[Federal Register Volume 62, Number 95 (Friday, May 16, 1997)]
[Rules and Regulations]
[Pages 26966-26992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-12527]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. MM 87-268; FCC 97-116]
Advanced Television Systems
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This Report and Order amends the Commission's rules by
adopting service rules to implement digital television. The intended
effect of this action is to promote rapid conversion to and
implementation of digital television. This Report & Order contains new
or modified information collections subject to the Paperwork Reduction
Act of 1995 (PRA), Public Law 104-13. It will be submitted to the
Office of Management and Budget (OMB) for review under section 3507(d)
of the PRA. OMB, the general public, and other Federal agencies are
invited to comment on the new or modified information collections
contained in this proceeding.
DATES: Effective Dates: The new rules are effective June 16, 1997.
Written comments by the public on the new and/or modified information
collections are due July 15, 1997.
[[Page 26967]]
ADDRESSES: In addition to filing comments with the Secretary, a copy of
any comments on the information collections contained herein should be
submitted to Judy Boley, Federal Communications Commission, Room 234,
1919 M Street, N.W., Washington, DC 20554, or via the Internet to
jboley@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Saul Shapiro, Mass Media Bureau, (202)
418-2600, Gretchen Rubin, Mass Media Bureau, Policy and Rules Division,
(202) 418-2120; Mania K. Baghdadi, Mass Media Bureau, Policy and Rules
Division, Legal Branch, (202) 418-2130; Dan Bring, Mass Media Bureau,
Policy and Rules Division, Policy Analysis Branch, (202) 418-2170, or
Gordon Godfrey, Mass Media Bureau, Policy and Rules Division,
Engineering Policy Branch, (202) 418-2190. For additional information
concerning the information collections contained in this Report and
Order contact Judy Boley at 202-418-0214, or via the Internet at
jboley@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Fifth
Report and Order in MM Docket No. 87-268; FCC 97-116, adopted April 3,
1997 and released April 21, 1997. The full text of this Commission
decision is available for inspection and copying during normal business
hours in the FCC Reference Center (Room 239), 1919 M Street, N.W.,
Washington, D.C., and also may be purchased from the Commission's copy
contractor, International Transcription Service, Inc., 2100 M Street,
N.W., Suite 140, Washington, D.C., 20037, (202) 857-3800.
Synopsis of Report and Order
I. Introduction
1. Television has played a critical role in the United States in
the second half of the twentieth century. A technological
breakthrough--digital television--now offers the opportunity for
broadcast television service to meet the competitive and other
challenges of the twenty-first century.1
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\1\ This Fifth Report and Order follows the adoption of a
standard for the transmission of digital television. Fourth Report
and Order (62 FR 14006, March 25, 1997) in MM Docket No. 87-268, 11
FCC Rcd 17771 (1996) (``Fourth Report and Order''). We have
previously issued the following documents in this proceeding. Notice
of Inquiry (52 FR 34259, September 10, 1987) in MM Docket No. 87-
268, 2 FCC Rcd 5125, 5127 (1987) (``First Inquiry''); Tentative
Decision and Further Notice of Inquiry in MM Docket No. 87-268, 3
FCC Rcd 6520 (1988) (``Second Inquiry''); First Report and Order (55
FR 39275, September 26, 1990) in MM Docket No. 87-268, 5 FCC Rcd
5627 (1990) (``First Order''); Notice of Proposed Rule Making (56 FR
58207, November 18, 1991) in MM Docket No. 87-268, 6 FCC Rcd 7024
(1991) (``Notice''); Second Report and Order/Further Notice of
Proposed Rule Making in MM Docket No. 87-268, 7 FCC Rcd 3340 (1992)
(``Second Report/Further Notice''); Second Further Notice of
Proposed Rule Making (57 FR 38652, August 26, 1992) in MM Docket No.
87-268, 7 FCC Rcd 5376 (1992) (``Second Further Notice'');
Memorandum Opinion and Order/Third Report and Order/Third Further
Notice of Proposed Rule Making (57 FR 53588, November 12, 1992) in
MM Docket No. 87-268, 7 FCC Rcd 6924 (1992) (``Third Report/Further
Notice''); Fourth Further Notice of Proposed Rule Making/Third
Notice of Inquiry (60 FR 42130, August 15, 1995) in MM Docket No.
87-268, 10 FCC Rcd 10541 (1995) (``Fourth Further Notice/Third
Inquiry''); Fifth Further Notice of Proposed Rule Making (61 FR
26864, May 29, 1996) in MM Docket No. 87-268, 11 FCC Rcd 6235 (1996)
(``Fifth Further Notice''); Sixth Further Notice of Proposed Rule
Making (61 FR 43209, August 21, 1996) in MM Docket No. 87-268, 11
FCC Rcd 10968 (1996) (``Sixth Further Notice''). We note that we
also adopt today the Sixth Report and Order, MM Docket No. 87-268,
FCC 97-115, released April 21, 1997 (``Sixth Report and Order'').
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2. The Telecommunications Act of 1996 (``1996 Act'') provided that
initial eligibility for any advanced television licenses issued by the
Commission should be limited to existing broadcasters, conditioned on
the eventual return of either the current 6 MHz channel or the new
digital channel. Today we adopt rules to implement the statute. Our
rules are designed to give digital television the greatest chance to
meet its potential. We recognize the challenges that will be faced by
broadcasters in adopting this new technology. Accordingly, we have
generally refrained from regulation and have sought to maximize
broadcasters' flexibility to provide a digital service to meet the
audience's needs and desires. Where appropriate, however, we have
adopted rules we believe will ensure a smooth transition to digital
television for broadcasters and viewers. These rules include an
aggressive but reasonable construction schedule, a requirement that
broadcasters continue to provide a free, over-the-air television
service, and a simulcasting requirement phased in at the end of the
transition period. Further, we recognize that digital broadcasters
remain public trustees with a responsibility to serve the public
interest.
II. Issue Analysis
A. Goals
3. Digital technology holds great promise. It allows delivery of
brilliant, high-definition, multiple digital-quality programs, and
ancillary and supplementary services such as data transfer. In recent
years, competition in the video programming market has dramatically
intensified. Cable, Direct Broadcast Satellite (DBS), Local Multipoint
Distribution System (LMDS), wireless cable, Open Video Systems (OVS)
providers, and others vie, or will soon vie, with broadcast television
for audience. Many operators in those services are poised to use
digital. The viability of digital broadcast television will require
millions of Americans to purchase digital television equipment. Because
of the advantages to the American public of digital technology--both in
terms of services and in terms of efficient spectrum management--our
rules must strengthen, not hamper, the possibilities for broadcast
DTV's success.
4. In the Fourth Further Notice/Third Inquiry (60 FR 42130, August
15, 1995), we outlined the goals of: ``(1) preserving a free, universal
broadcasting service; (2) fostering an expeditious and orderly
transition to digital technology that will allow the public to receive
the benefits of digital television while taking account of consumer
investment in NTSC television sets; (3) managing the spectrum to permit
the recovery of contiguous blocks of spectrum, so as to promote
spectrum efficiency and to allow the public the full benefit of its
spectrum; and (4) ensuring that the spectrum--both ATV channels and
recovered channels--will be used in a manner that best serves the
public interest.'' In the context of the implementation of a DTV
standard, we also enumerated the goals: ``(1) to ensure that all
affected parties have sufficient confidence and certainty in order to
promote the smooth introduction of a free and universally available
digital broadcast television service; (2) to increase the availability
of new products and service to consumers through the introduction of
digital broadcasting; (3) to ensure that our rules encourage
technological innovation and competition; and (4) to minimize
regulation and assure that any regulations that we do adopt remain in
effect no longer than necessary.'' These goals can be distilled into
the two essential objectives that underlie the decisions we make today.
5. First, we wish to promote and preserve free, universally
available, local broadcast television in a digital world. Only if DTV
achieves broad acceptance can we be assured of the preservation of
broadcast television's unique benefit: free, widely accessible
programming that serves the public interest. DTV will also help ensure
robust competition in the video market that will bring more choices at
less cost to American consumers. Particularly given the intense
competition in video programming, and the move by other video
programming providers to adopt digital technology, it is desirable to
encourage broadcasters to offer digital
[[Page 26968]]
television as soon as possible. We make decisions today designed to
promote the viability of digital television services. Digital
broadcasters must be permitted the freedom to succeed in a competitive
market, and by doing so, attract consumers to digital. In addition,
broadcasters' ability to adapt their services to meet consumer demand
will be critical to a successful initiation of DTV.
6. Second, we wish to promote spectrum efficiency and rapid
recovery of spectrum. Decisions that promote the success of digital
television--our first goal--promote this goal as well. The more quickly
that broadcasters and consumers move to digital, the more rapidly
spectrum can be recovered and then be reallocated or reassigned, or
both. The faster broadcasters roll out digital television, the earlier
we can recover spectrum.
7. Our decisions today further these goals. They ensure that
broadcasters have more flexibility in their business. Broadcasters will
be able to experiment with innovative offerings and different service
packages as they continue to provide at least one free program service
and meet their public-interest obligations. We choose to impose few
restrictions on broadcasters and to allow them to make decisions that
will further their ability to respond to the marketplace. We leave to
broadcasters' business judgment such decisions as whether to provide
high definition television or whether, initially, to simulcast the NTSC
stream on DTV, and what and how many ancillary and supplementary
services to provide. To aid the launch of digital services, we provide
for a rapid construction of digital facilities by network-affiliated
stations in the top markets, in order to expose a significant number of
households, as early as possible, to the benefits of DTV. We require
those most able to bear the risks of introducing digital television to
proceed most quickly. Our decisions here will foster the swift
development of DTV, which should enable us to meet our target of ending
NTSC service by 2006. To permit careful monitoring of the development
of digital television and an opportunity to reassess the decisions we
make today, we intend to conduct a review of DTV every two years until
the cessation of NTSC service.
B. Channel Bandwidth
8. Background. In the Fourth Further Notice/Third Inquiry, (60 FR
42130, August 15, 1995), we noted that we had previously decided that
DTV would be introduced by assigning existing broadcasters a temporary
channel on which to operate a DTV station during the transition
period.2 We also noted that the DTV transmission system was
designed for a 6 MHz channel and added that ``we continue to believe
that providing 6 MHz channels for ATV purposes represents the optimum
balance of broadcast needs and spectrum efficiency.'' 3
Nonetheless, we invited comment on any means of achieving greater
spectrum efficiency, and, in this section, we will discuss whether 6
MHz channels should be allotted.
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\2\ Fourth Further Notice/Third Inquiry, (60 FR 42130, August
15, 1995) supra at 10543. We decided to continue use of the 6 MHz
channel early in this proceeding. Third Report/Further Notice (57 FR
53588, November 12, 1992), supra at 6926; see also First Order,
supra at 5627-29.
\3\ Fourth Further Notice/Third Inquiry (60 FR 42130, August 15,
1995), supra at 10543. Indeed, the DTV Standard subsequently adopted
in the Fourth Report and Order (62 FR 14006, March 25, 1997) (``DTV
Standard'') is predicated upon the use of a 6 MHz channel.
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9. Comments. All broadcasters filing comments support affording a
second 6 MHz channel per broadcaster for DTV. Joint Broadcasters, for
example, state that the entire 6 MHz is required; assigning less would
deprive the public of HDTV and set back the transition, because the
Grand Alliance system presupposes 6 MHz channels, and anything
different would require an entirely new design and testing program.
Additionally, equipment manufacturers generally support the provision
of 6 MHz channels for DTV purposes, noting that 6 MHz of spectrum is
required for HDTV broadcasts.
10. However, Media Access Project, et al. (``MAP'') argues that the
Commission should provide broadcasters only enough spectrum to provide
one ``free'' digital program service, either by allocating less than 6
MHz channels to broadcasters, by allocating the spectrum to others and
only affording broadcasters ``must carry'' rights; or by allocating the
spectrum to broadcasters but requiring them to lease out excess
capacity to unaffiliated programmers. Further, Home Box Office
(``HBO'') asserts that if the Commission determines that the public
interest demands Standard Definition Television (``SDTV'') or other
auxiliary applications, it must take another look at whether an entire
6 MHz slice of new spectrum should go to incumbent broadcasters.
11. Decision. We invited comment in the Fourth Further Notice/Third
Inquiry (60 FR 42130, August 15, 1995) on any means of achieving
greater spectrum efficiency. Based on the comments, we continue to
believe that providing 6 MHz channels for DTV purposes ``represents the
optimum balance of broadcast needs and spectrum efficiency.'' We do not
believe that greater spectrum efficiency can be achieved by adopting a
different channel size. Indeed, use of 6 MHz channels would facilitate
spectrum efficiency because making the DTV channel the same width as
the analog channel will afford greater flexibility at the end of the
transition in terms of the choice of channel the broadcaster retains
for DTV purposes.
12. Moreover, contrary to those comments that disagreed with
allotting 6 MHz channels for DTV, we believe that the use of 6 MHz
channels is necessary to provide viewers and consumers the full
benefits of digital television made possible by the DTV Standard,
including high definition television (``HDTV''), standard definition
television, and other digital services. The DTV Standard was premised
on the use of 6 MHz channels. To specify a different channel size at
this late date would not promote our goals in adopting the DTV Standard
and would prolong the conversion to DTV. Specifically, we believe that
failing to specify a 6 MHz channel would undermine our goals, expressed
in the Fourth Report and Order (62 FR 14006, March 25, 1997), of
fostering an expeditious and orderly transition to digital technology
and managing the spectrum to permit the recovery of contiguous blocks
of spectrum and promote spectrum efficiency. The conversion to DTV
would undoubtedly be significantly delayed if we set aside the
longstanding expectations of the parties, on which they have based the
technology and established their plans, and specified a different
channel bandwidth. Accordingly, we reaffirm our earlier judgment and
will allot 6 MHz channels for DTV.
C. Eligibility
13. Background. We proposed to limit initial eligibility for DTV
channels to existing broadcasters. Our proposed criteria for existing
broadcasters included full-service television broadcast station
licensees, permittees authorized as of October 24, 1991, and parties
with applications for a construction permit on file as of October 24,
1991, who are ultimately awarded a full-service broadcast license.
After release of the Fourth Further Notice/Third Inquiry (60 FR 42130,
August 15, 1995), Congress statutorily addressed eligibility in the
1996 Act. Congress instructed the Commission to limit the initial
eligibility for advanced television licenses to persons that, as of the
date
[[Page 26969]]
of the issuance of the licenses, are licensed to operate a television
broadcast station or hold a permit to construct such a station. The
1996 Act did not change the fact that the Commission lacks statutory
authority to auction broadcast spectrum.
14. Comments. We sought comment on the potential impact of the
eligibility restriction on the Commission's policy of fostering
programming and ownership diversity. Few commenters address this topic.
However, some commenters address the basic issue of the eligibility
restriction. For example, some argue that allowing broadcasters to
offer subscription services without opening up that opportunity to
competitors would violate the legal principles enunciated in Ashbacker
Radio Corporation v. FCC, 326 U.S. 327 (1945), discussed below. Others
maintain that the Commission faces an Ashbacker problem unless it
mandates that broadcasters provide HDTV. General Instrument argues that
``allowing existing broadcasters too much ``flexible use' of the 6 MHz
ATV allocation raises the Ashbacker problem by changing the primary
service provided rather than merely modifying existing licenses,'' but
that the Commission could avoid Ashbacker problems by requiring that
the predominant use of the DTV spectrum be for HDTV transmission. HBO
argues that if we were to allow the DTV channel to be put to uses other
than HDTV, for which broadcasters have no more established interest or
expertise than potential competing applicants, the public interest
rationale for granting the spectrum to incumbents without a competitive
process would evaporate.
15. Another eligibility issue raised by commenters concerns the
restriction of initial eligibility to full-service licensees. LPTV
commenters such as Abacus Television point out the contribution that
LPTV stations make in providing television service to underserved areas
as well as the local and specialized nature of the services they
provide. These comments also contend that the Commission has long found
that diversification of mass media ownership serves the public interest
by promoting diversity of program and service viewpoints and by
preventing undue concentration of economic power. According to Abacus
Television, excluding LPTV from the analog to digital transition would
undermine these principles. Further, Abacus argues, it would exclude
the vast majority of minority television licensees and permittees and
is antithetical to increasing ownership diversity. Abacus argues that
the Commission should perform a market-by-market analysis to determine
which LPTV stations could be accommodated; absent that, it could
minimize the effect on LPTV stations by adding a second phase to the
process of creating a Table of Allotments to address the accommodation
of LPTV service next, after it has begun the conversion process for
full power television licensees. It offers suggestions on how to carry
out this phase. WatchTV, Inc. also argues that the Commission should
make unused digital channels available to existing low power operators
on the same terms and conditions as it may adopt for small market
broadcasters and educational licensees before it allows new entrants to
apply. Additionally, White Eagle Partners believes that LPTV stations
should be eligible to receive 6 MHz DTV channels.
16. Still other LPTV commenters argue that neither LPTV stations
nor full service stations should be afforded a second 6 MHz channel.
Community Broadcasters Association (``CBA'') believes that a dual
channel DTV scenario would be an inefficient use of spectrum, requiring
not only immense private investment, but also leading to a host of
logistical and other problems that will negate many of the benefits of
DTV. CBA argues that full power and LPTV stations should be permitted
to convert to DTV on their present channel at any time.
17. Decision. In the 1996 Act, Congress specifically addressed the
eligibility issue. Congress provided that the Commission ``should limit
the initial eligibility for [DTV] licenses to persons that, as of the
date of such issuance, are licensed to operate a television broadcast
station or hold a permit to construct a station (or both) * * *. '' In
comments filed before passage of the 1996 Act, some parties argue that
granting incumbent broadcasters the exclusive right to apply for the
DTV spectrum raises potential problems under Ashbacker Radio
Corporation v. FCC, 326 U.S. 327 (1945), and its progeny. Other
commenters argue similarly that Ashbacker concerns are raised unless
the Commission imposes an HDTV mandate. However, given Congress'
explicit direction, there is now no statutory basis to question the
Commission's authority to limit initial eligibility to existing
broadcasters. Following Congress' direction, we determine that initial
eligibility should be limited to those broadcasters who, as of the date
of issuance of the initial licenses, hold a license to operate a
television broadcast station or a permit to construct such a station,
or both.4
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\4\ Our eligibility criteria are consistent with the provisions
of section 336 of the 1996 Act. 47 U.S.C. Sec. 336. We have made the
initial assignment of channels in the accompanying Sixth Report and
Order and adopted criteria for the allotment of additional DTV
channels. We will give particular consideration for assigning
temporary DTV channels to new licensees who applied on or before
October 24, 1991, given the reliance that these parties may have
placed on rules we adopted before passage of the 1996 Act. Second
Report/Further Notice (57 FR 21755, May 22, 1992), supra, at 3343,
clarified, Third Report/Further Notice (57 FR 53588, November 12,
1992), supra at 6932-33.
