[Federal Register Volume 76, Number 144 (Wednesday, July 27, 2011)]
[Rules and Regulations]
[Pages 44821-44829]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-18742]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 74
[MB Docket No. 03-185; FCC 11-110]
Digital Low Power Television, Television Translator, and
Television Booster Stations and To Amend Rules for Digital Class A
Television Stations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In the Second Report and Order, the Commission takes steps to
resolve the remaining issues in this proceeding in order to allow a
timely and successful completion of the low power television digital
transition. Although Congress established a hard deadline of June 12,
2009 for full power stations to cease analog operations and begin
operating only in digital, the statutory deadline did not apply to low
power television stations. Therefore, while all full power television
stations have ceased over-the-air analog broadcasting, many low power
television stations are continuing to transmit analog signals.
DATES: Effective August 26, 2011, except for the amendment to 47 CFR
73.624(g), which contains information collection requirements that have
not been approved by the Office of Management and Budget (``OMB''). The
Federal Communications Commission will publish a separate document in
the Federal Register announcing the effective date.
FOR FURTHER INFORMATION CONTACT: Shaun Maher, Shan.Maher@fcc.gov of the
Media Bureau, Video Division, (202) 418-1600. For additional
information concerning the information collection requirement contained
in this Second Report and Order, contact the Office of Managing
Director (``OMD''), Performance Evaluation & Records Management
(``PERM''), Cathy Williams, Cathy.Williams@fcc.gov, at 202-418-2918.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second
Report and Order, FCC 11-110, adopted on July 15, 2011, and released on
July 15, 2011. The full text of the Second Report and Order is
available for inspection and copying during regular business hours in
the FCC Reference Center, 445 Twelfth Street, SW., Room CY-A257,
Portals II, Washington, DC 20554, and may also be purchased from the
Commission's copy contractor, BCPI, Inc., Portals II, 445 Twelfth
Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact
BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-
3160. This document is available in alternative formats (computer
diskette, large print, audio record, and Braille). Persons with
disabilities who need documents in these formats may contact the FCC by
e-mail: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.
Executive Summary
In the Second Report and Order, the Commission takes steps to
resolve the remaining issues in this proceeding in order to allow a
timely and successful completion of the low power television digital
transition. Specifically, in order to ensure a timely and successful
completion to the low power television digital transition, the
Commission takes the following steps: (1) Adopts a hard deadline of
September 1, 2015 for the termination of all analog low power
television facilities; (2) establishes rules permitting those stations
needing additional time to complete their digital transition to obtain
a ``last minute'' extension; (3) requires existing analog and digital
low power television stations in the 700 MHz band (channels 52-69) to
submit displacement applications by September 1, 2011, and to cease
operations in the 700 MHz band by December 31, 2011; (4) increases the
power limits for VHF low power television channels to 3 kilowatts (the
current analog power limit); (5) delegates to the Media Bureau the
[[Page 44822]]
authority to establish timeframes and procedures for stations that have
not already converted to notify the Commission of their conversion
plans; (6) widens the class of low power television broadcasters
subject to the Commission's ancillary and supplementary fee rules; (7)
modifies the Commission's minor change rule so that it covers a
proposed change in a low power television station's transmitter site of
up to 30 miles (48 kilometers) from the reference coordinates of the
station's transmitting antenna; (8) revises the vertical antenna
patterns used in the prediction methodology for the low power
television services; and (9) allow low power television stations to use
the emission mask used by full power television stations.
Paperwork Reduction Act of 1995 Analysis
The Second Report and Order adopts revised information collection
requirements subject to the Paperwork Reduction Act of 1995 (``PRA''),
Public Law 104-13 (44 U.S.C. 3501 through 3520) pertaining to DTV
transition related issues. Specifically, the Second Report and Order
will: (1) Require all low power television stations with facilities on
channels 52-59 to submit a digital displacement application proposing
an in-core channel (channels 2-51 excluding channel 37) not later than
September 1, 2011; \1\ (2) require all low power television stations to
provide notice of their upcoming digital transition to their viewers;
\2\ (3) require low power television stations that have not taken steps
to convert to digital by a date certain to submit a notification of
their conversion plan; \3\ (4) require Class A TV station licensees to
file a license application (FCC Form 302-CA) for either the ``flash
cut'' channel on which they are now operating in analog or the digital
companion channel they choose to retain for post-transition operations
and certify therein that their proposed facilities meet all Class A
interference protection requirements; \4\ (5) require permittees of low
power television stations operating pursuant to a digital STA to file
the annual ancillary and supplementary services report; \5\ and (6)
permit applicants and permittees in the low power television service to
submit actual vertical pattern relative field values as part of their
applications (FCC Form 346 and 301-CA) on a voluntary basis.\6\
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\1\ The Commission received preapproval from OMB for this
requirement. See OMB Control No. 3060-0016.
\2\ The Commission received preapproval from OMB for this
requirement. See OMB Control No. 3060-1086.
\3\ The Commission will seek approval for OMB for this
requirement and will publish a separate document in the Federal
Register announcing the effective date.
\4\ The Commission has approval from OMB for FCC Form 302-CA.
