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Their exclusion was inadvertent. Accordingly, attached as Appendix C hereto is an addendum  S - xto Appendix E of the Fifth Report and Order, which lists the foregoing facilities of Three Feathers and  Sp- xLCoast as eligible for initial DTV licenses pursuant to the Fifth Report and Order, and we shall amend the  xDTV Table of Allotments to reflect the DTV channel associated with channel 38, Santa Barbara, California.  S-x 2. Eligibility of Parties with Pending NTSC Applications A. General Matters  S- x[ 7. Petitions/Comments. Several petitioners argue that parties whose new NTSC construction permit  xMapplications were still pending as of the date of issuance of the initial DTV licenses should be able to  Ss- xparticipate in the transition to DTV, at least under certain circumstances.4 s2 {O-  #X\  P6G;H;P#эxE.g., John C. Anderson ("Anderson") Petition at 13; Island Broadcasting, Ltd. ("Island, Ltd.") Petition at 12; McPike Communications ("McPike") Petition at 23; Laredo Community College Reply at 12.4 Many of these petitioners filed  xapplications within the past three years that are mutually exclusive with other applications and which, as  S -a result, have not been grantable by the Commission.6 $ . 2 yO#-  =#X\  P6G;H;P#эxIn 1993, the Commission was directed to reexamine one of the comparative criteria it had traditionally used  {O$- xto evaluate competing applications in a comparative hearing for a new commercial broadcast station. Bechtel v. FCC,  {Om%- x10 F.3d 875 (D.C. Cir. 1993). In response to Bechtel, the Commission instituted a freeze on the processing of  {O7&- xmutually exclusive commercial broadcast television applications in 1994. Public Notice, 9 FCC Rcd 1055 (1994)BECHTEL FREEZE.  {O'- xWe recently released a Notice of Proposed Rulemaking to implement the requirement in the Balanced Budget Act"' ,l(l(2'"  x,of 1997 that we use competitive bidding to decide most mutually exclusive commercial broadcast cases. We invited  {OX- xcomment on whether to use competitive bidding to resolve the pending applications.  Notice of Proposed Rulemaking  xin MM Docket 97234, GC Docket 9252, and GEN Docket 90264 62 Fed. Reg. 65392 (December 12, 1997)  {O-("Broadcast Auctions Notice").6"  ,l(l(,,"Ԍ S- xԙ 8. George S. Flinn ("Flinn") and Broadcasting for the Challenged, Inc. claim that the newly granted  xNTSC construction permits would be worth very little if they could not be used for DTV, but instead had  S- xto be surrendered to the Commission at the end of the transition period.2 yO-#X\  P6G;H;P#эxFlinn Petition at 4; Broadcasting for the Challenged Petition at 4. Similarly, AAPTS/PBS asserts  xthat pending applicants cannot realistically make the substantial investments required to proceed with their  xapplications and construct facilities absent assurances that their NTSC channels can be converted to  S-DTV.qD2 yO -#X\  P6G;H;P#эxAAPTS/PBS Petition at 29.q  S- x 9. AAPTS/PBS requests that we allow the new NTSC permittees to convert to DTV service on the  xNTSC channel at any time during the transition. It argues that since DTV facilities require less separation  x.than analog stations, most of these new broadcasters should be able to convert to DTV on the protected  S- xNTSC channels without causing interference.a2 {Ov-#X\  P6G;H;P#эxId.a In the alternative, AAPTS/PBS asserts that the  x>Commission should allow such parties to switch to a DTV channel after the transition without being  S - x\subject to competing applications,a f 2 {O-#X\  P6G;H;P#эxId.a a proposal also put forth by MidSouth Public Communications  Si -Foundation ("MidSouth").pi 2 yO-#X\  P6G;H;P#эxMidSouth Petition at 3.p  S - xz  10. Discussion. The 1996 Act stated that, if the Commission determines to issue additional DTV  xlicenses, the Commission "should limit the initial eligibility for such [DTV] licenses to persons that, as  x of the date of such issuance, are licensed to operate a television broadcast station or hold a permit to  Sj- x0construct such a station (or both)...."qj 2 yO-#X\  P6G;H;P#эx47 U.S.C.  336(a)(1).q In the Fifth Report and Order, we fully implemented this  xprovision. We made no decision at that time regarding the assignment of DTV channels to new permittees  xLand licensees whose pending NTSC applications had not yet been granted and who were, as a result, not  S- xawarded initial DTV licenses.2 {O -  /#X\  P6G;H;P#эxFifth Report and Order at 12816a, n. 26. For convenience, we shall refer to these entities simply as the "pending applicants." The treatment of such pending applicants has been of concern throughout  S- xthe course of this proceeding.*\r2 {O#-  k#X\  P6G;H;P#эxFor example,  HISTORY in the Notice of Proposed Rulemaking in MM Docket No. 87268, adopted on October 24,  x1991 (before the passage of the 1996 Act), the Commission proposed that the parties initially eligible for DTV  xxlicenses (then called "ATV," or "advanced television" licenses) would be limited to: (1) licensees; (2) permittees;  xand (3) those with NTSC applications pending as of that date whose applications were ultimately granted. They were  xproposed to be included because they had already invested resources prosecuting their applications. The Commission  xalso sought comment on whether parties that applied after October 24, 1991 should receive ATV licenses after the"',l(l('"  {O- xinitial licenses were issued. 6 FCC Rcd 7024, 702526 (1991). In the Second Report and Order/Further Notice of  {OZ- xProposed Rulemaking in this proceeding, the Commission adopted its proposal to limit initial eligibility to licensees, permittees and applicants pending as of October 24, 1991. 7 FCC Rcd 3340, 3343 (1992).* Therefore, having issued the initial DTV licenses pursuant to the 1996",l(l(,," Act, we now take this opportunity to address the concerns of the pending NTSC applicants.  S- x  11. We shall afford new NTSC permittees, whose applications were not granted on or before April  x3, 1997 and who were therefore not eligible for an initial DTV paired license, the choice to immediately  xconstruct either an analog or a digital station on the channel they were granted. They will not be awarded  S- xa second channel to convert to DTV but may convert on their single 6 MHz channel.L 2 yO -  #X\  P6G;H;P#эxIf their granted channel is outside the core, and if they find a channel within the core that protects all DTV  xand NTSC stations and complies with all the DTV technical rules, they may request authorization to convert on that  xalternative channel in lieu of their granted channel. If such authority is granted, their granted outofcore 6 MHz channel will be returned to the Commission, and their authorization will specify the new incore channel.L If they choose the  xanalog option, they will be subject to the traditional twoyear construction period applied to NTSC  xystations, and they may, upon application to the Commission, convert their analog facility to DTV at any point during the transition period, up to the end of that period.  S- x  12. Allowing these NTSC applicants to participate in the conversion to DTV will serve the public  S- xzinterest. Pursuant to the Bechtel freeze, discussed in note BECHTEL FREEZE13, above, many of these applications have  xremained unprocessed pending the Commission's resolution of fundamental policy questions relating to  xthe comparative hearing criteria. These parties themselves did nothing to delay the processing of their  xyapplications and make themselves ineligible for initial DTV licenses. Therefore, where possible, it would  S - xbe equitable to accommodate their desire to operate DTV facilities.) 2 yOx-  =#X\  P6G;H;P#эxWe note that the 1996 Act and the accompanying Conference Report, S. Conf. Rep. 104230, 104th Cong. 2d Sess. (1996), are silent as to the eligibility of pending applicants for future DTV licenses.) Moreover, additional considerations  xyweigh in favor of new licensees whose applications were filed before October 24, 1991, given the reliance  S -they may have placed on the rules we adopted before the passage of the 1996 Act. , 2 {Oj-#X\  P6G;H;P#эxSee Fifth Report and Order at 12816a, citing Second Report and Order at 3343. See also n. HISTORY21, above.  S8- x  13. Further, as discussed in detail below in Section F, all NTSC service must cease at the end of the  x\transition period. Because NTSC is a technology of the past that will cease to exist, authorizing new  xanalog stations that cannot evolve to digital operation would have significant public interest costs. It could  xlimit the ability of the analog broadcaster to serve its viewers as well as it otherwise might; it could put  xthe licensee at a competitive disadvantage visavis its emerging digital competitors; and viewers would  xlose altogether a channel of free, overtheair video programming at the end of the transition period. In  xycontrast, allowing the transition to DTV would allow broadcasters to better serve their viewers on a local  xscale, and it could help facilitate the overall conversion from analog to digital broadcasting across the country.  S:- x  14. Before the NTSC permittee or licensee can build a DTV station, either initially or after first  S- x>building an analog station, it must file a DTV application.R 2 yOe%-  k#X\  P6G;H;P#эxThe DTV application of an analog broadcaster may incorporate its request for maximization of the DTV  {O-&-facility. We will address maximization issues in general in the reconsideration to the Sixth Report and Order.R We will treat these DTV applications as  xminor modifications. The proposed DTV facility must protect all DTV and NTSC stations by complying",l(l(,,{"  xwith all applicable DTV technical rules. In addition, such a new permittee or licensee's DTV facility must  xjgenerally comply with analog operating rules, such as minimum operating hours, except where the analog  xrule is inconsistent with the digital rules or inapplicable to digital technology. It must also provide one,  xfree over the air video program service, as with other DTV licensees. These stations will also be afforded  xthe flexibility to provide digital ancillary or supplementary services authorized by Section 73.624(c) of the Commission's Rules, consistent with the DTV standard.  S- x 15. To prevent warehousing of spectrum, we will require these permittees to build a station, analog  xor digital, within the initial two-year construction period granted, rather than applying the DTV  S5- xconstruction timetable adopted in the Fifth Report and Order.852 yO -  /#X\  P6G;H;P#эxThe construction requirements applicable to other DTV broadcasters, such as coverage of community of  {Oe -license, shall apply. See Fifth Report and Order at 12840, n. 161, and 12,847.8 We will not extend the time for  xLconstruction based on sale of the permit or based on a decision to convert to DTV in the initial two-year  xjperiod before the analog station is built. Those stations that first construct and operate an analog station  x(within the initial two year period) and then choose later to construct a DTV station must convert by the  x?2006 deadline and, upon grant of a DTV permit, will have (subject to the 2006 deadline) until the  xconstruction deadline for that category of station or a period of two years, whichever is longer, within which to build the DTV station.  S - x 16. DTV stations operating on a core NTSC channel will continue to do so after the end of the  xytransition period. However, stations operating outside the core will be doing so on an interim basis only.  S8- xAt the end of the transition period, to fully implement the policies adopted in the Sixth Report and Order  S- xand the recently concluded Channels 6069 Reallocation proceeding,0"2 yO-  M#X\  P6G;H;P#эxThe Commission recently concluded a rule making proceeding reallocating UHF channels 6069 for both  {O-broadcast and nonbroadcast services. See note OET NOTICE116, below.0 the Commission will reassign all  x{outofcore DTV broadcasters, including the currently pending applicants, to channels in the core.  xBecause the outofcore allotment is intended to be temporary, the subsequent move to a core channel will  xybe considered a minor change in facilities, intended solely to effectuate the policies set forth in the abovementioned documents. For this purpose, all core channels will be considered fungible. B. Denied NTSC Applications  So- xl 17. Petitions/Comments. SL Communications ("SL") requests reconsideration of an allotment  S<- xdecision in the Sixth Report and Order that we consider here because it implicates eligibility. SL requests  xthat we allot a DTV channel for a vacant analog UHF channel in Texas, for which an initial construction  xpermit application was filed by another party. In 1995, that applicant and SL filed a petition to substitute  xySL for the applicant. The petition was denied on February 27, 1997, the proceeding was terminated, and  xa petition for reconsideration is pending. Because there was no permittee or licensee for the channel in  S>- x!question, there was no corresponding DTV allotment made in the Sixth Report and Order and no  S - xadditional license awarded in the Fifth Report and Order. SL argues that a DTV allotment should have  S-been made because an application was on file before October 24, 1991.N$|2 {O#-  #X\  P6G;H;P#эxSL Petition at 3. In the Sixth Further Notice, we restated that, in the event of a shortfall of DTV allotments,  xyeligible parties would be ranked in the following order: (1) licensees and permittees with constructed facilities  xhaving program test authority; (2) other permittees; and (3) all parties with an application for a construction permit  {OP&-pending as of October 24, 1991. Sixth Further Notice at 10973, n. 12. N "h ,l(l(,, "Ԍ S- x 18. Discussion. We decline to reconsider this allotment eligibility decision. Under the eligibility  S- xLcriteria established by Section 336(a)(1) of the Communications Act and adopted in the Fifth Report and  S- xOrder, SL was not eligible for the award of an initial DTV license, as it was not a permittee or licensee  x as of the date of issuance of the DTV licenses. Indeed, the original applicant for which SL sought to  xsubstitute did not have a permit at that time, and the application had been denied. Thus, regardless of the  xoutcome of the proceeding to reconsider whether the NTSC application was properly denied, we were not  xlrequired to take the vacant analog allotment into consideration when we crafted the DTV Table of  S- xAllotments. It would be premature to give such consideration in the instant case because no permit or  Sj- xlicense has been granted. However, in its recent order denying the petition for reconsideration, Dorothy  S8- xO. Schulze and Deborah Brigham, FCC 9821 (adopted February 12, 1998), the Commission held that  S- xthe NTSC channel is exempt from the general provisions of the Sixth Report and Order deleting vacant  x.NTSC allotments and that the Mass Media Bureau should take appropriate steps to permit the filing of  xapplications for this channel. If such an application for an NTSC construction permit is subsequently  xgranted, the permittee will have the same rights and obligations as other parties with pending NTSC applications, as discussed above.  S - B. Definition of Service Spectrum Use  So- x 19. Background. In the Fifth Report and Order, we noted our expectation that the fundamental use  S=- xof the DTV license would be for the provision of free over-the-air television service.