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18. We will continue our previously adopted policy to limit initial
eligibility for DTV licenses to existing full-power broadcasters. We
previously determined that there is insufficient spectrum to include
LPTV stations and translators, which are secondary under our rules and
policies, to be initially eligible for a DTV channel. As we noted in
the Sixth Further Notice (61 FR 43209), in order to provide DTV
allotments for existing full service stations, it will be necessary to
displace LPTV stations and TV translator stations to some degree,
especially in major markets. We have not been able to find a means of
resolving this problem. However, we note that limiting initial
eligibility to full-power broadcasters does not necessarily exclude
LPTV stations from the conversion to digital television. Moreover, in
the Sixth Further Notice (61 FR 43209), we made a number of proposals
to mitigate the impact on LPTV stations, and, in the Sixth Report and
Order, we adopt a number of measures intended to minimize the impact of
DTV implementation on LPTV service.
D. Definition of Service
1. Spectrum Use
19. Background. The Fourth Further Notice/Third Inquiry (60 FR
42130, August 15, 1995) reaffirmed our intention to preserve and
promote universal, free, over-the-air television. We recognized that
broadcast television has become an important part of American life and
thus stated ``we envision that the 6 MHz channel earmarked for [DTV]
will be used for free, over-the-air broadcasting.'' We also recognized
the increased flexibility that DTV offered broadcasters and noted that
``allowing at least some level of flexibility would increase the
ability of broadcasters to compete in an increasingly competitive
marketplace, and would allow them to serve the public with new and
innovative services.''
20. The DTV Standard, adopted by the Commission in the Fourth
Report and
[[Page 26970]]
Order (62 FR 14006, March 25, 1997), permits broadcasters to offer a
variety of services. It allows broadcasters to offer free television of
higher resolution than analog technology. It allows the broadcast of at
least one, and under some circumstances two, high definition television
programs; and it allows ``multicasting,'' the simultaneous transmission
of three, four, five, or more digital programs. The Standard also
allows for the broadcast of CD-quality audio signals. And it permits
the rapid delivery of large amounts of data: an entire edition of the
local newspaper in less than two seconds, sports information, computer
software, telephone directories, stock market updates, interactive
educational materials and, indeed, any information that can be
translated into digital bits. In addition to allowing broadcasters to
transmit video, voice, and data simultaneously, the DTV Standard allows
broadcasters to do so dynamically, meaning that they can switch back
and forth quickly and easily. For example, a broadcaster could transmit
a news program consisting of four separate SDTV programs for local
news, national news, weather and sports; while interrupting that
programming with a single high definition television commercial with
embedded data about the product; or transmit a motion picture in a high
definition format, while simultaneously using the excess capacity for
transmission of data unrelated to the movie.
21. In light of the flexibility and new capabilities of digital
television, we asked to what extent we should permit broadcasters to
use their DTV spectrum for uses other than free, over-the-air
television. Recognizing that broadcasters are currently allowed to use
a portion of their broadcast spectrum for ancillary or supplementary
uses that do not interfere with the primary broadcast signal, we asked
whether we should permit such uses of the DTV spectrum, and, if so, how
such uses should be defined and what portion of the DTV system's
capacity should be allowed for such ancillary and supplementary
services. Assuming we permitted ancillary and supplementary services,
we also asked to what extent we should allow broadcasters to use DTV
spectrum for services that go beyond traditional broadcast television
or ancillary and supplementary uses analogous to those allowed under
the current regulatory structure. We also asked whether broadcasters
should be permitted to provide nonbroadcast and/or subscription
services, and, if permitted, how such services should be defined, how
much of the DTV capacity should be allowed for such uses, and what, if
any, regulation would be appropriate for such services.
22. Comments. Most commenters support affording flexibility to
broadcasters to provide ancillary and supplementary services. Joint
Broadcasters favor the provision of any ancillary and supplementary
services other than those limited by the Telecommunications legislation
then pending. Viacom urges that DTV licensees should be authorized to
explore the full potential of the ATSC DTV system as long as those uses
do not adversely affect the broadcaster's free video service. AAPTS/PBS
favors ancillary broadcast and nonbroadcast use of the DTV channel,
noting that flexible use will serve the public interest by helping to
spur development of new technologies and to provide greater
opportunities for noncommercial stations to enhance their public
service to their respective communities. A noncommercial station could,
for example, utilize digital transmission to distribute program-related
course materials, textbooks, student and teacher guides, computer
software and content areas of the World Wide Web as part of the
station's instructional programming. Further, noncommercial stations
could use ancillary and supplementary services, without regard to the
educational content, as a revenue source to support nonprofit services
and operations and the transition to DTV.
23. Microsoft argues that licensees should be given maximum
flexibility to provide a wide variety of services and any definition of
free over-the-air broadcasting should be narrowly defined in the DTV
environment. Texas Instruments, Inc. (``Texas Instruments'') argues
that it is premature for the Commission to regulate the mix of DTV
services by requiring a certain amount of capacity to be used for video
programming; freedom from regulatory restraints will enhance
television's functionality and appeal beyond entertainment to encompass
new and unforeseen services.
24. Equipment manufacturers such as General Instrument, Motorola,
Thomson, and Zenith, and EIA urge that the Commission should permit
flexible use of the DTV channel consistent with the preservation of
free over-the-air television and as long as there is a substantial
commitment to HDTV. Motorola, however, supports a more restrictive
definition of ancillary services. The Digital Grand Alliance states
that, while the predominant use should be for free over-the-air
television and a minimum number of HDTV hours should be broadcast, the
Commission should permit flexible uses of the DTV channel. Cohen,
Dippell and Everist argues that a broadcaster should be permitted to
provide new and innovative services that do not cause objectionable
interference to existing users, provided that the primary use is
broadcasting to the general public.
25. NYNEX and Personal Communications Industry Association
(``PCIA'') urge that the primary use of the DTV channel should be free
over-the-air broadcasting. NYNEX urges that allowing broadcasters to
provide nonbroadcast and subscription services would threaten free,
universal broadcasting and should be permitted only as a residual use
of spectrum capacity. PCIA urges that a DTV licensee should be
permitted to offer broadcast-related services, such as closed
captioning, pay programming, broadcast or narrowcast audio service, and
home shopping, but should not be allowed to offer mobile radio services
like paging without open competition for DTV licenses by all qualified
applicants. Golden Orange suggests that the Commission should permit
all types of broadcast ancillary services that do not cause
interference to the primary HDTV requirement it urges the Commission to
adopt, but that the Commission should not permit nonbroadcast services
or non-TV subscription services. HBO argues that the second channel
should be used for HDTV and opposes affording broadcasters flexible use
of the channel, but adds that if the Commission permits flexibility in
the use of the channel, it should nonetheless require that a
substantial portion of the day be devoted to HDTV programming. The
Benton Foundation opposes spectrum flexibility as affording
broadcasters an unfair competitive advantage over competitors and
argues that the principal use of the second channel, defined as a
minimum of 75% of capacity, should be for broadcast.
26. Broadcasters, as a group, express their staunch support for the
continuation of our tradition of universal and free broadcast
television. For example, the comments of the Joint Broadcasters, a
group constituting a wide cross-section of broadcast television
stations and networks, emphasize broadcasters' commitment to provision
of free television service. ALTV, Pacific FM, and Busse argue that
broadcasters should be required to offer at least one free over-the-air
channel enhanced by digital technology but should otherwise be
unfettered as to the
[[Page 26971]]
services they provide. MAP and the Benton Foundation argue that because
broadcasters will receive free and exclusive use of the broadcast
spectrum, free, over-the-air broadcasting should comprise no less than
75% of a broadcaster's capacity.
27. Decision. As we have noted before, an overarching goal of this
proceeding is to promote the success of a free, local television
service using digital technology. Broadcast television's universal
availability, appeal, and the programs it provides--for example,
entertainment, sports, local and national news, election results,
weather advisories, access for candidates and public interest
programming such as education television for children--have made
broadcast television a vital service. It is a service available free of
charge to anyone who owns a television set, currently 98% of the
population.
28. We expect that the fundamental use of the 6 MHz DTV license
will be for the provision of free over-the-air television service. In
order to ease the transition from our current analog broadcasting
system to a digital system, we will require broadcasters to provide on
their digital channel the free over-the-air television service on which
the public has come to rely. Specifically, broadcasters must provide a
free digital video programming service the resolution of which is
comparable to or better than that of today's service and aired during
the same time periods that their analog channel is broadcasting.
5
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\5\ For example, a broadcaster who provides programming on its
analog channel from 6:00 am until midnight must provide a free over-
the-air digital signal during those hours.
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29. We wish to preserve for viewers the public good of free
television that is widely available today. At the same time, we
recognize the benefit of permitting broadcasters the opportunity to
develop additional revenue streams from innovative digital services.
This will help broadcast television to remain a strong presence in the
video programming market that will, in turn, help support a free
programming service. Thus, we will allow broadcasters flexibility to
respond to the demands of their audience by providing ancillary and
supplementary services that do not derogate the mandated free, over-
the-air program service. Ancillary and supplementary services could
include, but are not limited to, subscription television programming,
computer software distribution, data transmissions, teletext,
interactive services, audio signals, and any other services that do not
interfere with the required free service.
30. This decision is supported by the overwhelming weight of the
record. Consistent with precedent that has treated telecommunications
services provided by an NTSC station other than the regular television
program service as ancillary, we will consider as ancillary and
supplementary any service provided on the digital channel other than
free, over-the-air services. In addition, we will not impose a
requirement that the ancillary and supplementary services provided by
the broadcaster must be broadcast-related.
31. The approach we take here, of allowing broadcasters flexibility
to provide ancillary and supplementary services is supported both
generally and specifically by the 1996 Act, enacted after issuance of
the Fourth Further Notice/Third Inquiry (60 FR 42130, August 15, 1995).
In general, the 1996 Act seeks ``[t]o promote competition and reduce
regulation in order to secure lower prices and higher quality services
for American telecommunications consumers and encourage the rapid
deployment of new telecommunications technologies.'' More importantly,
the 1996 Act specifically gives the Commission discretion to determine,
in the public interest, whether to permit broadcasters to offer such
services. section 336(a)(2) of the Communications Act, contained in
section 201 of the 1996 Act, provides that if the Commission issues
additional licenses for advanced television services, it ``shall adopt
regulations that allow the holders of such licenses to offer such
ancillary or supplementary services on designated frequencies as may be
consistent with the public interest, convenience, and necessity.''
32. Section 336(b)(2) sets out the specific parameters of our
authority to permit ancillary and supplementary services, 6
and the approach we take here fully complies with those parameters.
Thus, under section 336(b)(2), the Commission is required to limit
ancillary and supplementary services to avoid derogation of any
advanced television services that the Commission may require. The
Commission has exercised its discretion and is requiring broadcasters
to continue to provide the free over-the-air service on which the
public has come to rely. We herein require that any ancillary and
supplementary services broadcasters provide will not derogate that
required service. Further, section 336(b)(1) requires that the
Commission may only permit broadcasters to offer ancillary or
supplementary services ``if the use of a designated frequency for such
services is consistent with the technology or method designated by the
Commission for the provision of advanced television services* * *.''
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\6\ Section 336(b) of the Communications Act, also added by
section 201 of the 1996 Act, provides that in prescribing the
regulations required by Section 336(a), the Commission shall:
(1) only permit such licensee or permittee to offer ancillary or
supplementary services if the use of a designated frequency for such
services is consistent with the technology or method designated by
the Commission for the provision of advanced television services;
(2) limit the broadcasting of ancillary or supplementary
services on designated frequencies so as to avoid derogation of any
advanced television services, including high definition television
broadcasts, that the Commission may require using such frequencies;
(3) apply to any other ancillary or supplementary service such
of the Commission's regulations as are applicable to the offering of
analogous services by any other person, except that no ancillary or
supplementary service shall have any rights to carriage under
section 614 or 615 or be deemed to be a multichannel video
programming distributor for purposes of section 628;
(4) adopt such technical or other requirements as may be
necessary or appropriate to assure the quality of the signal used to
provide advanced television services, and may adopt regulations that
stipulate the minimum number of hours per day that such signal must
be transmitted; and
(5) prescribe such other regulations as may be necessary for the
protection of the public interest, convenience, and necessity.
(6) 47 U.S.C. Sec. 336(b).
---------------------------------------------------------------------------
33. Moreover, we believe that the approach we take here will serve
the public interest by fostering the growth of innovative services to
the public and by permitting the full possibilities of the DTV system
to be realized. One of our goals is to promote spectrum efficiency.
Encouraging an expeditious transition from analog to digital television
and a quick recovery of spectrum will promote that goal. By permitting
broadcasters to assemble packages of services that consumers desire, we
will promote the swift acceptance of DTV and the penetration of DTV
receivers and converters. That, in turn, will help promote the success
of the free television service. As discussed above, digital television
promises a wealth of possibilities in terms of the kinds and numbers of
enhanced services that could be provided to the public. Indeed, we
believe that giving broadcasters flexibility to offer whatever
ancillary and supplementary services they choose may help them attract
consumers to the service, which will, in turn, hasten the transition.
In addition, the flexibility we authorize should encourage
entrepreneurship and innovation. For example, it may encourage the
development of compression technologies that could allow even more
digital capacity on a 6 MHz channel, paving the way for multiple high
definition programs and more free
[[Page 26972]]
programming than would otherwise be offered.
34. There is no public interest harm in permitting ancillary and
supplementary services; indeed, to the contrary, allowing such services
contributes to efficient spectrum use and can expand and enhance use of
existing spectrum. In this case, technological advancements, i.e.,
digital technology, have made it possible for broadcasters to provide
continuing free, over-the-air service and still have the capacity to
provide other innovative services. It would be contrary to the public
interest to handicap broadcasters in providing these services and to
deprive consumers of the opportunity to purchase the services they
desire. We note, however, that we will review our flexible approach to
permitted ancillary and supplementary services during the periodic
reviews established herein and make adjustments to our rules as needed.
35. We note that the 1996 Act requires the Commission to establish
a fee program for ancillary or supplementary services provided by
digital licensees if subscription fees are required in order to receive
such services or if the licensee directly or indirectly receives
compensation from a third party in return for transmitting material
furnished by such third party (other than commercial advertisements
used to support broadcasting for which a subscription fee is not
required). We will issue a Notice to consider proposals as to how that
statutory provision should be implemented.
36. In addition, consistent with the 1996 Act, non-broadcast
services provided by digital licensees will be regulated in a manner
consistent with analogous services provided by other persons or
entities. We already follow such an approach with respect to ancillary
and supplementary services provided by NTSC licensees, for example, on
the VBI and the video portion of the analog signal.
2. High Definition
37. Background. In the Fourth Further Notice/Third Inquiry (60 FR
42130, August 15, 1995), the Commission noted that the Grand Alliance
system would provide broadcasters new flexibility and new capabilities
to provide not only high definition television but also multiple
program streams, as well as a variety of nonvideo and/or subscription-
based services. After noting that allowing at least some level of
flexibility would increase the ability of broadcasters to compete in an
increasingly competitive marketplace, would permit new and innovative
services to be provided to the public, and would allow for a more rapid
transition to digital broadcasting, the Commission requested comment as
to whether it should require broadcasters to provide a minimum amount
of high definition television and, if so, what minimum amount should be
required.
Comments. Many commenters are opposed to a minimum HDTV
requirement. Commenters urging the Commission not to apply a minimum
HDTV requirement but rather to leave that determination to the
marketplace and thus to broadcasters and viewers include the National
Association of Broadcasters (``NAB''), ALTV, the Benton Foundation,
Microsoft Corporation, Telemundo Group, Inc. (``Telemundo''), and
AAPTS/PBS. NAB notes that mandating a certain amount of HDTV could
impair broadcasters' ability rapidly to fuel development of the DTV
market with complementary program offerings and could prolong the
transition to digital television. NAB states: ``By providing maximum
latitude, the Commission will encourage development of diverse new
programming services that will facilitate the most rapid acceptance of
ATV and lead to the most rapid return of NTSC spectrum.'' ALTV states
that a minimum HDTV requirement would be burdensome and, moreover,
superfluous because the broadcast industry has maintained its
commitment to implement HDTV. According to ALTV, independent stations
rely on syndicated and local programming, which is less likely to be
produced in an HDTV format, so a minimum HDTV requirement would have a
disproportionately burdensome impact on independents. ALTV states that
any minimum HDTV requirement, if and when justified by future
circumstances, should be adopted later in the transition, as more HDTV
programming comes on the market. Telemundo notes that a minimum HDTV
requirement would negatively impact foreign language stations and
networks, many of which feature programming produced outside the United
States, where HDTV production is likely to lag domestic HDTV
production. AAPTS and PBS, in joint comments, oppose a minimum HDTV
requirement, noting that the Commission can rely on broadcasters and
public television's commitment to HDTV, and argue that if the
Commission adopts an HDTV requirement, it should be ``liberally
waived'' for noncommercial stations (particularly those analog stations
that may share a DTV channel in the transition). The Benton Foundation
argues that mandating an HDTV minimum serves no public interest because
it does not increase the number of voices in the marketplace or
contribute to the civic discourse of democracy.
39. Support for a minimum HDTV requirement is expressed by three
networks, HBO, NYNEX Corporation, receiver manufacturers, Viacom,
Golden Orange Broadcasting Co., Inc. (``Golden Orange''), and the
National Consumers League. Supporters of a minimum requirement
generally argue that a requirement will help promote the early
availability of HDTV programming, create demand for HDTV receivers,
stimulate the market, and speed the transition. Golden Orange, for
example, notes that without HDTV, the public will not be motivated to
buy receivers. HBO argues that the legal and policy principles that
justify awarding incumbent broadcasters a second channel for DTV do not
permit broadcasters to use this second channel for any thing other than
HDTV programming, and, if the FCC allows other than HDTV programming,
it should require that a substantial portion of the broadcast day,
especially during dayparts and prime time, be devoted exclusively to
HDTV. These commenters vary on the amount of HDTV programming that
should be required and on how the minimum should be implemented.
40. While believing that the marketplace is the best determinant of
the optimum balance between HDTV and other DTV services, Joint
Broadcasters support a minimum HDTV requirement if necessary to assure
HDTV a fair chance in the marketplace. Joint Broadcasters also declare
their support for HDTV as the ``centerpiece'' of the digital television
system and note the commitment of many broadcast organizations to
provide HDTV. MAP, which supports allotting only enough capacity to
broadcasters to provide one free, over-the-air, digital program
service, argues accordingly that there is little reason for the
Commission to mandate HDTV. However, MAP notes that the only
justification for affording broadcasters exclusive use of the entire 6
MHz of spectrum is that they will deliver significant amounts of HDTV
programming.
41. Decision. Our decisions today, and our previous adoption of the
DTV Standard, give broadcasters the opportunity to provide high
definition television programming, but we decline to impose a
requirement that broadcasters provide a minimum amount of such
programming and, instead, leave this decision to the discretion of
licensees. The DTV
[[Page 26973]]
Standard will allow broadcasters to offer the public high definition
television, as well as a broad variety of other innovative services. We
believe that we should allow broadcasters the freedom to innovate and
respond to the marketplace in developing the mix of services they will
offer the public. In this regard, we endeavor to carry out the premises
of the 1996 Act which, as noted above, seeks ``[t]o promote competition
and reduce regulation in order to secure lower prices and higher
quality services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications
technologies.'' There is no reason to involve the government in a
decision that should properly be based on marketplace demand. The 1996
Act specifically affords the Commission discretion whether or not to
require minimum high resolution television programming.7
---------------------------------------------------------------------------
\7\ 47 U.S.C. 336(b)(2), adopted by section 201 of the 1996 Act.
