[Federal Register Volume 74, Number 96 (Wednesday, May 20, 2009)]
[Rules and Regulations]
[Pages 23650-23656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11730]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MB Docket No. 08-253; FCC 09-36]


Replacement Digital Television Translator Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: With this Report and Order, and after seeking public comment, 
the Federal Communications Commission creates a new ``replacement'' 
digital television translator service to permit full-service television 
stations to continue to provide service to viewers within their analog 
coverage areas who have lost service as a result of those stations' 
digital transition. Replacement digital translators can be licensed 
solely on digital television channels 2 through 51 and with secondary 
frequency status. Unlike other television translator licenses, the 
replacement digital television translator license will be associated 
with the full-service station's main license and will have the same 
four letter call sign as its associated main station. As a result, a 
replacement digital television translator license may not be separately 
assigned or transferred and will be renewed or assigned along with the 
full-service station's main license. Almost all other rules associated 
with television translator stations are applied to replacement digital 
television translators.

DATES: This final rule is effective June 19, 2009, except for Sec.  
74.787(a)(5)(i) which contains information collection requirements that 
have not been approved by the Office of Management and Budget 
(``OMB''). The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, <a href="/cdn-cgi/l/email-protection#88dbe0e9e6a6c5e9e0edfac8eeebeba6efe7fe"><span class="__cf_email__" data-cfemail="b6e5ded7d898fbd7ded3c4f6d0d5d598d1d9c0">[email protected]</span></a> of the 
Media Bureau, Video Division, (202) 418-1600. For additional 
information concerning the information collection requirement contained 
in this Report and Order, contact the Office of Managing Director 
(``OMD''), Performance Evaluation & Records Management (``PERM''), 
Cathy Williams, <a href="/cdn-cgi/l/email-protection#2b684a5f4352057c424747424a46586b4d4848054c445d"><span class="__cf_email__" data-cfemail="f8bb998c9081d6af9194949199958bb89e9b9bd69f978e">[email protected]</span></a>, at 202-418-2918.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 09-36, adopted on May 8, 2008, and released on May 8, 
2009. 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. It may also be purchased from the Commission's 
duplicating contractor at Portals II , 445 12th Street, SW., Room CY-
B402, Washington, DC 20554; the contractor's Web site: http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-
5563, or e-mail <a href="/cdn-cgi/l/email-protection#2066636360626370697765620e434f4d"><span class="__cf_email__" data-cfemail="25636666656766756c7260670b464a48">[email protected]</span></a>. The document 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.) Additionally, 
the complete item is available on the Federal Communications Web site 
at http://www.fcc.gov. 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#dbbdb8b8eeebef9bbdb8b8f5bcb4ad"><span class="__cf_email__" data-cfemail="cdabaeaef8fdf98dabaeaee3aaa2bb">[email protected]</span></a> or call the Commission's Consumer and 
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Paperwork Reduction Act of 1995 Analysis

    This Report and Order adopts a revised information collection 
requirement subject to the Paperwork Reduction Act of 1995 (``PRA''), 
Public Law 104-13 (44 U.S.C. 3501 through 3520) pertaining to DTV 
transition related issues. Specifically, this Report and Order will 
allow full-service stations seeking to use the new replacement digital 
television translator service to submit specified attachments to FCC 
Form 346 when applying for a construction permit.\1\ OMB has consented 
to review the requirement under the emergency processing rules.\2\ We 
believe there is good cause for requesting emergency PRA approval from 
OMB due to the statutory digital television transition deadline of June 
12, 2009.\3\
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    \1\ OMB Control Number 3060-1086 will be revised to include the 
information collection requirement.
    \2\ 5 CFR 1320.13.
    \3\ Due to the short time frame provided for the Commission to 
act on the new replacement digital low power television translator 
service, we requested and received OMB approval to waive Federal 
Register notice for this emergency request under the PRA. See 5 CFR 
1320.13(d).
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    In addition, the Commission notes that pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might ``further reduce the information collection burden for 
small business concerns with fewer than 25 employees.''

Synopsis

Creation of New, Replacement Digital Television Translator Service

    Based upon the record, we adopt our proposal to create a new, 
``replacement'' digital television translator service to enable full-
service television stations to continue to provide service to viewers 
in loss areas inside their protected analog service contour created as 
a result of their transition to digital operations. Although we are 
sympathetic to the desires of the low power television community to 
provide new and expanded low power digital service, we continue to 
believe that we must place a priority on the facilitation of the full-
service television digital transition and the avoidance of the loss of 
service that may result from the transition.\4\ We also conclude that 
the licensing of replacement digital television translators must take 
precedence over the licensing of new digital translators and low power 
television stations. We do not believe

