[Federal Register Volume 74, Number 1 (Friday, January 2, 2009)]
[Proposed Rules]
[Pages 61-67]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-31227]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 74
[MB Docket No. 08-253; FCC 08-278]
Replacement Digital Television Translator Service
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission proposes and seeks comment on
rules that would create a new ``replacement'' digital television
translator service. The new replacement
[[Page 62]]
digital television translator service will permit full-service
television stations to continue to provide service to viewers within
their coverage area who have lost service as a result of those
stations' digital transition. We seek comment on how to implement this
new service and tentatively conclude that it should be subject to all
other rules for television translators with respect to secondary
frequency use, filing and processing of applications, construction, and
operation. Finally, we announce interim filing procedures to begin
acceptance of applications for replacement translators and the
authorization of temporary facilities.
DATES: Comments for this proceeding are due on or before January 12,
2009; reply comments are due on or before January 22, 2009.
ADDRESSES: You may submit comments, identified by MB Docket No. 08-253
and/or FCC 08-278, by any of the following methods:
[dec221] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[dec221] Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
[dec221] Mail: Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail (although we continue to experience delays in
receiving U.S. Postal Service mail.) All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
[dec221] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] 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: Shaun Maher, [email protected] of the
Media Bureau, Video Division, (202) 418-1600. For additional
information concerning the Paperwork Reduction Act information
collection requirements contained in this document, send an e-mail to
[email protected] or contact Cathy Williams at (202) 418-2918, or via e-mail
at [email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking, FCC 08-278, adopted on December 22, 2008, and
released on December 23, 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 [email protected]. 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.) 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 [email protected] or call the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using: (1) The Commission's Electronic
Comment Filing System (ECFS), (2) the Federal Government's eRulemaking
Portal, or (3) by filing paper copies. See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
[dec221] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers
should follow the instructions provided on the Web site for submitting
comments.
[dec221] For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
referenced in the caption. In completing the transmittal screen, filers
should include their full name, U.S. Postal Service mailing address,
and the applicable docket or rulemaking number. Parties may also submit
an electronic comment by Internet e-mail. To get filing instructions,
filers should send an e-mail to [email protected], and include the following
words in the body of the message, ``get form.'' A sample form and
directions will be sent in response.
[dec221] Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail (although we continue to experience delays in receiving U.S.
Postal Service mail). All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
[dec221] The Commission's contractor will receive hand-delivered or
messenger-delivered paper filings for the Commission's Secretary at 236
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be
held together with rubber bands or fasteners. Any envelopes must be
disposed of before entering the building.
[dec221] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
[dec221] U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (tty).
Initial Paperwork Reduction Act of 1995 Analysis
This Notice of Proposed Rulemaking was analyzed with respect to the
Paperwork Reduction Act of 1995 (``PRA'') \1\ and will revise an
existing information collection.\2\ The Commission will seek approval
under the PRA under OMB's emergency processing rules \3\ for this
information collection requirement in order to
[[Page 63]]
implement the rules and policies for a new replacement digital low
power television (LPTV) translator service that would permit full-
service television stations to continue to provide service to viewers
within their coverage area who have lost service as a result of those
stations' digital transition. We believe there is good cause for
requesting emergency PRA approval from OMB due to the statutory digital
television transition deadline of February 17, 2009.\4\
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\1\ The Paperwork Reduction Act of 1995 (``PRA''), Public Law
104-13, 109 Stat 163 (1995) (codified in Chapter 25 of Title 44
U.S.C.).
\2\ The existing information collection that will be revised to
add the new proposed information collection requirement is OMB
control number 3060-1086. The new proposed information collection
requirement is contained in 47 CFR 74.787(a)(i)(5).
\3\ See 5 CFR 1320.13.
\4\ 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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Synopsis
Creation of New Replacement Digital Television Translator Service
We tentatively conclude that replacement translators should be
licensed only for digital operation and should be licensed only on
channels 2-59 and not for out-of-core channels 60-69. In order to
prevent possible interference to public safety entities, and avoid the
potential for displacement of replacement translator facilities, we
believe that replacement translators should not be licensed on channels
60-69. We tentatively conclude that stations seeking a replacement
translator on channels 52-59 be required to certify in their
applications the unavailability of any suitable in-core channel for
this purpose. We propose defining ``suitable in-core channel'' as one
that would enable the station to produce a digital service area
comparable to its analog service area. This is similar to the
requirement we adopted for stations proposing a digital companion
channel on channels 52-59.\5\ We further propose requiring stations
seeking replacement translators on channels 52-59 to provide the
notifications to wireless licensees that we adopted for low power
television and TV translator stations seeking to flash cut or a digital
companion channel on channels 52-59.\6\ We seek comment on these
proposals.
