10686 Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 

1See DTV Delay Act, Pub. L. 111-4, 123 Stat. 112 

(Feb. 11, 2009). 

2The American Recovery and Reinvestment Act, 

Pub. L. 111-5, 123 Stat. 115 (Feb. 17, 2009). 

3See Section 3002 of Title III of the Deficit 

Reduction Act of 2005, Pub. L. No. 109-171, 120 

Stat. 4, 21 (Feb. 8, 2006) (the Act). Section 3002(a) 

of the Act previously amended Section 309(j)(14)(A) 

of the Communications Act of 1934 so that analog 

full-power television licenses will terminate on 

February 17, 2009. Section 3002(b) of the Act 

directed the FCC to terminate analog television 

licenses for full-power stations by February 18, 

2009. 

4 Digital Television Transition and Public Safety 

Act § 3005, 120 Stat. at 23, 24. 

5 47 C.F.R. Part 301. The regulations were 

subsequently amended to waive the ‘‘eligible 

household’’ application requirement for individuals 

living in nursing homes, intermediate care facilities 

and assisted living facilities, and to permit 

households that utilize post office boxes for 

residential mail delivery to apply for and receive 

coupons. 73 Fed. Reg. 54,325 (Sep. 19, 2008). 

6See DTV Delay Act at Subsection 2(a). 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–440; MB Docket No. 05–67; RM– 

11116, RM–11342] 

Radio Broadcasting Services; Clinton, 

Fishers, Indianapolis, and Lawrence, 

IN 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule, denial of petition for 

reconsideration. 

SUMMARY: This document denies a 

Petition for Reconsideration filed by 

Word Power, Inc., directed to the Report 

and Order in this proceeding, which 

had denied Word Power’s 

counterproposal and had granted a 

mutually exclusive rulemaking petition. 

See SUPPLEMENTARY INFORMATION, infra. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Rhodes, Media Bureau (202) 

418–2700. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Memorandum Opinion 

and Order in MB Docket No. 05–67, 

adopted February 25, 2009, and released 

February 27, 2009. The full text of this 

decision is available for inspection and 

copying during normal business hours 

in the FCC Reference Information Center 

at Portals II, CY–A257, 445 12th Street, 

SW., Washington, DC 20554. The 

complete text of this decision may also 

be purchased from the Commission’s 

copy contractor, Best Copy and Printing, 

Inc., 445 12th Street, SW., Room CY– 

B402, Washington, DC 20554, telephone 

1–800–378–3160 or http:// 

www.BCPIWEB.com. 

The Report and Order granted a 

rulemaking petition, inter alia, to 

substitute Channel 230B1 for Channel 

230A at Fishers, Indiana, to reallot 

Channel 230B1 to Lawrence, Indiana, 

and to modify the license for Station 

WRWM to specify Lawrence as the 

community of license. To accommodate 

this reallotment, Word Power’s Station 

WPFR–FM, Clinton, Indiana, was 

ordered to change its frequency from 

Channel 230A to Channel 229A. The 

Report and Order also denied Word 

Power’s counterproposal to upgrade its 

Station WPFR–FM from Channel 230A 

to Channel 230B1. See 72 FR 53687, 

September 20, 2007. 

The Memorandum Opinion and Order 

found that the Report and Order did not 

err by (1) not discussing the 

applicability of the Tuck factors 

regarding whether Lawrence is 

sufficiently independent of Indianapolis 

to warrant consideration as a first local 

service; and (2) not specifically 

requiring the reimbursement to Word 

Power for the costs of changing 

channels. The document reasoned that a 

Tuck analysis is not required in this 

situation where a station is moving from 

one community to another inside an 

urbanized area. Likewise, a 

reimbursement condition is not 

necessary given the repeated assertions 

by the initial rulemaking petitioners that 

they will reimburse Word Power for the 

reasonable expenses related to the 

Station WPFR–FM facility modification. 

