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###### Department of Commerce

###### National Telecommunications and Information Administration

          - 47 CFR Chapter III

# AGENCY:

National Telecommunications and Information Administration, U.S. Department of Commerce.

# ACTION:

Advanced notice of proposed rulemaking, notice of public meetings.

# SUMMARY:

                        Section 3009 of the Deficit Reduction Act (Act) requires the National Telecommunications and Information Administration (NTIA) to implement and administer a program through which each eligible low-power television broadcast station, Class A television station, television translator                               ( print page 59587)                            station, or television booster station may receive reimbursement for equipment to upgrade from analog to digital in eligible rural communities. NTIA will hold public meetings regarding the implementation of this Low-power Television Upgrade Program (Upgrade Program) [1]                                                  in Washington, DC and Las Vegas, Nevada.                    

# DATES:

The meeting will be held in Washington DC on October 24, 2008, at 10 a.m. Eastern Time, and in Las Vegas, Nevada on October 28, 2008, at 3:30 p.m. Mountain Time.

# ADDRESSES:

                        The Washington, DC meeting will be held at the U.S. Department of Commerce, 1401 Constitution Ave., NW. The Las Vegas, Nevada meeting will be held at the Golden Nugget Hotel and Casino, 129 Fremont Street. The locations of both meetings will also be announced on the NTIA Web site                         *www.ntia.doc.gov/​lptv.*

# FOR FURTHER INFORMATION:

For further information regarding the meetings, contact William Cooperman, Broadcast Division Director, at (202) 482-5802.

# SUPPLEMENTARY INFORMATION:

NTIA will host two public meetings related to its implementation of the Upgrade Program authorized under Section 3009 of the Deficit Reduction Act of 2005, as amended by the DTV Transition Assistance Act (Pub. L. 110-295). As amended, section 3009 of the Act contains, in its entirety, the following language:

## Sec. 3009. Low-Power Television and Translator Upgrade Program

(a) Establishment.—The Assistant Secretary shall make payments of not to exceed $65,000,000, in the aggregate, during fiscal years 2009 through 2012, from the Digital Television Transition and Public Safety Fund established under section 309(j)(8)(E) of the Communications Act of 1934 (47 U.S.C. 309(j)(8)(E)) to implement and administer a program through which each licensee of an eligible low-power television station may receive reimbursement for equipment to upgrade low-power television stations from analog to digital in eligible rural communities, as that term is defined in section 610(b)(2) of the Rural Electrification Act of 1937 (7 U.S.C. 950bb(b)(2)). Such reimbursements shall be issued to eligible stations on or after February 18, 2009. Priority reimbursements shall be given to eligible low-power television stations in which the license is held by a non-profit corporation and eligible low-power television stations that serve rural areas of fewer than 10,000 viewers.

(b) Eligible Stations.—For purposes of this section, the term “eligible low-power television station”  means a low-power television broadcast station, Class A television station, television translator station, or television booster station—

(1) that is itself broadcasting exclusively in analog format; and

(2) that has not converted from analog to digital operations prior to the date of enactment of the Digital Television Transition and Public Safety Act of 2005.

                    Section 610(b)(2) of the Rural Electrification Act of 1937 (7 U.S.C. 950bb(b)(2)), which is referenced in Section 3009(a), contains, in its entirety, the following language:                     *“the term ‘eligible rural community’ means any area of the United States that is not contained in an incorporated city or town with a population in excess of 20,000 inhabitants.”*

*Matters To Be Considered:*                     NTIA will discuss the following topics at the public meetings and will also provide an opportunity for public comment on these matters.                

                    1.                     *Station Eligibility:*                     How to define an eligible station. Issues that will be discussed include the following:                

(1) Whether a facility must hold an FCC license to be considered “broadcasting” or be permitted to hold an FCC construction permit or program test authority.

(2) Whether a facility meets the statutory requirement “broadcasting exclusively in analog format” if it has a construction permit, program test authority, or license for a digital companion channel or has flash cut to digital.

                    (3) Whether NTIA should establish a uniform deadline of eligibility (DOE) applicable to all applicants that NTIA will use when determining a station's eligibility regarding the two previous items. If so, should the DOE be (1) the date of enactment of the Act (                    *i.e.*, February 8, 2006), (2) the closing date for receipt of Upgrade Program applications for the applicable grant round, (3) the same date as the Expenditure Start Date discussed in the section titled Reimbursement, below, or (4) some other date.                

(4) Whether a governmental subsidiary can be considered a nonprofit corporation and therefore may qualify for “priority reimbursement.”

