Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules

In the Matter of

Federal Communications Commission

Before the

Federal Communications Commission

Washington, D.C. 20554

Carriage of Digital Television Broadcast

Signals: Amendment to Part 76 of the

Commission's Rules

)

)

)

)

)

)

CS Docket No. 98-120

DECLARATORY ORDER

FCCOS-224

Adopted: September 24, 2008

Released: September 26, 2008

By the Commission:

TABLE OF CONTENTS

Heading

Paragraph#

I. INTRODUCTION ..................................................................................................................... l

II. BACKGROUND ....................................................................................................................... 3

III. DISCUSSION .......................................................................................................................... 11

A. Full-Power Carriage Elections ........................................................................................... 11

1. Effect of October l, 2008 Elections ............................................................................ 12

2. Channel Placement ...................................................................................................... 14

B. Low Power Carriage Rights .............................................................................................. 17

I. Applicability of76.55(d) to Low Power Digital Broadcasters .................................... 18

2. Petition for Declaratory Ruling ofWKFK .................................................................. 22

IV. ORDERING CLAUSES .......................................................................................................... 23

I.

INTRODUCTION

I

............................ 17

I. Applicability of76.55(d) to Low Power Digital Broadcasters .................................... 18

2. Petition for Declaratory Ruling ofWKFK .................................................................. 22

IV. ORDERING CLAUSES .......................................................................................................... 23

I.

INTRODUCTION

I.

Pursuant to Section 614(b)(4)(B) of the Communications Act of 1934, as

amended (the "Act"), 1 the Commission initiated this proceeding in 1998 to address the

responsibilities of cable television operators with respect to carriage of digital broadcasters in

light of the significant changes to the broadcasting and cable television industries resulting from

the Nation's transition to digital television.2 Now that Congress has established February 17,

2009, as the date certain for the end of analog broadcasts by full-power television licensees, and

1 47 U.S.C. § 534(b)(4)(B).

2 Carriage of the Transmissions of Digital Television Broadcast Stations, CS Docket No. 98-120. Notice of

Proposed Rulemaking, 13 FCC Red 15092, 15093, paras. 1-2 (1998) ("1998 NPRM').

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also clarify the channel placement options applicable to digital must-carry stations, based upon the First

Report and Order and the statute. Low-power broadcasters, while not required to make their transition to

digital by February 17, 2009, nevertheless are doing so in increasing numbers, and will continue to do so

of their own volition. For those low-power stations that have the right to demand carriage by cable

operators, we clarify that their statutory carriage rights extend to broadcasting in digital.

II.

BACKGROUND

3

atute. Low-power broadcasters, while not required to make their transition to

digital by February 17, 2009, nevertheless are doing so in increasing numbers, and will continue to do so

of their own volition. For those low-power stations that have the right to demand carriage by cable

operators, we clarify that their statutory carriage rights extend to broadcasting in digital.

II.

BACKGROUND

3.

Under the Act, cable systems are presumptively required to carry all local television

stations in all television markets they serve.3 Commercial television stations may, however, choose to be

carried pursuant to voluntary retransmission consent agreements rather than by mandatory carriage.4

Generally, every three years commercial television stations must elect to either grant retransmission

consent or pursue their mandatory carriage rights.5 Noncommercial television stations may only elect

mandatory carriage, but are nonetheless free to negotiate carriage with cable operators. 6

4.

In this docket, the Commission has determined the broadcast signal carriage

responsibilities of cable television operators during and after the transition is completed. The statutory

provision triggering this rulemaking is found in Section 614(b)(4)(B) of the Act, which states:

At such time as the Commission prescribes modifications of the standards for television

broadcast signals, the Commission shall initiate a proceeding to establish any changes in

the signal carriage requirements of cable television systems necessary to ensure cable

carriage of such broadcast signals of local commercial television stations which have

been changed to confonn with such modified standards.7

The Notice of Proposed Rulemaking (" 1998 NPRM") in this proceeding sought to amend the cable

television broadcast signal carriage rules, embodied in must-c~ and retransmission consent, to

accommodate the carriage of digital broadcast television signals.

5

rriage of such broadcast signals of local commercial television stations which have

been changed to confonn with such modified standards.7

The Notice of Proposed Rulemaking (" 1998 NPRM") in this proceeding sought to amend the cable

television broadcast signal carriage rules, embodied in must-c~ and retransmission consent, to

accommodate the carriage of digital broadcast television signals.

5.