See OMB Control No. 3060-0928. The Commission also received
preapproval for this requirement as it pertains to 47 CFR
73.3572(h). See OMB Control Number 3060-0932.
\5\ The Commission will seek OMB approval for this requirement
and will publish a separate document in the Federal Register
announcing the effective date.
\6\ The Commission received preapproval from OMB for this
collection. See OMB Control Numbers 3060-0016 and 3060-0932.
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In addition, the Commission notes that pursuant to the Small
Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we previously sought specific comment on how the
Commission might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
Synopsis
The Second Report and Order adopts a hard deadline of September 1,
2015 for the termination of all analog low power television facilities.
In adopting this deadline, the Commission took into account all of the
factors outlined in the Further Notice of Proposed Rulemaking
(FNPRM),\7\ as well as the wide variety of comments provided in this
proceeding. In summary, the principal obstacle to establishing a hard
deadline for the low power television digital transition--the need to
wait for passage of the full power transition deadline in order to
increase the number of viewers ready to receive a digital signal--has
now been eliminated. Completion of the full power television digital
transition on June 12, 2009,\8\ created an incentive for television
viewers to transition to digital service (either through a digital
receiver or analog converter) in order to be able to continue viewing
full power television stations over the air. Furthermore, adoption of
the September 1, 2015 date allows low power stations to avoid having to
transition to a digital channel and then transition a second time as a
result of the spectrum innovation proposals set forth the National
Broadband Plan.\9\ The September 15, 2015 deadline will also be farther
removed from the prolonged economic downturn, which began in late 2007,
and will provide more time for operators to secure the necessary
funding. Additionally, a deadline four years in the future will give
these low power television stations time to determine the best location
for their digital operation, prepare and file an application, obtain a
grant of their construction permit, order equipment, hire an
installation crew, complete installation, conduct testing, and carry
out other necessary steps toward the transition. Finally, adopting a
transition date of September 1, 2015 will allow low power television
stations to have a better understanding of the overall spectrum
landscape when determining their final transition plans, while also
ensuring a date by which analog spectrum must be put to a more
efficient digital use.
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\7\ 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, FNPRM, 25 FCC Rcd 13833, 13837
(2010) (``FNPRM'').
\8\ See DTV Delay Act. Pub. L. 111-4, 123 Stat. 112 (2009)
(``DTV Delay Act''); Digital Television and Public Safety Act of
2005 (``DTV Act''), which is Title III of the Deficit Reduction Act
of 2005, Pub. L. 109-171, 120 Stat. 4 (2006) (codified at 47 U.S.C.
309(j)(14) and 337(e)). DTV Act Section 3002(a) amended Section
309(j)(14) of the Communications Act to establish February 17, 2009
as the original hard deadline for the end of analog transmissions by
full power stations. 47 U.S.C. 309(j)(14)(A). The DTV Delay Act
extended the DTV transition date from February 17, 2009 to June 12,
2009.
\9\ See Connecting America: The National Broadband Plan at 94
(March 2010); available at http://broadband.gov/plan/.
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The Second Report and Order also extends all outstanding low power
television digital construction permits to September 1, 2015, while
dismissing as moot all pending extension applications. Those stations
that diligently pursue completion of their digital facilities, but
nevertheless face unexpected delays in the months leading up to the
September 1, 2015 deadline, will be permitted to submit a ``last
minute'' extension application no later than May 1, 2015 pursuant to 47
CFR 74.788(c) and receive one last six-month extension of their digital
construction permit to March 1, 2016. After May 1, 2015, stations will
no longer be permitted to seek extensions of their digital construction
permits pursuant to 47 CFR 74.788, but will be subject to the stricter
tolling provisions in 47 CFR 73.3598. Although the extension provisions
of 47 CFR 74.788 provide greater flexibility, the public interest in
bringing the low power television transition to a timely conclusion
outweighs the need to accommodate permittees who are unable to secure
extensions under the tolling provisions in 47 CFR 73.3598.
The Second Report and Order provides that the Commission will
endeavor to continue its efforts to educate consumers and notify the
public of the September 1, 2015 low power television digital
transition. However, given the amount of lead time,
[[Page 44823]]
the Commission concludes that it is not necessary to specify the form
and extent of our consumer education at this time. However, the
Commission shall continue its education and efforts guided by our
experience from the full power DTV transition, completed on June 12,
2009, as a guide as to how best to educate consumers about the
forthcoming low power change to digital.
The Second Report and Order requires low power stations on the
``out-of-core'' channels (channels 52-69) to transition to an in-core
digital channel at an earlier date--December 31, 2011. The Second
Report and Order finds that low power television stations have had
sufficient notice that they would be required to clear the 700 MHz band
and that the continued successful development of new commercial
wireless and public safety facilities in the 700 MHz band will be
greatly facilitated by requiring that all remaining analog and digital
low power television stations be cleared from these channels by this
date.
