[Federal Register: February 27, 2009 (Volume 74, Number 38)]
[Proposed Rules]
[Page 8889-8895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27fe09-19]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 09-17; FCC 09-11]
Implementation of the DTV Delay Act
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: This document seeks comment on issues relating to further
implementation of the DTV Delay Act. The Commission proposes and seeks
comment on a procedure for early termination of analog broadcasting by
full-power television broadcasters, and asks whether stations should be
allowed to terminate service at different times of day. It also asks
whether the DTV Consumer Education Initiative rules should be revised,
particularly to require stations to provide viewers with detailed
information about service loss due to the move from analog to digital
broadcasting.
DATES: Comments for this proceeding are due on or before March 4, 2009.
ADDRESSES: Federal Communications Commission, 445 12th Street, SW.,
Washington, DC 20554. You may submit comments, identified by MB Docket
No. 09-17, by any of the following methods:
<bullet Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
<bullet Federal Communications Commission's
Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for
submitting comments.
<bullet 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. In addition to filing comments
with the Secretary, a copy of any comments on the Paperwork Reduction
Act information collection requirements contained herein should be
submitted to the Federal Communications Commission via e-mail to
PRA@fcc.gov and to Nicholas A. Fraser, Office of Management and Budget,
via e-mail to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-
5167.
FOR FURTHER INFORMATION CONTACT: For more information, please contact
Nazifa Sawez, Nazifa.Sawez@fcc.gov, at 202-418-7059 or Shaun Maher,
Shaun.Maher@fcc.gov, at 202-418-2324, of the Video Division, Media
Bureau; or Evan Baranoff, Evan.Baranoff@fcc.gov, at 202-418-7142; Lyle
Elder, Lyle.Elder@fcc.gov, at 202-418-2120; or Kim Matthews,
Kim.Matthews@fcc.gov, at 202-418-2154, of the Policy Division, Media
Bureau; or Eloise Gore, Eloise.Gore@fcc.gov, at 202-418-7200, of the
Media Bureau. For additional information concerning the Paperwork
Reduction Act information collection requirements contained in this
document, contact Cathy Williams on (202) 418-2918, or via the Internet
at PRA@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (``NPRM'') in MB Docket No. 09-17, FCC 09-11,
adopted and released February 20, 2009. (The companion Second Report
and Order to this document is published elsewhere in this issue of the
Federal Register.) 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).
Initial Paperwork Reduction Act of 1995 Analysis
This Notice of Proposed Rulemaking (NPRM) was analyzed with respect
to the Paperwork Reduction Act of 1995, Public Law 104-13 (PRA) and
contains modified information collection requirements. Specifically,
this NPRM proposes to modify existing DTV transition-related
information collection requirements to (1) expand viewer notification
and other public interest obligations for early terminators of analog
service; and (2) amend consumer education requirements to provide more
detailed and accurate information to television viewers. The Commission
is seeking OMB approval for these changes under OMB's emergency
processing rules.
The Commission, as part of its continuing effort to reduce
paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the PRA. Public
and agency comments are due March 4, 2009. Comments should address: (a)
Whether the proposed collection of information is necessary for the
proper performance of the functions of the Commission, including
whether the information shall have practical utility; (b) the accuracy
of the Commission's burden estimates; (c) ways to enhance the quality,
utility, and clarity of the information collected; and (d) ways to
minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we seek specific comment on how we might ``further
reduce the information collection burden for small business concerns
with fewer than 25 employees.''
Summary of the Notice of Proposed Rulemaking:
I. Notice of Proposed Rulemaking
1. In this Notice of Proposed Rulemaking (NPRM), we seek comment on
possible additional amendments to our rules that may be necessary or
appropriate to carry out the purposes of the DTV Delay Act. In
particular, we seek comment on revisions to the early analog
termination procedures for stations that prefer to complete their
transition before the new deadline of June 12, 2009. We also seek
comment on whether to revise our consumer education rules, particularly
by requiring broadcasters to provide service loss notices to viewers.
We ask whether broadcasters should provide information on rescanning
with digital equipment, and, where applicable, information regarding
the need for different equipment due to changes from UHF to VHF
service, or vice versa.
