Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 15, 73 and 76

[MB Docket No. 07-91; FCC 07-228]

Third Periodic Review of the Commission's Rules and Policies Affecting the Conversion to Digital Television

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

This document issues the final rules in the third periodic review of the transition of the nation's broadcast television system from analog to digital television. It provides a progress report on the DTV transition and issues the procedures and rule changes necessary to ensure that broadcasters timely complete their transitions. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals, and may no longer transmit analog signals. The rules in this document establish deadlines for broadcasters to complete construction of their final, post-transition (digital) facilities.

DATES:

Effective January 30, 2008, except for Sections 73.682(d), 73.8000(b)(2) and (4), and 73.9000(k), which are effective May 29, 2008 and, except for the following sections which contain information collection requirements that have not been approved by OMB: Sections 73.624(g) and 73.1201(b). The Commission will publish a document in the

Federal Register

announcing the effective date for these sections. The incorporation by reference of certain publications listed in Sections 73.616(e)(1) and 73.8000(d) is approved by the Director of the Federal Register, as of January 30, 2008. The incorporation by reference of certain publications listed in Sections 73.682(d), 73.8000(b)(2) and (4), and 73.9000(k), is approved by the Director of the Federal Register, as of May 29, 2008.

ADDRESSES:

Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. In addition to filing comments with the Office of the Secretary, a copy of any comments on the Paperwork Reduction Act information collection requirements contained herein should be submitted to Cathy Williams, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554, or via the Internet to

PRA@fcc.gov.

FOR FURTHER INFORMATION CONTACT:

For additional information on this proceeding, please contact Evan Baranoff,

Evan.Baranoff@fcc.gov,

Eloise Gore,

Eloise.Gore@fcc.gov,

Kim Matthews,

Kim.Matthews@fcc.gov,

or Maureen McCarthy,

Maureen.McCarthy@fcc.gov

of the Media Bureau, Policy Division, (202) 418-2120; John Gabrysch,

John.Gabrysch@fcc.gov,

or Gordon Godfrey,

Gordon.Godfrey@fcc.gov,

of the Engineering Division, Media Bureau at (202) 418-7000; or Shaun Maher,

Shaun.Maher@fcc.gov,

or Nazifa Sawez,

Nazifa.Sawez@fcc.gov,

of the Media Bureau, Video Division, (202) 418-1600.

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

Report and Order

, FCC 07-228, adopted on December 22, 2007, and released on December 31, 2007. 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).

Final Paperwork Reduction Act (“PRA”) Analysis

This Report and Order has been analyzed with respect to the Paperwork Reduction Act of 1995 (“PRA”), and contains new and modified information collection requirements for full-power television broadcast stations, including the following: (1) Stations must file forms no later than February 18, 2008 detailing their transition plans and status (using FCC Form 387) and must update this form as events warrant and by October 20, 2008 if they have not completed construction; (2) Stations without a construction permit for their final, post-transition (DTV) facility must file an application to construct or modify that facility (using FCC Forms 301 and 340), stations without a license for their final, post-transition (DTV) facility must file an application for a license to cover that facility (using FCC Form 302 DTV), and stations may request authority to transition early to their post-transition channel (also using FCC Forms 301 and 340); (3) Stations with a construction deadline on or before February 17, 2009 may file a request for an extension of time to construct their final, post-transition (DTV) facility (using FCC Form 337); (4) Stations with a construction deadline occurring February 18, 2009 or later may file a notification of an event that would toll their deadline to construct their final, post-transition (DTV) facility (using FCC Informal Application Form); (5) Stations may file a request for STA approval to temporarily remain on their in-core pre-transition DTV channel after the transition date (using FCC Informal Application Form); (6) Stations may file a request for STA approval to build less than full, authorized post-transition facility by the transition date (using FCC Informal Application Form); (7) Stations may file a notification pursuant to section 73.1615 to temporarily reduce or cease existing analog or pre-transition DTV service where necessary to facilitate construction of final, post-transition facilities (using FCC Informal Application Form); (8) Stations may file a request for STA approval to permanently reduce or terminate analog or pre-transition DTV service where necessary to facilitate construction of final, post-transition facilities (using FCC Informal Application Form); (9) Stations may file a notification to permanently reduce or terminate analog or pre-transition DTV service within 90 days of the transition date (using FCC Informal Application Form); (10) Stations must comply with the PSIP requirement to populate the Event Information Tables (“EITs”) with accurate information about each event and to update the EIT if more accurate information becomes available; (11) Stations must comply with the station identification rules that require a DTV station which chooses to identify a licensee that it is transmitting on one of its multicast streams to follow a specific format for making such a station identification announcement; (12) Stations must comply with a viewer notification requirement (

i.e.

, stations must notify viewers about their planned service reduction or termination) if: (a) They will permanently reduce or terminate analog or pre-transition digital

service before the transition date, or (b) they will not serve at least the same population that receives their current analog TV and DTV service on February 18, 2009; (13) Stations claiming a “unique technical challenge” warranting a February 17, 2009 construction deadline must file a notification to document their status (using FCC Informal Application Form), if they do not file, or do not include such information in, an application for post-transition facilities (Forms 301 or 340); and (14) DTV stations that are permittees must comply with the requirements for feeable ancillary or supplementary services in 47 CFR 73.624(g) (using FCC Form 317).

The Commission, as part of its continuing effort to reduce paperwork burdens, invited the Office of Management and Budget (“OMB”) and the general public to comment on the information collection requirements contained in the

Third DTV Periodic Review NPRM

. On June 22, 2007, the Commission submitted the proposed information collection requirements to OMB for review under section 3507(d) of the PRA. On July 9, 2007, the Commission published a

Federal Register

notice addressing the burdens contained in the proposed information collection requirements and seeking comments from the public. On August 15, 2007, OMB issued a Notice of Action and filed comments to each of these proposed information collection requirements. No other comments were filed with respect to these proposed collections. We note that some of the collections remain unchanged from when they were previously published in the

Federal Register

and submitted to OMB, while others that were submitted have been slightly revised, with such changes being largely procedural in nature (

e.g.

, filing date change, method of filing, etc.). In addition to the collections proposed in the

Third DTV Periodic Review NPRM

, this Report and Order also contains additional new or modified information collection requirements. Finally, we also note that, pursuant to the Small Business Paperwork Relief Act of 2002 (“SBPRA”), the Commission sought specific comment in the

Third DTV Periodic Review NPRM

on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” We received no comment on this issue.

The information collection requirements adopted in this Report and Order will be submitted to OMB for final review under section 3507(d) of the PRA, and OMB and the public will be afforded an opportunity to file comments on these final information collections. The Commission will seek emergency approval from OMB for Items 1-3 (noted above in paragraph 193) based, in part, on the prior submission for OMB approval of these information collection requirements. The Commission will publish a

Federal Register

notice addressing the burdens contained in each final information collection adopted in this proceeding. The Commission will also publish a separate notice seeking comments from the public and OMB on the final information collection requirements.

Summary of the Report and Order

I. Introduction

1. Congress has mandated that after February 17, 2009, full-power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. (

See

Digital Television and Public Safety Act of 2005 (“DTV Act”), which is Title III of the Deficit Reduction Act of 2005, Pub. L. No. 109-171, 120 Stat. 4 (2006) (“DRA”) (

codified at

47 U.S.C. 309(j)(14) and 337(e)). DTV Act Section 3002(a) amends Section 309(j)(14) of the Communications Act to establish February 17, 2009 as a new hard deadline for the end of analog transmissions by full-power stations. 47 U.S.C. 309(j)(14)(A). DTV Act Section 3002(b) directs the Commission to “take such actions as are necessary (1) to terminate all licenses for full-power television stations in the analog television service, and to require the cessation of broadcasting by full-power stations in the analog television service, by February 18, 2009; and (2) to require by February 18, 2009, * * * all broadcasting by full-power stations in the digital television service, occur only on channels between channels 2 and 36, inclusive, or 38 and 51, inclusive (between frequencies 54 and 698 megahertz, inclusive).” 47 U.S.C.A 309 Note. DTV Act Section 3005(a) also created a coupon program to subsidize the purchase of digital-to-analog (“D-to-A”) converter boxes.) With this Report and Order in our third periodic review, we resolve issues necessary to complete the conversion of the nation's broadcast television system from analog to digital television (“DTV”). We conduct these periodic reviews in order to assess the progress of the transition and make any necessary adjustments to the Commission's rules and policies to facilitate the introduction of DTV service and the recovery of spectrum at the end of the transition. (The Commission has conducted two prior periodic reviews: the first in MM Docket No. 00-39 and the second in MB Docket No. 03-15.) In the Notice of Proposed Rulemaking in this third periodic review (

Third DTV Periodic Review NPRM

, 72 FR 37310, July 9, 2007), we sought comment on several issues necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition (digital) facilities. We received 125 comments, 22 reply comments, and numerous

ex parte

filings in response to the

Third DTV Periodic Review NPRM

.

2. With the DTV transition deadline less than 14 months away, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. We want to ensure that no consumers are left behind in the DTV transition. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Therefore, we adopt rules to offer broadcasters regulatory flexibility, while at the same time requiring broadcasters to maintain the best possible television service to the public and meet viewers' over-the-air reception expectations after the transition date. (We note that the statutory transition deadline applies only to full-power stations. The transition timing for low power, translator and Class A stations will be addressed in a separate proceeding.)

II. Executive Summary

3. In this Report and Order in our third periodic review, we (1) provide a progress report on the transition; (2) describe the status and readiness of stations to complete their transition; (3) adopt procedures and rule changes necessary to ensure that broadcasters meet the statutory transition deadline and complete construction of their final, post-transition facilities while maintaining the best possible television service to their viewers; and (4) address other issues related to the transition. Stations face many challenges in order to be ready to make their transition by the February 17, 2009 statutory transition deadline. Stations must focus their full attention on constructing their final digital facilities before they must

cease analog operations. In this Report and Order, we take the following actions to facilitate the completion of the transition for full-power television stations:

• We establish February 17, 2009 as the construction deadline for stations building digital facilities based on a new channel allotment in the post-transition DTV Table of Allotments (“DTV Table”) and accompanying Appendix B (“DTV Table Appendix B”), i.e., stations that will be returning to their analog channel or moving to a new digital channel for post-transition operations. These stations will not be required to construct a digital facility on their pre-transition DTV channel and will be permitted to forego further construction to the extent such a facility has been partially built. (The details of each station's channel assignment, including technical facilities and predicted service and interference information, are set forth in the DTV Table Appendix B. 47 CFR 73.622(i) codifies the post-transition DTV Table). The Commission proposed channel assignments and reference facilities for stations' post-transition operations in a 2006 Notice of Proposed Rule Making in MB Docket No. 87-268.

• We establish May 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations and already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.

• We establish August 18, 2008 as the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations, but which do not have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.

• We establish February 17, 2009 as the construction deadline for stations demonstrating that a unique technical challenge, such as the need to reposition a side-mounted antenna, prevents them from completing construction of their final DTV facilities.

• We establish stricter standards for granting extensions of time to construct digital facilities for all construction deadlines on or before February 17, 2009. In addition, for construction deadlines occurring February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules. We adopt our revised FCC Form 337, as proposed.

• We adopt FCC Form 387 and require all full-power television stations to file it by February 18, 2008, detailing their current transition status, additional steps necessary for digital-only operation upon expiration of the February 17, 2009 transition deadline, and a timeline for making those steps. Stations must update the form as events warrant and by October 20, 2008 if they have not completed construction.

• We will permit stations that are moving to a different DTV channel for post-transition operations to temporarily remain on their pre-transition DTV channel while they complete construction of their final digital facilities, provided: (1) They build facilities that serve at least the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service; and (2) they do not cause impermissible interference to other stations or prevent other stations from making their transition.

• We will permit stations to operate their post-transition facilities, pursuant to special temporary authority (“STA”), at less than their full, authorized facilities, provided: (1) They demonstrate a unique technical challenge (as defined in section V.B.5., infra) and they can serve at least 85 percent of the same population that receives their current analog TV and DTV service; or (2) a significant technical impediment to the construction of their full, authorized facilities that would not otherwise qualify for an extension of time to construct facilities under the new, stricter standard adopted herein and they serve at least 100 percent of the same population that receives their current analog TV and DTV service so that over-the-air viewers will not lose TV service. In addition, stations must demonstrate that they do not cause impermissible interference to other stations or prevent other stations from making their transition. Finally, stations that cannot serve at least 100 percent of the same population that receives their current analog TV and DTV service must comply with a viewer notification requirement.

• We clarify that, under existing rules, a station may temporarily reduce or cease service on their pre-transition analog or digital channel for a period of 30 days or less, upon notification to the Commission and without prior approval, when necessary to complete construction of the post-transition digital facility.

• We will provide stations with the flexibility to permanently reduce or terminate their analog or pre-transition digital service before the transition date, provided the station satisfies the following two requirements: (1) The station demonstrates that its service reduction or termination is directly related to the construction and operation of its, or another station's, post-transition facilities; and (2) the station notifies viewers on its pre-transition channel(s) about the planned service reduction or termination and informs them about how they can continue to receive the station.

• To provide additional flexibility within 90 days of the February 17, 2009 transition date (

i.e.

, beginning on or after November 19, 2008), we will allow stations to permanently reduce or terminate their analog or pre-transition digital service without prior approval upon notification to the Commission 30 days prior to the planned permanent service reduction or termination. The station must still comply with a viewer notification requirement.

• We will permit stations that are moving to a different DTV channel for post-transition operations to cease operations on their pre-transition digital channels and begin operating on their new channels before the transition date, provided: (1) The early transitioning stations will not cause impermissible interference to another station; and (2) the early transitioning stations continue to serve their existing viewers for the remainder of the transition and commence their full, authorized post-transition operations upon expiration of the February 17, 2009 transition deadline.

• We will offer expedited processing of stations' applications to build their post-transition facilities, provided that their application: (1) Does not seek to expand the station's facilities beyond its final DTV Table Appendix B facilities; (2) specifies facilities that are no more than five percent smaller than those specified in the post-transition DTV Table Appendix B (with respect to predicted population); and (3) is filed within 45 days of the effective date of this Report and Order. We adopt our revised FCC Forms 301 and 340, as proposed.

