368 Stations Can Pull Analog on Feb. 17
FCC prevents 123 stations from going digital early unless further guidelines are met
By John Eggerton -- Broadcasting & Cable, 2/12/2009 9:44:07 AM
The FCC has said that 368 TV stations will be allowed to pull the plug on analog Feb. 17 (out of 491 that asked to do so).
Of those 368, 100 said they planned to keep running their analog transmitters for at least two weeks past Feb. 17 for DTV and emergency information.
The FCC also said those other 123 stations won't be able to unless certain conditions are met, including that someone in the market remains on in analog for 60 days past Feb. 17 with local news, public affairs, DTV and emergency information, or what the FCC is calling enhanced nightlight service. That means that either the stations have to remain on in analog until mid-April, or find someone else in the market to do so, and one with a local news operation.
That enhanced nightlight programming can include advertising, which makes it different from the analog nightlight service approved for several weeks after the hard date, which is now June 12.
Those 123 stations must either individually or with others in the market, air an accelerated schedule of PSA's and crawls, must commit to providing toll-free phone assistance, including engineering support. They must also provide consumer "walk-in" centers to help consumers apply for DTV converter box coupons.
But those 123 stations will also have an opportunity, even if they don't do those things, to make a hardship case for going Feb. 17. It should not exceed five pages, says the commission, which will try to decide by Feb. 17. In any event, the stations cannot pull the plug until they hear from the FCC, which also reserved the right to "take appropriate action" against stations that say they will meet the conditions, then don't, but pull the plug Feb. 17 anyway.
Stations on that list of 123 have until 6 p.m. on Friday the 13th to comply with the conditions.
The 123 stations were in what the FCC identified as at-risk markets, a determination that network affiliates should start using in their marketing materials.
Those were markets where all of the network affiliates wanted to pull the plug early. "We considered the presence of major networks and their affiliates critical to ensuring that viewers have access to local news and public affairs available over the air because the major network affiliates are the primary source of local broadcast news and public affairs programming," said the FCC public notice. "Therefore, even if independent or non-commercial stations remain on the air in these markets, we still considered these areas at risk."
So, what was once a hard date has become a staggered date, with Wilmington, NC, pulling the plug in September, Hawaii in January, various stations at different times in between for different reasons, 368 stations cleared to go Feb. 17, 123 stations that may be able to pull the plug on or around April 18, others that may be allowed to go at other times before June 12, and numerous stations pledged to stay on until that date.
The FCC gave a shout-out to the two-thirds of all stations in the country-over 1,000 in total-that will stick around in analog past Feb. 17.
"We also commend the two-thirds of stations that will remain on the air, providing analog service beyond February 17, 2009, the commission said. "We appreciate that many of these stations are committed to continuing to provide analog service to their viewers until the new DTV transition deadline of June 12, 2009. We also recognize that there are some stations that are planning to terminate analog service before June 12, 2009. We are evaluating whether a revised process for these stations would be warranted." If so, that could add yet another date. An aide to acting FCC Chairman Michael Copps said Wednesday that one option for those stations would be to set an intermediary date, in part to help the call centers to gear up.
The FCC had been burning the midnight oil since last week's signing of the bill to move the hard date to June 12 as it attempted to make some regulatory sense of the unavoidable dislocation and confusion caused by the date change.
The date move was pushed by the Obama administration, signed into law Wednesday, and signed off on by the major networks, in part because of the political downside of pushing back against one of the new president's first initiatives, begun even before he took the oath of office.
By rejecting those 123 stations, the Copps FCC is violating the clear intent of Congress for the DTV Delay Act. Without the legislative compromise that made the delay "voluntary" for broadcasters, the Act would have never been approved by the Senate.
Any station that has been "rejected" by the FCC should simply submit page S1051 of the January 29, 2009 Congressional Record to the FCC for their evidence.
On that page, the Senate sponsors of the DTV Delay Act--which Obama apparently finally signed on February 12-- clearly states the following about the delay in the DTV Delay Act: "It is voluntary. That was very important. Because many broadcast companies have made the investment for digital transmission, and they will be able to go to that digital transmission."
Moreover, the February 5th FCC Public Notice (that required broadcasters to submit notice to the FCC by February 9 if they intended to terminate their analog transmissions on February 17 and also imposed additional conditions on such broadcasters) violates the intent of Congress and is Constitutionally illegal, as the President did not sign the DTV Delay Act into law until February 12. In other words, the FCC had no underlying legal authority at the time to impose the requirements, conditions and deadlines in the February 5th Public Notice, and even if they did, the Public Notice violates the clear intent of Congress.
Note to President Obama and his advisors: make sure you really know what you are talking about before you ask for something. They have turned a minor inconvenience for a few people into unmitigated chaos. (I hope President Obama's advisors, Genachowski, et al., will use this as a learning experience. They failed to understand the complexity of the DTV transition and the elegant sophistication of the hard date solution Congress passed in 2006 because they are only trained as mere lawyers. This situation required true "brillianceâ€ and experience, not just the high level of sycophancy that gets one on the Harvard Law Review or hired by Reed Hundt. Good Luck next time.)
The Real Public Interest - 2/12/2009 7:57:11 AM EST
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