On Oct. 10 the FCC released a Third Notice of Proposed Rulemaking (FCC 14-151) (“TNPRM”) that would postpone the Sept. 1, 2015 deadline for LPTV and TV translator stations to transition to digital, extend channel sharing to LPTV and TV translators, create a new “Digital-to-Digital Replacement Translator Service”, and provide assistance to LPTV and TV translator stations to find displacement channels after the incentive auction. The TNPRM requested comment on operation of analog radio services by digital LPTV stations as ancillary or supplementary services. Since all full power stations had to switch off analog TV transmissions in 2009, leaving LPTV, TV translator and Class A TV stations as the only ones able to transmit analog TV, the FCC included elimination of the analog tuner requirement from Part 15 of the FCC rules in the TNPRM.
The TNPRM notes, “The Commission established the September 2015 deadline in 2011, reasoning that a deadline in four years would allow time for LPTV and TV translator operators to learn more about the future reallocation of broadcast TV spectrum and 'even if the reallocation is not concluded before the conversion deadline, a 2015 deadline will permit low power operators to take specific proposals into account when finalizing their transition plans.'” In 2013, the FCC decided not to extend the deadline, anticipating that the auction and repacking process would occur in 2014, before the deadline.
Now, the TNPRM says, “at this time it appears that the current LPTV and TV translator digital transition deadline may occur in close conjunction with the incentive auction, leaving LPTV and TV translator stations little or no time to consider its impact before having to complete their digital conversion.” Because the 795 LPTV and 779 TV translator stations have not yet completed their conversion to DTV and there is less than a year before the digital transition deadline, the FCC “tentatively conclude that we should postpone the transition deadline in order to avoid requiring stations to incur the costs of digital transition before completion of the auction and repacking process, which is likely to impact a significant number of LPTV and TV translator stations.” The TNPRM requests comment on why these stations have not transitioned to digital and how to set an appropriate transition date.
The same day as the TNPRM was released, the FCC issued a Public Notice (FCC 14-150) suspending expiration dates and construction deadlines for new digital LPTV and TV translator stations pending final action on the TNPRM.
It seems clear that there won't be enough spectrum available after repacking to accommodate LPTV and TV translator stations. One of the methods the FCC is proposing in the TNPRM to mitigate the loss of service from these stations is to set rules that would allow multiple LPTV or TV translator stations to share the same channel. The TNPRM contains the proposed rules, which are similar to the rules established for channel sharing among full power TV stations, except that there would be no deadline for LPTV and TV translator stations to implement their sharing agreement. FCC seeks comment on the feasibility of allowing channel sharing between primary (full power and Class A) and secondary (LPTV and TV translator) services, each of which operate with different power levels and interference protection rights. The TNPRM proposes that if a full power or Class A TV station shares an LPTV or TV translator station's channel, the full power or Class A station would be subject to the power level and interference protection rules associated with the channel of the LPTV or TV translator station.
During the DTV transition, the FCC allowed full power stations that lost coverage as a result of converting to digital to apply for digital replacement translators (DRT) to provide service to restore this coverage. The FCC has put a freeze on new DRT applications and asks for comment on “whether to discontinue the licensing of new analog-to-digital replacement translators given that the DTV transition was completed five years ago and stations have had ample opportunity to identify the need for such a translator to serve lost analog service areas.” The TNPRM states, “We tentatively conclude that allowing the licensing of new analog-to-digital replacement translators is no longer necessary and propose to no longer accept applications for such facilities.” “Given the length of time that has passed since the digital transition deadline, we do not believe any future applications will be necessary for stations to replace an analog loss area that occurred as a result of the digital transition.”
The TNPRM proposes a new “Digital-to-Digital Replacement Translator” (D2DRT) service that would be limited to repacked stations that can demonstrate that a portion of their pre-auction service area will not be served by the facilities on their new channel and that the proposed digital-to-digital replacement translator will be used solely to fill in such loss areas. These D2DRTs would be given equal processing priority with displacement applications for existing DRTs replaced as a result of the incentive auction.
