Originally Posted by
FCC 3rd DTV Review NPRM 
A. Reduction and Termination of Analog Service
37. In this section, we consider the reduction and termination of stations’ analog TV service. Until February 17, 2009, the Commission’s rules require stations to continue operating their existing licensed analog facilities. To best achieve their respective transitions, however, some stations may find it desirable to reduce or terminate their analog operations before the February 17, 2009 transition date. In some cases, stations may need to reduce or end their analog service because such operations may impede construction and operation of post-transition (digital) facilities. Such circumstances may include, but are not limited to: (1) stations that would like to switch their side-mounted digital antenna with their top-mounted analog antenna before the end of the transition; (2) stations that need to add a third antenna to their tower but cannot do so without reducing or ending analog service because the tower cannot support the additional weight; and (3) stations that are terminating analog service early as part of a voluntary band-clearing arrangement. We seek comment on these and other circumstances where stations can facilitate their transitions by reducing or terminating their analog service in advance of the transition deadline.
38. Background. The Commission generally has not favored reductions in television service. Proposals that would result in a loss in TV service have been considered to be prima facie inconsistent with the public interest, and must be supported by a strong showing of countervailing public interest benefits. Consistent with this precedent, the Commission allows stations to reduce their service from that required by their licenses only upon an appropriate public interest showing. Losses in service may be justified, for example, to facilitate the station’s transition to DTV. The Commission is generally most concerned where there is a loss of an area’s only network or NCE TV service, or where the loss results in an area becoming less than well served, i.e., served by fewer than five full-power over-the-air signals. In cases in which a station seeks to reduce analog TV service, it can also use an engineering analysis performed in accordance with the Office of Engineering and Technology’s OET Bulletin No. 69 (“OET 69”) methodology to show that the area where service would be reduced is area that is already terrain shielded such that viewers located in that area do not actually receive the station’s signal over-the-air now.
39. Notwithstanding the strong public interest in maintaining TV service, the Commission does permit the early return of out-of-core (TV channels 52-69) analog channels under certain circumstances in order to facilitate the DTV transition. The Commission established policies to facilitate voluntary “band-clearing” of the 700 MHz bands to allow for the introduction of new public safety and other wireless services and to promote the transition of out-of-core analog TV licensees to DTV service inside the core TV spectrum. Generally speaking, these policies provide that the Commission will approve voluntary agreements between incumbent broadcasters and new licensees to clear the 700 MHz band early if consistent with the public interest. The Commission has approved several such requests to return out-of-core channels in accordance with this band-clearing policy.
40. The Commission’s 700 MHz band-clearing policies differ somewhat depending on whether a station is located on TV channels 59-69, which might affect use of the upper portion of the band, or on TV channels 52-58, which would only affect use of the lower portion of the band. Envisioning the early recovery of TV channels 60-69, the Commission established a “rebuttable presumption” favoring requests for voluntary band-clearing involving channels 59-69. In contrast, the Commission did not anticipate recovery of TV channels 52-59 until after the DTV transition was complete and, as a result, decided to consider requests for voluntary band-clearing involving those channels on a case-by-case basis. In this case-by-case review, the Commission considers whether grant of the request would result in public interest benefits, such as making new or expanded public safety or other wireless services available to consumers, especially in rural or other underserved communities. The Commission weighs these benefits against any likely public interest harms, such as the loss of any of the four stations with the largest audience share in the designated market area, the loss of the sole service licensed to the local community, the loss of a community’s sole service on a channel reserved for NCE TV broadcast service, or a negative effect on the pace of the DTV transition in the market.
41. Discussion. In light of the hard deadline for the cessation of analog TV service, we believe the most significant public interest objective should be to ensure that stations meet the transition deadline. The original statutory provision requiring the termination of analog broadcasts established December 31, 2006 as the last day for analog operations, but allowed that deadline to be postponed if an 85 percent DTV reception benchmark was not reached in a given market. The Commission’s goal under this former approach was to increase DTV operations as quickly as possible without causing significant analog service loss. We believe, however, that Congress’ adoption of the hard deadline of February 17, 2009, now weighs in favor of an increasing tolerance for the loss of analog service as we near the switch-over date and where it will facilitate the transition.