[[Page 8890]]
We also seek comment on amendments to the ``100-Day Countdown'' that is
required in Option Two and the 30 minute informational video that is
required in both Option Two and Option Three. Finally, we ask whether
stations that participate in or support the post-transition analog
nightlight program should be exempt from post-transition consumer
education requirements.
A. Analog Service Terminations Prior to June 12, 2009
2. As discussed above, we find that revising the analog (and pre-
transition digital) service termination procedures established in the
Third DTV Periodic Report and Order, 72 FR 37310 (July 9, 2007), is
necessary to implement and carry out the purposes of the DTV Delay Act.
We seek to develop revised service termination procedures that will
best enable us to evaluate and adjust deployment of our resources and
to coordinate with other entities in order to prepare for stations'
analog service terminations and protect the public interest. The
Commission must make, adjust and prioritize arrangements for consumer
outreach, call center staffing, converter installation assistance and
coordinate with contractors, partners, volunteers, and organizations
throughout the country to address areas where stations will terminate
their analog signals throughout the transition period. We therefore
propose to allow stations to proceed with their planned terminations,
as described in their March 17 notification to the Commission, without
the need for action by the Commission; provided, however, that if a
major network (ABC/CBS/FOX/NBC) affiliate intends to terminate service
early, it must certify that: (1) At least 90% of its analog viewers
will receive some analog service (full service or enhanced nightlight)
until June 12, 2009; and (2) it will comply with the other public
interest conditions described below on or before the day it terminates
analog service and through June 12, 2009. Any major network affiliate
that does not certify to both requirements must continue providing full
analog service until June 12, 2009 (except in the case of equipment
failure, natural disaster, or other unforeseeable emergency).
3. In the companion Order published elsewhere in this issue of the
Federal Register, we require all full-power television stations that
have not terminated their analog service as of February 17, 2009, to
decide on a firm date by which they intend to terminate their regular
analog television service and to notify us of that date no later than
Tuesday, March 17, 2009. We tentatively conclude that stations may
terminate no earlier than April 16, 2009, to give all parties at least
30 days from the notification date to prepare and educate consumers.
Our proposals here are influenced by our experience planning for the
partial transition by one-third of the full power stations on or just
before February 17, 2009. We have found that advance planning and
station commitment to nightlight service and public interest outreach
contribute to a smoother transition.
4. For the same reason, we also tentatively conclude that stations
will not be permitted to change their date for analog service
termination without a strong justification and express Commission
approval. We propose that, except in the case of equipment failure,
natural disaster, or other unforeseeable emergency, stations would only
be permitted to terminate analog service on the date they elect. In
addition, we propose that the timing and advance notice for analog
terminations to be adopted in this proceeding will supersede the
provisions of Section 73.1615. Stations would be able to rely on the
flexibility of Section 73.1615 for brief terminations or reductions of
service for technical reasons, as originally contemplated by that
section. They would not, however, be permitted to rely on this
provision to terminate analog service altogether, even in the days
immediately prior to June 12, 2009. A station's analog service
termination would only be permissible on the date permitted for it by
the Commission. We seek comment on our tentative conclusion and
proposals.
5. The Third DTV Periodic Report and Order required stations to
notify their viewers about a planned analog service termination at
least 30 days prior to the termination. These ``viewer notifications''
are required to describe how viewers can continue to receive service
from the station, and continue to apply to any station terminating
prior to June 12. They are not limited to major network affiliates. We
do not propose to modify the 30-day on-air viewer notification
requirement for early service terminations, although we do encourage
early transitioning stations to start viewer notifications as soon as
their plans are set. We seek comment on whether to require a longer
viewer notification period for early transitioning stations, up to 60
days when possible, or if we should require that notifications commence
uniformly on a date certain or, instead, as soon as the station's
intended termination date is finalized. Under no circumstances will a
station be permitted to air notifications for fewer than 30 days. Each
station's on-air viewer notifications must include the specifics of the
station's firm termination date. We also seek comment on whether to
require all stations that are terminating prior to June 12, 2009, to
air a crawl for the seven days prior to their termination, as was
required for stations terminating on February 17, 2009.