• We announce our intent to lift the freeze on the filing of maximization applications on August 17, 2008, the date by which we expect to have completed processing stations' applications to build their post-transition facilities. Until this date, we will maintain our freeze and will not accept maximization applications to expand facilities.

• We adopt a waiver policy that will permit rapid approval of minor (

i.e.

, not exceeding 5 miles) expansion applications filed by stations that will not use their pre-transition DTV channel for post-transition operation. This policy will allow added flexibility for stations that wish to use their existing analog channel antenna, which provides

benefits for the successful completion of the transition by reducing the demands on equipment suppliers and installation crews during a critical time as the transition date nears.

• We adopt a 0.5 percent new interference standard (

i.e.

, only considering interference in addition to that contained in the post-transition DTV Table Appendix B) to apply to applications for post-transition facilities and also to future maximization applications and applications to implement new allotments.

• We update the Commission's rules to reflect the latest revisions to the ATSC standards concerning DTV transmission and PSIP.

• We revise section 73.624(g) to require DTV stations that are permittees operating pursuant to an STA or any other FCC instrument authorizing DTV transmissions to file FCC Form 317 and pay fees on any revenue derived from feeable ancillary or supplementary services in the same way required of DTV licensees.

• We clarify our station identification requirements for digital stations in situations where one of a station's multicast streams is being used to air programming provided by another broadcast station, such as a low power station, or another programming source.

• We discuss MVPDs' obligations with respect to carriage of digital stations after the transition.

III. Background

4. Congress specifically requires the Commission to periodically evaluate the progress of the nation's transition to DTV. The Commission initiated this third DTV periodic review in April 2007. The previous two DTV periodic reviews began in March 2000 and January 2003, respectively. In addition to these periodic reviews, the Commission conducts the ongoing DTV proceeding, in which we recently established the DTV Table of Allotments for stations' post-transition operations (“post-transition DTV Table”). (

See

47 CFR 73.622(i), which codifies the post-transition DTV Table. The Commission proposed the post-transition DTV Table in the October 2006

of Proposed Rulemaking (Seventh FNPRM).

The Commission established the initial DTV Table of Allotments in 1997. The details of each station's channel assignment under the initial DTV Table, including technical facilities and predicted service and interference information, were set forth in the initial Appendix B of the Sixth Report and Order (“initial Appendix B”).

See Sixth Report and Order.

The initial Appendix B was amended in 1998. Simultaneous with the adoption of the Sixth Report and Order, the Commission announced DTV channel assignments for eligible licensees in the

Fifth Report and Order

in the same docket.).

A. DTV Transition

5. In early 2006, Congress enacted significant statutory changes to the DTV transition in the DTV Act. Most importantly, it set February 17, 2009, as the date certain for the end of the DTV transition, at which time all full-power television broadcast stations must cease their analog transmissions. (

See

47 U.S.C. 309(j)(14) (“A full-power television broadcast license that authorizes analog television service may not be renewed to authorize such service for a period that extends beyond February 17, 2009.”).

See also

47 U.S.C. 337(e).) The DTV Act does not provide for waivers or extensions of this deadline for cessation of analog broadcasts. (Previously, 47 U.S.C. 309(j)(14) provided an exception to the earlier December 31, 2006 transition deadline under several market-by-market criteria. 47 U.S.C. 309(j)(14)(B) (2005). Congress eliminated the statutory provisions authorizing market-specific extensions of the DTV transition, including the 85 percent benchmark for DTV reception. This new hard deadline obviates the need for any further discussion of how to interpret and implement the former Section 309(j)(14)(B) of the Act, an issue previously deferred by the

Second DTV Periodic Report and Order,

69 FR 59500, October 4, 2004.) The DTV Act also requires broadcast licensees to cease operations outside the core spectrum after February 17, 2009 in order to make that spectrum available for public safety and commercial wireless uses. All full-power TV broadcast stations must be operating inside the core TV spectrum and only in digital at the end of the transition on February 17, 2009.

6. In April 2007, the Commission initiated this third periodic review of the nation's conversion from analog to DTV broadcasting. The Commission sought comment on a range of proposals intended to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels upon expiration of the February 17, 2009 transition deadline. The Commission made a number of proposals regarding the procedures and standards applicants must follow in filing applications for facilities specified in the final, post-transition DTV Table of Allotments (“DTV Table”).

7.

Development of DTV Table.

In the 2004

Second DTV Periodic Report and Order,

the Commission established a three-round channel-election process through which eligible broadcast licensees and permittees (collectively, “licensees”) selected their post-transition channels inside the core TV spectrum (

i.e.

, channels 2-51). (The Commission received 11 petitions for reconsideration of the

Second DTV Periodic Report and Order,

raising a number of issues, most of which have been rendered moot by the completion of the channel election process.) At the start of this process, licensees proposed their post-transition facilities. (In November 2004, licensees filed certifications via FCC Form 381 in order to define their proposed post-transition facilities. In these certifications, licensees chose whether to (1) replicate their allotted facilities, (2) maximize to their currently authorized facilities, or (3) reduce to a currently authorized smaller facility). Stations that did not submit certification forms by the deadline were evaluated based on replication facilities. After each channel election round, the Commission announced proposed post-transition channels—called tentative channel designations (“TCDs”). In order to facilitate the development of a final, post-transition DTV Table, the Media Bureau announced a freeze on the filing of certain requests for allotment or service area changes. (The freeze, which was imposed on August 3, 2004—prior to the commencement of the channel election process, precludes parties from filing the following items: (i) Petitions for rulemaking to change DTV channels within the current DTV Table, (ii) petitions for rulemaking to establish a new DTV channel allotment, (iii) petitions for rulemaking to swap in-core DTV and NTSC channels; (iv) applications to change DTV channel allotments among two or more licensees; (v) petitions for rulemaking by licensees/permittees to change NTSC channels or communities of license; (vi) applications to maximize DTV or analog TV facilities; and (vii) certain Class A television station applications. The freeze does not prevent the processing of pending applications.) The Commission has maintained the filing freeze to ensure that each station has an opportunity to apply for and construct its authorized facility. (In the

Seventh Report and Order,

72 FR 54720, September 26, 2007, we denied seven requests of stations seeking a waiver of the filing freeze, except for one station which demonstrated unique circumstances.)

8. The channel election process culminated in the adoption of the post-

transition DTV Table in the August 2007

Seventh Report and Order.

(Approximately 123 stations have filed petitions for reconsideration of the

Seventh Report and Order,

which remain pending. Most of the Petitions request changes to facilities previously certified. These requests will be addressed in a separate Order of Reconsideration after the conclusion of the period for oppositions and responses. In the

Eighth Further Notice of Proposed Rulemaking (Eighth FNPRM)

72 FR 54720, September 26, 2007, which accompanied the

Seventh Report and Order,

the Commission announced TCDs for three new permittees that recently attained permittee status and also considered requests for substantive modifications to the post-transition DTV Table which were made after the close of the comment period for the

Seventh FNPRM.

Comments on these proposed changes to DTV Table in the

Eighth FNPRM

were due Oct. 10, 2007 and replies were due Oct. 25, 2007). The post-transition DTV Table provides eligible stations channels for post-transition operations inside the core TV spectrum and is the result of informed decisions made by eligible licensees during the Commission's channel election process, as well as the Commission's efforts to promote overall spectrum efficiency and ensure that broadcasters provide the best possible service to the public, including service to local communities. The post-transition DTV Table will ultimately replace the current (pre-transition) DTV Table at the end of the transition; however, we note that, in certain defined circumstances, stations may be permitted to temporarily remain on their pre-transition DTV channel after the transition date. (As explained below in Section V.B.7.a., some stations will be permitted to use their pre-transition DTV channel, temporarily, after the February 17, 2009 transition date. The current NTSC Table, which is contained in 47 CFR 73.606(b), will become obsolete at the end of the transition, when all full-power analog operations must cease. We anticipate initiating another proceeding to address these and other “clean-up” changes to our rules to eliminate outdated references to analog and out-of-core operations.)

9. Approximately 123 Petitions for Reconsideration of the

Seventh Report and Order

were filed by October 26, 2007, the close of the pleading cycle, representing approximately 200 stations, most of them requesting changes to their Appendix B facilities to accommodate their preference to use their existing analog antenna when they return to their analog channel for post-transition digital operation. (We addressed and resolved 30 similar requests that were raised during the comment period for the

Seventh Report and Order,

and we will address these additional requests on reconsideration.) In addition, we have received several Petitions for Reconsideration filed after the 30-day statutory deadline. Moreover, we recognize that not all stations that may want to revise their Appendix B facilities to assure that they will be permitted to continue serving their analog viewers with their post-transition digital facility have filed Petitions for Reconsideration, and that not all of those stations that have failed to file petitions can be, alternatively, fully addressed through the application process adopted in this Report and Order. Therefore, in light of the urgent need to finalize post-transition facilities so that all full power stations can complete the transition by February 17, 2009, we delegate to the Media Bureau the authority to amend the DTV Table of Allotments and Appendix B to the DTV Table of Allotments as needed up to the full power transition deadline. Such proceedings at the Bureau level may be expedited as necessary, including being conducted without notice and comment where good cause is found because the requested change does not adversely affect any other station's post-transition operations. (

See

5 U.S.C. 553(b)(3)(B) (allowing for implementation without notice and comment if good cause exists where “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest”). Where any requested change to the Table or Appendix may affect another station's operations, we expect the Bureau to issue an NPRM and provide an opportunity for public comment. Stations should file in Docket No. 87-268 when seeking a correction to Appendix B.)

10.

Reclamation of the 700 MHz Bands.

As a result of the DTV transition, 108 megahertz of spectrum in the 700 MHz Band (TV Channels 52-69) will be made available for critically important public safety needs and new wireless services. In passing the DTV Act, Congress directed the Commission to commence the auction of recovered analog broadcast spectrum no later than January 28, 2008, and deposit the proceeds of the auction in the Digital Television Transition and Public Safety Fund no later than June 30, 2008. Accordingly, in April 2007, we made changes to the 700 MHz band plan to enable public safety entities to use wireless broadband technology and prepare for the auction of the remaining spectrum in that band. Furthermore, in July 2007, we specifically redesignated 10 megahertz of public safety 700 MHz spectrum (763-768/793-798 MHz) for the purpose of establishing a nationwide, interoperable broadband public safety communications network. The Wireless Telecommunications Bureau has scheduled the auction of the remaining commercial spectrum of the 700 MHz Band on January 24, 2008.

11. Prior to the DTV Act, the Commission reallocated the 700 MHz Band in separate proceedings, first for the 60 megahertz covering TV Channels 60-69 (“Upper 700 MHz Band”) and then for the 48 megahertz covering TV Channels 52-59 (“Lower 700 MHz Band”). In the Balanced Budget Act of 1997 (“Balanced Budget Act”), Congress specifically directed that the allocation of the Upper 700 MHz Band include 24 megahertz of spectrum for public safety and 36 megahertz for commercial services. Accordingly, the Commission divided the Upper 700 MHz Band to include a 24-megahertz allocation for public safety use, and a 36-megahertz allocation for commercial use, of which 6 megahertz comprised the Guard Bands spectrum. With regard to the Lower 700 MHz Band, Congress also directed that the Commission “reclaim and organize” spectrum beyond that in the Upper 700 MHz Band, “in a manner consistent with the objectives” of Section 309(j)(3) of the Act. While Congress did not direct the amount of spectrum to be reclaimed, the Commission determined that all broadcasters using digital transmission systems could be accommodated in the core TV spectrum (

i.e.,

TV Channels 2-51). As a result, the 48 megahertz of spectrum in the Lower 700 MHz Band (698-746 MHz) would become available for new services through competitive bidding. (The Commission stated that expanding the DTV core spectrum would permit recovery of 108 megahertz of spectrum at the end of the DTV transition period.)

B. DTV Construction Deadlines

12. In 1997, the Commission adopted a DTV construction schedule that provided for varying construction deadlines based on the size of the market and type of station, with all stations required to construct by May 1, 2003. (Under this schedule, television stations in the 10 largest TV markets and affiliated with the top four television networks (ABC, CBS, Fox, and NBC) were required to build DTV facilities by May 1, 1999. Stations affiliated with those networks in

television markets 11 through 30 were required to construct their DTV facilities by November 1, 1999. All other commercial stations were required to construct their DTV facilities by May 1, 2002, and all noncommercial stations were to have constructed their DTV facilities by May 1, 2003. 47 CFR 73.624(d)(1).) In the 2004

Second DTV Periodic Report and Order

, the Commission established two deadlines by which stations were expected to either replicate or maximize DTV service on their current (pre-transition) DTV channel or lose interference protection to the unserved areas on that channel. By July 1, 2005, top-four network affiliates in the top 100 markets were required to fully replicate or maximize if they will remain on their DTV channel after the transition. If these stations were to move to another channel post-transition, they were required to serve at least 100 percent of their replication service population by July 1, 2005. By July 1, 2006, all other stations were required to fully replicate and maximize if they were to remain on their current DTV channel after the transition. If they were to move to another channel post-transition, they were required to serve at least 80 percent of their replication service population by July 1, 2006. The Commission stated that stations that met the applicable “use-or-lose” deadline and that are going to move to a different channel after the transition would be permitted to carry over their authorized maximized areas to their new channels. In addition, these “use-or-lose” replication/maximization deadlines became the new deadlines for stations operating temporary DTV facilities pursuant to STA to complete construction of their licensed DTV facilities. (In 2001, the Commission temporarily deferred (until the

Second DTV Periodic Review

) the establishment of construction deadlines for these stations, provided they constructed initial DTV facilities designed to serve at least their communities of license.) Approximately 80 percent of the stations in each of these categories met their respective deadlines.