42. Stations with Out-of-Core Analog Channels. As noted above, stations that might affect the upper 700 MHz band (i.e., TV channels 59-69) can receive a “rebuttable presumption” favoring their requests to terminate analog service. We believe the disparate band-clearing treatment with respect to stations in the lower 700 MHz band (i.e., TV channels 52-58) is no longer appropriate. The hard deadline applies equally to both portions of the 700 MHz band. In addition, Congress has mandated that the Commission begin the auction of recovered analog broadcast spectrum in the 700 MHz band no later than January 28, 2008. Accordingly, we propose to apply the same “rebuttable presumption” standard to voluntary agreements for clearing TV channels 52-58 as now applies to such agreements for clearing TV channels 59-69. Moreover, we propose to apply the relaxed “rebuttable presumption” to out-of-core stations seeking to reduce rather than terminate their analog service. Requests to reduce or terminate analog service would be made in accordance with the Commission’s rules. We seek comment on our proposed treatment of out-of-core stations seeking to reduce or terminate their analog service.
43. Stations with In-Core Analog Channels. In contrast to out-of-core stations’ return of their analog channels, in-core stations’ requests to reduce and terminate analog service have been less favored to this point. We believe it may now be appropriate to examine the circumstances under which we will allow in-core stations to reduce or discontinue analog TV broadcasting. We seek comment on the factors and circumstances we should consider when evaluating in-core stations’ requests to reduce or terminate their analog TV service before the February 17, 2009 transition date. We invite comment on ways to ensure that stations meet the statutory transition deadline, while still minimizing the loss of TV service to consumers. If we permit early reduction or termination of analog service, how do we ensure that the public continues to have access to news and information, including emergency and other public safety information during the transition?
44. First, with respect to a station requesting to reduce its analog service – short of terminating its analog broadcasting, we seek comment on whether we should establish a presumption that any reduction in a station’s analog TV service is in the public interest if:
(1) the proposed reduction is directly related to the construction and operation of post-transition facilities and would ensure that the station or another station can meet the deadline;
(2) the proposed reduction in analog service is less than five percent of either the station’s service area or its population served;
(3) the proposed reduction does not cause the loss of an area’s only top-four network or NCE TV service;
(4) the proposed reduction does not result in an unreasonable reduction in the number of services available in that area;
(5) the broadcast station proposing the reduction is able to deliver its signal to cable and satellite providers so that the reduced analog signal does not prevent cable and satellite carriage; and
(6) the broadcast station proposing the reduction commits to on-air consumer education about the station’s transition and how to continue viewing the station.
We seek comment on the usefulness and timing of this proposal, including whether there are other factors or situations where we should presume that a reduction in service would be, or would not be, in the public interest. For example, should we consider the level of cable and satellite penetration in the areas that will lose over-the-air service? We also seek comment on whether and, if so, how these factors should be relaxed as we approach the DTV transition date. As noted above, requests to reduce analog service would be made in accordance with the Commission’s rules.
45. If a station is unable to qualify for the above proposed presumption, we propose to consider the station’s request to reduce analog TV service (on an in-core channel) on a case-by-case basis. We invite comment on the appropriate showing and balancing of factors to consider in such a case-by-case analysis. As above, we seek comment on whether we should permit an increasing amount of analog TV service loss the closer we get to the end of the transition. What information must stations provide to demonstrate that reduced analog service would be in the public interest? We would expect that our case-by-case analysis would involve consideration of the factors discussed above. For example, we believe that broadcasters must be able to deliver their signals to cable and satellite providers so that reduced analog signals do not prevent cable and satellite carriage. In addition, we believe that broadcasters must also commit to on-air consumer education about the station’s transition and how to continue viewing the station. We seek comment on these proposals.
46. Some broadcasters have side-mounted antennas and similar problems that prevent them from completing the build-out of their digital facilities while they are still operating their full analog facilities. Such stations, if they are providing DTV service to 100 percent of their replication area, may want to wait until February 17, 2009 to move their digital antenna into its final position. This approach may be acceptable provided there is a minimal disruption of service after the deadline due to post-deadline construction activities. We seek comment on this approach and urge each station operating under these circumstances to consider how much of their replicated area is served by their side-mounted digital antenna. It is critically important that analog over-the-air viewers who obtain the necessary digital receivers (whether TV sets or D-to-A converters) are able to receive DTV service over-the-air upon expiration of the deadline for the transition on February 17, 2009. If it is necessary for stations to reduce analog service before the transition to be sure all viewers have digital service on and after the transition date, we will consider such requests.
47. With respect to a station requesting to terminate its analog TV service on an in-core channel, we seek comment on whether and, if so, under what conditions we would permit such an action. We would expect to apply a stricter standard to the early termination of analog in-core service than to a reduction in service. We believe our analysis of requests to terminate analog service would at least involve consideration of the relevant factors discussed above for a reduction of service. We seek comment on this proposal, and also on whether we should require a station requesting termination of analog in-core service to demonstrate that a reduction in service is an unacceptable alternative. As noted above, requests to terminate in-core analog service would be made in accordance with the Commission’s rules.