---------------------------------------------------------------------------
42. Our decisions to adopt the DTV Standard and to use 6 MHz
channels permit broadcasters to provide high definition television in
response to viewer demand. If we do not mandate a minimum amount of
high resolution television, we anticipate that stations may take a
variety of paths: some may transmit all or mostly high resolution
television programming, others a smaller amount of high resolution
television, and yet others may present no HDTV, only SDTV, or SDTV and
other services. We do not know what consumers may demand and support.
Since broadcasters have incentives to discover the preferences of
consumers and adapt their service offerings accordingly, we believe it
is prudent to leave the choice up to broadcasters so that they may
respond to the demands of the marketplace. A requirement now could
stifle innovation as it would rest on a priori assumptions as to what
services viewers would prefer. Broadcasters can best stimulate
consumers' interest in digital services if able to offer the most
attractive programs, whatever form those may take, and it is by
attracting consumers to digital, away from analog, that the spectrum
can be freed for additional uses. Further, allowing broadcasters
flexibility as to the services they provide will allow them to offer a
mix of services that can promote increased consumer acceptance of
digital television, which, in turn, will increase broadcasters'
profits, which, in turn, will increase incentives to proceed faster
with the transition.
43. We have also been persuaded by the arguments that a minimum
high definition television requirement would be burdensome on some
broadcasters. We note the arguments of ALTV and Telemundo as to the
difficulties a minimum high resolution television requirement might
impose on independent stations and foreign language stations,
respectively. We acknowledge the contributions of such stations and the
programming they provide to the diversity of our broadcast television
service and hesitate to impose a requirement that might make it more
difficult for such stations to convert to digital television, perhaps
even undermining their ability to do so. We are not convinced that high
definition television programming should be mandated where to mandate
it might impose significant burdens on stations, particularly where, as
will be discussed below, it appears that the marketplace will provide
high definition television programming even absent a governmental
requirement to that effect.
44. We note that some commenters argued that a high definition
television mandate is necessary to give program producers and equipment
manufacturers the necessary incentives to support high resolution
television, and to provide viewers and consumers enough high resolution
television programming to foster demand for such programming and to
drive DTV receiver purchases. To the contrary, however, we believe that
a minimum high definition television requirement is unnecessary to
achieve these goals. We note in this regard that broadcasters and
networks have emphasized their commitment to high definition
television. We find nothing in the record that identifies a market
failure or other reason to impose a governmental requirement for high
definition television. High definition television will afford
broadcasters an important tool in the increasingly competitive video
programming market. There is no reason to believe that a government
mandate is necessary to ensure that high definition television gets a
fair chance in the marketplace.
E. Public Interest Obligations
45. Background. As we stated in the Fourth Further Notice (60 FR
42130, August 15, 1995), the rules imposing public interest obligations
on broadcast licensees originate in the statutory mandate that
broadcasters serve the ``public interest, convenience, and necessity,''
as well as other provisions of the Communications Act. These
obligations include the requirements that broadcasters must provide
``reasonable access'' to candidates for federal elective office and
must afford ``equal opportunities'' to candidates for any public office
and that weekly they must provide three hours of children's educational
programming. Licensees must also adhere to restrictions on the airing
of indecent programming and must comply with the 1996 Act provisions
relating to the rating of video programming. In the Fourth Further
Notice/Third Inquiry, the Commission noted that these current public
interest rules were developed under the analog model and therefore were
shaped by the limitations inherent in analog technology. The Commission
sought comment on whether the greater capabilities afforded by digital
technology should affect licensees' obligations to serve the public
interest, and if so, how those obligations might be adapted to the
digital context.
46. Comments. Commenters generally agree that existing public
interest obligations should continue to apply, at the very least, to
free, over-the-air programming on DTV. They differ greatly, however, on
whether, and if so, how, the public interest obligation should be
applied and possibly expanded in a DTV world. Joint Broadcasters argue
that public interest obligations should continue to apply to NTSC
through the transition, and to all the DTV services, but that there is
no need to impose additional obligations on the transition channel.
ALTV comments that on DTV, free broadcast television service should
continue to be subject to the public interest obligations now applied
to NTSC, but that no public interest obligations should apply to
nonbroadcast services. General Instrument argues that public-interest
obligations should attach to free, over-the-air broadcasting on DTV,
but that for provision of subscription services, broadcasters should be
required to pay a fee to compensate the public.
47. Some commenters offered specific proposals on how the
broadcasters' public-interest obligations could be reconceptualized and
adapted in light of the new possibilities offered by digital
technology. MAP argues that public interest obligations should apply to
each program service, including subscription services, provided over
DTV spectrum. MAP proposes that broadcasters be required to provide
``new and different public service in exchange for the opportunity to
convert to digital television, including free time for political
candidates, noncommercial public access, and dedication of 20% of total
program time to children's educational and informational programming.''
Alliance for Community Media suggests that, at a minimum,
[[Page 26974]]
public interest guidelines should contain a quantitative measure of
programming including: local news and information; educational programs
for children and adults; material helpful to nonprofit, charitable,
health, or social-service organizations; and programs to allow elected
officials and nonprofit organizations to communicate to the community.
The Benton Foundation urges that broadcasters be required to provide,
for example, at least six hours of children's educational television,
free time for candidates, and access to programming time by members of
the community.
48. Decision. In this proceeding we seek to promote the successful
transition of analog broadcast television into a digital broadcast
television service that serves the public interest. Broadcasters have
long been subject to the obligation to serve the ``public interest,
convenience and necessity.'' 8 In the 1996 Act, Congress
provided that broadcasters' public interest obligations extend into the
digital environment:
\8\ 47 U.S.C. sections 307(a), 309(a); En Banc Programming
Inquiry, 44 FCC 2303, 2312 (1960).
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(d) Public Interest Requirement.--Nothing in this section shall
be construed as relieving a television broadcasting station from its
obligation to serve the public interest, convenience, and necessity.
In the Commission's review of any application for renewal of a
broadcast license for a television station that provides ancillary
or supplementary services, the television licensee shall establish
that all of its program services on the existing or advanced
television spectrum are in the public interest.
In enacting this provision, Congress clearly provided that broadcasters
have public interest obligations on the program services they offer,
regardless of whether they are offered using analog or digital
technology.
49. In the digital television era, although many aspects of the
business and technology of broadcasting may be different, broadcasters
will remain trustees of the public's airwaves. Our current rules were
developed when technology permitted broadcasters to provide just one
stream of programming over a 6 MHz channel. We recognize, however, that
digital technology expands the effective capacity of 6 MHz of spectrum.
For example, it permits, but does not require, licensees to provide
several program streams, as well as other digital services, on the 6
MHz channel of spectrum that we are assigning them. The dynamic and
flexible nature of digital technology creates the possibility of new
and creative ways for broadcasters to serve the country and the public
interest.
50. Some argue that broadcasters' public interest obligations in
the digital world should be clearly defined and commensurate with the
new opportunities provided by the digital channel broadcasters are
receiving. Others contend that our current public interest rules need
not change simply because broadcasters will be using digital technology
to provide the same broadcast service to the public. We are not
resolving this debate today. Instead, at an appropriate time, we will
issue a Notice to collect and consider all views. As we authorize
digital service, however, broadcast licensees and the public are on
notice that existing public interest requirements continue to apply to
all broadcast licensees. Broadcasters and the public are also on notice
that the Commission may adopt new public interest rules for digital
television. Thus as to the public interest, our action today forecloses
nothing from our consideration.
F. Transition
1. Simulcast
51. Background. In our 1992 Second Report/Further Notice (57 FR
21755, May 22, 1992), we determined that DTV licensees should simulcast
on their NTSC channel the programming offered on their DTV channel.
Specifically, we adopted, as a preliminary matter, a 50 percent
simulcasting requirement, beginning one year after the six-year
application and construction period, increasing to 100 percent two
years later.9 Our early simulcast decisions were based on
the expectation that DTV would primarily consist of the broadcast of a
single HDTV program service. However, as DTV technology developed, we
learned that DTV would be able to do much more than we initially
expected and that it would be possible to transmit multiple
simultaneous SDTV program services on a single 6 MHz channel.
Recognizing that a licensee would be unable to simulcast multiple
program services on its NTSC channel, we stated in the Fourth Further
Notice (60 FR 42130, August 15, 1995) that our simulcast requirement
must be revisited and we must consider alternatives. In addition, we
stated that we still perceived a need for a simulcast requirement,
albeit different from that first envisioned, and proposed to require
the simulcast of all material being broadcast on the licensee's NTSC
channel on a program service of the DTV channel. We requested comment
on this proposal.
---------------------------------------------------------------------------
\9\ Additionally, we indicated that we would review this
schedule at the time of our initial review of the pace of conversion
at the end of the application/construction period and immediately
prior to the imposition of 100 percent simulcasting.
---------------------------------------------------------------------------
52. Comments. Broadcasters are divided on the necessity of a
simulcast requirement. Numerous comments note that simulcasting is
certain to occur even in the absence of a mandate. The Joint
Broadcasters emphasize that they believe that much simulcasting of NTSC
programming on the DTV channel would happen in the normal course.
However, because broadcasters have differing views on the need for a
requirement, the group declined to take a position on that issue. NAB
and ALTV maintain that a simulcast requirement would be
counterproductive and may delay development and penetration of DTV,
especially during the early stages of the transition. However, NAB
acknowledges that a phase-in of simulcasting near the end of the
transition could be an effective means of preventing disenfranchisement
of the remaining NTSC viewers. ABC and CBS argue that a simulcast
requirement should apply from the outset of the transition. CBS argues
that a simulcast requirement could spur the sale of DTV equipment and
ensure that DTV and NTSC broadcast services do not evolve into
separately programmed services. NBC supports a 50% simulcasting
requirement to allow for some innovation. Broadcasters and other
commenters arguing against the advisability of a simulcast requirement
maintain that rigid requirements would hamper broadcasters' ability to
promote and provide the programming that was most likely to draw
viewers to the DTV channel. They argue that transition to DTV would
occur most rapidly if broadcasters had the maximum flexibility to
experiment with new services and to put together offerings that would
best satisfy viewers. Commenters point out that simulcasting would slow
the transition by preventing broadcasters from enticing viewers to DTV
by making desirable programming available on DTV that is not available
on NTSC. ALTV also argues that any requirement would be based on
speculation about the development of digital service, and therefore
imposition of any rule, if necessary at all, should be postponed.
53. Equipment manufacturers recommend that a simulcast requirement
be tailored to promote a rapid transition to HDTV and DTV and recovery
of NTSC spectrum. The cable industry supports a simulcast HDTV service,
that is the broadcast of one program over two channels to the same area
at the same time. Public-interest groups generally support requiring
DTV broadcasters to simulcast their NTSC
[[Page 26975]]
service on the DTV channel. Commenters supporting a simulcast
requirement argue that such a requirement would expedite the transition
from analog to digital by guaranteeing that popular programming
services continue to be available, in enhanced technical quality, on
the DTV channel. They also point out that simulcasting would prevent
the development of two separately programmed services, which might
delay the transition. As to the question of phase-in, the Digital Grand
Alliance suggests that simulcast requirements be minimal in the early
years of the transition to facilitate innovative HDTV programming, and
more comprehensive in the later years to avoid perpetuating unique NTSC
programming that would make it difficult to cease NTSC broadcasts.
Throughout the transition, one DTV program stream should be identical
to the program stream carried on the NTSC channel.
54. Decision. We decline to adopt a simulcast requirement for the
early years of the transition. In order to help reclaim spectrum at the
end of the transition period, however, we adopt by the sixth year from
the date of adoption of this Report and Order a requirement of 50%
simulcasting of the video programming of the analog channel on the DTV
channel; by the seventh year, a 75% simulcasting requirement; by the
eighth year, a 100% simulcasting requirement, until the analog channel
is terminated and that spectrum returned.
55. We have previously recognized the need to afford broadcasters
flexibility to program their DTV channels to attract consumers,
especially during the critical launch phase of DTV. We do not adopt a
simulcast requirement during the early years of the transition in order
to give broadcasters the ability to experiment with program and service
offerings. We are convinced by commenters who argue that many
consumers' decisions to invest in DTV receivers will depend on the
programs, enhanced features, and services that are not available on the
NTSC service, and a simulcast requirement might limit broadcasters'
ability to experiment with the full range of digital capabilities.
Because the DTV channels represent valuable resources with large
opportunity costs, we believe licensees will have economic incentives
to provide programming and services that will attract consumers to DTV.
In any event, a simulcast requirement during this initial transition
phase appears to be unnecessary because the record suggests that
marketplace forces will ensure that the best NTSC programming will be
simulcast on the digital channel and broadcasters have indicated that
they will simulcast NTSC programs on the DTV channel even in the
absence of a requirement.
56. While we believe that a simulcast requirement is not warranted
during the early years of the transition, there are benefits to a
simulcast requirement near the end of the transition period. Such a
requirement will help ensure that consumers will enjoy continuity of
free over-the-air program service when we reclaim the analog spectrum
at the conclusion of the transition period. It may be difficult to
terminate analog broadcast service if broadcasters show programs on
their analog channels but not on their digital channels. We believe
that it will be easier to terminate analog services and reclaim the
spectrum at the end of the transition if most broadcast households are
capable of receiving DTV signals and these households do not suffer the
loss of a current program service only offered on analog channels.
Thus, we will require a phased-in simulcasting requirement as follows:
By the sixth year from the date of adoption of this Report and Order,
we adopt a 50% simulcasting requirement; by the seventh year, we adopt
a 75% simulcasting requirement; by the eighth year, we adopt a 100%
simulcasting requirement which will continue until the analog channel
is terminated and the analog spectrum returned. We recognize that we
will need to define clearly ``simulcasting'' in the context of DTV and
will do so as part of our two-year reviews or other appropriate
proceeding.
2. Licensing of DTV and NTSC Stations
57. Background. The Second Report/Further Notice (57 FR 21755, May
22, 1992) determined to treat the licensee as having two separate
licenses. In the Fourth Further Notice/Third Inquiry (60 FR 42130,
August 15, 1995), however, the Commission tentatively concluded that
substantial benefits could be obtained if the NTSC and ATV facilities
were instead authorized under a single, unified license. The Commission
tentatively decided that such a policy would ease administrative
burdens on the Commission and broadcasters alike by reducing the number
of applications that would have to be filled out, filed, and processed,
and would be consistent with our authority under section 316 of the Act
to modify an existing license. Licensing the two facilities under a
single license would also retain the policy announced in the Second
Report/Further Notice of treating both facilities the same for
revocation/nonrenewal purposes.
58. Comments. Those commenters, which include broadcasters,
networks, and equipment manufacturers, who address this issue largely
support our revised proposal for a single, paired license. One
commenter, broadcaster Golden Orange, argues that the DTV and NTSC
stations should have separate licenses.
59. Decision. We adopt our tentative conclusion, echoed by nearly
all those who commented, that the NTSC and DTV facilities should be
licensed under a single, paired license. As determined earlier, this
system will help the Commission and broadcasters alike by keeping
administrative burdens down. It is also consistent with our intention
to treat the DTV license and the NTSC license together for the purposes
of revoking or not renewing a license. Once broadcasters have satisfied
construction and transmission requirements, they will receive a single,
paired license for the DTV and NTSC facilities.
60. One of our objectives is to promote broadcasters' ability to
build digital businesses so that their valuable free programming
service will continue. We anticipate that some licensees may find it
beneficial to develop partnerships with others to help make the most
productive and efficient use of their channels. We intend to give
broadcasters flexibility in structuring business arrangements and
attracting capital to build a successful DTV business. One of our
overarching objectives is to promote the success of digital television.
We anticipate that some licensees may find it beneficial to develop
partnerships with others to help make the most productive and efficient
use of their channel, and we will look with favor on such arrangements.
Broadcasters may find it useful to work with other broadcasters or
others who have special expertise in exploiting digital technology.
Parties could come together for the sharing of facilities, costs, and
equipment, the development and provision of programming and service
offerings, access to capital and financing, the establishment of
business plans, and the like. Such arrangements will aid both
broadcaster and public, by helping the broadcaster achieve the most
competitive and beneficial business strategy and by ensuring for the
public the best use of the digital spectrum, including not only the
most efficient use of the spectrum but also the greatest array of
valuable services. Variations on partnerships have arisen in other
contexts, which indicates that they are efficient and useful. For
example, in the common network/affiliate relationship,
[[Page 26976]]
a network provides programming and advertising that its affiliates may
use. Another example is the Commission's authorization of Instructional
Television Fixed Services (ITFS) licensees to lease, for profit, their
excess capacity to other service providers. We are receptive to the
establishment of like arrangements in the DTV context. Whatever the
arrangement, it is the licensee who remains responsible for ensuring
the fulfillment of all obligations incumbent upon a broadcast licensee.
G. Application/Construction Period
61. Background. The Second Report/Further Notice (57 FR 21755, May
22, 1992) adopted a two year application period and an additional three
years for construction of a DTV facility. We were concerned that
without a specific timetable, some parties might delay construction
while waiting for others to take the lead, to the detriment of our goal
of expeditious DTV implementation. We clarified that broadcasters who
did not apply and construct within the established time period (and who
failed to obtain an extension of time) would lose their initial
eligibility for a DTV frequency. We noted that existing policies
regarding extensions of time would afford broadcasters adequate
flexibility to cope with unforeseen implementation
problems.10 We defined ``construction'' as the capability of
emitting DTV signals, regardless of the source of these signals (e.g.,
local origination, pass-through of a network signal, or other signal).
This definition of construction would allow broadcasters to ``phase-
in'' full DTV implementation as their individual circumstances and
markets permit.
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\10\ For additional clarification of our extension policies,
see, Second Report/Further Notice (57 FR 21755, May 22, 1992), supra
at 3347-48.
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62. In the Third Report/Further Notice (57 FR 53588, November 12,
1992), we adjusted the application deadline from a two-year to a three-
year period, and provided for a total six-year application and
construction period with those applying early having a longer portion
of the six-year period to devote to construction of DTV facilities. We
explained that the deadlines for application and construction would
assist in our reclamation of the reversion channel and our sliding
scale approach would provide sufficient relief to small-market stations
which produce less revenue. While we recognized that some stations
would be market leaders in the implementation of DTV, we remained
concerned that such leadership may not emerge, at least in certain
markets, unless we established a clear framework for the DTV
transition.
63. The Fourth Further Notice/Third Inquiry (60 FR 42130, August
15, 1995) proposed a procedure by which broadcasters would have six
months in which to make an election and confirm to the Commission that
they want a DTV license. After that, they would have the remainder of
the three-year period in which to supply any required supporting data,
and a total of six years to complete construction. If they would elect
not to construct a DTV facility, or would elect but then fail to
construct, their NTSC licenses would expire at the end of the DTV
conversion period, and they would be required to cease broadcasting. We
sought comment on all aspects of the construction period. We asked
whether certain classes of stations should be afforded special relief,
and if so, which classes.