The Second Report and Order also requires all low power stations
with facilities on channels 52-69 to submit a digital displacement
application proposing an in-core channel (channels 2-51 excluding
channel 37) not later than September 1, 2011. The Commission believes
that September 1, 2011 provides time for those remaining low power
television stations to identify a feasible in-core channel for
permanent use, and to prepare and file a displacement application,
considering the prior notice they have received. Those remaining low
power television stations that are unable to identify a workable in-
core channel and submit a digital displacement application by September
1, 2011 will be required to cease operations altogether by December 31,
2011. In addition, any outstanding construction permit (analog or
digital) for an out-of-core channel will be rescinded on December 31,
2011, and any pending application (analog or digital) for an out-of-
core channel will be dismissed on December 31, 2011 if the permittee
has not submitted a digital displacement application by the September
1, 2011 deadline.
In order to facilitate clearance of the 700 MHz band, the Second
Report and Order extends the notification and termination provisions
contained in 47 CFR 74.703(g) to analog LPTV and TV translator
facilities in the 700 MHz band. These provisions provide procedures for
a primary wireless licensee in the 700 MHz band to notify affected
digital LPTV and TV translator stations of its intent to initiate or
change operations and for the digital LPTV or TV translator station to
vacate the band. Upon receipt of such notice, the digital low power
television station must cease operation of any interference-causing
facility within 120 days, unless it obtains the agreement of the
primary licensee to continue operations. This adoption will enable 700
MHz licensees to obtain rapid access to their licensed spectrum.
The Second Report and Order modifies the Commission's rules to
permit low power stations operating on VHF channels 2-13 to operate
with up to 3 kilowatts of power, which is the maximum power such
stations are permitted to operate within analog. Currently the power
limit for low power VHF channels is 300 watts, whereas for UHF channels
it is 15 kilowatts.\10\ As a result of the full power digital
television transition, some full power stations on VHF channels have
experienced reception problems and such problems have not been
alleviated even by allowing these stations to operate with the maximum
power permitted under the full power television rules. We expect that
the same or even worse problems may arise when low power television
stations operating on VHF channels convert to digital given the fact
that low power stations operate with considerably less power than full
power stations. At 3 kilowatts of power, low power television stations
on UHF channels should be able to continue to provide coverage to their
community of license without problems.
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\10\ 47 CFR 74.735.
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The Second Report and Order dismisses all applications for new
analog low power television facilities that remain pending after the
May 24, 2010 deadline to amend to specify digital facilities. The staff
notified all pending applicants for new analog low power facilities
that they must amend their pending applications to specify digital
operations by May 24, 2010, and that the staff would not process those
analog applications that were not amended by the deadline.
The Second Report and Order adopts procedures for the surrender of
channels. Stations that have not already taken steps to convert will be
required to notify the Commission not later than 30 days before the
September 1, 2015 transition date of their decision to either: (1)
``Flash cut'' their existing analog facilities to digital (at which
time their analog license will be replaced by a new digital license) or
(2) surrender their analog station license and continue operating their
digital companion channel. Stations that have already completed their
digital conversion are not required to submit a notification. The Media
Bureau is delegated authority to determine the timetable and procedures
for these notifications.
The Second Report and Order adopts a policy whereby, if an entity
holds a construction permit for an unbuilt analog and unbuilt digital
companion channel, and the analog permit expires and is forfeited, the
digital construction permit also shall be forfeited notwithstanding the
later expiration date on the digital construction permit. The
Commission believes that adoption of this policy is necessary to ensure
that low power television stations complete construction of their
proposed facilities in a timely fashion and to ensure the efficient use
of valuable television spectrum. Otherwise, an entity that obtained an
analog construction permit with a three-year construction period could
effectively extend the duration of that permit by obtaining a
corresponding digital construction permit with a deadline beyond the
one on its underlying analog permit. Furthermore, the Commission
continues to believe that this approach is consistent with our
established policy that analog and digital authorizations are part of
single, unified authorization.
The Second Report and Order requires all stations in the low power
television services to notify their viewers of their transition to
digital operations. LPTV stations with the technical capability to
locally originate programming must provide on-air notification to their
viewers at a time when the highest number of viewers is watching, while
all others may choose another means of notification such as local
publication in a newspaper. In all cases, the actual format and time-
frame of viewer notifications is left to the discretion of the
stations.
The Second Report and Order adopts procedures to enable Class A
stations to choose to either ``flash cut'' to digital on their analog
channel or to operate on their digital companion channel, while
allowing Class A stations to preserve their primary, protected status
for the channel they choose to retain for digital operations. The
Commission concludes that it is in the public interest to provide Class
A stations a method to select their digital channels because it will
give them the opportunity to evaluate the market situation and make a
determination as to which channel number, their analog channel or their
digital companion channel, will provide the best, interference-free
digital service to the public. Class A stations choosing to pursue a
flash-cut conversion and Class A stations choosing to transfer
[[Page 44824]]
their primary status from their analog channel to their digital
companion channel will be required to file FCC Form 302-CA (Application
for Class A Television Broadcast Station Construction Permit or
License) and certify that their digital companion channel facilities
meet all Class A interference protection and eligibility requirements.