Finally, the Memorandum Opinion and 

Order rejected Word Power’s argument 

that the staff had inadequately inquired 

into the possible premature construction 

of the upgraded WRWM facilities at 

Lawrence. 

The Commission will not send a copy 

of this Memorandum Opinion and 

Order to GAO pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A), because the Petition for 

Reconsideration was denied. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau. 

[FR Doc. E9–5399 Filed 3–11–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Telecommunications and 

Information Administration 

47 CFR Part 301 

[Docket Number: 090212171-9172-01] 

RIN 0660–AA19 

Amendments to the Digital-to-Analog 

Converter Box Program to Implement 

the DTV Delay Act 

AGENCY: National Telecommunications 

and Information Administration, U.S. 

Department of Commerce. 

ACTION: Final rule. 

SUMMARY: On February 11, 2009, 

President Obama signed into law the 

DTV Delay Act, which extended the 

deadline for the digital conversion and 

the coupon application period for the 

Digital-to-Analog Converter Box 

Program (Coupon Program) by four 

months.1 The DTV Delay Act also 

authorized the National 

Telecommunications and Information 

Administration (NTIA) to issue 

replacement coupons to households 

whose coupons have otherwise expired 

unredeemed. These changes to the 

Coupon Program were conditioned 

upon enactment of new budget 

authority for the Coupon Program, 

which was recently provided by the 

American Recovery and Reinvestment 

Act of 2009.2

DATES: This final rule becomes effective 

March 12, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Milton Brown, NTIA (202) 482–1816 or 

mbrown@ntia.doc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Digital Television Transition and 

Public Safety Act of 2005 (the Act), 

among other things, directed the Federal 

Communications Commission (FCC) to 

require full-power television stations to 

cease analog broadcasting and to 

broadcast solely digital transmissions 

after February 17, 2009.3 Recognizing 

that consumers may wish to continue 

receiving broadcast programming over 

the air using analog-only televisions not 

connected to cable or satellite service, 

section 3005 of the Act also authorized 

NTIA to establish and implement the 

Coupon Program.4 Accordingly, NTIA 

issued final regulations to implement 

the Coupon Program on March 15, 

2007.5

On February 11, 2009, President 

Obama signed into law the DTV Delay 

Act. The DTV Delay Act, among other 

things, extended the date by which the 

Federal Communications Commission 

must terminate all licenses for fullpower television stations in the analog 

television services from February 18, 

2009 until June 13, 2009.6 Specific to 

the Coupon Program, subsection 3(a) of 

the DTV Delay Act amended paragraph 

(1) of subsection 3005(c) of the Act to 


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Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 10687 

7The American Recovery and Reinvestment Act 

of 2009 (providing in pertinent part, ‘‘For an 

amount for ‘Digital-to-Analog Converter Box 

Program’, $650,000,000, for additional coupons and 

related activities under the program implemented 

under section 3005 of the Digital Television 

Transition and Public Safety Act of 2005 . . .’’). 

8The specific language of Section 3(b) of the DTV 

Delay Act provided that ‘‘[t]he Assistant Secretary 

may issue to a household, upon request by the 

household, one replacement coupon for each 

coupon that was issued to such household and that 

expired without being redeemed.’’ 

9See Press Release, Commerce’s NTIA 

Announces New Coupon Applicants Will be Placed 

on Waiting List Due to High Demand for TV 

Converter Box Coupons (Jan. 5, 2009) available at 

http://www.ntia.doc.gov/press/2009/ 

DTV_WaitList_090105.pdf. 

10See Rules to Implement and Administer a 

Coupon Program for Digital to Analog Converter 

Boxes, 72 Fed. Reg. 12,097, 12,098 (March 15, 

2007). 