The Commission's First Report and Order and Further Notice of Proposed Rulemaking

in this proceeding adopted rules for carriage of digital broadcast signals pursuant to retransmission

3 47 U.S.C. § S34; Broadcast Signal Carriage Issues, 8 FCC Red 296S (1993) ("Cable Must-Carry Order'). See

also Broadcast Signal Carriage Issues, 9 FCC Red 6723 (1994) ("Cable Must-Carry Reconsideration Order').

4 47 C.F.R. § 76.64(f).

s 47 C.F.R. § 76.64{a).

6 Carriage of Digital Television Broadcast Signals; Amendments to Part 76 of the Commission's Rules and

Implementation of the Satellite Home Viewer Improvement Act of 1999, CS Docket No. 98-120, First Report and

Order and Further Notice of Proposed Rulemaking, 16 FCC Red 2598, 2613, para. 36 (2001) ( .. First Report and

Order').

7 47 U.S.C. § S34(b)(4)(B). The limited discussion of this provision in the Act's legislative history states that "when

the FCC adopts new standards for broadcast television signals, such as the authorization of broadcast high definition

television (HDTV), it shall conduct a proceeding to make any changes in the signal caniage requirements of cable

systems needed to ensure that cable systems will carry television signals complying with such modified standards in

accordance with the objectives of this section." H.R. Rep. No. 102-862, 102d Cong., 2d Sess. at 67 (1992). Accord

H.R. Rep. No. 102-628, 102d Cong., 2d Sess. at 94 (1992); S. Rep. No. 102-92, 102d Cong., 1st Sess. at 85 (1991).

See also 41 U.S.C. § 3380). which cross-references Section 614(b){4) of the Act in connection with the carriage

rules for satellite carriers

such modified standards in

accordance with the objectives of this section." H.R. Rep. No. 102-862, 102d Cong., 2d Sess. at 67 (1992). Accord

H.R. Rep. No. 102-628, 102d Cong., 2d Sess. at 94 (1992); S. Rep. No. 102-92, 102d Cong., 1st Sess. at 85 (1991).

See also 41 U.S.C. § 3380). which cross-references Section 614(b){4) of the Act in connection with the carriage

rules for satellite carriers.

8 1998 NPRM, 13 FCC Red 15092, supra note 4.

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consent and mandatory carriage when a local television station is broadcasting only a digital signal.9 The

Commission decided that a commercial television station broadcasting both an analog signal and a digital

signal may choose must-carry or retransmission consent for its analog signal and retransmission consent

for its digital signal. 10 The Commission acknowledged that the Act does not specifically require

mand'atory carriage for noncommercial digital television signals, but concluded that Congress did not

intend to exclude such signals from mandatory carriage.

11 As an interim measure during the transition, a

digital-only television station may demand that one of its video programming streams be carried on the

cable system for delivery to subscribers in an analog format. 12

6.

In the First Report and Order, the Commission also concluded that the statutory term

"primary video" required cable operators to carry only a single diftal programming stream of a local

digital television station as well as content related to that stream. 1 The Commission further found that

Section 614(b)(4)(B) of the Act neither requires cable operators to carry nor prohibits them from carrying

both the broadcaster's analog and digital signals (i.e., .. dual carriage") during the transition period.14

7.

In February 2005, the Commission issued the Second Report and Order and First Order

on Reconsideration

ell as content related to that stream. 1 The Commission further found that

Section 614(b)(4)(B) of the Act neither requires cable operators to carry nor prohibits them from carrying

both the broadcaster's analog and digital signals (i.e., .. dual carriage") during the transition period.14

7.

In February 2005, the Commission issued the Second Report and Order and First Order

on Reconsideration. Among other things, the Second Report and Order declined to require cable

operators to carry any more than one programming stream of a digital television station that multicasts.15

The Commission• s actions in the Second Report and Order were limited to questions of carriage of

multiple signals or streams, however. In September 2007, we adopted the Third Report and Order and

Third Further Notice of Proposed Rulemaking ("Viewability Order') in order to address two important

remaining issues. 16

8.

The Viewability Order ensures that all cable TV viewers, including the 98 million analog-

only cable TV viewers, retain the same access to their local stations after the transition as they have

today.17 The rules will require cable operators to comply with the statutory viewability requirement18 by

choosing to either: (1) carry digital signals in analog format, or (2) for all-digital systems, carry the

9 First Report and Order, 16 FCC Red 2598, supra note I.

to Id. at 2610.