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\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, 19 FCC Rcd 19331, 71 (2004).
\6\ Id. Low power television and TV translator station digital
flash cut and digital companion channel applicants on channels 52-59
are required to notify all potentially affected 700 MHz commercial
wireless licensees of the spectrum comprising the proposed TV
channel and the spectrum in the first adjacent channels thereto.
They are also required to provide notification to co-channel and
first adjacent channel licensees whose geographic service area
boundaries lie within 75 miles and 50 miles, respectively, of the
proposed digital LPTV or TV translator station location. A station
seeking an on-channel digital conversion must provide such written
notification at least 30 days in advance of filing its minor change
application. An applicant for a digital companion channel must
provide the required notifications within 30 days of submitting its
``long-form'' application. In both cases, applicants must certify in
their applications that the notification requirements have been met.
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We further tentatively conclude that applications for replacement
translators should 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). Therefore,
a replacement translator application, when filed, would have processing
priority over other applications for new stations, major changes and
minor changes. Furthermore, we tentatively conclude that we 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 \7\ will not be served by their full, post-transition
digital facilities and for translators to be used for that purpose. We
seek comment on these tentative conclusions.
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\7\ We define ``analog service area'' as the authorized service
area actually served by the analog signal prior to analog
termination for the transition, consistent with our approach in the
DTS proceeding. See DTS Report and Order at 28.
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In Unlicensed Operation in the TV Broadcast Bands, we adopted rules
to allow unlicensed radio transmitters to operate in the broadcast
television spectrum at locations where that spectrum is not being used
by licensed services (this unused TV spectrum is often termed ``white
spaces'').\8\ Unlicensed devices must fully protect the licensed
services, such as television translators, that operate in the TV bands.
We seek to comment on the effect, if any, of this new translator
service on the prospects for future white spaces use of the spectrum.
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\8\ 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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We further tentatively conclude that the service area of the
replacement translator should be limited to only a demonstrated loss
area and seek comment on whether a replacement translator should be
permitted to expand nominally a full-service station's post-transition,
digital service area in order to fully cover the loss area. We
recognize that it may be impossible for some full-service stations to
site a translator that replaces a loss area without also slightly
expanding the station's digital service area. Although we seek to limit
these new translators to replacing service in a loss area, and not to
expanding service, we tentatively conclude that we should allow de
minimis expansion of service and seek comment on how to define the term
``de minimis'' in this context.
We tentatively conclude that replacement digital television
translator stations should be licensed with ``secondary'' frequency use
status. These stations would 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.\9\
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\9\ See, e.g., 47 CFR 74.703, 74.709, 90.303.
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Licensing of Replacement Digital Television Translator Stations
We tentatively conclude that, unlike other television translator
licenses, the license for the replacement translator will be associated
with the full power station's main license.\10\ Therefore, the
replacement translator license could not be separately assigned or
transferred and would 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 is used for that purpose.
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\10\ See 47 CFR 73.3540(e).
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We tentatively conclude that the other rules associated with
television translator stations would apply to the new replacement
translator service, including those rules concerning the filing of
applications,\11\ payment of filing fees,\12\ processing of
applications,\13\ power limits,\14\ out-of-channel emission limits,\15\
call signs,\16\ unattended operation,\17\ and time of operation.\18\ We
tentatively conclude that stations seeking a replacement digital
television translator would submit a completed FCC Form 346 and pay the
requisite $675.00 filing fee for a new station. The Commission would
process such applications, and those found acceptable would be placed
on a ``proposed grant'' public notice subject to petitions to deny. New
stations would receive a call sign assigned to digital translator
stations (e.g., K20AA-D). Although we expect full-service stations
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to quickly construct their replacement translator facilities, we seek
comment on whether to limit the construction period for replacement
translators to six months. Although TV translators are ordinarily
afforded a three-year period for completion of construction,\19\ we
believe that expedited construction of replacement translators is vital
to the continued provision of television service following the digital
transition and that a shorter construction period is warranted.
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\11\ See 47 CFR 73.3572(a)(2).
\12\ See 47 CFR 1.1102.
