06-511. Public Television Station Digital Transition Grant Program

AGENCY:

Rural Utilities Service, Agriculture.

ACTION:

Interim final rule with request for comments.

SUMMARY:

The Rural Utilities Service (the Agency) is issuing a new rule to allow the Agency to make grants to enable Public Television Stations in rural areas to replace current analog television broadcasting equipment with digital television broadcasting equipment as part of the national transition to digital television service.

DATES:

This rule is effective January 20, 2006. Written comments must be received by the Agency or bear a postmark of equivalent not later than March 21, 2006.

ADDRESSES:

Submit your comments by any of the following methods:

• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instruction for submitting comments.
• Agency Web site: http://www. usda.gov/rus/index2.Comments.htm. Follow the instructions for submitting comments.
• E-mail: [e-mail]. Include in the subject line of the message “7 CFR 1740.”
• Mail: Addressed to Richard C. Annan, Director, Program Development and Regulatory Analysis, Rural Utilities Service, United States Department of Agriculture, 1400 Independence Avenue, STOP 1522, Washington, DC 20250-1522.
• Hand Delivery/Courier: Addressed to Richard C. Annan, Director, Program Development and Regulatory Analysis, Rural Utilities Service, United States Department of Agriculture, 1400 Independence Avenue, SW., Room 5168-S, Washington, DC 20250-1522.

Instructions: RUS requests a signed original and three copies of all written comments (7 CFR 1700.4). Comments may also be submitted by e-mail at [e-mail] and must contain the phrase “Public Television Station Digital Transition Grant Program” in the subject line. All comments received must identify the name of the individual (and the name of the entity, if applicable) who is submitting the comment. All comments received will be posted without changes to http://www.usda.gov.rus.index2.Comments.htm, including any personal information provided. All comments will also be available for public inspection during regular business hours (7 CFR 1.27(b)).

FOR FURTHER INFORMATION, CONTACT:

Orren E. Cameron III, Director, Advanced Services Division, Rural Utilities Service, Room 2845-S, 1400 Independence Avenue SW., STOP 1550, Washington, DC, 20250-1550. Telephone: [phone]. FAX: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Agency Response to Comments

RUS intends to address public comments received regarding this interim final rule at a later date in a Confirmation of an Interim Final Rule as a Final Rule which will be published in the Federal Register.

Executive Order 12866

This interim final rule has been determined to be not significant for purposes of Executive Order 12866, and therefore has not been reviewed by the Office of Management and Budget (OMB).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance (CFDA) Program number assigned to the Public Television Station Digital Transition Grant Program is 10.861. The Catalog is available on a subscription basis from the Superintendent of Documents, the United States Government Printing Office, Washington, DC 20402-9325, telephone number [phone].

Executive Order 12372

This program is not subject to the requirements of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 7 CFR part 3015.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this interim final rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted, no retroactive effect will be given to this rule, and, in accordance with Section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

Executive Order 13132 Federalism

The policies contained in this interim final rule do not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with states is not required.

Regulatory Flexibility Certification

Pursuant to 5 U.S.C. 553(a)(2), this interim final rule related to grants is exempt from the rulemaking requirements of the Administrative Procedure Act (5 U.S.C. 551 et seq.), including the requirement to provide prior notice and an opportunity for public comment. Because this interim final rule is not subject to a requirement to provide prior notice and an opportunity for public comment pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable.

Unfunded Mandates

This interim final rule contains no Federal mandates (under the regulatory provision of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Therefore, this interim final rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

Environmental Impact Statement

This interim final rule has been examined under RUS environmental regulations at 7 CFR part 1794. The RUS Administrator has determined that this action is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an Environmental Impact Statement or Assessment is not required.

