and released February 20, 2009. (The 

companion Second Report and Order 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 fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Initial Paperwork Reduction Act of 

1995 Analysis 

This Notice of Proposed Rulemaking 

(NPRM) was analyzed with respect to 

the Paperwork Reduction Act of 1995, 

Public Law 104–13 (PRA) and contains 

modified information collection 

requirements. Specifically, this NPRM 

proposes to modify existing DTV 

transition-related information collection 

requirements to (1) expand viewer 

notification and other public interest 

obligations for early terminators of 

analog service; and (2) amend consumer 

education requirements to provide more 

detailed and accurate information to 

television viewers. The Commission is 

seeking OMB approval for these changes 

under OMB’s emergency processing 

rules. 

The Commission, as part of its 

continuing effort to reduce paperwork 

burdens, invites the general public and 

the Office of Management and Budget 

(OMB) to comment on the information 

collection requirements contained in 

this document, as required by the PRA. 

Public and agency comments are due 

March 4, 2009. Comments should 

address: (a) Whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the Commission, including 

whether the information shall have 

practical utility; (b) the accuracy of the 

Commission’s burden estimates; (c) 

ways to enhance the quality, utility, and 

clarity of the information collected; and 

(d) ways to minimize the burden of the 

collection of information on the 

respondents, including the use of 

automated collection techniques or 

other forms of information technology. 

In addition, pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4), we seek specific comment on 

how we might ‘‘further reduce the 

information collection burden for small 

business concerns with fewer than 25 

employees.’’ 

Summary of the Notice of Proposed 

Rulemaking: 

I. Notice of Proposed Rulemaking 

1. In this Notice of Proposed 

Rulemaking (NPRM), we seek comment 

on possible additional amendments to 

our rules that may be necessary or 

appropriate to carry out the purposes of 

the DTV Delay Act. In particular, we 

seek comment on revisions to the early 

analog termination procedures for 

stations that prefer to complete their 

transition before the new deadline of 

June 12, 2009. We also seek comment on 

whether to revise our consumer 

education rules, particularly by 

requiring broadcasters to provide 

service loss notices to viewers. 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. 


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We also seek comment on amendments 

to the ‘‘100-Day Countdown’’ that is 

required in Option Two 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 posttransition consumer education 

requirements. 

A. Analog Service Terminations Prior to 

June 12, 2009 

2. As discussed above, we find that 

revising the analog (and pre-transition 

digital) service termination procedures 

established in the Third DTV Periodic 

Report and Order, 72 FR 37310 (July 9, 

2007), is necessary to implement and 

carry out the purposes of the DTV Delay 

Act. 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. The Commission must make, 

adjust and prioritize arrangements for 

consumer outreach, call center staffing, 

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. We therefore propose to allow 

stations to proceed with their planned 

terminations, as described in their 

March 17 notification to the 

Commission, without the need for 

action by the Commission; provided, 

however, that if a major network (ABC/ 

CBS/FOX/NBC) affiliate intends to 

terminate service early, it must certify 

that: (1) At least 90% of its analog 

viewers will receive some analog service 

(full service or enhanced nightlight) 

until June 12, 2009; and (2) it will 

comply with the other public interest 

conditions described below on or before 

the day it terminates analog service and 

through June 12, 2009. Any major 

network affiliate that does not certify to 

both requirements must continue 

providing full analog service until June 

12, 2009 (except in the case of 

equipment failure, natural disaster, or 

other unforeseeable emergency). 

3. In the companion Order published 

elsewhere in this issue of the Federal 

Register, 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. We 

tentatively conclude that stations may 

terminate no earlier than April 16, 2009, 

to give all parties at least 30 days from 

the notification date to prepare and 

educate consumers. Our proposals here 

are influenced by our experience 

planning for the partial transition by 

one-third of the full power stations on 

or just before February 17, 2009. We 

have found that advance planning and 

station commitment to nightlight service 

and public interest outreach contribute 

to a smoother transition. 