[[Page 23651]]

that this approach will unduly diminish new low power digital service 
opportunities because we will shortly announce a near-term date upon 
which we will begin accepting applications pursuant to the first-come, 
first-serve licensing scheme for new digital translators and low power 
television stations originally envisioned in our 2004 LPTV digital 
order.\5\ This action will create opportunities for new and expanded 
digital low power television service.
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    \4\ See generally Digital Television and Public Safety Act of 
2005 (``DTV Act''), which is Title III of the Deficit Reduction Act 
of 2005, Public Law 109-171, 120 Stat. 4 (2006), codified at 47 
U.S.C. 309(j)(14) and 337(e), as amended by DTV Delay Act, Public 
Law 111-4, 123 Stat. 112 (2009) (establishing June 12, 2009 as a new 
hard deadline for the end of analog transmissions by full-power 
stations); 47 U.S.C. 309 Note (directing 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 February 18, 2009; and (2) to 
require by February 18, 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).''); id. at 
336 Note (requiring the Commission to assign paired digital 
television channels ``to further promote the orderly transition to 
digital television''), 336(b) (expressing Congressional interest in 
the transition from analog to digital television and reading, in 
pertinent part, ``[i]n prescribing the regulations required by 
subsection (a), the Commission shall * * * (5) prescribe such other 
regulations as may be necessary for the protection of the public 
interest, convenience, and necessity.'').
    \5\ See Amendment of Parts 73 and 74 of the Commission's Rules 
to Establish Rules for Digital Low Power Television, Television 
Translator, and Television Booster Stations and to Amend Rules for 
Digital Class A Television Stations, Report and Order, 19 FCC Rcd 
19331, 19354, para. 71 (2004) (``Digital Low Power Report and 
Order'').
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    The rules we adopt today will limit the service areas of 
replacement translators to only those areas where an existing full-
service television station is able to demonstrate a loss in service as 
a result of its transition to digital and de minimis extension areas 
where necessary to provide service to loss areas. With service limited 
to only those areas that were previously served by a full-service 
station, and with licenses associated with the full-service station 
license so that they cannot be separately assigned or transferred, it 
is not likely that replacement translators will have a substantial 
impact on other uses of this spectrum. Furthermore, we seek to provide 
full-service stations with the flexibility to employ the technical 
means they find most feasible to replace service to potential loss 
areas. While we therefore will not adopt a requirement that stations 
demonstrate that all other technical solutions are infeasible before 
authorizing a replacement translator, we do encourage stations to 
consider other, potentially more spectrally efficient solutions such as 
maximization and DTS.
    As we stated in the NPRM, consistent with the Unlicensed Operation 
in the TV Bands decision,\6\ unlicensed devices must continue to fully 
protect replacement digital television translators in order to ensure 
that full-power post-transition digital television stations can deliver 
uninterrupted service to their entire pre-transition analog service 
area through the use of this service. Furthermore, we find that the 
importance of providing broadcasters flexibility to replace lost 
service with translator service outweighs concerns about impinging on 
the use of unlicensed white space devices in such a limited number of 
areas.
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    \6\ Amendment of Parts 73 and 74 of the Commission's Rules to 
Establish Rules for Replacement Digital Low Power Television 
Translator Stations, MB Docket No. 08-253, Notice of Proposed 
Rulemaking, 23 FCC Rcd 18534, para. 6 (2008) (``NPRM''). See 
Unlicensed Operation in the TV Broadcast Bands, ET Docket No. 04-
186, Second Report and Order and Memorandum Opinion and Order, FCC 
08-260, November 14, 2008 (``Unlicensed Operation in the TV 
Broadcast Bands'').
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Licensing of Replacement Digital Television Translators on Channels 2-
51

    We adopt our tentative conclusion that replacement digital 
television translators should be licensed only for digital operation. 
We also conclude that we should forego licensing replacement 
translators on channels 60-69 in order to prevent possible interference 
to public safety entities and to avoid the potential for immediate 
displacement of critical replacement translator facilities.
    Contrary to our tentative conclusion, we will not license 
replacement translators on television channels 52-59.\7\ Based upon the 
record developed in this proceeding, we conclude that the use of 
channels 52-59 for the new fill-in translator service would not be 
appropriate. Although we have previously allowed for the licensing of 
digital LPTV and TV translator facilities on channels 52-59 in 
conjunction with the digital low power television transition,\8\ we 
recognize the concerns of the 700 MHz wireless entities that oppose 
allowing new replacement translators to be licensed on channels 52-59. 
We also find that it is unlikely that television stations would seek a 
replacement translator on an out-of-core channel only to later be 
displaced by a primary wireless licensee. None of the applications we 
have received for replacement translators have proposed channels 52-59. 
Therefore, it does not appear that prohibiting the use of channels 52-
59 for new replacement translators will diminish the opportunities for 
full-power stations to replace lost analog service. Therefore, we shall 
limit replacement translators to only in-core channels 2-51.
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    \7\ Channels 60-69, 746-806 MHz, have been reallocated to Public 
Safety Entities upon completion of the digital television 
transition. Reallocation of Television Channels 60-69, the 746-806 
MHz Band, Report and Order, 12 FCC Rcd 22953 (1997).
    \8\ See Digital Low Power Report and Order, 19 FCC Rcd at 19354, 
para. 71.
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Processing Priority

