[Federal Register: October 29, 2008 (Volume 73, Number 210)]
[Rules and Regulations]
[Page 64260-64263]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc08-19]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 76
[CS Docket No. 98-120; FCC 08-224]
Carriage of Digital Television Broadcast Signals
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission clarifies a number of
existing rules relating to cable carriage of digital signals. As
explained, the carriage elections that must be made by October 1, 2008,
will determine a station's carriage rights throughout the entire 2009-
2011 carriage election cycle. We also clarify the channel placement
options applicable to digital must-carry stations, based upon the First
Report and Order and the statute. Also, for those low-power stations
that have the right to demand carriage by cable operators, we clarify
that their statutory carriage rights extend to broadcasting in digital.
DATES: Effective October 29, 2008.
ADDRESSES: You may submit comments, identified by FCC 08-224, by any of
the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://
www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, please contact Lyle Elder, Lyle.Elder@fcc.gov, of the
Policy Division, Media Bureau, (202) 418-2120, or Eloise Gore,
Eloise.Gore@fcc.gov, of the Media Bureau, (202) 418-7200.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Declaratory Ruling in FCC 08-224, adopted
September 24, 2008, and released September 26, 2008. The full text of
this document is available for public inspection and copying during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-A257, Washington,
DC 20554. These documents will also be available via ECFS (http://
www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in
ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be
purchased from the Commission's copy contractor, 445 12th Street, SW.,
Room CY-B402, Washington, DC 20554. To request this document in
accessible formats (computer diskettes, large print, audio recording,
and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's
Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
Summary of the Final Rule
I. Introduction
1. Pursuant to section 614(b)(4)(B) of the Communications Act of
1934, as amended (the ``Act''), the Commission initiated this
proceeding in 1998 to address the responsibilities of cable television
operators with respect to carriage of digital broadcasters in light of
the significant changes to the broadcasting and cable television
industries resulting from the Nation's transition to digital
television. Now that Congress has established February 17, 2009, as the
date certain for the end of analog broadcasts by full-power television
licensees, and low-power and class A television licensees are beginning
their transition to digital broadcast, we must further clarify the
digital carriage responsibilities of cable operators.
2. Specifically, we clarify that the carriage elections that must
be made by October 1, 2008, will determine a station's carriage rights
throughout the entire 2009-2011 carriage election cycle. We also
clarify the channel placement options applicable to digital must-carry
stations, based upon the First Report and Order, 66 FR 16533, March 26,
2001, and the statute. Low-power broadcasters, while not required to
make their transition to digital by February 17, 2009, nevertheless are
doing so in increasing numbers, and will continue to do so of their own
volition. For those low-power stations that have the right to demand
carriage by cable operators, we clarify that their statutory carriage
rights extend to broadcasting in digital.
II. Background
3. Under the Act, cable systems are presumptively required to carry
all local television stations in all television markets they serve.
Commercial television stations may, however, choose to be carried
pursuant to voluntary retransmission consent agreements rather than by
mandatory carriage. Generally, every three years commercial television
stations must elect to either grant retransmission consent or pursue
their mandatory carriage rights. Noncommercial television stations may
only elect mandatory carriage, but are nonetheless free to negotiate
carriage with cable operators.
4. In this docket, the Commission has determined the broadcast
signal carriage responsibilities of cable television operators during
and after the transition is completed. The statutory provision
triggering this rulemaking is found in section 614(b)(4)(B) of the Act,
which states:
5. At such time as the Commission prescribes modifications of the
standards for television broadcast signals, the Commission shall
initiate a proceeding to establish any changes in the signal carriage
requirements of cable television systems necessary to ensure cable
carriage of such broadcast signals of local commercial television
stations which have been changed to conform with such modified
standards.
6. The Notice of Proposed Rulemaking (``1998 NPRM'') in this
proceeding sought to amend the cable television broadcast signal
carriage rules, embodied in must-carry and retransmission consent, to
accommodate the carriage of digital broadcast television signals.
7. The Commission's First Report and Order and Further Notice of
Proposed Rulemaking in this proceeding adopted rules for carriage of
digital broadcast signals pursuant to retransmission consent and
mandatory carriage when a local television station is broadcasting only
a digital signal. The Commission
[[Page 64261]]
decided that a commercial television station broadcasting both an
analog signal and a digital signal may choose must-carry or
retransmission consent for its analog signal and retransmission consent
for its digital signal. The Commission acknowledged that the Act does
not specifically require mandatory carriage for noncommercial digital
television signals, but concluded that Congress did not intend to
exclude such signals from mandatory carriage. As an interim measure
during the transition, a digital-only television station may demand
that one of its video programming streams be carried on the cable
system for delivery to subscribers in an analog format.