=2 {O-#X\  P6G;H;P#эxFifth Report and Order at 12820. Thus, we required  xthat broadcasters provide a free digital video programming service the resolution of which is comparable  xto or better than that of today's service and aired during the same time periods that their analog channel  S- x.is broadcasting.aZ2 {O-#X\  P6G;H;P#эxId.a However, we also recognized the benefit of affording broadcasters the opportunity to  x=develop additional revenue streams from innovative digital services. Therefore, we allowed broadcasters  x the flexibility to respond to the demands of their audiences by providing ancillary or supplementary  S - x{services that do not derogate the mandated free, overtheair program service.n 2 {O-#X\  P6G;H;P#эxId. at 1282021.n These services are  xzrequired to comply with the DTV transmission standard established by the Commission. We did not  xrequire that such services be broadcastrelated, and we noted that such ancillary or supplementary services  xcould include, but are not limited to, subscription television programming, computer software distribution,  xdata transmissions, teletext, interactive services, audio signals, and any other services that do not interfere with the required free service.  S- x 20. As noted in the Fifth Report and Order, our decision to allow broadcasters flexibility to provide  x/ancillary or supplementary services is supported by Section 336. This section specifically gives the  x.Commission discretion to determine, in the public interest, whether to permit broadcasters to offer such  xservices. Section 336(a)(2) of the Act provides that if the Commission issues additional licenses for  xadvanced television services, it "shall adopt regulations that allow the holders of such licenses to offer  xLsuch ancillary or supplementary services on designated frequencies as may be consistent with the public  Su-interest, convenience, and necessity." u~2 {O%-#X\  P6G;H;P#эxId. at 12821, citing 47 U.S.C.  336(a)(2).  S -x 1.  Ancillary or Supplementary Services "  ,l(l(,,d#"Ԍ S- x=ԙ 21. Petitions/Comments. The Personal Communications Industry Association ("PCIA") argues that  S- xythe Fifth Report and Order did not adequately define "ancillary or supplementary" services. PCIA notes  xthat it is difficult to ascertain whether these services are limited to services that supplement or relate to  xjthe broadcast service, or could include any services without such a limit. PCIA claims that the provision  xof land mobile service by DTV licensees would not serve the public interest, as it would have a negative  S- ximpact on existing mobile service providers.m!2 yOj-#X\  P6G;H;P#эxPCIA Petition at 34.m According to PCIA, allowing DTV licensees to provide  S- xmobile services on an ancillary or supplementary basis would create an uneven playing field between DTV  xLlicensees and mobile service providers. PCIA further claims that consideration of the effect of the Order  Si- xon mobile licensees is missing from the Fifth Report and Order's Final Regulatory Flexibility Analysis,  S7- xyas it identifies small businesses that may be impacted by the decisions in the Fifth Report and Order, but  S-analyzes the impact only on other broadcast licensees.g"X2 {O -#X\  P6G;H;P#эxId. at 4.g  S - x 22. PCIA also argues that the Commission's decision is contrary to the 1993 Budget Act, which  Sl - xkauthorized the Commission to auction spectrum used for commercial mobile radio purposes.g#l 2 {O-#X\  P6G;H;P#эxId. at 5.g PCIA  x claims that DTV licensees, which were not required to participate in an auction, will ultimately have  xlicense rights different from those of other mobile service providers. They argue that these licensees do  S - xnot appear from the Fifth Report and Order to have the same regulatory responsibilities as current mobile  S -providers and are permitted to provide video broadcast and subscription services.a$ |2 {O-#X\  P6G;H;P#эxId.a  S;- x[ 23. PCIA acknowledges that Section 73.624(c)(1), adopted in the Fifth Report and Order, states that  x/DTV licensees offering such services must comply with the Commission's regulations regarding each  x@specific service. However, it argues that the Commission has failed to define these regulatory  x requirements in sufficient detail. For example, PCIA questions whether DTV licensees offering land  x/mobile services will be required to provide emergency 911 access, telephone number portability, and  S=-mandatory resale.i%=2 {O-#X\  P6G;H;P#эxId. at 45.i  S- x= 24. AAPTS and PBS ("AAPTS/PBS") oppose PCIA's petition and argue that DTV licensees should  x>be allowed to provide land mobile and other ancillary or supplementary services that do not relate to  Sq- x?broadcast service. AAPTS/PBS states that the Fifth Report and Order's blanket authorization of  xsupplementary services is consistent with the mandate of Section 336(a)(2), which allows ancillary service  S - xofferings that are consistent with the public interest.t& 2 yOL"-#X\  P6G;H;P#эxAAPTS/PBS Opposition at 67.t AAPTS/PBS also observes that allowing public  xtelevision stations the flexibility to provide a variety of services is crucial, as these services could generate  S-needed revenue for DTV construction and operation.g'0 2 {Ov%-#X\  P6G;H;P#эxId. at 7.g  S@- x 25.  Discussion. We are unpersuaded by PCIA's arguments that we should specifically exclude the"@ ',l(l(,,K"  xMprovision of mobile services from the definition of DTV ancillary or supplementary services. As we  S- x0stated in the Fifth Report and Order, we believe that the approach we have taken with respect to  xjpermitting ancillary or supplementary services will best serve the public interest by fostering the growth  xNof innovative services to the public and by permitting the full possibilities of DTV to be realized.  xKGranting broadcasters the flexibility to offer whatever ancillary or supplementary services they choose may  xalso help them attract consumers to the service, which will, in turn, speed the transition to digital. Such  xflexibility should encourage entrepreneurship and innovation, will contribute to efficient spectrum use, and  S- x=will expand and enhance use of existing spectrum.(2 {O-  #X\  P6G;H;P#эxSee Report and Order in MM Docket No. 9542, 11 FCC Rcd 7799, 7802 (1996) (Digital Data Report and  {O-Order). Permitting broadcasters to assemble a wide array of  Si-services that consumers desire will also help promote the success of the free television service.~)i$2 {O- -#X\  P6G;H;P#эxFifth Report and Order at 12822.~  S- x  26. As noted above, Section 336(b) outlines our authority to permit the provision of ancillary or  S- x>supplementary services by DTV licensees.E*2 yO&-  #X\  P6G;H;P#эxSection 336(b) of the Communications Act provides that in prescribing the regulations required by Section 336(a), the Commission shall:  Xx(1) only permit such licensee or permittee to offer ancillary or supplementary services if the use  |of a designated frequency for such services is consistent with the technology or method designated by the Commission for the provision of advanced television services;   Xx(2) limit the broadcasting of ancillary or supplementary services on designated frequencies so as  to avoid derogation of any advanced television services, including high definition television broadcasts, that the Commission may require using such frequencies;   mXx(3) apply to any other ancillary or supplementary service such of the Commission's regulations as  1are applicable to the offering of analogous services by any other person, except that no ancillary  @or supplementary service shall have any rights to carriage under section 614 or 615 or be deemed to be a multichannel video programming distributor for purposes of section 628;   Xx(4) adopt such technical or other requirements as may be necessary or appropriate to assure the  quality of the signal used to provide advanced television services, and may adopt regulations that stipulate the minimum number of hours per day that such signal must be transmitted; and   "Xx(5) prescribe such other regulations as may be necessary for the protection of the public interest, convenience, and necessity.  47 U.S.C.  336(b).E Under this section, we are required to limit ancillary or  S - xsupplementary services to avoid derogation of any advanced television services that we may require.q+ >2 yO{#-#X\  P6G;H;P#эx47 U.S.C.  336(b)(2).q  Sj - xWe are also required to apply any regulations relevant to analogous services.q,j 2 yO%-#X\  P6G;H;P#эx47 U.S.C.  336(b)(3).q Our decision is fully  xLconsistent with the statutory requirements. The services we have authorized will not derogate advanced television service, nor will they create inequities for other regulated services." ^,,l(l(,,z "Ԍ S- xԙ 27. The Fifth Report and Order addressed the issue of parity in the treatment of various service  x-providers. We stated that, consistent with Section 336(b)(3), all nonbroadcast services provided by digital  xlicensees will be regulated in a manner consistent with analogous services provided by other persons or  Sh- xentities.-h2 {O-#X\  P6G;H;P#эxFifth Report and Order at 12823, citing 47 U.S.C.  336(b)(3). We also noted that we currently follow such an approach for ancillary or supplementary  xservices provided by NTSC licensees, for example, on the vertical blanking interval (VBI) and the video  S- xportion of the analog signal..ZZ2 {O-  #X\  P6G;H;P#эxFifth Report and Order at 12823. See also Digital Data Report and Order at 780506; 47 C.F.R.  646(c).  xhWe also noted that we follow such an approach with respect to subsidiary communications services on the television aural baseband subcarriers. 47 C.F.R.  73.667(b). Further, in the Fifth Report and Order, we noted that we would review  xour flexible approach to permit ancillary or supplementary services during our periodic DTV reviews and  S- x{to make adjustments to our rules as needed.~/|2 {O -#X\  P6G;H;P#эxFifth Report and Order at 12823.~ These reviews will allow us to address any specific  xconcerns raised by the mobile service industry regarding the provision of certain ancillary or  S7-supplementary services by DTV licensees on a casebycase basis if warranted.  S- x 28. Contrary to the claims of PCIA, our decision regarding ancillary or supplementary services will  x/fulfill our Congressional mandate to establish a fee program that prevents unjust enrichment of DTV  xlicensees. In enacting Section 336, Congress specifically recognized the possibility that DTV licensees  x=might offer services competing with those subscriptionbased services operating on spectrum purchased  xin the auction process. Congress therefore required that the Commission establish a fee program for  xancillary or supplementary services provided by digital licensees if subscription fees are required in order  S -to receive such services.s0 2 yON-#X\  P6G;H;P#эx47 U.S.C.  336(e)(1). s  S:- x 29. In considering the assessment of fees for the ancillary or supplementary use of the DTV spectrum,  x=Congress mandated that to the extent feasible, the fee imposed should recover an amount that equals but  xdoes not exceed the amount that would have been realized in an auction of the spectrum under Section  S- x309(j).t12 yO-#X\  P6G;H;P#эx47 U.S.C.  336(e)(2)(A).t Congress stated that the fee should be designed to prevent the unjust enrichment of DTV  xlicensees using the DTV spectrum for services analogous to services provided on spectrum assigned at  xMauction. We recently issued a Notice of Proposed Rule Making to consider proposals as to how this  S-statutory provision should be implemented and these fees assessed.2. 2 {O-#X\  P6G;H;P#эxDTV Ancillary or Supplemental Service Fees Notice, above at n.  FEES4 .  S- x/ 30. Finally, there is no basis to PCIA's claim that we were required to consider the impact of our  So- x[DTV decision on land mobile licensees in the Final Regulatory Flexibility Analysis (FRFA) appended to  S<- x|the Fifth Report and Order. PCIA FRFAThe FRFA, required of agencies in rulemaking proceedings by the  x[Regulatory Flexibility Act, is designed to protect small entities that are directly subject to administrative  S- xrules rather than all entities that are indirectly affected by the results that any rules will produce.{3 2 {O7&-#X\  P6G;H;P#эx5 U.S.C.  601 et seq.{ The  x>U.S. Court of Appeals for the D.C. Circuit has held that such an analysis is "limited to small entities" R 3,l(l(,,"  xsubject to the proposed regulation" and that "Congress did not intend every agency consider every indirect  S-effect that any regulation might have on small businesses in any stratum of the national economy." 42 {O5-#X\  P6G;H;P#эxMidTex Elec. Coop v. FERC, 773 F.2d 327, 34243 (D.C. Cir. 1985).  Sg-x 2. Minimum Programming Hours  S- x 31. Petition. Chronicle Publishing Co. ("Chronicle") observes that the Fifth Report and Order  xrequires broadcasters to provide a free digital video programming service, the resolution of which is  xcomparable to or better than that of today's service, aired during the same time periods that their analog  xjchannel is broadcasting. Chronicle argues that there may be unexpected difficulties for stations operating  xon channels adjacent to nearby stations, for which the interference issues are not yet fully understood.  xTo accommodate such difficulties, Chronicle requests that the Commission modify the foregoing  xrequirement to exempt broadcasters from providing a free digital video signal between the hours of  xmidnight and 6:00 a.m. (even though the analog station is broadcasting) in order to allow licensees to  xconduct maintenance or resolve any technical or other unanticipated problems arising from the use of new  xdigital technology, especially in the UHF band. Chronicle maintains that such "down time" is essential  S -for the ultimate success of DTV.r5 Z2 yO-#X\  P6G;H;P#эxChronicle Petition at 45.r  S - x 32. Discussion. We decline to grant Chronicle's requested modification to our requirement that  xkbroadcasters provide a free digital video programming service when the analog station is broadcasting.  xThis requirement was designed to assure that broadcasters provide on their digital channel the free over S- xtheair television service on which the public has come to rely.~62 {O-#X\  P6G;H;P#эxFifth Report and Order at 12820.~ We believe that it is a minimal  x?requirement that should not be unduly burdensome, particularly in light of the flexibility we have  xotherwise provided to broadcasters to provide a variety of digital services. While we recognize that  xbroadcasters may have technical problems to resolve as they make the transition to DTV, we believe that  x=the remedy requested is overbroad. In the event, however, that stations experience unexpected technical  xdifficulties with the required transition to DTV such as those outlined by Chronicle, they may request  xspecial temporary authority to operate at variance from our required minimum digital television service  xon a casebycase basis so that such technical difficulties can be resolved. If it later appears that a more  xgeneral change in our requirements may be necessary, we can consider that modification during our  S:-periodic reviews.   S- C. Public Interest Obligations  Sn- x  33. Background. In the Fifth Report and Order, we stated that we sought to promote the successful  xtransition of analog broadcast television into a digital broadcast television service that serves the public  S - xinterest.7\ |2 {O%#-  #X\  P6G;H;P#эxId. at 12829. We noted that the rules imposing public interest obligations on broadcast licensees originate  xin the statutory mandate that broadcasters serve the "public interest, convenience, and necessity," 47 U.S.C.  307(c),  {O$-as well as in other provisions of the Communications Act. Fifth Report and Order at 1282728. We noted that the 1996 Act clearly provided that broadcasters have public interest obligations  xwith respect to the program services they offer, regardless of whether they are offered using analog or" 7,l(l(,,"  S- xdigital technology.