4. For the same reason, we also 

tentatively conclude that stations will 

not be permitted to change their date for 

analog service termination without a 

strong justification and express 

Commission approval. We propose that, 

except in the case of equipment failure, 

natural disaster, or other unforeseeable 

emergency, stations would only be 

permitted to terminate analog service on 

the date they elect. In addition, we 

propose that the timing and advance 

notice for analog terminations to be 

adopted in this proceeding will 

supersede the provisions of Section 

73.1615. Stations would be able to rely 

on the flexibility of Section 73.1615 for 

brief terminations or reductions of 

service for technical reasons, as 

originally contemplated by that section. 

They would not, however, be permitted 

to rely on this provision to terminate 

analog service altogether, even in the 

days immediately prior to June 12, 2009. 

A station’s analog service termination 

would only be permissible on the date 

permitted for it by the Commission. We 

seek comment on our tentative 

conclusion and proposals. 

5. The Third DTV Periodic Report and 

Order required stations to notify their 

viewers about a planned analog service 

termination at least 30 days prior to the 

termination. These ‘‘viewer 

notifications’’ are required to describe 

how viewers can continue to receive 

service from the station, and continue to 

apply to any station terminating prior to 

June 12. They are not limited to major 

network affiliates. We do not propose to 

modify the 30-day on-air viewer 

notification requirement for early 

service terminations, although we do 

encourage early transitioning stations to 

start viewer notifications as soon as 

their plans are set. We seek comment on 

whether to require a longer viewer 

notification period for early 

transitioning stations, up to 60 days 

when possible, or if we should require 

that notifications commence uniformly 

on a date certain or, instead, as soon as 

the station’s intended termination date 

is finalized. Under no circumstances 

will a station be permitted to air 

notifications for fewer than 30 days. 

Each station’s on-air viewer 

notifications must include the specifics 

of the station’s firm termination date. 

We also seek comment on whether to 

require all stations that are terminating 

prior to June 12, 2009, to air a crawl for 

the seven days prior to their 

termination, as was required for stations 

terminating on February 17, 2009. 

6. The Third DTV Periodic Report and 

Order required stations to make a 

showing with their notification that the 

analog service termination ‘‘is necessary 

for purposes of the transition.’’ 

Consistent with this requirement, we 

propose to require stations to provide us 

with sufficient information to enable us 

to determine whether an early analog 

termination is necessary and in the 

public interest. As described in the 

companion Order published elsewhere 

in this issue of the Federal Register, no 

service termination notifications may be 

filed prior to the release of the new 

procedures and form to be adopted in 

response to this NPRM. We propose to 

allow stations that notify us by March 

17, 2009 to proceed with their planned 

terminations without specific individual 

approval, with limited exceptions. 

Under this proposal, we would review 

the termination notifications of major 

network affiliates. We propose that, in 

order to terminate analog service on 

their proposed early date, these stations 

will be required to certify both that 

there will be continuing analog service 

to a substantial portion of their analog 

audience until June 12, and that they 

will comply with the other public 

interest conditions proposed below. 

7. We propose that these stations must 

certify that at least 90 percent of the 

population within their Grade B analog 

contour will continue to receive analog 

service through June 12, 2009. Analog 

service, for this purpose, may be full 

service analog programming from a 

major network affiliate or enhanced 

analog nightlight service, because either 

of these will include local news, public 

affairs and emergency information, as 

well as DTV educational information. 

Any major network affiliate that is 

certifying in order to terminate analog 

service early must include with its filing 

a list of the stations that will continue 

to provide such analog service to at least 

90 percent of its analog viewers through 

June 12, 2009. Stations may cooperate to 

share responsibility for providing this 

analog service, but each station is 

individually responsible for its own 

analog viewers. 