64. Comments. While most commenters do not specifically address the
election period, some voice approval of a six-month election
period.11 The Digital Grand Alliance, however, suggests that
the six-month election period be accompanied by a mechanism to ensure
that this election represents real commitment to convert, such as the
imposition of a non-refundable application fee, a substantial deposit
refunded at commencement of DTV broadcast, or a fine if the broadcaster
fails to commence DTV broadcast. On the other hand, Busse and Pacific
FM argue that the 6-month election period is not a viable choice,
because those who do not want a DTV license have, in effect, elected to
go out of business since, under the Commission's proposal, all
licensees will be required to cease broadcasting in NTSC at the end of
the transition period.
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\11\ See, e.g., Comments of Joint Broadcasters at 12; Comments
of Thomson at 7; Comments of General Instrument at 16; Comments of
Golden Orange at 6; Comments of New World Television at 8.
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65. Commenters voice many views. Many generally support the
Commission's suggested timeframe, but suggest that the Commission take
account of the fact that practical impediments may arise to
implementation. While in support of the proposal for many stations,
Joint Broadcasters, joined by ALTV, propose that a less demanding
schedule and liberal waivers apply to help stations facing difficulty,
such as noncommercial stations, small stations, those in small or rural
markets, or in financial distress, as well as for those stations that
face FAA, zoning, or other similar problems. Busse points out that even
stations in large markets--such as those with religious or specialty
formats--may have difficulty making a timely transition. NAB suggests
that the construction deadline be staggered on a market-by-market
basis, in which large-market stations have six years, and small-market
stations have three or six additional years, to complete construction,
and in addition that waivers for problems such as zoning approvals also
be available. The Association of Federal Communications Consulting
Engineers argues that the six-year implementation period is inadequate,
given the number of stations that will need to acquire transmission
equipment, input/monitoring equipment, and tower structures during that
limited timeframe. Christian Communications of Chicagoland proposes
that the Commission recognize that the application/construction period
operate as a ``guideline subject to revision'' rather than a set
deadline.
66. Others maintain that, at least in some cases, the six-year
period is too long. Thomson and the Digital Grand Alliance propose that
the Commission shorten the application and construction periods at
least in the 25 largest markets, but do not specify what period would
be appropriate. General Instrument proposes that a three-year
construction period be considered for major markets, and a six-year
period for smaller markets. Motorola argues that, given the notice that
broadcasters have been afforded, the appropriate timetable is a six-
month application period, a six-month processing and grant period, and
a two-year construction period.
67. Decision. We will apply a streamlined three-stage application
process to the group of initially eligible analog permittees and
licensees allotted a paired channel in the DTV Table of
Allotments.12 We will soon issue a Public Notice detailing
the procedures to be followed, but will describe them briefly here.
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\12\ We note that under section 553(b)(A), notice and comment
are not necessary for rules of agency procedure or practice. 5
U.S.C. 553(b)(A).
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68. Stage One--Initial Modification License for DTV. Pursuant to
the 1996 Act and the eligibility criteria discussed above, we issue, by
this paragraph and the attached Appendix E, additional DTV licenses to
those initially eligible to receive them.
69. The statute directs us to limit initial eligibility for DTV
licenses to persons that, as of the date of the issuance of the
licenses, are licensed to operate a television broadcast station or
hold a permit to construct such a station, or both. As the statute
contemplates, we hereby issue a license
[[Page 26977]]
to all eligible licensees and permittees, a list of which is attached
to this Report and Order as Appendix E. We conclude that it more
effectively effectuates the congressional scheme to implement the
statute through a three-phased process, with the first phase consisting
of the initial DTV license, rather than through our conventional
procedure. Use of the conventional licensing process would prevent us
from establishing a date certain at which to determine initial
eligibility, a process that is necessary to allow us to establish the
Table of Allotments. Thus, we hereby issue a license, conditioned upon
satisfaction of the additional requirements set out in para. 70-75
below. This license will modify the analog television permit or
license; however, licensees may not begin construction or transmission
until the additional conditions are met.13 The license is
also conditioned upon the requirement that ``either the additional
license or the original license held by the licensee be surrendered to
the Commission for reallocation or reassignment (or both) pursuant to
Commission regulation.''
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\13\ As discussed below, we expect that the application or
certification process will be speedy and will not delay applicants
as they prepare to implement the build-out.
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70. Request for Cancellation. We presume that the recipients will
welcome receipt of their initial DTV License and will be fully
committed to the conversion to DTV. Nonetheless, there may be some
broadcasters who do not wish to receive a second channel to convert to
DTV. We wish to reclaim these second channels as quickly as possible so
that the spectrum may be awarded to those who would use it quickly and
effectively, and we earlier proposed a six-month election period to
accomplish this result. We now believe that a six-month election period
is too long. Given the length of this proceeding and the public
benefits of acting quickly, we believe that broadcasters have already
had ample time to consider many options, and will shorten the
``election'' period. In order to achieve the benefits of a rapid
election and in the interests of spectrum efficiency, we ask that
licensees who wish to cancel the initial DTV license do so by writing
the Commission within 90 days from the release date of the DTV Table of
Allotments adopted in the Sixth Report and Order.
71. Stage Two--Certification or Application for Construction
Permit. To receive authorization for commencement of construction, an
Initial DTV Licensee must file modified Form 301, attached as Appendix
D, and the appropriate fee to obtain a construction permit.
Noncommercial stations must file a modified Form 340. The application
must be filed before the mid-point in a particular applicant's required
construction period has expired. The Bureau will begin acting upon
applications as soon as this Report and Order becomes effective.
72. We will apply a certification procedure for applicants that
answer ``yes'' to a checklist of requirements contained in the
construction permit application; these certifications will be
automatically granted. Given the very rapid review permitted by this
streamlined procedure, we will be able to grant a construction permit
to broadcasters within a matter of days of submission of this form.
Other applicants will be required to furnish additional technical
information.
73. In the Fifth Further Notice (61 FR 26864, May 29, 1996), supra
at para. 59, we sought comment on whether specific TV technical and
procedural rules should be applied to DTV and whether modification of
the rules was needed. Among those NTSC TV rules were section 73.685 and
73.1030. No comments addressed these issues. We herein establish a
minimum set of technical requirements that will allow us to process
these DTV construction permit applications. Fundamentally, a DTV
application must conform to the DTV Table we are creating in the Sixth
Report and Order, specifying the indicated channel at a transmitter
site, effective radiated power (``ERP'') and antenna height meeting the
restrictions imposed in that document. As described in the Sixth Report
and Order, applications specifying a transmitter site within five
kilometers of the site assumed in the DTV Table and also specifying an
ERP and antenna height that do not exceed the values in the DTV Table
will be accepted and not subject to interference-protection processing.
Further, in order to avoid exposing the public to dangerous situations,
we will continue the NTSC TV practice of verifying that the FAA has
made any necessary determination that the proposed tower does not
represent a hazard to air navigation, and we will require DTV
applicants to certify as to no significant environmental impact or to
include an environmental statement as described in section 1.1307 of
our rules, including consideration of RF radiation levels. In addition,
to avoid altering an AM radio station's radiation pattern in a way that
could cause interference in the AM radio band, we will require DTV
applications to comply with section 73.658(h). To avoid interference to
our spectrum monitoring functions and to radio astronomy observations,
we will also require DTV applications to comply with section 73.1030.
Additionally, as discussed below, the DTV service contour will be
required to encompass the community of license.
74. To speed the process, we will consider the DTV applications or
certifications as involving a minor change in facilities 14
and will process them accordingly. Since this application will be for a
minor change, applicants will not have to supply full legal or
financial qualifications information.15 We will not
initially require full-replication of the analog station's coverage
area by DTV facilities. Accordingly, we will accept initial
construction permit applications from applicants who demonstrate that
their DTV coverage encompasses the community of license.16
In situations where applicants seek a waiver of any of our
requirements, we will entertain requests to allow them to begin
[[Page 26978]]
construction, at their own risk, prior to the grant of a construction
permit.
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\14\ Pursuant to section 73.3572(a)(1) of the Commission's
rules, a major change in a television station's facilities is any
change in frequency or community of license. 47 CFR
Sec. 73.3572(a)(1). The change involved in constructing and
operating a DTV facility does not constitute a change in frequency,
merely the implementation of the initial DTV License on a channel
assigned in the Sixth Report and Order. The analog site will remain
on the same frequency. Moreover, the DTV facility will, of course,
be licensed to the same community, since it will be part of one
license. We note that in our Notice, supra at 7026, we sought
comment as to whether, as an alternative to a dual licensing scheme,
we should treat the addition of a DTV channel as a major
modification. We now conclude that it should be treated as a minor
modification for the reasons discussed herein.
\15\ In the Third Report/Third Further Notice (57 FR 53588,
November 12, 1992), supra at 6945-46, we noted that we would not
relax the financial qualifications showing required for a broadcast
applicant. We were concerned that applicants that were not
financially qualified could tie up the spectrum without ever
obtaining the funds necessary to build the facility, thus negating a
reason for restricting eligibility to existing broadcasters--i.e.,
their ability to implement DTV swiftly. Our decision to treat the
construction permit as a minor modification, however, eliminates the
need for a financial qualifications showing. Moreover, Congress has
determined that we should limit eligibility to existing
broadcasters, and we have decided to streamline the application
process so that DTV can be implemented quickly.
\16\ While the Sixth Report and Order establishes the upper
limit for DTV facilities, we believe that we should allow
construction initially of DTV facilities that provide service to a
smaller area. At the same time, stations should not be able to claim
that they have completed required construction when they have built
facilities that are so low in power that they reach no meaningful
service area. Accordingly, as noted above, we establish the initial
required coverage area as the community of license. During the first
two-year review, we will consider whether to modify the build-out
requirement to require a full-replication facility as well as
adjustments to the protection of the full-replication facility.
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75. Stage Three--Application for License to Cover Construction
Permit for a DTV Facility. When construction of the DTV facility has
been completed, the permittee may commence program tests upon
notification to the FCC, provided that an application for a license to
cover the construction permit for the DTV facility, on Form 302, is
filed within ten days, along with the appropriate fee.17
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\17\ Pursuant to section 1.68(a) of the Commission's rules, 47
CFR Sec. 1.68(a), the Commission will grant the application where it
finds that ``all the terms, conditions, and obligations set forth in
the application and permit have been fully met, and that no cause or
circumstance arising or first coming to the knowledge of the
Commission since the granting of the permit would, in the judgment
of the Commission, make the operation of such station against the
public interest.''
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76. Construction Schedule. We have decided to adopt the following
construction requirements. Stations affiliated with ABC, CBS, Fox and
NBC must build digital facilities in the ten largest television markets
by May 1, 1999. Stations affiliated with ABC, CBS, Fox and NBC in the
top 30 television markets, not included above, must construct DTV
facilities by November 1, 1999. All other commercial stations must
construct DTV facilities by May 1, 2002. All noncommercial stations
must construct their DTV facilities by May 1, 2003. We note that 24
stations in the top ten markets have voluntarily committed in writing
to the Commission to building DTV facilities within 18 months. We
applaud these broadcasters' voluntary commitments to give a great
number of viewers access to a DTV signal in a very short period. This
important step means that a significant portion of the public will be
able to receive multiple signals by the holiday shopping season, when
nearly 40 percent of all receivers are sold. We ask that those stations
that have represented to the Commission that they will have completed
construction of the DTV facility by November 1, 1998, file reports at
six-month intervals, beginning on November 1, 1997, stating that their
plans to meet these deadlines are on schedule or specifying any
difficulties encountered in attempting to meet these deadlines.
77. We will grant an extension to the applicable deadline where a
broadcaster has been unable to complete construction due to
circumstances that are either unforeseeable or beyond the licensee's
control if the licensee has taken all reasonable steps to resolve the
problem expeditiously. Such circumstances include, but are not limited
to, the inability to construct and place in operation a facility
necessary for transmitting DTV, such as a tower, because of delays in
obtaining zoning or FAA approvals, or similar constraints, or the lack
of equipment necessary to transmit a DTV signal. We do not anticipate
that the circumstance of ``lack of equipment'' would include the cost
of such equipment. With respect to extensions of the applicable
construction deadline, the Commission will take into account problems
encountered that are unique to DTV conversion, and will modify its
existing policies regarding extensions accordingly. Authority is
delegated to the Chief of the Mass Media Bureau to grant an extension
of time of up to six months beyond the applicable construction
deadline, upon demonstration by the DTV licensee or permittee that the
standard discussed above is met, but the Bureau may grant no more than
two extension requests upon delegated authority. Subsequent extension
requests will be referred to the Commission.
78. Our decision to adopt different requirements for different
categories of broadcasters is similar to the market-staggered approach
favored by most broadcasters and equipment manufacturers. We agree that
the most viewed stations in the largest television markets can be
expected to lead the transition to DTV and that these stations are
better situated to invest the capital necessary to establish the first
DTV stations. We also agree that smaller market stations will find it
easier to begin DTV service after learning from the experience gained
by the larger market stations. In addition, we agree that our staggered
construction schedule will help keep costs lower for smaller market
stations, as equipment costs decrease as the market matures. In
addition, a tiered approach allows us to ensure that DTV quickly
reaches a large percentage of U.S. television households while placing
requirements on a relatively small number of stations.
79. Our earlier preliminary decision to provide for an across-the-
board six-year application/construction schedule is no longer
appropriate. We now believe that a general six-year construction
schedule would unnecessarily delay the realization of our goals of
free, universal DTV service and spectrum recovery. A six-year
construction schedule for all commercial stations anticipated neither
the rapid development of digital technologies nor the ability of
manufacturers and suppliers to provide DTV equipment. In light of these
changes, we now believe that the six-year construction period is too
long. Instead, we believe that an aggressive construction schedule
should be implemented for several reasons.
80. First, digital broadcast television stands a risk of failing
unless it is rolled out quickly. Many operators in other media such as
DBS, cable, and wireless cable use or plan to use digital technology.
Unless digital television broadcasting is available quickly, other
digital services may achieve levels of penetration that could preclude
the success of over-the-air, digital television. Viewers who have
leased or purchased digital set-top boxes from competing digital media
may be less likely to purchase DTV receivers or converters. If digital,
over-the-air television does not succeed, however, viewers will be
without a free, universally available digital programming service.
81. Second, a rapid construction period will promote DTV's
competitive strength internationally, as well as domestically. Other
countries are moving swiftly to establish their own terrestrial digital
television services. For example, the United Kingdom is scheduled to
begin broadcasting terrestrial digital television by 1998 or earlier.
Japan has recently announced that it will move from analog high
definition television to digital television. Neither European nor
Japanese digital standards are compatible with the U.S. standard. In
the DTV Standard proceeding, equipment manufacturers and labor unions
argued that quick and decisive action was necessary to permit American
companies to compete internationally. The National Telecommunications
and Information Administration and the Office of Science and Technology
Policy argued that absent quick action, America might relinquish its
technological lead to international competitors, while rapid adoption
would spur the American economy in terms of manufacturing, trade,
technological development, international investment, and job growth.
Rapid introduction of digital television in the U.S. will help
facilitate its adoption abroad.
82. Third, an aggressive construction schedule helps to offset
possible disincentives that any individual broadcaster may have to
begin digital transmissions quickly, as well as the possible absence of
market forces that might themselves ensure rapid construction. We
recognize that an individual broadcaster may consider implementation of
DTV to require it to invest funds in order to capture viewers for which
it is already receiving advertising revenue. Such a broadcaster
[[Page 26979]]
might prefer to wait until others have converted to digital for a
number of reasons, including lower equipment costs. On the other hand,
a broadcaster may recognize first-mover advantages, such as being first
to market with programs in higher definition or with ancillary data
services. Our schedule ensures rapid construction in major markets.
83. Fourth, a rapid build-out works to ensure that recovery of
broadcast spectrum occurs as quickly as possible. As we discuss in the
Sixth Report and Order, at the end of the transition we plan to recover
78 MHz of clear spectrum in addition to the 60 MHz of partially
encumbered spectrum we plan to recover in the near future from channels
60-69. We will also recover at the end of the transition that spectrum
within channels 60-69 that is still needed for analog and digital
television broadcasting during the transition.
84. By adopting construction requirements, we hope to give the
various industries involved the certainty to move forward. Penetration
of color television sets, for example, was limited until the three
major networks began transmitting prime time programming in color. This
provides evidence that consumers may not purchase great numbers of DTV
sets or converters until multiple stations in their market are
transmitting DTV, and that we therefore should adopt construction
requirements that ensure that there are multiple digital television
broadcasters operating. Television manufacturers plan to have the first
digital television sets ready for purchase by the public by mid-1998.
The construction schedule set forth here provides that multiple
stations in most of the top ten markets are operating at roughly that
time.
85. Our construction schedule will facilitate our goal of having at
least 40 facilities affiliated with the four top networks in the top 10
markets transmitting DTV by May 1, 1999. Within roughly 24 months in
each of the top 10 markets, which cover approximately 30 percent of
U.S. television households, viewers will have DTV transmissions
available from multiple stations. These signals will come from network
affiliates, which are generally the stations with the highest ratings
in the market. In the top 30 markets, network-affiliated stations must
construct digital facilities by November 1, 1999. These markets include
53 percent of U.S. television households. Stations in the second
category will benefit from the success of the stations in the first
category, as word spreads from the largest markets to those medium-
sized markets. The May 1, 1999, requirement applies to only 40 of the
country's approximately 1200 commercial television stations, and only
80 additional stations will be affected by the November 1, 1999,
deadline. Over one thousand commercial stations will have until May 1,
2002, to plan for and implement their DTV facilities. Noncommercial
stations will have until May 1, 2003, to construct.
86. We believe that our construction schedule is reasonable. We
note that the most aggressive requirements apply to stations that we
believe are most able to absorb the costs of conversion and are
otherwise situated to make the transition quickly: stations affiliated
with the four major networks in the largest markets. We base our
decision in this regard on several grounds. First, network affiliates
consistently garner the highest percentage of audience share, and thus
are likely to have substantial revenues that may be used to fund the
conversion. Second, network affiliates are in a stronger position than
independent stations because they obtain programming from their network
and may also receive economic, technical, and other support that would
help with respect to the conversion. Affiliates are consistently the
most highly watched and generally the most financially successful, with
better ratings and consequent higher advertising revenues. Their
greater strength should give them a strong position from which to
launch their digital service. Accordingly, we believe that network
affiliates in the largest markets will be in the best position to make
a rapid transition to DTV. We recognize that in some markets, a network
has two affiliates, one of which is much stronger, with a much larger
audience share, that the other. We have provided relief to the smaller
affiliate in such cases, by granting a longer construction deadline.
Finally, our construction schedule also focuses on network affiliates
because we believe that the sale of receivers and thus the conversion
to DTV will be accelerated by the early availability of network
programming in DTV.18
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\18\ We have recognized the value and appeal of network
programming in a number of previous decisions. See Channel 41, Inc.,
6 FCC Rcd 4109, 4111 (1991) (rule waiver granted in order to
preserve ABC programming); Herald Publishing Co., 6 FCC 2d 631
(1967) (waiver granted in part because station proposed to bring NBC
network programming to a large number of viewers for the first
time).