\13\ See 47 CFR 73.3572(a). Cite rule on processing of
translator applications.
\14\ See 47 CFR 74.735.
\15\ See 47 CFR 74.736.
\16\ See 47 CFR 74.791.
\17\ See 47 CFR 74.734.
\18\ See 47 CFR 74.763.
\19\ See 47 CFR 73.3598.
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Interim Filing Procedures
In order to preserve service to possible loss areas and expedite
the future consideration of applications for replacement translator
facilities, we will begin accepting applications for replacement
digital television translator stations following the release date of
this Notice of Proposed Rulemaking. We will withhold the processing of
such applications pending the outcome of this proceeding.\20\ In the
interim full-service stations will be permitted to submit requests for
special temporary authority (STA) pursuant to our existing STA
procedures in order to operate temporary replacement translator
facilities during the pendency of this proceeding. Applications will be
filed on a first-come, first-serve basis.\21\ If we adopt our proposal
to create this new service, and provide with them a processing
priority, the processing of applications for replacement translators
will be completed and mutually exclusive applications will be resolved
by our broadcast competitive bidding rules.\22\ We propose to allow a
10-day opportunity for mutually exclusive replacement translator
applicants to settle or otherwise find an engineering solution to
resolve their mutual exclusivity. We propose that this will expedite
the final processing of such applications and ensure that stations are
able to replace service to loss areas as quickly as possible.
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\20\ We delegate to the Media Bureau authority to announce the
exact date that applications for replacement translator stations
will begin to be accepted and the interim procedures and policies
that will be applied to such filings.
\21\ Any applications filed on or before the effective date of
any rules adopted in this proceeding will be treated as if they were
filed the day after the effective date.
\22\ See 47 CFR 73.5000 et seq.
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Initial Regulatory Flexibility Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(``RFA'') \23\ the Commission has prepared this present Initial
Regulatory Flexibility Analysis (``IRFA'') concerning the possible
significant economic impact on small entities by the policies and rules
proposed in this Notice of Proposed Rulemaking (NPRM). Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
indicated on the first page of the NPRM. The Commission will send a
copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).\24\ In addition,
the NPRM and IRFA (or summaries thereof) will be published in the
Federal Register.\25\
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\23\ 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).
\24\ See 5 U.S.C. 603(a).
\25\ See id. 603(a).
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Need for and Objectives of the Proposed Rules
Full-service television stations have been undertaking changes to
their final, post-transition digital facilities in order to continue to
provide the high level of service to their community of license after
the completion of the digital transition. In some cases, a portion of
the existing analog service areas of some full-service stations will no
longer be able to receive service after the station transitions to
digital broadcasting. Some of these ``loss'' areas are a result of
unavoidable engineering changes that stations were required to
implement in order to avoid interference or other problems on their
post-transition digital channel. At times, the analog signal of certain
full-service stations could not be replicated because of technical
complexities. To assist full-service stations to replace service to
these loss areas, this NPRM proposes to establish a new ``replacement''
digital television translator service that would permit full-service
television stations to obtain new digital translators to maintain
existing service and request comment on an expedited basis.
The NPRM tentatively concludes that replacement translators should
be licensed only for digital operation and should be licensed on only
channels 2-59 and not for out-of-core channels 60-69. The NPRM
tentatively concludes that stations seeking a replacement translator on
channels 52-59 be required to certify in their applications the
unavailability of any suitable in-core channel for this purpose.
The NPRM further tentatively concludes that applications for
replacement translators should 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 NPRM also tentatively 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. The NPRM further tentatively 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. Finally, the NPRM tentatively
concludes that replacement digital television translator stations
should be licensed with ``secondary'' frequency use status.
The NPRM tentatively 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 could not be separately assigned or
transferred and would be renewed or assigned along with the full-
service station's main license. The NPRM also tentatively concludes
that the other rules associated with television translator stations
would apply to the new replacement translator service including those
rules concerning the filing of applications, payment of filing fees,
processing of applications, power limits, out-of-channel emission
limits, call signs, unattended operation, and time of operation. The
NPRM seeks comment whether to limit the construction period for
replacement translators to six months.