Information Collection and Recordkeeping Requirements

This interim rule contains no new reporting or recordkeeping burdens under OMB control number 0572-0134 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Background

As part of the nation's transition to digital television, the Federal Communications Commission (FCC) required all television broadcasters to begin broadcasting using digital signals, and to cease broadcasting in analog by December 31, 2006. Recognizing the need to support the digital transition of public television stations serving rural areas, Congress appropriated $15 million in grant funds through the Distance Learning and Telemedicine Grant Program. See Consolidated Appropriations Resolution, 2003, Pub. L. 108-7. On July 18, 2003, RUS published a Notice of Funds Availability (NOFA) in the Federal Register (68 FR 42680) to announce the new grant program to finance the conversion of television service from analog to digital broadcasting for public television station serving rural areas. For Fiscal Year (FY) 2003, $15 million in grants were made available through a national competition to enable public television stations which serve substantial rural populations to continue serving their coverage areas. On February 20, 2004, RUS announced the selection of 16 rural public television stations in 13 states which were to receive all $15 million in grant funds to convert to digital broadcasting. For FY 2004, Congress appropriated an additional $14 million in grant funds for this purpose. See Consolidated Appropriations Act, 2004, Pub. L. 108-199. On March 11, 2004, the RUS published a Notice in the Federal Register (69 FR 11593) stating that the money would be used for unfunded applications received under the prior NOFA, and on April 20, 2004, an additional 18 grants were awarded to recipients in 16 states.

As of August 2005, 40 of the nation's 355 public television transmitters have not launched DTV service. In addition, the vast majority of DTV stations serving rural areas have not yet been able to build out their full digital facilities that would allow them to replicate their analog services in the digital environment. It is important for these stations to be able cover their former analog service areas, and to tailor their programs and services (e.g., education services, public health, homeland security, and local culture) to their rural constituents, and this may require transmitter/translator upgrades and other broadcast and video. If stations cannot continue to meet their analog standards of robust service, some Public Television programming will be lost, and many school systems may be left without the educational programming they count on for curriculum compliance. With the FCC deadline of December 31, 2006, for the end of the digital transition approaching, it is vital that rural stations continue their services to rural America.

Congress has authorized additional purposes which were specifically excluded in the 2003 NOFA. This regulation incorporates those new statutory requirements and updates this competitive grant program for FY 2006 under regulation rather than by NOFA.

The broadcast of digital signals requires the installation of special antennae, transmitters and/or translators, and new digital program management facilities, consisting of processing and storage systems. If public television stations are to perform program origination functions, as most do, digital cameras, editing, and mastering equipment are also required. Moreover, studio-to-tower site communications links may be required to transport the digital broadcast signal to each transmitter and translator. Broadcasting in high definition, multicasting, and datacasting are inherent to digital television, and require additional facilities at the transmitter and studio level. Lastly, in order to comply with the FCC transition deadlines, some rural public television stations initially began digital broadcasting using low-cost, low-power transmitters. However, these transmitters did not replicate the station's analog coverage area (an FCC objective of the transition), and power upgrades are needed to cover the shortfall, which is often in the most rural of rural areas.

In designing a national competition for the distribution of these grant funds, priority has been given to public television stations serving those areas that would most likely be unable to transition without a grant. Because funding for stations generally comes from public and business contributions, rural public television stations unquestionably receive fewer contributions due to smaller populations and fewer businesses. Therefore, rurality becomes a prime indicator of the need for grant funding. In addition, some rural areas have income levels much lower than the national average, and public television stations covering these areas in particular are likely to have difficulty funding the digital transition. As a result, the consideration of the income of a public television station's coverage area is a secondary indicator of the need for grant funding. Lastly, some public television stations may have, or may meet, critical needs in their communities, and a third scoring factor for critical need has been added. This scoring category will also recognize that some transition purchases are more essential than others, so that applications for first transmitter capability and transmitter power upgrades that extend coverage into rural-only areas will both receive scoring advantages. Master control facilities which tailor programming to local needs will also be recognized in this category.

List of Subjects in 7 CFR 1740

• Grant programs—Digital television; Communications; Rural areas; Television

For reasons set forth in the preamble, RUS amends Chapter XVII of title 7 of the Code of Regulations by adding part 1740 as follows:

PART 1740—PUBLIC TELEVISION STATION DIGITAL TRANSITION GRANT PROGRAM

Subpart A— Public Television Station Digital Transition Grant Program

1740.1

Purpose.

1740.2

Definitions.

1740.3

Applicant eligibility.