    We adopt our tentative conclusion that applications for replacement 
digital television translators will have processing priority over 
applications filed by other low power television and TV translator 
stations, except displacement applications (with which they would have 
co-equal priority). Thus, replacement translator applications and low-
power displacement applications will be processed on a first-come, 
first-served basis, and the earlier filed application will prevail. By 
contrast, a replacement translator application will receive priority 
over non-displacement low-power and translator applications even if the 
latter are first-filed. Applications for replacement translator 
stations, however, must provide the requisite interference protection 
to authorized analog and digital low power television, and TV 
translator facilities. We further clarify that applications filed for 
full-service television and Class A television stations will continue 
to have processing priority over applications for replacement digital 
television translators.
    It is a Commission priority to expeditiously assist full-service 
television stations both to transition to digital broadcasting and to 
digitally replicate their pre-transition analog service areas by the 
DTV statutory deadline.\9\ We envision that replacement digital 
television translators will be a tool that full-service stations can 
use to successfully provide digital television service to their entire 
pre-transition analog service areas. We conclude that applications for 
replacement translators must be given processing priority to ensure 
that stations are quickly able to obtain the necessary authorization to 
begin constructing their replacement facility. Low power television and 
TV translator stations are not currently required to convert to digital 
broadcast by a congressionally mandated date and therefore do not 
require the expedited processing needed for replacement 
translators.\10\ We find that displaced low power television and 
television translator applicants, however, warrant co-equal priority 
because their viewers have lost television service that they are 
accustomed to receiving, and we seek to assist all television stations 
to maintain their existing analog service coverage through the digital 
transition.
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    \9\ See supra n.4.
    \10\ 47 U.S.C. 309(j)(14) and 337(e). The Commission previously 
determined that it has discretion under 47 U.S.C. 336(f)(4) to set 
the date by which analog operations of stations in the low power and 
translator service must cease. Digital Low Power Report and Order, 
19 FCC Rcd at 19336, para. 12. The Commission opted not to establish 
a fixed termination date for the low power digital television 
transition until it resolved the issues concerning the transition of 
full-power television stations. Id. at 19336 para. 19.

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[[Page 23652]]

Eligibility

    We also adopt our tentative conclusion that eligibility for the 
replacement digital television translator service be limited to only 
those full-service television stations \11\ that can demonstrate that a 
portion \12\ of their analog service areas will not be served by their 
full, post-transition digital facilities and that the proposed 
replacement digital television translator service will be used for that 
purpose. We adopt this requirement because only full-service television 
stations are required to transition to digital broadcast by June 12, 
2009, and the Commission's priority is to expeditiously assist full-
service stations to maintain their analog service areas through the 
digital transition. Furthermore, the goal of this new service is 
digital replication of full-power analog television service areas, not 
their expansion.
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    \11\ ``Full-service television stations,'' as used in the 
context of this Report and Order, is defined as any operating full-
service television station, including full-service stations that are 
operating under special temporary authority (``STA'') to maintain 
existing service.
    \12\ We did not intend in the NPRM to imply that a minimum or 
maximum amount of analog loss area is required for a full-service 
post-transition digital station to apply for the replacement digital 
television translator service. Rather, any full-service post-
transition digital station has the flexibility to serve any size 
analog loss area as long as the station is otherwise able to comply 
with the other technical requirements adopted in this proceeding.
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Service Area

