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Congress Enacts Legislation Extending DTV Transition Deadline; FCC Announces Procedures For Stations Wishing To Terminate Analog Service on February 17.

February 5 , 2009
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As expected, Congress yesterday passed legislation that extends the deadline for broadcast stations to terminate analog service from February 17 until June 12. Cognizant of concerns raised by broadcasters regarding the cost of continuing to transmit in both analog and digital for four additional months, the statute allows stations to terminate their analog service before June 12 in accordance with procedures established by the FCC. The FCC has issued a Public Notice spelling out what procedures stations are to follow, as described below. The upshot of the actions taken by Congress and the FCC is that many stations, while no longer required to terminate analog broadcasts on February 17, will be able to do so upon compliance with certain notice conditions (including notice to cable operators).

Stations intending to terminate analog service on February 17:

Specifically, the FCC is waiving various provisions of its rules so as to allow stations to terminate analog broadcasts on February 17 if they comply with the following conditions.

First, stations wishing to terminate their analog service as of 11:59 pm February 17 may only operate a digital facility approved for “pre-transition” service (which may or may not be the same facility on which they are authorized to operate after June 12). If the station wishes to operate on a different, post-transition facility before June 12, it will need approval from the FCC as described below

Second, stations must notify the FCC no later than 11:59 pm (EST) on Monday, February 9, 2009 of their intent to terminate analog service on February 17 and update their Form 387 (“Transition Status Report”). Stations must comply with this condition even if they previously have given the FCC notice of their intent to terminate on February 17.

Third, stations must broadcast, prior to February 17, the equivalent of 30 days worth of “viewer notifications” (i.e., 120 notices, including 30 in prime time) regarding the station’s intention to terminate analog service on February 17, notwithstanding Congress’ extension of the deadline. These notices can be provided through a combination of public service announcements and, if technically feasible, on-screen crawls and must specifically reference the fact that the station is terminating prior to the new nationwide deadline of June 12.

Fourth, if technically feasible, stations intending to terminate analog service on February 17 also are required to broadcast an on-screen crawl regarding the scheduled termination during the seven day period from February 10 through the termination on February 17. From February 10 through February 15, this crawl must be aired for five minutes of every hour of the station’s analog broadcast day; for the final two days (February 16 and February 17), the crawl must be run for ten minutes of every hour of the station’s analog broadcast day. The Public Notice specifies in some detail the properties of the crawls (i.e., how they are to be displayed and what information they are to convey).

Fifth, stations that lack the technical capability to run such crawls will be required to air information about the station’s intent to terminate analog service on February 17 in an “alternative format” for a comparable duration. For example, the station may air additional PSAs to satisfy this requirement.

The FCC noted that if several stations in a state or market decide to go forward with plans to terminate analog service on February 17, they are permitted and encouraged to collaborate on notifying viewers. In addition, stations intending to terminate on February 17 are directed to notify the cable systems, DBS providers and other multichannel video programming distributors (MVPDs) that carry their signals. Stations that intend to take advantage of the extension of the deadline and continue their analog service past February 17 are encouraged to communicate that information to the relevant MVPDs as well.

The FCC also is urging those stations that comply with the above conditions and terminate analog service on February 17 to continue to operate their analog signal for at least two weeks in order to broadcast information concerning their transition and, if necessary, emergency information. If a station intends to comply with this suggestion, it should so indicate in the notice provided to the FCC by the end of the day on February 9.

While the FCC is generally allowing stations to terminate analog service on February 17 despite the extension of the national deadline, there may be circumstances where the FCC will affirmatively act to prevent such termination of service. For example, if the FCC concludes that all or most of the stations in a market intend to terminate analog service on February 17 and that the market is one in which many viewers are unprepared for the transition, the FCC may require additional information from the stations to explain and justify how terminating service on February 17 advances the public interest. Such additional information can include economic, technical, contractual and other business reasons that support termination as of February 17. In light of the foregoing, the FCC is urging stations to consider particular market circumstances (such as coupon request and redemption rates in their markets) in deciding whether to terminate analog service on February 17.

Finally, any station that gives the FCC notice by Monday, February 9 that it intends to terminate analog service on February 17 is prohibited from changing its mind and continuing to operate its analog service after that date, except in the event of emergency or disaster necessitating continued operation of analog service. Stations giving notice of their intent to terminate analog service on February 17 will no longer have their analog service protected from interference after that date.

Stations intending to terminate analog service after February 17 but before June 12:

In addition to specifying the procedures for stations to terminate analog service on February 17, the FCC’s Public Notice also addresses the procedures to be followed by stations that continue their analog service after that date but that intend to terminate such service before the new national deadline of June 12.

First, as noted above, stations terminating before June 12 must be operating a digital facility that is approved for “pre-transition” service. In order to operate a different, post-transition facility prior to June 12, a station must apply for and receive Special Temporary Authority from the FCC, based on a showing that the station will not cause impermissible interference to any authorized analog or pre-transition digital stations; will maintain, at minimum, the station’s current digital service; and will commence full authorized operations on the transition deadline.

Second, stations will be permitted to terminate analog service after February 17 but before June 12 only if they follow the FCC’s existing early termination procedures. Under these procedures, stations will not be permitted to terminate analog service between February 18 and March 13. A station may terminate its analog service without express FCC approval during the 90 day period preceding June 12 (i.e., the period running from March 14 to June 11) if the station gives 30 days notice of the specific termination date to the FCC and provides the required 30 days notice (four times daily) to its viewers.

Stations that previously notified FCC of intent to terminate analog service before February 17:

Finally, the FCC clarified that stations that already have terminated their analog service (pursuant to the rules in place at the time) can ask for permission to resume analog broadcasting in light of the new deadline. And stations that have notified the FCC of their intent to shut down service prior to February 17 but that have not yet done so (e.g., a station that gave notice of its intent to shut down analog service as of February 14), must confirm to the FCC by Monday February 9, 2009 whether they intend to terminate their analog service as originally noticed or if they intend to remain operational beyond that date.

We note that cable operators and others continue to be subject to “consumer education” obligations regarding the DTV transition. The FCC has not yet addressed how the monthly billing notices that operators are required to give their subscribers should be changed in light of the new deadline and procedures for broadcasters to terminate analog service. We will update you as soon as we have additional information on this issue.

Please call us with any questions regarding this matter.