[Federal Register: February 19, 2009 (Volume 74, Number 32)]
[Rules and Regulations]
[Page 7654-7657]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19fe09-10]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[MB Docket No. 09-17; FCC 09-9]
Implementation of the DTV Delay Act
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission takes the first step to
implement the DTV Delay Act by; extending the dates in analog
television licenses and digital television construction permits to
reflect the statutory change of the nationwide DTV transition date from
February 17, 2009 to June 12, 2009; and; delegating authority to the
Media Bureau to rule on the filings stations made in connection with
their requests for restoration of the partial waiver permitting them to
terminate analog service on February 17, 2009.
DATES: Effective February 13, 2009.
FOR FURTHER INFORMATION CONTACT: For additional information, contact
Evan Baranoff, Evan.Baranoff@fcc.gov, of the Media Bureau, Policy
Division, at (202) 418-7142.
SUPPLEMENTARY INFORMATION: This is a summary of document FCC 09-9,
adopted and released on February 13, 2009. The full text 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, S.W., 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 Report and Order and Sua Sponte Order on Reconsideration
I. Introduction
1. In this Report and Order, the first in response to the
Congressional extension of the digital television (DTV) transition
period, we extend the analog license terms and adjust the construction
permits for the full power television stations subject to the DTV Delay
Act that was enacted into law on February 11, 2009. (See DTV Delay Act,
Public Law 111-4, 123 Stat. 112 (2009). On February 11, 2009, the DTV
Delay Act was signed by the President and enacted into law. The DTV
Delay Act was passed by the United States Senate on January 29, 2009
and passed by the United States House of Representatives on February 4,
2009. The Commission
[[Page 7655]]
also has issued a number of public notices to facilitate Congress's
postponement of the DTV transition deadline. See Public Notice, ``FCC
Requires Public Interest Conditions for Certain Analog TV Terminations
on February 17, 2009,'' FCC 09-7 (rel. Feb. 11, 2009) (February 11
Public Notice); Public Notice, ``FCC Announces Procedures Regarding
Termination of Analog Television Service On or After February 17,
2009,'' FCC 09-6 (rel. Feb. 5, 2009) (``February 5 Public Notice'').)
In the DTV Delay Act, Congress extended the date for the completion of
the nationwide DTV transition from February 17, 2009 to June 12, 2009.
As a result, after June 12, 2009, full-power television broadcast
stations must transmit only digital signals, and may no longer transmit
analog signals except for limited analog ``nightlight'' service. (The
DTV Delay Act (to be codified at 47 U.S.C. 309(j)(14) and 337(e)),
amends Section 309(j)(14) of the Communications Act to establish June
12, 2009 as the new nationwide deadline for the end of analog
transmissions by full-power stations. 47 U.S.C. 309(j)(14)(A) (``A
full-power television broadcast license that authorizes analog
television service may not be renewed to authorize such service for a
period that extends beyond June 12, 2009.''). See also 47 U.S.C.
337(e)(1) (``Any full-power television station licensee that holds a
television broadcast license to operate between 698 and 806 megahertz
may not operate at that frequency after June 12, 2009.''). See the
Short-term Analog Flash and Emergency Readiness Act, Public Law 110-
459, 122 Stat. 5121 (2008).) Congress extended the transition date in
order to permit analog service to continue until consumers have had
additional time to prepare. The DTV Delay Act directs the Commission to
take any actions ``necessary or appropriate to implement the
provisions, and carry out the purposes'' of the DTV Delay Act, and to
do so within 30 days. (In addition, the DTV Delay Act amends the
Digital Television and Public Safety Act of 2005 (``DTV Act''), Public
Law 109-171, 120 Stat. 4 (2006), to direct 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 June 13, 2009; and (2) to require by June
13, 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).'' 47 U.S.C.A. 309 Note.) This Report and Order
also delegates authority to the Media Bureau to rule on stations'
filings regarding termination of analog service on February 17, 2009.
We intend to follow up quickly with additional rulemakings as needed.
Finally, we adopt a Sua Sponte Order on Reconsideration to make a minor
adjustment to the public notice released on February 5, 2009, and to
the conditions adopted in the public notice released on February 11,
2009.