                    (5) Whether NTIA should adopt the same requirements regarding station eligibility for the Upgrade Program as NTIA adopted for the Digital-to-Analog Conversion Program (Conversion Program) and published in the October 29, 2007,                     **Federal Register**                     (72 FR 61109-61114). The Conversion Program was established under Section 3008 of the Act and contains language identical to Section 3009 establishing the Upgrade Program regarding the definition of an eligible station.[2] 

                    2.                     *Eligible Communities:*                     How NTIA could implement the statutory requirement that an eligible station must be “in eligible rural communities” (                    *i.e.*, “any area of the United States that is not contained in an incorporated city or town with a population in excess of 20,000 inhabitants.”) Issues to be discussed will include the most appropriate method of designating an eligible rural community, including the following:                

(1) Whether NTIA should determine an eligible rural community based on the population within the station's

(a) Community of license, or

                    (b) FCC 50/50 contour,[3]                                          or                 

                    (c) Grade A coverage,[4]                                          or                

                    (d) Grade B coverage,[5]                                          or                

(e) P coverage contour per Section 74.707 of the FCC Rules.

                    (2) Whether NTIA should determine an eligible rural community based on some other definition or formula (                    *e.g.*                    , the number, or percentage, of people served by the station living in rural areas outside Urban Areas or Urban Clusters of more than 20,000).[6] 

                    3.                     *Reimbursement:*                     The statute provides for reimbursement to an otherwise eligible station that has not converted from analog to digital operations prior to the                     *“date of enactment of the Digital Television Transition and Public Safety Act of 2005”*                     (                    *i.e.*, February 8, 2006). Issues that will be discussed include whether NTIA should accept all expenditures for eligible costs after February 8, 2006, for reimbursement, or, in order to provide fair and equitable notice to all potential applicants to the Upgrade Program,                           ( print page 59588)                        establish another date (“Expenditure Start Date”) after which applicant expenses would be eligible for reimbursement. If NTIA were to establish the Expenditure Start Date after February 8, 2006, should it be any of the following?                

(1) The date of this notice, or

(2) The date that NTIA announces the availability of funds to start the Upgrade Program, or

(3) The closing date for receipt of Upgrade Program applications for the applicable grant round, or

(4) The date that NTIA awards Upgrade Program funds to an applicant, or

(5) The Deadline of Eligibility date discussed earlier in the section on Eligibility.

                    4.                     *Priority Reimbursement:*                     How NTIA can implement the requirement that priority reimbursement shall be given to “                    *eligible low-power television stations in which the license is held by a non-profit corporation and eligible low-power television stations that serve rural areas of fewer than 10,000 viewers.*                    ” Issues to be discussed include whether NTIA should                

(1) Have an exclusive period during which only applicants who qualify for the priority can apply?

(2) Establish a priority reimbursement category within a larger grant round?

(3) Provide additional points, if the grants are competitive, to those applicants which meet the criteria for priority reimbursement?

(4) Require that stations meet both criteria (licensee held by a non-profit corporation and that serve rural areas of fewer than 10,000 viewers) in order to receive the priority?

(5) Use the same benchmark in determining the priority reimbursement population requirement (“rural areas of fewer than 10,000 viewers”) as used in determining population eligibility requirement (“any area of the United States that is not contained in an incorporated city or town with a population in excess of 20,000 inhabitants”)?

                    (6) Adopt the same requirements regarding priority reimbursement for the Upgrade Program as it adopted for the Conversion Program and published in the October 29, 2007,                     **Federal Register**                     (72 FR 61109-61114). The Conversion Program was established under Section 3008 of the Act and contains language identical to Section 3009 establishing the Upgrade Program regarding priority consideration (reimbursement).[7] 

                    5.                     *Eligible Equipment and Costs:*                     The Act states that reimbursement shall be given for                     *“equipment to upgrade low-power television stations from analog to digital,”*                     but does not provide further guidance regarding which equipment or costs should be supported by the program.                

Issues that will be discussed include what costs or equipment should be eligible for reimbursement under the program and whether there should be a formula or limit on the amount of funds awarded to a single station. If so, what should they be or how should they be determined?

                    6.                     *Application Selection:*                     Issues to be discussed include how applications should be selected for funding and whether NTIA should consider any of the following alternatives:                

(1) Uniform grants. If all 7,000 low-power facilities were eligible for the program, each facility could receive a grant of approximately $9,000; if only half the facilities were eligible for the program, the uniform grant would be approximately $18,000, etc.