11 Id. at 2608.

12 Id. at 2630. This digital-only carriage requirement has applied throughout the transition for new digital-only

stations, as wen as stations given permission to terminate their analog signals and broadcast only a digital signal.

See id. at 2605-06.

13 Id. at 2620-21.

14 Id. at 2600.

15 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules, CS Docket

No. 98-120, Second Report and Order, 20 FCC Red at 4518 (2005)( .

hroughout the transition for new digital-only

stations, as wen as stations given permission to terminate their analog signals and broadcast only a digital signal.

See id. at 2605-06.

13 Id. at 2620-21.

14 Id. at 2600.

15 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules, CS Docket

No. 98-120, Second Report and Order, 20 FCC Red at 4518 (2005)( .. Second Report and Order') (affirming tentative

decision not to impose dual carriage requirements and affirming decision in the First Report and Order not to

impose multicast carriage obligations based on available record).

16 Carriage of Digital Television Broadcast Signals: Amendment to Part 76 of the Commission's Rules, CS Docket

No. 98-120, Third Report and Order and Third Further Notice of Proposed Rule Malcing, 22 FCC Red 21064 (2007)

("Viewability Order').

17 Pre~ Release, FCC, FCC Adopts Rules to Ensure all Cable Customers Receive Local 1V Stations After the

Digital Television Transition, (SepL 11, 2007).

18 47 U.S.C. §§ 534 and 535(g), (h).

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signals only in digital fonnat, provided that all subscribers have the necessary equipment to view the

broadcast content.19 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.

20 The

Commission also reaffinned the existing material degradation standard for cable carriage of digital

broadcast signals, prohibiting preferential treatment of cable programmers or retransmission consent

stations and reiterating the requirement that cable systems carry high definition ("HD") broadcast signals

in HD format. 21

9.

Now, the conclusion of the transition approaches. Therefore, in this Order we explain the

carriage election process for stations that will make their final transition from analog signals to digital

signals for the February 17, 2009, transition deadline.

10

n consent

stations and reiterating the requirement that cable systems carry high definition ("HD") broadcast signals

in HD format. 21

9.

Now, the conclusion of the transition approaches. Therefore, in this Order we explain the

carriage election process for stations that will make their final transition from analog signals to digital

signals for the February 17, 2009, transition deadline.

10.

In addition, although low-power broadcasters are not required to participate in the full-

power digital transition, many have chosen to begin their transition. We therefore also take this

opportunity to clarify the effect on carriage rights of a voluntary transition to digital by a low-power

broadcaster that is qualified for mandatory carriage of its analog signal.

ill.

DISCUSSION

11.

As we approach the deadline for the full-power digital transition, we clarify that the full-

power carriage elections that must be made by October l, 2008, will determine a station's carriage rights

throughout the entire 2009-2011 carriage election cycle. Low-power broadcasters, while not required to

make their transition to digital by February 17, 2009, nevertheless are doing so in increasing numbers,

and will continue to do so of their own volition. For those low-power stations that have the right to

demand carriage by cable operators, we clarify that their statutory carriage rights apply to digital

broadcasting.

A.

Full-Power Carriage Elections

1.

Effect of October 1, 2008 Elections

12.

The Cable Television Consumer Protection and Competition Act of 1992 established the

requirement that ''television stations, within one year after the date of enactment of [the Act] and every

three years thereafter, make an election between the right to grant retransmission consent" to cable

operators or the right to mandatory carriage by those cable operators.22 In compliance with this statutory

mandate, the Commission established a regular schedule for carriage elections

the

requirement that ''television stations, within one year after the date of enactment of [the Act] and every

three years thereafter, make an election between the right to grant retransmission consent" to cable

operators or the right to mandatory carriage by those cable operators.22 In compliance with this statutory

mandate, the Commission established a regular schedule for carriage elections. The election in 1996

covered 1997-1999, the election in 1999 covered 2000-2002, etc. In accordance with this schedule, the

Act requires broadcasters to elect, by October 1, 2008, whether they wish to engage in retransmission

consent negotiations with cable operators or demand carriage on their systems for the three year period

19 Thi~ decision rendered moot the outstanding questions about post-transition carriage of broadcast signals on a

"basic tier" under 47 U.S.C. § 543(b)(7) (raised in the First Report and Order). The requirement that signals carried

pursuant to mandatory carriage be made actually viewable to all subscribers, regardless of their equipment or level

of service, means that a cable operator may provide those signals solely in digital so long as all subscribers are

capable of receiving and viewing digital signals. If some subscribers can only view analog signals, however,

broadcast stations carried pursuant to mandatory carriage must also be made viewable to them.