6. The Third DTV Periodic Report and Order required stations to
make a showing with their notification that the analog service
termination ``is necessary for purposes of the transition.'' Consistent
with this requirement, we propose to require stations to provide us
with sufficient information to enable us to determine whether an early
analog termination is necessary and in the public interest. As
described in the companion Order published elsewhere in this issue of
the Federal Register, no service termination notifications may be filed
prior to the release of the new procedures and form to be adopted in
response to this NPRM. We propose to allow stations that notify us by
March 17, 2009 to proceed with their planned terminations without
specific individual approval, with limited exceptions. Under this
proposal, we would review the termination notifications of major
network affiliates. We propose that, in order to terminate analog
service on their proposed early date, these stations will be required
to certify both that there will be continuing analog service to a
substantial portion of their analog audience until June 12, and that
they will comply with the other public interest conditions proposed
below.
7. We propose that these stations must certify that at least 90
percent of the population within their Grade B analog contour will
continue to receive analog service through June 12, 2009. Analog
service, for this purpose, may be full service analog programming from
a major network affiliate or enhanced analog nightlight service,
because either of these will include local news, public affairs and
emergency information, as well as DTV educational information. Any
major network affiliate that is certifying in order to terminate analog
service early must include with its filing a list of the stations that
will continue to provide such analog service to at least 90 percent of
its analog viewers through June 12, 2009. Stations may cooperate to
share responsibility for providing this analog service, but each
station is individually responsible for its own analog viewers.
8. We further propose that these stations must also certify that
they will comply with the other public interest conditions detailed
below. The ``On-Air
[[Page 8891]]
Crawl Prior to Termination'' requirement goes into effect, by its own
terms, prior to the termination of the station's analog service. The
``DTV Educational Information'' and ``Market Outreach'' obligations
must be undertaken so that they are in place no later than the day on
which the station terminates full service analog programming. The
``Market Outreach'' requirements contemplate collective effort, in a
market where more than one broadcaster has certified compliance with
these conditions, but we remind major network affiliates who terminate
early of their joint and several responsibility for compliance with
these requirements. Due to different analog termination dates, each
broadcaster in an area may become subject to these conditions at
different times. Therefore, we will hold a broadcaster responsible for
compliance with these requirements only during the period after the
termination of its analog service. We emphasize that broadcasters that
continue providing analog service through June 12, 2009, are not
responsible for compliance with any of the requirements associated with
early termination, or for any shared efforts or expenses incurred by
early termination stations as a result of these requirements.
9. We propose to require certification to the following conditions,
which generally track the conditions that we applied to the network
affiliates that sought to terminate on February 17, 2009:
Enhanced Analog Nightlight
Ensure that at least one station that is currently
providing analog service to an area within the DMA that will no longer
receive analog service after the early termination date will continue
broadcasting an analog signal providing, at a minimum, DTV transition
and emergency information, as well as local news and public affairs
programming (``enhanced nightlight'' service) for 60 days following the
early termination date, but not beyond June 12, 2009; for the purposes
of these early terminations, therefore, the enhanced nightlight must
begin as soon as there is no network affiliate serving the area, and be
provided only through June 12, 2009. The local news, public affairs, or
other programming may include commercial advertising.
Ensure that enhanced nightlight service concerning the DTV
transition will be provided in Spanish and English and that both DTV
transition and emergency information is accessible to the disability
community (e.g., silent scrolls or slates do not provide information to
the visually impaired, and therefore, broadcast notices must have an
aural component, as well as being closed or open captioned).
Other Public Interest Conditions
DTV Educational Information
Ensure that on-air educational information (prior to the
early termination date and thereafter as part of ``enhanced
nightlight'' service) will include demonstrations of converter box
installations, antenna setups, and other helpful information, including
the location of walk-in centers in the market and the phone number for
the local or toll-free telephone assistance provided to the market,
discussed in this section. The Commission will continue to publicize
the location of local walk-in centers via our Web site at https://
dtvsupport.fcc.gov/dtvtools.
Ensure that the DTV educational information, both on-air
and through other means, will provide information describing areas that
may be losing over-the-air signal coverage temporarily or permanently
as the station transitions to digital-only broadcasting. Such
information may include detailed maps, listings of affected
communities, and instructions on how to assess what type of antenna may
be necessary to retain or regain the station's digital signal, as well
as identifying specific locations that will not be able to receive a
digital signal regardless of antenna. If educational information is
prepared jointly, it must still specify the signal loss or change as
relevant to each station.