{82 {Oh-#X\  P6G;H;P#эxId.; 47 U.S.C.  336(d). { We stated that although the current rules were developed when technology permitted  xbroadcasters to provide just one stream of programming over a 6 MHz channel, digital technology expands  x the effective capacity of 6 MHz of spectrum to permit (but not require) licensees to provide several  Sg- xprogram streams, as well as other digital services, on their 6 MHz channels.9gZ2 {Oa-#X\  P6G;H;P#эxFifth Report and Order at 1282930. Noting the differences in  S4- xkviews as to the nature and extent of digital broadcasters' public interest obligations, we stated that we  xwould issue a Notice to collect and consider all views on broadcasters' public interest obligations in the  x/digital world. However, we also put broadcast licensees and the public on notice that existing public  xinterest requirements continue to apply to all broadcast licensees, that the Commission may adopt new  Sh- xpublic interest rules for digital television, and that the Fifth Report and Order "forecloses nothing from  S6-our consideration."k:62 {O -#X\  P6G;H;P#эxId. at 12830.k  S- x !34. Petitions. Media Access Project, et al. ("MAP"),M;X~2 yO-  !#X\  P6G;H;P#эxMedia Access Project filed jointly with the Center for Media Education, the Consumer Federation of  x=America, the Minority Media and Telecommunications Council, and the National Federation of Community Broadcasters.M contends that the Commission should not delay  x]its analysis of what modified (and increased) public interest obligations it should impose on DTV  Sj - xlicensees.<j 2 yO-#X\  P6G;H;P#эxMAP Petition for Reconsideration at 34. According to MAP, the Commission's failure to impose new public interest obligations  S7 - xviolates Section 201 of the 1996 Act, 47 U.S.C.  336(d),=X7 . 2 yO-  #X\  P6G;H;P#эxThis section provides that television stations are not relieved from serving the public interest, and requires  xthat a renewal applicant must "establish that all of its program services on the existing or advanced television  yO-spectrum are in the public interest." MAP Petition at 78; MAP Reply at 25, 7. 336 (a)(1),>X7 N 2 yO%-  =#X\  P6G;H;P#эxThis section directs the Commission to "adopt regulations that allow [DTV licensees] to offer such ancillary  x,or supplementary services on designated frequencies as may be consistent with the public interest, convenience, and  yO-necessity." MAP Petition at 78; MAP Reply at 25, 7. and 47 U.S.C.  336(b)(5).y?X7 n2 yOE-  #X\  P6G;H;P#эxThis states that, in prescribing DTV regulations, the Commission shall "prescribe such other regulations as  yO - xmay be necessary for the protection of the public interest, convenience, and necessity." MAP Petition at 78; MAP Reply at 25, 7.y  xjMAP adds that new public interest obligations are also warranted because broadcasters will have full use  xof 12 MHz (double their available spectrum) for at least 9 years, and also will be able to provide a number  S - xyof commercial services that were previously impossible.m@ 2 yO"-#X\  P6G;H;P#эxMAP Petition at 910.m MAP urges the Commission to clarify that all  xnew and existing public interest obligations will apply to both free and subscription program services in  S8- xboth analog and digital modes. MAP contends that such a conclusion appears implicit in the Fifth Report"8 @,l(l(,,"  S-and Order and is supported by 47 U.S.C.  336(d).3A2 {Oh-  \#X\  P6G;H;P#эxId. at 15. In this regard, MAP argues that Congress, in the 1996 Act, has overridden Subscription Video,  {O2- x2 FCC Rcd 1001 (1987), aff'd sub nom. National Association for Better Broadcasting v. FCC, 849 F.2d 665 (D.C.  x;Cir. 1988). In that decision, the Commission held that because subscription services are not intended to be received  xby the "general public," they are not broadcast services, and therefore are not subject to Title III public interest  xobligations. Nevertheless, MAP advocates that we should expressly overrule that decision, to eliminate possible confusion. MAP Petition at 1516.3  S- xy "35. MSTV and the Association of Local Television Stations, Inc. ("ALTV") oppose MAP's Petition.  xMSTV contends that the Commission correctly deferred discussing new public interest matters until after  S5- xthe White House Commission studying that issue can make its recommendations. B5D2 yO -  >#X\  P6G;H;P#эxThe Advisory Committee on Public Interest Obligations of Digital Broadcasters has been constituted and has commenced its work. Exec. Order No. 13,038, 62 Fed. Reg. 12,065 (Mar. 11, 1997).  Further, according to  S- x>MSTV and ALTV, the 1996 Act did not impose new public interest obligations on DTV licensees.qC2 yO>-#X\  P6G;H;P#эxMSTV Opposition at 3234.q  xALTV argues that the three provisions of Section 336 cited by MAP do not create any new public interest  xobligations but must be construed merely as not relieving a DTV broadcaster from its current public  Si- x\interest obligations.oDi, 2 yO5-#X\  P6G;H;P#эxALTV Opposition at 23.o According to ALTV, the Commission does not have authority to impose more  xspecific obligations without an express statutory directive. Finally, according to ALTV, even if the  x<Commission does have such authority, it would be premature to impose specific public interest obligations,  S-as rigid rules would hamper experimentation in programming and services.gE 2 {O,-#X\  P6G;H;P#эxId. at 5.g  Sj - x #36. Decision. We will not reconsider the approach we took in the Fifth Report and Order with  xrespect to the issue of the nature and extent of broadcasters' public interest obligations in the digital world.  xLMAP has not presented sufficient reasons why we must make an immediate decision on these questions  S - xinstead of issuing a Notice so that we may collect and consider all views on these important issues. We  xreiterate that, with respect to digital television service, broadcast licensees and the public are on notice that  xexisting public interest requirements continue to apply to all broadcast licensees and that we may adopt  xnew public interest rules for digital television, foreclosing nothing with respect to the public interest from  S-our consideration.~FN 2 {O-#X\  P6G;H;P#эxFifth Report and Order at 12830.~  S- D. Transition  S:- x1. Simulcast  S- x $37. Background. In the Fifth Report and Order, the Commission declined to adopt a simulcast"F,l(l(,,4"  S- xjrequirement for the early years of the transition,BG$2 {Oh-  #X\  P6G;H;P#эxIn the Fifth Report and Order, we generally defined simulcasting as the duplication of the programming  yO2- xof the analog channel on a DTV channel. We recognized that we will need to define the simulcasting requirements  yO- xmore clearly and noted that we will do so as part of the twoyear reviews of DTV or other appropriate proceeding.  {O-Fifth Report and Order at 12832, 12833.B but it adopted a phasedin simulcasting requirement as  S- xLfollows: by the sixth year from the date of adoption of the Fifth Report and Order, there is a 50 percent  x=simulcasting requirement; by the seventh year, a 75 percent simulcasting requirement; and, by the eighth  xyear, a 100 percent simulcasting requirement, which will continue until the analog channel is terminated  S5-and the analog spectrum returned.pH52 {O -  y#X\  P6G;H;P#эxId. at 12832. We declined to impose a simulcasting requirement in the early years of the transition to afford  xibroadcasters flexibility to program their DTV channels to attract consumers, especially during the critical launch  xiphase of DTV. We noted that a simulcast requirement near the end of the transition period will help ensure that  xconsumers will enjoy continuity of free overtheair program service when we reclaim the analog spectrum at the  xconclusion of the transition period. It might be difficult to terminate analog broadcast service if broadcasters show  {Os -programs on their analog channels but not on their digital channels. Id. at 1283233.p  S- x %38. Petitions: Include Simulcasting Target Dates in Periodic Reviews. MSTV contends that although  xthe simulcasting phasein is based on the transition end date of 2006, the Commission may change this  xdate. Therefore, MSTV urges the Commission to expressly include simulcasting target date requirements  xin its biennial review of the DTV transition. MSTV contends that this will ensure that simulcasting  xrequirements remain tied to consumer acceptance of DTV, and broadcasters have the flexibility to program  S-their DTV channels to best attract the public to DTV during the early stages of the transition.lI0 2 yO-#X\  P6G;H;P#эxMSTV Petition at 48.l  Sj - x &39. Limited Simulcasting Exemption for Public TV Stations. AAPTS/PBS contends that public  xstations may be adversely affected by the partialtofull simulcasting requirement, as well as by the  xNrequirement that the digital channel operate during the same hours as the licensee's NTSC station.  xAccording to AAPTS/PBS, these requirements effectively impose a minimum operating requirement on  xthe DTV station. It therefore advocates that the Commission not require public stations to simulcast their  x[NTSC programming on their DTV stations, because that will effectively require that the licensee operate  x-the DTV station whenever the NTSC station is operating. AAPTS/PBS instead urges that the Commission  x]apply the simulcast requirement only during the hours when a licensee operates the DTV station.  xAAPTS/PBS notes that for many public stations, the power requirements for operating a DTV station  xwhenever their NTSC station is operating (which is often 18 hours a day) will exceed their financial  xresources and may chill their ability or willingness to build a DTV station in the first place. Since there  xyare no minimum operating requirements for noncommercial TV stations, according to AAPTS/PBS, these  x\two DTV operation requirements "could have the perverse result of providing an incentive for public  S- xytelevision stations to reduce their NTSC operating hours in order to comply with these [two Fifth Report  S-and Order] requirements."tJ 2 yO#-#X\  P6G;H;P#эxAAPTS/PBS Petition at 2122.t  S<- x> '40. Accordingly, AAPTS/PBS urges that the Commission afford public stations the discretion to  xxdetermine how many hours a day to operate their DTV stations. AAPTS/PBS contends that public stations  xwill still offer DTV services during a reasonable portion of the day because they incurred the DTV  xNconstruction costs, and PBS will be delivering HDTV programming at least during prime time. In"P J,l(l(,,\"  xaddition, because public stations rely on audience contributions for their operating costs, they will have  xLan incentive to operate their DTV stations the maximum number of hours they can afford. AAPTS/PBS  S- xtherefore contends that this proposal will not adversely affect the transition to DTV.iK2 {O-#X\  P6G;H;P#эxId. at 22. i If a public station  xoperates its DTV station fewer than the number of hours required to meet the simulcast percentage, the  S4-licensee should be required to simulcast for the entire time the DTV station is operating.hL4Z2 {O.-#X\  P6G;H;P#эxId. at 23.h  S- x^ (41. Discussion: Periodic Review. We agree with MSTV that we should expressly include  S- x[simulcasting requirements in our periodic review.?M2 {O' -  k#X\  P6G;H;P#эxIn the Fifth Report and Order, we specifically stated that we would include the "proper application of the  {O -simulcast requirement" in our periodic reviews. Fifth Report and Order at 12856.? As discussed at   200645 , below, Congress now requires  xus to reclaim the analog spectrum by December 31, 2006 and to grant extensions of that date to stations  S5- xunder circumstances specified in the statute. We will conduct a periodic review of the progress of DTV  xevery two years until the cessation of analog service. In these reviews, we will address any new issues  xyraised by technological developments, necessary alterations in our rules, or other changes necessitated by  S - xunforeseen circumstances.nN H2 {O-#X\  P6G;H;P#эxId. at 1285657.n In the Fifth Report and Order, we noted that our decisions were, in some  Sj - xrespects, necessarily preliminary.aOj 2 {O-#X\  P6G;H;P#эxId.a We believe, therefore, that the periodic review will permit us to make whatever adjustments will be required, including any needed adjustments to simulcasting requirements.  S - x )42. Noncommercial Stations. We do not believe that it is necessary at this time to grant  xAAPTS/PBS's request to afford public stations discretion to determine how many hours a day to operate  Sk- xtheir DTV stations. We note that, in the Fifth Report and Order, we adopted a sixyear period for public  xstations to construct their DTV facilities, the longest construction period for any category of DTV  xapplicant. We reiterate our beliefs, stated in that Order, that special relief measures may eventually be  xwarranted to assist public television stations to make the transition, that it would be premature at this time  xto determine what those measures might be, and that the specific nature of any special relief for public  Sm-stations is best considered during our periodic reviews.kPml 2 {Oy-#X\  P6G;H;P#эxId. at 12852.k  S-x 2. Licensing of DTV and NTSC Stations  S- x  *43. Background. In the Fifth Report and Order, we concluded that the NTSC and DTV facilities  xshould be licensed under a single, paired license. We stated that this will help both the Commission and  xbroadcasters by keeping administrative burdens down, and that it would allow us to treat the DTV license  xMand the NTSC license together for the purposes of revoking or not renewing a license. Therefore, we  xstated that once broadcasters have satisfied construction and transmission requirements, they will receive  S-a single, paired license for the DTV and NTSC facilities.kQ 2 {OA&-#X\  P6G;H;P#эxId. at 12834.k "p Q,l(l(,,j"Ԍ S- x +44. Petitions/Comments. The Department of Special Districts, San Bernardino County, California  x("San Bernardino") notes that the 1996 Act requires the Commission to condition the DTV license on the  x="require[ment] that either the additional license or the original license held by the licensee be surrendered  Sg- x[to the Commission for reallocation or reassignment (or both) pursuant to Commission regulation."nRg2 yO-#X\  P6G;H;P#эx47 U.S.C.  336(c).n San  xLBernardino argues that this condition should appear on the face of the instrument for all license renewals  xgranted after the start of 1998, consistent with the eightyear license term and the 2006 reversion date  S- xadopted in the Fifth Report and Order. San Bernardino adds that this will not prevent the Commission  xfrom fashioning appropriate public interest adjustments in the periodic DTV reviews, including extensions  Si-of the switch over and giveback target dates.wSiX2 yOa -#X\  P6G;H;P#эxSan Bernardino Petition at 45.w  S- x ,45. Discussion. We note that the 2006 reversion date is now statutory 2006 . After the adoption of the  S- x=Fifth Report and Order and the filing of the petitions for reconsideration, Congress enacted the Balanced  xBudget Act of 1997, which provides that "[a] broadcast license that authorizes analog television service  xmay not be renewed to authorize such service for a period that extends beyond December 31, 2006" unless  S8 - xthe Commission grants an extension based on specific criteria enumerated in the statute.rT8 2 yO-#X\  P6G;H;P#эx47 U.S.C.  309(j)(14).r We believe that  xthis statutory language addresses any concerns San Bernardino may have regarding the reversion of one  xof the licenses of each station. Nevertheless, to ensure that all broadcasters are aware of their obligation  xto surrender either the original license or the additional license pursuant to Commission regulation, we will  Sl- xplace on all broadcast television licenses granted after December 31, 1998,@Ulx2 yO-  #X\  P6G;H;P#эxThis provision is not relevant until after December 31, 1998, because Section 307(c) of the Communications Act of 1934, as amended, 47 U.S.C.  307(c), sets an eight year maximum on broadcast television license terms.