1740.4

Maximum amounts of grants.

1740.5

Matching funds.

1740.6

Eligible purposes of grants.

1740.7

Ineligible purposes.

1740.8

Scoring criteria for the grant competition.

1740.9

Grant application.

1740.10

Grant documents.

1740.11

Request for funds.

Subpart B—[Reserved]

Authority: Consolidated Appropriations Act, 2005; Title III: Rural Development Programs; Rural Utilities Service; Distance Learning, Telemedicine, and Broadband Program; Public Law 108-447.

Subpart A—Public Television Station Digital Transition Grant Program

§ 1740.1

Purpose.

The purpose of the Rural Utilities Service (RUS) Public Television Station Digital Transition Grant Program (Grant Program) is to enable public television stations serving rural areas to transition from broadcasting in analog to digital, as required under the Federal Communications Commission rules, by awarding grants through a competitive process.

§ 1740.2

Definitions.

Core coverage area is the set of counties fully covered, or at least 75% covered, by a digital television transmitter or translator.

Coverage contour area is the area estimated to receive a digital television signal from a transmitter or translator of 41 dBμ for UHF signals, 36 dBμ for channel 7-13 signals, or 28 dBμ for channel 2-6 signals, as shown on the public television station's map filed with the FCC.

Digital television, or DTV, means the digital television system which will replace the current analog system.

Digital transition means the transition from analog television broadcasting to digital television broadcasting. To transition according to FCC rules, a broadcaster must initiate digital television broadcasting while continuing to operate analog television broadcasting until December 31, 2006, to enable viewers the necessary time to acquire digital television reception capability.

Distance learning means any digital public television broadcast to a school, library, home, or other end-user site located in a rural area, for the purpose of providing educational and cultural programming.

Grant Program means this Public Television Station Digital Transition Grant Program.

High definition television, or HDTV, means an enhanced television service which is authorized by the FCC as part of the digital television standard.

Public television station means a noncommercial educational television broadcast station that serves rural areas and is qualified for Community Service Grants by the Corporation for Public Broadcasting under section 396(k) of the Communications Act of 1934.

Rural area means any area of the United States not included within the boundaries of any incorporated or unincorporated city, village, or borough having a population in excess of 20,000 inhabitants.

Rural population means the number of people within the core coverage area of a transmitter who do not live within the boundaries of an incorporated or unincorporated city, village, or borough having a population in excess of 20,000 inhabitants as calculated pursuant to Section 1740.8(c)(1).

Rural Utilities Service, or RUS, is a Rural Development agency of the United States Department of Agriculture, which will administer this Grant Program.

Urban area means any area of the United States which is not a Rural area.

§ 1740.3

Applicant eligibility.

Eligibility for grants is limited to public television stations that serve rural areas, regardless of whether urban areas are additionally served.

§ 1740.4

Maximum amounts of grants.

The maximum grant amount shall be announced in each fiscal year's Notice of Funds Availability.

§ 1740.5

Matching funds.

No matching funds are required in this program.

§ 1740.6

Eligible purposes of grants.

Grants shall be made to enable applicants to perform digital transitions of television broadcasting serving rural areas, regardless of the location of their main transmitter. Grant funds may be used to acquire, lease, and/or install facilities and software necessary to the digital transition. Specific purposes include:

(a) Digital transmitters, translators, and repeaters, including all facilities required to initiate DTV broadcasting. All broadcast facilities acquired with grant funds shall be capable of delivering DTV programming and HDTV programming, at both the interim and final channel and power authorizations. There is no limit to the number of transmitters or translators that may be included in an application;

(b) Power upgrades of existing DTV transmitter equipment;

(c) Studio-to-transmitter links;

(d) Equipment to allow local control over digital content and programming, including master control equipment;

(e) Digital program production equipment, including cameras, editing, mixing and storage equipment;

(f) Multicasting and datacasting equipment;

(g) Cost of the lease of facilities, if any, for up to three years; and

(h) Associated engineering and environmental studies necessary to implementation.

§ 1740.7

Ineligible purposes.