II. Discussion
2. Initially, we conclude that the actions herein are not subject
to the rule making requirements of the Administrative Procedure Act or
any other provision of law that otherwise might apply but would impede
implementation of the DTV Delay Act. The Act directs the Commission to
postpone the DTV transition date from February 17 to June 12, 2009, and
provides that, ``[n]otwithstanding any other provision of law,'' the
FCC must ``adopt or revise its rules, regulations, or orders or take
such other actions as may be necessary or appropriate to implement the
provisions, and carry out the purposes, of this Act and the amendments
made by this Act'' within 30 days of the date of its enactment. The
``notwithstanding'' clause plainly excuses compliance with otherwise
applicable legal requirements that would impede implementation of the
DTV Delay Act by the statutory deadline. (In other contexts, the DC
Circuit has interpreted similar ``notwithstanding'' language ``to
supersede all other laws, stating that `a clearer statement is
difficult to imagine.' '' Liberty Maritime Corp. v. United States, 928
F.2d 413, 416 (DC Cir. 1991) (internal cites omitted).) Even if the
clause were ambiguous, we would interpret it to exempt the Commission
from APA and other requirements that cannot be reconciled with the
statutory deadline. (See, e.g., Verizon Comm'ns, Inc. v. FCC, 535 U.S.
467, 539 (2002) (under Chevron doctrine, courts generally defer to an
agency's reasonable interpretation of an ambiguous provision in its
enabling statute). Cf. Asiana Airlines v. FAA, 134 F.3d 393, 398 (DC
Cir. 1998) (``when Congress sets forth specific procedures that
`express its clear intent that APA notice and comment procedures need
not be followed, an agency may lawfully depart from the normally
obligatory procedures of the APA''), quoting Methodist Hospital of
Sacramento v. Shalala, 38 F.3d 1225, 1235 (1994). The DC Circuit upheld
agency findings that the APA did not apply in the absence of express
exemptions in Asiana and Methodist, despite an APA provision that
modifications must be express, because the statutes specified
procedures that could not be harmonized with the APA.) The actions
herein are necessary and appropriate to implement the DTV Delay Act and
carry out its purposes, and must be accomplished before February 17,
2009, so that the effective deadline for our actions here is less than
three business days. Because compliance with the APA and other
requirements would frustrate our ability to meet that deadline, we
conclude that our actions herein are exempt from such requirements.
Moreover, we find that there is good cause for departure from the APA
requirements of notice and comment and a 30-day delay before rules
become effective. (See 5 U.S.C. 553(b)(3)(B) (notice and comment not
required ``when the agency for good cause finds * * * that notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest.''), 553(d)(1) (exception to 30-day waiting period
for a rule's effectiveness where agency finds good cause and publishes
finding with the rule). See also 5 U.S.C. 608 (agency ``may waive or
delay the completion of some or all of the [initial regulatory
flexibility analysis] requirements * * * by publishing in the Federal
Register, not later than the date of publication of the final rule, a
written finding * * * that the final rule is being promulgated in
response to an emergency that makes compliance or timely compliance * *
* impracticable.'').) Again, with regard to the actions here, the
effective deadline for Commission action is less than three business
days. (The DC Circuit has held that ``the extremely limited time given
by Congress'' to an agency for adoption of regulations ``is a crucial
factor in establishing `good cause' '' under the APA. Id. at 1200-01
(upholding agency finding of good cause to adopt interim rule without
notice and comment where statute directed agency to promulgate
implementing regulations ``[n]ot later than 60 days after the date of
enactment'').) Our actions are of an interim nature, in that they will
no longer be in force after June 13, 2009, and are largely ministerial,
because they simply extend deadlines tied to the original DTV
transition date of February 17, 2009 to the new statutory date. (See
American Federation of Gov't Employees v. Block, 655 F.2d 1153, 1156
(good cause existed to issue new rates effective immediately without
[[Page 7656]]
notice and comment but not to make them permanent); see also Metzenbaum
v. FERC, 675 F.2d 1282, 1291 (DC Cir. 1982) (agency orders that were
nondiscretionary ministerial actions issued in conformity with statute
were properly issued without notice and comment). Accordingly, even if
our actions are subject to the APA, we find that there is good cause
for departure from APA requirements.