    We adopt our tentative conclusion to limit the service area of the 
replacement translator to post-transition full-service stations' analog 
loss areas.\13\ All applicants for the replacement digital television 
translator service must submit an engineering study that depicts both 
the full-service station's analog service area, as well as its post-
transition digital facility which does not serve that station's entire 
analog service area and therefore demonstrates an analog loss area. The 
purpose of replacement digital television translators is to provide 
service to analog loss areas, not to expand full-service post-
transition stations' service areas. However, we recognize that it may 
be impossible for some post-transition full-service stations to site 
translators that replace analog loss areas without also slightly 
expanding their analog service areas. Therefore, as outlined below, we 
adopt our proposal and allow full-service stations seeking replacement 
digital television translators to propose a de minimis expansion of 
their analog service areas upon a showing that it is necessary \14\ to 
replace service in their post-transition analog loss areas.
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    \13\ NPRM, 23 FCC Rcd at 18536, para. 7.
    \14\ In this context, a showing of ``necessary'' requires that 
the post-transition full-service digital television station 
demonstrate, through an engineering exhibit, that it is not possible 
to site a replacement digital television translator without ``de 
minimis'' expansion of the station's analog service area.
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    In addition, we adopt our conclusion that ``analog service area'' 
be defined ``as the existing, authorized, protected service area 
actually served by the analog signal prior to analog termination for 
the [DTV] transition, consistent with our approach in the DTS 
proceeding.'' \15\ We adopt this definition because the purpose of this 
new service is to provide digital television service to post-transition 
analog loss areas. Replacement digital television translators are 
intended to serve digital full-service stations' analog loss areas. 
This new service is not intended for digital full-service stations to 
use in proposed digital service areas, where analog service did not 
formerly exist. Traditional, lower priority translators can be used to 
improve service in these areas.
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    \15\ NPRM, 23 FCC Rcd at 18535, para. 5, ft. note 5 (citing DTS 
Report and Order, 23 FCC Rcd 16745, para. 28).
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    We believe that some post-transition full-service stations should 
be allowed a de minimis expansion of their analog service areas, in 
order to properly engineer their replacement translators. We find that 
de minimis expansion is necessary and unavoidable due to the nature of 
certain analog loss areas and therefore should be permitted in such 
circumstances upon a suitable showing. The Commission will determine 
the de minimis threshold on a case-by-case basis, consistent with our 
approach in the DTS proceeding,\16\ that which is necessary to provide 
service to loss areas.
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    \16\ DTS Report and Order, 23 FCC Rcd 16750, para. 33.
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Licensing of Replacement Digital Television Translator Stations 
Associated With Main Station License

    We conclude that, unlike other television translator licenses, the 
license for replacement digital television translators will be 
associated with the full-service station's main license.\17\ Therefore, 
the replacement digital translator license may not be separately 
assigned or transferred and will be renewed or assigned along with the 
full-service station's main license. We believe that such a measure is 
necessary to ensure that the replacement translator service is limited 
to only those situations where a station seeks to restore service to a 
loss area and the license is used for that purpose. This measure will 
also prevent a replacement translator from being converted to an LPTV 
station, thus defeating its purpose.
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    \17\ See 47 CFR 73.3540(e).
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    Given our decision that replacement translator stations shall be 
associated with the full-service station's main license, we will not 
adopt our proposal in the NPRM that stations seeking a replacement 
digital television translator be required to submit a completed FCC 
Form 346 and pay the requisite $675.00 filing fee for a new station, 
but rather will treat applications for replacement translators like 
those for auxiliary facilities. Thus, applications for replacement 
translators will be filed on FCC Form 346, will be treated as a minor 
change application, and there will be no filing fee.

Secondary Frequency Use Status

    We adopt our tentative conclusion that replacement digital 
television translator stations be licensed with ``secondary'' frequency 
use status. These stations will not be permitted to cause interference 
to, and must accept interference from, full-service television 
stations, certain land mobile radio operations and other primary 
services. We clarify that replacement translator stations are subject 
to the interference protections to land mobile station operations in 
the 470-512 MHz band set forth in the rules.\18\
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    \18\ See 47 CFR 74.709.
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Other Translator Rules Apply

    In order to facilitate the application and licensing of replacement 
translators, except as specified herein,\19\ we will apply the rules 
associated with television translator stations to the replacement 
digital television translator service, including the rules concerning 
power limits,\20\ out-of-channel emission limits,\21\ unattended 
operation,\22\ and time of operation.\23\ Although mutually exclusive 
applications for replacement translators are unlikely, given the 
limited service area of these translators, if mutually exclusive 
applications are received, they will be resolved through the 
Commission's part 1 and part 73 competitive bidding rules and 
procedures.\24\ Mutually exclusive applicants for replacement 
translators stations will be permitted a limited

[[Page 23653]]

period of time to resolve their mutual exclusivity through settlement 
or engineering solutions.\25\
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    \19\ See supra paras. Secondary Frequency Use Status, Other 
Translator Rules Apply, and Call Signs.
    \20\ See 47 CFR 74.735.
    \21\ See 47 CFR 74.736.
    \22\ See 47 CFR 74.734.
    \23\ See 47 CFR 74.763.
    \24\ See 47 CFR 1.2100 et seq. & 73.5000 et seq.
    \25\ See 47 CFR 73.5002(c).
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Call Signs

    After consideration of the comments received, we will not adopt our 
proposal to assign the same type of call sign to replacement 
translators that is assigned to all other digital translator stations. 
In the 2004 Digital Low Power Report and Order, we determined that 
digital translators should receive a unique call sign such as ``K20AA-
D.''\26\ We made this determination to prevent confusion with other 
call sign combinations as well as possible technical problems.\27\ We 
believe, however, that in regards to replacement digital television 
translators, the associated costs to stations and technical problems 
outweigh any benefit that would be received by assigning replacement 
translators a separate call sign. To eliminate these burdens and avoid 
technical problems, we will not adopt our proposal and instead will 
assign to replacement translators the same four letter call sign as 
their associated full-service station.
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    \26\ See Digital Low Power Report and Order, 19 FCC Rcd at 
19396, para. 197.
    \27\ Id.
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Construction Period

