Advisory Communications Communications December 2008 FCC Issues Notice of Proposed Rulemaking for Analog Nightlight Program by Richard Zaragoza and Craig J. Saperstein On December 24, 2008, the Federal Communications Commission (“FCC”) issued a Notice of Proposed Rulemaking (NPRM) to implement the recently enacted Short-Term Analog Flash and Emergency Readiness (SAFER) Act. The SAFER Act directs the Commission to develop a “nightlight” program to per- mit stations to continue to broadcast analog signals for 30 days after the Feb- ruary 17, 2009 DTV transition deadline for the limited purpose of providing public safety and digital television (“DTV”) transition information. The Notice describes the FCC’s framework for implementing the nightlight program and establishes an expedited public comment period. The notice was published in the Federal Register on December 31, 2008, thereby establishing Monday, January 5, 2009 as the deadline for comments, and Thursday, January 8 as the deadline for reply comments. Consistent with the language of the SAFER Act, the FCC “strongly encourages” broadcasters, where tech- nically feasible, to participate in the voluntary 30-day nightlight program. In the Notice, the Commission asserts its objective of ensuring that at least one station in each community participates in the program. The nightlight program will permit continued analog broadcasting by eligible stations from February 18, 2009 to 11:59:59 pm on March 19, 2009. Nightlight Program Content The FCC has proposed that those stations eligible to participate in the analog nightlight program will be permitted to air only two types of content: information related to emergencies and educational information pertaining to the DTV transition. Such permissible information may be aired using a “slate” with text and audio of the text pertaining to the DTV transition and to any current emergencies. Stations may also air a video loop with audio, or broadcast live action with audio format. The Commission would mandate that Pillsbury Winthrop Shaw Pittman LLP www.pillsburylaw.com 1 Advisory Communications all such information must be available in English and Spanish and be accessible to persons with visual and hearing disabilities. Ban on Sponsorship. The FCC “tentatively concludes” that stations may not broadcast advertisements if they choose to participate in the nightlight program. However, the Commission seeks public comment on this conclusion. If your station believes that sponsorship would be material to your decision to participate in this program, please let us know immediately so that we can make your views known to the FCC. Emergency Information. Participating stations would be permitted to broadcast information about a cur- rent emergency consistent with the Commission’s emergency access rules. Such information includes critical details about the nature of the emergency and how viewers should respond. Emergency information would also include audio or video material concerning such emergencies, including a crawl or text describ- ing the emergency, live or taped action, and other programming related to the emergency. The Emergency Alert System would apply to the nightlight program if an emergency arises during the 30-day period. The FCC seeks comment on these proposed rules. Digital TV Transition Information. In addition to emergency information, stations broadcasting analog signals during the 30-day period would be permitted to air, in either open or closed captioning, any general information, in Spanish and in English, that is relevant to informing viewers about the DTV transition and how they can continue to receive television service. At a minimum, such DTV transition information must include a telephone number and a website address where viewers can educate themselves about the transition. Stations may also broadcast information about how viewers can receive digital signals, the cir- cumstances related to the DTV transition in the viewers’ market, answers to frequently asked questions about the transition, contact information for entities that can provide further information pertaining to the transition, and general information about the converter box coupon program. Furthermore, stations may air a brief DTV educational video produced by the National Association of Broadcasters. The FCC encour- ages broadcasters to establish local phone numbers or call centers for consumers who have questions about local signal reception and asks State Broadcasters Associations to inform the Commission of their plans to make these resources available. The FCC seeks comment on these proposed rules. Eligibility for Participation Stations “Pre-Approved” for Eligibility. The NPRM includes information pertaining to stations’ eligibility to participate in the program and the process by which stations may opt-in. In Appendix A of the Notice, the FCC provides a “conservative list” of stations that operate on channels 2-51 and whose continued broadcasting in analog fall within the “technical and interference constraints set forth in the statute.” Sta- tions identified in Appendix A are considered “pre-approved” for participation in the program and must, if they wish to participate, file, no later than February 10, 2009, an application for special temporary operating authority, referred to as a “Legal STA,” via the FCC’s electronic Consolidated Database System (CDBS) using the Informal Application filing form. The NPRM also encourages pre-approved stations to notify the Commission during the comment cycle if they intend to participate in the nightlight program. Finally, pre-approved stations must file an update to their Transition Status Report (FCC Form 387) if they seek to participate in the program. Participation by Other Stations. The Commission also encourages other stations who meet certain tech- nical criteria to participate in the nightlight program. The FCC tentatively concludes in the Notice that the following classes of stations would, subject to obtaining the prior approval of the FCC, be allowed to par- ticipate in the analog nightlight program: (i) stations that would cause no more than 0.1 percent new inter- Pillsbury Winthrop Shaw Pittman LLP www.pillsburylaw.com 2 Advisory Communications ference to digital stations; and (ii) stations that would cause no more than 0.5 percent new interference to digital stations in markets without any other eligible stations. In addition, the Notice contemplates that, in markets where no station chooses to participate in the program, the FCC may attempt to identify low- power stations that haven’t transitioned to digital signals and request their participation in the program. The Commission urges stations to determine whether they are eligible to participate, to seek approval from the FCC by demonstrating that their analog broadcasts will not cause harmful interference, and to coordi- nate with other stations in their communities to share the costs of nightlight operation. If a station not iden- tified in Appendix A seeks to participate in the nightlight program, it must demonstrate its eligibility by filing an Engineering STA notification through CDBS using the Informal Application filing form no later than Feb- ruary 3, 2009. Such stations are also encouraged to file comments in this proceeding indicating their interest in participating. All applicants seeking to participate in this program must also file an update to their Transition Status Report (FCC Form 387). For all stations—both those which are pre-approved and those which must demonstrate their eligibility— the FCC will waive the customary filing fee for all applicants who timely file the required STA applications. The FCC stated that it will revise Appendix A as warranted in its Report and Order. Additionally, the Com- mission proposed that the Report and Order will grant a blanket, temporary 30-day extension to the analog licenses of all participating broadcasters. Ineligible Stations. The following types of stations are presumptively not eligible to participate in this pro- gram: (i) stations using spectrum employed for public safety radio purposes, (ii) stations that are “flashcut- ting” at the conclusion of the digital transition, (iii) stations operating on channels 52-69, and (iv) stations on channels 2-51 that would cause harmful interference to digital signals by operating in analog. The FCC seeks comment on these proposed rules. Retransmission Not Required. Consistent with Section 3 of the SAFER Act, the Commission will not mandate that analog signals broadcast pursuant to the nightlight program be subject to mandatory cable carriage and retransmission requirements. Appendix A, containing an initial listing of stations eligible for the nightlight program, and Appendix B, con- taining a list of DMAs indicating the presence of stations initially eligible for nightlight program participation, are attached to this Advisory. For further information, please contact: Richard R. Zaragoza (bio) Craig J. Saperstein* Washington, DC Washington, DC +1.202.663.8266 +1.202.663.9244 [email protected] [email protected] *Admitted to practice in Maryland only; supervised by members of the DC Bar This publication is issued periodically to keep Pillsbury Winthrop Shaw Pittman LLP clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The comments contained herein do not constitute legal opinion and should not be regarded as a substitute for legal advice.