(a) Grant funds shall not be used to fund ongoing operations or for facilities that will not be owned by the applicant, except for leased facilities as provided in § 1740.6.

(b) Costs of salaries, wages, and employee benefits of public television station personnel are not eligible for funding under this program unless they are for construction or installation of eligible facilities.

(c) Facilities for which other grant funding from any source has been approved are not eligible for funding under this program.

(d) Expenditures made prior to this deadline are not eligible for funding. To be an eligible grant purpose, an expenditure must be made after the application deadline specified in the Notice of Funds Available.

§ 1740.8

Scoring criteria for the grant competition.

(a) After an application is found to be eligible, it will be scored in three categories: the rurality of the applicant's core coverage area, the average National School Lunch Program eligibility ratio in the applicant's core coverage area, and the critical need for the project.

(b)(1)(i) Scoring in this program is based on a simplified representation of the project's digital coverage area. To find a transmitter's simplified coverage area, go to the FCC TV Query Web site (http://www.fcc.gov/​fcc-bin/​audio/​tvq.html) and access the station Service Contour Map. This map shows coverage at the appropriate field strength in dBμ, overlaid on a Census Tiger Map. The map also shows counties covered. The core coverage area is the set of counties that are either entirely within the appropriate coverage contour, or are at least seventy-five percent (75%) within the contour. For contours where counties are very large with respect to coverage, as might be the case for some western states and for most translators, there may be only one county within the coverage contour. In such cases, this county is the station's core coverage area. Every transmitter and translator must have a core coverage area consisting of one or more counties.

(ii) In the case of translators, where a coverage contour area does not exist, the applicant shall define a coverage contour area and explain how coverage was estimated. This estimated coverage contour area is subject to acceptance by RUS.

(2) When an application covers more than one transmitter or translator, the core coverage area of the application is the sum of the core coverage areas of all transmitters and translators included in the application.

(c) Rurality is a measure of the degree to which a project benefits rural areas. Up to fifty (50) points are available in this category. Urban areas bisected by the computed contour line are disregarded, since they represent fringe viewers. The Rurality score is computed as follows:

(1) The rural population of a core coverage area must be calculated. The rural population of a county is calculated by subtracting the county's urban population(s) from the total county population. If the core coverage area consists of multiple counties, the rural population is the sum of all included counties' rural populations. Urban area and county populations may be found at the American Factfinder Web site http://factfinder.census.gov/​home/​saff/​main.html?​_​lang=​en).

(2) The Rurality score is computed by multiplying the rural population for the core coverage area by one hundred (100), and subtracting fifty (50) from it. If this calculation results in a negative number, the Rurality score is zero. The formula is:

100 × [(total population − urban population)/total population] − 50

(3) If an applicant has no urban communities within the core coverage area, the computation would deliver a score of 50.

(d) Economic Need will be measured by the ability of the public in an area to support Public Television financially. Up to 25 points are available in this category.

(1) The score for Economic Need is computed from the average of the National School Lunch Program (NSLP) eligibility percentages for all school districts within the core coverage area. NSLP eligibility percentage information may be obtained from the state or local agency that administers the program, and the application must include a certification from this organization that the percentages provided are correct. Please note that the score for Economic Need is computed from the eligibility percentage, not the participation percentage. The score is computed by multiplying the average eligibility percentage by 100 (to convert percentage to a whole number), subtracting 25, dividing the quotient by two, and limiting the result to 25 points. A negative result yields a score of zero.

[(average NSLP eligibility percentage × 100) − 25] ÷ 2, not to exceed 25 points

(2) [Reserved]

(e) Critical Need will be measured by the urgency and importance of the project to the rural community the applicant serves. Up to 25 points are available in this category. Critical Need evaluates factors not captured in the Rurality and Economic Need scoring categories, such as:

(1) Geographic or coverage characteristics of the public television station's digital television coverage area that make the digital transition unusually expensive;

(2) A severe lack of specialized human resources (such as teachers) for which digital educational television will compensate;

(3) Geographic isolation of communities which will be overcome with public television station services;

(4) Non-traditional community needs (such as adult vocational retraining) that may be met only with digital public television station broadcast capabilities;

(5) Historical events that have placed the public television station in severe financial stress; and

(6) The degree to which the project purposes will specifically benefit the rural public.