13. In the

Second DTV Periodic Report and Order

, the Commission also noted that certain stations had not yet been granted an initial DTV construction permit. The Commission required that, by August 4, 2005, all such stations construct and operate “checklist” facilities that conform to the parameters of the DTV Table and other key processing requirements. The Commission stated that it would consider requests for waiver of the August 4, 2005 deadline on a case-by-case basis, using the criteria for extension of DTV construction deadlines. (“Checklist” facilities have power and antenna height equal to or less than those specified in the DTV Table and are located within a specified minimum distance from the reference coordinates specified in the DTV Table. Because these facilities comply with the interference requirements specified in the rules, no further consideration of interference is required. In addition, because the DTV Table was coordinated with Canada and Mexico, “checklist” facilities generally did not require further international coordination.)

14. In 2007, the Commission in the

Construction Deadline Extension Order

and the

Use or Lose Order

addressed applications filed by stations for extensions of time to construct DTV facilities and/or waivers of the deadline by which stations must build DTV facilities in order to retain the ability to carry over interference protection to their post-transition channel (so-called “use or lose” waivers). In the

Construction Deadline Extension Order

, the Commission considered 145 requests for an extension of time to construct a DTV facility. (The Commission granted 140 of these extension requests, 110 of which were to stations remaining on their current DTV channel for post-transition use.) For 107 stations whose pre-transition DTV channel is the same as their post-transition channel, the Commission granted these applications and gave these stations until November 18, 2007, in which to complete construction. For 29 stations whose pre-transition DTV channel is different from their post-transition channel, the Commission granted these applications and gave these stations until 30 days after the effective date of the amendments to section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. (As discussed in the

Third DTV Periodic Review NPRM

, at para. 73, the Commission also granted CP extensions until February 17, 2009 to four stations, facing unique technical challenges (

e.g.

, side-mounted/top-mounted antenna-related issues) preventing them from completing construction of their DTV facilities. As discussed in the

Third DTV Periodic Review NPRM

at para. 77, the Commission denied the extension requests of five stations: Two of which met their DTV construction obligations and were permitted to continue to operate their licensed facilities, while the other three stations were admonished for failing to meet their DTV construction obligations. In the

Use or Lose Order

, the Commission considered 192 requests for waiver of the “use or lose” deadlines. The Commission granted 185 of these “use-or-lose” waiver requests, 130 of which were to stations remaining on their current DTV channel for post-transition use. The

Use or Lose Order

was adopted simultaneously with the

Construction Deadline Extension Order

.) For 102 stations whose pre-transition DTV channel is the same as the station's post-transition DTV channel, the Commission granted these stations a waiver and gave them until November 18, 2007, to meet the “use or lose” deadline. (The Commission granted these applications an additional six months from the release date of the

Use or Lose Order

in which to complete construction.) For 38 stations whose pre-transition DTV channel is different from the station's post-transition channel, the Commission granted these stations a waiver and gave them until 30 days after the effective date of the amendments to section 73.624(d) of the rules adopted in the Report and Order in this Third DTV Periodic Review proceeding in which to complete construction. (As discussed in the

Third DTV Periodic Review NPRM

, at para. 73, the Commission also granted 45 stations, facing unique technical challenges (

e.g.,

side-mounted antenna-related issues) preventing them from meeting the applicable replication/maximization requirements, “use or lose” waivers and CP extensions until February 17, 2009. As discussed in the

Third DTV Periodic Review NPRM

, at para. 78, the Commission denied the “use or lose” waiver requests of seven stations. As discussed in the

Third DTV Periodic Review NPRM,

para. 75, the Commission granted 10 stations their requests for waiver of the “checklist” deadline (the August 4, 2005 deadline established for all television stations to construct and operate “checklist” DTV facilities).) In both of these orders, the Commission reminded stations that the hard deadline for termination of analog TV service prevents consideration of any request for extension of full-power analog TV service beyond that date. The Commission advised stations given an extension or waiver to utilize this time to take all steps possible to complete construction as further extension or waiver requests may be evaluated under a more stringent standard. Those stations that have a construction permit for which the original time to complete construction has not yet expired or that had their original construction permit

extended to a date that has not yet expired were not addressed in the

Construction Deadline Extension Order

or

Use-or-Lose Order

. These stations were directed to continue to follow existing rules and procedures (

i.e.,

continue to build their current DTV construction permit and, if that construction permit will expire before they can complete construction, file a request to obtain Commission approval for extension of the construction permit). (

Third DTV Periodic Review NPRM,

at para. 57. Since the release of the

Construction Deadline Extension

and

Use-or-Lose

orders, 83 stations have filed extension requests and 69 stations have filed for use-or-lose waivers. These numbers include requests for additional time as well as new requests filed with respect to deadlines that occurred after the Orders were drafted. The

Third DTV Periodic Review NPRM

did not require the usual reporting and progress requirements for some stations according to the rules of the

Construction Deadline Extension Order

, in light of the ongoing consideration of this Report and Order.

Third DTV Periodic Review NPRM

, at para. 77 n. 142. Similarly, the

Third DTV Periodic Review NPRM

withheld admonishment of some stations under the

Use or Lose Order

pending adoption of rules in this proceeding.

Third DTV Periodic Review NPRM

, at para. 78.)

IV. Progress Report

15. The transition to DTV is a complex undertaking, affecting virtually every segment of the television industry and every American who watches television. The Commission has been facilitating the transition to DTV by adopting a standard for digital broadcasting, creating an initial and post-transition DTV Table, awarding DTV licenses, establishing operating rules for the new service, monitoring the physical build-out of DTV broadcast stations, and helping to educate consumers about the transition. At the end of the transition, television broadcast operations will be limited to the core TV spectrum. (The “core spectrum” is comprised of low-VHF channels 2 to 4 (54-72 MHz) and 5 to 6 (76-88 MHz), high-VHF channels 7 to 13 (174-216 MHz) and UHF channels 14-51 (470-698 MHz), but does not include TV channel 37 (608-614 MHz), which is used for radio astronomy research.

See

47 CFR 73.603(c).) This will enable the recovery of a total of 108 MHz of spectrum (

i.e.

, TV channels 52-69) for critically important public safety needs and new wireless services.

A. DTV Operations

16. As of December 17, 2007, 1,706 television stations in all markets (representing approximately 99 percent of all stations) have been granted a DTV construction permit (“CP”) or license. A total of 1,635 stations are now broadcasting a digital signal. Of these, 1,396 stations have authorized licensed facilities or program test authority and 239 stations are operating pursuant to STA or experimental DTV authority.

17. In the top 30 television markets, all 119 top-four network-affiliated television stations are on the air in digital; 113 are licensed DTV facilities or program test authority and six have STAs. In markets 1-10, all 40 top-four network affiliated stations are providing digital service, 38 with licensed DTV facilities and two with STAs. In markets 11-30, all 79 top-four network affiliated stations are providing DTV service, 75 with licensed DTV facilities and four with STAs.

18. Approximately 1,230 commercial television stations were due to commence digital broadcasts by May 1, 2002. As of December 17, 2007, 1,157 of these stations (94 percent) are broadcasting a digital signal. In addition, approximately 373 NCE television stations were required to commence digital operations by May 1, 2003. As of December 17, 2007, 359 (96 percent) of these stations are broadcasting a digital signal.

B. Consumer Capability To Receive DTV Signals

19.

Over-the-Air Viewer Reception.

As of January 1, 2007, Nielsen estimates that 36.6 million people or 13 percent of people in the United States relied only on over-the-air television. In addition Nielsen estimates that 15.2 million households, or 14 percent of television households, watched television via an over-the-air signal only. Nielsen predicts that by January 1, 2008, fewer people, specifically 33.6 million, or 12 percent of people in the United States, will watch television via an over-the-air signal only. In terms of households, Nielsen estimates much fewer, 13 percent of all television households, or 14.3 million households, will be over-the-air only.

20. The demand for DTV sets has grown with increased availability of DTV programming and receiving equipment and a steady drop in the price of such equipment. The Consumer Electronics Association (“CEA”) reports that the consumer electronics industry has invested $66.7 billion in DTV products since 1998. Moreover, CEA reports more than $75 billion in consumer investment in DTV products. According to CEA, 23.9 million DTV sets and monitors were sold in 2006. CEA predicts that 29.2 million DTV products will be sold in 2007, 33.4 million in 2008, 35.2 million in 2009 and 36.4 million in 2010. CEA estimates that total digital display unit sales will increase by 30 percent in 2007, as compared to 2006. Sales of high-definition television sets are expected to increase to 20.7 million in 2007, a significant increase from 17.3 million sold the previous year.

21. To promote the availability of reception equipment and protect consumers by ensuring that their television sets continue to work in the digital world just as they do today, the Commission established a DTV tuner mandate, which required that all television receiver equipment (

e.g.

, TV sets (all sizes), VCRs, digital video recorders, and any other TV receiving devices) shipped in interstate commerce or imported into the United States, for sale or resale to the public, must be capable of receiving the signals of DTV broadcast stations over-the-air by March 1, 2007. (See 47 CFR 15.117(a). In 2002, the Commission initiated the DTV tuner mandate, with a phase-in period based on screen size to minimize the cost impact on consumers. In 2005, the Commission accelerated the implementation of the DTV tuner mandate to become effective on March 1, 2007 and expanded the mandate to include television sets less than 13 inches.)

22. In another consumer protection effort, the Commission adopted an order in April 2007, to require that, as of May 25, 2007, retailers that continue to sell analog-only television equipment provide consumers with information regarding the February 17, 2009 transition date at the point of sale of DTV television receiving equipment. Specifically, the Commission now requires sellers of television receiving equipment that does not include a digital tuner to disclose at the point-of-sale that such devices include only an analog tuner and, therefore, will require a converter box to receive over-the-air broadcast television after the February 17, 2009 transition date. (Specifically, the

Labeling Order

(72 FR 26554, May 10, 2007) requires that anyone that sells or offers for sale or rent television receiving equipment that does not contain a DTV tuner must display the following consumer alert, in a size of type large enough to be clear, conspicuous and readily legible, consistent with the dimensions of the equipment and the label, at the point of sale: “

CONSUMER ALERT:

This

television receiver has only an analog broadcast tuner and will require a converter box after February 17, 2009, to receive over-the-air broadcasts with an antenna because of the Nation's transition to digital broadcasting. Analog-only TVs should continue to work as before with cable and satellite TV services, gaming consoles, VCRs, DVD players, and similar products. For more information, call the Federal Communications Commission at 1-888-225-5322 (TTY: 1-888-835-5322) or visit the Commission's digital television Web site at:

www.dtv.gov

.” This requirement applies to the sale or rent of such equipment via direct mail, catalog, or electronic means (

e.g.

, the Internet).) As we noted in this order, consumers expect that DTV television receiving equipment for sale today that is capable of receiving television is and will continue to be able to receive over-the-air broadcast signals, and, if not, then such material information should be disclosed prior to purchase. The successful completion of the DTV transition depends upon satisfaction of this basic consumer expectation.

23. We also note that subsidized digital-to-analog (“D-to-A”) converter boxes will be available to eligible consumers starting January 2008, further promoting access to digital reception equipment. (47 U.S.C.A. Section 309 Note. 47 CFR part 301. Starting January 1, 2008, all U.S. households will be eligible to request up to two $40 coupons to be used toward the purchase of up to two D-to-A converter boxes, while the initial $990 million allocated for the program is available. 47 CFR 301.3-4. If the initial funds are used up and the additional funds (up to $510 million) are authorized, eligibility for the coupons will be limited to over-the-air-only television households. Eligible consumers will have until March 31, 2009, to make a request for these coupons.) This subsidy program, which was created by the DTV Act, will allow consumers with analog-only TV sets to receive over-the-air broadcast programming after the February 17, 2009, transition date, when analog broadcasting ends. Congress directed the National Telecommunications and Information Administration (“NTIA”) of the U.S. Department of Commerce to administer this subsidy program. (The DTV Act Section 3005(a)(1) directs the Assistant Secretary for Communications and Information to “implement and administer a program through which households in the United States may obtain coupons that can be applied toward the purchase of digital-to-analog converter boxes.” The purpose of the program is to enable consumers to continue receiving broadcast programming over the air using analog-only televisions not connected to cable or satellite service.) In March 2007, NTIA issued final rules to implement the program, which subsidizes the purchase of D-to-A converter boxes. (NTIA established rules for the coupon program in 47 CFR part 301. The rules became effective April 16, 2007.) The Commission is working with NTIA to test the D-to-A converters for eligibility to be certified for the coupon program.

24. The Commission has also taken action to ensure that all cable subscribers, including those with analog TV sets, can view broadcast television after the DTV transition. Approximately 35 percent of all television homes, or approximately 40 million households, are analog-only cable subscribers.

25. In September 2007, the Commission adopted rules ensuring that the 98 million TV viewers retain the same access to their local stations after the transition as they do today. The rules will require cable operators to comply with the statutory viewability requirement by choosing to either: (1) Carry digital signals in analog format, or (2) for all-digital systems, carry the signals only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content. The viewability requirements will be in force from the date of the transition through February 2012 subject to review by the Commission during the last year of this period.

26. The Commission also reaffirmed the existing material degradation standard for cable carriage of digital signals, including the requirement that cable systems carry high definition (“HD”) broadcast signals in HD format. In addition, the Commission has taken several actions to increase consumer awareness about the impending DTV transition. Successful completion of the DTV transition depends upon government and industry working together to promote consumer awareness and minimize the burdens borne by consumers. In July 2007, the Commission adopted a Notice of Proposed Rulemaking for the Commission's Digital Television Consumer Education Initiative (

“DTV Consumer Education NPRM ”

72 FR 46014, August 16, 2007), which requested comment on several proposals relating to consumer education about the DTV transition, including considering the best means of creating a coordinated, national DTV consumer education campaign. (Alternatively, the notification could describe how to get service from another station affiliated with the same network and serving the same lost area.) We proposed to require television broadcast licensees to conduct on-air consumer education efforts and to require “broadcast licensees and permittees to report, every 90 days, their consumer education efforts, including the time, frequency, and content of public service announcements aired by each station in a market, with civil penalties for noncompliance.” (Comments were due September 17, 2007 and reply comments were due October 1, 2007. An order addressing the proposals in this docket was circulated on October 16, 2007.