Market Outreach
Each station individually or collectively in the market
commits to assisting viewers by providing local or toll-free telephone
assistance, including engineering support. Such assistance may be
provided jointly with other stations, organizations, and businesses in
the area, but the certification must specify which station or stations
are responsible. If no station is specified, the station making the
certification is presumed responsible.
Each station alone or together with other stations or
local businesses and organizations in the market will provide a
location and staff for a consumer ``walk-in'' center to assist
consumers with applying for coupons and obtaining converter boxes, to
demonstrate how to install converter boxes, to provide maps and lists
of communities that may be affected by coverage issues, and to serve as
a redistribution point for consumers who are willing to donate coupons,
converter boxes, televisions and for those in need of these items. The
certification must specify which station or stations are responsible
for operating the walk-in center. If no station is specified, the
station making the certification is presumed responsible.
Each station will consider and is encouraged to coordinate
with and use community resources to provide consumer outreach and
support, including in-home assistance.
On-Air Crawl Prior to Termination
Each station, individually, will broadcast a crawl on
their analog channel regarding the station's termination of analog
service, for the seven day period just prior to the date of early
termination. For the first five days, the crawl must be aired for 5
minutes of every hour of the station's analog broadcast day, including
during primetime. For the final two days, the crawl must be aired for
10 minutes of every hour of the station's analog broadcast day,
including during primetime. Each station will include in the crawl the
FCC toll-free number (1-888-CALLFCC, 1-888-225-5322). Stations that
cannot broadcast a crawl because it is technically unfeasible may
provide substitute information on an hourly basis, which should be
indicated in their certification.
10. We recognize that major network affiliates subject to the
certification requirement may not be able to certify that they and the
other stations in their market will provide continuing analog service
and compliance with the other necessary public interest obligations
discussed above. In such cases, these licensees may make an alternative
showing to the Commission 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 their
proposed date. This showing must also include information regarding
analog service that will be available for the station's viewers. For
example, a network affiliate might partner with another station serving
the same area to ensure that its viewers may view local news, public
affairs and emergency information. Some network affiliates
transitioning on February 17 partnered with local PBS stations to
provide local news programs, which the PBS station aired without
commercials. The showing should not exceed five (5) pages, not
including attachments. Stations attempting to make this showing bear a
heavy burden of proof. Any station electing to make this showing must
await a determination by
[[Page 8892]]
the Commission that its showing is sufficient before terminating analog
service. The Commission will endeavor to resolve all of these cases
prior to the stations' proposed termination date.
11. Under our proposed approach, we would also retain the right to
prevent any station from going forward with early termination if we
find it in the public interest to do so. As the Commission did in the
case of stations seeking to terminate on February 17, we would
expeditiously provide notice to stations via public notice if major
network affiliates subject to the certification requirement decline to
certify, or if any other station will not be permitted to transition on
its proposed date. After broadcasters have had an opportunity to review
the Commission's decisions regarding the early termination of stations
in their market and surrounding markets, they would have an opportunity
to revoke their early termination decision and continue to broadcast
analog service through June 12. Notice of this decision would have to
be provided to the Commission and viewers, however, not later than 5
days prior to the station's scheduled termination date.
12. We believe that our proposals are consistent with the DTV Delay
Act. They retain stations' flexibility to choose a transition date
prior to June 12 that works for them, while also taking into
consideration the needs and readiness of viewers in their markets.
These proposals afford flexibility for stations consistent with
consumer readiness and assistance. We require that stations decide and
select a final transition date that will enable other interested
parties to make their plans and preparations for the station's
transition. We expect that network affiliates and other stations
serving the same viewing area will closely coordinate if they intend to
terminate analog service before June 12, 2009. We seek comment
specifically on the benefits and hazards of allowing all or virtually
all stations in a market to transition prior to June 12. We are
concerned that doing so would deprive unprepared consumers of access to
vital local news, public affairs and emergency information. We also
seek comment from affected industry groups and, particularly, from
consumers on the relative benefits and harms of our proposal.