The Second Report and Order expands the requirements of the
Commission's ancillary and supplementary rules to low power television
permittees operating pursuant to STA. To ensure compliance with the
mandate of Section 336(e) of the Communications Act,\11\ that the
public recover a portion of the value of the public spectrum resource
made available for commercial use, as well as to avoid unjust
enrichment of broadcasters that use that resource, we conclude that low
power television permittees operating pursuant to an STA also should be
subject to this rule. Therefore, low power television permittees
operating pursuant to an STA will be required to file the annual
Ancillary and Supplementary Services Report (FCC Form 317) beginning
December 1, 2011, and will be required to pay a fee of five percent of
the gross revenues of any ancillary and supplementary services they
provide.
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\11\ 47 U.S.C. 336(e).
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The Second Report and Order expands the so-called ``30-mile'' rule
to modification applications filed in the low power television
services. This change means that any digital low power television
modification application that proposes a change in transmitter site of
greater than 30 miles (48 kilometers) from the reference coordinates of
the existing station's community of license, as provided in 47 CFR
76.53, will be considered a ``major change'' proposal. Outside of the
digital low power television displacement application context, low
power television stations can currently file any modification
application (both analog and digital) as a ``minor change'' as long as
there is contour overlap between the proposal and the station's
existing facilities. There is no limitation as to how far a station may
relocate its transmitter site, as long as some contour overlap is
demonstrated. Therefore, a station is able to frustrate the intent of
the minor change rule by proposing a modified facility that is a
substantial distance from the station's existing location while showing
only a very slight amount of contour overlap. Viewers of such a
station, who have come to rely on its service, may be left behind.
Furthermore, because low power television minor change applications are
not subject to a filing fee, stations are able to avoid paying an
application filing fee when they seek consent to make these changes.
Therefore, the Commission believes that expansion of the 30-mile rule
to all modification applications (not just displacement applications)
is necessary to enforce the original intent of the minor change rule.
The Second Report and Order revises the Commission's rules to allow
the acceptance of actual vertical pattern relative field values from
applicants and permittees in the low power television service on a
voluntary basis. The Commission concludes that by incorporating the
actual vertical antenna patterns into its interference analysis, the
Commission will achieve a more realistic determination of the service
areas of these stations and their potential for interfering with other
stations, as well as more accurate determinations of application mutual
exclusivity. For applicants and permittees that choose not to submit
their actual vertical patterns, the Commission will instead use the
assumed vertical patterns set forth in 47 CFR 74.793(d).
Finally, the Second Report and Order adopts rules allowing use of
full-power DTV emission masks by low power television stations in order
to provide more flexibility for low power television stations to secure
channels. The Commission concludes that its current approach, using the
two different emission masks that are part of the low power television
rules, needlessly limits these stations from identifying a workable
channel, and that use of the full power television DTV emission mask
may be the preferable approach for some low power television stations.
Final Regulatory Flexibility Act Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(``RFA'') \12\ an Initial Regulatory Flexibility Analysis (``IRFA'')
was included in the Further Notice of Proposed Rulemaking (FNPRM) in
this proceeding.\13\ Written public comments were requested on the
IRFA. This present Final Regulatory Flexibility Analysis.\14\
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\12\ 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).
\13\ See FNPRM, 25 FCC Rcd 13833.
\14\ See 5 U.S.C. 604.
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A. Need for and Objectives of the Proposed Rules
In the Second Report and Order, the Commission adopts rules to
facilitate the low power television digital transition. The Commission
takes the following steps as more fully described below: Adopted a
September 1, 2015 analog shutoff date for low power television
stations; adopted a December 31, 2011 transition date for low power
television stations on TV channels 52-69 (the so-called ``out-of-core''
channels); adopted procedures for stations that have not already
completed their transition to notify the Commission of their final
digital channel; made low power television permittees subject to the
Commission's ancillary and supplementary fee rules; modified the
Commission's minor change rule so that it covers a proposed change in a
low power television station's transmitter site of up to 30 miles (48
kilometers) from the reference coordinates of the station's
transmitting antenna; revised the vertical antenna patterns used in the
prediction methodology for the low power television services; and
allowed low power television stations to use the emission mask used by
full power television stations.
The Second Report and Order establishes an analog shutoff date of
September 1, 2015 for low power TV, TV translator and Class A TV
stations, giving these stations the flexibility of four additional
years to convert to digital, i.e., analog station licenses would
terminate at that time and analog construction permits would have to be
modified for digital operations.
The Second Report and Order established a date of December 31,
2011, by which all existing analog and digital low power television
stations on channels 52-69 (the so-called ``out of core'' channels)
must terminate operations on their out-of-core channel and requires
that those stations that have not already done so must file an
application for an in-core channel 2-51 by September 1, 2011.
The Second Report and Order increases to 3 kilowatts the maximum
amount of power that low power stations operating on VHF channels may
specify.
The Second Report and Order delegates to the Media Bureau the
authority to establish timeframes and procedures for stations that have
not already transitioned to notify the Commission as to their final
digital channel selection.
The Second Report and Order mandates that stations with the
[[Page 44825]]
technical ability to locally-originate programming provide some type of
notification to their viewers prior to ceasing analog operations and
transitioning to digital while leaving the format and timeframe for
such notification to the station's discretion.
The Second Report and Order makes low power television station
permittees subject to the Commission's ancillary and supplementary fee
rules.
The Second Report and Order changes the Commission's minor change
rule to limit transmitter site changes in minor change applications to
no more than 30 miles (48 kilometers) from the reference coordinates of
the existing station's transmitting antenna.