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87. Thus, the roughly two-year construction requirement that
applies to these affiliates will both serve the public and be
nonburdensome to these broadcasters. By May 1, 1999, markets including
fully 30 percent of television households will have access to multiple
streams of digital television. The vast majority of commercial
broadcasters will have five years in which to construct, and
noncommercial stations will have six years in which to construct their
digital facilities. We agree with commenters arguing for a shorter
construction schedule, especially for broadcasters in the largest
television markets. As these commenters point out, broadcasters have
been on notice throughout this proceeding of the impending need to
convert to DTV. With their greater population coverage and scope of
operations, we agree that broadcasters in the largest markets generally
will be better able to afford and support a more rapid construction
schedule.
88. Moreover, the construction timetable appears to be consistent
with the announced plans of the large networks. CBS has received an
experimental authorization from the Commission and plans to transmit a
DTV signal from the Empire State Building in the spring of 1997. ABC
plans to have stations experimenting with digital transmission in early
1998. Fox ordered digital transmitters for its O & O's fully five years
ago from Harris Corporation, and plans to have digital transmission
between the network and affiliates in place by third quarter 1998. NBC
said it would begin broadcasting digital signals 18 months after
licenses are awarded. NBC already has designed and is building a $55
million dollar state-of-the-art digital infrastructure at its
headquarters at 30 Rockefeller Plaza that will be commissioned this
year. On February 2, 1997, WHD-TV, NBC's owned-and-operated model DTV
station in Washington, D.C., broadcast ``Meet the Press'' in high
resolution, using the new DTV standard. NBC has also announced that it
intends ``to move as aggressively and expeditiously as is technically
feasible'' to enable all of its owned and operated stations around the
country to transmit DTV and is ``encouraging and helping'' its NBC
affiliates across the nation in making the transition to DTV.
89. Our confidence in the willingness of licensees to move rapidly
is also supported by a recent survey of broadcasters which shows that
28 percent of respondents plan to convert to DTV within two years and
79 percent of respondents plan to convert to DTV within five years. In
fact, some broadcasters have already completed arrangements for their
digital transmission facilities. For example, the network affiliates in
San Francisco have arranged to place their antennae for
[[Page 26980]]
digital transmission on Sutro Tower. Similarly, in New York City, the
CBS-owned station has already arranged to place an antenna for digital
transmission atop the Empire State Building.
90. In addition, two experimental digital television stations are
already up and running, and were able to begin transmissions just four
months after announcing their plans to do so: WHD-TV in Washington, DC,
the model station sponsored by the broadcast and equipment industries,
and WRAL, in Raleigh, North Carolina. We have also already granted
eight requests for experimental facilities, at least five of which are
now operating, and we expect to grant another five experimental
licenses soon. These efforts reflect the ability of broadcasters to set
up facilities, and they have given broadcasters experience with digital
television equipment that should help speed its introduction elsewhere.
Finally, equipment manufacturers' recent statements that they plan to
sell digital television sets by Christmas 1998 is a further expression
of confidence and expectation that DTV will be widely available by that
time so as to ensure consumer demand.
91. While we recognize that conversion to digital will impose some
burden on broadcasters, we have taken steps to ease broadcasters'
introduction of digital service by requiring them at the outset only to
emit a DTV signal strong enough to encompass the community of license,
and not requiring them to begin transmission to achieve full
replication. Many broadcasters will be able to use existing towers for
digital transmission and reduce the costs of constructing a DTV
facility. Many commenters who argued in favor of a longer construction
schedule did so based on their contention that construction of full-
replication facilities would require more than six years due to
hardware supply constraints, insufficient personnel resources, or lack
of adequate new tower sites. However, our construction requirement is
satisfied by the emission of a DTV signal strong enough to encompass
the community of license, rather than the more difficult requirement
that broadcasters replicate their existing service areas. Therefore,
licensees need not initially construct full-replication facilities. We
believe that the establishment of a construction requirement that is
more easily satisfied, as well as our staggered approach, will
alleviate the difficulties raised by some commenters.
92. One of the most significant issues in converting to digital
broadcasting is the construction of new towers or the upgrade of
existing towers. As explained above, this burden will be eased by our
limited build-out requirement. In addition, while we recognize that
there may not be sufficient equipment available in the earliest days to
allow for a full-fledged DTV operation to be implemented by all 1,600
television licensees, we are confident that minimal facilities for the
handful of licensees in the top ten markets can be assembled in a
timely fashion. These facilities need only meet our requirements of
serving the community of license, which can be accomplished by the use
of existing equipment or prototypes certain to be introduced soon.
93. As for noncommercial stations, we allow them until May 1, 2003,
to construct DTV facilities. There is strong support in the record for
giving noncommercial stations greater leeway in the construction of DTV
facilities. As discussed more fully below, noncommercial stations need
and warrant special relief to assist them in the transition. And, as
noted above, there are some noncommercial stations at the forefront of
DTV. However, we are convinced by the record that noncommercial
stations, as a group, may have more difficulty with the transition to
DTV than commercial stations. Therefore, we permit noncommercial
stations a longer period of time to construct DTV facilities than
commercial DTV stations.
H. Recovery Date
94. Background. Earlier in this proceeding, the Commission made the
preliminary decision to establish a recovery date 15 years from the
date of the adoption of an ATV system or the date a final Table of ATV
Allotments is effective, whichever is later. At the end of this period,
all analog broadcast would cease, and the spectrum used for NTSC would
be returned to the Commission. The Commission emphasized that, given
the uncertainties surrounding the conversion process and the possible
changes in the data on which we relied, setting the recovery date at 15
years was necessarily preliminary. In order to avoid making a decision
that would be overtaken by events, the Commission adopted a schedule of
periodic reviews to make whatever adjustments might be necessary. The
Commission made clear that broadcasters who do not convert to ATV will
have to cease broadcasting in NTSC at the end of the 15-year transition
period. The Commission explained that establishment of a firm date for
full transition would be in the public interest because it would keep
administration simple, assure progress toward spectrum recovery on a
timely basis, and give parties a clearly defined planning horizon. The
Fourth Further Notice/Third Inquiry (60 FR 42130, August 15, 1995)
explained that a more rapid conversion to ATV might be possible than
previously expected. The broadcast industry, including equipment
manufacturers, have been aggressive in developing digital television
technology, as have alternative programming providers such as Direct
Broadcast Satellite (DBS), cable systems, wireless technology, and
others. Because of the developing competition, and the drop in prices
resulting from the proliferation of digitally based media, the Fourth
Further Notice/Third Inquiry anticipated that conversion might occur
more rapidly than originally anticipated. Commenters were asked to
address whether some objective benchmark(s) could be used to determine
when broadcasters should cease NTSC transmission.
95. Comments. Numerous commenters note that the high degree of
uncertainty surrounding the successful establishment of DTV makes it
difficult to set an end-point for NTSC service. Many urge us therefore
to postpone setting a transition date. Joint Broadcasters argue, for
instance, that: ``Even the enterprise of setting self-enforcing
benchmarks at this point is highly speculative in the absence of market
experience. There are simply too many unknowns that will need to be
factored into any such decision--the cost and availability of digital
sets, the cost and availability of converters, and ATV penetration
levels both in terms of households and sets.'' Some commenters propose
that the Commission set a nominal target date for the cessation of NTSC
broadcasts, with periodic reviews to monitor the progress of
implementation. Others support a settled ``date certain'' approach.
96. If the Commission were to set objective benchmarks, comments
suggest several possible benchmarks: a measurement of the total number
of sets and total number of households capable of displaying DTV; a
measurement of the number of stations transmitting digital signals and
the number of households with digital receivers, including set-top
boxes; a ``sets-sold'' methodology so that once DTV sets reach some
percentage, e.g., 70%, of current TV households, NTSC transmissions
would cease three years later; or when a certain percentage, e.g., 80%,
of television households no longer rely solely on analog broadcasting.
[[Page 26981]]
97. Decision. One of our overarching goals in this proceeding is
the rapid establishment of successful digital broadcast services that
will attract viewers from analog to DTV technology, so that the analog
spectrum can be recovered. Accomplishment of this goal requires that
the NTSC service be shut down at the end of the transition period and
that spectrum be surrendered to the Commission. Indeed, Congress
required the Commission to condition the grant of a digital license on
the Commission's recovery of 6 MHz from each licensee. The Act
provides:
``(c) Recovery of License. --If the Commission grants a license
for advanced television services to a person that, as of the date of
such issuance, is licensed to operate a television broadcast station
or holds a permit to construct such a station (or both), the
Commission shall, as a condition of such license, require that
either the additional license or the original license held by the
licensee be surrendered to the Commission for reallocation or
reassignment (or both) pursuant to Commission regulation.''
The question we face is at what point in time the surrender should
occur.
98. We continue to believe that it is desirable to identify a
target end-date of NTSC service. Doing so will lend certainty to the
introduction of digital by making clear to the public that analog
television service will indeed cease on a date certain. A target will
provide broadcasters and manufacturers with a defined planning horizon
that will help them gauge their business plans to the introduction of
DTV.
99. While the Commission has previously considered a 15-year end-
point for NTSC service, we now believe that broadcasters should be able
to convert to digital broadcast much more rapidly. Specifically, we
believe that a target of 2006 for the cessation of analog service is
reasonable. As the Fourth Further Notice/Third Inquiry (60 FR 42130,
August 15, 1995) explained, as digital technology has developed, we
have had reason to expect that DTV may be adopted more quickly than
originally anticipated. Competitors in the video programming market,
such as DBS, cable, and wireless cable, have aggressively pursued the
potential of digital technology. This competitive pressure has lent
urgency to the need for broadcasters to convert rapidly. Furthermore,
technological advances have worked to lower the introductory costs to
broadcasters; for example, new technology may allow many broadcasters
to use existing towers for digital transmission, thus easing the
expense of converting to digital equipment. And, due to the
introduction of other services, broadcasters who need new towers, will
be able to lease space on their new towers to mobile service providers,
further lowering the costs of converting. On the viewers' side,
technological advances in converter-box technology will lower the
consumer costs of the introduction of digital technology. The dramatic
drop anticipated in converter-box prices will permit consumers
inexpensively to continue to use existing equipment, thus easing the
introduction of digital services. Based on our current information, we
believe 2006 is a reasonable target.
100. As we discuss below, we will conduct reviews of the progress
of DTV every two years. This will allow us to monitor the progress of
DTV and to make adjustments to the 2006 target, if necessary. In
evaluating the appropriateness of the 2006 target date, key factors for
consideration will include viewer acceptance of digital television,
penetration of digital receivers and digital-to-analog converter set-
top boxes, the availability of digital-to-analog conversion by
retransmission media such as cable, DBS, and wireless cable, and
generally the number of television households that continue to rely
solely on over-the-air analog broadcasting. We emphasize, as we have
throughout this proceeding, that at the designated date, broadcasters
who do not receive extensions must return one of their two channels.
I. Noncommercial Stations
101. Background. In the Fourth Further Notice/Third Inquiry (60 FR
42130, August 15, 1995), we noted that noncommercial licensees would
face unique problems in their transition to DTV, particularly in the
area of funding. Accordingly, we asked for comment on what relief would
be appropriate for noncommercial broadcasters. We also noted comments
by noncommercial broadcasters that the six-year application/
construction period was insufficient, but expressed our preference to
establish a firm transition schedule, dealing with unique problems on a
case-by-case basis, rather than establishing two sets of broadcasters,
each with its own schedule. Finally, we asked what other relief could
be afforded to noncommercial broadcasters to assist them in the
conversion to DTV, such as by mandating that only the minimum required
broadcast programming must be ``noncommercial,'' and to minimize
restrictions on their operations and allow them greater flexibility.
102. Comments. AAPTS/PBS state that their biggest concern is the
ability of noncommercial stations to raise sufficient funds to support
current operations and the transition to DTV. Toward that end, they
assert that they have worked with Congress to propose legislation that
would replace the current system of federal funding for public
television stations with new sources of funding. In their Comments,
AAPTS/PBS seek flexibility in the application and construction period
in light of the financial constraints faced by noncommercial
broadcasters, including relaxation or elimination of the financial
qualifications requirement and establishment of a less demanding
construction schedule for noncommercial stations--requiring only that
they construct and begin operating DTV facilities some time prior to
the ultimate conversion deadline. Finally, they urge that noncommercial
stations that share a channel under their legislative proposal be
afforded flexibility to convert to full-time DTV operation on their
NTSC channels at any time during the transition period and that the
Commission should adopt a waiver policy under which noncommercial
stations that operate their own DTV channels would be permitted, on a
case-by-case basis to convert to DTV operation on one of the station's
6 MHz channels and cease NTSC operations earlier than the conversion
date.
103. MAP also supports relaxing the construction and transition
timetables and financial qualifications for public broadcasters.
General Instrument notes its general support for government action that
would ``mitigate financial problems faced by noncommercial stations in
converting to ATV technology, and would lead to conversion as early as
possible.'' Further, The Digital Grand Alliance agrees with AAPTS/PBS
that the Commission should modify its approach as necessary to promote
the conversion of noncommercial stations to DTV. It does not object to
affording less demanding construction schedules for noncommercial
broadcasters as long as they are operating their DTV channel by the end
of the transition period, and it endorses giving them the option to
convert to full-time DTV on their NTSC channels at any time during the
transition period.
104. Decision. At the outset, we note our commitment to
noncommercial educational television service and our recognition of the
high quality programming service noncommercial stations have provided
to American viewers over the years. We also acknowledge the financial
difficulties faced by noncommercial stations and reiterate our view
that noncommercial
[[Page 26982]]
stations will need and warrant special relief measures to assist them
in the transition to DTV. Accordingly, we intend to grant such special
treatment to noncommercial broadcasters to afford them every
opportunity to participate in the transition to digital television, and
we will deal with them in a lenient manner. As discussed above, we will
not require a financial showing of any broadcaster seeking a
construction permit to build a DTV station, and, accordingly, no
special treatment will be required of noncommercial broadcasters in
this regard. With respect to the construction deadline, discussed
above, we will apply a six-year construction period timetable to
noncommercial stations, the longest permitted to any category of DTV
applicant. We believe, however, that it would be premature to attempt
to resolve the issue of what additional special treatment, if any,
should be afforded to noncommercial broadcasters at this early date,
and we will consider this issue in our periodic reviews. At the same
time, however, we wish to note that public broadcasting service was the
first to establish a digital satellite transmission system and that
public broadcasting licensees are in the forefront of experimenting
with digital television. Public broadcasters have taken an innovative
approach in experimenting with the capabilities of digital technology.
J. Must-Carry and Retransmission Consent
In the Fourth Further Notice/Third Inquiry (60 FR 42130, August 15,
1995), we requested comment on questions relating to the issues of what
must-carry obligations and retransmission consent provisions should
apply to DTV stations, both during the transition and as a consequence
of DTV having replaced NTSC broadcasting. We received comments on these
issues from several entities. Subsequent to the issuance of the Fourth
Further Notice/Third Inquiry, Congress, in the 1996 Act, gave the
Commission some direction as to the scope of must-carry, indicating
that no ancillary or supplementary DTV services should have must-carry
rights.
106. On March 31, 1997, the Supreme Court upheld the
constitutionality of the must-carry provisions contained in the Cable
Television Consumer Protection and Competition Act of 1992, in Turner
Broadcasting System, Inc. v. FCC (``Turner II''). In upholding the
constitutionality of must-carry, the Court emphasized that preserving
the benefits of free, over-the-air broadcast television and promoting
the widespread dissemination of information from a multiplicity of
sources were important governmental interests. The Turner II case did
not expressly address the issue of must-carry of digital television
signals. In order to obtain a full and updated record on the
applicability of the must-carry and retransmission consent provisions
in the digital context, particularly in light of the Turner II
decision, we intend to issue a Notice to seek additional comments on
these issues.
K. All-Channel Receiver Issues
107. Background. Traditionally, we have not regulated broadcast
receivers except insofar as they incidentally radiate energy. However,
the All Channel Receiver Act authorizes us to require that television
receivers ``be capable of adequately receiving all frequencies
allocated by the Commission to television broadcasting.'' While we
require that all TV broadcast receivers be capable of adequately
receiving all channels allocated by the Commission to the television
broadcast service, we previously determined in this proceeding that the
All Channel Receiver Act does not mandate the manufacture of dual-mode
(DTV and NTSC) receivers. We were concerned that such a requirement
might burden consumers, and sought comment on whether there is any need
to require that manufacturers produce receivers capable of both NTSC
and DTV reception during the transition to DTV.
108. In the Fourth Further Notice of Proposed Rule Making (60 FR
42130, August 15, 1995), we noted that DTV would have the capability to
deliver both HDTV and SDTV and sought comment on whether permitting the
manufacture and sale of receivers that receive and display only NTSC,
SDTV, or HDTV signals, or some combination, would be consistent with
the All Channel Receiver Act and in the public interest. We also
requested comment on whether we should regulate how a signal should be
displayed, the need for a labeling requirement for television
receivers, and limiting the sale of NTSC receivers.
109. Comments. Most broadcasters support a requirement that all DTV
receivers and set-top converters be able to receive and display NTSC
signals, and receive all DTV signals included in the DTV transmission
standard and display them in the highest quality format which the
particular set is designed to accommodate. Golden Orange argues that
the Commission should allow market forces to determine receiver design.
The Digital Grand Alliance and most equipment manufacturers argue that
manufacturers will build digital receivers that receive all DTV
formats, including HDTV, along with NTSC broadcasts, without any FCC
requirement. The Digital Grand Alliance states that it would support a
requirement that all DTV receivers receive all DTV formats including
HDTV, if it were coupled with a requirement that broadcasters transmit
minimum amounts of HDTV programming.
110. While most broadcasters and Motorola favor regulations
governing how DTV signals are displayed on DTV receivers, most
equipment manufacturers and other commenters favor a market-driven
approach. Comments are also mixed on the need for labeling
requirements. Joint Broadcasters state that the Commission should
consider a notice requirement on NTSC-only sets warning consumers that
NTSC transmissions will end. New World states that the FCC should
require every NTSC-only set to come with a prominent warning that the
set will not receive broadcasts after a date certain without
modifications. MAP argues that the burdens of labeling are far
outweighed by the need to protect consumers. Equipment manufacturers
maintain that labeling requirements are unnecessary. EIA states that
informational programs and consumer education are critical components
of the manufacturer-consumer relationship, so manufacturers will be
certain to educate consumers regarding their equipment options during
the transition to DTV. On the issue of limiting the sale of NTSC
receivers, New World and the AAPTS/PBS favor a requirement that all
televisions sold after some date be capable of receiving and displaying
digital broadcast transmissions. The Digital Grand Alliance and EIA
argue that the Commission should not ban or limit the sale of NTSC-only
receivers. During the transition to digital, and perhaps even after,
the Digital Grand Alliance contends, there is likely to be a demand for
NTSC-only sets driven by cable services, wireless cable services,
direct broadcast satellite services, digital video disc players, and
VCRs.