@ an express condition requiring  xreturn of one of the two 6 MHz channels at the end of the transition period. We will impose such a condition on all renewals granted until the transition period has ended.  S- E. Application/Construction Period  S:- x -46. Background. In the Fifth Report and Order, we announced that we would apply a streamlined  xthreestage application process to the group of initially eligible analog permittees and licensees allotted  S- xa paired channel in the DTV Table of Allotments. In the Fifth Report and Order itself, the Commission  x.completed Stage 1, the initial modification of the license for DTV, by issuing DTV licenses to all parties  Sp- xzinitially eligible to receive them.~Vp2 {O-#X\  P6G;H;P#эxFifth Report and Order at 12838.~ Before initial DTV licensees can commence construction, however,  S=- xwe required that they file an application for a construction permit.W=b 2 {O?"-  #X\  P6G;H;P#эxSince the release of the Fifth Report and Order, the Mass Media Bureau has already begun to act upon such applications. We stated that we would treat the  xconstruction application, the second stage, as a minor change application, which does not require a"  W,l(l(,,"  S- x.showing of financial qualifications.X2 {Oh-  #X\  P6G;H;P#эxThe Fifth Report and Order stated that we would later issue a Public Notice providing additional details  x=as to how we will process DTV applications. This Public Notice was released on October 16, 1997, after the  {O- xdeadline for filing petition for reconsideration of the Fifth Report and Order. It sets forth the requirements an  xZapplication must meet to be considered routine, and it describes in detail the procedural rules that will govern the  {O- xJprocessing of DTV construction permit applications. Public Notice 77129 (Oct. 16, 1997) (DTV Processing Public  {OV- xANotice).PUBLIC NOTICE It may be downloaded from our web site, at http://www.fcc.gov/Bureaus/Mass_Media/ Public_Notices/TV_Notices/pnmm7208.txt. We observed that the DTV construction permit application would  xnot constitute a change in frequency, but merely the implementation of the initial DTV license on a  S- xchannel assigned in the Sixth Report and Order.Y2 {OJ -#X\  P6G;H;P#эxFifth Report and Order at 12840, n. 159. In the third stage, upon completion of construction,  Sh- xthe permittee may commence program tests upon notification to the Commission, provided that an  S5-application for a license to cover the construction permit for the DTV facility is timely filed.~Z52 yOw -  #X\  P6G;H;P#эxPursuant to Section 1.68(a) of the Commission's rules, 47 C.F.R.  1.68(a), the Commission will grant the  xapplication where it finds that "all the terms, conditions, and obligations set forth in the application and permit have  x,been fully met, and that no cause or circumstance arising or first coming to the knowledge of the Commission since  xthe granting of the permit would, in the judgment of the Commission, make the operation of such station against the public interest."~  S-x 1. Financial Qualifications  Si- xk .47. Petitions/Comments. MAP argues that the Commission should have required broadcasters to  x demonstrate their financial qualifications as a condition of awarding an initial DTV permit or license.  xMAP notes that the Commission's classification of an application for DTV construction permit as a minor  x.change means that the applicant is not required to demonstrate its financial qualifications. MAP asserts  xlthat this decision threatens to delay the institution of DTV service because financially unqualified  Sj -applicants may warehouse awarded spectrum or simply be unable to construct DTV facilities.n[j R 2 yO\-#X\  P6G;H;P#эxMAP Petition at 1213.n  S - xk /48. MAP also argues that the conversion to DTV is not a change in facilities, but instead involves  xyissuing a new construction permit and license to each existing broadcaster making the transition. Because  xthe license is new, according to MAP, the Commission is statutorily required to determine whether the  xbroadcaster is qualified to receive it. In this regard, MAP cites Section 308(b) of the Communications  xzAct of 1934, as amended, which states that "[a]ll applications for station licenses, or modifications or  xrenewals thereof, shall set forth such facts as the Commission may by regulation prescribe as to the ...  S- x=financial ... qualifications of the applicant to operate the station."\2 {OT!-#X\  P6G;H;P#эxId. at 13; MAP Reply to Oppositions at 8, citing 47 U.S.C.  308(b). In the alternative, MAP asserts that  xeven if the DTV applications are categorized as a change, the Commission's classification of them as  x[minor is inconsistent with Section 73.3572(a)(1) of the Commission's Rules. That provision of the rules  xdefines a major change as one involving a change in frequency or community of license. MAP disputes  S- xthe Commission's assertion in the Fifth Report and Order that "the change involved in constructing and  xkoperating a DTV facility does not constitute a change in frequency, merely the implementation of the"t\,l(l(,,%"  S- xLinitial DTV License on a channel assigned in the Sixth Report and Order."]2 {Oh-#X\  P6G;H;P#эxMAP Petition at 13, n. 6, citing Fifth Report and Order at 12840, n. 159. MAP states that, regardless  xof whether broadcasters use their new frequency for the current analog or future digital transmissions, they will change their frequencies and be subject to Section 73.3572(a)(1).  S5- x 049. Finally, MAP argues that examining the financial qualifications of broadcasters before granting  x them DTV licenses is consistent with the Congressional directive to limit initial eligibility to existing  S- xlicensees and permittees. Specifically, MAP states that the 1996 Act merely states who is eligible to apply  S- xzfor an initial DTV license, not who is qualified to have it granted. If Congress had wanted to mandate  Sk- xMthat all incumbents receive DTV licenses, according to MAP, it would not have used the term "initial  xjeligibility." Thus, MAP concludes that the 1996 Act does not supersede the Commission's obligation to  xlook at an applicant's "citizenship, character, and financial, technical, and other qualifications," as required  S-by Section 308 of the Communications Act, as amended.n^Z2 yO -#X\  P6G;H;P#эxMAP Petition at 1314.n  Sm - x 150. MAP's petition is opposed by MSTV and ALTV. MSTV states that existing broadcasters can  x.be relied upon to construct DTV based on their track record and their need to transition their businesses  xto the digital world, given the mandatory cessation of NTSC broadcasting and the dictates of the  xmarketplace. MSTV and ALTV argue that requiring existing broadcasters to demonstrate their financial  S - x=qualifications would simply delay the DTV licensing process and the onset of digital television._ 2 yO+-#X\  P6G;H;P#эxMSTV Opposition at 34; ALTV Opposition at 6. MAP  xyreplies that the concerns about delay are exaggerated, and that they ignore the public's right to participate  S;-in the licensing process.g`;z2 yOU-#X\  P6G;H;P#эxMAP Reply at 9.g  S- x 251. ALTV also argues that, because of the accelerated construction schedule, there is only a limited  xjrisk in assuming that DTV applicants are financially qualified. In addition, according to ALTV, requiring  xjDTV applicants to demonstrate their financial qualifications would needlessly expose highly proprietary  S<- xstation financial information to competitors.ma< 2 yO-#X\  P6G;H;P#эxALTV Opposition at 6.m In response, MAP asserts that the application process for  xa new broadcast station has always been public, and both the public and the Commission have had the  xright to know whether an applicant is financially qualified. MAP adds that the financial disclosures would  x0be no more intrusive than disclosures broadcasters already make to Wall Street investors or other  Sp-creditors.ibp2 yO -#X\  P6G;H;P#эxMAP Reply at 89.i  S - x 352. Finally, ALTV notes that an application filed to warehouse spectrum would be an abuse of  xprocess and a misrepresentation that would lead to sanctions against the applicant. ALTV asserts that this  S- xdeterrent sufficiently addresses MAP's concerns.mc* 2 yOn%-#X\  P6G;H;P#эxALTV Opposition at 6.m However, MAP argues that reliance on a casebycase  xLenforcement policy would add more cost and uncertainty to the DTV licensing process than a disclosure  xrule. Specifically, MAP states that financially unqualified parties would have already held digital licenses"> c,l(l(,,K"  xjfor years before the Commission could determine whether they were warehousing spectrum. MAP adds  xLthat warehousing parties may also have assigned their licenses before their lack of financial qualifications  xcould be discovered. Finally, MAP states that a petition to deny an application for such an assignment  xor for a renewal would be difficult to pursue, because there would be no financial information available  S4-to the petitioner or the Commission to support the petition.hd42 yO-#X\  P6G;H;P#эxMAP Reply at 10.h  S- x? 453. Discussion. We decline to reconsider the streamlined licensing process we established for  S- ximplementing the DTV allotments made in the Sixth Report and Order, under which we do not require  xa showing of financial qualifications. We continue to believe that the DTV construction permit  xMapplications related to these allotments should be treated as minor change applications. They do not  xinvolve new stations or changes in frequency as these terms have traditionally been used for the purposes  xMof Section 73.3572(a)(1) of the Commission's Rules to define a major change. This is not an instance  xwhere an individual broadcaster has devised its own plan to change its channel or community of license  xand is requesting Commission authorization of that specific change. To the contrary, in order to  x[implement the transition to DTV that we have found will serve the public interest, each application is to  S - ximplement a specific DTV channel allotment expressly set forth by the Commission in the Sixth Report  S -and Order for use by the applicant, the incumbent analog broadcast licensee, as contemplated by Congress.  Sm- xy 554. We also conclude that treating DTV applications like applications for minor changes is consistent  xwith Section 308(b) of the Communications Act. Section 308(b) authorizes the Commission to exercise  x[its discretion when determining whether a financial qualifications showing requirement for certain classes  xof applications would serve the public interest. As noted above, Section 308(b) requires that "[a]ll  S- xkapplications for station licenses, or modifications or renewals thereof, shall set forth such facts as the  So- xCommission may by regulation prescribe as to the ... financial ... qualifications of the applicant to operate  S=- xkthe station." 47 U.S.C.  308(b) (emphasis supplied).e=X2 {O5-#X\  P6G;H;P#эxSee also Black Citizens for a Fair Media v. FCC, 719 F.2d 407, 412 (D.C Cir. 1983). Consistent with this statutory language, the  xyCommission long ago made a public interest determination that applicants for minor changes in broadcast  S- x>facilities (i.e., analog television and radio) do not need to provide information regarding their financial  S- xLqualifications.{f2 yO/-  #X\  P6G;H;P#эxSection III of the Commission's application form for new or modified broadcast facilities, FCC Form 301,  xrequires the applicant to provide information regarding its financial qualifications. The instructions to that form state  xthat all applicants must be financially qualified to effectuate their proposals. However, the directions further state:  x"DO NOT SUBMIT Section III if the application is for changes in operating or authorized facilities." (emphasis in original).{ MAP does not assert that this Commission policy is inconsistent with Section 308(b).  xFurther, MAP does not state why the Commission's public interest determinations regarding analog  xtelevision application forms and DTV license application forms should be considered differently for the purposes of Section 308(b). Accordingly, we find MAP's Section 308(b) argument unpersuasive.  S- x 655. As we emphasized in the Fifth Report and Order, one of our primary goals is to achieve a rapid  St- xand efficient transition from analog to digital broadcast television.gt2 {O$-#X\  P6G;H;P#эxE.g., Fifth Report and Order at 1281112. We continue to believe that the  xLapproach we have taken will foster swift and widespread construction and operation of digital television  xstations with minimal risk of spectrum warehousing or disuse. As noted by ALTV and MSTV, a number  xkof factors will encourage broadcasters to construct their DTV stations quickly. These factors include", g,l(l(,,"  xzstations' need to compete with other video program providers, who are also delivering or preparing to  xdeliver digital video programming; the planned cessation of NTSC broadcasting in 2006; and the  xopportunity to offer a variety of ancillary services in addition to the one mandatory, overtheair video programming service.  S- x 756. In addition, as we discussed in the Fifth Report and Order, we will grant requests for extensions  S- xof time within which to construct DTV facilities only if they meet specific, delineated criteria.nh2 {O7-#X\  P6G;H;P#эxId. at 1284142.n We will  xgrant an extension of the applicable deadline where a broadcaster has been unable to complete construction  xdue to circumstances that are either unforeseeable or beyond the licensee's control, and only if the licensee  S6- xyhas taken all reasonable steps to resolve the problem expeditiously. As we stated in the Fifth Report and  S- xOrder, "such circumstances include, but are not limited to, the inability to construct and place in operation  xya facility necessary for transmitting DTV, such as a tower, because of delays in obtaining zoning or FAA  S - xapprovals, or similar constraints, or the lack of equipment necessary to transmit a DTV signal."ni Z2 {O -#X\  P6G;H;P#эxId. at 1284142.n As a  Sl - xfurther guarantee that valuable DTV spectrum would not be warehoused, the Fifth Report and Order noted  xzthat we do not anticipate that the circumstance of "lack of equipment" would include the cost of such  S -equipment.nj 2 {O-#X\  P6G;H;P#эxId. at 1284142.n  S -x 2. Construction Schedule  S;- xM 857. Background. The Fifth Report and Order adopted a construction schedule for DTV facilities.  x Affiliates of the top four networks (ABC, CBS, Fox and NBC) must build digital facilities in the ten  xlargest television markets by May 1, 1999. SCHEDULE  Affiliates of those networks in the top 30 television markets,  S- xnot included above, must construct DTV facilities by November 1, 1999.kZ~2 yO-  #X\  P6G;H;P#эxWe observed that within the top 30 markets, there are individual television markets where ABC, CBS, Fox,  xwor NBC has more than one affiliate. In such instances, we determined that the May 1, 1999, and November 1, 1999  {OQ-construction requirement applies to the station with the largest audience share. Id. at 12841, n. 163. All other commercial stations  xmust construct DTV facilities by May 1, 2002. All noncommercial stations must construct their DTV  S=- xfacilities by May 1, 2003.l=2 {O}-  #X\  P6G;H;P#эxThe Fifth Report and Order also noted that 24 stations in the top ten markets have voluntarily committed  xiin writing to the Commission to building DTV facilities within 18 months, i.e., by November 1, 1998. We asked  xthese latter 24 stations to file reports at sixmonth intervals, beginning on November 1, 1997, stating that their plans  xto meet these deadlines are on schedule or specifying any difficulties encountered in attempting to meet these  {O -deadlines. Id. at 12841. As discussed above, we delineated specific criteria pursuant to which we would grant requests for extensions of time within which to construct.  