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FCC Sets Requirements for July 1 "Use-It-Or-Lose-It" Deadline

The FCC issued broadcaster compliance requirements for meeting the July 1, 2006 "use-it-or-lose-it" deadline, in a June 14 Public Notice (DA 06-1255).

The latest deadline is specific to all commercial and noncommercial stations not affected by the previous deadline. (A July 1, 2005 deadline covered only stations in the top one hundred markets and affiliated with the top four networks: ABC, CBS, Fox and NBC.)

DTV licensees not covered by the 2005 "use-it-or-lose-it" deadline are required to construct full facilities if their current DTV channel matches their tentative DTV channel assignment. If the channels aren't the same, the DTV channel must provide service to at least 80 percent of the viewers served by the broadcaster's 1997 facility (the basis for replication coverage). Stations not in compliance are in danger of losing interference protection.

Here is a summary of the requirements for maintaining interference protection for stations affected by the July 1, 2006 deadline. (Again, these are the stations not affiliated with the top four networks, and all stations located outside the top 100 markets, regardless of affiliation.):

If a station received a tentative channel designation on its current DTV channel, it must have built out and filed a license application for the facilities it certified on FCC Form 381, if it has a CP for this facility. If the facilities certified on Form 381 are different than those authorized in its current license or CP, the station licensee must file an application for minor change to its licensed facility or for modification of its CP by July 1, 2006. If the licensee doesn't receive approval for the modification prior to the deadline, or if it has received approval, but has not filed an application for license to cover the CP by the deadline, it should file a request for a waiver of the interference protection deadline.

There is one major exception. If the station was granted a CP with a deadline later than July 1, 2006, then the licensee must meet the replication/maximization interference protection deadline by the expiration date specified in the CP, rather than the July 1, 2006 deadline. If the station cannot complete construction by the CP expiration date, it must file for an extension of the CP no later than the CP expiration date. This will automatically begin tolling the construction deadline and the replication/maximization interference protection deadline, pending consideration of the application and a grant of the extension application. This will extend the "use-it-or-lose-it" deadline for the station until the CP expiration date.

If a station does not have a tentative channel designation on its current DTV channel, then it can retain interference protection on its new DTV channel by serving at least 80 percent of the number of viewers served by the 1997 facility on which their replication coverage was based. In this case, the station is likely to be operating under DTV special temporary authority.

A station operating under DTV STA on a channel other than its tentative designated channel in compliance with paragraph 78 of the Second DTV Periodic Review Report and Order (the "use-it-or-lose-it" requirements), that does not intend to build out to its certified facilities on its current DTV channel prior to the end of the transition, should file an application to modify its CP to match the STA facilities. Following FCC approval, it should then file an application for license to cover the CP by July 1, 2006. If the station intends to increase the facilities on its current DTV channel in accordance with its existing CP prior to the end of the transition, it should apply for an extension of its CP and a renewal of its STA by July 1, 2006 in order to retain the right to construct these larger facilities on its current DTV channel. The Public Notice did not describe procedures for stations desiring an intermediate amount of coverage increase.

A station operating under a DTV STA that does not meet the "use-it-or-lose-it" requirements and wants to retain interference protection must request a waiver. The FCC said a licensee requesting a waiver of the July 1, 2006 deadline must "demonstrate severe financial constraints or circumstances beyond its control" and file the request with the Commission no later than July 3, 2006. Waivers will be granted on a six-month basis if good cause is shown and the interference protection deadline will toll automatically pending consideration of the request.

Satellite stations are exempt from this year's July 1 deadline, and no waiver request is required to retain DTV interference protection.

The above summary does not cover all situations affecting stations subject to the July 1, 2006 deadline. Licensees with any questions about filing requirements should consult FCC Public Notice DA 06-1255 and discuss this with an FCC attorney.