23650 Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 

1OMB 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). 

4See 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.’’). 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements. 

Authority: This action is issued under the 

authority of sections 2002(a), 3006, and 

7004(b) of the Solid Waste Disposal Act as 

amended 42 U.S.C. 6912(a), 6926, 6974(b). 

Dated: April 30, 2009. 

Lawrence E. Starfield, 

Acting Regional Administrator, Region 6. 

[FR Doc. E9–11747 Filed 5–19–09; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 § 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, Shan.Maher@fcc.gov 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, Cathy.Williams@fcc.gov, 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 FCC@BCPIWEB.com. 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 fcc504@fcc.gov 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

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 

Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 23651 

5See 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’’). 

6Amendment 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’’). 

7Channels 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). 

8See Digital Low Power Report and Order, 19 FCC 

Rcd at 19354, para. 71. 

9See 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. 

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. 

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 fullpower 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. 

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 fillin 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. 

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 lowpower 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 fullservice 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. 

23652 Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 

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. 

12We 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. 

13NPRM, 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. 

15NPRM, 23 FCC Rcd at 18535, para. 5, ft. note 

5 (citing DTS Report and Order, 23 FCC Rcd 16745, 

para. 28). 

16 DTS Report and Order, 23 FCC Rcd 16750, 

para. 33. 

17See 47 CFR 73.3540(e). 

18See 47 CFR 74.709. 

19See supra paras. Secondary Frequency Use 

Status, Other Translator Rules Apply, and Call 

Signs. 

20See 47 CFR 74.735. 

21See 47 CFR 74.736. 

22See 47 CFR 74.734. 

23See 47 CFR 74.763. 

24See 47 CFR 1.2100 et seq. & 73.5000 et seq. 

Eligibility 

We also adopt our tentative 

conclusion that eligibility for the 

replacement digital television translator 

service be limited to only those fullservice 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 fullpower analog television service areas, 

not their expansion. 

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. 

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 posttransition 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. 

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. 

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 fullservice 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. 

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

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 

Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 23653 

25See 47 CFR 73.5002(c). 

26See Digital Low Power Report and Order, 19 

FCC Rcd at 19396, para. 197. 

27 Id. 

28See 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). 

29See 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’’). 

30See 5 U.S.C. 604. 

period of time to resolve their mutual 

exclusivity through settlement or 

engineering solutions.25

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 fullservice station. 

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

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 fullservice 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-ofchannel 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-ofcore 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. 

23654 Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 

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. 

35See 13 CFR 121.201, NAICS Code 515120 

(adopted Oct. 2002). 

36NAICS 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. 

37Although 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). 

39Broadcast Stations Total as of December 31, 

2006. 

40See 13 CFR 121.201, NAICS Code 515120. 

41See News Release, ‘‘Broadcast Station Totals as 

of December 31, 2006’’ (dated Jan. 26, 2007); 

http://www.fcc.gov/mb/audio/totals/bt061231.html. 42U.S.C. 604(a)(5). 

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

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. 

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

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. 

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

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. 

Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 23655 

43See 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. 44See 5 U.S.C. 604(b). 

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 outof-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 fullservice 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 fullpower 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-ofchannel 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

List of Subjects in 47 CFR Part 74 

Television, Television broadcasting, 

Low power television. 

Marlene H. Dortch, 

Secretary, Federal Communications 

Commission. 

■ 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 

■ 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. 

§ 74.787 [Amended] 

■ 2. Section 74.787 is amended by 

adding paragraph (a)(5) to read as 

follows: 

§ 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 pretransition 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 

23656 Federal Register / Vol. 74, No. 96 / Wednesday, May 20, 2009 / Rules and Regulations 

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 § 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, firstserved basis. Mutually exclusive 

applications shall be resolved via the 

Commission’s part 1 and broadcast 

competitive bidding rules, § 1.2100 et 

seq. and § 73.5000 et seq. of this 

chapter. 

(iv) The following sections are 

applicable to replacement digital 

television translator stations: 

§ 73.1030 Notifications concerning 

interference to radio astronomy, research 

and receiving installations. 

§ 74.703 Interference. 

§ 74.709 Land mobile station protection. 

§ 74.734 Attended and unattended 

operation. 

§ 74.735 Power Limitations. 

§ 74. 751 Modification of transmission 

systems. 

§ 74.763 Time of Operation. 

§ 74.765 Posting of station and operator 

licenses. 

§ 74.769 Copies of rules. 

§ 74.780 Broadcast regulations applicable to 

translators, low power, and booster 

stations (except § 73.653—Operation of 

TV aural and visual transmitters and 

§ 73.1201—Station identification). 