111. Decision. The digital broadcast transmission standard which we
adopted in the Fourth Report and Order (62 FR 14006, March 25, 1997)
differed from the standard we proposed in the Fifth Further Notice (61
FR 26864, May 29, 1996). Many of the comments we received in response
to the Fifth Further Notice assumed that the Commission would adopt a
DTV transmission standard that included specific video formats.
However, the standard we
[[Page 26983]]
adopted in the Fourth Report and Order did not specify video formats.
We chose instead to allow video formats to be determined by the market
and consumer demand. Because of this important modification, we believe
that some of the arguments made by the commenters on specific all-
channel receiver issues are no longer applicable.
112. We have decided that, at this time, equipment manufacturers
should have maximum latitude to determine which video formats DTV
equipment will receive. We believe that it is likely that market forces
will provide incentives for broadcasters and equipment manufacturers to
work closely together to produce the receiver and converter designs
most valued by consumers.
113. We do not believe that our goals would be advanced by
mandating that all digital receivers receive and display NTSC signals
and DTV signals, regardless of format, aspect ratio, or progressive or
interlaced scanning, as broadcasters argue. We expect that equipment
manufacturers will make available to consumers digital receivers that
receive both NTSC and DTV signals. However, we will not preclude
equipment manufacturers from designing digital receivers that do not
receive NTSC signals. In addition, we believe that equipment
manufacturers should be allowed to offer lower-cost, digital receivers
that receive only progressive scan or SDTV formats. Our two-year
reviews will give us an opportunity to monitor DTV receiver designs and
address any problems that may arise.
114. We have decided to postpone any decision concerning a labeling
requirement. We are providing broadcasters flexibility in their choice
of video formats and equipment manufacturers flexibility in their
choice of receiver designs and we are hopeful that this will result in
products and services that draw consumers to DTV. At this early stage
of the transition process, we will rely on consumer electronics
manufacturers and retailers to provide the information necessary for
consumers to make informed choices. Should problems arise, and
consumers become confused, as the transition moves forward, we will
have opportunity to revisit labeling requirement issues through our
review process. Finally, we recognize that there is an enormous
embedded base of video cassette recorders, cable decoder boxes, laser
disc players, and other video equipment that use NTSC receivers for
non-broadcast purposes. This suggests that there may be a continuing
market for the sale of NTSC display devices, even after the conversion
to DTV. Therefore, we decline to limit the sale of NTSC-only display
devices.
L. Review Issues
115. In the Third Report/Further Notice (57 FR 53588, November 12,
1992), the Commission set deadlines for the application and
construction period, the simulcast requirements, and the transition
end-date. The Commission also adopted a timetable, with specific years,
for the review of information relating to these time periods, under the
assumption that the ATV standard and a table of ATV allotments would be
adopted by late 1993. The Commission emphasized that the adoption of
certain dates would give parties a measure of certainty, while a
schedule for review would permit government and industry to adapt, if
necessary, to unforeseen circumstances.
116. While the specific dates established in the Third Report/
Further Notice (57 FR 53588, November 12, 1992) have been overtaken by
events and are no longer applicable, we continue to believe that
regular reviews of the progress of DTV are highly desirable. Given the
importance of digital television's introduction, we conclude that a
periodic review every two years until the cessation of analog service
is necessary to allow the Commission the opportunity to ensure that the
introduction of digital television and the recovery of spectrum at the
end of the transition fully serves the public interest. During these
reviews, we will address any new issues raised by technological
developments, necessary alterations in our rules, or other changes
necessitated by unforeseen circumstances. The Commission will address
such issues as the appropriateness of 2006 as a target recovery date,
the proper application of the simulcast requirement, the special needs
of noncommercial stations, issues related to DTV receiver designs and
set labelling, and any other issue that requires examination. Our
decisions today, at the very outset of the introduction of digital
television, are in some respects necessarily preliminary. A periodic
review will permit us to make whatever adjustments will be required.
III. Conclusion
117. Digital television will enter a highly competitive,
challenging telecommunications marketplace. Our decisions in this
Report and Order, designed to foster technological innovation and
competition, while minimizing government regulation, will, we hope,
increase the likelihood that we will see a digital television service
that provides a host of new and beneficial services to the American
public, while preserving free universal television service that serves
the ``public interest, convenience, and necessity.''
IV. Administrative Matters
118. The Commission has submitted to OMB an emergency request for
approval of: (1) an information collection regarding the cancellation
of the Initial DTV License and (2) the form attached to this Report and
Order to be used to apply for a DTV construction permit. The first
request will be used only once and the Commission will not seek
extension of the approval for this collection. The second will continue
to be used by the public. OMB approved this emergency request and
assigned 3060-0766 as the control number. Additionally, this Report and
Order contains a requirement that those stations that voluntarily
committed to building DTV facilities within 18 months are required to
submit progress reports on construction of facilities. As required by
the Regulatory Flexibility Act (``RFA''), 5 U.S.C. 603, an Initial
Regulatory Flexibility Analysis (``IRFA'') was incorporated in the
Fourth Further Notice of Proposed Rule Making and Third Notice of
Inquiry (60 FR 42130, August 15, 1995) in this proceeding. The
Commission sought written public comments on the proposals in the
Fourth Further Notice, including on the IRFA. The Commission's Final
Regulatory Flexibility Analysis (``FRFA'') in this Fifth Report and
Order conforms to the RFA, as amended by the Contract With America
Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996)
(``CWAAA'').19
---------------------------------------------------------------------------
\19\ See generally 5 U.S.C. Sec. 1 et seq. (RFA). Title II of
CWAAA is The Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA).
---------------------------------------------------------------------------
V. Final Paperwork Reduction Act of 1995 Analysis
119. This Report and Order contains either a new or modified
information collection. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public to
comment on the information collections contained in this R&O as
required by the Paperwork Reduction Act of 1995, Public Law 104-13.
Public and agency comments are due 60 days from date of publication of
this R&O in the Federal Register. Comments should address: (a) Whether
the new or modified collection of information is necessary for the
proper performance of the functions of the Commission,
[[Page 26984]]
including whether the information shall have practical utility; (b) the
accuracy of the Commission's burden estimates; (c) ways to enhance the
quality, utility, and clarity of the information collected; and (d)
ways to minimize the burden of the collection of information on the
respondents, including the use of automated collection techniques or
other forms of information technology.
OMB Approval Number: 3060-0027.
Title: Application for Construction Permit for Commercial Broadcast
Station.
Form No.: FCC 301.
Type of Review: Revision of a currently approved collection.
Respondents: Businesses or other for-profit.
Number of Respondents: 1,996.
Estimated time per response: 37 hours--159 hours (This time varies
depending of the type of application filed. This collection is
contracted out to communications attorneys and consulting engineers for
completion of the form.)
Total annual burden: 8,071.
Needs and Uses: FCC 301 is used to apply for authority to construct
a new commercial AM, FM or TV broadcast station, or to make changes in
the existing facilities of such a station. In addition, FM licensees or
permittees may request, by application on FCC 301, upgrades on adjacent
and co-channels, modifications to adjacent channels of the same class
and downgrades to adjacent channels without first submitting a petition
for rulemaking. All applicants using this one-step process must
demonstrate that a suitable site exists which would comply with
allotment standards with respect to minimum distance separation and
city-grade coverage and that it would be suitable for tower
construction.
120. To receive authorization for commencement of operation, an
initial DTV licensee must file FCC 301 for a construction permit. This
application may be filed anytime after receiving the initial DTV
license but must be filed before the mid-point in a particular
applicant's required construction period. The Commission has developed
a new section V-D for DTV engineering which will be added to the FCC
301. The Commission will consider these applications as minor changes
in facilities. Applicants will not have to supply full legal or
financial qualification information.
121. On 3/7/96, the Commission adopted an Order which amended the
Commission's rules to eliminate current national multiple radio
ownership restrictions and to relax local radio ownership restrictions
(the ``radio contour overlap'' rule). This action was necessary to
conform the rules to section 202(a) and 202(b)(1) of the
Telecommunications Act of 1996. This action will revise the FCC 301 by
removing the Exhibit dealing with market and audience share
information.
122. The FCC 301 will also be revised to add the new requirements
regarding antenna tower registration. This unique antenna registration
number identifies an antenna structure and must be used on all filings
related to the antenna structure. Several questions will be added to
the engineering portions of the this form to collect this information.
This requirement was approved by OMB under control number 3060-0714.
123. The data is used by FCC staff to determine whether the
applicant meets basic statutory requirements to become a Commission
licensee.
OMB Approval Number: 3060-0034.
Title: Application for Construction Permit for Noncommercial
Educational Broadcast Station.
Form No.: FCC 340.
Type of Review: Revision of a currently approved collection.
Respondents: Not for-profit institutions.
Number of Respondents: 646.
Estimated time per response: 37 hours--114 hours (This time varies
depending of the type of application filed. This collection is
contracted out to communications attorneys and consulting engineers for
completion of the form.)
Total annual burden: 2,736.
Needs and Uses: FCC 340 is used to apply for authority to construct
a new noncommercial educational AM, FM and TV broadcast station, or to
make changes in the existing facilities of such a station.
124. To receive authorization for commencement of operation, an
initial DTV licensee must file FCC 340 for a construction permit. This
application may be filed anytime after receiving the initial DTV
license but must be filed before the mid-point in a particular
applicant's required construction period. The Commission has developed
a new section V-D for DTV engineering which will be added to the FCC
340. The Commission will consider these applications as minor changes
in facilities. Applicants will not have to supply full legal or
financial qualification information.
125. This form will be revised to add the new requirements
regarding antenna tower registration. This unique antenna registration
number identifies an antenna structure and must be used on all filings
related to the antenna structure. Several questions will be added to
the engineering portions of the FCC 340 to collect this information.
This requirement was approved by OMB under control number 3060-0714.
126. The data is used by FCC staff to determine whether the
applicant meets basic statutory requirements to become a Commission
licensee.
OMB Approval Number: 3060-None.
Title: DTV Report on Construction Progress.
Form No.: None.
Type of Review: New Collection.
Respondents: Business or other for-profit.
Number of Respondents: 24.
Estimated time per response: 0.33 hours (2 times per year).
Total annual burden: 16 hours.
Needs and Uses: By letter to the Commission, 24 stations have
voluntarily committed to building DTV facilities within 18 months. The
Commission is requesting that these 24 stations file reports at six-
month intervals, beginning on November 1, 1997, stating that their
plans to meet these deadlines are on schedule or specifying any
difficulties encountered in attempting to meet these deadlines.
127. The data will be used by FCC staff to monitor the progress of
DTV applicants in the construction of their DTV facilities.
VI. Final Regulatory Flexibility Analysis
128. As required by the Regulatory Flexibility Act (``RFA''), 5
U.S.C. 603, an Initial Regulatory Flexibility Analysis (``IRFA'') was
incorporated in the Fourth Further Notice of Proposed Rule Making and
Third Notice of Inquiry in this proceeding.20 The Commission
sought written public comments on the proposals in the Fourth Further
Notice, including on the IRFA. The Commission's Final Regulatory
Flexibility Analysis (``FRFA'') in this Fifth Report and Order conforms
to the RFA, as amended by the Contract With America Advancement Act of
1996, Public Law 104-121, 110 Stat. 847 (1996)
(``CWAAA'').21
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\20\ 10 FCC Rcd 10540, 10555 (1995).
\21\ See generally 5 U.S.C. 1 et seq. (RFA). Title II of CWAAA
is The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA).
---------------------------------------------------------------------------
Need for Objectives of Action
The Fifth Report and Order adopts several rules with the following
objectives: (1) To promote and preserve free, universally available,
local broadcast television in a digital world, thereby preserving free,
widely accessible programming that serves the public interest; and (2)
to promote
[[Page 26985]]
spectrum efficiency and rapid recovery of spectrum.
Significant Issues Raised by the Public in Response to the Initial
Analysis
No comments were received specifically in response to the IRFA
contained in the Fifth Further Notice. However, some comments
indirectly addressed small business issues. In addition, most
commenters agreed that DTV licensees should have the discretion to
provide a wide variety of ancillary and supplemental services, thereby
providing an additional revenue stream that would benefit small
entities. Finally, several low power television (``LPTV'')
broadcasters, many of which are small entities, want the Commission to
extend initial eligibility to LPTV licensees.
Discription and Number of Small Entities to Which the Rule Will Apply
Definition of a ``Small Business''. Under the RFA, small entities
may include small organizations, small businesses, and small
governmental jurisdictions. 5 U.S.C. 601(6). The RFA, 5 U.S.C. 601(3),
generally defines the term ``small business'' as having the same
meaning as the term ``small business concern'' under the Small Business
Act, 15 U.S.C. 632. A small business concern is one which: (1) Is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) satisfies any additional criteria established by the
Small Business Administration (``SBA''). According to the SBA's
regulations, entities engaged in television broadcasting Standard
Industrial Classification (``SIC'') Code 4833--Television Broadcasting
Stations, may have a maximum of $10.5 million in annual receipts in
order to qualify as a small business concern. This standard also
applies in determining whether an entity is a small business for
purposes of the RFA.
129. Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency after consultation with the
Office of Advocacy of the SBA and after opportunity for public comment,
establishes one or more definitions of such term which are appropriate
to the activities of the agency and publishes such definition(s) in the
Federal Register.'' While we tentatively believe that the foregoing
definition of ``small business'' greatly overstates the number of
television broadcast stations that are small businesses and is not
suitable for purposes of determining the impact of the new rules on
small television stations, we did not propose an alternative definition
in the IRFA.22 Accordingly, for purposes of this Fifth
Report and Order, we utilize the SBA's definition in determining the
number of small businesses to which the rules apply, but we reserve the
right to adopt a more suitable definition of ``small business'' as
applied to television broadcast stations and to consider further the
issue of the number of small entities that are television broadcasters
in the future. Further, in this FRFA, we will identify the different
classes of small television stations that may be impacted by the rules
adopted in this Fifth Report and Order.
---------------------------------------------------------------------------
\22\ We have pending proceedings seeking comment on the
definition of and data relating to small businesses. In our Notice
of Inquiry (61 FR 33066, June 26, 1996) in GN Docket No. 96-113 (In
the Matter of section 257 Proceeding to Identify and Eliminate
Market Entry Barriers for Small Businesses), FCC 96-216, released
May 21, 1996, we requested commenters to provide profile data about
small telecommunications businesses in particular services,
including television, and the market entry barriers they encounter,
and we also sought comment as to how to define small businesses for
purposes of implementing section 257 of the Telecommunications Act
of 1996, which requires us to identify market entry barriers and to
prescribe regulations to eliminate those barriers. Additionally, in
our Order and Notice of Proposed Rule Making (61 FR 09964, March 12,
1996) in MM Docket No. 96-16 (In the Matter of Streamlining
Broadcast EEO Rule and Policies, Vacating the EEO Forfeiture Policy
Statement and Amending section 1.80 of the Commission's Rules to
Include EEO Forfeiture Guidelines), 11 FCC Rcd 5154 (1996), we
invited comment as to whether relief should be afforded to stations:
(1) based on small staff and what size staff would be considered
sufficient for relief, e.g., 10 or fewer full-time employees; (2)
based on operation in a small market; or (3) based on operation in a
market with a small minority work force. We have not concluded the
foregoing rule makings.
---------------------------------------------------------------------------
130. Issues in Applying the Definition of a ``Small Business''. As
discussed below, we could not precisely apply the foregoing definition
of ``small business'' in developing our estimates of the number of
small entities to which the rules will apply. Our estimates reflect our
best judgments based on the data available to us.
131. An element of the definition of ``small business'' is that the
entity not be dominant in its field of operation. We were unable at
this time to define or quantify the criteria that would establish
whether a specific television station is dominant in its field of
operation. Accordingly, the following estimates of small businesses to
which the new rules will apply do not exclude any television station
from the definition of a small business on this basis and are therefore
overinclusive to that extent. An additional element of the definition
of ``small business'' is that the entity must be independently owned
and operated. As discussed further below, we could not fully apply this
criterion, and our estimates of small businesses to which the rules may
apply may be overinclusive to this extent. The SBA's general size
standards are developed taking into account these two statutory
criteria. This does not preclude us from taking these factors into
account in making our estimates of the numbers of small entities.
132. With respect to applying the revenue cap, the SBA has defined
``annual receipts'' specifically in 13 CFR 121.104, and its
calculations include an averaging process. We do not currently require
submission of financial data from licensees that we could use in
applying the SBA's definition of a small business. Thus, for purposes
of estimating the number of small entities to which the rules apply, we
are limited to considering the revenue data that are publicly
available, and the revenue data on which we rely may not correspond
completely with the SBA definition of annual receipts.
133. Under SBA criteria for determining annual receipts, if a
concern has acquired an affiliate or been acquired as an affiliate
during the applicable averaging period for determining annual receipts,
the annual receipts in determining size status include the receipts of
both firms. 13 CFR 121.104(d)(1). The SBA defines affiliation in 13 CFR
121.103. In this context, the SBA's definition of affiliate is
analogous to our attribution rules. Generally, under the SBA's
definition, concerns are affiliates of each other when one concern
controls or has the power to control the other, or a third party or
parties controls or has the power to control both. 13 CFR
121.103(a)(1). The SBA considers factors such as ownership, management,
previous relationships with or ties to another concern, and contractual
relationships, in determining whether affiliation exists. 13 CFR
121.103(a)(2). Instead of making an independent determination of
whether television stations were affiliated based on SBA's definitions,
we relied on the data bases available to us to provide us with that
information.
134. Television Station Estimates Based on Census Data. The rules
amended by this Fifth Report and Order will apply to all full service
television stations and may have an effect on TV translator facilities
and LPTV stations. The Small Business Administration defines a
television broadcasting station that has no more than $10.5 million in
annual receipts as a small business. Television broadcasting stations
consist of establishments primarily engaged in broadcasting visual
programs by television to the public, except cable
[[Page 26986]]
and other pay television services.23 Included in this
industry are commercial, religious, educational, and other television
stations.24 Also included are establishments primarily
engaged in television broadcasting and which produce taped television
program materials.25 Separate establishments primarily
engaged in producing taped television program materials are classified
under another SIC number.26
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\23\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, 1992 Census of Transportation,
Communications and Utilities, Establishment and Firm Size, Series
UC92-S-1, Appendix A-9 (1995).
\24\ Id. See Executive Office of the President, Office of
Management and Budget, Standard Industrial Classification Manual
(1987), at 283, which describes ``Television Broadcasting Stations
(SIC Code 4833) as:
Establishments primarily engaged in broadcasting visual programs
by television to the public, except cable and other pay television
services. Included in this industry are commercial, religious,
educational and other television stations. Also included here are
establishments primarily engaged in television broadcasting and
which produce taped television program materials.
\25\ Economics and Statistics Administration, Bureau of Census,
U.S. Department of Commerce, supra note 250.
\26\ Id.; SIC 7812 (Motion Picture and Video Tape Production);
SIC 7922 (Theatrical Producers and Miscellaneous Theatrical Services
(producers of live radio and television programs).