A. Licenses and Construction Permits Extended Until New Transition Date
3. By this Order, and pursuant to the authority set forth in the
DTV Delay Act, we hereby revise and extend the following dates related
to full-power broadcast television stations' licenses and construction
permits: (1) the date of termination for a station's analog license is
extended from February 17, 2009 to June 12, 2009 (11:59:59 pm local
time); (We note that a number of stations are operating with reduced
analog facilities pursuant to special temporary authority, based upon a
showing that the service reduction was directly related to the
construction and operation of their post-transition facilities. We also
extend the date of termination for these STAs from February 17, 2009 to
June 12, 2009 (11:59:59 pm local time). Similarly, we extend the date
of termination for stations operating pre-transition digital facilities
pursuant to STAs which currently terminate on February 17th to June 12,
2009 (11:59:59 pm local time).); (2) the construction permit deadline
to construct a station's full-authorized post-transition (DTV) facility
is extended from February 17, 2009 to June 12, 2009 (11:59:59 pm local
time); (We note that the Third DTV Periodic Report and Order
established certain construction deadlines, rules and procedures for
requesting and obtaining extensions for build-out of digital
facilities. See Third Periodic Review of the Commission's Rules and
Policies Affecting the Conversion to Digital Television, MB Docket No.
07-91, Report and Order, 72 FR 37310, 37322-37331 (July 9, 2007)
(``Third DTV Periodic Report and Order''). We will address these
deadlines, rules, and procedures if and as necessary in subsequent
proceedings.); and (3) the date on which a station can commence
operation of a facility authorized for post transition service without
further Commission authorization is extended from 12:00 am February 18,
2009 to 12:00 am June 13, 2009 (local time). Absent the extensions
granted in this Report and Order, existing authorizations to provide
analog broadcast service and to construct replacement digital
facilities will expire on the former transition date and a gap in
service would occur beginning on February 18th. This would directly
contravene the purpose of the DTV Delay to afford viewers more time in
which to prepare for the digital transition.
4. We remind stations that they may complete construction of their
post-transition digital facilities before June 12 at 11:59:59 pm, but
may not operate such facilities before 12:00 am June 13, 2009 (local
time) without express Commission approval because operation of a
facility that has been authorized for post-transition but not pre-
transition service could cause impermissible interference to pre-
transition broadcasting. Therefore, stations that wish to operate a
post-transition facility before 12:00 am June 13, 2009 (local time)
must request special temporary authority (STA) from the Commission via
the ``DTV engineering STA,'' including the appropriate engineering
analysis.
B. February 11 Public Notice
1. Delegated Authority To Consider Waiver Reinstatement
5. We hereby delegate authority to the Media Bureau to determine
whether showings submitted in response to the Commission's February 11,
2009 Public Notice justify reinstatement of the conditional waiver
necessary to terminate analog service on February 17, 2009. The
February 11 Public Notice reconsidered the partial waiver granted in an
earlier public notice with regard to a number of stations intending to
terminate analog service on February 17, 2009, based on the conclusion
that termination by such stations poses a significant risk of
substantial public harm. The stations in question, which are listed in
the Appendix to the February 11 Public Notice, may not terminate analog
service on February 17 unless they obtain reinstatement of the waiver
of the procedures set forth in the Third DTV Periodic Report and Order
by (1) making certain certifications by February 13 or (2) by showing
``that extraordinary, exigent circumstances, such as the unavoidable
loss of their analog site or extreme economic hardship, require that
they terminate their analog service on February 17th.'' A station
electing to submit such a showing (as opposed to a station making a
self-effectuating certification) ``must await a determination by the
Commission that its showing is sufficient before terminating analog
service.'' The Commission stated in the February 11 Public Notice that
we would try to make such determinations before February 17th.
Accordingly, and to expedite such determinations, we delegate authority
to the Media Bureau to make the required determinations and notify
stations of the results.