8. We further propose that these 

stations must also certify that they will 

comply with the other public interest 

conditions detailed below. The ‘‘On-Air 


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Crawl Prior to Termination’’ 

requirement goes into effect, by its own 

terms, prior to the termination of the 

station’s analog service. The ‘‘DTV 

Educational Information’’ and ‘‘Market 

Outreach’’ obligations must be 

undertaken so that they are in place no 

later than the day on which the station 

terminates full service analog 

programming. The ‘‘Market Outreach’’ 

requirements contemplate collective 

effort, in a market where more than one 

broadcaster has certified compliance 

with these conditions, but we remind 

major network affiliates who terminate 

early of their joint and several 

responsibility for compliance with these 

requirements. Due to different analog 

termination dates, each broadcaster in 

an area may become subject to these 

conditions at different times. Therefore, 

we will hold a broadcaster responsible 

for compliance with these requirements 

only during the period after the 

termination of its analog service. We 

emphasize that broadcasters that 

continue providing analog service 

through June 12, 2009, are not 

responsible for compliance with any of 

the requirements associated with early 

termination, or for any shared efforts or 

expenses incurred by early termination 

stations as a result of these 

requirements. 

9. We propose to require certification 

to the following conditions, which 

generally track the conditions that we 

applied to the network affiliates that 

sought to terminate on February 17, 

2009: 

Enhanced Analog Nightlight 

• Ensure that at least one station that 

is currently providing analog service to 

an area within the DMA that will no 

longer receive analog service after the 

early termination date will continue 

broadcasting an analog signal providing, 

at a minimum, DTV transition and 

emergency information, as well as local 

news and public affairs programming 

(‘‘enhanced nightlight’’ service) for 60 

days following the early termination 

date, but not beyond June 12, 2009; for 

the purposes of these early terminations, 

therefore, the enhanced nightlight must 

begin as soon as there is no network 

affiliate serving the area, and be 

provided only through June 12, 2009. 

The local news, public affairs, or other 

programming may include commercial 

advertising. 

• Ensure that enhanced nightlight 

service concerning the DTV transition 

will be provided in Spanish and English 

and that both DTV transition and 

emergency information is accessible to 

the disability community (e.g., silent 

scrolls or slates do not provide 

information to the visually impaired, 

and therefore, broadcast notices must 

have an aural component, as well as 

being closed or open captioned). 

Other Public Interest Conditions 

DTV Educational Information 

• Ensure that on-air educational 

information (prior to the early 

termination date and thereafter as part 

of ‘‘enhanced nightlight’’ service) will 

include demonstrations of converter box 

installations, antenna setups, and other 

helpful information, including the 

location of walk-in centers in the market 

and the phone number for the local or 

toll-free telephone assistance provided 

to the market, discussed in this section. 

The Commission will continue to 

publicize the location of local walk-in 

centers via our Web site at https:// 

dtvsupport.fcc.gov/dtvtools. 

• Ensure that the DTV educational 

information, both on-air and through 

other means, will provide information 

describing areas that may be losing overthe-air signal coverage temporarily or 

permanently as the station transitions to 

digital-only broadcasting. Such 

information may include detailed maps, 

listings of affected communities, and 

instructions on how to assess what type 

of antenna may be necessary to retain or 

regain the station’s digital signal, as well 

as identifying specific locations that 

will not be able to receive a digital 

signal regardless of antenna. If 

educational information is prepared 

jointly, it must still specify the signal 

loss or change as relevant to each 

station. 

Market Outreach 

• Each station individually or 

collectively in the market commits to 

assisting viewers by providing local or 

toll-free telephone assistance, including 

engineering support. Such assistance 

may be provided jointly with other 

stations, organizations, and businesses 

in the area, but the certification must 

specify which station or stations are 

responsible. If no station is specified, 

the station making the certification is 

presumed responsible. 

• Each station alone or together with 

other stations or local businesses and 

organizations in the market will provide 

a location and staff for a consumer 

‘‘walk-in’’ center to assist consumers 

with applying for coupons and 

obtaining converter boxes, to 

demonstrate how to install converter 

boxes, to provide maps and lists of 

communities that may be affected by 

coverage issues, and to serve as a 

redistribution point for consumers who 

are willing to donate coupons, converter 

boxes, televisions and for those in need 

of these items. The certification must 

specify which station or stations are 

responsible for operating the walk-in 

center. If no station is specified, the 

station making the certification is 

presumed responsible. 