See

Written Statement of the Honorable Kevin J. Martin, Chairman, Federal Communications Commission, Before the Committee on Energy and Commerce, Subcommittee on Telecommunications and the Internet, U.S. House of Representatives (dated October 17, 2007);

http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-277414A1.doc.v

). It also sought comment on proposals about notices in MVPD customer billing statements, notices from consumer electronics manufacturers, and consumer electronics retailer training and education, among others.

27. In addition, on September 26, 2007, the Commission held the first in a series of Commission Digital Television Consumer Education Workshops. (The workshops will focus on communities that have been identified as being likely to be disproportionately impacted by the transition and least aware of it. These communities include, for example, seniors, minorities and non-English speakers, people with disabilities, low-income earners, and those living in rural areas. On November 8, 2007, the Commission hosted a workshop that addressed issues related to ensuring that seniors are prepared for the DTV transition. On December 4, 2007, the Commission hosted a workshop that addressed issues related to ensuring that minority and non-English-speaking consumers are prepared for the DTV transition.) These workshops provide an opportunity for all interested parties to jointly discuss the challenges associated with the upcoming transition and explore ways to develop coordinated consumer education activities. The Commission invites organizations representing a broad range of consumers and other stakeholders to participate, including those who represent senior citizens, low-income consumers, non-English speakers, people with disabilities, tribes, and public interest organizations working on behalf of

underserved customers or those living in rural areas.

V. Final DTV Transition Rules

28. By statute, full-power television broadcast stations must cease analog operations by 11:59 p.m. on February 17, 2009. Accordingly, our focus is now on overseeing broadcasters' construction of facilities that will reach viewers in their authorized service areas by the time they must cease broadcasting in analog. Specifically, this Report and Order adopts rules to ensure that broadcasters meet their statutory responsibilities and can begin operations on their final, post-transition (digital) channels by the expiration of the transition deadline on February 17, 2009. We take seriously our goal to ensure that consumers who have diligently prepared for the transition by obtaining the necessary DTV receiver equipment are able to, at a minimum, continue to watch their existing television programming after the transition date. In order to make this transition as smooth as possible for consumers, stations must have their digital facilities in place and ready to commence operations no later than 12:00 a.m. on February 18, 2009. We recognize that the transition is a complex undertaking presenting many challenges to the broadcast industry and that some disruption of television service may be unavoidable leading up to the analog turn-off. Accordingly, we adopt rules, where possible, to offer broadcasters some regulatory flexibility. At the same time, however, we must still ensure that DTV broadcasters will at least reach the audiences that they have been serving with their analog service and that, after the transition date, viewers will continue to have access to the stations that they are accustomed to receiving over the air.

29. Stations are reminded that their authority to operate on a pre-transition channel, whether analog or digital, ends on February 17, 2009. Continued operation of analog or pre-transition digital facilities after that date is operation without a license and will result in the imposition of sanctions for unauthorized operations. Only stations that have applied for and been granted specific authority to remain on a pre-transition digital channel may continue operating on that channel. As noted in the

Third DTV Periodic Review NPRM

, we recognize that there may be some situations where a station's ability to commence its post-transition operations will be dependent on another station's construction and operating plans. For example, station A may need to begin testing its digital facility on its post-transition channel in order to be ready to operate after the transition date, but station B is currently using the channel for pre-transition (analog or digital) service. In such situations, close cooperation will be needed between these stations. We expect that broadcasters will make all possible accommodations to ensure that all stations will be able to provide digital service on their post-transition channels at the transition date.

30. We begin by, first, adopting our proposal to gather information about each station's transition status and plan to meet the deadline. Second, we adopt our proposed deadlines for the construction and operation of stations' final digital facilities. Third, we adopt our proposed stricter standards for granting stations extensions of time to construct digital facilities. Fourth, we adopt our proposals to permit qualifying stations to make a “phased transition” in an effort to afford regulatory relief without undermining the expectations of over-the-air viewers. Fifth, we adopt flexible rules allowing stations to reduce and/or terminate their analog and pre-transition digital television service before the transition deadline if doing so is necessary to achieve their transition. Sixth, we adopt our proposal to permit qualifying stations to transition early. Seventh, we address the rules, procedures and interference standards for stations to file applications for construction permits to build their final, post-transition facilities and to request authorization to maximize their facilities. Finally, we address a variety of other issues related to the DTV transition. (We note the Commission's rules for full-power television will need to be updated to eliminate outdated references to analog and out-of-core television service and clarify engineering issues that differ for digital transmission and analog transmission. Such housekeeping matters will be addressed in a separate rulemaking in the DTV proceeding, MB Docket No. 87-268.)

A. Broadcasters' Transition Status

31. Stations are responsible for meeting the statutory deadline for the DTV transition. The Commission has no discretion to waive or change this transition date. Full-power broadcast stations not ready to commence digital operations upon expiration of the deadline for the transition on February 17, 2009, must go dark on their analog channel and risk losing their authorizations to operate after the transition date.

32. We have finalized post-transition channel assignments for every eligible station. (

See

47 CFR 73.622(i). These post-transition channel assignments largely were based on the choices made by licensees during the channel-election process. Eligibility for a proposed post-transition channel assignment was limited to existing Commission licensees and permittees.) In the post-transition DTV Table, 1,812 stations received post-transition DTV channels. (This total includes 1,806 stations announced in Appendix A to the

Seventh FNPRM

and six additional stations announced in a subsequent public notice. Additional new permittees may also be announced before the transition deadline.) Of these, 1,178 stations received the DTV channel on which they are currently authorized, 517 stations received the NTSC channel on which they are currently authorized, and 117 stations received a different channel from which they are currently authorized. In addition, we have proposed post-transition channel assignments for 13 stations that became eligible after the channel election process.

33. The process of transitioning the entire TV broadcast industry to digital-only operation on each station's final channels will be complex. Accordingly, most stations should have their plans in place for their transition to digital-only service on their post-transition channel. Some stations may now be ready, or very close to ready, to make their transition. Other stations, however, will need to take significant steps to accomplish their transition. Stations' situations will vary based on their final channel assignments in the new DTV Table and whether they must change their transmission facilities to operate on their post-transition channels.

1. Transition Status Reports (Form 387) Adopted

34. We adopt our proposal in the

Third DTV Periodic Review NPRM

to require all full-power television stations to file a form detailing (1) their current transition status, (2) any additional steps needed to commence their full, digital operations, and (3) their timeline to meet the February 17, 2009 transition deadline. The record supports adoption of this form. (Form 387 attached hereto as Appendix C). We agree with commenters and find that these forms will assist the Commission, industry, and the public in assessing progress and making plans for the transition date. We note, however, that these forms are not a substitute for active coordination efforts that may be necessary between and among broadcasters. Stations' forms will be made publicly available on the Commission's Web site.

35. We will require stations to file these forms no later than February 18, 2008. (Although the Commission originally proposed December 1, 2007 as the date broadcasters must file their forms, in response to the comments, we instead adopt February 18, 2008 as that date. We expect that, by February 18, 2008, this Report and Order will have been published in the

Federal Register

and have become effective and also that the Commission will have obtained the necessary OMB approval for this information collection.

See

OMB Control No. 3060-1105. The Media Bureau will announce when OMB approval has been obtained and will confirm the February 18, 2008 filing deadline for when broadcasters must file the form.) In addition, stations must update their forms, as necessary, until they report the completion of their transition—specifically, that they have begun operating their full facility as authorized by the post-transition DTV Table Appendix B. As proposed, each station is responsible for the continuing accuracy and completeness of the information furnished in their form. (This requirement is consistent with 47 CFR 1.65(a).) Whenever the information furnished in their form is no longer substantially accurate and complete in all significant respects, the station must file an updated form as promptly as possible and in any event within 30 days to furnish such additional or corrected information as is appropriate. Examples of a significant change would include a change in a station's (1) transition plans, (2) construction or operational status or (3) existing service (

e.g.

, reduction or termination of analog or pre-transition digital service). Stations must continue to file updates until construction of fully authorized post-transition facilities is complete and the station has begun operating its full post-transition DTV Table Appendix B facility. Commenters express concern that some stations may not be able to set a detailed timeline by the due date because some of their transition logistics (

e.g.

, details about equipment and tower crews) are beyond their control. We recognize that some stations may need to update their forms several times as they progress through their transitions. At a minimum, stations that have not completed construction of their post-transition facility and applied for a license to cover by October 20, 2008, must update their form to report their current status as of that date. Stations unable to answer questions on the form on the initial filing date must explain their reasons for not providing an answer and indicate when they expect to update the form to provide an appropriate response. We delegate authority to the Media Bureau to follow up with stations that do not file or update their forms. We intend to use these forms to identify stations that are not communicating their progress and may need to contact stations directly to assess and discuss the station's transition status. In addition, the Media Bureau will prepare a comprehensive summary report of the information provided in the Form 387 no later than August 18, 2008 (six months prior to the February 17, 2009 transition deadline). This report will enable us to assess progress toward completing the transition and to make any mid-transition adjustments in time for the February 17, 2009 deadline.

2. Stations Identified as Ready To Commence Post-Transition Operations

36. There are more than 800 stations that have built their post-transition facility. (This number is increasing as stations complete construction of their post-transition facilities and file for licenses to cover.) These stations have built and licensed or applied to license their full authorized DTV facilities as defined in the post-transition DTV Table Appendix B (

i.e.

, their post-transition channel is the same as their pre-transition DTV channel). We note that in the

Third DTV Periodic Review NPRM,

we listed 752 stations on Appendix D. In response to comments, we have now added approximately 50 stations and removed approximately three stations from this list. We have also added other stations to this list that we have identified as having become ready to make their transition because they have filed for a license to cover their post transition (DTV Table Appendix B) facilities since the close of the comment cycle in this proceeding. The stations listed in Appendix D, however, must still file a transition status report, FCC Form 387, to confirm their operational status and indicate their timing for terminating their analog service.

B. Construction Deadlines for Full, Authorized DTV Facilities

37. We establish the following deadlines for full-power television broadcast stations to construct their full, authorized post-transition (digital) facilities (as defined in the post-transition DTV Table Appendix B):

• February 17, 2009 will be the construction deadline for stations building digital facilities based on a new channel allotment in the post-transition DTV Table,

i.e.

, stations that will be returning to their analog channel or moving to a new digital channel for post-transition operations. These stations will not be required to construct a digital facility on their pre-transition DTV channel and will be permitted to forego further construction to the extent such a facility has been partially built.

• February 17, 2009 will also be the construction deadline for stations demonstrating that a unique technical challenge, such as the need to reposition a side-mounted antenna, prevents them from completing construction of their final DTV facilities.

• May 18, 2008 will be the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations and already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.

• August 18, 2008 will be the construction deadline for stations that will use their pre-transition DTV channel for post-transition operations, but do not have a license or construction permit that matches their post-transition (DTV Table Appendix B) facilities.

As discussed in more detail below, we establish particular deadlines and procedures for stations falling into specific defined circumstances. Stations using their pre-transition DTV channel for post-transition operations that do not have a construction permit that matches their post-transition facilities, should apply now for a new or modified construction permit. Stations that have a construction permit that has not yet expired remain subject to that expiration date. For stations granted “checklist” waivers and denied extensions or “use or lose” waivers, their deadline will depend upon whether a station's pre-transition DTV channel is the same or different from its post-transition channel. Finally, we adopt a stricter standard for stations to obtain an extension of time to construct their post-transition facilities, but offer flexibility to certain stations if they can build facilities that would serve at least the same population that is served by their current television service and would not cause impermissible interference to other stations.

38. Commenters generally disagreed with our proposed deadlines and sought more time to complete construction of their full, authorized post-transition facilities. Many commenters noted that Congress did not expressly mandate the date by which broadcasters must operate at full, authorized facilities on their post-transition channel, only that stations must operate in digital and inside the TV core spectrum. Thus, several commenters argued for

significant flexibility to achieve their construction deadline, with some seeking the discretion to take up to one year, or more, after the transition date to complete their full, authorized facilities, while stations are providing digital service only to their communities of license. In addition, other commenters argued that the Commission should view the final DTV Table Appendix B as setting forth the maximum coverage contour in which a station may operate, rather than the exact parameters on which they must operate.

39. We find that compliance with our construction deadlines is necessary to ensure that consumers are not left behind in the transition. (As discussed further below, we will afford regulatory flexibility to stations where doing so would not cause existing viewers to lose service.) Viewers who have prepared for the DTV transition should be able to receive television service when analog transmissions cease on February 17, 2009. To achieve this goal, it is imperative that all stations finalize construction of their post-transition facilities and operate at full, authorized facilities by the deadline. Given the February 17, 2009 deadline established by Congress for full-power stations to end analog service, stations' primary goal must now be to ensure that DTV stations will be operating at their full, authorized facilities on their final, post-transition channels by that date. Previously, our efforts had been to facilitate the initiation of DTV service to the public during the transition. This approach was designed, in part, to accomplish the goal of completing the transition by the original December 31, 2006 deadline established by Congress, a deadline that could have been extended under several circumstances. We recognize, as noted by some commenters, that strict compliance with our DTV construction deadlines would require some stations to reduce or terminate their analog service before the transition date. In those cases in which the potential impact of the loss of service prior to the transition would be more disruptive than the effect of reduced coverage area for a limited period of time after the transition, we are providing for flexibility. However, in other cases, the loss of a station's analog service to some viewers pre-transition, will be necessary to enable construction of post-transition facilities and can be preferable to viewers losing all television service from that station after the transition date if DTV facilities are not ready and analog service must cease. To ensure that this flexibility serves the public interest, we are requiring that stations that choose either pre-transition service reduction or post-transition phase-in must inform their viewers of what to expect and the options for continuing to have service.

40. We reject commenters' arguments that we should provide blanket authority for stations to operate at less than full, authorized post-transition facilities after the transition date. Commenters offered several reasons why they may need more time to build their final DTV facilities, which reasons include the following: (1) Stations may need to make “complicated technical changes” to their facilities to achieve their transition (

e.g.,

those returning to their analog channel and intending to reuse their analog antenna); (2) there may be a shortage of equipment and qualified tower crews needed to implement final DTV construction; (3) winter weather may prevent some stations from constructing their final facilities; or (4) a single deadline for many stations may cause delays in the processing of needed construction permit applications. We appreciate these specific concerns, but find that giving blanket authority for an industry-wide, staggered deadline beyond the transition date would leave a significant number of over-the-air viewers without television service on and after the transition date, as analog service will have ceased, but some stations would not yet have been required to complete DTV facilities. Only by requiring that full, post-transition facilities are operating on the transition date can we ensure a successful DTV transition; namely, the continued availability of television service.