    Although we expect full-service stations to quickly construct their 
replacement digital television translator facilities, we will not adopt 
our original proposal and require that replacement digital television 
translators be constructed within six months. We now believe that such 
a requirement would unfairly disadvantage certain licensees and would 
actually be counterproductive. Affording stations building replacement 
translators a full three-year period for completion of construction is 
necessary to ensure the successful implementation of this new service 
and will not undermine our desire that replacement translators be 
quickly constructed. We conclude that stations do not need a shortened 
construction period to motivate expedited construction of replacement 
digital translators. Stations that voluntarily seek authority to build 
a replacement digital translator would not likely do so absent an 
intent to construct. Moreover, forcing licensees to construct in a much 
abbreviated period could discourage them from applying in the first 
instance, a result clearly contrary to our purpose. We are also 
persuaded that the benefits of the replacement translator service 
established herein will be obtained even if some interruption of 
service occurs because a broadcaster is unable to complete construction 
and initiate service within the first six months.

Other Issues

    Certain engineering firms raised issues that were not addressed in 
the NPRM. We find that these issues are beyond the scope of this 
proceeding or are being addressed in other proceedings. Therefore, we 
shall not address them in this proceeding.

Final Regulatory Flexibility Act Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(``RFA'') \28\ an Initial Regulatory Flexibility Analysis (``IRFA'') 
was included in the Notice of Proposed Rulemaking in this 
proceeding.\29\ Written public comments were requested on the IRFA. 
This presents Final Regulatory Flexibility Analysis.\30\
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    \28\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has 
been amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (``SBREFA''), Public Law 104-121, Title II, 110 Stat. 
847 (1996).
    \29\ See Amendment of Parts 73 and 74 of the Commission's Rules 
to Establish Rules for Replacement Digital Low Power Television 
Translator Stations, MB Docket No. 08-253, Notice of Proposed 
Rulemaking, 23 FCC Rcd 18534 (2008) (``NPRM'').
    \30\ See 5 U.S.C. 604.
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Need for and Objectives of the Rules

    This Report and Order (``R&O'') establishes a new ``replacement'' 
digital television translator service that will allow full-service 
television stations to obtain new digital translators to maintain 
existing service.
    The R&O concludes that replacement translators will be licensed 
only for digital operation and only on channels 2-51 and not for out-
of-core channels 52-59 and 60-69.
    The R&O concludes that applications for replacement translators 
will be given licensing priority over all other low power television 
and TV translator applications except displacement applications (for 
which they will have co-equal priority). The R&O concludes that the 
eligibility for such service will be limited to only those full-service 
television stations that can demonstrate that a portion of their analog 
service area will not be served by their full, post-transition digital 
facilities and for translators to be used for that purpose. The R&O 
concludes that the service area of the replacement translator will be 
limited to only a demonstrated loss area but that a replacement 
translator should be permitted to expand slightly a full-service 
station's post-transition, digital service area. Finally, the R&O 
concludes that replacement digital television translator stations will 
be licensed with ``secondary'' frequency use status.
    The R&O concludes that, unlike other television translator 
licenses, the license for the replacement translator will be associated 
with the full power station's main license. Therefore, the replacement 
translator license may not be separately assigned or transferred and 
will be renewed or assigned along with the full-service station's main 
license. The R&O concludes that most of the other rules associated with 
television translator stations will apply to the new replacement 
translator service including those rules concerning the filing of 
applications, processing of applications, power limits, out-of-channel 
emission limits, unattended operation, and time of operation. The R&O 
concludes that replacement translators will not be assigned a separate 
call sign but rather will have the same call sign as their associated 
full-service station. Finally, the R&O concludes that the construction 
period for replacement translators will be the standard three-year 
period that is provided for other low power television digital 
facilities.

Summary of Significant Issues Raised by Public Comments in Response to 
the IRFA

    TCA, Inc. (``TCA'') argued that the IRFA ``shows that very little 
consideration was made towards the many wireless license holders that 
could be affected.'' TCA maintains that the NPRM ``calls for small 
wireless entities to incur additional costs by hiring counsel, 
monitoring Commission filings, and obtaining technical assistance to 
prove interference from a translator station.'' TCA concludes that this 
``additional and unnecessary expense is an unacceptable burden for a 
small company to bear.'' TCA is concerned with the Commission's 
proposal to require that replacement digital translators proposed for 
out-of-core channels 52-59 to be subject to the requirements previously 
adopted by the Commission for proposed facilities on these channels. 
Specifically, applicants for a digital translator on channels 52-59 
must demonstrate that no in-core channel is available and must notify 
wireless entities on the affected channel(s) of their filing. The 
Commission decided to not allow replacement translators on channels 52-
59, thus TCA's concerns are moot.