• Each station will consider and is 

encouraged to coordinate with and use 

community resources to provide 

consumer outreach and support, 

including in-home assistance. 

On-Air Crawl Prior to Termination 

• Each station, individually, will 

broadcast a crawl on their analog 

channel regarding the station’s 

termination of analog service, for the 

seven day period just prior to the date 

of early termination. For the first five 

days, the crawl must be aired for 5 

minutes of every hour of the station’s 

analog broadcast day, including during 

primetime. For the final two days, the 

crawl must be aired for 10 minutes of 

every hour of the station’s analog 

broadcast day, including during 

primetime. Each station will include in 

the crawl the FCC toll-free number 

(1–888–CALLFCC, 1–888–225–5322). 

Stations that cannot broadcast a crawl 

because it is technically unfeasible may 

provide substitute information on an 

hourly basis, which should be indicated 

in their certification. 

10. We recognize that major network 

affiliates subject to the certification 

requirement may not be able to certify 

that they and the other stations in their 

market will provide continuing analog 

service and compliance with the other 

necessary public interest obligations 

discussed above. In such cases, these 

licensees may make an alternative 

showing to the Commission that 

extraordinary, exigent circumstances, 

such as the unavoidable loss of their 

analog site or extreme economic 

hardship, require that they terminate 

their analog service on their proposed 

date. This showing must also include 

information regarding analog service 

that will be available for the station’s 

viewers. For example, a network 

affiliate might partner with another 

station serving the same area to ensure 

that its viewers may view local news, 

public affairs and emergency 

information. Some network affiliates 

transitioning on February 17 partnered 

with local PBS stations to provide local 

news programs, which the PBS station 

aired without commercials. The 

showing should not exceed five (5) 

pages, not including attachments. 

Stations attempting to make this 

showing bear a heavy burden of proof. 

Any station electing to make this 

showing must await a determination by 


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the Commission that its showing is 

sufficient before terminating analog 

service. The Commission will endeavor 

to resolve all of these cases prior to the 

stations’ proposed termination date. 

11. Under our proposed approach, we 

would also retain the right to prevent 

any station from going forward with 

early termination if we find it in the 

public interest to do so. As the 

Commission did in the case of stations 

seeking to terminate on February 17, we 

would expeditiously provide notice to 

stations via public notice if major 

network affiliates subject to the 

certification requirement decline to 

certify, or if any other station will not 

be permitted to transition on its 

proposed date. After broadcasters have 

had an opportunity to review the 

Commission’s decisions regarding the 

early termination of stations in their 

market and surrounding markets, they 

would have an opportunity to revoke 

their early termination decision and 

continue to broadcast analog service 

through June 12. Notice of this decision 

would have to be provided to the 

Commission and viewers, however, not 

later than 5 days prior to the station’s 

scheduled termination date. 

12. We believe that our proposals are 

consistent with the DTV Delay Act. 

They retain stations’ flexibility to 

choose a transition date prior to June 12 

that works for them, while also taking 

into consideration the needs and 

readiness of viewers in their markets. 

These proposals afford flexibility for 

stations consistent with consumer 

readiness and assistance. We require 

that stations decide and select a final 

transition date that will enable other 

interested parties to make their plans 

and preparations for the station’s 

transition. We expect that network 

affiliates and other stations serving the 

same viewing area will closely 

coordinate if they intend to terminate 

analog service before June 12, 2009. We 

seek comment specifically on the 

benefits and hazards of allowing all or 

virtually all stations in a market to 

transition prior to June 12. We are 

concerned that doing so would deprive 

unprepared consumers of access to vital 

local news, public affairs and 

emergency information. We also seek 

comment from affected industry groups 

and, particularly, from consumers on 

the relative benefits and harms of our 

proposal. 