S-General Issues.  S>- x 958. Petitions/Comments. Several petitioners request reconsideration of the construction schedule.  xFor example, Cordillera Communications ("Cordillera"), which intends to construct nine DTV stations,  x{requests an extension of the deadlines or, in the alternative, relaxation of the standards for granting  xextensions. According to Cordillera, the full implementation of DTV will take longer than the tenyear"T l,l(l(,,k"  xperiod the Commission has established. Cordillera cites the time needed to acquire a tower site, construct  xLa tower in compliance with local and federal regulations, acquire equipment to provide maximum service,  x.and evaluate the impact of DTV on its viewers who receive its NTSC signals via translator. It adds that  xmodifying the construction schedule will prevent the Commission from needlessly expending resources  S4-on processing extension applications.sm42 yO-#X\  P6G;H;P#эxCordillera Petition at 45.s  S- x :59. Discussion. We do not believe that it would serve the public interest to extend the construction  S- x/timetable established in the Fifth Report and Order. If a broadcaster does not complete construction  x[within the time period contemplated by the current timetable, it may request an extension of time within  xwhich to construct, as noted above. The criteria we use to determine whether grant of an extension would  S- xserve the public interest adequately address the concerns raised by Cordillera.rnX2 yO -#X\  P6G;H;P#эx47 C.F.R.  73.3534(b).r In addition, arguments  xkrelated to zoning are more relevant to our ongoing proceeding considering the alleged impact of delays  S -to DTV station construction caused by local zoning regulations.o 2 {O%-  .#X\  P6G;H;P#эxNotice of Proposed Rule Making in MM Docket No. 97182, 62 Fed. Reg. 46241 (September 2,1997). The comment cycle ended on December 1, 1997.  S7 -Effect on Radio Stations.  S - x ;60. Petitions/Comments. National Public Radio ("NPR") requests that we extend the construction  S - xschedule. It claims that the current timetable, combined with the allotment, in the Sixth Report and Order,  x=of DTV channels on the basis of current transmitter sites and replication of existing NTSC service areas,  xthreatens to create a shortage of available tower capacity for DTV antennas. As a result, NPR claims, a  xsubstantial number of public radio stations will be forced to relocate their transmitting antennas at a significant financial cost and possible loss of signal coverage areas. NPR asserts that:  Sm- ~ Xx"[a]ccording to the FCC's FM and TV engineering database, ... 18% of the total number  Pof FM stations... are located at the same geographical coordinates as at least one television  antenna. Hundreds if not the majority, of these FM antennas are colocated with TV  antennas and, in many instances, will be forced to relocate as a result of the increased  weight and load associated with the new DTV equipment. ... Because towers cannot take  #on new equipment when they have reached the limits of their loadbearing capacity, some  Bexisting broadcast antennas and associated equipment will have to be relocated. Many  S-FM radio stations will likely fall into this category."pB2 yO-  #X\  P6G;H;P#эxNPR Petition at 2, quoting the May 30, 1997 petition for proposed rule making filed by NAB and MSTV.  {O -See note  TOWERS4 , above.   xNPR asserts that this analysis applies to noncommercial, as well as commercial, radio stations. It adds  xthat several FM stations have already been informed that they will have to relinquish their tower space  S<-to make way for a DTV antenna.jq<2 yOx%-#X\  P6G;H;P#эxNPR Petition at 3.j  S- xz <61. Discussion. We decline to alter the construction schedule as requested by NPR. First, NPR's", q,l(l(,,"  xclaim that a significant number of educational FM stations will have to relinquish their tower space and  xpay for a costly relocation of their transmitting antennas is, at this time, speculative. NPR provides no  xdocumentary evidence to support its claim that several FM stations have already been informed that they  xjwill have to relinquish their tower space in order for the tower owner to make room for DTV equipment.  xIt also provides insufficient information regarding the cost or time period of such circumstances. We also  xnote that NPR does not distinguish between commercial and noncommercial FM stations in its analysis  xof the Commission's FM and TV databases. As a result, the record lacks any information as to how many  xof the FM stations discussed by NPR are noncommercial FM stations. Thus, NPR has not demonstrated  xat this time that the construction schedule will have any undue negative impact on a significant number of public radio stations. We can revisit this issue, if warranted, during the periodic DTV reviews.  S-Issues Relating to Noncommercial Television Stations.  Si - x =62. Petitions/Comments. AAPTS/PBS states that public television stations with both NTSC and DTV  xchannels outside the core channels should be permitted to defer DTV construction until they have a  S - xpermanent DTV channel (i.e., the end of the transition period, when they have a core channel). According  x\to AAPTS/PBS, 13 public television stations have both their analog and their digital channels outside  xchannels 246, and 13 have channels outside channels 751. It adds that "over half of those stations in  xeach case have operating budgets of less than $5 million. Under the current rules, they not only will have  xto build two DTV stations, but will have to migrate their viewers to a new channel at the end of the  S- xtransition."tr2 yOm-#X\  P6G;H;P#эxAAPTS/PBS Petition at 1415.t AAPTS/PBS states that since the Commission has not yet determined what the core  xchannels will be, these public TV stations do not know what that new channel will be at the end of the  xtransition period or when they will learn of the assignment. AAPTS/PBS asserts that this uncertainty  Sl-makes planning and finding funding for the transition difficult.hslX2 {Od-#X\  P6G;H;P#эxId. at 15.h  S- x >63. AAPTS/PBS's proposal is supported by Motorola as a way for noncommercial educational  xstations to alleviate conversion costs. According to Motorola, the proposal "recognize[s] the difficult  x.economics involved with a two step migration to digital service. More importantly, [it] could accelerate  Sm-the recovery of UHF channels 6069 for public safety or other wireless use." t\m2 yO-  |#X\  P6G;H;P#эxMotorola Comments (July 18, 1997) at 5. The Commission has recently concluded a rule making  {O- xhproceeding reallocating UHF channels 6069 for both broadcast and nonbroadcast services. Report and Order in ET  {O-Docket No. 97157, FCC 97421 (released January 6, 1998) ("Channels 6069 Reallocation Report and Order")OET NOTICE.  S- xM ?64. Discussion. We decline to adopt the modifications to the construction schedule proposed by  xAAPTS/PBS. We do not believe that such modifications are necessary. Because we recognized the  xfinancial difficulties often faced by noncommercial broadcasters, the construction timetable we adopted  Sn- xin the Fifth Report and Order provided noncommercial stations a sixyear period within which to construct  xtheir DTV facilities, the longest construction period allotted to any category of DTV applicant. In the  S - xjFifth Report and Order, we also stated that special relief measures may eventually be warranted to assist  xpublic television stations to make the transition, but we concluded that it was premature to determine what  xthose specific measures should be. We stated then, and we continue to believe, that determining the  xspecific nature of whatever special relief may be needed for noncommercial educational broadcasters is"qt,l(l(,,!"  S- xbest considered during our periodic reviews.~u2 {Oh-#X\  P6G;H;P#эxFifth Report and Order at 12852.~ AAPTS/PBS has not demonstrated that its concerns  xLregarding public television stations with both NTSC and DTV channels outside the core channels cannot  S- xjadequately be addressed in that context. Nonetheless, as will be discussed in the Memorandum Opinion  Sh- xand Order on Reconsideration of the Sixth Report and Order, we will consider, on a casebycase basis,  xrequests to defer construction and/or to make an immediate transition to digital when filed by those stations that have both analog and digital channels outside the core.  S-Satellite Stations.  S7- x{ @65. Petitions/Comments. Hubbard Broadcasting, Inc. ("Hubbard") seeks clarification as to the  xapplication of the construction schedule to satellite stations. Hubbard is the licensee of KSTPTV, an  xABC affiliate in the top 30 market of Minneapolis/St. Paul, Minnesota, as well as two satellite stations  xlicensed to Alexandria and Redwood, Minnesota. As Hubbard points out, if a network has more than one  xaffiliate in a top 30 market, only the one with the largest audience share is subject to the expedited  x\schedule for networks. Parent station KSTP, as a network affiliate in a top 30 market, is subject to a  xNovember 1, 1999 construction date. Hubbard asks how the construction schedule applies to satellite  xstations such as its own that transmit the same network programming as their parent, not by virtue of a  S -network affiliation agreement, but by rebroadcast consent granted by the network.pv Z2 yO-#X\  P6G;H;P#эxHubbard Petition at 23.p  S9- x A66. Discussion. We clarify that the construction exception for samemarket affiliates applies to  xysatellite stations. Thus, with regard to Hubbard's particular example, the two satellite stations are located  xwithin the same market as their parent and, according to Hubbard, broadcast the programming of the same  xnetwork. Under our rules, if a network has more than one affiliate in a top 30 market, the station with  Sm- xthe smaller audience share?wm2 yO-  #X\  P6G;H;P#эxBecause satellite status is granted to a station only in areas that cannot support a full service television station, it is extremely unlikely that a satellite station would have a larger audience share than its parent.? is not subject to the expedited schedule for networks affiliates. Therefore,  xregardless of the stations' satellite status or type of network contract being used, Hubbard's two satellites  xare not subject to an accelerated construction schedule. Instead, they are subject to the fiveyear  S-construction deadline.xB2 yO-  z#X\  P6G;H;P#эxIf viewership information were collected only on the basis of the combined viewership of both the parent  xstation and its satellite, then the two stations could arguably be considered as a unit for the purposes of the  xaccelerated construction schedule. However, this is not the case. Nielsen gathers average daily and weekly  {O- xcirculation (i.e., viewership) information for parent stations and satellite stations separately. See, e.g., Television and  {O-Cable Factbook, Vol. 65 (1997).  Sn-Voluntary Commitment of Viacom.  S- x B67. Petitions/Comments. Viacom notes that affiliates of the four major networks in the top 10  S- x-markets are subject to a May 1, 1999 construction deadline.y 2 {Ok%-#X\  P6G;H;P#эxFifth Report and Order at 1284041. Moreover, several stations have volunteered" y,l(l(,,{"  S- xto complete construction by November 1, 1998.kz2 {Oh-#X\  P6G;H;P#эxId. at 12841.k Viacom states that it has six stations in the top ten  xmarkets, all of which are UPN affiliates and, therefore, subject to the longer May 1, 2002 deadline.  xHowever, Viacom volunteers to commit to an accelerated construction of DTV facilities in two of these  xmarkets (to as early as the 18month voluntary deadline), on the condition that the Commission use the  xempirical data generated by those two markets and, if necessary, amend the DTV Table on the basis of  S-that data./{$Z2 yO-  #X\  P6G;H;P#эxViacom Opposition at 19. The empirical data would be intended to address a number of technical issues  {O- xraised in Viacom's petition to reconsider the Sixth Report and Order. Viacom's concerns generally relate to the  xability of UHF stations to compete against VHF stations in the digital world. We will address these concerns on  {OU -reconsideration of the Sixth Report and Order./  S- x C68. Discussion. We commend Viacom for its willingness to serve the public by accelerating the  xzconstruction of two of its DTV stations, although it would not be appropriate for the Commission to  xjaccept conditions on Viacom's voluntary commitment. However, we note that, once DTV stations begin  xoperating, we expect to be made aware of interference or other problems attributable to their technical  x.characteristics, such as frequency and site location. Indeed, we would expect to be informed of problem  xareas, to enable us to consider appropriate technical adjustments. Accordingly, we welcome Viacom's  xcommitment to the rapid construction of two of its stations in top ten markets. In addition, in our  S6 - x\Memorandum Opinion and Order on Reconsideration of Sixth Report and Order, we will address the substance of Viacom's concerns, and make a number of amendments to the DTV Table of Allotments.  S -x 3. Processing Procedures   S8- x! D69. Background. In the Sixth Report and Order, the Commission allowed flexibility for DTV  xOfacilities to be built at locations within five kilometers of the reference allotment sites without  x/consideration of additional interference to analog or DTV service, provided the DTV facilities do not  S- xexceed the allotment reference HAAT and ERP values.