8. In the First Report and Order, the Commission also concluded
that the statutory term ``primary video'' required cable operators to
carry only a single digital programming stream of a local digital
television station as well as content related to that stream. The
Commission further found that section 614(b)(4)(B) of the Act neither
requires cable operators to carry nor prohibits them from carrying both
the broadcaster's analog and digital signals (i.e., ``dual carriage'')
during the transition period.
9. In February 2005, the Commission issued the Second Report and
Order and First Order on Reconsideration. Among other things, the
Second Report and Order declined to require cable operators to carry
any more than one programming stream of a digital television station
that multicasts. The Commission's actions in the Second Report and
Order were limited to questions of carriage of multiple signals or
streams, however. In September 2007, we adopted the Third Report and
Order and Third Further Notice of Proposed Rulemaking (``Viewability
Order'') in order to address two important remaining issues.
10. The Viewability Order ensures that all cable TV viewers,
including the 98 million analog-only cable TV viewers, retain the same
access to their local stations after the transition as they have today.
The rules will require cable operators to comply with the statutory
viewability requirement by choosing to either: (1) Carry digital
signals in analog format, or (2) for all-digital systems, carry the
signals only in digital format, provided that all subscribers have the
necessary equipment to view the broadcast content. This decision
rendered moot the outstanding questions about post-transition carriage
of broadcast signals on a ``basic tier'' under 47 U.S.C. 543(b)(7)
(raised in the First Report and Order). The requirement that signals
carried pursuant to mandatory carriage be made actually viewable to all
subscribers, regardless of their equipment or level of service, means
that a cable operator may provide those signals solely in digital so
long as all subscribers are capable of receiving and viewing digital
signals. If some subscribers can only view analog signals, however,
broadcast stations carried pursuant to mandatory carriage must also be
made viewable to them. The viewability requirements will be in force
from the date of the transition through February 2012, subject to
review by the Commission during the last year of this period. The
Commission also reaffirmed the existing material degradation standard
for cable carriage of digital broadcast signals, prohibiting
preferential treatment of cable programmers or retransmission consent
stations and reiterating the requirement that cable systems carry high
definition (``HD'') broadcast signals in HD format.
11. Now, the conclusion of the transition approaches. Therefore, in
this Order we explain the carriage election process for stations that
will make their final transition from analog signals to digital signals
for the February 17, 2009, transition deadline.
12. In addition, although low-power broadcasters are not required
to participate in the full-power digital transition, many have chosen
to begin their transition. We therefore also take this opportunity to
clarify the effect on carriage rights of a voluntary transition to
digital by a low-power broadcaster that is qualified for mandatory
carriage of its analog signal.
III. Discussion
13. As we approach the deadline for the full-power digital
transition, we clarify that the full-power carriage elections that must
be made by October 1, 2008, will determine a station's carriage rights
throughout the entire 2009-2011 carriage election cycle. Low-power
broadcasters, while not required to make their transition to digital by
February 17, 2009, nevertheless are doing so in increasing numbers, and
will continue to do so of their own volition. For those low-power
stations that have the right to demand carriage by cable operators, we
clarify that their statutory carriage rights apply to digital
broadcasting.
A. Full-Power Carriage Elections
1. Effect of October 1, 2008 Elections
14. The Cable Television Consumer Protection and Competition Act of
1992 established the requirement that ``television stations, within one
year after the date of enactment of [the Act] and every three years
thereafter, make an election between the right to grant retransmission
consent'' to cable operators or the right to mandatory carriage by
those cable operators. In compliance with this statutory mandate, the
Commission established a regular schedule for carriage elections. The
election in 1996 covered 1997-1999, the election in 1999 covered 2000-
2002, etc. In accordance with this schedule, the Act requires
broadcasters to elect, by October 1, 2008, whether they wish to engage
in retransmission consent negotiations with cable operators or demand
carriage on their systems for the three year period beginning January
1, 2009. Full-power broadcasters may choose to be carried on all of
those cable systems in the same DMA to which they can deliver a good
quality signal (must-carry), or they may choose to require those cable
systems to seek the broadcaster's consent before carrying the signal
(retransmission consent). The broadcaster must notify affected cable
systems if electing retransmission consent, or the station's status
will default to must-carry. 47 CFR 76.64. As noted above, full-power
broadcasters will cease all analog broadcasts by midnight on February
17, 2009.