The Second Report and Order changes the Commission's rules to allow
low power television stations to use the emission mask used by full
power television stations.
Finally, the Second Report and Order revises the vertical patterns
used in the temporary interference prediction methodology for the low
power television services that the FCC adopted in its 2004 Digital LPTV
Order.
B. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
There were no comments received in response to the IRFA.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
Television Broadcasting The SBA defines a television broadcasting
station as a small business if such station has no more than $14.0
million in annual receipts.\15\ Business concerns included in this
industry are those ``primarily engaged in broadcasting images together
with sound.'' \16\ The Commission has estimated the number of licensed
commercial television stations to be 1,390.\17\ According to Commission
staff review of the BIA Kelsey Inc. Media Access Pro Television
Database (BIA) as of January 31, 2011, 1,006 (or about 78 percent) of
an estimated 1,298 commercial television stations \18\ in the United
States have revenues of $14 million or less and, thus, qualify as small
entities under the SBA definition. The Commission has estimated the
number of licensed noncommercial educational (NCE) television stations
to be 391.\19\ We note, however, that, in assessing whether a business
concern qualifies as small under the above definition, business
(control) affiliations \20\ 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
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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\15\ See 13 CFR 121.201, NAICS Code 515120 (2007).
\16\ Id. 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.
\17\ See News Release, ``Broadcast Station Totals as of December
31, 2010,'' 2011 WL 484756 (F.C.C.) (dated Feb. 11, 2011)
(``Broadcast Station Totals''); also available at http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0211/DOC-304594A1.pdf.
\18\ We recognize that this total differs slightly from that
contained in Broadcast Station Totals, supra, note 15; however, we
are using BIA's estimate for purposes of this revenue comparison.
\19\ See Broadcast Station Totals, supra, note 15.
\20\ ``[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).
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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 do not exclude any television station from the
definition of a small business on this basis and are 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.
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.\21\
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\21\ See 13 CFR 121.201, NAICS Code 515120.
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Currently, there are approximately 522 licensed Class A stations,
2,191 licensed LPTV stations, 4,527 licensed TV translators, and 11 TV
booster stations.\22\ 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 $14
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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\22\ See ``Broadcast Station Totals as of December 31, 2010,''
News Release, February 11, 2011.
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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 do not exclude any television station from the
definition of a small business on this basis and are 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.
Radio and Television Broadcasting and Wireless Communications
Equipment Manufacturing. The Census Bureau defines this category as
follows: ``This industry comprises establishments primarily engaged in
manufacturing radio and television broadcast and wireless
communications equipment. Examples of products made by these
establishments are: transmitting and receiving antennas, cable
television equipment, GPS equipment, pagers, cellular phones, mobile
communications equipment, and radio and television studio and
[[Page 44826]]
broadcasting equipment.'' \23\ The SBA has developed a small business
size standard for Radio and Television Broadcasting and Wireless
Communications Equipment Manufacturing, which is: All such firms having
750 or fewer employees. According to Census Bureau data for 2007, there
were a total of 939 establishments in this category that operated for
part or all of the entire year. Of this total, 784 had less than 500
employees and 155 had more than 100 employees.\24\ Thus, under this
size standard, the majority of firms can be considered small.
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\23\ The NAICS Code for this service 334220. See 13 CFR 121/201.
See also http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.
\24\ http://factfinder.census.gov/servlet/IBQTable?_bm=y&-fds_name=EC0700A1&-geo_id=&-_skip=300&-ds_name=EC0731SG2&-_lang=en.
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Audio and Video Equipment Manufacturing. The SBA has classified the
manufacturing of audio and video equipment under in NAICS Codes
classification scheme as an industry in which a manufacturer is small
if it has less than 750 employees.\25\ Data contained in the 2007 U.S.
Census indicate that 492 establishments operated in that industry for
part or all of that year. In that year 374 establishments had between 1
and 19 employees; 82 had between 20 and 99 employees; and 36 had more
than 100 employees. Thus, under the applicable size standard, a
majority of manufacturers of audio and visual equipment may be
considered small.
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\25\ 13 CFR 121.201, NAICS Code 334310.
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D. Description of Projected Reporting, Recordkeeping and other
Compliance
Requirements
The Second Report and Order adopts the following new reporting
requirements: (1) To require, where technically feasible, low power
television services to provide notice of their upcoming digital
transition to their viewers; (2) require low power television stations
that have not taken steps to convert to digital by a date certain to
submit a notification of their conversion plan; and (3) require
permittees of low power television stations operating pursuant to a
digital STA to file the annual ancillary and supplementary services
report. These new reporting requirements will not differently affect
small entities.
E. 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, 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.\26\
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\26\ 5 U.S.C. 603(c)(1) through (c)(4).
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The Commission's adoption of an analog shutoff date of September 1,
2015 will minimize impact on small entities by allowing them four
additional years from the full power television transition that
occurred on June 12, 2009, to complete their transition to digital.
Adoption of an earlier low power transition date was rejected as it was
felt that many small entities would not be ready to transition any
sooner and would be forced off the air.