11See also DTV Delay Act, § 4(c). The DTV Delay 

Act required the Federal Communications 

Commission and the NTIA to expeditiously 

implement the provisions and amendments made 

by the DTV Delay Act. Specifically, it provided that 

such actions should be taken within 30 days of 

enactment of the DTV Delay Act. Although the DTV 

Delay Act also provided that the amendments to the 

authority related to the Coupon Program ‘‘shall not 

take effect until the enactment of additional budget 

authority after the enactment of this Act,’’ it is 

nevertheless clear that Congress’ intent was rapid 

implementation of the changes to the Coupon 

Program upon subsequent enactment of the new 

budget authority for the program. See DTV Delay 

Act § 3(d). Courts have found that where Congress 

has given an agency an extremely short period of 

time to promulgate a rule, a determination that 

waiving notice and comment as impracticable is 

reasonable and not arbitrary. Philadelphia Citizens 

Continued 

extend the date by which households 

may apply for coupons for digital-toanalog converter boxes from March 31, 

2009 until July 31, 2009. 

Subsection 3(b) of the DTV Delay Act 

amended paragraph (1) of subsection 

3005(c) of the Act to add a new 

subparagraph (D) that authorizes the 

NTIA Assistant Secretary to issue one 

replacement coupon per requesting 

household for each coupon previously 

issued to such household that expired 

without being redeemed. Subsection 

3(c) of the DTV Delay Act amended 

paragraph (1) of subsection 3005(c) of 

the Act to clarify that the Assistant 

Secretary’s obligation to ensure the twocoupon per household maximum was 

based on the number of coupons the 

household redeems rather than the 

number it receives via the United States 

Postal Service. 

Subsection 3(d) of the bill provided 

that the amendments made by Section 3 

of the DTV Delay Act would not take 

effect until additional budget authority 

for the Coupon Program was 

subsequently enacted. On February 17, 

2009, President Obama signed into law 

the American Recovery and 

Reinvestment Act of 2009, which 

provided that subsequent budget 

authority.7

II. Discussion 

Because of the amendments to the 

Coupon Program necessitated by the 

DTV Delay Act, NTIA hereby revises 

and amends its regulations. 

Accordingly, 47 C.F.R. Part 301 is 

amended as discussed below. 

Application Deadline 

The DTV Delay Act revised Section 

3005(c)(1)(A) of the Digital Television 

Transition and Public Safety Act of 2005 

to change the last day that households 

can request coupons for digital-toanalog converter boxes from March 31, 

2009, to July 31, 2009. Accordingly, 

NTIA amends its regulations at 47 

C.F.R. § 301.3(c), to reflect this change 

and to permit households to apply for 

coupons until July 31, 2009. The change 

in date will not ensure that funds will 

be available to fill all coupon requests 

at that time. 

Reissuance of Coupons 

The DTV Delay Act authorized NTIA 

to issue replacement coupons to 

households if those households were 

previously issued coupons that had 

expired without being redeemed.8

Because the issue of replacement 

coupons has not previously been 

addressed in the Coupon Program 

regulations, NTIA now adds a new 

section to provide that a household may 

request one replacement coupon for 

each coupon that was issued to such 

household and that expired without 

being redeemed. NTIA also requires that 

a request for a replacement coupon 

otherwise be made in accordance with 

the Coupon Program regulations. Thus, 

the application process for replacement 

coupons remains the same as that for 

households requesting coupons for the 

first time. 

United States Postal Service 

The DTV Delay Act also amended 

Section 3005(c)(1)(A) of the Digital 

Television Transition and Public Safety 

Act of 2005 to strike the words 

‘‘receives, via the United States Postal 

Service,’’ and inserts the word 

‘‘redeems’’ to conform to the new 

authority for reissuance. Accordingly, 

NTIA amends 47 C.F.R. § 301.4(d) to 

add at the end thereof ‘‘or by other 

means as determined by the Agency.’’ 

This change has the effect of providing 

NTIA with additional flexibility with 

respect to the manner with which it 

distributes coupons to U.S. households. 

Moreover, because the regulations 

linked the coupon issuance date to the 

date that the coupon was placed with 

the United States Postal Service, NTIA 

must revise its regulations to reflect the 

change made by the DTV Delay Act. 