15. We take this opportunity to clarify that the October 1, 2008,
election determines carriage of a station's signal for the entire 2009-
2011 carriage cycle. The carriage election rule for stations that
voluntarily return their analog spectrum allocation and begin operating
as digital-only prior to the 2009-2011 carriage cycle in which the DTV
transition concludes provides that ``stations that return their analog
spectrum allocation and broadcast in digital only shall make their
initial election any time between 60 days prior to commencing broadcast
and 30 days after * * * commencing broadcasting in digital only; such
initial election shall take effect 90 days after it is made.'' 47 CFR
76.64(f)(4). If a station elects must-carry on October 1, 2008, for the
2009-2011 carriage cycle, the cable operator(s) will provide carriage
of the station's analog signal beginning (or continuing) on January 1,
2009, and concluding no earlier than the actual termination of analog
service by that broadcaster. Once the station terminates analog service
and begins broadcasting in digital, the carrier shall commence carriage
of the station's digital signal without any gap in carriage. To
facilitate carriage and the final transition process, beginning January
1, 2009, cable operators must immediately commence carriage of the
digital signal of stations that cease analog broadcasting prior to the
[[Page 64262]]
February 17, 2009, statutory deadline; provided, however, that
broadcasters must notify the cable operator(s) 30 days before the date
on which they anticipate termination of their analog signal if it will
be earlier than February 17, 2009.
2. Channel Placement
16. We clarify that the channel placement options in sections
614(b)(6) and 615(g)(5) of the Act, as implemented in Sec. 76.57 of
the Commission's Rules, remain in effect after the digital transition.
Section 614(b)(6) of the Act generally provides that commercial
television stations carried pursuant to the mandatory carriage
provision are entitled to be carried on a cable system on the same
channel number on which the station broadcasts over-the-air. Under
section 615(g)(5) noncommercial television stations generally have the
same right. The Act also permits commercial and noncommercial
television stations to negotiate a mutually agreeable channel position
with the cable operator. Historically, channel positioning has been
part of the carriage election process, with must-carry stations
choosing from among the statutory options as part of the must-carry
election. 47 U.S.C. 534(b)(6), 535(g)(5). There are four channel
positioning options in the Act for commercial television stations. The
statutory options are ``the channel on which it was carried on July 19,
1985,'' ``the channel on which it was carried on January 1, 1992,''
``the channel number on which the local commercial television station
is broadcast over the air'', or any alternative channel by mutual
agreement. Noncommercial stations may not elect the channel number on
which they were carried on January 1, 1992, but otherwise have
identical options.
17. As noted above, one of those statutory options is carriage on
the broadcast channel number. In digital broadcasting, a broadcast
station's channel number is no longer identified by reference to its
over-the-air radio frequency. Instead, in compliance with the ATSC
standard, the station's ``major channel number'' is identified in its
program and system information protocol (``PSIP''). The Program and
System Information Protocol (``PSIP'') contains metadata about both the
program currently being aired and broadcast signal as a whole. One of
the most important elements in the PSIP is the Major Channel Number
(``MCN''), the channel ``location'' identified with a given station
regardless of its over-the-air broadcast frequency. ATSC receivers
(whether a TV set in a home or a receiver at a cable headend) can use
this data to determine the information that will be displayed to
viewers. Therefore, if the analog signal of a station was broadcast on
channel 12, its digital signal will appear on channel 12 when tuned by
an over-the-air viewer, even if the signal is being broadcast on a
frequency corresponding to, for instance, channel 37. See Program and
System Information Protocol for Terrestrial Broadcast and Cable, ATSC
Document A/65 (Dec. 23, 1997). This usually corresponds to the radio
frequency at which the station previously broadcast its analog signal.
Therefore, in the First Report and Order, the Commission required that
channel mapping information be passed through as part of the PSIP,
linking the digital channel number with the appropriate primary video
and program-related content. Thus, the cable operator can identify the
correct channel location by reference to the PSIP.