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135. There were 1,509 television stations operating in the nation
in 1992.27 That number has remained fairly constant as
indicated by the approximately 1,551 operating television broadcasting
stations in the nation as of February 28, 1997.28 For 1992
29 the number of television stations that produced less than
$10.0 million in revenue was 1,155 establishments, or 77% of 1,509
establishments.30 Thus, the proposed rules will affect
approximately 1,551 television stations; approximately 1,194 of those
stations are considered small businesses.31 These estimates
may overstate the number of small entities since the revenue figures on
which they are based do not include or aggregate revenues from non-
television affiliated companies. We recognize that the proposed rules
may also impact minority and women owned stations, some of which may be
small entities. In 1995, minorities owned and controlled 37 (3.0%) of
1,221 commercial television stations in the United States.32
According to the U.S. Bureau of the Census, in 1987 women owned and
controlled 27 (1.9%) of 1,342 commercial and non-commercial television
stations in the United States.33
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\27\ FCC News Release No. 31327, Jan. 13, 1993; Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 250, Appendix A-9.
\28\ FCC News Release No. 7033, March 6, 1997.
\29\ Census for Communications' establishments are performed
every five years ending with a ``2'' or ``7''. See Economics and
Statistics Administration, Bureau of Census, U.S. Department of
Commerce, supra note 250, III.
\30\ The amount of $10 million was used to estimate the number
of small business establishments because the relevant Census
categories stopped at $9,999,999 and began at $10,000,000. No
category for $10.5 million existed. Thus, the number is as accurate
as it is possible to calculate with the available information.
\31\ We use the 77 percent figure of TV stations operating at
less than $10 million for 1992 and apply it to the 1997 total of
1551 TV stations to arrive at 1,194 stations categorized as small
businesses.
\32\ Minority Commercial Broadcast Ownership in the United
States, U.S. Dep't of Commerce, National Telecommunications and
Information Administration, The Minority Telecommunications
Development Program (``MTDP'') (April 1996). MTDP considers minority
ownership as ownership of more than 50% of a broadcast corporation's
stock, voting control in a broadcast partnership, or ownership of a
broadcasting property as an individual proprietor. Id. The minority
groups included in this report are Black, Hispanic, Asian, and
Native American.
\33\ See Comments of American Women in Radio and Television,
Inc. in MM Docket No. 94-149 and MM Docket No. 91-140, at 4 n.4
(filed May 17, 1995), citing 1987 Economic Censuses, Women-Owned
Business, WB87-1, U.S. Dep't of Commerce, Bureau of the Census,
August 1990 (based on 1987 Census). After the 1987 Census report,
the Census Bureau did not provide data by particular communications
services (four-digit Standard Industrial Classification (SIC) Code),
but rather by the general two-digit SIC Code for communications
(48). Consequently, since 1987, the U.S. Census
Bureau has not updated data on ownership of broadcast facilities by
women, nor does the FCC collect such data. However, we sought
comment on whether the Annual Ownership Report Form 323 should be
amended to include information on the gender and race of broadcast
license owners. Policies and Rules Regarding Minority and Female
Ownership of Mass Media Facilities, Notice of Proposed Rulemaking,
10 FCC Rcd 2788, 2797 (1995).
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136. It should also be noted that the foregoing estimates do not
distinguish between network-affiliated 34 stations and
independent stations. As of April, 1996, the BIA Publications, Inc.,
Master Access Television Analyzer Database indicates that about 73
percent of all commercial television stations were affiliated with the
ABC, CBS, NBC, Fox, UPN, or WB networks. Moreover, seven percent of
those affiliates have secondary affiliations.35
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\34\ In this context, ``affiliation'' refers to any local
broadcast television station that has a contractual arrangement with
a programming network to carry the network's signal. This definition
of affiliated station includes both stations owned and operated by a
network and stations owned by other entities.
\35\ Secondary affiliations are secondary to the primary
affiliation of the station and generally afford the affiliate
additional choice of programming.
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137. There are currently 4,977 TV translator stations and 1,952
LPTV stations which would be affected by the new rules, if they decide
to convert to digital television.36 The Commission does not
collect financial information of any broadcast facility and the
Department of Commerce does not collect financial information on these
broadcast facilities. We will assume for present purposes, however,
that most of these broadcast facilities, including LPTV stations, could
be classified as small businesses. As we indicated earlier, 77% of
television stations are designated as small businesses. Given this
situation, LPTV and translator stations would not likely have revenues
that exceed the SBA maximum to be designated as small businesses.
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\36\ FCC News Release No. 7033, March 6, 1997.
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138. Alternative Classification of Small Television Stations. An
alternative way to classify small television stations is by the number
of employees. The Commission currently applies a standard based on the
number of employees in administering its Equal Employment Opportunity
(``EEO'') rule for broadcasting.37 Thus, radio or television
stations with fewer than five full-time employees are exempted from
certain EEO reporting and recordkeeping requirements.38 We
estimate that the total number of commercial television stations with 4
or fewer employees is 132 and that the total number of noncommercial
educational television stations with 4 or fewer employees is
136.39
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\37\ The Commission's definition of a small broadcast station
for purposes of applying its EEO rule was adopted prior to the
requirement of approval by the Small Business Administration
pursuant to section 3(a) of the Small Business Act, 15 U.S.C.
632(a), as amended by section 222 of the Small Business Credit and
Business Opportunity Enhancement Act of 1992, Public Law 102-366,
section 222(b)(1), 106 Stat. 999 (1992), as further amended by the
Small Business Administration Reauthorization and Amendments Act of
1994, Public Law 103-403, section 301, 108 Stat. 4187 (1994).
However, this definition was adopted after public notice and an
opportunity for comment. See Report and Order in Docket No. 18244,
23 FCC 2d 430 (1970).
\38\ See, e.g., 47 CFR 73.3612 (Requirement to file annual
employment reports on Form 395-B applies to licensees with five or
more full-time employees); First Report and Order in Docket No.
21474 (In the Matter of Amendment of Broadcast Equal Employment
Opportunity Rules and FCC Form 395), 70 FCC 2d 1466 (1979). The
Commission is currently considering how to decrease the
administrative burdens imposed by the EEO rule on small stations
while maintaining the effectiveness of our broadcast EEO
enforcement. Order and Notice of Proposed Rule Making in MM Docket
No. 96-16 (In the Matter of Streamlining Broadcast EEO Rule and
Policies, Vacating the EEO Forfeiture Policy Statement and Amending
Section 1.80 of the Commission's Rules to Include EEO Forfeiture
Guidelines), 11 FCC Rcd 5154 (1996). One option under consideration
is whether to define a small station for purposes of affording such
relief as one with ten or fewer full-time employees. Id. at para.
21.
\39\ We base this estimate on a compilation of 1995 Broadcast
Station Annual Employment Reports (FCC Form 395-B), performed by
staff of the Equal Opportunity Employment Branch, Mass Media Bureau,
FCC.
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[[Page 26987]]
Projected Compliance Requirements of the Rule
The Fifth Report and Order adopts a number of rules, procedures,
and policies, most of which are not expected to involve the imposition
of new compliance requirements upon licensees or other entities. These
include the rules: (1) Providing 6 MHz channels for each DTV channel;
(2) limiting the initial eligibility for DTV channels to existing full-
power broadcasters; (3) requiring licensees to provide at least one
free digital video programming service that is at least comparable in
resolution to today's service and aired during the same time periods
that their analog channel is broadcasting; (4) allowing broadcasters
full flexibility to respond to the demands of their audience by
providing ancillary and supplementary services that do not derogate the
mandated free, over-the-air program service; (5) giving broadcasters
the discretion as to how much, if any, high definition television
programming they will transmit; (6) refraining from imposing a
simulcasting requirement upon broadcasters until the final years of the
transition; (7) licensing NTSC and DTV television facilities under a
single, paired license; (8) stating the Commission's intent to give
special relief to noncommercial broadcasters to assist their transition
to DTV, including providing them six years within which to construct
DTV facilities; (9) allowing equipment manufacturers at this time
maximum latitude to determine which video formats DTV equipment will
receive, since broadcasters will have the latitude to decide which
video formats they will transmit based on market and consumer demand;
(10) postponing a decision whether to impose labeling requirements on
receiver manufacturers; and (11) declining to limit the sale of NTSC-
only display devices in the future.
139. We do expect that three of the rules we adopt today may
constitute significant compliance requirements on small entities, as
well as on others. First, pursuant to the rule setting a timetable for
applying for and constructing DTV facilities, all licensees will have
90 days after the release date of the DTV Table of Allotments to inform
the Commission if they do not want a DTV channel. After that, there
will be three categories of construction requirements for commercial
television stations. In the first category, all network-affiliated
stations in the top ten television markets will have until May 1, 1999,
to construct their digital facilities. In the second category, all
network-affiliated stations in the top 30 television markets not
included above will have until November 1, 1999, to construct their
digital facilities. In the third category, all other commercial
stations will have until May 1, 2002, to construct their DTV
facilities. All noncommercial stations will have until May 1, 2003, to
construct their DTV facilities. We will ask that those stations that
have represented to the Commission that they will complete construction
of the DTV facility by November 1, 1998, file reports at six-month
intervals, beginning on November 1, 1997, stating that their plans to
meet these deadlines are on schedule or specifying any difficulties
encountered in attempting to meet these deadlines. We will grant an
extension of time where a broadcaster has been unable to complete
construction due to circumstances that are either unforeseeable or
beyond the licensee's control where the licensee has taken all possible
steps to resolve the problem expeditiously.
140. The second rule with compliance requirements, that setting a
deadline of 2006 for broadcasters to complete their transition to DTV
by surrendering their NTSC spectrum, also affects small entities, as
well as others. However, because stations will have constructed their
DTV facilities by that time, pursuant to the timetable mentioned above,
the compliance requirement is simply to cease transmitting NTSC
signals.
141. The third rule with compliance requirements, that setting a
graduated simulcast requirement for the last three years of the
transition, also affects small entities, as well as others. However,
because of the gradual nature of the requirement, as well as the
multichannel capabilities of DTV, small entities are not expected to
find it difficult to comply.
Significant Alternatives Considered Minimizing the Economic Impact on
Small Entities and Consistent with the Stated Objectives
The Fifth Report and Order adopts a rule providing 6 MHz channels
for each DTV channel. This represents the optimum balance of broadcast
needs and spectrum efficiency, and it is consistent with the DTV
Standard adopted in the Fourth Report and Order. To specify a different
channel size at this late date would not promote the goals we sought to
achieve in adopting the DTV Standard and would prolong the conversion
to DTV, thereby putting broadcasters at a competitive disadvantage to
other digital video program providers.
142. The Fifth Report and Order also adopts a rule limiting the
initial eligibility for DTV channels to existing full-power
broadcasters, consistent with the statutory directive to do so
contained in the Telecommunications Act of 1996. This minimizes the
chances that small entities that already have full-service NTSC
licenses or construction permits will be forced to surrender them.
However, low power television broadcasters, many of which are small
entities, would not automatically be eligible for DTV channels.
143. The Fifth Report and Order also adopts a rule requiring
licensees to provide at least one free digital video programming
service that is at least comparable in resolution to today's service
and aired during the same time periods that their analog channel is
broadcasting. Accordingly, the provision of this minimum service should
impose no economic impact beyond that already imposed by the general
requirement that stations construct and operate digital television
facilities. At the same time, it ensures that viewers will continue to
have access to over-the-air broadcast programming. Finally, it does not
impede broadcasters' opportunities to generate revenue through
additional advertiser-supported programming or subscription, if they
choose.
144. The Fifth Report and Order also adopts a rule stating that
broadcasters shall have full flexibility to respond to the demands of
their audience by providing ancillary and supplementary services that
do not derogate the mandated free, over-the-air program service. Such
services could include, but are not limited to, subscription television
programming, computer software distribution, data transmissions,
teletext, interactive services, audio signals, and any other services
that do not interfere with the required free service.
145. The Fifth Report and Order declines to impose a requirement
that broadcasters provide a minimum amount of high definition
television programming over the DTV spectrum, and instead leaves this
decision to the discretion of broadcasters. Such a minimum requirement
might be particularly burdensome on small broadcasters, including many
independent and foreign-language stations.
146. The Fifth Report and Order also refrains from imposing a
simulcasting requirement on broadcasters until the closing years of the
transition. However, broadcasters at all times retain the option to
simulcast, should they so choose. This discretion assures small
entities, as well as others, the flexibility
[[Page 26988]]
to compete more efficiently in the video marketplace.
147. However, in order to help reclaim spectrum at the end of the
transition period, the Fifth Report and Order requires that by the
sixth year after its adoption, programming that is aired on a
broadcaster's analog channel must be available on its digital channel.
This will prevent disenfranchisement of the remaining NTSC viewers when
the NTSC spectrum is reclaimed. Thus, commencing April 1, 2003, DTV
licensees and permittees must simulcast at least 50% of the video
programming transmitted on their analog channel; commencing April 1,
2004, there will be a 75% simulcasting requirement; commencing April 1,
2005, there will be a 100% simulcasting requirement until the analog
channel is terminated and returned.
148. The Fifth Report and Order also determines that NTSC and DTV
television facilities should be licensed under a single, paired
license. This will help small broadcasters, as well as others, minimize
their administrative burdens and the financial costs associated with
them.
149. The Fifth Report and Order also sets a timetable by which
stations must apply for and construct DTV facilities. It is important
to foster an expeditious and orderly transition to digital technology
that will allow the public to receive the benefits of digital
television, so it is important that viewers in television markets have
access to DTV programming and other digital services as quickly as
possible. First, pursuant to the rule setting a timetable for applying
for and constructing DTV facilities, all licensees will have 90 days
after the release date of the DTV Table of Allotments to inform the
Commission if they do not want a DTV channel. After that, there will be
three categories of construction requirements for commercial television
stations. In the first category, all network-affiliated stations in the
top ten television markets will have until May 1, 1999, to construct
their digital facilities. In the second category, all network-
affiliated stations in the top 30 television markets not included above
will have until November 1, 1999, to construct their digital
facilities. In the third category, all other commercial stations will
have until May 1, 2002, to construct their DTV facilities. All
noncommercial stations will have until May 1, 2003, to construct their
DTV facilities. We will require that those stations that have
represented to the Commission that they will complete construction of
the DTV facility by November 1, 1998, file reports at six-month
intervals, beginning on November 1, 1997, stating that their plans to
meet these deadlines are on schedule or specifying any difficulties
encountered in attempting to meet these deadlines. We will grant an
extension of time where a broadcaster has been unable to complete
construction due to circumstances that are either unforeseeable or
beyond the licensee's control where the licensee has taken all possible
steps to resolve the problem expeditiously.
150. An aggressive construction schedule is necessary for us to
meet our main objectives in this proceeding. First, digital broadcast
television stands a risk of failing unless it is rolled out quickly.
Other media such as DBS, cable, and wireless cable have or soon will
offer digital programming services. Unless digital television
broadcasting is available quickly, other digital services may achieve
levels of penetration that could preclude the success of over-the-air,
digital television. Second, a rapid construction period is critical to
DTV's competitive strength internationally, as well as domestically.
Third, an aggressive construction schedule helps to offset possible
disincentives that any individual broadcaster may have to begin digital
transmissions quickly, as well as the absence of many market forces
that might themselves ensure rapid construction. Fourth, a rapid build-
out works to ensure that recovery of broadcast spectrum and its
reallocation to other beneficial uses occurs as quickly as possible.
151. This construction schedule takes the needs and interests of
small entities into account. The most aggressive requirements apply to
stations that we believe will be in the best position to make the
transition quickly: Network-affiliated stations in the top 10
television markets. These markets include approximately 30 percent of
U.S. television households. Network-affiliated stations consistently
have higher ratings, with higher audience numbers, and we assume with
greater financial and other resources, so that the above construction
requirement will both serve the public and be reasonably nonburdensome
to broadcasters. In recognition of the fact that some networks may have
in some of the larger markets a second affiliate that is not as strong
as the other affiliate, we have minimized the burden on that weaker
affiliate by imposing a longer construction deadline. Moreover, we are
not requiring licensees initially to construct full-replication
facilities. Instead, we are requiring them at the outset only to emit a
DTV signal strong enough to encompass the community of license.
152. The Fifth Report and Order also concludes that broadcasters
should have sufficient time between now and 2006 to complete their
transitions to DTV and surrender their NTSC frequencies. It has become
clear that conversion, both for stations and for viewers, will cost
significantly less than thought at the time of the Third Report and
Order, which had set a 15-year termination date. Thus, conversion can
occur more quickly and NTSC spectrum can be surrendered sooner than
earlier anticipated. In addition, the interests of small entities are
served through our decision to conduct thorough reviews of the progress
of DTV every two years, which will allow us to make adjustments to the
2006 target, if necessary.
153. The Fifth Report and Order also states the Commission's intent
to give special relief to noncommercial broadcasters to assist their
transition to DTV, including providing them with six years within which
to construct their DTV facilities. In so doing, the Commission is
recognizing the unique financial difficulties often faced by these
entities, which, as noted earlier, are likely to be small entities.
154. The Fifth Report and Order allows equipment manufacturers at
this time maximum latitude to determine which video formats DTV
equipment will receive, since broadcasters will have the latitude to
decide which video formats they will transmit based on market and
consumer demand. We believe that it is likely that market forces will
provide incentives for broadcasters and equipment manufacturers to work
closely together to produce the receiver and converter designs most
valued by consumers. The Fifth Report and Order also postpones a
decision regarding labeling requirements for manufacturers of
receivers. Finally, the Fifth Report and Order recognizes that there is
an enormous embedded base of video cassette recorders, cable decoder
boxes, laser disc players, and other video equipment that use NTSC
receivers for non-broadcast purposes. Because there may be a continuing
market for the sale of NTSC display devices, even after the conversion
to DTV, we decline to limit the sale of NTSC-only display devices.
These decisions allow small entities the maximum ability to determine
and meet consumer interests.
155. As noted, at least two of our decisions may have a significant
economic impact on a substantial number of small entities. We believe
that the additional burdens on small entities cannot be diminished,
however, without compromising the two primary
[[Page 26989]]
goals of this proceeding, as described earlier.
VII. Report to Congress
156. The Commission shall send a copy of this Final Regulatory
Flexibility Analysis along with this Fifth Report and Order in a report
to be sent to Congress pursuant to the Small Business Regulatory
Enforcement Fairness Act of 1996. See 5 U.S.C. 801(a)(1)(A). A copy of
this FRFA (or a summary thereof) will also be published in the Federal
Register.
157. For additional information concerning the information
collections contained in this Report and Order contact Dorothy Conway
at 202-418-0217.
Ordering Clauses
158. Accordingly, it is ordered That, pursuant to sections 4 (i) &
(j), 303(r), 307, 309, and 336 of the Communications Act of 1934 as
amended, 47 U.S.C. 154 (i), (j) 303(r), 307, 309, and 336, Part 73 of
the Commission's Rules is amended as set forth below.
159. It is further ordered That, pursuant to the Contract with
America Advancement Act of 1996, the rule amendments set forth below
shall be effective June 16, 1997. Written comments by the public on the
new and/or modified information collections are due July 15, 1997.