2. Sua Sponte Reconsideration
a. February 5 Public Notice
6. By this Order, we reconsider the limitation adopted in the
February 5 Public Notice that stated: ``We expect that stations
indicating their intent to terminate their analog service on February
17 will do so. Therefore, as a condition of the waiver granted herein,
the Commission will not permit stations to withdraw or modify these
notifications except in the event of emergency or disaster
necessitating the continued operation of analog service. The analog
operations of stations submitting notification of intent to terminate
analog service on February 17, 2009 pursuant to this Public Notice will
no longer be protected from interference after February 17, 2009.''
Some stations that were not on the Appendix to the February 11 Public
Notice have expressed interest in withdrawing their notifications for
good reasons associated with circumstances in their markets, but not
rising to the level of an ``emergency or disaster.'' We find that it is
in the public interest to allow stations to withdraw their
notifications of intent to terminate analog service on February 17,
2009.
7. Due to the limited period of time remaining before February
17th, stations that wish to withdraw their notifications must notify us
no later than 6:00 pm EST on Saturday, February 14, 2009. Stations
should send an e-mail to: Barbara.Kreisman@fcc.gov, and place
``Withdrawal of Termination Notification'' in the subject line.
(Stations listed in the Appendix to the February 11 Public Notice that
choose not to terminate their analog service may so indicate on the
form as described in footnote 10 to the February 11 Public Notice; they
should not and need not send notifications to this e-mail address.)
Stations should also revise their ``Viewer Notifications'' to reflect
their change in plans as soon as possible.
b. February 11 Public Notice
8. By this Order, we also reconsider and make a minor adjustment to
one of the conditions set forth in the February 11 Public Notice. The
third condition stated, in relevant part: ``Ensure that enhanced
nightlight service concerning the DTV transition or emergency
information will be provided in Spanish and English and accessible to
the
[[Page 7657]]
disability community * * *'' Some stations have maintained that they do
not have the capability of translating emergency information into
Spanish. We also note that neither our rules nor the Analog Nightlight
Act require emergency information in Spanish; rather the Analog
Nightlight Act requires only that information concerning the DTV
transition be provided in both English and Spanish. (See Section 2(b)
of the Short-term Analog Flash and Emergency Readiness Act. We also
urge stations to provide DTV transition information in other languages
as appropriate for their viewers.)
9. We recognize the value and importance of ensuring that emergency
information is available in Spanish for many viewers. However, we do
not wish to prevent stations that can otherwise comply fully with the
eight public interest conditions set forth in the February 11 Public
Notice from doing so and proceeding with their analog termination, as
provided in the February 11 Public Notice. Therefore, we will not
require stations to provide emergency information in Spanish if the
station does not otherwise provide Spanish language programming. We
certainly encourage stations to broadcast emergency information in
Spanish or other languages as needed by their viewers. The requirement
for DTV transition information in Spanish remains in place.
C. Additional Information
10. For additional information, contact Evan Baranoff,
Evan.Baranoff@fcc.gov, of the Media Bureau, Policy Division, at (202)
418-7142.
III. Ordering Clauses
11. It is ordered that, pursuant to the authority contained in
Sections 4, and 303 of the Communications Act of 1934, as amended, 47
U.S.C. 154 and 303, and Sections 2 and 4(c) of the DTV Delay Act, DTV
Delay Act 2, 4(c), this Report and Order is adopted.
12. It is also ordered, pursuant to the authority contained in
Section 4(c) of the DTV Delay Act, DTV Delay Act Section 4(c), the
actions herein are effective upon release of this Report and Order. As
discussed above, the actions herein must be effective no later than
February 17, 2009 at 11:59:59 pm to avoid a gap in analog broadcast
service that would harm viewers and directly contravene the purposes of
the DTV Delay. The Commission is releasing this Report and Order on
Friday, February 13, 2009, only two days after the DTV Delay Act's
enactment on February 11, 2009, and the last business day before
February 17, 2009 (Monday, February 16 is a federal holiday). As a
result, we find that there is good cause to make the actions herein
effective upon release of this Report and Order by the Commission
(i.e., February 13, 2009).
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E9-3600 Filed 2-17-09; 11:15 am]
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