The TNPRM notes that “the availability of the repacking and optimization software may provide a unique opportunity for the Commission to assist with the challenges displaced LPTV and TV translator stations face in finding new channel homes.” The software would be used to generate a list of potential channel assignments for displaced LPTV and TV translator stations. When there aren't enough channels available to match the displaced stations current operating parameters, the TNPRM suggests, “the Media Bureau could use the software to identify possible arrangements based on other objectives, such as maximizing the number of stations assigned or minimizing the interference that stations might experience, to assist stations in examining engineering solutions to find channels.“ Any station's decision to use the recommended channel assignments would be voluntary. The TNPRM adds, “Although stations would be permitted to apply for channels of their choice, we believe that issuing a list of possible channel assignments would significantly reduce the possibility of mutually exclusive applications being filed in the displacement window and greatly facilitate the post-incentive auction displacement and band clearing processes.”
One item in the TNPRM that is likely to be controversial is whether the FCC should allow LPTV stations on digital television channel (82-88 MHz) to operate FM radio-type services on an ancillary or supplementary basis. The TNPRM explains: “some analog LPTV stations licensed on channel 6 are operating with very limited visual programming and an audio signal that is programmed like a radio station. FM radio listeners are able to receive the audio portion of these LPTV stations at 87.76 MHz, which is adjacent to noncommercial educational (NCE) FM channel 201 (88.1 MHz). When these LPTV stations convert to digital, however, they are unable to continue providing such radio service because the digital audio portion of their signal can no longer be received by standard FM receivers.”
The TNPRM states that LPTV stations have been proposing engineering solutions to allow their continued FM radio-type operation following their conversion to digital by transmitting an analog audio signal on 87.76 MHz in addition to the digital video/audio stream. This would be considered an “ancillary or supplementary” service offering under section 74.790(i) of the rules that allows, “a digital LPTV station may offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis in accordance with the provisions of Section 73.624(c).” That section allows a variety of services, including audio signals, provided they do not derogate DTV broadcast stations' obligations under paragraph (b) of this section.”
The FCC raises several issues, including interference to NCE FM radio stations and interference to the station's DTV coverage, that is seeks comment on. A critical item for “Franken” FM operators is what service rules the FCC would apply to such operations. It seeks comment on whether such operations should be subject to Part 73 rules applicable to FM radio stations and cites Section 336(b)(3) of the Communications Act to support such a conclusion. These rules could be interpreted as requiring that the channel be allotted through rulemaking, that stations maintain a main studio and public inspection file, and that operations in border areas be coordinated with Canada and Mexico. The TNPRM also seeks comments on whether this could be considered a “ancillary and supplementary” service subject to the five-percent annual tax on gross revenues.
While the TNPRM focuses on rules related to LPTV and TV translator stations, one part of it would change Section 15.117(b) to eliminate any obligation to integrate analog tuners in TV receivers. The proposed change would allow TV broadcast receiver manufacturers and importers to ship and import devices without analog tuners before all LPTV and TV translator stations cease analog broadcasting, but would continue to require that they be able to receive all digital broadcast TV channels.
The TNPRM asks: “Should we eliminate the analog tuner requirement before all broadcast TV stations cease broadcasting in analog? What are the costs to manufacturers of continuing to build analog tuners into their devices in comparison with the benefits to consumers? In other words, to what extent does the analog tuner requirement continue to serve the public interest given that all full power stations are digital and the vast majority of LPTV and TV translator stations are currently digital?” The discussion in the TNPRM explains that the Media Bureau has already waived the analog tuner requirement for some devices but conditioned the waivers on the recipients' voluntary commitments to educate consumers and retailers about the lack of analog tuner capabilities to prevent consumer confusion. It seeks comment on whether similar education requirements should be imposed on manufacturers who market digital-only equipment prior to the LPTV and TV translator digital transition deadline and whether the FCC has statutory authority to adopt consumer protection nor education measures.
The deadline for comments on the TNPRM will be 30 days after the date of publication in the Federal Register. Reply comments will be due 45 days after the date of publication in Federal Register.
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