[[Page 23654]]

Description and Estimate of the Number of Small Entities to Which the 
Rules Will Apply

    The RFA directs the Commission to provide a description of and, 
where feasible, an estimate of the number of small entities that will 
be affected by the rule.\31\ The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small government jurisdiction.'' \32\ In 
addition, the term ``small business'' has the same meaning as the term 
``small business concern'' under the Small Business Act.\33\ A small 
business concern is one which: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the SBA.\34\
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    \31\ Id. at 604(a)(3).
    \32\ 5 U.S.C. 601(6).
    \33\ Id. at 601(3) (incorporating by reference the definition of 
``small business concern'' in 15 U.S.C. 632). Pursuant to 5 U.S.C. 
601(3), the statutory definition of a small business applies 
``unless an agency, after consultation with the Office of Advocacy 
of the Small Business Administration and after opportunity for 
public comment, establishes one or more definitions of such term 
which are appropriate to the activities of the agency and publishes 
such definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
    \34\ 15 U.S.C. 632. Application of the statutory criteria of 
dominance in its field of operation and independence are sometimes 
difficult to apply in the context of broadcast television. 
Accordingly, the Commission's statistical account of television 
stations may be over-inclusive.
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    Television Broadcasting. The SBA defines a television broadcasting 
station as a small business if such station has no more than $14 
million in annual receipts.\35\ Business concerns included in this 
industry are those ``primarily engaged in broadcasting images together 
with sound.'' \36\ According to Commission staff review of the BIA 
Publications, Inc. Master Access Television Analyzer Database (BIA) on 
March 30, 2007, about 986 of an estimated 1,374 commercial television 
stations \37\ (or approximately 72 percent) have revenues of $13.5 
million or less and thus qualify as small entities under the SBA 
definition. We note, however, that, in assessing whether a business 
concern qualifies as small under the above definition, business 
(control) affiliations \38\ must be included. Our estimate, therefore, 
likely overstates the number of small entities that might be affected 
by our action, because the revenue figure on which it is based does not 
include or aggregate revenues from affiliated companies. The Commission 
has estimated the number of licensed NCE television stations to be 
380.\39\ The Commission does not compile and otherwise does not have 
access to information on the revenue of NCE stations that would permit 
it to determine how many such stations would qualify as small entities.
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    \35\ See 13 CFR 121.201, NAICS Code 515120 (adopted Oct. 2002).
    \36\ NAICS Code 515120. This category description continues, 
``These establishments operate television broadcasting studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in 
turn broadcast the programs to the public on a predetermined 
schedule. Programming may originate in their own studios, from an 
affiliated network, or from external sources.'' Separate census 
categories pertain to businesses primarily engaged in producing 
programming. See Motion Picture and Video Production, NAICS Code 
512110; Motion Picture and Video Distribution, NAICS Code 512120; 
Teleproduction and Other Post-Production Services, NAICS Code 
512191; and Other Motion Picture and Video Industries, NAICS Code 
512199.
    \37\ Although we are using BIA's estimate for purposes of this 
revenue comparison, the Commission has estimated the number of 
licensed commercial television stations to be 1,374. See News 
Release, ``Broadcast Station Totals as of December 31, 2006'' (dated 
Jan. 26, 2007); see http://www.fcc.gov/mb/audio/totals/bt061231.html.
    \38\ ``[Business concerns] are affiliates of each other when one 
concern controls or has the power to control the other or a third 
party or parties controls or has to power to control both.'' 13 CFR 
121.103(a)(1).
    \39\ Broadcast Stations Total as of December 31, 2006.
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    Class A TV, LPTV, and TV translator stations. The same SBA 
definition that applies to television broadcast licensees would apply 
to these stations. The SBA defines a television broadcast station as a 
small business if such station has no more than $14 million in annual 
receipts.\40\
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    \40\ See 13 CFR 121.201, NAICS Code 515120.
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    Currently, there are approximately 567 licensed Class A stations, 
2,227 licensed LPTV stations, 4,518 licensed TV translators and 11 TV 
booster stations.\41\ Given the nature of these services, we will 
presume that all of these licensees qualify as small entities under the 
SBA definition. We note, however, that under the SBA's definition, 
revenue of affiliates that are not LPTV stations should be aggregated 
with the LPTV station revenues in determining whether a concern is 
small. Our estimate may thus overstate the number of small entities 
since the revenue figure on which it is based does not include or 
aggregate revenues from non-LPTV affiliated companies. We do not have 
data on revenues of TV translator or TV booster stations, but virtually 
all of these entities are also likely to have revenues of less than $13 
million and thus may be categorized as small, except to the extent that 
revenues of affiliated non-translator or booster entities should be 
considered.
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    \41\ See News Release, ``Broadcast Station Totals as of December 
31, 2006'' (dated Jan. 26, 2007); http://www.fcc.gov/mb/audio/totals/bt061231.html.
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    In addition, an element of the definition of ``small business'' is 
that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific television station is dominant in its 
field of operation. Accordingly, the estimate of small businesses to 
which rules may apply do not exclude any television station from the 
definition of a small business on this basis and are therefore over-
inclusive to that extent. Also as noted, an additional element of the 
definition of ``small business'' is that the entity must be 
independently owned and operated. We note that it is difficult at times 
to assess these criteria in the context of media entities and our 
estimates of small businesses to which they apply may be over-inclusive 
to this extent.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements

    The R&O adopts one new reporting requirement. Full-service stations 
seeking a new replacement digital television translator station must 
submit a showing with their FCC Form 346 that they have a loss area as 
a result of their transition to digital and that the proposed 
replacement translator will serve the loss area. The new reporting 
requirement will not differently affect small entities.

Steps Taken to Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    The RFA requires an agency to describe ``the steps the agency has 
taken to minimize the significant economic impact on small entities 
consistent with the stated objectives of applicable statutes, including 
a statement of the factual, policy, and legal reasons for selecting the 
alternative adopted in the final rule and why each one of the other 
significant alternatives to the rule considered by the agency which 
affect the impact on small entities was rejected.'' \42\
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    \42\ U.S.C. 604(a)(5).
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    The Commission is aware that some full service television stations 
operate with limited budgets. Accordingly, every effort was taken to 
propose rules that impose the least possible burden on all licensees, 
including smaller licensed entities. Existing rules, forms and 
procedures will be used to implement this new service thereby reducing 
the burden on small entities.

[[Page 23655]]

    The R&O concludes that replacement translators will be licensed 
only for digital operation and should be licensed on only channels 2-51 
and not for out-of-core channels 52-59 and 60-69. Alternatively, the 
Commission could have allowed stations to file for analog facilities 
but the digital transition for full power stations is closely 
approaching thus making the need for further analog service 
unnecessary. Further, the Commission could have allowed for replacement 
translators to be filed on channels 52-59 and 60-69, but it is likely 
that these stations would very quickly be displaced by wireless and 
public safety entities and small entities would waste their resources 
and time having to find a new channel for their proposed facility.
    The R&O further concludes that applications for replacement 
translators shall be given licensing priority over all other low power 
television and TV translator applications except displacement 
applications (for which they would have co-equal priority). The 
Commission could have proposed allowing no such priority, but this 
alternative was not considered because it would result in many more 
mutually exclusive filings and delay the implementation of this 
valuable service. The R&O also concludes that the Commission should 
limit the eligibility for such service to only those full-service 
television stations that can demonstrate that a portion of their analog 
service area will not be served by their full, post-transition digital 
facilities and for translators to be used for that purpose. 
Alternatively, the Commission could have allowed all interested parties 
to file for new translators, however such approach was not considered 
because it would also result in numerous mutually exclusive filings and 
would greatly delay implementation of this needed service. The R&O 
further concludes that the service area of the replacement translator 
should be limited to only a demonstrated loss area and seeks comment on 
whether a replacement translator should be permitted to expand slightly 
a full-service station's post-transition, digital service area. Once 
again, the Commission could have allowed stations to file for expansion 
of their existing service areas but such an alternative was not 
seriously considered because it could result in the use of valuable 
spectrum that the Commission seeks to preserve for other uses such as 
new digital low power service. Finally, the R&O concludes that 
replacement digital television translator stations will be licensed 
with ``secondary'' frequency use status. The Commission could have 
proposed that replacement translators be licensed on a primary 
frequency use basis, but this alternative was not proposed because it 
would result in numerous interference and licensing problems and could 
disrupt the full-power digital transition.
    The R&O concludes that, unlike other television translator 
licenses, the license for the replacement translator should be 
associated with the full power station's main license. Therefore, the 
replacement translator license may not be separately assigned or 
transferred and will be renewed or assigned along with the full-service 
station's main license. Alternatively, the Commission could have 
proposed that the replacement translator license be separate from the 
main station's license however this approach was not seriously 
considered because it could result in licenses being sold or modified 
to serve areas outside of the loss area, would undermine the purpose of 
this new service. The R&O also concludes that most of the other rules 
associated with television translator stations would apply to the new 
replacement translator service including those rules concerning the 
filing of applications, processing of applications, power limits, out-
of-channel emission limits, unattended operation, and time of 
operation. The alternative could have been to design all new rules for 
this service, but that alternative was not considered as it would 
adversely impact stations ability to quickly implement these new 
translators. The R&O concluded that replacement translators not be 
assigned a separate call sign, as the record demonstrated that 
assigning a separate call sign would be costly and cause technical 
problems. The R&O adopts a three-year construction period for 
replacement translators finding that the proposed shorter construction 
period in the NPRM would unfairly affect certain licensees and be 
counterproductive.