§ 1740.9

Grant application.

The grant application must include the following:

(a) An application for federal assistance, Standard Form 424.

(b) An executive summary, not to exceed two pages, describing the public television station, its service area and offerings, its current digital transition status, and the proposed project.

(c) Evidence of the applicant's eligibility to apply under this Notice, proving that the applicant is a Public Television Station as defined in this Part, and that it is required by the FCC to perform the digital transition.

(d) A spreadsheet showing the total project cost, with a breakdown of items sufficient to enable RUS to determine individual item eligibility.

(e) A coverage contour map showing the digital television coverage area of the applicant. This map must show the counties (or county) comprising the core coverage area by shading and by name. Partial counties included in the applicant's core coverage area must be identified as partial and must contain an attachment with the applicant's estimate of the percentage that its coverage contour comprises the total area of the county (total area is available from American Factfinder, referenced in § 1740.8 (c)(1)). If the application is for a translator, the coverage area may be estimated by the applicant through computer modeling or some other reasonable method, and this estimate is subject to acceptance by RUS.

(f) The applicant's own calculation of its Rurality score, supported by a worksheet showing the population of its core coverage area, and the urban and rural populations within the core coverage area. The data source for the urban and rural components of that population must be identified. If the application includes computations made by a consultant or other organization outside the public television station, the application shall state the details of that collaboration.

(g) The applicant's own calculation of its Economic Need score, supported by a worksheet showing the National School Lunch Program eligibility levels for all school districts within the core coverage area and averaging these eligibility percentages. The application must include a statement from the state or local organization that administers the NSLP program certifying the school district scores used in the computations.

(h) If applicable, a presentation not to exceed five pages demonstrating the Critical Need for the project.

(i) Evidence that the FCC has authorized the initiation of digital broadcasting at the project sites. In the event that an FCC construction permit has not been issued for one or more sites, the RUS may include those sites in the grant, and make advance of funds for that site conditional upon the submission of a construction permit.

(j) Compliance with other Federal statutes. The applicant must provide evidence or certification that it is in compliance with all applicable Federal statutes and regulations, including, but not limited to the following:

(1) Executive Order (E.O.) 11246, Equal Employment Opportunity, as amended by E.O. 11375 and as supplemented by regulations contained in 41 CFR part 60;

(2) Architectural barriers;

(3) Flood hazard area precautions;

(4) Assistance and Real Property Acquisition Policies Act of 1970;

(5) Drug-Free Workplace Act of 1998 (41 U.S.C. 701);

(6) E.O.s 12549 and 12689, Debarment and Suspension; and

(7) Byrd Anti-Lobbying Amendment (31 U.S.C. 1352).

(k) Environmental impact and historic preservation. The applicant must provide details of the digital transition's impact on the environment and historic preservation, and comply with 7 CFR part 1794, which contains RUS' policies and procedures for implementing a variety of Federal statutes, regulations, and executive orders generally pertaining to the protection of the quality of the human environment. This must be contained in a separate section entitled “Environmental Impact of the Digital Transition,” and must include the Environmental Questionnaire/Certification, available from RUS, describing the impact of its digital transition. Submission of the Environmental Questionnaire/Certification alone does not constitute compliance with 7 CFR part 1794.

§ 1740.10

Grant documents.

The terms and conditions of each grant shall be set forth in standard grant documents prepared by RUS. These documents shall require that the applicant own or lease all facilities financed by the grant. In addition, however, RUS may prescribe special conditions to the advance of funds, such as those concerning FCC licensing.

§ 1740.11

Requests for funds.

(a) Once grant documents have been executed, funds may be requested for eligible purposes up to the amounts in the grant. Funds may either be requested in anticipation of known obligations, or may be requested to reimburse disbursements made by the grantee.

(b) Requests for funds shall be submitted on Standard Form 270 (Request for Advancement or Reimbursement).

(c) All requests for funds shall be supported by invoices or receipts.

Dated: January 12, 2006.

James M. Andrew,

Administrator, Rural Utilities Service.