13. We also seek comment on whether 

stations should be allowed to terminate 

analog service at any time on June 12, 

2009, or be required to continue 

broadcasting an analog signal until 

11:59:59 p.m. local time. As noted in the 

First Report and Order, 74 FR 7654 (Feb. 

19, 2009), implementing the DTV Delay 

Act, full power stations’ analog licenses 

expire at 11:59:59 p.m. on June 12, 

2009. As explained above, stations may 

continue analog broadcasting after 

11:59:59 p.m. only to the extent that 

they are participating in the Analog 

Nightlight program. However, the DTV 

Delay Act and the other relevant 

statutory provisions are silent as to the 

time of day on June 12, 2009 on which 

analog termination may occur. We do 

not believe it is necessary to treat analog 

termination on June 12 but prior to 

11:59:59 p.m. as an ‘‘early’’ termination 

and propose to leave it to stations to 

determine what time of day is most 

appropriate for their viewers. However, 

we propose to require that stations 

inform the Commission of the time of 

day they plan to terminate when they 

file the required notification on March 

17, 2009 and notify viewers through 

their required PSAs, crawls and other 

consumer education broadcasts if they 

are planning to end analog service 

before 11:59:59 p.m. 

B. Consumer Education Initiative Rules 

1. 100 Day Countdown 

14. We also seek comment on whether 

we should revise the ‘‘100 day 

countdown’’ requirement that applies to 

Option Two broadcasters. As originally 

conceived, and as revised in this 2nd 

Report and Order, each Option Two 

broadcaster must air a daily reminder of 

the number of days until the conclusion 

of the DTV transition, beginning 100 

days prior to the transition. A 

simultaneous nationwide countdown 

was appropriate when we expected that 

the vast majority of stations were 

planning to continue analog 

programming until the conclusion of the 

transition. Now that the transition has 

been delayed, however, many of the 

roughly 64% of stations that did not 

transition on or before February 17 may 

transition prior to or on June 12. Under 

the circumstances, we recognize that 

requiring an identical and simultaneous 

countdown to June 12 by all Option 

Two stations, including those that have 

already transitioned, may create more 

confusion than it would alleviate. We 

therefore seek comment on whether and 

how to revise this requirement. 

15. Should a station that will be 

transitioning before June 12 be required 

to count down to the date on which that 

station will terminate analog service? 

Should it provide a second countdown 

(simultaneous with the first?) that 

demonstrates the distinction between 

the station’s and the nation’s 

transitions? Should the requirement 

vary depending on whether a station’s 

entire market is transitioning? If so, how 

should we define ‘‘entire market’’ for 

the purposes of these rules? Once a 

station has transitioned early, should it 

be required to run a countdown of any 

kind? We note that the educational 

obligation placed on pre-transition 

television stations arose not merely from 

their position as television stations 

watched by analog-only viewers, but 

also from their important position as an 

authoritative source of information for 

the affected community. Even when one 

station has completed its move to 

digital, it can still provide valuable 

information and education to its viewers 

regarding the transition by other 

stations. 

2. 30 Minute Informational Videos 

16. Under the rules as revised in the 

companion Report and Order, Option 

Two and Three broadcasters must, on at 

least one day prior to June 12, 2009, air 

‘‘an informational program on the 

digital television transition.’’ Many, if 

not most, of the affected broadcasters 

complied with this requirement when 

the transition was to take place on 

February 17, and their informational 

programs necessarily reflected that date. 

For stations that have already 

transitioned, we find that such a 

program would have met the needs of 

their viewers. We seek comment, 

however, concerning whether such a 

pre-DTV Delay Act program should be 

considered sufficiently accurate and 

helpful to viewers of stations that have 

not yet transitioned, or if these stations 

should be required to air an up-to-date 

30 minute informational program before 

they cease analog programming. 