|F2 {O-#X\  P6G;H;P#эxSixth Report and Order at 1463435. In the Fifth Report and Order, we noted that  xwe would expedite processing of construction permit applications that could correctly certify as to a series  xof checklist questions, which include whether the proposed facility conforms to the DTV Table of  xAllotments by specifying an antenna site within five kilometers of the reference allotment site. We noted  xour intent to grant a construction permit to such broadcasters within a matter of days and noted that other  S-applicants would be required to furnish additional technical information.E}2 {O-  #X\  P6G;H;P#эxFifth Report and Order at 12839; see also DTV Processing Public Notice, n. PUBLIC NOTICE88, above. Pursuant to the  yO-checklist, we have already granted 10 DTV applications. E  S<- x E70. Petitions/Comments. Costa de Oro TV ("Costa de Oro") asks the Commission to establish  xexpedited processing procedures for stations that need to relocate their transmitters due to the inability to  x\use their current sites. It argues that in crowded areas like Los Angeles, only a few mountaintops are  xavailable to be used for transmitter sites, and stations may not be able to find a new site within the five  Sp- xkilometer safe harbor established in the Sixth Report and Order. Costa de Oro also requests additional  xinformation as to how we intend to process applications that involve a site change of greater than five">2 },l(l(,,"  S- xkilometers.u~2 yOh-#X\  P6G;H;P#эxCosta de Oro Petition at 23.u Further, noting the Commission's statement, in the Fifth Report and Order, that we will  xbe able to process in only a few days' time those construction permit applications that certify to a number  xof technical issues and noting that applications requesting deviations will take longer to process, MSTV  xasks that the Commission give top processing priority to such applications in major markets, where many  xstations face expedited buildout schedules and where such applications may have an impact on equipment  S-purchases.lX2 yO-#X\  P6G;H;P#эxMSTV Petition at 43.l  S- x F71. Discussion. The October 16, 1997 Public Notice setting forth how DTV construction applications  Si- xwill be processed generally addresses issues such as those raised by the petitioners.i2 {O -#X\  P6G;H;P#эxSee n. PUBLIC NOTICE88, above. As we noted in the  S6- x-Fifth Report and Order, we intend to give processing priority to routine DTV applications, which are those  xMin which the applicant can certify compliance with several key processing requirements. We also are  xexpediting the processing of DTV applications in any of the television markets where broadcasters are  S - xsubject to an accelerated construction timetable (i.e., the top 30 markets). With regard to showings that  xa requested change is in compliance with the Commission's interference standards, all nonroutine DTV  S9 - x applications will be processed pursuant to the criteria adopted in the Sixth Report and Order and its reconsideration order, and as set forth in OET Bulletin No. 69.  S - x4. Selection of Permanent DTV Channel  S;- x. G72. Petitions/Comments. AAPTS/PBS petitions the Commission to require stations with both their  xNTSC and their DTV channel within the core to select their permanent channel several years before the  xend of the transition period, such as at the end of the construction period or, at the latest, a year after they  xLcommence operation. AAPTS/PBS argues that this would give public television stations with both their  xNTSC and their DTV channels outside the core substantial advance notice of their permanent DTV  xjchannel. AAPTS/PBS asserts that this would allow noncore stations a reasonable opportunity to select  xLtheir permanent channels. It adds that such noncore licensees should be protected and not be subject to  S-competing applications when they apply for their permanent DTV channels.tz2 yO-#X\  P6G;H;P#эxAAPTS/PBS Petition at 1516.t  Sp- x H73. Discussion. The issue of whether we should require stations with both channels within the core  S=- xto select their permanent channel early in the transition will be dealt with in the Memorandum Opinion  S - xand Order on reconsideration of the Sixth Report and Order. We take this opportunity to clarify that non xcore licensees will not be subject to competing applications when they apply for their permanent DTV channels.  S@-x 5. Immediate Transition  S- x I74. Petitions/Comments. In the Fifth Report and Order, we contemplated that each broadcaster  xwould operate its analog station while constructing its digital facilities, and then operate both facilities  xLupon the completion of construction for the duration of the transition. However, several parties request  xthat the Commission allow stations, at least under certain circumstances, to make an immediate and  xcomplete transition to DTV upon construction, so that they would not have to operate both digital and"  ,l(l(,,d#"  S- xanalog facilities.&2 {Oh-  y#X\  P6G;H;P#эxSee, e.g., North Dakota Broadcasters Association ("NDBA") Petition at 12; AAPTS/PBS Petition at 1821.  xThe parties generally refer to this as an "overnight switch" or a "hard switch." Several petitions relating to aspects  {O- xYof immediate transition that are not discussed in this section will be addressed on reconsideration of the Sixth Report  {O-and Order. For example, Meyer Broadcasting Company ("Meyer"), Reiten Television, Inc.  x("Reiten") and NDBA argue that, because of the transition's high cost to small market stations, the  xCommission should allow such stations to make an immediate transition from analog to digital, eliminating  Sg- xthe need for them to build additional facilities.g2 yO-#X\  P6G;H;P#эxReiten Letter (June 13, 1997); NDBA Petition at 12; Meyer Petition at 1. Meyer states that three of its five stations have been  xkassigned DTV channels that are outside of the core spectrum, and that it will be an excessive financial  xburden to purchase and install transmitters, line, and antennas for these channels to use only for four years.  xMeyer adds that the equipment would have no resale value because it will be for use outside of the core  S-spectrum.lF2 yO -#X\  P6G;H;P#эxMeyer Petition at 1.l  S5- x J75. AAPTS/PBS makes a similar argument for noncommercial, educational television stations, as a  xjway to compensate for their unique funding difficulties. It asserts that, in order to give needed flexibility  x=to smaller public TV stations, the Commission should allow public TV stations with both an NTSC and  xa DTV channel within the core to convert to DTV on their incore NTSC channel, rather than having to  xspend the money to build a separate DTV station. Such licensees would be required to make this decision  xby the end of the construction period, and the DTV channel would then be reclaimed by the Commission.  xThis will not undermine DTV development, AAPTS/PBS claims, since commercial stations will drive the  x\transition. In the alternative, AAPTS/PBS asks that the Commission consider individual requests by  x=stations to employ the immediate transition option where the licensee has been unable to raise the funds  Sj- xmto construct the DTV station or lacks the resources to operate two stations simultaneously.tj2 yO-#X\  P6G;H;P#эxAAPTS/PBS Petition at 1819.t  x/AAPTS/PBS's proposal to allow noncommercial stations to construct a DTV station on their NTSC  x-channel without constructing on the DTV allotment is supported by Motorola. Motorola asserts that such  xa policy would recognize the financial difficulties faced by public television stations in constructing and  xoperating a second station. In addition, Motorola claims that adoption of the proposal could accelerate  Sk-the recovery of UHF channels 6069 for public safety or other wireless use.kf 2 {Oq-  #X\  P6G;H;P#эxMotorola Comments (July 18, 1997) at 5. See also Channels 6069 Reallocation Report and Order, cited  yO;-at n. OET NOTICE116, above.  S- xk K76. MAP urges the Commission to prohibit a noncommercial educational station from making the  S- x instant transition before the end of the deadline for the return of NTSC channels (currently 2006). 2 {O2"-#X\  P6G;H;P#эxSee   200645 , above, citing the Balanced Budget Act of 1997, 47 U.S.C.  309(j)(14).  S-Otherwise, according to MAP, local viewers without DTV equipment may be disenfranchised.nR 2 yO$-#X\  P6G;H;P#эxMAP Opposition at 78.n  S9- x> L77. Discussion. We recognize both the economic challenges facing small market broadcasters and  xthe unique funding difficulties often experienced by noncommercial television stations. Indeed, we",l(l(,,"  S- xexplicitly considered these concerns in the Fifth Report and Order when we set the construction schedule  xand adopted the service rules. It is exactly because of the matters raised by the petitioners that  xcommercial small market broadcasters and all noncommercial broadcasters have a greater period of time  xwithin which to construct their facilities. As the network affiliates in the top 30 markets construct and  xbegin to operate their DTV stations, we expect the market to drive construction costs down to a level that  x/all commercial stations will be able to finance construction of their own facilities. This cost decrease should also assist noncommercial broadcasters.  Si- x M78. However, adoption of these proposals could undermine the simulcasting policy set forth in the  S6- xFifth Report and Order, a policy that is premised on the idea that each licensee will be operating an NTSC  x/and a DTV station until the end of the transition period. The simulcasting requirement is intended to  xensure that broadcasters provide substantially the same programming to all their viewers, regardless of  xwhether those viewers have acquired digital receiver equipment yet. Further, adoption of the proposals  x/could disenfranchise some viewers who watch noncommercial television by removing their option to  x[continue to watch NTSC television until the end of the transition period. Accordingly, we do not at this  xtime believe that adopting the above proposals of Reiten, NDBA, or AAPTS/PBS would serve the public  S - xinterest.\ 2 {O:-  #X\  P6G;H;P#эxAs noted above, and as will be discussed in the Memorandum Opinion and Order On Reconsideration of  {O- xthe Sixth Report and Order, we will consider, on a casebycase basis, requests by stations with both their analog and digital channels outside the core for permission to make an immediate transition to digital. However, we note that we can revisit this conclusion during any of our biennial DTV reviews, should a change in circumstances warrant.  S9- F. Recovery Date  S- xk N79. Background. In the Fifth Report and Order, the Commission established a target date of 2006  S- xfor the cessation of analog service.|2 yO--  M#X\  P6G;H;P#эxEarlier in this proceeding, the Commission made the preliminary decision to establish a recovery date 15  xZyears from the date of the adoption of an ATV system or the date a final Table of ATV Allotments is effective,  xwhichever is later. At the end of this period, all analog broadcast would cease, and the spectrum used for NTSC  xwould be returned to the Commission. The Commission emphasized that, given the uncertainties surrounding the  x,conversion process and the possible changes in the data on which it relied, setting the recovery date at 15 years was  {O- xnecessarily preliminary. Third Report/Further Notice, 7 FCC Rcd at 696465. Upon further reflection, in the Fifth  {O-Report and Order, we modified the recovery date, as described above. It stated that one of its overarching goals in this proceeding is the  x.rapid establishment of successful digital broadcast services that will attract viewers from analog to DTV  x[technology, so that the analog spectrum can be recovered. Accomplishment of this goal requires that the  xNTSC service be shut down at the end of the transition period and that spectrum be surrendered to the  x/Commission. The Commission noted that Congress had required it to condition the grant of a digital  S- xlicense on the Commission's recovery of 6 MHz from each licensee.0 2 {Or!-#X\  P6G;H;P#эxFifth Report and Order at 1284950, citing 47 U.S.C.  336(c). The Commission further stated  x=that it continued to believe that it is desirable to identify a target enddate of NTSC service, both to lend  x=certainty to the introduction of digital service by making clear to the public that analog television service  xwill indeed cease on a date certain, and to provide broadcasters and manufacturers with a defined planning  S- xhorizon that will help them gauge their business plans to the introduction of DTV. 2 {O8&-#X\  P6G;H;P#эxFifth Report and Order at 12850. The Commission  xLalso noted that it would conduct reviews of the progress of DTV every two years, which will allow it to"T ,l(l(,,\" monitor the progress of DTV and to make adjustments to the 2006 target, if necessary.  S- x> O80. Subsequent to the release of the Fifth Report and Order, in the Balanced Budget Act of 1997,  Sh- xCongress directed the Commission to reclaim the analog spectrum by December 31, 2006.h2 {O-#X\  P6G;H;P#эxSee   200645 , above. Congress  xalso required the Commission to grant an extension of that date to a station under a number of specific  S-circumstances cited in that statute.Z2 yO- @#X\  P6G;H;P#эXxThe Commission shall  SPECIFY extend the date described in subparagraph (A) for any station that requests  such extension in any television market if the Commission finds that: (i) one or more of the  stations in such market that are licensed to or affiliated with one of the four largest national  television networks are not broadcasting a digital television service signal, and the Commission  finds that each such station has exercised due diligence and satisfies the conditions for an extension  |of the Commission's applicable construction deadlines for digital television service in that market;  |(ii) digital-to-analog converter technology is not generally available in such market; or (iii) in any  market in which an extension is not available under clause (i) or (ii), 15 percent or more of the  television households in such market: (I) do not subscribe to a multichannel video programming  distributor (as defined in section 602) that carries one of the digital television service programming  channels of each of the television stations broadcasting such a channel in such market; and (II)  do not have either: (a) at least one television receiver capable of receiving the digital television  #service signals of the television stations licensed in such market; or (b) at least one television  1receiver of analog television service signals equipped with digital-to-analog converter technology  Ocapable of receiving the digital television service signals of the television stations licensed in such market.   {OD-Balanced Budget Act of 1997, adding new paragraph 47 U.S.C.  309 (j)(14)(B).   S- xy P81. Petitions. County of Los Angeles, CA ("Los Angeles") contends that the 2006 recovery deadline  x[should be shortened for NTSC and DTV stations between channels 6069 located in southern California,  xMwhich it argues is necessary to alleviate the severe spectrum shortages facing Los Angeles area public  xsafety agencies. According to Los Angeles, this will be particularly important if the Commission is unable  x/to eliminate any of the allotments between channels 6069 that affect public safety frequencies. Los  x.Angeles advocates that, at a minimum, the Commission should adopt a very firm deadline so that public  Sj -safety agencies can plan accordingly.sj 42 yO>-#X\  P6G;H;P#эxLos Angeles Petition at 12.s  S - xy Q82. San Bernardino objects to the 2006 recovery date, maintaining that too early a reversion date may  xjhurt viewers in rural areas dependent on traditional translator services. According to San Bernardino, the  x<Commission's computer channel selection process for DTV treated existing builtout TV translator systems  Sk- xsuch as San Bernardino's as though they did not exist.uk2 yO"-#X\  P6G;H;P#эxSan Bernardino Petition at 2.u San Bernardino argues that these rural locations,  xwhich are at or near full channel capacity, might lose one or two channels as the result of DTV allotments  xtransmitting in distant markets, and would find the additional loss of channels 6069 to be devastating.  xSan Bernardino argues that it is obvious, even if the technology were affordable and available, that such  x.community TV operators will not be able to double their systems and simulcast NTSC and DTV at any"T,l(l(,,"  S- xMtime during the transition.k2 {Oh-#X\  P6G;H;P#эxId. at 1516.k San Bernardino also argues that if many rural areas are unable to receive  x/a DTV signal throughout the transition, the residents (perhaps 24 million people) will not tolerate a  S- x"lights out" by a date certain for NTSC television.hZ2 {O-#X\  P6G;H;P#эxId. at 16.h Val Pereda ("Pereda") also objects to the 2006 date,  xcontending it will make existing NTSC television sets obsolete and require consumers to buy expensive  S4-DTV converters and sets.42 yO-#X\  P6G;H;P#эxLetter from Val Pereda to Chairman Reed Hundt, Federal Communications Commission (July 18, 1997).  