Federal Rules Which Duplicate, Overlap, or Conflict With the 
Commission's Proposals

    None.

Report to Congress

    The Commission will send a copy of the R&O, including the FRFA, in 
a report to be sent to Congress pursuant to the Congressional Review 
Act.\43\ In addition, the Commission will send a copy of the R&O, 
including FRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of this R&O and FRFA (or summaries thereof) will 
be published in the Federal Register.\44\
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    \43\ See 5 U.S.C. 801(a)(1)(A). The Congressional Review Act is 
contained in Title II, sec. 251, of the CWAAA, see Public Law 104-
121, Title II, sec. 251, 110 Stat. 868.
    \44\ See 5 U.S.C. 604(b).
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List of Subjects in 47 CFR Part 74

    Television, Television broadcasting, Low power television.

Marlene H. Dortch,
Secretary, Federal Communications Commission.

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 74 as follows:

PART 74--EXPERIMENTAL RADIO AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

0
1. The authority for part 74 continues to read as follows:

    Authority: 47 U.S.C. 154, 303, 307, 336(f), 336(h) and 554.


Sec.  74.787  [Amended]

0
2. Section 74.787 is amended by adding paragraph (a)(5) to read as 
follows:


Sec.  74.787  Digital licensing.

    (a) * * *
    (5) Application for replacement digital television translator. (i) 
An application for a replacement digital television translator may be 
filed at any time. A license for a replacement digital television 
translator will be issued only to a television broadcast station 
licensee that demonstrates in its application that a portion of the 
station's pre-transition analog service area will not be served by its 
full, post-transition digital facilities and that the proposed 
translator will be used to provide service to the area where service 
has been lost.'' Replacement digital television translators may operate 
on channels 2-51. Applications for replacement digital television 
translator shall be given processing priority over all other low power 
television and TV translator applications except displacement 
applications (with which they shall have co-equal priority) as set 
forth in 47 CFR 73.3572(a)(4)(ii). The service area of the replacement 
translator shall be limited to only a demonstrated loss area within the 
full-service station's pre-transition analog service area. ``Analog 
service area'' is defined as the existing, authorized, protected 
service area actually served by the analog signal prior to analog 
termination for the DTV transition. An applicant for a replacement 
digital television translator

[[Page 23656]]

may propose a de minimis expansion of its full-service pre-transition 
analog service area upon demonstrating that the expansion is necessary 
to replace its analog loss area. The license for the replacement 
digital television translator will be associated with the full power 
station's main license, will be assigned the same call sign, may not be 
separately assigned or transferred, and will be renewed with the full-
service station's main license.
    (ii) Each original construction permit for the construction of a 
replacement digital television translator station shall specify a 
period of three years from the date of issuance of the original 
construction permit within which construction shall be completed and 
application for license filed. The provisions of Sec.  74.788(c) of 
this chapter shall apply for stations seeking additional time to 
complete construction of their replacement digital television 
translator station.
    (iii) A public notice will specify the date upon which interested 
parties may begin to file applications for replacement digital 
television translators. Such applications shall be filed on FCC Form 
346, shall be treated as an application for minor change and shall be 
accepted on a first-come, first-served basis. Mutually exclusive 
applications shall be resolved via the Commission's part 1 and 
broadcast competitive bidding rules, Sec.  1.2100 et seq. and Sec.  
73.5000 et seq. of this chapter.
    (iv) The following sections are applicable to replacement digital 
television translator stations:


Sec.  73.1030 Notifications concerning interference to radio 
astronomy, research and receiving installations.
Sec.  74.703 Interference.
Sec.  74.709 Land mobile station protection.
Sec.  74.734 Attended and unattended operation.
Sec.  74.735 Power Limitations.
Sec.  74. 751 Modification of transmission systems.
Sec.  74.763 Time of Operation.
Sec.  74.765 Posting of station and operator licenses.
Sec.  74.769 Copies of rules.
Sec.  74.780 Broadcast regulations applicable to translators, low 
power, and booster stations (except Sec.  73.653--Operation of TV 
aural and visual transmitters and Sec.  73.1201--Station 
identification).
Sec.  74.781 Station records.
Sec.  74.784 Rebroadcasts.
* * * * *
[FR Doc. E9-11730 Filed 5-15-09; 4:15 pm]
BILLING CODE 6712-01-P


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