17. We also seek comment on what 

specific information would need to be 

included in such a program for it to 

serve the consumer educational 

purposes of the DTV Delay Act. 

Specifically, we seek comment on 

whether this up-to-date 30-minute 

informational video should explain: (1) 

The change in the transition date; (2) 

when that particular station is 

transitioning; (3) when other stations in 

the market are transitioning; and/or (4) 

any change in the coverage area of the 

station. 

3. Service Loss Notices 

18. The Commission’s experience 

with stations that have already 

terminated analog service, particularly 

in those areas where an entire market 

has transitioned, is that loss of a station 

due to a change in the digital coverage 

area creates the greatest consumer 

confusion and distress. This will be true 

for stations that transition at any time, 

up to and including June 12. Indeed, it 


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is true even before stations terminate 

their analog service as more and more 

viewers come to rely on digital service. 

Therefore, we seek comment on whether 

every station should be required to 

provide specific notice to analog 

viewers who are likely to lose over-theair service from the station due to 

changes in the stations’ coverage area. 

19. Broadcasters electing Option One 

are already required to provide 

information to their viewers, at least 

once per week, about any ‘‘[c]hanges in 

the geographic area or population 

served by the station during or after the 

transition.’’ They must do so via their 

regularly-aired PSAs. We propose to 

require broadcasters who have elected 

Options Two or Three to provide similar 

information to their viewers via PSAs, if 

2 percent or more of their analog 

viewers are predicted to lose service as 

a result of a change in their geographic 

coverage area (even if the station gains 

viewers elsewhere). The Commission 

has created a tentative list of stations 

anticipated to lose 2 percent or more of 

their analog viewers, which can be 

found on the FCC Web site at http:// 

www.fcc.gov/dtv/markets/report2.html. 

For purposes of the notice requirement, 

we would not include those stations 

where the losses are due solely to 

propagation effects such as a change 

from a VHF to UHF channel. Stations 

would be required to provide 

geographically specific information 

detailing areas that are covered by the 

Grade B analog contour but are not 

predicted to receive digital service. We 

would also require stations to provide 

educational information describing 

areas where analog signal strength is 

generally sufficient for viewers to rely 

on an indoor antenna but where it is 

likely that they will need an outdoor 

antenna to receive the digital signal. 

20. We seek comment on how the 

information should be presented in a 

manner that is both accurate and 

understandable to viewers. Should we 

permit stations to convey the geographic 

specificity in different ways? For 

example, would PSAs referencing 

particular communities, ZIP codes, or 

neighborhoods be sufficient, or should 

stations be required to show maps 

demonstrating their changed service 

area? Should service area information be 

provided to viewers more frequently 

than once per week? Alternatively, 

should broadcasters be required or 

permitted to provide information 

directly to populations expected to lose 

service, via, for instance: direct mail to 

addresses in the affected area? We note 

that radio broadcasts and local 

newspapers are another means of 

targeting viewers who are likely to 

experience loss. Stations may also point 

out to their viewers any areas in which 

their over-the-air service will improve 

or expand. There may well be viewers 

who currently rely on subscription 

service who may be able to rely, instead, 

on free over-the-air broadcasting and 

thus realize one of the benefits of the 

DTV transition, particularly where the 

station offers multicast channels. 

21. We also propose to require all 

stations to provide information to 

consumers about the need to 

periodically ‘‘rescan’’ when using overthe-air digital reception equipment, 

particularly through the end of the 

transition. We propose to further require 

stations that are changing their 

broadcast frequency from VHF to UHF 

(or vice versa) to include as part of their 

required consumer education activities 

notice about the need for additional or 

different equipment to avoid loss of 

service. The implementation of Major 

Channel Numbers as part of the Program 

System Information Protocol (PSIP) 

makes it more difficult for consumers to 

determine this information on their 

own, because a station’s ‘‘channel’’ no 

longer necessarily reflects its over the 

air frequency. 