S- x R83. Decision. As discussed above, the Balanced Budget Act requires us to reclaim the analog  x[spectrum by December 31, 2006, and has established specific circumstances under which we are to grant  xstations an extension of that date. Although we have discretion to set an earlier deadline, we decline to  xgrant in this proceeding the request of Los Angeles for an earlier recovery deadline for NTSC and DTV  S- xstations between channels 6069. On reconsideration of the Sixth Report and Order, we are making  x=adjustments to the DTV allotments, as suggested by MSTV, that will make some spectrum available for  S - xpublic safety in the southern California area. We have issued a Notice in another proceeding |2 {O-#X\  P6G;H;P#эxSee Second Notice of Proposed Rulemaking in WT Docket No. 9686, 12 FCC Rcd 17706 (1997). to seek  Sj - xcomment on the service rules for this spectrum that Congress designated for public safety services.j 2 {O-#X\  P6G;H;P#эxBalanced Budget Act of 1997, adding new section 47 U.S.C.  337. We  xalso decline to grant the remaining petitioners' requests for reconsideration of the recovery date. Upon  S - xlreceipt of an appropriate petition, as specified in the Balanced Budget Act, 2 {OD-#X\  P6G;H;P#эxSee n. SPECIFY142, above. we will examine the circumstances of individual licensees and grant extensions to any that qualify.  Sk- G. MustCarry and Retransmission Consent  S- x S84. Background. In the Fifth Report and Order, the Commission decided to defer consideration of  xythe application of mustcarry and retransmission consent requirements to DTV to a future proceeding, in  xorder to obtain a full and updated record on these issues. We noted that, on March 31, 1997, the Supreme  xxCourt upheld the constitutionality of the mustcarry provisions contained in the Cable Television Consumer  S:- xProtection and Competition Act of 1992,:2 2 {O -#X\  P6G;H;P#эxP.L. 102385, 106 Stat. 1460, codified at 47 U.S.C.  521 et seq.Ģ in Turner II.: 2 {O -#X\  P6G;H;P#эxTurner Broadcasting System v. FCC, 117 S.Ct. 1174 (1997) ("Turner II"). The Turner II case, however, did not expressly  S-address the issue of mustcarry of digital television signals.~V 2 {O"-#X\  P6G;H;P#эxFifth Report and Order at 12853.~  S- x T85. Petition. Malrite Communications Group ("Malrite") urges the Commission to modify the "must  So- xcarry" rules to require cable system operators to adopt "appropriate" digital technologies, i.e., technologies  xcompatible with broadcast DTV standards. Malrite acknowledges, however, that there is a separate"=,l(l(,,"  S-proceeding that will allow the Commission to consider cable compatibility.2 {Oh-#X\  P6G;H;P#эxMalrite Petition for Reconsideration at 6, generally citing Fourth Further Notice/Third Inquiry.  S- x U86. Decision. We find that this reconsideration proceeding is not the proper forum in which to  xdetermine the applicability of the mustcarry and retransmission consent provisions in the digital context.  xAs discussed above, we intend to issue a Notice in a separate proceeding to seek additional comments  xregarding these issues. We believe that opening the record for further comments in that proceeding will  S- xallow us to reach a wellreasoned decision that will take into account the implications of the Turner II decision and the most current information with respect to mustcarry and retransmission of DTV signals.  S6- H. Sunshine Act  S- xy V87. Background. The Commission adopted both the Fifth Report and Order and the Sixth Report and  S - xOrder in the DTV proceeding at an open Commission meeting on April 3, 1997, and issued a Sunshine  xAgenda notice announcing the addition of these two items that morning. The Notice stated that, under  xSection 0.605(e) of the Commission's rules, "[t]he prompt and orderly conduct of the Commission's  S -Business requires this change and no earlier announcement was possible." Z2 yO-#X\  P6G;H;P#эxSunshine Agenda Notice (released April 3, 1997).  S - x W88. Petitions/Comments. The Community Broadcasters Association ("CBA") argues that the Sunshine  Sm- x[Act requires seven days public notice for matters to be discussed at an open meeting.m2 {O-#X\  P6G;H;P#эxCBA Petition at 78, citing 5 U.S.C.  552(e)(1). CBA notes that  xzthe Sunshine Agenda notice went out on March 27 and did not mention the DTV docket, and that the  S- xnotice adding the DTV items was not issued until the very day of the meeting.l|2 yO#-#X\  P6G;H;P#эxCBA Petition at 78.l As a result, CBA  xargues, there was effectively no advance notice that the DTV items would be discussed at the April 3,  S- xz1997 meeting as required by the Sunshine Act.a 2 {OM-#X\  P6G;H;P#эxId.a Asserting that this violated the Sunshine Act, CBA  Sn-claims that adoption of the DTV rules at the April 3, 1997 was invalid.in2 {O-#X\  P6G;H;P#эxId. at 89.i  S- x= X89. MSTV argues in opposition that the Sunshine Act was not violated as claimed by CBA. MSTV  xnotes that the Commission complied with the statutory exception in the Sunshine Act, which allows a  xymeeting without seven days prior notice if such late notice is necessary to conduct the agency's business.  xMSTV also observes that according to the legislative history of the Sunshine Act, when noncompliance  xis unintentional and does not harm the interests of any party, the underlying matter need not be  S -reconsidered.q 0 2 yO#-#X\  P6G;H;P#эxMSTV Opposition at 2728.q  S- x> Y90. Discussion. We find CBA's claim that we violated the Sunshine Act to be unwarranted. The Sunshine Act states that: "= ,l(l(,,K"Ԍ oXx[t]he subject matter of a meeting ... may be changed following the public announcement  required by this subsection only if (A) a majority of the entire membership of the agency  determines by a recorded vote that agency business so requires and that no earlier  oannouncement of the change was possible, and (B) the agency publicly announces such  S4-change and the vote of each member upon such change at the earliest practicable time.p42 yO-#X\  P6G;H;P#эx5 U.S.C.  552b(e)(2)p   xConsistent with these statutory requirements, the April 3, 1997 Sunshine Agenda Notice made such a determination by recorded vote.  S5- x Z91. In addition, Section 0.605(e) of the Commission's rules, 47 C.F.R.  0.605(e), makes clear that  x"[i]f the prompt and orderly conduct of agency business requires that a meeting be held less than one week  xOafter the announcement of the meeting, or before that announcement, the agency will issue the  xannouncement at the earliest practicable time." We made such a finding in our April 3, 1997 Sunshine  xkAgenda Notice. Further, CBA has not made a showing of how its or any other party's interests were  x=harmed by the short notice. Accordingly, we believe that there is no basis for a finding that the adoption of the DTV rules at the April 3, 1997 meeting was in violation of the Sunshine Act or otherwise invalid.  S - I. Other Issues  S7-x 1. Channels 6069  S- x  [92. Petitions/Comments. As noted above, the Commission has recently concluded a rule making  xzproceeding reallocating the spectrum from channels 6069 to a variety of services, including broadcast  Sk- xtelevision.kX2 {Oc-#X\  P6G;H;P#эxSee Channels 6069 Reallocation Report and Order, above. Motorola argues that all licensees should be able to decline to construct DTV facilities on  xLchannels 6069, provided they so inform the Commission, so the spectrum can be used for public safety  x-and other wireless purposes. Motorola seeks to have as few DTV channels as possible allotted to channels  x6069, to allow broadcasters that do have such allotments to change them, and to prevent the Commission  xfrom allotting future channels within that spectrum to DTV broadcasters. In this regard, Motorola states  xthat each additional DTV allotment between channels 60 and 69 would preclude the use of at least 6 MHz  xof spectrum by new wireless users for nearly 8000 square miles, potentially denying new wireless service  S-to millions of customers.2 yO-#X\  P6G;H;P#эxMotorola Comments (July 18, 1997) at 3, 56.  S- x \93. Discussion. We do not believe that allowing broadcasters to decline to construct DTV facilities  Sm- xon channels 60 through 69 would necessarily serve the public interest. In the Sixth Report and Order,  x[we allotted spectrum between channels 60 and 69 to the fewest number of broadcasters possible, in light  xof our thenpending proceeding examining whether that spectrum should be reallocated. As we noted in  S- xjthe Channels 6069 Reallocation Report and Order, "the operation of some TV and DTV stations in this  xspectrum is clearly required to facilitate the DTV transition: and the Budget Act provides for this, stating  x'[a]ny person who holds a television broadcast license to operate between 746 and 806 megahertz may  S=- x{not operate at that frequency after the date on which the digital television service transition period"= z,l(l(,,t""  S- xterminates as determined by the Commission.'"2 {Oh-  \#X\  P6G;H;P#эxChannels 6069 Reallocation Report and Order at  24 (emphasis in original) citing the Balanced Budget Act of 1997. Had other channels been available, they would have been allotted to these broadcasters.  Sh-x 2. LineofSight to City of License  S- x ]94. Petitions/Comments. Hammett and Edison observes that Section 73.625(a)(2) of the rules adopted  S- xyin the Fifth Report and Order requires DTV transmitter sites to be free of a major obstruction in the path  xover the principal community to be served, but does not require that lineofsight coverage of the principal  xcommunity be achieved. Petitioner indicates that the analog TV rule regarding selection of transmitter  x=site (Section 73.685) includes such a corollary requirement and suggests that this apparently inadvertent  x\oversight in the wording of Section 73.625(a)(2) be corrected by including the analog TV line-of-sight  xytext. Hammett and Edison states that while engineers may reasonably differ in their opinions whether an  S -obstruction is major, there is no ambiguity in the line-of-sight requirement. "2 yO`-  #X\  P6G;H;P#эxHammett and Edison further indicates that including this requirement would not mean that transmitter sites  xlacking line-of-sight to a station's principal community could not be proposed. Rather, it states that this requirement  x>would mean that an application requesting a site that lacks lineofsight coverage would need to include a  xJsupplemental engineering exhibit demonstrating that the terrain obstructions are not so severe as to prevent service  xto the principal community. Hammett and Edison also recommends that we revise the new DTV section of Form 301 accordingly. Hammett and Edison Petition at 10-11.  S8 - xj ^95. Discussion. We do not believe the requested change is warranted. In the Fifth Report and Order,  xwe attempted to minimize the DTV rules we created to the extent possible. In so doing, we did not  xinclude provisions that are admonitory, describing a recommended practice instead of a mandatory  xrequirement. The analog TV lineofsight rule indicates that the transmitter location "should be so chosen  Sm- x=that lineofsight can be obtained..." This is not mandatory language.m2 yO-#X\  P6G;H;P#эxSection 73.685(b) of the rules reads as follows:   XxLocation of the antenna at a point of high elevation is necessary to reduce to a minimum the shadow effect   on propagation due to hills and buildings which may reduce materially the strength of the station's signals.   In general, the transmitting antenna of a station should be located at the most central point at the highest   >elevation available. To provide the best degree of service to an area, it is usually preferable to use a high   antenna rather than a low antenna with increased transmitter power. The location should be so chosen that   line-of-sight can be obtained from the antenna over the principal community to be served; in no event should there be a major obstruction in this path. . . .(# For either NTSC or DTV, there  x[are situations where lineofsight coverage over the entire community is not possible. In such situations,  xlicensees should avoid obstruction to the extent possible. This should be clear from the "major  x.obstruction" rule we adopted, and we believe that it would not be reinforced by the requested additional  x]admonitory language. The decision to exclude it from the new DTV rule was not inadvertent, and  Sn-Hammett and Edison has not presented any justification for including it upon reconsideration.nj2 yOx$-  #X\  P6G;H;P#эxWe also point out that we adopted this DTV rule in the context of establishing minimum construction  xrequirements for DTV stations being built initially to provide less coverage than their associated analog TV station.  xIt was intended to correspond more to the analog TV requirements for minimum power and antenna height, rather  xthan to establish a universal DTV city grade service definition. Further evaluation of the requirements for service  xto a DTV station's community of license may be appropriate in other contexts, such as in a future rule making for"',l(l('"  xLDTV stations not associated with an analog TV station, or in a twoyear review consideration of establishing requirements for fully replicating an associated analog TV station's Grade B service contour. "n! ,l(l(,,d"Ԍ S-ԙx 3. Minor Corrections to the Rules  S- x _96. We also take this opportunity to correct errors in one of the rules adopted with the Fifth Report  Sh- xand Order. NEW RULESSpecifically, we are correcting Section 73.624(c) of the rules to delete the word  x"telecommunications," which was inadvertently included in that section, and change the word "license"  xto "licensee" in the last sentence of subsection (c)(2). This correction is included in Appendix B hereto.  S- xAs corrected, the rule is now consistent with paragraph 30 of the Fifth Report and Order. We are also  xzmaking a grammatical change in wording in the sentence of Section 73.624(c) that precedes subsection  Sk- x(1), in order to make it easier to read; this change has no effect on the substance of the rule.^k 2 {O+ -  |#X\  P6G;H;P#эxThe rule had stated that "no video broadcast signal provided at no direct charge to viewers shall be  {O - xiconsidered ancillary or supplementary" (emphasis added). It now reads that "any video broadcast signal provided  {O -at no direct charge to viewers shall not be considered ancillary or supplementary" (emphasis added). Finally,  xyto better explain the scope of discretion that is given to the DTV licensee, we are taking this opportunity  xto make a minor substantive change in subsection (c)(2), which states that licensees must retain control  xyover all material transmitted in a broadcast mode via the station's facilities. Specifically, we are clarifying  S - xthe rule by changing the phrase "the right to reject any material that it deems inappropriate or undesirable"  Sl -to "the right to reject any material in the sole judgment of the permittee or licensee.  "  S - III. CONCLUSION  S - x= `97. Our decisions in the Fifth Report and Order were designed to foster technological innovation and  xcompetition, while minimizing government regulation. We continue to believe that our decisions modified  xlherein will ensure that we will soon see a digital television service that provides a host of new and  xbeneficial services to the American public, while preserving free universal television service that serves  S-the "public interest, convenience, and necessity."  So-  IV. ADMINISTRATIVE MATTERS  S - x a98. Paperwork Reduction Act of 1995 Analysis. The decision contained herein has been analyzed  xwith respect to the Paperwork Reduction Act of 1995 and found to contain no new or modified form,  xinformation collection and/or recordkeeping, labelling, disclosure or record retention requirements on the public. This decision would not increase or decrease burden hours imposed on the public.  