20 Viewability Order. supra, note 78.

21 Id. See also, 41 U.S.C. §§ 534(b)(4)(A) and 535(8). See also, Carriage of Digital Television Broadcast Signals:

Amendment to Part 76 of the Commission's Rules, CS Docket No. 98-120, Fourth Report and Order, 08-193 (rel.

September 4, 2008) (exempting certain cable systems from some material degradation digital carriage requirements).

22 47 u.s.c. § 325(b)(3)(B).

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rder. supra, note 78.

21 Id. See also, 41 U.S.C. §§ 534(b)(4)(A) and 535(8). See also, Carriage of Digital Television Broadcast Signals:

Amendment to Part 76 of the Commission's Rules, CS Docket No. 98-120, Fourth Report and Order, 08-193 (rel.

September 4, 2008) (exempting certain cable systems from some material degradation digital carriage requirements).

22 47 u.s.c. § 325(b)(3)(B).

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beginning January l, 2009.23 As noted above, full-power broadcasters will cease all analog broadcasts by

midnight on February 17, 2009.

13.

We take this opportunity to clarify that the October 1, 2008, election determines carriage

of a station's signal for the entire 2009-2011 carriage cycle.24 Ha station elects must-carry on October l,

2008, for the 2009-2011 carriage cycle, the cable operator(s) will provide carriage of the station's analog

signal beginning (or continuing) on January 1, 2009, and concluding no earlier than the actual termination

of analog service by that broadcaster. Once the station terminates analog service and begins broadcasting

in digital, the carrier shall commence carriage of the station's digital signal without any gap in carriage.

To facilitate carriage and the final transition process, beginning January 1, 2009, cable operators must

immediately commence carriage of the di~tal signal of stations that cease analog broadcasting prior to

the February 17, 2009, statutory deadline; provided, however, that broadcasters must notify the cable

operator(s) 30 days before the date on which they anticipate termination of their analog signal if it will be

earlier than February 17, 2009.

2.

Channel Placement

14.

We clarify that the channel placement options in Sections 614(b)(6) and 615(g)(5) of the

Act, as im~lemented in Section 76.57 of the Commission's Rules, remain in effect after the digital

transition

ters must notify the cable

operator(s) 30 days before the date on which they anticipate termination of their analog signal if it will be

earlier than February 17, 2009.

2.

Channel Placement

14.

We clarify that the channel placement options in Sections 614(b)(6) and 615(g)(5) of the

Act, as im~lemented in Section 76.57 of the Commission's Rules, remain in effect after the digital

transition.

Section 614(b)(6) of the Act generally provides that commercial television stations carried

pursuant to the mandatory carriage provision are entitled to be carried on a cable system on the same

channel number on which the station broadcasts over-the-air. Under Section 615(g)(5) noncommercial

television stations generally have the same right.27 The Act also permits commercial and noncommercial

television stations to negotiate a mutually agreeable channel position with the cable operator.28

Historically, channel positioning has been ~

of the carriage election process, with must-carry stations

choosing from among the starutory options as part of the must-carry election.

23 Full-power broadcasters may choose to be carried on all of those cable systems in the same DMA to which they

can deliver a good quality signal (must-carry), or they may choose to require those cable systems to seek the

broadcaster's consent before carrying the signal (retransmission consent). 1be broadcaster must notify affected

cable systems if electing retransmission consent, or the station's status will default to must-carry. 47 C.F.R. § 76.64.

24 ~carriage election rule for stations that voluntarily return their analog spectrum allocation and begin operating

as digital-only prior to the 2000-2011 carriage cycle in which the DTV transition concludes provides that .. stations

that return their analog spectrum allocation and broadcast in digital only shall make their initial election any time

between 60 days prior to commencing broadcast and 30 days after ..

rule for stations that voluntarily return their analog spectrum allocation and begin operating

as digital-only prior to the 2000-2011 carriage cycle in which the DTV transition concludes provides that .. stations

that return their analog spectrum allocation and broadcast in digital only shall make their initial election any time

between 60 days prior to commencing broadcast and 30 days after ... commencing broadcasting in digital only; such

initial election shall take effect 90 days after it is made." 47 CFR § 76.64(f)(4).