With respect to the adoption of extending all outstanding low power
television station digital construction permits to September 1, 2015,
this adoption will minimize the impact on small entities as it will
provide them with additional time to complete construction of their
digital facilities. Requiring that these outstanding construction
permits expire pursuant to their original construction deadlines, prior
to the September 1, 2015 low power digital transition deadline, was
rejected as digital operations is not required until September 1, 2015.
The Commission felt that many small entities may be forced to abandon
digital construction and subsequently forced off the air should they
unnecessarily be forced to complete construction prior to September 1,
2015, pursuant to their original digital construction permits.
The Commission's dismissal as moot of all pending low power
television station digital construction permit extension applications
will minimize the impact on small entitles as these stations will no
longer have to use resources to pursue these applications. Small
entities will still receive the benefit of an extension as all
outstanding low power television station digital construction permits
have been extended until September 1, 2015. The Commission rejected
maintaining these extension applications as these applications are moot
and would unnecessarily force small entities to expend resources to
continue to pursue them.
With regards to the adoption of the ``last minute'' extensions for
low power stations who demonstrate that they meet the criteria pursuant
to 47 CFR 74.788(c), this adoption will minimize the impact on
qualified small entities as these small entities will be given one last
six-month extension to complete construction of their digital
facilities. The Commission rejected disallowing a ``last minute''
extension for qualified low power stations because without the ``last
minute'' extension, small entities may be forced to abandon
construction and to go off the air due to unexpected delays in the
months leading up to the September 1, 2015 transition date.
Concerning the Commission's adoption of the hard deadline of May 1,
2015, after which low power stations must meet the stricter tolling
criteria established in 47 CFR 73.3598 of the rules, to apply for a
``last minute'' extension pursuant to the criteria set forth in Sec.
74.788(c) of the rules,\27\ the Commission found that the burden on
small entities is justified. The Commission determined that the burden
of requiring small entities to meet the stricter tolling criteria
established in 47 CFR 73.3598 after May 1, 2015 is outweighed by the
public interest in bringing the low power digital transition to a
successful and timely conclusion and by the ample time low power
stations will have had to complete their transition to digital.
---------------------------------------------------------------------------
\27\ 47 CFR 74.788(c).
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With respect to requiring stations on out-of-core channels to
transition at an earlier date--on December 31, 2011, the Commission
found that the burden on small entities of adopting this earlier
deadline is more than outweighed by the need to clear out-of-core
channels for new uses by commercial wireless (including mobile
broadband) and public safety entities. The Commission determined that
adoption of a later transition date for low power television stations
on these channels would delay progress on clearing these channels.
With regards to requiring all out-of-core low power television
stations to file a displacement application for an in-core channel by
September 1, 2011, the Commission found that this deadline is necessary
to meet the December 31, 2011 out-of-core digital transition deadline.
Furthermore, as with the December 31, 2011 transition deadline,
[[Page 44827]]
the burden on small entities to meet the September 1, 2011 out-of-core
displacement application deadline is outweighed by the need to clear
out-of-core channels for new uses by commercial wireless (including
mobile broadband) and public safety entities. Additionally, the
Commission determined that adoption of a later out-of-core displacement
application deadline would delay progress on clearing these channels.
The Commission adopted streamlined procedures for stations to
notify the Commission as to whether they intend to convert to digital
on their existing analog channel (a so-called ``flash cut'') or if they
intend to continue to operate their second digital channel and
terminate operations on their analog channel help to prevent a
significant impact on small entities. As a result of the streamlined
procedures, low power stations will not be burdened with having to
complete and file a lengthy progress report, as was required of full
power television stations, but rather will only have to file a simple
informal notification to make their final digital choice known to the
Commission.
With respect to requiring all stations in the low power television
service, which terminate their analog service after the effective date
of the rule provisions in this proceeding, to notify their viewers of
their transition to digital operations, the Commission determined that
the burden on small entities is outweighed by the public's need to be
informed of individual stations' digital transitions. The Commission,
however, eased the impact on small entities by giving those low power
stations that locally originate programming and would be required to
notify their viewers with on-air announcements, the option to notify
their viewers by some other reasonable means should compliance cause
financial hardship.
The Commission's adoption of streamlined procedures for Class A
stations to choose to either ``flash cut'' to digital on their analog
channel or to operate on their digital companion channel, while
preserving their primary, protected status on the channel they chose to
retain, will aid to prevent a significant impact on small entities. As
a result of these streamlined procedures, Class A stations will not be
burdened with filing a minor change application with the Commission to
transfer their primary protected status from their analog channel to
their desired digital channel.
With respect to subjecting low power television station permittees
to the Commission's ancillary and supplementary fee rules, the
Commission found that the burden on small entities of having to comply
with these rules is outweighed by the need to eliminate ambiguity in
the rules and to provide efficient use and administration of spectrum.
The Commission did not find that there would be a significant
impact on small entities by its proposed change to its Commission's low
power television minor change rule. The change would have little impact
and any impact would affect all entities equally.
The Commission did not find that there would a significant impact
on small entities by its decision to permit stations to use the
emission mask used by full power television stations. Use would be
voluntary and any impact would affect all entities equally.