4. Waiver of Post-Transition Consumer 

Education Requirements 

22. We propose to waive the posttransition consumer education 

requirements for stations that 

participate in the statutory nightlight 

program. The broadcasters in 

Wilmington, North Carolina, who 

volunteered to transition their market 

on September 8, 2008, ceased analog 

broadcasting on that date but 

voluntarily participated in a 

‘‘nightlight’’-type program for roughly 

one month afterward, displaying a 

‘‘slate’’ describing the transition and 

explaining how people could obtain 

additional information about it. In 

consideration of the fact that the entire 

market was transitioning at once, and 

upon the request of the broadcasters, the 

Commission found that the nightlight 

fulfilled the Wilmington stations’ 

consumer education obligations, and 

waived the remainder of those 

obligations for both the analog and 

digital signals. 

23. As discussed above, after the 

conclusion of the nationwide transition 

many stations will have the option to 

participate in the statutory nightlight 

program created by Congress and 

implemented in our Analog Nightlight 

Order. Should we, as we did in 

Wilmington, consider participation in 

this program, or support of another 

station’s participation, sufficient to meet 

a station’s consumer education 

obligations, to the extent that they apply 

after June 12, 2009? We seek comment 

on this proposal. 

C. Other Issues 

24. Finally, we welcome comment on 

any actions ‘‘necessary or appropriate to 

implement the provisions, and carry out 

the purposes’’ of the DTV Delay Act that 

have not been resolved by or addressed 

above. 

II. Procedural Matters 

A. Statutory Authority and Good Cause 

Findings 

25. 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, 

Congressional Review Act, Regulatory 

Flexibility Act, 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 

interested parties to contribute to our 

consideration of these issues to the 

extent possible in the limited time that 

Congress has provided. 

26. 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 


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8894 Federal Register / Vol. 74, No. 38 / Friday, February 27, 2009 / Proposed Rules 

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 

rule making 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. 

27. 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 rule making 

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 

rule making 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. 

28. 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. Initial Paperwork Reduction Act of 

1995 Analysis 

29. This NPRM was analyzed with 

respect to the Paperwork Reduction Act 

of 1995 (PRA) and contains modified 

information collection requirements. 

Specifically, this NPRM proposes to 

modify existing DTV transition-related 

information collection requirements to 

(1) expand viewer notification and other 

public interest obligations for early 

terminators of analog service; and (2) 

amend consumer education 

requirements to provide more detailed 

and accurate information to television 

viewers. The Commission is seeking 

OMB approval for these changes under 

OMB’s emergency processing rules. 

30. Written comments by the public 

on the new and/or modified information 

collections are due on or before 5 days 

after the date of publication in the 

Federal Register. In addition to filing 

comments with the Office of the 

Secretary, a copy of any comments on 

the proposed information collection 

requirements contained herein should 

be submitted to Cathy Williams, Federal 

Communications Commission, 445 12th 

St., SW., Room 1–C823, Washington, DC 

20554, or via the Internet to 

Cathy.Williams@fcc.gov. 

31. Further Information. For 

additional information concerning the 

PRA proposed information collection 

requirements contained in this NPRM, 

contact Cathy Williams at 202–418– 

2918, or via the Internet to 

Cathy.Williams@fcc.gov. 

C. Filing Requirements 

32. Ex Parte Rules. This proceeding 

will be treated as a ‘‘permit-butdisclose’’ proceeding subject to the 

‘‘permit-but-disclose’’ requirements 

under Section 1.1206(b) of the 

Commission’s rules. Ex parte 

presentations are permissible if 

disclosed in accordance with 

Commission rules, except during the 

Sunshine Agenda period when 

presentations, ex parte or otherwise, are 

generally prohibited. Persons making 

oral ex parte presentations are reminded 

that a memorandum summarizing a 

presentation must contain a summary of 

the substance of the presentation and 

not merely a listing of the subjects 

discussed. More than a one- or twosentence description of the views and 

arguments presented is generally 

required. Additional rules pertaining to 

oral and written presentations are set 

forth in Section 1.1206(b). 