Accordingly, 47 C.F.R. § 301.4(e) is 

amended to add at the end of the second 

sentence of that provision ‘‘or the date 

upon which the Agency otherwise 

forwards the coupon to the requesting 

household.’’ The effect of this change is 

that the coupon issuance date, for 

purpose of the 90–day expiration, 

commences on the date that NTIA 

places the coupon with the United 

States Postal service or otherwise 

forwards it to a requesting household. 

Prioritizing Coupon Distribution 

NTIA has found it necessary in the 

past to place applicants from eligible 

households on a waiting list until funds 

from expired coupons become available 

to distribute more coupons.9 The 

additional funding provided by the 

American Recovery and Reinvestment 

Act of 2009 will enable NTIA to 

liquidate the current waiting list of 

approximately 4.2 million coupons in 

two to three weeks after the Coupon 

Program is able to access such funds. 

However, if the Coupon Program 

experiences a high demand, it may be 

necessary for NTIA to once again place 

applicants on a waiting list. Thus, NTIA 

reserves the right to prioritize the 

distribution of coupons to over-the-air 

only households in the event that a 

waiting list becomes necessary, or if any 

other circumstances arise in which 

NTIA deems such prioritization 

appropriate. This decision is based on 

NTIA’s goal of maximizing the benefits 

of the Coupon Program in the transition 

to digital television broadcasts.10

Accordingly, NTIA adds a new section 

to its regulations that permits NTIA to 

prioritize the distribution of coupons to 

over-the-air only households if NTIA 

deems it appropriate. 

Administrative Procedure Act 

As permitted by the good cause 

exception to the Administrative 

Procedures Act (APA), 5 U.S.C. 

§ 553(b)(B), NTIA finds that it is 

impracticable and contrary to the public 

interest to provide notice and a public 

procedure on this final rule. Under the 

APA, notice and comment is 

impracticable when the agency cannot 

both follow section 553 and execute its 

statutory duties. The limited duration of 

the statutory extension of the 

application period provided in the DTV 

Delay Act requires swift action on the 

part of NTIA to amend its rules and 

implement program changes prior to the 

new application period’s expiration.11


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10688 Federal Register / Vol. 74, No. 47 / Thursday, March 12, 2009 / Rules and Regulations 

in Action v. Schweiker, 669 F.2d 877 (3rd Cir. 

1982). 

To the extent that NTIA provided a 

public procedure on this final rule, it 

would not be able to execute the 

statutory duties required by the DTV 

Delay Act. The current regulations 

prohibit households from applying for 

coupons after March 31, 2009. A normal 

rulemaking process involving notice 

and comment to extend the application 

deadline to July 31, 2009, in 

conformance with the DTV Delay Act, 

could extend well beyond March 31, 

2009. Likewise, NTIA must amend its 

existing regulations to issue 

replacement coupons to households that 

previously received coupons that 

expired without being redeemed. To 

ensure that these households receive 

coupons prior to the end of analog 

transmission, regulations must be 

promulgated expeditiously. 

Moreover, for the reasons above, 

NTIA finds good cause to waive the 30– 

day delay in effectiveness required by 5 

U.S.C. § 553(d) because it is 

impracticable and contrary to the public 

interest. The limited duration of the 

statutory extension of the application 

period provided in the DTV Delay Act 

requires swift action on the part of NTIA 

to amend its rules and implement 

program changes prior to the new 

application period’s expiration. To the 

extent that NTIA provided a 30–day 

delay in effectiveness for this final rule, 

it would not be able to execute the 

statutory duties required by the DTV 

Delay Act. To ensure that these 

households receive coupons prior to the 

end of analog transmission, NTIA 

waives the 30–day delay in 

effectiveness. 

Executive Order 12866 

This regulation has been determined 

to be economically significant for 

purposes of Executive Order 12866; and 

therefore has been reviewed by the 

Office of Management and Budget 

(OMB). In accordance with Executive 

Order 12866, an Economic Analysis was 

completed, outlining the costs and 

benefits of implementing this rule 

change. The complete analysis is 

available from NTIA upon request. 