13. We also seek comment on whether stations should be allowed to
terminate analog service at any time on June 12, 2009, or be required
to continue broadcasting an analog signal until 11:59:59 p.m. local
time. As noted in the First Report and Order, 74 FR 7654 (Feb. 19,
2009), implementing the DTV Delay Act, full power stations' analog
licenses expire at 11:59:59 p.m. on June 12, 2009. As explained above,
stations may continue analog broadcasting after 11:59:59 p.m. only to
the extent that they are participating in the Analog Nightlight
program. However, the DTV Delay Act and the other relevant statutory
provisions are silent as to the time of day on June 12, 2009 on which
analog termination may occur. We do not believe it is necessary to
treat analog termination on June 12 but prior to 11:59:59 p.m. as an
``early'' termination and propose to leave it to stations to determine
what time of day is most appropriate for their viewers. However, we
propose to require that stations inform the Commission of the time of
day they plan to terminate when they file the required notification on
March 17, 2009 and notify viewers through their required PSAs, crawls
and other consumer education broadcasts if they are planning to end
analog service before 11:59:59 p.m.
B. Consumer Education Initiative Rules
1. 100 Day Countdown
14. We also seek comment on whether we should revise the ``100 day
countdown'' requirement that applies to Option Two broadcasters. As
originally conceived, and as revised in this 2nd Report and Order, each
Option Two broadcaster must air a daily reminder of the number of days
until the conclusion of the DTV transition, beginning 100 days prior to
the transition. A simultaneous nationwide countdown was appropriate
when we expected that the vast majority of stations were planning to
continue analog programming until the conclusion of the transition. Now
that the transition has been delayed, however, many of the roughly 64%
of stations that did not transition on or before February 17 may
transition prior to or on June 12. Under the circumstances, we
recognize that requiring an identical and simultaneous countdown to
June 12 by all Option Two stations, including those that have already
transitioned, may create more confusion than it would alleviate. We
therefore seek comment on whether and how to revise this requirement.
15. Should a station that will be transitioning before June 12 be
required to count down to the date on which that station will terminate
analog service? Should it provide a second countdown (simultaneous with
the first?) that demonstrates the distinction between the station's and
the nation's transitions? Should the requirement vary depending on
whether a station's entire market is transitioning? If so, how should
we define ``entire market'' for the purposes of these rules? Once a
station has transitioned early, should it be required to run a
countdown of any kind? We note that the educational obligation placed
on pre-transition television stations arose not merely from their
position as television stations watched by analog-only viewers, but
also from their important position as an authoritative source of
information for the affected community. Even when one station has
completed its move to digital, it can still provide valuable
information and education to its viewers regarding the transition by
other stations.
2. 30 Minute Informational Videos
16. Under the rules as revised in the companion Report and Order,
Option Two and Three broadcasters must, on at least one day prior to
June 12, 2009, air ``an informational program on the digital television
transition.'' Many, if not most, of the affected broadcasters complied
with this requirement when the transition was to take place on February
17, and their informational programs necessarily reflected that date.
For stations that have already transitioned, we find that such a
program would have met the needs of their viewers. We seek comment,
however, concerning whether such a pre-DTV Delay Act program should be
considered sufficiently accurate and helpful to viewers of stations
that have not yet transitioned, or if these stations should be required
to air an up-to-date 30 minute informational program before they cease
analog programming.
17. We also seek comment on what specific information would need to
be included in such a program for it to serve the consumer educational
purposes of the DTV Delay Act. Specifically, we seek comment on whether
this up-to-date 30-minute informational video should explain: (1) The
change in the transition date; (2) when that particular station is
transitioning; (3) when other stations in the market are transitioning;
and/or (4) any change in the coverage area of the station.
3. Service Loss Notices
18. The Commission's experience with stations that have already
terminated analog service, particularly in those areas where an entire
market has transitioned, is that loss of a station due to a change in
the digital coverage area creates the greatest consumer confusion and
distress. This will be true for stations that transition at any time,
up to and including June 12. Indeed, it
[[Page 8893]]
is true even before stations terminate their analog service as more and
more viewers come to rely on digital service. Therefore, we seek
comment on whether every station should be required to provide specific
notice to analog viewers who are likely to lose over-the-air service
from the station due to changes in the stations' coverage area.