18. We clarify that any station carried pursuant to mandatory
carriage may demand carriage on its major channel number as broadcast
in the station's PSIP. We also clarify that although the First Report
and Order did not specifically address the significance of the
statutory provisions and rules with respect to the ``historic''
carriage options, these statutory options remain available to digital
must-carry broadcasters, who will make digital channel placement
elections pursuant to Sec. Sec. 76.57(a) or (b) just as they
previously have for analog channel placement elections. Sec. 76.57(c),
adopted in the First Report and Order, should be read as clarifying the
manner in which cable operators are to determine the channel number on
which a local commercial or qualified NCE station is ``broadcast over
the air'' when implementing such a station's election under Sec. Sec.
76.57(a) or (b). The statute also permits carriage on ``such other
channel number as is mutually agreed upon by the station and the cable
operator.'' This negotiated option, as reflected in our Rules, also
remains an option. We also note that Sec. 76.57(f) continues to apply
to determine where a station must be carried if it makes no affirmative
election.
B. Low-Power Carriage Rights
19. NCN Cable Advertising, licensee of WKFK-LP, Pascagoula,
Mississippi (``WKFK''), filed a petition for a declaratory ruling that
the FCC's cable must-carry rules apply to the digital signals of Class
A, LPTV and TV translator stations after those stations flash-cut to
digital operation and cease operating their analog signals. Currently,
our Rules provide for cable carriage of low-power stations (including
Class A) in specific and limited circumstances. WKFK argues that a
clarifying order is necessary to eliminate uncertainty about digital
carriage rights for low-power stations. WKFK is not seeking new or
additional carriage for low-power stations but rather a confirmation
that low-power stations will have the same carriage rights for their
digital signals as they currently have for their analog signals. In
addition, WKFK wants low-power stations to have the same downconversion
option for their digital-only signals as digital-only full-power
stations have for their digital signals.
1. Applicability of 76.55(d) to Low-Power Digital Broadcasters
20. Under Section 614(c) of the Act and Sec. 76.56(b)(3) of our
Rules, a cable operator is, in some circumstances, required to carry
the signal of one or two ``qualified low-power stations.'' Like full-
power commercial broadcast stations, low-power stations can earn must-
carry status with regard to a specific cable system by conforming to a
series of requirements (laid out in section 614(h)(2) of the Act). 47
U.S.C. 534(h)(2). The Commission's Rules implementing this section
state that a low-power station becomes qualified for mandatory carriage
if the station conforms to the Commission's LPTV rules, broadcasts for
at least the minimum number of hours required of commercial broadcast
stations by the Commission, and adheres to certain Commission
requirements regarding non-entertainment programming and employment.
However, an LPTV station will not be qualified unless the Commission
determines that the provision of programming by such station would
address local news and informational needs not being adequately served
by full-power television stations, because such full-power stations are
distant from the LPTV station's community of license. In addition, the
LPTV station must comply with the Commission's interference regulations
for LPTV stations; it must be within 35 miles of the cable system's
principal headend and deliver to the headend a good quality over-the-
air signal; its community of license and the franchise area of the
cable system must both have been located outside of the largest 160
Metropolitan Statistical Areas (``MSAs'') on June 30, 1990, and the
population of the LPTV station's community of license on that date must
not have exceeded 35,000; and there cannot be any full-power television
station licensed to any community
[[Page 64263]]
within the county or other political subdivision (of a State) served by
the cable system. 47 CFR 76.55(d). As noted above, the Commission has
previously made clear that Section 614(a) of the Act, which applies to
both commercial full-power and low-power stations, ``does not
distinguish between analog and digital signals and supports the
argument that digital signals are entitled to mandatory carriage.'' As
the Commission stated in 2001, when a broadcast station that is
otherwise entitled to carriage terminates its analog signals and
operates as a digital-only station, it does not lose its carriage
rights. We clarify here that this determination applies equally to
full- and low-power stations. The First Report and Order determined
that, for a ``limited time,'' digital-only full-power stations could
either demand carriage in digital or pay to downconvert their signal to
analog for carriage in analog. This interim viewability rule has been
in effect since 2001, giving full-power must-carry stations the option
to demand analog downconversion in order to make their signals as
widely viewable as possible.