41. While we set strict construction deadlines in this Report and Order, we also adopt flexible rules and procedures that will address the specific concerns raised by commenters, such as those noted above. For example, we are affording stations facing unique technical challenges, such as the need to reposition their side-mount antennas, until the transition date to construct their full, authorized post-transition facilities, and we anticipate that many of these stations may also qualify for extensions—even under our stricter extension criteria, as well as for the provisions for a “phased transition.” We also expect that these stations will benefit from the new flexible rules for service reduction and termination in advance of the transition date. Similarly, while we generally will not consider extension requests by stations on the basis of weather or a shortage of equipment and qualified tower crews, our new extension rules will still allow consideration of requests from those stations with demonstrable and genuine difficulties because of weather or equipment problems. Furthermore, we expect that many stations will transition early and begin operating their final post-transition facilities in advance of the deadline and the onset of the winter months. Finally, we adopt rules for the expedited processing of stations' post-transition construction permit applications to address commenters' concerns about the potential for delays in obtaining the necessary Commission authorizations to construct their final DTV facilities. (Stations that apply for the facilities to which they certified in 2004 and, thus, are now specified for them in the post-transition DTV Table Appendix B will have this opportunity for expedited processing.) In addition, our processing rules address commenters' concerns that stations may not be able to use their existing analog channel antennas because the antenna patterns of those antennas may not match the antenna patterns specified for them in the post-transition DTV Table Appendix B. In sum, we find that the rules and policies we adopt in this Report and Order will ensure that stations have sufficient time to complete construction of their final DTV facilities by their respective deadlines.

1. Stations Whose Post-Transition Channel Is Different From Their Pre-Transition DTV Channel

42. For stations whose pre-transition DTV channel is different from their post-transition channel (

i.e.

, stations returning to their analog channel or moving to a new channel for post-transition operations; this number includes 517 stations returning to their analog channel post-transition and 117 moving to a new channel for post-transition operations. We note, however, that some of these stations may have a documented unique technical challenge and, therefore, would fall into category three.), we adopt our proposals in the

Third DTV Periodic Review NPRM

to:

(1) Establish February 17, 2009 as the deadline by which these stations must complete their post-transition (DTV Table Appendix B) facilities; and

(2) Permit these stations to forego construction of their pre-transition DTV channel.

Approximately 634 stations fall into this category. We find that these stations face a greater challenge than stations that will remain on the same DTV channel for post-transition operations. Stations moving to a new channel must apply for a construction permit on that channel and build new facilities based on the channel allotments in the post-transition DTV Table Appendix B. We

find that stations facing the challenges associated with moving to a new DTV channel should be afforded the maximum possible time to complete their post-transition facilities before analog transmissions must cease. As discussed above, we disagree with commenters that seek a blanket extension for additional time beyond the transition date because that would leave a significant number of viewers without any television service. However, as discussed above, we adopt flexible rules and procedures to assist stations with specific transition challenges and anticipate that those stations that genuinely need additional time to complete construction of their final, post-transition facilities may seek an extension of time pursuant to our revised rules or may avail themselves of our provisions for a “phased transition.”

43. We also find that these stations may terminate further construction of their pre-transition DTV channel facilities in order to focus their efforts on constructing their permanent DTV facilities on their post-transition channel. Our examination of the record strongly favors affording stations whose pre-transition DTV channels are different from their post-transition channels the flexibility to stop construction of their pre-transition DTV channel facilities. We agree with commenters that argue in favor of such flexibility and find that requiring stations to build or expand facilities that would only be operated until the end of the transition—

i.e.

, for less than 14 months—potentially could undermine the more important public interest objective of ensuring a timely transition to digital broadcasting by diverting limited resources from the construction of final, post-transition facilities. Accordingly, we adopt our proposal to change our “use or lose” policy for these stations to allow them to retain interference protection to their full, authorized post-transition facilities. We discuss below the options available to these stations based on their individual circumstances.

44. We recognize that many of these stations (whose pre-transition DTV channels are different from their post-transition channels) have been diligent in meeting the deadlines established by the Commission for completing construction of their pre-transition facilities in order to provide DTV service to the public and to be permitted to carry over interference protection to their permanent DTV channel. We do not intend to treat these stations unfairly or reward stations that have been less diligent in providing DTV service during the transition. We note that many stations that have not built their transitional facilities have faced impediments to doing so. In addition, most stations that have applied for an extension of time to construct and/or a waiver of the applicable use-or-lose deadline have had those requests granted, indicating that we found they have a valid reason for not meeting the applicable deadline. Finally, we find that we must permit stations to cease investing time and resources in completing pre-transition DTV facilities to ensure that stations are focused on finalizing their post-transition facilities so that viewers will continue to receive television service when analog service ends.

45.

Pre-Transition DTV Channel Unbuilt or Not in Operation.

We will permit a station that has not constructed an operational pre-transition DTV facility to elect simply to return its construction permit for that facility to the Commission and focus its efforts on construction of its post-transition facility. As stations in this situation are not currently providing digital service to the public, we find it is appropriate at this stage in the transition to allow these channels to be returned. Stations choosing this approach will be able to carry over interference protection to their post-transition channel.

46.

Pre-Transition DTV Channel in Operation

. We will offer a station with an operational DTV facility on a pre-transition channel several options that would allow it to carry over interference protection to its post-transition channel. First, the station may discontinue further construction on its pre-transition DTV facility and operate that partially-built facility during the remainder of the transition, while it focuses on building its permanent DTV facility. A station choosing this option must file an application to modify its existing construction permit to match its partially-built pre-transition DTV facility. The station would then continue operation of the facility for the remainder of the transition without devoting resources to further build-out of that facility. Second, the station may cease operating its pre-transition DTV facility in certain circumstances, which are discussed below. Third, the station may decide to continue construction of its pre-transition DTV facility. We do not want to deny a station in this third category the opportunity to continue to build its pre-transition DTV facility and to provide service on this facility for the remainder of the transition; however, we find it is appropriate to require that these facilities be completed expeditiously. Therefore, we adopt our proposal in the

Third DTV Periodic Review NPRM

to require that such a facility be completed by the station's current (pre-transition) DTV construction deadline. The station will not be eligible for any further extensions to build its pre-transition DTV facility.

2. Stations Whose Post-Transition Channel Is the Same as Their Pre-Transition DTV Channel

47. For stations whose post-transition channel is the same as their pre-transition DTV channel (

i.e.

, stations remaining on their current DTV channel for post-transition operations), we adopt construction deadlines based on whether a station has an existing license or construction permit that matches its facility defined in the post-transition DTV Table Appendix B. Approximately 1,178 stations fall into this category. (We note, however, that some of these stations may have a documented unique technical challenge and, therefore, would fall into category three.)

(1) May 18, 2008 will be the construction deadline for stations in this category that already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities.

(2) August 18, 2008 will be the construction deadline for stations in this category, but which do not have a license or construction permit that matches their post-transition (DTV Table Appendix B) facilities and, therefore, need to apply for a new or modified construction permit.

Although we are moving back the deadline we proposed in the

Third DTV Periodic Review NPRM,

which would have required stations in this category to have completed construction of their final post-transition (DTV Table Appendix B) facilities by November 18, 2007 we find that it is appropriate to require stations in this category to complete construction prior to February 17, 2009. (November 18, 2007 is the deadline established for theses stations in both the

Construction Deadline Extension Order

and the

Use-or-Lose Order.

) These stations have already had a significant period of time in which to build digital facilities on their post-transition channels and, indeed, should already have constructed these facilities by their previously established DTV construction deadline, which for many stations was November 18, 2007. (Approximately 83 stations have filed requests for an extension of time of this deadline.) Unlike stations that will be moving to a different DTV channel for post-transition use, these stations have generally had the advantage of being able to plan for and commence construction of their post-transition

facilities for more than 10 years. In contrast, stations moving to a different channel for post-transition operations have only recently been assigned their new channel and, thus, are only now able to apply for a construction permit for this channel and commence construction of their final digital facilities. (Approximately 855 stations, listed in Appendix D, have satisfied their build-out requirements and are ready to complete their transition.) Furthermore, we note that more than 800 of the 1,178 stations in this category have been licensed, or have filed for a license, to operate authorized post-transition facilities. We recognize that some stations in this category may face unique technical challenges, such as the need to reposition their side-mount antenna, or other issues that may prevent them from constructing full, authorized post-transition facilities by the deadlines we establish. As discussed below, these stations that are facing unique technical challenges will receive a construction deadline of February 17, 2009 and those that legitimately need additional time to complete construction of their full, authorized post-transition facilities may seek an extension of time pursuant to our revised rules or may avail themselves of the provisions for a “phased transition” discussed below.

48.

Stations With CPs That Match Facilities in DTV Table Appendix B.

We establish May 18, 2008 as the construction deadline for stations in this category (

i.e.

, stations whose post-transition channel is the same as their pre-transition DTV channel) that already have a construction permit that matches their post-transition (DTV Table Appendix B) facilities. There are more than 250 stations with CPs that conform to the facilities in DTV Table Appendix B. This number will fluctuate as stations file modification applications or file license applications. (Some stations have filed Petitions for Reconsideration of the

Seventh Report and Order

requesting adjustments to Appendix B, and therefore are not included in this group, while others may choose to make adjustments at the application stage.) While most stations in this group have built and licensed their construction permit, and are now operating at full, authorized post-transition facilities, some stations in this group still have not built their existing construction permit. These stations include (1) those that received an extension of time until November 18, 2007, in either the

Construction Deadline Extension Order

or the

Use-or-Lose Order,

and that have an extension request of that deadline pending as of the date this Report and Order is adopted (Approximately 32 stations that received extensions in May have constructed and filed their license applications; 46 stations that received waivers in May constructed and filed their license applications.); and (2) those that have a construction permit that expired after adoption of the

Construction Deadline Extension Order

(

i.e.

, May 17, 2007) and that have an extension request of that deadline pending as of the date this Report and Order is adopted. By adopting May 18, 2008 as the construction deadline for these stations, we are hereby granting the relief sought in the pending extension requests of these stations and will afford them an extension until that date. (We also grant any requests for use-or-lose waivers by these stations that are pending as of the date this Report and Order is adopted.) We expect that these stations will finally be able to complete construction of their digital facilities and warn these stations that future requests for an extension of the deadline will be reviewed under the stricter standard adopted below. The stations in this group (

i.e.

, stations with a construction permit that matches their DTV Table Appendix B facilities) also include those that have a construction permit that has not yet expired, but based on the fact that most stations in this group have succeeded in timely building their permitted post-transition facilities, we expect that these stations will be able to meet their existing CP deadlines and will not need the additional time.

49.

Stations With an Unbuilt CP That Does Not Match Facilities in DTV Table Appendix B.

(This includes stations with an unbuilt CP that may be operating a reduced digital facility pursuant to STA.) We establish August 18, 2008 as the construction deadline for stations in this category (

i.e.

, stations whose post-transition channel is the same as their pre-transition DTV channel) that have an unbuilt construction permit for facilities that for some reason do not match those specified for them in the post-transition DTV Table Appendix B. There are roughly 60 stations with a CP they have not built and whose CP does not closely match facilities in the DTV Table Appendix B. These stations would therefore need either to modify either their CP to match Appendix B or request that we revise the facility listed for them on Appendix B. Similar to the previous group (

i.e.

, stations with a construction permit that matches their DTV Table Appendix B facilities), these stations include (1) those that received an extension of time until November 18, 2007, in either the

Construction Deadline Extension Order

or the

Use-or-Lose Order,

and that have an extension request of that deadline pending as of the date this Report and Order is adopted; and (2) those that have a construction permit that expired after adoption of the Construction Deadline Extension Order (

i.e.

, May 17, 2007) and that have an extension request of that deadline pending as of the date this Report and Order is adopted. By adopting August 18, 2008 as the construction deadline for these stations, we are hereby granting the relief sought in the pending extension requests of these stations and will afford them an extension until that date. (We also grant any requests for use-or-lose waivers by these stations that are pending as of the date this Report and Order is adopted.) We expect that these stations will finally be able to complete construction of their digital facilities and warn these stations that future requests for an extension of the deadline will be reviewed under the stricter standard adopted below. The stations in this group (

i.e.

, stations with an unbuilt construction permit that for some reason does not match the facilities specified for them in the post-transition DTV Table Appendix B) also include those that have a construction permit that has not yet expired, but we expect that these stations will be able to meet their existing CP deadlines and will not presume that these stations will need the additional time. We recognize that some stations in this group may also include stations that intend to build their CP and not their DTV Table Appendix B facilities. These stations should file their applications now to indicate their intent to do this.

50. We find that the stations in this group (

i.e.

, stations with an unbuilt construction permit that for some reason do not match those facilities specified for them in the post-transition DTV Table Appendix B) warrant additional construction time than that afforded to the stations in the previous group (that is, stations with a construction permit that matches their DTV Table Appendix B facilities) because these stations need to file an application for a new or modified construction permit to conform their existing construction permit to those facilities specified for them in the post-transition DTV Table Appendix B. (In the

Third DTV Periodic Review NPRM,

we recognized that stations that needed to apply for a new or modified CP because that CP did not match the facilities specified for them in the post-transition DTV Table Appendix

B may need more time to construct.

See Third DTV Periodic Review NPRM,

at para. 71.) We expect, however, that the actual construction of the different DTV Table Appendix B facilities should not otherwise cause delay, particularly because these stations never built their existing construction permit. Moreover, we note that these stations should have filed applications for such conforming facilities soon after the new post-transition DTV Table became effective on October 26, 2007, and should do so immediately if they have not done so already. We also note that changes made to these stations' construction permits since they made their certifications (via FCC Form 381) in 2004 were made pursuant to these stations' specific requests.