19. Broadcasters electing Option One are already required to
provide information to their viewers, at least once per week, about any
``[c]hanges in the geographic area or population served by the station
during or after the transition.'' They must do so via their regularly-
aired PSAs. We propose to require broadcasters who have elected Options
Two or Three to provide similar information to their viewers via PSAs,
if 2 percent or more of their analog viewers are predicted to lose
service as a result of a change in their geographic coverage area (even
if the station gains viewers elsewhere). The Commission has created a
tentative list of stations anticipated to lose 2 percent or more of
their analog viewers, which can be found on the FCC Web site at http://
www.fcc.gov/dtv/markets/report2.html. For purposes of the notice
requirement, we would not include those stations where the losses are
due solely to propagation effects such as a change from a VHF to UHF
channel. Stations would be required to provide geographically specific
information detailing areas that are covered by the Grade B analog
contour but are not predicted to receive digital service. We would also
require stations to provide educational information describing areas
where analog signal strength is generally sufficient for viewers to
rely on an indoor antenna but where it is likely that they will need an
outdoor antenna to receive the digital signal.
20. We seek comment on how the information should be presented in a
manner that is both accurate and understandable to viewers. Should we
permit stations to convey the geographic specificity in different ways?
For example, would PSAs referencing particular communities, ZIP codes,
or neighborhoods be sufficient, or should stations be required to show
maps demonstrating their changed service area? Should service area
information be provided to viewers more frequently than once per week?
Alternatively, should broadcasters be required or permitted to provide
information directly to populations expected to lose service, via, for
instance: direct mail to addresses in the affected area? We note that
radio broadcasts and local newspapers are another means of targeting
viewers who are likely to experience loss. Stations may also point out
to their viewers any areas in which their over-the-air service will
improve or expand. There may well be viewers who currently rely on
subscription service who may be able to rely, instead, on free over-
the-air broadcasting and thus realize one of the benefits of the DTV
transition, particularly where the station offers multicast channels.
21. We also propose to require all stations to provide information
to consumers about the need to periodically ``rescan'' when using over-
the-air digital reception equipment, particularly through the end of
the transition. We propose to further require stations that are
changing their broadcast frequency from VHF to UHF (or vice versa) to
include as part of their required consumer education activities notice
about the need for additional or different equipment to avoid loss of
service. The implementation of Major Channel Numbers as part of the
Program System Information Protocol (PSIP) makes it more difficult for
consumers to determine this information on their own, because a
station's ``channel'' no longer necessarily reflects its over the air
frequency.
4. Waiver of Post-Transition Consumer Education Requirements
22. We propose to waive the post-transition consumer education
requirements for stations that participate in the statutory nightlight
program. The broadcasters in Wilmington, North Carolina, who
volunteered to transition their market on September 8, 2008, ceased
analog broadcasting on that date but voluntarily participated in a
``nightlight''-type program for roughly one month afterward, displaying
a ``slate'' describing the transition and explaining how people could
obtain additional information about it. In consideration of the fact
that the entire market was transitioning at once, and upon the request
of the broadcasters, the Commission found that the nightlight fulfilled
the Wilmington stations' consumer education obligations, and waived the
remainder of those obligations for both the analog and digital signals.
23. As discussed above, after the conclusion of the nationwide
transition many stations will have the option to participate in the
statutory nightlight program created by Congress and implemented in our
Analog Nightlight Order. Should we, as we did in Wilmington, consider
participation in this program, or support of another station's
participation, sufficient to meet a station's consumer education
obligations, to the extent that they apply after June 12, 2009? We seek
comment on this proposal.
C. Other Issues
24. Finally, we welcome comment on any actions ``necessary or
appropriate to implement the provisions, and carry out the purposes''
of the DTV Delay Act that have not been resolved by or addressed above.
II. Procedural Matters
A. Statutory Authority and Good Cause Findings
25. For the reasons below, pursuant to section 4(c) of the DTV
Delay Act, we conclude that the rule changes and other actions herein
are not subject to the rulemaking requirements of the Administrative
Procedure Act, Congressional Review Act, Regulatory Flexibility Act, or
any other provision of law that otherwise would apply and would impede
implementation of the statutory directives. In any event, we also
conclude that there is good cause for departure from such requirements
here. Nevertheless, we are providing notice and an abbreviated
opportunity for public comment regarding the issues addressed in
Section IV above to allow interested parties to contribute to our
consideration of these issues to the extent possible in the limited
time that Congress has provided.