In order to preserve service to possible loss areas, and expedite
the future consideration of applications for replacement translator
facilities, the NPRM announces that the Commission will begin accepting
applications for replacement digital television translator stations
following the release date of the NPRM. The Commission will withhold
the processing of such applications pending the outcome of the
rulemaking proceeding. In the interim, full-service stations will be
permitted to submit requests for special temporary authority (STA) in
order to operate temporary replacement translator facilities during the
pendency of this proceeding. The NPRM delegates to the Media Bureau
authority to announce the exact date that applications for replacement
translator stations will begin to be
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accepted and the interim procedures and policies that will be applied
to such filings. Applications will be filed on a first-come, first-
serve basis.
Legal Basis
The authority for the action proposed in this rulemaking is
contained in Sections 1, 4(i) and (j), 7, 301, 302, 303, 307, 308, 309,
312, 316, 318, 319, 324, 325, 336, 337, 614 and 615 of the
Communications Act of 1934, 47 U.S.C. 151, 154(i) and (j), 157, 301,
302a, 303, 307, 308, 309, 312, 316, 318, 319, 324, 325, 336, 337, 534,
and 535.
Description and Estimate of the Number of Small Entities to Which the
Proposed 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 proposed rules, if adopted.\26\ The RFA generally
defines the term ``small entity'' as having the same meaning as the
terms ``small business,'' ``small organization,'' and ``small
government jurisdiction.'' \27\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act.\28\ 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.\29\
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\26\ Id. at 603(b)(3).
\27\ 5 U.S.C. 601(6).
\28\ Id. Section 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).
\29\ 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.\30\ Business concerns included in this
industry are those ``primarily engaged in broadcasting images together
with sound.'' \31\ 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 \32\ (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 \33\ 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.\34\ 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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\30\ See 13 CFR 121.201, NAICS Code 515120 (adopted Oct. 2002).
\31\ 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.
\32\ 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 1374. 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.
\33\ ``[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).
\34\ 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.\35\
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\35\ 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.\36\ 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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\36\ 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 does not exclude any television station from the
definition of a small business on this basis and is 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 NPRM proposes one new reporting requirement. The NPRM proposes
that full-service stations seeking a new replacement digital television
translator station 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 any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification,
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consolidation, or simplification of compliance or reporting
requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.\37\
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\37\ 5 U.S.C. 603(c)(1)-(c)(4).
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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.
The NPRM tentatively concludes that replacement translators should
be licensed only for digital operation and should be licensed on only
channels 2-59 and not for out-of-core channels 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 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 NPRM tentatively
concludes that stations seeking a replacement translator on channels
52-59 be required to certify in their applications the unavailability
of any suitable in-core channel for this purpose. The alternative
approach would be to not require a certification, but that could lead
to administrative delay and a waste of administrative resources as the
staff would have to verify the lack of channels.
The NPRM further tentatively concludes that applications for
replacement translators should 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 NPRM also tentatively
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 NPRM further tentatively
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 NPRM tentatively concludes that replacement
digital television translator stations should 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 NPRM tentatively 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 could not be separately assigned or
transferred and would 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 NPRM also tentatively concludes that the other
rules associated with television translator stations would apply to the
new replacement translator service including those rules concerning the
filing of applications, payment of filing fees, processing of
applications, power limits, out-of-channel emission limits, call signs,
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 NPRM seeks comment whether
to limit the construction period for replacement translators to six
months. Alternatively, the Commission could have proposed that the
existing three-year construction period be allowed, however that
alternative was not proposed in an effort to ensure that replacement
translators are built and operating quickly to replace loss areas.
Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals
None.
The Commission will send a copy of the Notice of Proposed
Rulemaking, including the Initial Regulatory Flexibility Analysis, to
the Chief Counsel for Advocacy of the Small Business Administration.
List of Subjects in 47 CFR Part 74
Television, Television broadcasting, Low power television.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 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.
Sec. 74.787 [Amended]
2. Section 73.787 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 replacement digital television translator
may be filed by a full-service television station that can demonstrate
that a portion of its analog service area will not be served by its
full, post-transition digital facilities. Replacement digital
television translator may operate on channels 2-59. Applications for
replacement digital television translator shall be given licensing
priority over all other low power television and TV translator
applications except displacement applications (for which they shall
have
[[Page 67]]
co-equal priority). The service area of the replacement translator
shall be limited to only a demonstrated loss area. The license for the
replacement digital television translator will be associated with the
full power station's main license and 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 six months 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) 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 subject to the appropriate application fee and shall be
accepted on a first-come, first-serve 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.
* * * * *
[FR Doc. E8-31227 Filed 12-29-08; 4:15 pm]
BILLING CODE 6712-01-P