The Commission's decision to revise the vertical patterns used in
the temporary interference prediction methodology for the low power
television services would not have a significant impact on small
entities. Use of the actual vertical patterns of proposed low power
television facilities will simplify the engineering filings on FCC Form
346, making it easier for all applicants to complete the form, and thus
saving applicants time and money. Any burden from this requirement
would impact all entities equally.
F. Federal Rules Which Duplicate, Overlap, or Conflict With the
Commission's Proposals
None.
G. Report to Congress
The Commission will send a copy of the Second Report and Order,
including the FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.\28\ In addition, the Commission will send a
copy the Second Report and Order, including FRFA, to the Chief Counsel
for Advocacy of the Small Business Administration. A copy of this
Second Report and Order and FRFA (or summaries thereof) will be
published in the Federal Register.\29\
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\28\ See 5 U.S.C. 801(a)(1)(A). The Congressional Review Act is
contained in Title II, section 251, of the CWAAA, see Public Law
104-121, Title II, section 251, 110 Stat. 868.
\29\ See 5 U.S.C. 604(b).
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List of Subjects
47 CFR Part 73
Radio broadcast services.
47 CFR Part 74
Auxiliary, Experimental radio, Special broadcast and other program
distributional services.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 73 and 74 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334 and 336.
0
2. Section 73.624 is amended by revising paragraph (g) introductory
text to read as follows:
Sec. 73.624 Digital television broadcast stations.
* * * * *
(g) Commercial and noncommercial DTV licensees and permittees, and
low power television, TV translator and Class A television stations DTV
licensees and permittees, must annually remit a fee of five percent of
the gross revenues derived from all ancillary and supplementary
services, as defined by paragraph (b) of this section, which are
feeable, as defined in paragraphs (g)(2)(i) and through (ii) of this
section.
* * * * *
0
3. Section 73.3572 is amended by adding paragraph (h) to read as
follows:
Sec. 73.3572 Processing of TV broadcast, Class A TV broadcast, low
power TV, TV translators, and TV booster applications.
* * * * *
(h) Class A TV station licensees shall file a license application
for either the flash cut channel or the digital companion channel they
choose to retain for post-transition digital operations. Class A TV
stations will retain primary, protected regulatory status on their
desired post-transition digital channel. Class A TV applicants must
certify that their proposed post-transition digital facilities meet all
Class A TV interference protection requirements.
PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER
PROGRAM DISTRIBUTIONAL SERVICES
0
4. The authority citation for Part 74 is revised to read as follows:
Authority: 47 U.S.C. 154, 303, 307, 309, 336 and 554.
0
5. Section 74.731 is amended by adding paragraph (l) to read as
follows:
Sec. 74.731 Purpose and permissible service.
* * * * *
[[Page 44828]]
(l) After 11:59 pm local time on September 1, 2015, low power
television, TV translators and Class A television stations may no
longer operate any facility in analog (NTSC) mode.
0
6. Section 74.735 is amended by revising paragraph (b)(1) to read as
follows:
Sec. 74.735 Power limitations.
* * * * *
(b) * * *
(1) 3 kW for VHF channels 2-13; and
* * * * *
0
7. Section 74.786 is amended by adding paragraph (g) to read as
follows:
Sec. 74.786 Digital channel assignments.
* * * * *
(g) After 11:59 pm local time on December 31, 2011, low power
television and TV translator stations may no longer operate any analog
(NTSC) or digital facilities above Channel 51.
0
8. Section 74.787 is amended by revising paragraph (b)(1) and adding
paragraph (c) to read as follows:
Sec. 74.787 Digital licensing.
* * * * *
(b) * * *
(1) Applications for major changes in digital low power television
and television translator stations include:
(i) Any change in the frequency (output channel) not related to
displacement relief;
(ii) Any change in transmitting antenna location where the
protected contour resulting from the change does not overlap some
portion of the protected contour of the authorized facilities of the
existing station; or
(iii) Any change in transmitting antenna location of greater than
30 miles (48 kilometers) from the reference coordinates of the existing
station's antenna location.
* * * * *
(c) Not later than 11:59 pm local time on September 1, 2011, low
power television or TV translator stations operating analog (NTSC) or
digital facilities above Channel 51, that have not already done so,
must file a digital displacement application for a channel below
Channel 52 pursuant to the procedures in subsection (a)(4) of this
rule. Low power television and TV translator stations operating analog
(NTSC) or digital facilities above Channel 51 that have not submitted a
digital displacement application by 11:59 pm local time on September 1,
2011 will be required to cease operations altogether by December 31,
2011. These stations' authorization for facilities above Channel 51
shall be cancelled. Any digital displacement application submitted by a
low power television or TV translator station operating analog (NTSC)
or digital facilities above Channel 51 that is submitted after 11:59 pm
local time on September 1, 2011 will be dismissed. In addition, any
outstanding construction permit (analog or digital) for an channel
above Channel 51 will be rescinded on December 31, 2011, and any
pending application (analog or digital) for a channel above Channel 51
will be dismissed on December 31, 2011, if the permittee has not
submitted a digital displacement application by 11:59 pm local on
September 1, 2011.