26. Section 4 of the DTV Delay Act provides that,
``[n]otwithstanding any other provision of law,'' the Commission 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 FCC actions to
implement 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.' '' The plain meaning of the DTV
Delay Act's language is reinforced by the circumstances surrounding its
passage. Congress extended the imminent DTV transition deadline to
enhance national preparedness for the DTV transition, and examination
of the legislative history reflects its recognition that accomplishing
this goal would require extraordinary and immediate action by the
Commission and others. Thus, the Act requires the FCC to act
[[Page 8894]]
not later than 30 days after the date of enactment, and grants it broad
discretion within that brief period to take such actions ``as may be
necessary or appropriate'' to accomplish the Act's goals. For the
reasons explained elsewhere in this Order, we find that the rule making
and other actions herein are necessary and appropriate to implement the
DTV Delay Act and carry out its purposes. As discussed below,
compliance with the APA and other procedural administrative law
requirements would frustrate or impede the FCC's ability to meet the
statutory deadline. Therefore, section 4(c) of the Act supersedes such
legal requirements.
27. Even if the statutory language were ambiguous, we would
interpret it to exempt the Commission from APA and other procedural
administrative law requirements that cannot be reconciled with the
statutory mandate. As stated above, the Act requires the FCC to
implement its provisions and purposes within 30 days. The fact that
many Commission rules, regulations and orders are tied to the original
statutory deadline of February 17, 2009, combined with the Act's
enactment only a few business days before February 17, reduced the time
frame for many of the necessary actions from one month to a matter of
days. Moreover, given the number and complexity of rule making and
other actions required to implement the DTV Delay Act and accomplish
its purposes, combined with the fact that the Act itself postpones the
nationwide DTV transition for a limited period, the FCC cannot fulfill
the statutory mandate and comply with otherwise applicable rule making
and other legal requirements. There is insufficient time to publish a
Notice of Proposed Rulemaking in the Federal Register, allow time for
meaningful comment and consider those comments before taking all of the
necessary legal actions. The APA also requires Federal Register
publication at least 30 days before a rule's effective date. Here, a
standard comment period after Federal Register publication and a 30-day
waiting period before rules become effective would exceed the 30-day
period after enactment during which agency implementation is required.
Other legal requirements cited above likewise require more time than
circumstances allow. Therefore, even if the statute were ambiguous, we
would interpret it to supersede requirements that cannot be harmonized
with the statutory mandate, including the APA, CRA, and RFA.
28. We also find that there is good cause for departure from the
APA requirements of notice and comment, the requirements of the CRA,
and a 30-day delay before rules become effective under the
circumstances here. As discussed above, the extraordinary circumstances
surrounding the DTV Delay Act create an urgent need for rapid action.
The statutory deadline for Commission action is no more than 30 days
from enactment. 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. We note
that many of our actions are of an interim nature, in that they will no
longer be in force after June 13, 2009. Moreover, some of our actions,
such as extending the terms of the licenses for the recovered spectrum
(including the license period and construction requirements associated
with those licenses) for 116-day period, are non-discretionary or
ministerial in nature. Accordingly, even if our actions were subject to
the APA (and, as explained above, they are not), we find that there is
good cause for departure from APA requirements because the
circumstances make compliance impracticable or unnecessary.
Nevertheless, as indicated above, we are providing notice and an
abbreviated opportunity for public comment regarding the issues
addressed in Section IV above to allow interested parties to contribute
to our consideration of these issues to the extent possible in the
limited time that we have. We find that the five-day comment period
provided herein is the maximum possible opportunity for public comment
that we can provide and still fulfill our statutory mandate to take
such actions as are necessary or appropriate to implement the DTV Delay
Act and accomplish its purposes within 30 days of the Act's enactment,
or no later than March 13, 2009.
B. Initial Paperwork Reduction Act of 1995 Analysis
29. This NPRM was analyzed with respect to the Paperwork Reduction
Act of 1995 (PRA) and contains modified information collection
requirements. Specifically, this NPRM proposes to modify existing DTV
transition-related information collection requirements to (1) expand
viewer notification and other public interest obligations for early
terminators of analog service; and (2) amend consumer education
requirements to provide more detailed and accurate information to
television viewers. The Commission is seeking OMB approval for these
changes under OMB's emergency processing rules.
