On the last day of 2007, the FCC released a 108 page order detailing its rules for the final stages of the transition of US full power television stations from analog to digital, a transition that is to be completed in less than 14 months. The Third Periodic Review, as the order is titled, covers in detail the timing of required construction of the final facilities for each full power television station, as well as various details on other transition issues. While we will prepare a more detailed summary of the order, some of the more significant issues that the Commission addressed include the following:

• Established firm construction deadlines for final digital facilities for television stations which have not yet constructed those facilities. The deadlines are:
  • February 17, 2009 for stations moving to a new digital channel, or to their analog channel, for their ultimate digital operations
  • May 18, 2008 for stations that will remain on their current digital channel and which already hold a construction permit for their digital operations
  • August 18, 2008 for stations that will remain on their current digital channel but which do not have a construction permit for their ultimate facilities
• Extensions of these deadlines will be permitted only upon a showing that the circumstances preventing construction were unexpected or beyond the control of the licensee, including zoning and financial inability - though these standards were made more limited than those that previously applied. Any extension beyond February 17, 2009 will be granted only if it meets the Commission's tolling standards, e.g. there is litigation which must be resolved before the construction can begin or an Act of God that temporarily precludes construction.
• By February 18, 2008, each television station licensee must file a new form with the FCC, Form 387, detailing the status of construction of the digital facilities of the station, and must update the information periodically if they have not yet completed their DTV construction.
• The Commission has agreed to allow stations to receive Special Temporary Authority to operate with limited facilities, and to even cease analog broadcasting before the end of the transition or for periods of up to 30 days, if necessary to facilitate their ultimate construction, under certain specific guidelines and after prior notification that must be given to viewers.
• The current freeze on applications for increased facilities will be lifted after August 18, 2008
• The Commission adopted new interference standards for applications for improvement in digital stations
• Any digital station, whether operating as a licensee or permittee, must pay fees for any ancillary or supplementary services that they provide with their digital spectrum
• Provided a format for the station identification that must be used when a digital station uses a secondary channel to rebroadcast another station, such as a low power television station.

One interesting comment on the transition came from Commissioner Copps, who was critical of the fact that the process for the final conversion is only now being established, with just over a year to go before the February 17, 2009 date by which analog television will come to an end. The Commissioner suggested that the FCC pick a test market, and attempt an early digital transition there, much as is being done in other countries. For instance, in Germany, the digital transition in Berlin took place early so that the process could be reviewed to ease the process in other markets. While Copps suggests that the Commission could still do such a test market transition in the United States, one wonders how a market could be selected and sufficient public notice provided for a test transition to occur early enough to be a learning experience applicable to the remainder of the country.

Watch for more details on this Order, and other digital transition issues to be addressed by the FCC (including the prospect of mandatory publicity efforts for television operators), as the DTV transition progresses.

David Oxenford

David Oxenford is a partner in the Washington, DC office of the law firm of Davis Wright Tremaine LLP. This post originally appeared on DWT's Broadcast Law Blog, and is posted on DMW with the author’s permission. This information is provided for educational purposes only and should not be relied on as legal advice, and should not substitute for competent legal advice from your own attorney."

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