0
9. Section 74.788 is amended by revising paragraphs (c)(1) and (c)(3)
and removing paragraph (c)(4); and adding paragraphs (d), (e) and (f)
to read as follows:
Sec. 74.788 Digital construction period.
* * * * *
(c) * * *
(1) For the September 1, 2015 digital construction deadline,
authority is delegated to the Chief, Media Bureau to grant an extension
of time of up to six months beyond September 1, 2015 upon demonstration
by the digital licensee or permittee that failure to meet the
construction deadline is due to circumstances that are either
unforeseeable or beyond the licensee's control where the licensee has
take all reasonable steps to resolve the problem expeditiously.
* * * * *
(3) Applications for extension of time shall be filed not later
than May 1, 2015, absent a showing of sufficient reasons for late
filing.
(d) For construction deadlines occurring after September 1, 2015,
the tolling provisions of Sec. 73.3598 of this chapter shall apply.
(e) A low power television, TV translator or Class A television
station that holds a construction permit for an unbuilt analog and
corresponding unbuilt digital station and fails to complete
construction of the analog station by the expiration date on the analog
construction permit shall forfeit both the analog and digital
construction permits notwithstanding a later expiration date on the
digital construction permit.
(f) A low power television, TV translator or Class A television
station that holds a construction permit for an unbuilt analog and
corresponding unbuilt digital station and completes construction of the
digital station by the expiration date on the analog construction
permit, begins operating and files a license application for the
digital station may forego construction of the unbuilt analog station.
0
10. Section 74.793 is amended by revising paragraphs (c) and (d) to
read as follows:
Sec. 74.793 Digital low power TV and TV translator station protection
of broadcast stations.
* * * * *
(c) The following D/U signal strength ratio (db) shall apply to the
protection of stations on the first adjacent channel. The D/U ratios
for ``Digital TV-into-analog TV'' shall apply to the protection of
Class A TV, LPTV and TV translator stations. The D/U ratios for
``Digital TV-into-digital TV'' shall apply to the protection of DTV,
digital Class A TV, digital LPTV and digital TV translator stations.
The D/U ratios correspond to the digital LPTV or TV translator
station's specified out-of-channel emission mask.
----------------------------------------------------------------------------------------------------------------
Stringent
Simple mask mask Full service mask
----------------------------------------------------------------------------------------------------------------
Digital TV-into-analog TV........... 10 0 Lower (-14)/Upper (-17)
Digital TV-into-digital TV.......... -7 -12 Lower (-28)/Upper (-26)
----------------------------------------------------------------------------------------------------------------
(d) For analysis of predicted interference from digital low power
TV and TV translator stations, the relative field strength values of
the antenna vertical radiation pattern if provided by the applicant
will be used instead of the doubled values in Table 8 in OET Bulletin
69 up to a value of 1.0.
* * * * *
0
11. Section 74.794 is amended by revising paragraph (a)(1) and by
adding paragraph (a)(2)(iii) to read as follows:
[[Page 44829]]
Sec. 74.794 Digital emissions.
(a) (1) An applicant for a digital LPTV or TV translator station
construction permit shall specify that the station will be constructed
to confine out-of-channel emissions within one of the following
emission masks: Simple, stringent or full service.
(2) * * *
(iii) Full service mask: (A) The power level of emissions on
frequencies outside the authorized channel of operation must be
attenuated no less than the following amounts below the average
transmitted power within the authorized channel. In the first 500 kHz
from the channel edge the emissions must be attenuated no less than 47
dB. More than 6 MHz from the channel edge, emissions must be attenuated
no less than 110 dB. At any frequency between 0.5 and 6 MHz from the
channel edge, emissions must be attenuated no less than the value
determined by the following formula:
Attenuation in dB = -11.5([Delta]f + 3.6);
Where:
[Delta] f = frequency difference in MHz from the edge of the
channel.
(B) This attenuation is based on a measurement bandwidth of 500
kHz. Other measurement bandwidths may be used as long as appropriate
correction factors are applied. Measurements need not be made any
closer to the band edge than one half of the resolution bandwidth of
the measuring instrument. Emissions include sidebands, spurious
emissions and radio frequency harmonics. Attenuation is to be measured
at the output terminals of the transmitter (including any filters that
may be employed). In the event of interference caused to any service,
greater attenuation may be required.
* * * * *
0
12. Section 74.798 is added to subpart G to read as follows:
Sec. 74.798 Digital television transition notices by broadcasters.
(a) Each low power television, TV translator and Class A television
station licensee or permittee must air an educational campaign about
the transition from analog broadcasting to digital television (DTV).
(b) Stations that have already terminated analog service and begun
operating in digital prior to effective date of this rule shall not be
subject to this requirement.
(c) Stations with the technical ability to locally-originate
programming must air viewer notifications at a time when the highest
number of viewers is watching. Stations have the discretion as to the
form of these notifications.
(d) Stations that lack the technical ability to locally-originate
programming, or find that airing of viewer notifications would pose
some sort of a hardship, may notify their viewers by some other
reasonable means, e.g. publication of a notification in a local
newspaper. Stations have discretion as to the format and time-frame of
such local notification.
[FR Doc. 2011-18742 Filed 7-26-11; 8:45 am]
BILLING CODE 6712-01-P