Congressional Review Act 

It has been determined that this final 

rule is major under 5 U.S.C. § 801 et seq. 

NTIA finds good cause under 5 U.S.C. 

§ 808(2) that prior notice and public 

comment are impracticable and contrary 

to the public interest. To the extent that 

NTIA provided a 60–day delay in 

effectiveness pursuant to the 

Congressional Review Act, it would not 

be able to execute the statutory duties 

required by the DTV Delay Act in a 

timely manner prior to the expiration of 

its extended authority. Accordingly, this 

final rule shall take effect upon 

publication in the Federal Register. 

Regulatory Flexibility Act 

Because NTIA finds good cause under 

5 U.S.C. 553 § (b)(B) to waive prior 

notice and opportunity, the Regulatory 

Flexibility Act does not apply and 

therefore does not necessitate the 

preparation of a regulatory flexibility 

analysis. 

Executive Order 13132 

This rule does not contain policies 

having federalism implications 

requiring preparation of a Federalism 

Summary Impact. 

Paperwork Reduction Act 

This document does not contain new 

collection-of-information requirements 

subject to the Paperwork Reduction Act 

(PRA). Households are subject to the 

same information collection 

requirements that were approved by 

OMB Control Numbers 0660–0024, 

0660–0026, and 0660–0027. 

List of Subjects in 47 CFR Part 301 

Antennas, Broadcasting, Cable 

television, Communications, 

Communications equipment, Electronic 

products, Telecommunications, 

Television. 

■ For the reasons stated in the preamble, 

the National Telecommunications and 

Information Administration amends 47 

CFR Part 301 as follows: 

PART 301—DIGITAL-TO-ANALOG 

CONVERTER BOX COUPON 

PROGRAM 

■ 1. The authority citation is revised to 

read as follows: 

Authority: Title III of the Deficit Reduction 

Act of 2005, Pub. L. No. 109–171, 120 Stat. 

4, 21 (Feb. 8, 2005) (47 U.S.C. § 309 note); 

DTV Delay Act, Pub. L. No. 111–4, 123 Stat. 

112 (Feb. 11, 2009); American Recovery and 

Reinvestment Act of 2009, Pub. L. No. 111– 

5, 123 Stat. 115 (Feb. 17, 2009). 

■ 2. Amend § 301.3 by revising 

paragraphs (c) and (e), and adding 

paragraphs (f) and (g), to read as follows: 

§ 301.3 Household eligibility and 

application process. 

* * * * * 

(c) Requests for coupons must be 

submitted to the Agency no later than 

July 31, 2009. 

* * * * * 

(e) A household may request one 

replacement coupon for each coupon 

that was issued to such household and 

that expired without being redeemed. A 

request for a replacement coupon must 

otherwise be made in accordance with 

this section. 

(f) If the Agency deems it appropriate, 

NTIA may prioritize the distribution of 

coupons to households that have 

certified that they do not receive cable, 

satellite or other pay television service. 

(g) If an applicant does not meet the 

above eligibility requirements, the 

request will be denied. 

■ 3. Amend § 301.4 by revising 

paragraphs (d) and (e) to read as follows: 

§ 301.4 Coupons. 

* * * * * 

(d) Coupons will be sent to Eligible 

Households via the United States Postal 

Service or by other means as determined 

by the Agency. 

(e) Coupons expire 90 days after the 

issuance date. Issuance date means the 

date upon which the coupon is placed 

with the United States Postal Service or 

the date upon which the Agency 

otherwise forwards the coupon to the 

requesting household. 

* * * * * 

Dated: March 6, 2009. 

Anna M. Gomez, 

Acting Assistant Secretary for 

Communications and Information. 

[FR Doc. E9–5361 Filed 3–11–09; 8:45 am] 

BILLING CODE 3510–60–S 


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