21. Although the First Report and Order did not specifically
address the carriage of digital low-power stations, the Commission did
tentatively conclude that, as to commercial full-power stations, low-
power stations, and noncommercial educational stations it had ``no need
to deviate from the existing eligibility requirements for these three
categories of stations.'' The provisions establishing mandatory
carriage of low-power stations, at section 614(h)(2) of the Act, make
no distinction between digital and analog low-power stations. Indeed,
by their terms these provisions apply to ``any television broadcast
station'' conforming to the Part 74 Rules and the elements of section
614(h)(2). The Commission found in 2001 that simply the absence of a
distinction between analog and digital supported mandatory digital
carriage, and the stronger wording of section 614(h)(2) is
significantly more persuasive. But, because of the growing number of
low-power stations broadcasting in digital, and the potential for
uncertainty, we see a need to provide additional guidance in this
matter. We therefore clarify that qualified low-power digital-only
stations should be accorded the carriage rights they could have
demanded for their analog signal. The Communications Act at section
614(b)(7) requires that all stations carried pursuant to mandatory
carriage, including low-power stations, be made viewable to all
subscribers. Nonetheless, in the period remaining before the full-power
DTV transition, we will permit cable operators to carry low-power
digital-only stations in the same manner as full-power digital-only
stations--in either analog or digital, at the broadcaster's discretion.
Thus, if a qualified low-power station becomes digital-only, it may
elect carriage of its signal in digital, or may choose to pay to
downconvert the signal for carriage in analog. As of February 18, 2009,
all signals carried pursuant to mandatory carriage must again be made
viewable to all subscribers.
22. Although the language of the Act and our Rules does not
distinguish between analog and digital-only stations, we do find that
the Note to Sec. 76.55(d) is no longer fully accurate, as it addresses
only the signal strength of analog signals. Just as for commercial
full-power stations, the Note currently states that a good quality
signal level for analog is -45 dBm for UHF signals and -49 dBm for VHF
signals. The Cable Act, which established the -45/-49 dBm standard for
commercial full-power stations, is silent on the definition of ``good
quality signal'' for the purposes of carriage of low-power stations.
Acknowledging this, in a Memorandum Opinion and Order issued to
finalize several questions regarding implementation of the Cable Act,
the Commission, on its own motion, adopted the full-power commercial
signal quality standards for low-power stations (and noncommercial
stations). In the 1998 NPRM, the Commission asked whether ``new good
quality signal parameters'' were necessary for digital signals, and,
consistent with the rules established in 1994, made no distinction
among commercial, noncommercial, and low-power stations. In the First
Report and Order, the Commission established -61 dBm as the signal
level necessary to provide a ``good quality digital television signal
at a cable system's principal headend,'' again making no distinction
among commercial, noncommercial, and low-power stations.
23. In line with the Commission's consistent practice of aligning
the ``good quality signal'' standards for commercial, noncommercial,
and low-power stations, we find good cause to adopt, on a temporary
basis, a digital signal strength requirement for carriage of low-power
stations also using -61 dBm at the cable system headend. WKFK's
Petition makes clear that a delay in resolution of this question could
inhibit investment on the part of low-power station owners who seek to
transition their stations to digital. As discussed above, there is
ample history supporting an alignment of the full-power and low-power
standards, and thus no basis on which an industry participant might
have reasonably assumed that there would be a distinction between them
in digital. Furthermore, the Commission sought comment on what would
constitute a ``good quality signal'' for all digital signals in the
1998 NPRM, and there is no evidence in the record that would support
making any distinction among digital signals from different sources.
Thus, pending the adoption of a final amendment to the Note to Sec.
76.55(d), we will permit low-power mandatory-carriage analog stations
that begin broadcasting in digital-only to demand carriage of their
digital signal so long as they provide a signal strength of at least -
61 dBm to the cable system's headend.
2. Petition for Declaratory Ruling of WKFK
24. In light of this clarification, we grant WKFK's request for a
declaratory ruling. If WKFK begins broadcasting in digital-only, it
will have rights of carriage on the systems on which it may now demand
carriage, so long as it provides a signal strength of -61 dBm at each
system's headend.
IV. Ordering Clauses
25. It is ordered that, pursuant to the authority contained in
sections 1, 4, 303, 614, and 615 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154, 303, 534, and 535, this Declaratory Order
is adopted.
26. It is further ordered that the Petition for Declaratory Ruling
filed by NCN Cable Advertising, licensee of WKFK-LP, Pascagoula,
Mississippi, is granted to the extent described herein.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. E8-25798 Filed 10-28-08; 8:45 am]
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