51. We recognize that some stations in this group cannot commence operations at their final DTV Table Appendix B facilities because doing so would cause impermissible interference to other current television operations. These stations must build and operate their currently authorized digital facilities reflected in their existing CP by the August 18, 2008 deadline and may seek an extension of time to February 17, 2009, at which time they could file their modification application to conform to those facilities specified in the post-transition DTV Table Appendix B. We expect, however, that these stations will apply now to modify their facilities to match the post-transition DTV Table Appendix B and will begin operations at full, authorized facilities as soon as the impermissible pre-transition interference concerns are resolved (

e.g.

, the affected pre-transition station moves to its post-transition channel).

52.

Stations With a License That Does Not Match Facilities in DTV Table Appendix B.

We establish August 18, 2008 as the construction deadline for stations in this category (

i.e.

, stations whose post-transition channel is the same as their pre-transition DTV channel) that have a license for facilities that for some reason do not match those specified for them in the post-transition DTV Table Appendix B. There are more than 300 stations with a licensed pre-transition facility that does not match facilities in DTV Table Appendix B, and therefore would need to apply for a CP for facilities that do match Appendix B or request that we revise the facility listed for them on Appendix B. We find that these stations generally should be treated like those stations with an unbuilt construction permit that for some reason does not match the post-transition DTV Table Appendix B facilities because they, too, need to file an application for a new or modified construction permit to conform their license to those facilities specified for them in the post-transition DTV Table Appendix B. We note, however, that unlike those stations with an unbuilt construction permit, these stations built a digital facility and met their previous DTV construction deadline. We will take this factor into consideration to the extent that such stations may request additional time to meet their post-transition facility deadline. For example, while we expect that these stations will not need to make significant modifications to conform their licensed facilities, we will consider granting requests from these stations if they can demonstrate that the modifications to conform their licensed facilities are, indeed, significant. We recognize that some stations in this group (

i.e.

, stations with licensed facilities that for some reason do not match those specified for them in the post-transition DTV Table Appendix B) may have constructed their intended facilities and do not intend to build their DTV Table Appendix B facilities. These stations should file their applications now to indicate their intent to do this.

3. Stations Facing Unique Technical Challenges

53. We adopt our proposal in

Third DTV Periodic Review NPRM

to establish February 17, 2009 as the deadline for stations facing “unique technical challenges” (as defined in the

Construction Deadline Extension Order

and the

Use or Lose Order

) preventing them from completing construction of their final, post-transition facilities. (February 17, 2009 was originally established as the deadline for these stations in the

Use or Lose Order

and

Construction Deadline Order.

) This category is limited to the types of situations described for stations facing “unique technical challenges” in the

Construction Deadline Extension Order

and the

Use or Lose Order.

Most of the stations are in this group because they need to reposition a top-mounted analog antenna with a side-mounted digital antenna. (Forty-five stations received a use-or-lose waiver and four stations received an extension in this category.) There may also be other stations in this group that met their previous DTV construction requirements but now face unique technical challenges in meeting their deadline to construct post-transition (DTV Table Appendix B) facilities. Such challenges include stations that have a side-mounted digital antenna and top-mounted analog antenna and will need to install a top-mounted antenna for post-transition digital use, but cannot do so before the end of the transition because the tower cannot support the additional weight of a third antenna, or face other circumstances in which the operation of a station's analog service prevents the completion of construction of the station's full, authorized post-transition facility, including stations whose local power company cannot provide sufficient electrical capacity to the tower site to power both analog and full power digital operations, and stations that do not have space at their antenna site for both analog and digital equipment. (Most of these stations proposed to install their DTV antenna on the top of the tower where their existing analog antenna currently is housed. In order to top-mount the DTV antenna, these stations would have to relocate the analog antenna to another position on the existing tower or to another location altogether, necessitating the purchase of a new analog antenna that would be usable for only a very short period of time.) Stations must document their status as a station facing a “unique technical challenge” and, thereby, obtain February 17, 2009 as their new construction deadline, by specifying such status in their application for post-transition facilities (Forms 301 or 340), if applicable, or by filing a notification electronically through the Commission's Consolidated Database System (“CDBS”) using the Informal Application filing form. Stations must also specify their status in their Transition Status Reports (Form 387). (Stations must check the appropriate box on Question (v)(3) in Section III (Next Steps) of the form, and must also detail their plans for repositioning their top-mounted/side-mounted antennas in Section V (DTV Transition Plan) of the form.) Although commenters did not support setting any firm deadline for these stations before the transition date, they did generally support our approach to provide these stations with more time to complete construction of their final DTV facilities than those stations without such unique technical challenges. We appreciate that these stations may need more time to complete construction of their final DTV facilities than other stations due to the challenge of configuring their station's post-transition facilities. Commenters have argued that stations with existing top-mounted analog and side-mounted digital antennas may face problems if they are forced to complete their final DTV facilities before the statutory analog shutdown. For example, a station with a side-mounted DTV antenna, a

top-mounted analog antenna and a top-mount DTV allotment risks significant analog service losses if it attempts to build-out its post-transition allotment before the analog shutdown. We, thus, conclude that imposing an earlier deadline for stations with unique technical challenges could create technical problems or the needless incurrence of extra engineering expenses. Therefore, we will continue to permit these stations the maximum amount of time—until the end of the transition—to complete the construction of their final DTV facilities.

54. However, as discussed above, we cannot give stations blanket authority for more construction time beyond the transition date without risking the availability of post-transition television service to viewers. We do agree with commenters, however, that our rules and policies must be flexible to enable stations with unique technical challenges to make a smooth transition. In particular, we expect that stations facing unique technical challenges will benefit from our provisions for a “phased transition.” (We note that not all of the stations granted a use or lose waiver in this category have the type of situation that is likely to warrant further time to complete construction after the transition date.) For example, Allbritton has requested that the Commission permit a station with a top-mounted analog antenna to delay the start of construction of top-mounted, post transition DTV facilities until after the analog shut-down, provided that station's existing DTV facility provides service to 100 percent of its replication area. We find that the “phased transition” alternative build-out policy that we adopt below will provide an avenue for the relief requested by Allbritton.

4. Other Situations

55. We adopt our proposals concerning the treatment of stations granted a waiver of the August 4, 2005 “checklist” deadline and stations denied an extension of time to construct a pre-transition DTV facility or a “use or lose” waiver request. (These stations sought a waiver of the August 4, 2005 deadline established for all television stations to construct and operate a “checklist” DTV facility.)

56.

Checklist Waiver Stations.

We adopt our proposal in

Third DTV Periodic Review NPRM

to set a construction deadline for the 10 stations granted a “checklist” waiver that is based upon whether their pre-transition DTV channel is the same as, or different from, their post-transition channel. We received no comments on this issue. We find that our original proposal is an appropriate method for setting the construction deadline for these stations. Accordingly, the six stations granted “checklist” waivers whose pre-transition DTV channel is different from their post-transition channel may forego construction of their pre-transition DTV facility and must complete construction of their post-transition facility by February 17, 2009. (This number will change from six to seven if our proposed channel change for station WPCW-DT, Jeannette, PA (from its DTV channel 49 to new channel 11) is adopted, giving the station a construction deadline of February 17, 2009. These stations will be treated like any other stations whose pre-transition DTV channel is different than their post-transition channel.) The four stations granted “checklist” waivers whose pre-transition DTV channel is the same as their post-transition channel, must complete their full, final post-transition facility by the deadline established for other stations whose pre-transition DTV channel is the same as their post-transition channel. (Station WSMH-DT, Flint, MI is the only one of these stations that has yet to apply for and build its post-transition DTV Table Appendix B facilities and, accordingly, has a construction deadline of August 18, 2008.)

57.

Stations Denied an Extension of Time to Construct.

Five stations were denied extensions in the

Construction Deadline Extension Order.

Three of these stations were admonished and made subject to remedial measures. One admonished station, whose pre-transition DTV channel is the same as its post-transition channel, was afforded six months from the release date of the Order to comply with the DTV construction rule. The other two admonished stations, whose pre-transition DTV channel is different from their post-transition channel, were afforded until 30 days after the effective date of the amendments to section 73.624(d) of the rules to be adopted in the Report and Order in this Third DTV Periodic Review proceeding. All three admonished stations were also made subject to the remedial measures for DTV construction adopted by the Commission. For the three admonished stations, we proposed in the

Third DTV Periodic Review NPRM

to not consider any future requests for extension of time to construct pre-transition facilities. As we stated in the

Third DTV Periodic Review NPRM

, we believe that admonished stations that have been denied an extension of their construction deadline and have been required to follow remedial procedures should be treated more strictly than stations that have been granted an extension of the construction deadline. We received no comments on this issue and will adopt our proposal.

58. Of the three stations that were denied an extension and admonished, only one station, WTVA-DT, channel 8, Tupelo, Mississippi, has still not built its pre-transition facility. (We note that the two other stations that were denied extensions and admonished have since reported the completion of their final DTV facility and, therefore, do not require further consideration. These stations are KJUD-DT, Juneau, Alaska and KECY-DT, El Centro, California. KECY-DT sought reconsideration of the Commission's admonishment of its failure to complete construction in a timely manner. That reconsideration will be addressed in a separate proceeding.) WTVA-DT has a post-transition channel that is different from its pre-transition DTV channel. We stated in the

Third DTV Periodic Review NPRM

that requiring such stations, even if denied an extension and admonished, to build their pre-transition channel would be inconsistent with our policy to shift our focus to construction of post-transition facilities. Accordingly, we proposed that we would not require these stations to construct their pre-transition facilities, but that these stations would remain admonished and would remain on a remedial program with respect to construction of their post-transition facilities. In light of the Commission's consideration of the issues raised in the

Third DTV Periodic Review NPRM

, the Commission decided in the

Construction Deadline Extension Order

to temporarily stay its reporting and progress requirements for admonished stations in the case of WTVA-DT. As WTVA-DT has a post-transition channel that is different from its pre-transition DTV channel, consistent with our decision in this Report and Order and as we proposed in the

Third DTV Periodic Review NPRM

, we hereby determine that this station will not be required to construct its pre-transition facility and will remain admonished and on a remedial program with respect to the construction of its post-transition facility. Station WTVA-DT must construct its post-transition facility no later than February 17, 2009, the deadline we have established in this Report and Order for all stations in this category. In addition, in accordance with our remedial program, WTVA-DT must report on its construction progress every 60 days following release of this Report and Order. If station WTVA-DT

fails to make progress, it will be subject to additional remedial measures and sanctions. These actions modify our prior remedial measures/admonishment order for WTVA-DT.

59.

Stations Denied Waiver of the Use or Lose Deadline.

For stations that were denied use or lose waivers in the

Use or Lose Order

, seven stations were denied use or lose waivers in the

Use or Lose Order

and, consequently, lost interference protection to the unused portion of the associated coverage area and lost the ability to “carry over” their interference protection to their unserved DTV service area on their post-transition channel. (These stations were unable to show that good cause existed to allow them additional time to meet their applicable “use or lose” deadline.) Two of the seven stations denied “use-or-lose” waiver requests, KAME and WCOV, are remaining on their current DTV channel for post-transition use. Neither of these stations filed petitions for reconsideration and their denial is final. They must file applications to modify their construction permit to specify their reduced DTV facilities and, upon grant of the construction permit, they must file a license application to cover this modification reflecting their now completed facility.) In the

Third DTV Periodic Review NPRM

, we invited comment on whether we should reevaluate the loss of interference protection for these stations with respect to their post-transition channel. We received no comments on this issue. We decline to change our decision in that order to remove interference protection for the parts of their service area that were not built by the deadline and for which these stations were unable to justify a waiver.

60. There is no reason to distinguish between stations that failed to complete construction of their pre-transition facility by the use-or-lose deadline based on whether or not the facility would also be used for post-transition operation. In this case, the required build-out was specifically to provide pre-transition service and the failure to provide that service without a valid justification cannot be excused. Accordingly, we will not reevaluate here our decision to remove interference protection for these stations. These stations will not lose their license and must comply with the relevant deadline for operation of their post-transition facility if it differs from their pre-transition facility. (The five stations whose pre-transition channel is not the same as their post-transition channel are required to complete construction of their post-transition facility by February 17, 2009, but have lost interference protection to that part of their service area that they failed to serve by the use-or-lose deadline. One of these stations, KUAM, did not file a petition for reconsideration and their denial is final. When KUAM applies for its construction permit, its application should reflect this modification.) We note that four of these stations have sought reconsideration of the denial of their use or lose waivers. (Stations KBDI-DT, Denver-Broomfield, Colorado, WDHS-DT, Iron Mountain, Michigan, WDTV-DT, Weston, WV, and WTXX-DT, Waterbury, Connecticut, all filed such petitions for reconsideration. If their petitions are denied, their applications for CP to construct their post-transition facilities must include the necessary modification to reflect the service area lost.) We will address these petitions for reconsiderations in a separate proceeding.

5. Extension/Waiver of DTV Construction Deadlines

61. In this section, we adopt our proposed revisions to section 73.624(d)(3) of the rules to tighten the standard for extension of DTV construction deadlines. However, we also clarify that we will consider, on a case by case basis in very limited circumstances, requests for an extension that do not meet our stricter criteria adopted herein where the station can show extraordinary circumstances that warrant providing additional time to complete construction. We also conclude that there will no longer be a separate treatment of “use-or-lose” deadlines, rather all requests for more time to complete construction of full authorized facilities will be dealt with as requests for CP extensions. In addition, we will require stations seeking an extension under section 73.624(d)(3) to comply with a viewer notification requirement (detailed below). Finally, as we proposed in the

Third DTV Periodic Review NPRM

, for all requests for additional time to construct DTV facilities for construction deadlines occurring on February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of our rules. (47 CFR 73.3598(b) provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God (

e.g.,

floods, tornados, hurricanes, or earthquakes), the grant of the permit is the subject of administrative or judicial review (

i.e.,

petitions for reconsideration and applications for review of the grant of a construction permit pending before the Commission and any judicial appeal), or construction is delayed by a cause of action pending in court related to requirements for construction or operation of the station (

i.e.,

zoning or environmental requirements).

62. Specifically, we take the following steps with respect to requests for additional time to construct post-transition facilities:

(1) Absent extraordinary circumstances we will no longer consider lack of equipment in the evaluation of whether to grant a request for extension of time to construct a DTV facility.