25 The Third D1V Periodic Report and Order concluded that it is necessary to the completion of the transition to

allow stations the flexibility to pennanently reduce and/or terminate their analog service before the statutory

deadline if necessary to achieve their transition. See generally, Third Periodic Review of the Commission's Rules

and Policies Affecting the Conversion to Digital Television, MB Docket 07-91, Report and Order, 23 FCC Red

2994, 3045-50 and accompanying notes (2007) ("Third D1V Periodic Report and Order').

26 The Third Further Notice of Proposed Rulemaking in the Viewability Order asked how the channel positioning

rules should apply to carriage of more than one version of a must-carry station's signal. Viewability Order, 22 FCC

Red at 21101. We do not address that question in this clarification.

27 47 U.S.C. § 535(g)(5); 47 C.F.R. § 76.57(b).

28 47 u.s.c. §§ 534(b)(6), 535(g)(5).

29 47 U.S.C. §§ 534(b)(6), 535(g)(5). There are four channel positioning options in the Act for commercial television

stations. The statutory options are "the channel on which it was carried on July 19, 1985," ''the channel on which it

was carried on January 1, 1992," "the channel number on which the local commercial television station is broadcast

(continued .... )

14258

4(b)(6), 535(g)(5).

29 47 U.S.C. §§ 534(b)(6), 535(g)(5). There are four channel positioning options in the Act for commercial television

stations. The statutory options are "the channel on which it was carried on July 19, 1985," ''the channel on which it

was carried on January 1, 1992," "the channel number on which the local commercial television station is broadcast

(continued .... )

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15.

As noted above, one of those statutory options is carriage on the broadcast channel

number. In digital broadcasting, a broadcast station's channel number is no longer identified by reference

to its over-the-air radio frequency. Instead, in compliance with the ATSC standard, the station's "major

channel number" is identified in its program and system information protocol (''PSIP"). 30 This usually

corresponds to the radio frequency at which the station previously broadcast its analog signal. Therefore,

in the First Report and Order, the Commission required that channel mapping information be passed

through as part of the PSIP, linking the digital channel number with the appropriate primary video and

program-related content.31 Thus, the cable operator can identify the correct channel location by reference

to the PSIP.

16.

We clarify that any station carried pursuant to mandatory carriage may demand carriage

on its major channel number as broadcast in the station's PSIP. We also clarify that although the First

Report and Order did not specifically address the significance of the statutory provisions and rules with

respect to the "historic" carriage options,32 these statutory options remain available to digital must-carry

broadcasters, who will make digital channel placement elections pursuant to Sections 76.57(a} or {b) just

as they previously have for analog channel placement elections

gh the First

Report and Order did not specifically address the significance of the statutory provisions and rules with

respect to the "historic" carriage options,32 these statutory options remain available to digital must-carry

broadcasters, who will make digital channel placement elections pursuant to Sections 76.57(a} or {b) just

as they previously have for analog channel placement elections. Section 76.57(c}, adopted in the First

Report and Order, should be read as clarifying the manner in which cable operators are to detennine the

channel number on which a local commercial or qualified NCE station is "broadcast over the air" when

implementing such a station's election under Sections 76.57(a) or (b). The statute also permits carriage

on "such other channel number as is mutually agreed upon by the station and the cable operator."33 This

negotiated option, as reflected in our Rules, also remains an option.34 We also note that Section 76.57(f)

continues to apply to determine where a station must be carried if it makes no affirmative election.33

· B.

Low Power Carriage Rights

17.

NCN Cable Advertising, licensee ofWKFK-LP, Pascagoula, Mississippi ("WKFK"),

(Continued from previous page) -----------

over the air", or any alternative channel by mutual agreement. Noncommercial stations may not elect the channel

number on which they were carried on January l, 1992, but otherwise have identical options.

30 The Program and System Infonnation Protocol ("PSIP") contains metadata about both the program currently

being aired and broadcast signal as a whole. One of the most important elements in the PSIP is the Major Channel

Number ( .. MCN"), the channel "location" identified with a given station regardless of its over-the-air broadcast

frequency. ATSC receivers (whether a TV set in a home or a receiver at a cable headend) can use this data to

determine the information that will be displayed to viewers

being aired and broadcast signal as a whole. One of the most important elements in the PSIP is the Major Channel

Number ( .. MCN"), the channel "location" identified with a given station regardless of its over-the-air broadcast

frequency. ATSC receivers (whether a TV set in a home or a receiver at a cable headend) can use this data to

determine the information that will be displayed to viewers. Therefore, if the analog signal of a station was

broadcast on channel 12, its digital signal will appear on channel 12 when tuned by an over-the-air viewer, even if

the signal is being broadcast on a frequency corresponding to, for instance, channel 37. See Program and System

Information Protocol/or Terrestrial Broadcast and Cable, ATSC Document A/65 (Dec. 23, 1997).