§ 74.781 Station records. 

§ 74.784 Rebroadcasts. 

* * * * * 

[FR Doc. E9–11730 Filed 5–15–09; 4:15 pm] 

BILLING CODE 6712–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Transportation Security Administration 

49 CFR Part 1580 

[Docket No. TSA–2006–26514; Amendment 

Nos. 1520–7, 1580–2] 

RIN 1652–AA51 

Rail Transportation Security 

AGENCY: Transportation Security 

Administration (TSA), DHS. 

ACTION: Final rule; correcting 

amendments. 

SUMMARY: This action contains minor 

technical corrections to the Rail 

Transportation Security final rule, 

which was published on November 26, 

2008. That document incorrectly 

referenced certain paragraphs in various 

sections of 49 CFR part 1580 and 

included an incorrect telephone number 

for reporting significant security 

concerns to TSA. This document 

corrects the final regulations by revising 

these paragraph citations and providing 

the appropriate telephone number. 

DATES: This correction is effective on 

May 20, 2009. 

FOR FURTHER INFORMATION CONTACT: 

David H. Kasminoff, Office of Chief 

Counsel, TSA–2, Transportation 

Security Administration, 601 South 

12th Street, Arlington, VA 20598–6002; 

telephone (571) 227–3583; facsimile 

(571) 227–1378; e-mail 

david.kasminoff@dhs.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 26, 2008 (73 FR 72131), 

TSA issued a final rule to enhance the 

security of our Nation’s rail 

transportation system. This rule 

established security requirements for 

freight railroad carriers; intercity, 

commuter, and short-haul passenger 

train service providers; rail transit 

systems; and rail operations at certain, 

fixed-site facilities that ship or receive 

specified hazardous materials by rail. As 

published, the regulatory text in the 

final rule contains several incorrect 

references to other provisions in the 

rule. First, the rule as published, in 

stating that §§ 1580.100, 1580.101, and 

1580.105 apply to a freight railroad 

carrier hosting a passenger operation 

described in § 1580.1, incorrectly cites 

to nonexistent paragraph (d) in § 1580.1, 

instead of paragraph (a)(4). Second, 

§ 1580.103(g), which requires each 

person described in paragraph (a) of that 

section to provide a telephone number 

for TSA to use to request location and 

shipping information, incorrectly refers 

to information required in paragraph 

(a)(4) of § 1580.103 instead of paragraph 

(c). Third, § 1580.103(g)(2), in stating 

that a covered person may not provide 

a telephone number that requires a call 

back (such as an answering service, 

answering machine, or beeper device) to 

meet the requirements of § 1580.103, 

incorrectly refers to paragraph (f) of that 

section instead of paragraph (g). Fourth, 

§ 1580.107(a), in referencing the 

paragraph that contains an exception to 

the requirements imposed upon a rail 

hazardous materials shipper transferring 

to a rail car containing rail securitysensitive materials to a railroad carrier, 

incorrectly refers to paragraph (e) of 

§ 1580.107 instead of paragraph (g). This 

final rule correction replaces the 

incorrect citations with the correct ones. 

Finally, the telephone numbers 

provided in §§ 1580.105(b) and 

1580.203(b) of the final rule for 

reporting significant security concerns 

to DHS have been changed. The new 

telephone number at the TSA Freedom 

Center designated to receive reports of 

significant security concerns is 1–866– 

615–5150. This final rule correction 

inserts the correct telephone number in 

the rule text. 

List of Subjects in 49 CFR Part 1580 

Hazardous materials transportation, 

Mass transportation, Rail hazardous 

materials receivers, Rail hazardous 

materials shippers, Rail transit systems, 

Railroad carriers, Railroad safety, 

Railroads, Reporting and recordkeeping 

requirements, Security measures. 

II. Corrections to the Rule 

■ Accordingly, 49 CFR part 1580 is 

corrected by making the following 

correcting amendments: 

PART 1580—RAIL TRANSPORTATION 

SECURITY 

■ 1. The authority citation for part 1580 

continues to read as follows: 

Authority: 49 U.S.C. 114. 

■ 2. In § 1580.100, paragraph (a)(4) is 

correctly revised to read as follows: 

§ 1580.100 Applicability. 

(a) * * * 

(4) Each freight railroad carrier 

hosting a passenger operation described 

in § 1580.1(a)(4) of this part. 

* * * * * 

■ 3. In § 1580.101, paragraph (a)(4) is 

correctly revised to read as follows: 

§ 1580.101 Rail security coordinator. 

(a) * * *