(2) We continue to consider circumstances beyond the licensee's control in evaluating requests for extension of time, including delays related to zoning issues or international coordination.

(3) We eliminate the existing four-part test for an extension of time on the grounds of financial hardship. Under the new test adopted herein, absent extraordinary circumstances, to obtain an extension on the grounds of financial hardship we will require that the station show that it is (a) the subject of a bankruptcy or receivership proceeding, or (b) experiencing severe financial hardship, as defined by negative cash flow for the past three years.

(4) Requests for extension must be received at least 60 days prior to the deadline for which the extension is requested to ensure review prior to the deadline.

(5) Beginning at least 30 days prior to the station's termination of analog service, stations must notify their viewers about any delays in completing construction that will prevent the station from providing post-transition digital service to all viewers. (The station must air such notifications on its analog channel.)

(6) For all requests for additional time to construct DTV facilities for construction deadlines occurring on February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules. This rule provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God (

e.g.,

floods, tornados, hurricanes, or earthquakes), the grant of the permit is the subject of administrative or judicial review, or construction is delayed by a cause of action pending in court related to requirements for construction or operation of the station (

i.e.,

zoning or environmental requirements).

63. Stations that cannot finalize construction of their final DTV facilities by the February 17, 2009 deadline have

several options. First, they may apply for an extension of time to construct pursuant to the stricter extension criteria adopted herein. Alternatively, as discussed below in the phased transition section, stations that cannot finalize construction of their full, authorized post-transition facilities by the transition deadline and that do not meet the revised extension criteria adopted herein may request that they be permitted to stay on their pre-transition DTV channel for a period of time past the February 17, 2009 deadline to permit them to finalize construction provided they serve their existing viewers. As another option, also discussed in the phased transition section below, a station that cannot finalize its full, authorized post-transition facilities by February 17, 2009 and that cannot meet the revised extension criteria may also request that it be permitted to operate with less than full, authorized facilities for a period of time after the transition deadline provided it serves its existing viewers. Stations that cannot build post-transition facilities that serve their existing viewers by February 17, 2009 will not be eligible to take advantage of these phased transition options. Requests for more time to construct for any deadline of February 18, 2009 or later will be subject to the tolling standard, as discussed more fully below.

64. The stations that face the most significant amount of construction to finalize their post-transition facilities are those that are moving to a different channel for post-transition operation. It is important to note that in this Report and Order we provide these stations the maximum amount of time—

e.g.,

until February 17, 2009—to complete construction of these post-transition facilities. (We also permit stations that are moving to a new channel post-transition and whose pre-transition facility is unbuilt or nonoperational to cease efforts to construct the pre-transition facility and focus their efforts on constructing the final, post-transition facility.) As analog transmissions must cease by February 17, 2009, any extension of time to construct final DTV facilities granted beyond this date will result in the loss of service to over-the-air viewers. (Some stations may be permitted to continue to serve current viewers on their pre-transition DTV channel past the transition deadline.) Consequently, as discussed further below, we will provide extensions of time to construct final DTV facilities only in the most serious of situations.

65. Stations that have an earlier deadline to construct post-transition facilities generally do not have a significant amount of construction remaining to complete their final DTV facility. (Stations whose pre- and post-transition channels are the same have until May 18, 2008 to finalize construction of the post-transition facility.) In some cases, however, these stations do face genuine obstacles to completing construction, such as zoning issues or weather-related damages to facilities. For these stations, the revised standard we adopt herein will continue to consider these kinds of issues in evaluating extension requests. For stations moving to a new channel post-transition and that are subject to either the May 18, 2008 or August 18, 2008 construction deadline, those that need an extension and can satisfy the new criteria adopted herein will be granted an extension until February 18, 2009.

66. In general, at this stage in the transition it would be a disservice to the public to permit stations to continue to obtain extensions of time to construct due to equipment shortages associated with poor planning or a reluctance to commit financial resources to construction of full digital facilities. While most of the commenters that addressed our proposals to tighten the standards for grant of additional time to construct DTV facilities disagreed with our proposals, we believe it is necessary that these standards be tightened to ensure continued, necessary progress by stations toward completion of their post-transition facilities. Because we are close to the end of the transition—the ultimate deadline—we can no longer allow extensions except in the most serious, extraordinary, or truly unavoidable circumstances, such as bankruptcy or zoning or other impediments beyond the station's control. Stations that cannot satisfy these criteria and yet do not complete construction of their post-transition facility will be admonished, placed in remedial programs, subjected to forfeitures, will lose interference protection to their unbuilt service areas, and/or will not be permitted to apply for expanded facilities. These stations will also be required to notify their viewers that the station will not be serving some or all of these viewers beginning February 18, 2009.

67. We have determined that there is no further need for separate “use or lose” and construction deadlines at this point in the transition. Our “use or lose” deadlines were an effort to ensure that stations were operating full power pre-transition DTV facilities during the course of the DTV transition. As we are nearing the end of the DTV transition, stations must complete their final, post-transition facilities, and the less than full facilities that were permitted by the use-or-lose deadlines will no longer be sufficient. Therefore, from this point on, we will enforce only construction deadlines for all stations. Any station whose DTV facility is either unbuilt or built but operating at less than full power may submit an application for extension if it wants to retain protection to the authorized service area and would meet the new extension criteria. (We also note that stations that do not intend to build out to their full authorized facility should apply for a license to cover the facility they have built.)

68.

Background

. In the

Third DTV Periodic Review NPRM

, we tentatively concluded that we would revise section 73.624(d)(3) of the rules, which sets forth the standard for extension of DTV construction deadlines, to make that provision substantially stricter. We noted that the initial construction deadlines for DTV facilities passed several years ago and that the deadline for completion of the transition is rapidly approaching. It is critical at this stage in the transition that stations finalize their construction plans and implement them.

69. Under the current rules, the Media Bureau may grant a six-month extension of time to construct a DTV station if the licensee or permittee can show that the “failure to meet the construction deadline is due to circumstances that are either unforeseeable or beyond the licensee's control where the licensee has taken all reasonable steps to resolve the problem expeditiously.” The rules state: “[s]uch circumstances shall include, but are not limited to (A) [i]nability to construct and place in operation a facility * * * because of delays in obtaining zoning or FAA approvals, or similar constraints; (B) the lack of equipment necessary to obtain a digital television signal; or (C) where the cost of meeting the minimum build-out requirements exceeds the station's financial resources.” (

See

47 CFR 73.624(d)(3)(ii). To qualify under the financial resources standard, the applicant must provide (1) an itemized estimate of the cost of meeting the minimum build-out requirements; (2) a detailed statement explaining why its financial condition precludes such an expenditure; (3) a detailed accounting of the applicant's good faith efforts to meet the deadline, including its good faith efforts to obtain the requisite financing and an explanation why those efforts were unsuccessful; and (4) an indication when the applicant reasonably expects to complete construction. These rules apply to stations granted a paired license for analog and digital operation

during the transition. (DTV singleton stations are already subject to the tolling provisions in 47 CFR 73.3598(b). We did not propose, and do not make, any changes to our rules regarding DTV singletons.) The Bureau may grant no more than two extension requests upon delegated authority. Subsequent extension requests must be referred to the Commission.

70. In the

Third DTV Periodic Review NPRM

, we proposed to eliminate section 73.624(d)(3)(ii)(B), which permits consideration of lack of equipment in the evaluation of whether to grant a request for extension of time to construct. Most stations have had ample time to order the equipment required to provide digital service. In addition, given the relatively short time remaining in the transition, we find that it is not appropriate to grant stations additional time to construct because of equipment delays, absent extraordinary circumstances. We also proposed to eliminate the existing four-part test for financial hardship, which permits consideration of circumstances where the cost of meeting build-out requirements exceeds the station's financial resources, and replace it with a new test. Specifically, in seeking a DTV extension for financial reasons, we proposed that the licensee/permittee of a station may show that it is (1) the subject of a bankruptcy or receivership proceeding, or (2) experiencing severe financial hardship, as defined by negative cash flow for the past three years. (Our proposed showing of three years of negative cash flow is similar to the showing considered in determining whether a station is a “failed station” for purposes of a waiver of our local TV ownership rules. However, we made clear in the

Third DTV Periodic Review NPRM

that we do not intend to use the failed station standard in its entirety as applied in the context of local TV ownership in determining whether a station should be granted an extension of time to construct under our revised extension standard. As proposed in the

Third DTV Periodic Review NPRM

, we will require that a station seeking a DTV extension for financial reasons to demonstrate that it is either in bankruptcy or receivership or has had negative cash flow for the past three years.)

71.

Equipment shortages.

Consistent with our proposal in the

Third DTV Periodic Review NPRM,

we eliminate section 73.624(d)(3)(ii)(B) of our rules, which permits consideration of circumstances related to “the lack of equipment necessary to obtain a digital television signal” in the evaluation of whether to grant a request for extension of time to construct. Going forward, absent extraordinary circumstances, we will no longer consider lack of equipment a valid ground for granting a request for extension of time to construct. Although the commenters that addressed this issue generally opposed our proposal to eliminate the equipment shortage justification for an extension, we find that at this relatively late stage in the transition it is no longer appropriate to signal to stations that they can obtain more time to construct their final DTV stations by citing general difficulties related to obtaining equipment. Stations must at this stage in the transition be submitting their equipment orders and arranging for delivery and installation in order to ensure that they meet the DTV construction deadlines established in this Report and Order. (While we recognize that some stations are still awaiting authorization of their final DTV facilities, the vast majority of stations have been assigned a channel and facility and have no legitimate cause for reluctance to order equipment. Moreover, most of the stations that have requested a change in their previously certified facilities in petitions for reconsideration of the

Seventh Report and Order

in the DTV table proceeding assert that their requested changes are needed to facilitate construction using existing antennas or other equipment. Therefore, these stations should not have need of additional time to construct based on equipment shortages. While stations may be eager to order equipment that will permit them to expand their facilities at a later date when such expansion may be permitted, stations cannot use this excuse to delay ordering now equipment that will permit them to finalize their current authorized facilities.)

72. While requests for an extension of time on the grounds of a lack of equipment will no longer generally be granted, we recognize that for some stations difficulties beyond their control in obtaining or installing equipment may still pose unavoidable delays in completing construction, either because of real equipment shortages, the lack of sufficient tower crews, or because of a delay in scheduling equipment installation due to weather. Therefore, while we adopt our proposal to eliminate the equipment shortage justification as a general ground for grant of an extension of time, and amend the rule accordingly, we will consider, on a case by case basis, requests for an extension where a station can demonstrate that, despite timely orders, there is a delay in delivery of equipment due to a shortage of supply or that there is a delay in installing equipment on hand or in completing tower construction due to a shortage of qualified tower crews. Only stations that can demonstrate that they placed their equipment orders and requested tower crews well in advance will be considered eligible for an extension on these grounds. In addition, we will also consider requests for an extension where the station can demonstrate that tower construction cannot be completed because of weather conditions or that equipment is on hand but that weather conditions have delayed installation. In each case, we will require the station to provide specific, detailed information and supporting documentation to demonstrate that grant of an extension of time to construct is warranted because of a genuine, specific, verifiable delay due to equipment or manpower shortages or weather. Such documentation could include, for example, proof that equipment was timely ordered together with a letter from the equipment supplier confirming a delay in filling orders and an estimated date by when the equipment will be delivered, or proof that equipment is on hand together with a letter from the equipment installer confirming a delay in scheduling installation and an estimated date for installation. With respect to delays due to weather, we will consider proof that the equipment is on hand or that tower construction has commenced or is ready to commence together with information confirming unsuitable weather conditions and an estimated date for finalizing tower construction and/or equipment installation. Stations must also note on FCC Form 387 the status of the station's transition and any delays related to delivery or installation of equipment and must update the form to keep the Commission apprised of changes or continuing delays.

73. This approach responds to the concerns raised by MSTV and NAB who specifically opposed our proposal to eliminate the equipment shortage justification for an extension of time. MSTV and NAB argued that eliminating the equipment shortage justification was inappropriate given the enormous anticipated demand for equipment and the relatively small number of manufacturers and installers, which could lead to very real shortages. We agree that there are instances in which stations may face legitimate delays in obtaining or installing equipment because of high demand or weather considerations and we will consider

extensions in these extraordinary circumstances. Apart from such extraordinary circumstances, however, we will no longer generally consider lack of equipment as grounds for an extension of time.

74.

Financial hardship.

We also hereby adopt our proposal to eliminate the existing four-part test for financial hardship, which permits consideration of circumstances where the cost of meeting build-out requirements exceeds the station's financial resources, and replace it with a new test. To obtain an extension on the grounds of financial hardship we will require that the station show that it is (1) the subject of a bankruptcy or receivership proceeding, or (2) experiencing severe financial hardship, as defined by negative cash flow for the past three years. Stations seeking an extension based upon financial considerations must either (1) submit proof that they have filed for bankruptcy or that a receiver has been appointed, or (2) submit an audited financial statement for the previous three years. All such stations must also submit a schedule of when they expect to complete construction.

75. Our goal in adopting this stricter financial hardship standard is to limit extensions to situations where stations clearly are unable to make the financial commitment necessary to complete construction of their post-transition DTV facilities. While we recognize that a number of stations face financial obstacles to completing construction, at this relatively late stage in the transition it is imperative that stations devise and implement a plan to complete their final DTV facilities. Analog broadcasts must cease at midnight on February 17, 2009. In order to ensure that viewers continue to receive television service after the transition, stations must complete their post-transition facilities now. It is difficult to imagine a more compelling use of funds than to ensure continued service to the viewing public. Thus, only stations that can demonstrate no available funds or source of funding to complete construction may be granted an extension on this ground.