31 First Report and Order, 16 FCC Red at 2633-2635.

32 47 U.S.C. §§ 534(b)(6), 535(g)(5); 47 C.F.R. § 76.57(a), (b).

33 47 U.S.C. §§ 534(b)(6), 535(g)(5).

34 See 41 C.F.R. § 76.57(d).

33 47 C.F.R. § 76.57(f) (the signal must be provided on the basic tier on rate regulated systems); Implementation of

tM Cable Television Consumer Protection and Competition Act of 1992:Broadcast Signal Carriage Issues, MM

Docket No. 92-259, Memorandum Opinion And Order, 9 FCC Red 6723 at Cf 53 (1994) (clarifying that the choice

among the statutory channel positioning options remains with the broadcaster unless all of their statutory options are

foreclosed by the prior elections of other must-carry stations); Univision Partnership Of New Jersey v. Comcast

Cablevision Of Danbury, Inc.: Request For Mandatory Carriage Of Television Station WFUT-1V, Newark, New

Jersey, CSR-5906-M, Order on Reconsideration, 17 FCC Red 18,327 (2002). See also Viewability Order, 22 FCC

Red 21064.

14259

broadcaster unless all of their statutory options are

foreclosed by the prior elections of other must-carry stations); Univision Partnership Of New Jersey v. Comcast

Cablevision Of Danbury, Inc.: Request For Mandatory Carriage Of Television Station WFUT-1V, Newark, New

Jersey, CSR-5906-M, Order on Reconsideration, 17 FCC Red 18,327 (2002). See also Viewability Order, 22 FCC

Red 21064.

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filed a petition for a declaratory ruling that the FCC's cable must-carry rules apply to the digital signals of

Class A, LPTV and TV translator stations after those stations flash-cut to digital operation and cease

operating their analog signals. 36 Currently, our Rules provide for cable carriage of low-power stations

(including Class A) in specific and limited circumstances.37 WKFK argues that a clarifying order is

necessary to eliminate uncertainty about digital carriage rights for low-power stations. WKFK is not

seeking new or additional carriage for low-power stations but rather a confirmation that low-power

stations will have the same carriage rights for their digital signals as they currently have for their analog

signals. In addition, WKFK wants low-power stations to have the same downconversion option for their

digital-only signals as digital-only full-power stations have for their digital signals.38

1.

Applicability of 76.SS(d) to Low Power Digital Broadcasters

18.

Under Section 614( c) of the Act and Section 76.56(b )(3) of our Rules, a cable operator is,

in some circumstances, required to carry the signal of one or two "qualified low power stations

o have the same downconversion option for their

digital-only signals as digital-only full-power stations have for their digital signals.38

1.

Applicability of 76.SS(d) to Low Power Digital Broadcasters

18.

Under Section 614( c) of the Act and Section 76.56(b )(3) of our Rules, a cable operator is,

in some circumstances, required to carry the signal of one or two "qualified low power stations. "

39 Like

full-power commercial broadcast stations, low-power stations can earn must-carry status with regard to a

specific cable system by conforming to a series of requirements (laid out in Section 614(h)(2) of the

Act).40 As noted above, the Commission has previously made clear that Section 614(a) of the Act, which

applies to both commercial full-power and low-power stations, "does not distinguish between analog and

digital signals and supports the argument that digital signals are entitled to mandatory carriage. "41 As the

Commission stated in 2001, when a broadcast station that is otherwise entitled to carri~ terminates its

analog signals and operates as a digital-only station, it does not lose its carriage rights.

We clarify here

that this determination applies equally to full- and low-power stations. The First Repon and Order

determined that, for a "limited time," digital-only full-power stations could either demand carriage in

digital or pay to downconvert their signal to analog for carriage in analog. This interim viewability rule

has been in effect since 2001, giving full-power must-carry stations the option to demand analog

downconversion in order to make their signals as widely viewable as possible.

19.

Although the First Repon and Order did not specifically address the carriage of digital

36 Petition of NCN (available in the 98-120 docket) ( .. Petition").

37 47 C.F.R. § 76.55(d).