160. It is further ordered That the new or modified paperwork
requirements contained in this Report and Order (which are subject to
approval by the Office of Management and Budget) will go into effect
upon OMB approval.
161. It is further ordered That, upon release of this Fifth Report
and Order, concurrently released with the Sixth Report and Order, this
proceeding is hereby terminated.
162. For additional information concerning this proceeding, contact
Saul Shapiro, Mass Media Bureau, (202) 418-2600; Mania K. Baghdadi,
Mass Media Bureau, Policy and Rules Division, Legal Branch, (202) 418-
2130; Dan Bring, Mass Media Bureau, Policy and Rules Division, Policy
Analysis Branch, (202) 418-2170; or Gordon Godfrey, Mass Media Bureau,
Policy and Rules Division, Engineering Policy Branch, (202) 418-2190.
List of Subjects in 47 CFR Part 73
Television broadcasting.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 73 of title 47 is amended as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for part 73 is revised to read as
follows:
Authority: 47 U.S.C. 154, 303, 334, 336.
2. Sections 73.624 and 73.625 are added to Subpart E to read as
follows:
Sec. 73.624 Digital Television Broadcast Stations.
(a) Digital television (``DTV'') broadcast stations are assigned
channels 6 MHz wide. Initial eligibility for licenses for DTV broadcast
stations is limited to persons that, as of April 3, 1997, are licensed
to operate a full power television broadcast station or hold a permit
to construct such a station (or both).
(b) At any time that a DTV broadcast station permittee or licensee
transmits a video program signal on its analog television channel, it
must also transmit at least one over-the-air video program signal at no
direct charge to viewers on the DTV channel that is licensed with the
analog channel. The DTV program service provided pursuant to this
paragraph must be at least comparable in resolution to the analog
television station programming transmitted to viewers on the analog
channel but, subject to paragraph (f) of this section, DTV broadcast
stations are not required to simulcast the analog programming.
(c) Provided that DTV broadcast stations comply with paragraph (b)
of this section, DTV broadcast stations are permitted to offer
telecommunications services of any nature, consistent with the public
interest, convenience, and necessity, on an ancillary or supplementary
basis. The kinds of services that may be provided include, but are not
limited to computer software distribution, data transmissions,
teletext, interactive materials, aural messages, paging services, audio
signals, subscription video, and any other services that do not
derogate DTV broadcast stations' obligations under paragraph (b) of
this section. Such services may be provided on a broadcast, point-to-
point or point-to-multipoint basis, provided, however, that no video
broadcast signal provided at no direct charge to viewers shall be
considered ancillary or supplementary.
(1) DTV licensees that provide ancillary or supplementary services
that are analogous to other telecommunications services subject to
regulation by the Commission must comply with the Commission
regulations that apply to those services, provided, however, that no
ancillary or supplementary service shall have any rights to carriage
under sections 614 or 615 of the Communications Act of 1934, as
amended, or be deemed a multichannel video programming distributor for
purposes of section 628 of the Communications Act of 1934, as amended.
(2) In all arrangements entered into with outside parties affecting
telecommunications service operation, the DTV licensee or permittee
must retain control over all material transmitted in a broadcast mode
via the station's facilities, with the right to reject any material
that it deems inappropriate or undesirable. The license or permittee is
also responsible for all aspects of technical operation involving such
telecommunications services.
(3) In any application for renewal of a broadcast license for a
television station that provides ancillary or supplementary services, a
licensee shall establish that all of its program services on the analog
and the DTV spectrum are in the public interest. Any violation of the
Commission's rules applicable to ancillary or supplementary services
will reflect on the licensee's qualifications for renewal of its
license.
(d) Digital television broadcast facilities that comply with the
FCC DTV Standard (section 73.682(d)), shall be constructed in the
following markets by the following dates:
(1)(i) May 1, 1999: all network-affiliated television stations in
the top ten television markets;
(ii) November 1, 1999: all network-affiliated television stations
not included in category (1)(i) and in the top 30 television markets;
(iii) May 1, 2002: all remaining commercial television stations;
(iv) May 1, 2003: all noncommercial television stations.
(2) For the purposes of paragraph (d)(1)
(i) the term, ``network,'' is defined to include the ABC, CBS, NBC,
and Fox television networks;
(ii) the term, ``television market,'' is defined as the Designated
Market Area or DMA as defined by Nielsen Media Research as of April 3,
1997; and
(iii) the terms, ``network-affiliated'' or ``network-affiliate,''
are defined to include those television stations affiliated with at
least one of the four networks designated in paragraph (d)(2)(i) as of
April 3, 1997. In those
[[Page 26990]]
DMAs in which a network has more than one network affiliate, paragraphs
(d)(1) (i) and (ii) of this section shall apply to its network
affiliate with the largest audience share for the 9 a.m. to midnight
time period as measured by Nielsen Media Research in its Nielsen
Station Index, Viewers in Profile, as of February, 1997.
(3) Authority delegated. (i) Authority is delegated to the Chief,
Mass Media Bureau to grant an extension of time of up to six months
beyond the relevant construction deadline specified in paragraph (d)(1)
of this section upon demonstration by the DTV licensee or permittee
that failure to meet that 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.
(ii) Such circumstances shall include, but shall not be limited to:
(a) inability to construct and place in operation a facility necessary
for transmitting digital television, such as a tower, because of delays
in obtaining zoning or FAA approvals, or similar constraints; or (b)
the lack of equipment necessary to obtain a digital television signal.
(iii) The Bureau may grant no more than two extension requests upon
delegated authority. Subsequent extension requests shall be referred to
the Commission. The Bureau may not on delegated authority deny an
extension request but must refer recommended denials to the Commission.
(iv) Applications for extension of time shall be filed at least 30
days prior to the relevant construction deadline, absent a showing of
sufficient reasons for filing within less than 30 days of the relevant
construction deadline.
(e) The application for construction permit must be filed on Form
301 (except for noncommercial stations, which must file on Form 340) on
or before the date on which half of the construction period has
elapsed. Thus, for example, for applicants in category (d)(1)(i), the
application for construction period must be filed by May 1, 1998.
(f)(i) Commencing on April 1, 2003, DTV television licensees and
permittees must simulcast 50 percent of the video programming of the
analog channel on the DTV channel.
(ii) Commencing on April 1, 2004, DTV licensees and permittees must
simulcast 75% of the video programming of the analog channel on the DTV
channel.
(iii) Commencing on April 1, 2005, DTV licensees and permittees
must simulcast 100% of the video programming of the analog channel on
the DTV channel.
(iv) The simulcasting requirements imposed in paragraphs (f) (i)-
(iii) of this section will terminate when the analog channel terminates
operation and a 6 MHz channel is returned by the DTV licensee or
permittee to the Commission.
Sec. 73.625 DTV coverage of principal community and antenna system.
(a) Transmitter location.
(1) The DTV transmitter location shall be chosen so that, on the
basis of the effective radiated power and antenna height above average
terrain employed, the following minimum F (50,90) field strength in dB
above one uV/m will be provided over the entire principal community to
be served:
Channels 2-6.....................................................28 dBu
Channels 7-13....................................................36 dBu
Channels 14-69...................................................41 dBu
(2) The location of the antenna must be so chosen that there is not
a major obstruction in the path over the principal community to be
served.
(3) For the purposes of this section, coverage is to be determined
in accordance with paragraph (b) of this section. Under actual
conditions, the true coverage may vary from these estimates because the
terrain over any specific path is expected to be different from the
average terrain on which the field strength charts were based. Further,
the actual extent of service will usually be less than indicated by
these estimates due to interference from other stations. Because of
these factors, the predicted field strength contours give no assurance
of service to any specific percentage of receiver locations within the
distances indicated.
(b) Determining coverage. (1) In predicting the distance to the
field strength contours, the F (50,50) field strength charts (Figures
9, 10 and 10b of Sec. 73.699 of this part) and the F (50,10) field
strength charts (Figures 9a, 10a and 10c of Sec. 73.699 of this part)
shall be used. To use the charts to predict the distance to a given F
(50,90) contour, the following procedure is used: Convert the effective
radiated power in kilowatts for the appropriate azimuth into decibel
value referenced to 1 kW (dBk). Subtract the power value in dBk from
the contour value in dBu. Note that for power less than 1 kW, the
difference value will be greater than the contour value because the
power in dBk is negative. Locate the difference value obtained on the
vertical scale at the left edge of the appropriate F (50,50) chart for
the DTV station's channel. Follow the horizontal line for that value
into the chart to the point of intersection with the vertical line
above the height of the antenna above average terrain for the
appropriate azimuth located on the scale at the bottom of the chart. If
the point of intersection does not fall exactly on a distance curve,
interpolate between the distance curves below and above the
intersection point. The distance values for the curves are located
along the right edge of the chart. Using the appropriate F (50,10)
chart for the DTV station's channel, locate the point where the
distance coincides with the vertical line above the height of the
antenna above average terrain for the appropriate azimuth located on
the scale at the bottom of the chart. Follow a horizontal line from
that point to the left edge of the chart to determine the F (50,10)
difference value. Add the power value in dBk to this difference value
to determine the F (50,10) contour value in dBu. Subtract the F (50,50)
contour value in dBu from this F (50,10) contour value in dBu. Subtract
this difference from the F (50,50) contour value in dBu to determine
the F (50,90) contour value in dBu at the pertinent distance along the
pertinent radial.
(2) The effective radiated power to be used is that radiated at the
vertical angle corresponding to the depression angle between the
transmitting antenna center of radiation and the radio horizon as
determined individually for each azimuthal direction concerned. In
cases where the relative field strength at this depression angle is 90%
or more of the maximum field strength developed in the vertical plane
containing the pertaining radial, the maximum radiation shall be used.
The depression angle is based on the difference in elevation of the
antenna center of radiation above the average terrain and the radio
horizon, assuming a smooth spherical earth with a radius of 8,495.5
kilometers (5,280 miles) and shall be determined by the following
equation:
A = 0.0277 square root of H
Where:
A is the depression angle in degrees.
H is the height in meters of the transmitting antenna radiation
center above average terrain of the 3.2-16.1 kilometers (2-10 miles)
sector of the pertinent radial.
This formula is empirically derived for the limited purpose
specified here. Its use for any other purpose may be inappropriate.
(3) Applicants for new DTV stations or changes in the facilities of
existing DTV stations must submit to the FCC a showing as to the
location of their stations' or proposed stations' contour. This showing
is to include a map showing this contour, except where applicants have
previously submitted
[[Page 26991]]
material to the FCC containing such information and it is found upon
careful examination that the contour locations indicated therein would
not change, on any radial, when the locations are determined under this
section. In the latter cases, a statement by a qualified engineer to
this effect will satisfy this requirement and no contour maps need be
submitted.
(4) The antenna height to be used with these charts is the height
of the radiation center of the antenna above the average terrain along
the radial in question. In determining the average elevation of the
terrain, the elevations between 3.2-16.1 kilometers (2-10 miles) from
the antenna site are employed. Profile graphs shall be drawn for 8
radials beginning at the antenna site and extending 16.1 kilometers (10
miles) therefrom. The radials should be drawn for each 45 degrees of
azimuth starting with True North. At least one radial must include the
principal community to be served even though such community may be more
than 16.1 kilometers (10 miles) from the antenna site. However, in the
event none of the evenly spaced radials include the principal community
to be served and one or more such radials are drawn in addition to the
8 evenly spaced radials, such additional radials shall not be employed
in computing the antenna height above average terrain. Where the 3.2-
16.1 kilometers (2-10 mile) portion of a radial extends in whole or in
part over large bodies of water (such as ocean areas, gulfs, sounds,
bays, large lakes, etc., but not rivers) or extends over foreign
territory but the contour encompasses land area within the United
States beyond the 16.1 kilometers (10 mile) portion of the radial, the
entire 3.2-16.1 kilometers (2-10 mile) portion of the radial shall be
included in the computation of antenna height above average terrain.
However, where the contour does not so encompass United States land
area and (1) the entire 3.2-16.1 kilometers (2-10 mile) portion of the
radial extends over large bodies of water or foreign territory, such
radial shall be completely omitted from the computation of antenna
height above average terrain, and (2) where a part of the 3.2-16.1
kilometers (2-10 mile) portion of a radial extends over large bodies of
water or over foreign territory, only that part of the radial extending
from the 3.2 kilometer (2 mile) sector to the outermost portion of land
area within the United States covered by the radial shall be employed
in the computation of antenna height above average terrain. The profile
graph for each radial should be plotted by contour intervals of from
12.2-30.5 meters (40-100 feet) and, where the data permits, at least 50
points of elevation (generally uniformly spaced) should be used for
each radial. In instances of very rugged terrain where the use of
contour intervals of 30.5 meters (100 feet) would result in several
points in a short distance, 61.0-122.0 meter (200-400 foot) contour
intervals may be used for such distances. On the other hand, where the
terrain is uniform or gently sloping the smallest contour interval
indicated on the topographic map (see paragraph (b)(5) of this section)
should be used, although only relatively few points may be available.
The profile graphs should indicate the topography accurately for each
radial, and the graphs should be plotted with the distance in
kilometers as the abscissa and the elevation in meters above mean sea
level as the ordinate. The profile graphs should indicate the source of
the topographical data employed. The graph should also show the
elevation of the center of the radiating system. The graph may be
plotted either on rectangular coordinate paper or on special paper
which shows the curvature of the earth. It is not necessary to take the
curvature of the earth into consideration in this procedure, as this
factor is taken care of in the charts showing signal strengths. The
average elevation of the 12.9 kilometer (8 miles) distance between 3.2-
16.1 kilometers (2-10 miles) from the antenna site should then be
determined from the profile graph for each radial. This may be obtained
by averaging a large number of equally spaced points, by using a
planimeter, or by obtaining the median elevation (that exceeded for 50%
of the distance) in sectors and averaging those values. In directions
where the terrain is such that negative antenna heights or heights
below 30.5 meters (100 feet) for the 3.2 to 16.1 kilometers (2 to 10
mile) sector are obtained, an assumed height of 30.5 meters (100 feet)
shall be used for the prediction of coverage. However, where the actual
contour distances are critical factors, a supplemental showing of
expected coverage must be included together with a description of the
method employed in predicting such coverage. In special cases, the
Commission may require additional information as to terrain and
coverage.
(5) In the preparation of the profile graph previously described,
and in determining the location and height above sea level of the
antenna site, the elevation or contour intervals shall be taken from
the United States Geological Survey Topographic Quadrangle Maps, United
States Army Corps of Engineers' maps or Tennessee Valley Authority
maps, whichever is the latest, for all areas for which such maps are
available. If such maps are not published for the area in question, the
next best topographic information should be used. Topographic data may
sometimes be obtained from State and Municipal agencies. Data from
Sectional Aeronautical Charts (including bench marks) or railroad depot
elevations and highway elevations from road maps may be used where no
better information is available. In cases where limited topographic
data is available, use may be made of an altimeter in a car driven
along roads extending generally radially from the transmitter site.
United States Geological Survey Topographic Quadrangle Maps may be
obtained from the United States Geological Survey, Department of the
Interior, Washington, D.C. 20240. Sectional Aeronautical Charts are
available from the United States Coast and Geodetic Survey, Department
of Commerce, Washington, D.C. 20235. In lieu of maps, the average
terrain elevation may be computer generated, except in the cases of
dispute, using elevations from a 30 second point or better topographic
data file. The file must be identified and the data processed for
intermediate points along each radial using linear interpolation
techniques. The height above mean sea level of the antenna site must be
obtained manually using appropriate topographic maps.
(c) Antenna system. (1) The antenna system shall be designed so
that the effective radiated power at any angle above the horizontal
shall be as low as the state of the art permits, and in the same
vertical plane may not exceed the effective radiated power in either
the horizontal direction or below the horizontal, whichever is greater.
(2) An antenna designed or altered to produce a noncircular
radiation pattern in the horizontal plane is considered to be a
directional antenna. Antennas purposely installed in such a manner as
to result in the mechanical beam tilting of the major vertical
radiation lobe are included in this category.
(3) Applications proposing the use of directional antenna systems
must be accompanied by the following:
(i) Complete description of the proposed antenna system, including
the manufacturer and model number of the proposed directional antenna.
(ii) Relative field horizontal plane pattern (horizontal
polarization only) of the proposed directional antenna. A value of 1.0
should be used for the maximum radiation. The plot of the pattern
should be oriented so that 0 degrees corresponds to true North.
[[Page 26992]]
Where mechanical beam tilt is intended, the amount of tilt in degrees
of the antenna vertical axis and the orientation of the downward tilt
with respect to true North must be specified, and the horizontal plane
pattern must reflect the use of mechanical beam tilt.
(iii) A tabulation of the relative field pattern required in
paragraph (c)(3)(ii) of this section. The tabulation should use the
same zero degree reference as the plotted pattern, and be tabulated at
least every 10 degrees. In addition, tabulated values of all maxima and
minima, with their corresponding azimuths, should be submitted.
(iv) Horizontal and vertical plane radiation patterns showing the
effective radiated power, in dBk, for each direction. Sufficient
vertical plane patterns must be included to indicate clearly the
radiation characteristics of the antenna above and below the horizontal
plane. In cases where the angles at which the maximum vertical
radiation varies with azimuth, a separate vertical radiation pattern
must be provided for each pertinent radial direction.
(v) All horizontal plane patterns must be plotted to the largest
scale possible on unglazed letter-size polar coordinate paper (main
engraving approximately 18 cm x 25 cm (7 inches x 10 inches)) using
only scale divisions and subdivisions of 1, 2, 2.5. or 5 times 10-nth.
All vertical plane patterns must be plotted on unglazed letter-size
rectangular coordinate paper. Values of field strength on any pattern
less than 10 percent of the maximum field strength plotted on that
pattern must be shown on an enlarged scale.
(vi) The horizontal and vertical plane patterns that are required
are the patterns for the complete directional antenna system. In the
case of a composite antenna composed of two or more individual
antennas, this means that the patterns for the composite antenna, not
the patterns for each of the individual antennas, must be submitted.
(4) Where simultaneous use of antennas or antenna structures is
proposed, the following provisions shall apply:
(i) In cases where it is proposed to use a tower of an AM broadcast
station as a supporting structure for a DTV broadcast antenna, an
appropriate application for changes in the radiating system of the AM
broadcast station must be filed by the licensee thereof. A formal
application (FCC Form 301, or FCC Form 340 for a noncommercial
educational station) will be required if the proposal involves
substantial change in the physical height or radiation characteristics
of the AM broadcast antennas; otherwise an informal application will be
acceptable. (In case of doubt, an informal application (letter)
together with complete engineering data should be submitted.) An
application may be required for other classes of stations when the
tower is to be used in connection with a DTV station.
(ii) When the proposed DTV antenna is to be mounted on a tower in
the vicinity of an AM station directional antenna system and it appears
that the operation of the directional antenna system may be affected,
an engineering study must be filed with the DTV application concerning
the effect of the DTV antenna on the AM directional radiation pattern.
Field measurements of the AM stations may be required prior to and
following construction of the DTV station antenna, and readjustments
made as necessary.
[FR Doc. 97-12527 Filed 5-15-97; 8:45 am]
BILLING CODE 6712-01-P