76. While we adopt our proposal to tighten our financial hardship standard, and amend the rule accordingly, we recognize that some stations, including some noncommercial educational stations and some smaller stations, face extraordinary financial circumstances that do not fit within the new financial hardship criteria but that nonetheless may warrant an extension of time to finalize construction. Therefore, we will consider, on a case by case basis, requests for an extension that do not meet our revised financial hardship criteria where a station can demonstrate extraordinary circumstances. In this regard, we will consider situations where the station can demonstrate, for example, that it is awaiting expected funding in the form of a station grant or similar funding together with a date by when such funding is expected to be received. We will also consider situations in which the station can show that it has a detailed, step-by-step plan for constructing its post-transition facilities by February 17, 2009 and that it is making and will continue to make timely progress in implementing this plan. We caution stations that extensions on the grounds of extraordinary circumstances will not be routinely granted.

77. We will require that all stations requesting an extension submit proof of the circumstances that warrant an extension of time, and provide a firm estimate of when construction will be completed. Stations will also be required to provide information on FCC Form 387 regarding the status of the station's transition and to update this information on a regular basis.

78.

Circumstances beyond the station's control.

As we proposed, we will continue to consider requests for extension of time where the station is awaiting action by the Commission or a court on a pending application or appeal or where action on an application is being delayed for other reasons beyond the station's control. We will consider delays due to international coordination where resolution of the international coordination issue is truly beyond the control of the station, such as where the failure to obtain coordination will not permit the station to construct facilities sufficient to replicate its analog coverage area. A station seeking to maximize that cannot obtain international coordination for such facilities may be required to construct facilities with a smaller coverage area. As we stated in the

Third DTV Periodic Review NPRM,

we will also continue to consider circumstances related to an act of God or terrorism in evaluating requests for an extension of time to construct.

79.

Application of revised extension standard.

Our stricter standard for grant of an extension of time to construct DTV facilities adopted herein will be applied to all pending and future requests for extension of construction deadlines occurring on or before February 17, 2009. While we proposed in the

Third DTV Periodic Review NPRM

to apply our stricter extension standard to construction deadlines occurring before—but not on—February 17, 2009, and to apply our proposed tolling standard to deadlines on or after that date, we now find it is appropriate to apply the revised, stricter extension standard to construction deadlines on or before February 17, 2009. While our revised extension standard is stricter than the current standard, it provides more flexibility to stations than the tolling standard. Thus, applying the revised extension standard rather than tolling to stations with a February 17, 2009 construction deadline will provide some relief to these stations that may face legitimate obstacles to completing their post-transition facilities. All requests for extension of time pursuant to section 73.624(d), as amended, must be filed electronically using the revised FCC Form 337. (Requests for extraordinary relief in the circumstances described herein should also be filed electronically using FCC Form 337. Such requests should indicate clearly the circumstances that the station claims warrants additional time to construct.) We remind parties that applications for extension must be filed “no earlier than 90 and no later than 60 days prior to the relevant construction deadline, absent a showing of sufficient reasons for filing within less than 60 days of the relevant construction deadline.” To ensure sufficient time for review of any such extension requests, the Bureau is instructed to apply this requirement strictly and to accept extension requests filed fewer than 60 days before the applicable construction deadline only if the party affirmatively and persuasively demonstrates that the extension is necessary due to an unforeseen development or event occurring within the 60 day timeframe. (We note that because any extensions would apply to the new deadlines adopted by this Report and Order, the Media Bureau has delegated authority to grant or deny extensions for up to six months.

See

47 CFR 73.624(d)(3)(i), (iii).)

80.

Viewer Notification.

Stations that will not be serving at least the same population that receives their current analog TV and DTV service on February 18, 2009 must notify viewers on their analog channel about the station's planned delay in construction and operation of post-transition (DTV) service. (Population to be served should be based on the population the station is authorized to serve both before and after the transition. Population not previously served and population that will no longer be served by the station's authorized post-transition facility need not be counted. This applies to all calculations of population herein.) Therefore, stations seeking an extension

of time to construct post-transition facilities under revised section 73.624(d)(3) must notify viewers on their analog channel about their post-transition service limitations. Such notifications must occur every day on-air at least four times a day including at least once in primetime for the 30-days prior to the station's termination of full, authorized analog service. These notifications must include: (1) The station's call sign and community of license; (2) the fact that the station must delay the construction and operation of its post-transition (DTV) service; (3) information about the nature, scope, and anticipated duration of the station's post-transition service limitations; (4) what viewers can do to continue to receive the station,

i.e.

, how and when the station's digital signal can be received, or alternatively, the notification could describe how to get service from another station affiliated with the same network and serving the same lost area; and (5) the street address, e-mail address (if available), and phone number of the station where viewers may register comments or request information. We note that these viewer notifications are in addition to, and separate from, any notification requirements that we may adopt pursuant to our

DTV Consumer Education Initiative.

81.

Tolling.

As we proposed in the

Third DTV Periodic Review NPRM,

post-transition we will return to the existing standard for analog facilities in considering requests for additional time to construct DTV facilities. For all requests for additional time to construct DTV facilities for construction deadlines occurring February 18, 2009 or later, we will consider such requests under the tolling standard set forth in section 73.3598(b) of the rules, which currently applies to DTV singletons and analog TV stations, as well as AM, FM, International Broadcast, low power TV, TV translator, TV booster, FM translator, FM booster, and LPFM stations. Section 73.3598(a) applies to construction permits for “new TV” stations or to make changes in existing stations, and we hereby clarify that this reference includes construction permits for new DTV stations, as well as to existing DTV stations, and that we will apply section 73.3598 to such stations beginning February 18, 2009. We also will require that notifications pursuant to section 73.3598 be filed electronically through the Commission's Consolidated Database System (“CDBS”) using the Informal Application filing form.

82. While the commenters that addressed the tolling issue generally opposed implementation of this approach, we find that once the transition to an all-digital broadcast service has occurred, it is appropriate to apply a stricter “tolling” approach to construction deadlines. Once DTV is the sole broadcast service, we find requests for additional time to construct should be treated as we now treat such requests for all analog stations and DTV singletons. Once the transition deadline has passed, stations will no longer be required to operate dual facilities and the demand for scarce resources by industry will level off. In the

Third DTV Periodic Review NPRM,

we proposed to apply tolling to construction deadlines occurring on February 17, 2009 or later. However, as noted above, we will instead apply the revised extension criteria to deadlines on or before February 17, 2009 and will apply tolling to deadlines occurring February 18, 2009 or later. This approach will provide some additional flexibility to stations by delaying implementation of the stricter tolling standard.

83. 47 CFR 73.3598 provides that the period of construction for an original construction permit shall toll when construction is prevented due to an act of God (

e.g.

, floods, tornados, hurricanes, or earthquakes), the grant of the permit is the subject of administrative or judicial review, or construction is delayed by a cause of action pending in court related to requirements for construction or operation of the station (

i.e.

, zoning or environmental requirements). (Under the tolling standard, the filing of an application for modification of a construction permit does not serve as grounds for tolling of the construction deadline.) Beginning February 18, 2009, we will require that DTV permittees notify the Commission of any event covered under our tolling provision and provide supporting documentation in order to toll the construction deadline. Permittees will also be required to notify the Commission when a relevant administrative or judicial review is resolved. Tolling resulting from an act of God automatically ceases six months from the date of the notification to the Commission unless the permittee submits additional notifications at six-month intervals detailing how the act of God continues to cause delays in construction and describing construction progress and the steps the permittee has taken and proposes to take to resolve any remaining impediments. Any construction permit for which construction has not been completed and for which an application for license has not been filed shall be automatically forfeited upon expiration without any further affirmative cancellation by the Commission. (The Commission has noted that there may be rare and exceptional circumstances, other than those delineated in its rules or decisions adopting the rules, that would warrant the tolling of construction time,

i.e.

, other circumstances in which a permittee is prevented from completing construction within the time specified on its original construction permit for reasons beyond its control such that the permittee would be entitled to tolling of the construction time under 47 U.S.C. 319(b). In these very limited circumstances, the Commission noted that it would entertain requests for waiver of its strict tolling provisions.)

84. As proposed in the

Third DTV Periodic Review NPRM

, delays due to international coordination will not generally be grounds for tolling of a DTV construction permit with two exceptions. First, the Commission will toll a construction permit for a DTV station where the station demonstrates that a request for international coordination has been sent to Canada or Mexico on behalf of the station and no response from the country affected has been received. Second, the Commission will toll a DTV construction permit where the station can demonstrate that the DTV facility approved by Canada or Mexico would not permit the station to serve the viewers currently served by the station's analog facility that would also be served by the station's digital facility approved by the Commission domestically. The tolling rule is amended accordingly.

6. Sanctions for Failure To Meet Construction Deadlines

85. We remind stations that they will be subject to sanctions if they fail to meet their deadline for the construction of their final, post-transition DTV facilities, fail to justify an extension of their deadline pursuant to the revised procedures and policies, or are otherwise unable to qualify for the “phased transition” provisions. For example, a station failing to meet its construction deadline may be subject to license revocation procedures, the issuance of forfeitures, loss of interference protection to unserved DTV service area, or other remedial measures, such as admonishment and the imposition of periodic reporting requirements. We also remind licensees that “if a broadcasting station fails to transmit broadcast signals for any consecutive 12-month period, then the station license granted for the operation of that broadcast station expires at the end of that period, notwithstanding any

provision, term, or condition of the license to the contrary.” (In addition, stations discontinuing operations must also be mindful of the Commission's rules.

See, e.g.

, 47 CFR 73.1615 (operation during modification of facilities), 73.1690 (modification of transmission systems), 73.1740 (minimum operating schedule) and 73.1750 (discontinuance of operation).)

86. We find that these sanctions continue to be the appropriate methods to encourage stations to meet their DTV construction deadlines and to ensure that all stations are constructed and operating with their full, authorized post-transition DTV facilities at the end of the DTV transition. We note that approximately 100 stations have been placed in the DTV remedial program since its adoption in 2003. All but one station completed construction and began operating their DTV facilities within six months of enrollment in the program, thus eliminating the need for further sanctions. Therefore, with one slight modification, we find that continued use of the DTV construction remedial program will ensure that non-complying stations are able to quickly bring their stations into compliance with their DTV construction obligations.

87. Currently, stations placed in the remedial program are initially admonished and are provided with a six-month period to complete construction of their DTV facilities in order to avoid further sanctions such as the imposition of forfeiture. As we are nearing the completion of the DTV transition, we find that it is appropriate to accelerate our remedial procedures and require stations to complete construction of their DTV facilities in a shorter period of time in order to avoid further sanctions. Therefore, we modify the first stage in our remedial program and provide stations with three months to complete construction of their DTV facilities in order to avoid the imposition of further sanctions. By requiring compliance in a three-month period, we seek to ensure that non-compliant stations will come into compliance with our DTV construction rule and be ready for the final DTV transition.

7. Phased Transition Provisions for Regulatory Relief

88. We adopt two provisions for a “phased transition” in an effort to offer broadcasters regulatory flexibility in meeting their post-transition construction deadlines without disappointing viewer expectations after the transition date. (As discussed above, stations whose post-transition channel is different from their pre-transition DTV channel must build their full, authorized post-transition (digital) facilities no later than February 17, 2009. Stations whose post-transition channel is the same as their pre-transition DTV channel must build their full, authorized facilities no later than the expiration date of their current construction permit, which date was extended until November 18, 2007 for stations whose applications for extensions of time to construct DTV facilities and/or “use or lose” waivers were addressed in either the

Construction Deadline Extension Order

, or

Use or Lose Order

.) First, we will permit qualifying stations to temporarily remain on their pre-transition DTV channel; and, second, we will permit qualifying stations to build less than their full, authorized facilities by their construction deadline. To qualify for these provisions, stations must meet a service requirement to minimize the loss of service after the transition date and also must not cause impermissible interference to other stations. Stations that are permitted to use one of the provisions for a phased transition, even though they will not serve at least the same population that receives their current analog TV and DTV service, must also comply with a viewer notification requirement (described below). Stations can seek relief under these provisions if they cannot satisfy the strict requirement for obtaining an extension of time to construct their full, authorized facilities. Because the service requirement protects consumers, we find that we can offer this relief, subject only to an engineering analysis (

i.e.

, the population and interference criteria).

89. We adopt these measures, which were discussed in the

Third DTV Periodic Review NPRM

, in response to the many comments by broadcasters advocating for regulatory flexibility to build less than their full, authorized facilities by their post-transition construction deadlines. As noted above, most commenters asked us to be as flexible as possible when establishing construction deadlines. These commenters noted that the February 17, 2009 statutory deadline was only for the termination of analog service and not expressly for completion of stations' final (

i.e.

, full, authorized) digital facilities. Accordingly, these commenters asked that stations be allowed to operate at less than full, authorized facilities for some specified time after the transition.

90. Because qualification for the regulatory relief offered by these provisions will require stations to serve all or most of the same population that receives their current television (analog and digital) service, we find that these provisions strike the right balance of offering regulatory flexibility to broadcasters while not undermining viewers' over-the-air reception expectations after the transition date. (The noise limited service contour for DTV stations covers an area that is larger than the station's community of license. Thus, a significant number of a station's viewers may reside outside of the station's community of license and outside the community of license coverage contour, but within its noise limited service area.

See

47 CFR 73.622(e) for the definition of the DTV service areas and 47 CFR 73.625(a) for the community of license coverage requirement.) MSTV/NAB proposed that stations only be required to provide digital service to their communities of license as of the February 17, 2009 transition date, and that they should be allowed to operate at less than full, authorized facilities for one year after the transition date. MSTV/NAB would rely on broadcasters' market incentive to “maximize their digital service” to viewers. We disagree, however, that a coverage requirement limited to stations' communities of license would satisfy consumer expectations after the transition date. Instead, we limit these special measures for regulatory relief to stations that can serve all or most of their existing viewers. Stations that cannot build post-transition facilities that serve their existing viewers must obtain Commission approval for an extension of time to complete their facilities. We reject MSTV/NAB's argument that this service requirement is too restrictive “in light of equipment shortages and other technical issues” and that a community of license coverage requirement would be sufficient. We take seriously the goal of ensuring that consumers who have prepared for the transition by obtaining the necessary DTV receiver equipment are able to, at a minimum, continue to watch their current television programming after the transition date. To that end, we have taken steps to require, wherever possible, that stations complete their final, post-transition facilities by the transition date. We recognize, however, that in some situations it may be preferable for some viewers to lose television service for a limited time after the transition date if that would prevent many

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