38 Petition at 15, citing First Report and Order, 16 FCC Red at 2630, para 74.

39

34

47 U.S.C. § 5

the option to demand analog

downconversion in order to make their signals as widely viewable as possible.

19.

Although the First Repon and Order did not specifically address the carriage of digital

36 Petition of NCN (available in the 98-120 docket) ( .. Petition").

37 47 C.F.R. § 76.55(d).

38 Petition at 15, citing First Report and Order, 16 FCC Red at 2630, para 74.

39

34

47 U.S.C. § 5

(c).

40 47 U.S.C. § 534(h)(2). 1be Commission's Rules implementing this section state that a low-power station

becomes qualified for mandatory carriage if the station conforms to the Commission's LP1V rules, broadcasts for at

least the minimum number of homs required of commercial broadcast stations by the Commission, and adheres to

certain Commission requirements regarding non-entertainment programming and employment However, an LPTV

station will not be qualified unless the Commission determines that the provision of programming by such station

would address local news and informational needs not being adequately served by full power television stations,

because such full-power stations are distant from the LPTV station's community of license. In addition, the LPTV

station must comply with the Commission's interference regulations for LPTV stations; it must be within 35 miles of

the cable system's principal headend and deliver to the headend a good quality over-the-air signal; its community of

license and the franchise area of the cable system must both have been located outside of the largest 160

Metropolitan Statistical Areas ( .. MSAs") on June 30, 1990, and the population of the LPTV station's community of

license on that date must not have exceeded 35,000; and there cannot be any full-power television station licensed to

any community within the county or other political subdivision (of a State) served by the cable system. 47 C.F.R. §

76.55(d).

41 First Report and Order, 16 FCC Red at 2605, para 13.

42 Id.

14260

. MSAs") on June 30, 1990, and the population of the LPTV station's community of

license on that date must not have exceeded 35,000; and there cannot be any full-power television station licensed to

any community within the county or other political subdivision (of a State) served by the cable system. 47 C.F.R. §

76.55(d).

41 First Report and Order, 16 FCC Red at 2605, para 13.

42 Id.

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low-power stations, the Commission did tentatively conclude that, as to commercial full-power stations,

low-power stations, and noncommercial educational stations it had "no need to deviate from the existing

eligibility requirements for these three categories of stations.""0 The provisions establishing mandatory

carriage of low-power stations, at Section 614(h)(2) of the Act, make no distinction between digital and

analog low-power stations. fudeed, by their terms these provisions apply to "any television broadcast

station" conforming to the Part 74 Rules and the elements of Section 614(h)(2). The Commission found

in 2061 that simply the absence of a distinction between analog and digital supported mandatory digital

carriage,44 and the stronger wording of Section 614(h)(2) is significantly more persuasive. But, because

of the growing number of low-power stations broadcasting in digital, and the potential for uncertainty, we

see a need to provide additional guidance in this matter. We therefore clarify that qualified low-power

digital-only stations should be accorded the carriage rights they could have demanded for their analog

signal

wording of Section 614(h)(2) is significantly more persuasive. But, because

of the growing number of low-power stations broadcasting in digital, and the potential for uncertainty, we

see a need to provide additional guidance in this matter. We therefore clarify that qualified low-power

digital-only stations should be accorded the carriage rights they could have demanded for their analog

signal. The Communications Act at Section 614(b)(7) requires that all stations carried pursuant to

mandatory carriage, including low-power stations, be made viewable to all subscribers.45 Nonetheless, in

the period remaining before the full-power DTV transition, we will permit cable operators to carry low-

power digital-only stations in the same manner as full-power digital-only stations - in either analog or

digital, at the broadcaster's discretion.46 Thus, if a qualified low-power station becomes digital-only, it

may elect carriage of its signal in digital, or may choose to pay to downconvert the signal for carriage in

analog. As of February 18, 2009, all signals carried pursuant to mandatory carriage must again be made

viewable to all subscribers.

20.