(2) First-come, first served. NTIA could fund complete applications from otherwise eligible stations on a first-come, first-served basis, until all funds are awarded. A provision would have to be devised to provide for the facilities that meet the statutory requirements for priority reimbursement.

(3) Competitive grant cycle. If NTIA were to awards funds on a competitive basis, what selection factors and criteria should it establish to evaluate applications?

(4) Single or multiple grant cycles. How many grant cycles should NTIA plan to award the funds during the authorized period FY 09-FY 12?

                    7.                     *Administrative Procedures to Award Grants:*                     Issues to be discussed include the administrative matters related to the efficient implementation of the Upgrade Program, including preparation and submission of applications, payment of funds, and grantee post-award obligations.                

*Time and Date:*                     The Washington meeting will held on October 23, 2008 from 10 a.m. to 11:30 a.m., and the Las Vegas meeting on October 28, 2008, from 3:30 p.m. to 5 p.m. These times and the agenda topics are subject to change. Please refer to NTIA's Web site,                     *www.ntia.doc.gov/​lptv,*                     for the most up-to-date meeting agenda.                

*Place:*                     The meetings will be held in Washington, DC at the U.S. Department of Commerce and in Las Vegas, Nevada at the Golden Nugget Hotel and Casino.                

*Status:*                     Interested parties are invited to attend and to submit written comments. Interested parties are permitted to file comments electronically via e-mail to                     *lptv@ntia.doc.gov.*                     Comments provided via email may be submitted in one or more of the formats specified below. Comments may be filed with NTIA at any time before the meeting, and through November 14, 2008. If interested parties wish to submit comments for consideration by NTIA in advance of the meeting, they should be sent to the above listed address and received by close of business one week prior to the meeting to provide sufficient time for review. Comments received after such time may not be reviewed prior to the meeting. Alternatively, interested parties may also submit paper submissions.                

                    Paper comments should be sent to: LPTV Program, U.S. Department of Commerce, Room 4812, 1401 Constitution Ave., NW., Washington, DC 20230. Please note that all material sent via the U.S. Postal Service (including “Overnight” or “Express Mail”) is subject to delivery delays of up to two weeks due to mail security procedures at the Department of Commerce. All written comments received will be posted on the NTIA Web site at                     *www.ntia.doc.gov/​lptv.*

It would be helpful if paper submissions also include a CD or DVD in HTML, ASCII, Word or WordPerfect format (please specify version). CDs or DVDs should be labeled with the name and organizational affiliation of the filer, and the name of the word processing program used to create the document.

                    Because of space limitation, attendance at the meeting will be determined on a first-come, first-served basis. The meeting will be physically accessible to people with disabilities. Individuals requiring special services, such as sign language interpretation or other ancillary aids, are asked to indicate this to [name] at least two (2) days prior to the meeting. Members of the public will have an opportunity to ask questions at the meeting. Individuals who would like to submit questions in writing should e-mail their questions to Lynn Chadwick at                     *lchadwick@ntia.doc.gov.*

Dated: October 2, 2008.

Meredith Attwell Baker,

Acting Assistant Secretary for Communications and Information.

# Footnotes

1.                                                             *See*                             Title III of the Deficit Reduction Act of 2005, Public Law No. 109-171, 120 Stat. 4, 21 (Feb. 8, 2006).                        
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2.                             The October 29, 2007,                         **Federal Register**                         notice announcing the Conversion Program stated that an eligible station “must be broadcasting as authorized by the FCC, not merely possess a Construction Permit,” that “stations that broadcast in digital, either on the main channel or on a companion channel, will not be eligible,” and that “a governmental unit would not qualify for priority compensation unless the unit has a separate corporate charter and has received a determination of non-profit status.” The notice also required that an applicant to the Conversion Program “either hold an FCC broadcast license or have filed an application for a broadcast license prior to November 29, 2007.”                    
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3.                                                     *See*47 CFR 73.684, 73.699.                    
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4.                                                     *See*47 CFR 73.684.                    
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5.                                                     *See id.*
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6.                             Urban Areas and Urban Clusters are areas defined by the U.S. Census Bureau, see                         *http://www.census.gov/​geo/​www/​ua/​ua_​2k.html*.                    
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7.                             The October 29, 2007,                         **Federal Register**                         notice regarding the Conversion Program, stated that “in sum, an applicant requesting priority compensation must (i) be a non-profit corporation; or (ii) serve fewer than 10,000 people within the low-power station's 50/50 service contour.”                    
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 [FR Doc. E8-23841 Filed 10-8-08; 8:45 am]

BILLING CODE 3510-60-P