30. Written comments by the public on the new and/or modified
information collections are due on or before 5 days after the date of
publication in the Federal Register. In addition to filing comments
with the Office of the Secretary, a copy of any comments on the
proposed information collection requirements contained herein should be
submitted to Cathy Williams, Federal Communications Commission, 445
12th St., SW., Room 1-C823, Washington, DC 20554, or via the Internet
to Cathy.Williams@fcc.gov.
31. Further Information. For additional information concerning the
PRA proposed information collection requirements contained in this
NPRM, contact Cathy Williams at 202-418-2918, or via the Internet to
Cathy.Williams@fcc.gov.
C. Filing Requirements
32. Ex Parte Rules. This proceeding will be treated as a ``permit-
but-disclose'' proceeding subject to the ``permit-but-disclose''
requirements under Section 1.1206(b) of the Commission's rules. Ex
parte presentations are permissible if disclosed in accordance with
Commission rules, except during the Sunshine Agenda period when
presentations, ex parte or otherwise, are generally prohibited. Persons
making oral ex parte presentations are reminded that a memorandum
summarizing a presentation must contain a summary of the substance of
the presentation and not merely a listing of the subjects discussed.
More than a one- or two-sentence description of the views and arguments
presented is generally required. Additional rules pertaining to oral
and written presentations are set forth in Section 1.1206(b).
33. Comments. Pursuant to Sections 1.415 and 1.419 of the
Commission's rules, 47 CFR 1.415, 1.419, interested parties may file
comments on or before the date indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (``ECFS'') or by filing paper copies. See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121
(1998). To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format),
send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). We find
that the five-day comment period provided herein is the maximum
possible opportunity for public comment that we can provide and still
fulfill our statutory mandate to take such actions as are necessary or
appropriate to implement the DTV
[[Page 8895]]
Delay Act and accomplish its purposes within 30 days of the Act's
enactment; therefore, we find good cause to waive the requirement for
Reply Comments established in our rules.
34. Comments filed through ECFS can be sent as an electronic file
via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally,
only one copy of an electronic submission must be filed. In completing
the transmittal screen, commenters should include their full name, U.S.
Postal mailing address, and the applicable docket number. Parties may
also submit an electronic comment by Internet e-mail. To get filing
instructions for e-mail comments, commenters should send an e-mail to
ecfs@fcc.gov, and should include the following words in the body of the
message: ``get form .'' A sample form and
directions will be sent in reply.
35. Parties who choose to file by paper must file an original and
four copies of each filing. Filings can be sent by hand or messenger
delivery, by commercial overnight courier, or by first-class or
overnight U.S. Postal Service (although we continue to experience
delays in receiving U.S. Postal Service mail). The Commission's
contractor, Natek, Inc., 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. 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. U.S. Postal
Service first-class mail, Express Mail, and Priority Mail, should be
addressed to 445 12th Street, SW., Washington, DC 20554. All filings
must be addressed to the Commission's Secretary: Office of the
Secretary, Federal Communications Commission.
36. Availability of Documents. Comments, reply comments, and ex
parte submissions will be available for public inspection during
regular business hours in the FCC Reference Center, Federal
Communications Commission, 445 12th Street, SW., CY-A257, Washington,
DC 20554. Persons with disabilities who need assistance in the FCC
Reference Center may contact Bill Cline at (202) 418-0267 (voice),
(202) 418-7365 (TTY), or bill.cline@fcc.gov. These documents also will
be available from the Commission's Electronic Comment Filing System.
Documents are available electronically in ASCII, Word 97, and Adobe
Acrobat. Copies of filings in this proceeding may be obtained from Best
Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-
B402, Washington, DC 20554; they can also be reached by telephone, at
(202) 488-5300 or (800) 378-3160; by e-mail at fcc@bcpiweb.com; or via
their Web site at http://www.bcpiweb.com. To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an e-mail to fcc504@fcc.gov or
call the Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
[FR Doc. E9-4257 Filed 2-25-09; 11:15 am]
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