Although the language of the Act and our Rules does not distinguish between analog and

digital-only stations, we do find that the Note to Section 76.55(d) is no longer fully accurate, as it

addresses only the signal strength of analog signals. Just as for commercial full-power stations, the Note

currently states that a good quality signal level for analog is -45 dBm for UHF signals and -49 dBm for

VHF signals

guage of the Act and our Rules does not distinguish between analog and

digital-only stations, we do find that the Note to Section 76.55(d) is no longer fully accurate, as it

addresses only the signal strength of analog signals. Just as for commercial full-power stations, the Note

currently states that a good quality signal level for analog is -45 dBm for UHF signals and -49 dBm for

VHF signals. The Cable Act, which established the -45/-49 dBm standard for commercial full power

stations, is silent on the definition of "good quality signal" for the purposes of carriage of low-power

stations.47 Acknowledging this, in a Memorandum Opinion and Order issued to finalize several questions

regarding implementation of the Cable Act, the Commission, on its own motion, adopted the full-power

commercial signal quality standards for low-power stations (and noncommercial stations). In the 1998

NPRM, the Commission asked whether "new good quality signal parameters" were necessary for digital

signals, and, consistent with the rules established in 1994, made no distinction among commercial,

noncommercial, and low power stations.48 ht the First Report and Order, the Commission established -

61 dBm as the signal level necessary to provide a "good quality digital television signal at a cable

system's principal headend," again making no distinction among commercial, noncommercial, and low-

power stations.49

21.

In line with the Commission's consistent practice of aligning the "good quality signal"

standards for commercial, noncommercial, and low-power stations, we find good cause to adopt, on a

43

6

Id. at 2 21, para. 55.

44 Id. at 2605, para 13.

45 47 U.S.C. §§ 534(b)(7), (c).

46 First Report and Order, 16 FCC Red at 2630, para. 74.

47 See generally Cable Act of 1992, P.L. 102-835.

48 1998 NPRM, 13 FCC Red 15092 at 15119-15120, paras. 55-57.

49 First Report and Order, 16 FCC Red at 2617-18, para. 46. In the Third D'IV Periodic Report and Order, we

codified the -61 dBm standard in the carriage rules

ara. 55.

44 Id. at 2605, para 13.

45 47 U.S.C. §§ 534(b)(7), (c).

46 First Report and Order, 16 FCC Red at 2630, para. 74.

47 See generally Cable Act of 1992, P.L. 102-835.

48 1998 NPRM, 13 FCC Red 15092 at 15119-15120, paras. 55-57.

49 First Report and Order, 16 FCC Red at 2617-18, para. 46. In the Third D'IV Periodic Report and Order, we

codified the -61 dBm standard in the carriage rules. 23 FCC Red at 3075.

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temporary basis, a digital signal strength requirement for carriage of low-power stations also using -61

dBm at the cable system headend. so WKFK' s Petition makes clear that a delay in resolution of this

question could inhibit investment on the part of low-power station owners who seek to transition their

stations to digital.

51 As discussed above, there is ample history supporting an alignment of the full-power

and low-power standards, and thus no basis on which an industry participant might have reasonably

assumed that there would be a distinction between them in digital. Furthermore, the Commission sought

comment on what would constitute a "good quality signal" for all digital signals in the 1998 NPRM, and

there is no evidence in the record that would support making any distinction among digital signals from

different sources. Thus, pending the adoption of a final amendment to the Note to Section 76.55(d), we

will permit low-power mandatory-carriage analog stations that begin broadcasting in digital-only to

demand carriage of their digital signal so long as they provide a signal strength of at least -61 dBm to the

cable system's headend.

2.

Petition for Declaratory Ruling or WKFK

22.

In light of this clarification, we grant WKFK' s request for a declaratory ruling. If WKFK

begins broadcasting in digital-only. it will have rights of carriage on the systems on which it may now

demand carriage, so long as it provides a signal strength of -61 dBm at each system's headend.

IV.

ORDERING CLAUSES

• 23

the

cable system's headend.

2.

Petition for Declaratory Ruling or WKFK

22.

In light of this clarification, we grant WKFK' s request for a declaratory ruling. If WKFK

begins broadcasting in digital-only. it will have rights of carriage on the systems on which it may now

demand carriage, so long as it provides a signal strength of -61 dBm at each system's headend.

IV.

ORDERING CLAUSES

• 23.

IT IS ORDERED that, pursuant to the authority contained in Sections 1, 4, 303, 614, and

615 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154, 303, 534, and 535, this

Declaratory Order IS ADOPfED.

24.

IT IS FURTHER ORDERED that the Petition for Declaratory Ruling filed by NCN

Cable Advertising, licensee of WKFK.-LP. Pascagoula, Mississippi, IS GRANTED to the extent

described herein.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

so 5 U.S.C. § 553(b)(3)(B) (permitting rulemaking without public notice and comment when an agency "for good

cause finds ... that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public

interest").

51 Petition at 9-10.

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