33. Comments. Pursuant to Sections 

1.415 and 1.419 of the Commission’s 

rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on or before 

the date indicated on the first page of 

this document. Comments may be filed 

using the Commission’s Electronic 

Comment Filing System (‘‘ECFS’’) or by 

filing paper copies. See Electronic Filing 

of Documents in Rulemaking 

Proceedings, 63 FR 24121 (1998). To 

request materials in accessible formats 

for people with disabilities (braille, 

large print, electronic files, audio 

format), send an e-mail to 

fcc504@fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice), 202–418–0432 (TTY). 

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 


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Federal Register / Vol. 74, No. 38 / Friday, February 27, 2009 / Proposed Rules 8895 

Delay Act and accomplish its purposes 

within 30 days of the Act’s enactment; 

therefore, we find good cause to waive 

the requirement for Reply Comments 

established in our rules. 

34. Comments filed through ECFS can 

be sent as an electronic file via the 

Internet to http://www.fcc.gov/e-file/ 

ecfs.html. Generally, only one copy of 

an electronic submission must be filed. 

In completing the transmittal screen, 

commenters should include their full 

name, U.S. Postal mailing address, and 

the applicable docket number. Parties 

may also submit an electronic comment 

by Internet e-mail. To get filing 

instructions for e-mail comments, 

commenters should send an e-mail to 

ecfs@fcc.gov, and should include the 

following words in the body of the 

message: ‘‘get form <your e-mail 

address>.’’ A sample form and 

directions will be sent in reply. 

35. Parties who choose to file by 

paper must file an original and four 

copies of each filing. Filings can be sent 

by hand or messenger delivery, by 

commercial overnight courier, or by 

first-class or overnight U.S. Postal 

Service (although we continue to 

experience delays in receiving U.S. 

Postal Service mail). The Commission’s 

contractor, Natek, Inc., will receive 

hand-delivered or messenger-delivered 

paper filings for the Commission’s 

Secretary at 236 Massachusetts Avenue, 

NE., Suite 110, Washington, DC 20002. 

The filing hours at this location are 8 

a.m. to 7 p.m. All hand deliveries must 

be held together with rubber bands or 

fasteners. Any envelopes must be 

disposed of before entering the building. 

Commercial overnight mail (other than 

U.S. Postal Service Express Mail and 

Priority Mail) must be sent to 9300 East 

Hampton Drive, Capitol Heights, MD 

20743. U.S. Postal Service first-class 

mail, Express Mail, and Priority Mail, 

should be addressed to 445 12th Street, 

SW., Washington, DC 20554. All filings 

must be addressed to the Commission’s 

Secretary: Office of the Secretary, 

Federal Communications Commission. 

36. Availability of Documents. 

Comments, reply comments, and ex 

parte submissions will be available for 

public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street, SW., CY– 

A257, Washington, DC 20554. Persons 

with disabilities who need assistance in 

the FCC Reference Center may contact 

Bill Cline at (202) 418–0267 (voice), 

(202) 418–7365 (TTY), or 

bill.cline@fcc.gov. These documents also 

will be available from the Commission’s 

Electronic Comment Filing System. 

Documents are available electronically 

in ASCII, Word 97, and Adobe Acrobat. 

Copies of filings in this proceeding may 

be obtained from Best Copy and 

Printing, Inc., Portals II, 445 12th Street, 

SW., Room CY–B402, Washington, DC 

20554; they can also be reached by 

telephone, at (202) 488–5300 or (800) 

378–3160; by e-mail at 

fcc@bcpiweb.com; or via their Web site 

at http://www.bcpiweb.com. To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an e-mail to fcc504@fcc.gov or call 

the Consumer and Governmental Affairs 

Bureau at (202) 418–0530 (voice), (202) 

418–0432 (TTY). 

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary. 

[FR Doc. E9–4257 Filed 2–25–09; 11:15 am] 

BILLING CODE 6712–01–P 


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