S - x b99. Supplemental Final Regulatory Flexibility Analysis. In the Fifth Report and Order, we conducted  xya Final Regulatory Flexibility Analysis ("FRFA") as required by the Regulatory Flexibility Act, 5 U.S.C.  S- x 603.\F2 {O!-  j#X\  P6G;H;P#эxFifth Report and Order at 1286778. This Supplementary Final Regulatory Flexibility Analysis incorporates  {OU"- xthe FRFA by reference, including its analysis of the number and types of small entities (i.e., commercial and noncommercial broadcast television station licensees) that will be affected by the rules and policies adopted. No petitions to reconsider the FRFA were filed. However, in its petition for reconsideration  Sr- xof the Fifth Report and Order, the Personal Communications Industry Association ("PCIA") asserted that  xthe FRFA's discussion of small businesses that would be affected by the DTV rules and policies should  S - x have included mobile licensees, not just other broadcast licensees.k j 2 yO'-#X\  P6G;H;P#эxPCIA Petition at 4.k Rejecting PCIA's argument, the" " ,l(l(,,"  xCommission notes that the FRFA's scope is limited to small entities directly subject to administrative  S-rules, rather than all entities that are indirectly affected by the results that any rules will produce.2 {O5-#X\  P6G;H;P#эx PCIA FRFA30, above, citing MidTex Elec. Coop v. FERC, 773 F.2d 327, 34243 (D.C. Cir. 1985).  Sg- x c100. Also, the Commission on its own motion has made three minor technical changes to the rules  S4- xzadopted in the Fifth Report and Order and one minor substantive change, which are explained at  NEW RULES96,  xabove. They do not affect the previous FRFA. These minor rule changes do not alter in any significant  xway the FRFA or the potential effect of the rules on any small entities that may be subject to them. The  xCommission shall send a copy of this Supplemental Final Regulatory Flexibility Analysis, along with this  Si- xMemorandum Opinion and Order on Reconsideration of the Fifth Report and Order, in a report to  xCongress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.  801  x(a)(1)(A). A copy of this Supplemental Final Regulatory Flexibility Analysis will be published in the  S-Federal Register. x` `  Sl -Ordering Clauses  S - x d101. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) & (j), 303(r), 307, 309, and 336  xof the Communications Act of 1934 as amended, 47 U.S.C.  154(i), (j) 303(r), 307, 309, and 336, this Memorandum Opinion and Order is adopted.  S:- x e102. IT IS FURTHER ORDERED that the Petitions for Reconsideration in this proceeding are  S-GRANTED to the extent described above, and are otherwise DENIED.Z2 yO-#X\  P6G;H;P#эxA list of petitioners and commenters is attached as Appendix A.  S- x0 f103. IT IS FURTHER ORDERED that the rule changes set forth in Appendix B SHALL BE  Sn-EFFECTIVE 30 days after publication in the Federal Register.  S - x g104. IT IS FURTHER ORDERED that, upon release of this Memorandum Opinion and Order, this proceeding is hereby terminated.  Sp-  S=- x` `  hh@FEDERAL COMMUNICATIONS COMMISSION x` `  hh@Magalie Roman Salas x` `  hh@Secretary"#,l(l(,, "  S-, APPENDIX A  S-< PETITIONING AND OPPOSING/COMMENTING PARTIES ă  S-Parties Filing Petitions for Reconsideration Abacus Television, Jose Luis Rodriguez, and the Video house, Inc. (Urban LPTV Parties) ABC, Inc. Acme Television Licenses of Oregon, L.L.C. Ad Hoc Group of 25 LowVHF Stations A.H. Belo Corporation (KINGTV, Seattle, WA and others) AK Media Group, Inc. Alaska Broadcast Television, Inc. Allbritton Communications Company Board of Trustees of American University (radio station WAMUFM, Washington, D.C.) John C. Anderson  S -Association for Maximum Service Television, Inc., the Broadcasters Caucus and other  0Broadcasters The Association of America's Public Television Stations and Public Broadcasting Service Association of Local Television Stations, Inc. Association of PublicSafety Communications OfficialsInternational, Inc. Benedek License Corporation (WHSVTV, Harrisonburg, VA) Blade Communications, Inc. Bowling Green State University Brazos Broadcasting Company (KBTXTV, Bryan, TX) The Brechner Family (WMDTTV, Salisbury, MD and KTKATV, Topeka, KS) Buck Owens Production Company, Inc. California Oregon Broadcasting, Inc. Cannell Cleveland L.P. (WUABTV, Lorain, OH) Capitol Broadcasting Company, Inc. Capital Television Corporation CBS, Inc. Central Michigan University Century Development Corporation (KGNSTV) Channel 49 Acquisition Corporation (WJCBTV) Channel 51 of San Diego, Inc. Chronicle Publishing Company (KRONTV, San Francisco, CA) Citadel Communications Co., Ltd. (WHBFTV, Rock Island, IL, WOITV, Ames, IA, and others) Clear Channel Television Licensees, Inc. (I) (KSASTV, Wichita, KS) Clear Channel Television Licensees, Inc. (II) (WAWSTV, Jacksonville, FL) Clear Channel Television Licensees, Inc. (III) (WXXATV, Albany, NY) Coast TV Community Broadcasters Association Community Television of Southern California (KCET) Cordillera Communications Inc. Cornell University  x\Cornerstone Television, Inc. (WPCBTV, Greensburg, PA, and WQEDTV, Pittsburgh (WQEXTV, Pittsburgh, PA) Cosmos Broadcasting Corporation"='$,l(l(,,+"ԌCosta de Oro Television, Inc. Davis Television Topeka, LLC, et. al. Delta Broadcasting, Inc. Department of California Highway Patrol Department of Special Districts, San Bernardino County, CA DeSoto Broadcasting, Inc. (WBSVTV, Venice, FL) Dispatch Broadcast Group (WBNSTV, Columbus, OH and WTHRTV, Indianapolis, IN) Duhamel Broadcasting Enterprises (KOTATV, Rapid City, SD and others) Eagle III Broadcasting, L.L.C. (KKCOTV, Grand Junction, CO) Eastern Washington and Northern Idaho DTV Channel Allocation Caucus Educational Broadcasting Corporation (WNETTV, Newark, NJ) Educational Television Association of Metropolitan Cleveland (WVIZTV, Cleveland, OH) Entravision Holdings, LLC Family Stations, Inc. (KFTLTV, Stockton, CA) Family Stations of New Jersey, Inc. (WFMETV, West Milford, NJ) FayettevilleCumberland Telecasters, Inc. (WFAYTV, Fayetteville, NC) Fireweed Communications Corporation (KYESTV, Anchorage, AK) First Baptist Church, Paris, TX First Cullman Broadcasting, Inc. Flinn Broadcasting Corporation (WFBITV, Memphis, TN) Florida West Coast Public Broadcasting, Inc. (WEDUTV, Tampa, FL) Fort Wayne Public Television, Inc. (WFWATV, Ft. Wayne, IN) Forum Communications Company (KMCYTV, Minot, ND) Fouce Amusement Enterprises (KRCATV, Los Angeles, CA) Fox Television Stations Inc. Gannett Co., Inc. Gateway Communications Inc. Gilmore Broadcasting Corporation (WEHTTV, Evansville, IL) GOCOM Licensee, L.L.C. Golden Empire Television Corporation (KHSLTV, Chico, CA) Golden Link TV, Inc. (KPSTTV, Vallejo, CA) Granite Broadcasting Corporation (KNTVTV, San Jose, CA and others) Grant Broadcasting Group (WNYOTV, Buffalo, NY and others) Great Trails Broadcasting, Inc. (WHAGTV, Hagerstown, MD and WFFTTV, Fort Wayne, IN) Gulf California Broadcast Company (KESQTV, Palm Springs, CA) Guy Gannett Communications Hammett and Edison, Inc. Hardy & Carey, LLP (Hardy & Carey Clients) Harte-Hanks Television, Inc. Hearst Corporation Holston Valley Broadcasting Corporation (WKPTTV, Kingsport, TN) HSN, Inc. Hubbard Broadcasting, Inc. Iberia Communications, L.L.C. Innovative Technologies, Inc. Island Broadcasting Co. Island Broadcasting, Inc. (KTGMTV, Tamuning, Guam) Island Broadcasting Ltd. Jacksonville Educators Broadcasting, Inc. (WTCETV, Fort Pierce, FL) JDG Television, Inc."='%,l(l(,,+"ԌJefferson-Pilot Communications Company Jet Broadcasting Co.  xkJoint Petition of Licensees (Entravision Communications Company, L.L.C., Paxson Communications   XxCorporation, Univision Communications, Inc., Grant Broadcasting Group, Max Media Properties,   lL.L.C., Pappas Telecasting Companies, Kadn Broadcasting, Inc., Warwick Communications, Inc.,   NDelta Media Corporation, Sullivan Broadcasting Company, Glencairn, Ltd., Bay Television, Inc., Channel 63, Inc., Harish Puri, Telemundo Group, Inc.(# Journal Broadcast Group, Inc. Jovon Broadcasting Corp. KASATV, Inc. (KASATV, Santa Fe, NM) KCWB-TV, Inc. (KCWBTV) Kentuckiana Broadcasting, Inc. (WFTETV, Salem, IN KFBBTV Corporation, L.L.C. (KFBBTV, Great Falls, MT) KM Broadcasting, Inc. KM Communications, Inc. KMSBTV, Inc. (KMSBTV, Tucson, AZ) KMVT Television Inc. (KMVTTV) KPDX License Partnership (KPDXTV, Vancouver, WA) KSLS, Inc. (KSCITV, San Bernardino, CA) KVIE, Inc. (KVIETV, Sacramento, CA) KVOA Communications, Inc. (KVOATV) KWTX Broadcasting Company (KWTXTV, Waco, TX) KXIITV Broadcasters, Inc. (KXIITV, Sherman, TX) La Dov Educational Outreach, Inc. Landmark Arts, Inc. Landmark Television of Tennessee, Inc. (WTVFTV, Nashville, TN) Land Mobile Communications Council Lee Enterprises, Inc. and New Mexico Broadcasting, Inc. Lehigh Valley Public Television Lewis Broadcasting Corporation Liberty Christian Center Lincoln Broadcasting Company Lindsay Television, Inc. Longmont Channel 25, Inc. (KDENTV, Longmont, TX) The County of Los Angeles, California (L.A. County) Los Cerezos Television Company Louisiana Television Broadcasting Corporation (WBRZTV, Baton Rouge, LA) Malrite Communications Group, Inc. Maranatha Broadcasting Company, Inc. (WFMZTV, Allentown, PA) McAlister Television Enterprises, Inc. (KAMCTV, Lubbock, TX)  S -McPike Communications Inc.130. Media Access Project et. al. Media General, Inc. (WTVRTV, Richmond, VA and others) Mid-South Public Communications Foundation Midwest Television, Inc. (KFMBTV, San Diego, CA and WCIATV, Champaign, IL) Minnesota Broadcasting Association  xjMission Broadcasting I, Inc., and Mission Broadcasting II, Inc. (WUXPTV, Nashville, TN and WUPNTV, Greensboro, NC) Mississippi Authority for Educational Television Montgomery Communications, Inc."='&,l(l(,,+"ԌMountain Broadcasting Corp. (WMBCTV, Newton, NJ) Mountain Lake Public Broadcasting (WCFETV, Plattsburgh, NY) Mt. Mansfield, Inc. (WCAXTV, Burlington, VT) National Broadcasting Company National Public Radio National Radio Astronomy Observatory, Socorro, NM National Translator Association Nexstar Broadcasting Group, L.P. Estate of Hector Nicolau (WTINTV, Ponce, PR) North Carolina Broadcasting Partners Ohio State University (WOSUTV, Columbus, OH) Oklahoma Educational Television Authority Ozark Public Telecommunications, Inc. (KOZKTV, Springfield, MO) Pappas Stations Partnership I (KPTMTV, Omaha, NE) Pappas Stations Partnership II (LPTV station K40DQ, Tulare, CA) and Valley Public Television, Inc. x(KVPTTV, Fresno, CA) Paxson Communications Corporation Paxson Communications LPTV, Inc. Pegasus Communication Corporation (WWLFTV, Hazelton, PA and WLIFTV, PA) Pensacola Junior College (WSRETV, Pensacola, FL) Pennsylvania State University (WPSXTV, Clearfield, PA) Pennsylvania Telecasters, Inc. Prairie Public Broadcasting, Inc. (KFMETV, Fargo, ND and others) Puerto Rico Public Broadcasting Corporation (WIPRTV, San Juan, PR) Pulitzer Broadcasting Company (WDSUTV, New Orleans, LA and others) Quincy Newspapers, Inc. (WREXTV, Rockford, IL and others) Qwest Broadcasting, L.L.C. Rainbow Broadcasting Ltd. Ramar Communications, Inc. (KJTVTV, Lubbock, TX and KASYTV, Albuquerque, NM) Rapid Broadcasting Company Red River Broadcast Corp. (KBRRTV, Thief River Falls, MN and KDLVTV, Sioux Falls, SD) Reece Associates Limited (WZWYTV, Orlando, FL) Retlaw Enterprises, Inc. (KJEOTV, Fresno, CA and others) RGV Educational Broadcasting, Inc. (KMBHTV, Harlingen, TX) Roberts Broadcasting of Cookeville, L.L.C. (WKZXTV, Cookeville, TN) Ruarch Associates, L.P. (I) Ruarch Associates, L.P. (II) Rural California Broadcasting Corporation (KRCBTV, Cotati, CA) Sainte Partners II, L.P. Sangre De Cristo Communications, Inc. (KOAATV, Pueblo, CO) Sarkes Tarzian, Inc. Scanlan Television, Inc. Scripps Howard Broadcasting Company (KNXVTV, Phoenix, AZ) Shenandoah Valley Educational Television Corporation Sierra Broadcasting Company (KRNVTV, Reno, NV) Siete Grande Television, Inc. (WSTETV, Ponce, PR) Mike Simons Sinclair Broadcasting Group, Inc. Skinner Broadcasting, Inc. SL Communications"='',l(l(,,+"ԌSmith Broadcasting of Santa Barbara Limited Partnership (KEYTTV, Santa Barbara, CA) Smoky Hills Public Television Corporation (KSWKTV, Lakin, KS) Sonshine Family TV Corp. (WBPHTV, Bethelem, PA) South Central Communications Corp. Speer Communications Holdings I Limited Partnership (WNABTV, Nashville, TN) Sunbelt Television, Inc. Sunnycrest Media, Inc. Syracuse Minority Television, Inc. Telemundo Group, Inc. (KSTSTV, San Jose, CA and others) Television Wisconsin, Inc. (WISCTV, Madison, WI) Three Feathers Communications, Inc. Max A. Trevino Tribune Broadcasting Company Trinity Christian Center of Santa Ana, Inc./Trinity Broadcasting Network TriState Public Teleplex, Inc. (WINNTV, Evansville, IN) T.V. 17 Unlimited, Inc. (WXMITV, Grand Rapids, MI) The University of Houston System (KUHTTV, Houston, TX) University of New Hampshire d/b/a New Hampshire Public Television  xUniversity of North Carolina Center for Public Television (WUNCTV, Chapel Hill, NC and WUNETV, xLinville, NC) Univision Communications Inc. US Broadcast Group Licensees, L.P. Venture Technologies Group (WTWBTV, Johnstown, PA) Viacom Inc. (WPSGTV, Philadelphia, PA and others) VictoriaVision, Inc. (KVCTTV, Victoria, TX) Virgin Islands Public Television System W36BM TV36 Wabash Valley Broadcasting Corp. and IMS Broadcasting, LLC. Warwick Communications, Inc. (WCI I) Warwick Communications, Inc. (WCI II) WCTETV WCPX License Partnership (WCPXTV, Orlando, FL) Weigel Broadcasting Co. WENY, Inc. (WENYTV) Western New York Public Broadcasting Association West Tennessee Public Television Council, Inc. Westwind Communications, L.L.C. WGBH Educational Foundation (WGBHTV, Boston, MA) WHNS License Partnership (WHNSTV, Ashville, NC) Wichita Communications (KWCVTV, Wichita, KS) Wichita License Subsidiary Corp. Withers Broadcasting Companies (KREGTV, Glenwood Springs, CO and others) WLNY-TV, Inc. (WLNYTV) WMTW Holdings Inc. (WMTWTV) WNAC Argyle Television, Inc. (WNACTV) WRNNTV Associates L.P. (WRNNTV, Kingston, NY) WTKR, Inc. (WTKRTV)  xWTNH Broadcasting, Inc. (WTNHTV, New Haven, CT), KW TV, Inc. (WBNETV, New Haven, CT),   XxPostNewsweek Stations, Connecticut, Inc. (WFSBTV, Hartford, CT), and Tribune Broadcasting Company (WPIXTV, New York, NY)(#"='(,l(l(,,+"ԌWXXI Public Broadcasting Council WWAC, Inc. (WWACTV, Atlantic City, NJ) Young Broadcasting of Sioux Falls, Inc. (KELOTV, Sioux Falls, SD)  S-Parties Filing Oppositions/Comments Advanced Television Systems Committee Advanced Television Technology Center AK Media Group, Inc. (Petition I) AK Media Group, Inc. (Petition II) Alamo Public Telecommunications Council Allbritton Communications Company Apple Valley Broadcasting, Inc., KHQ, Incorporated, and Spokane Television Association of Federal Communications Consulting Engineers Association of Local Television Stations, Inc. (II) The Association for Maximum Service Television, Inc. and the Broadcasters Caucus Association of PublicSafety Communications OfficialsInternational, Inc. Benedek License Corporation Blackstar Communications, Inc. (I) Blackstar Communications, Inc. (II)  xBoard of Regents of the University of Wisconsin System (UWS), Maine Public Broadcasting Corporation   {Xx(MPBC), Northeastern Educational Television of Ohio, Inc. (NETO), Ohio University (OU), and South Carolina Educational Television Commission (SCETV) (# Anthony R. Bucco, New Jersey Assemblyman Cannell Cleveland, L.P. (I) Cannell Cleveland, L.P. (II) Cannell Cleveland, L.P. (III) Cannell Cleveland, L.P. (IV) Cedar Rapids Television Company Central Virginia Educational Telecommunications Corporation Channel 3 of Corpus Christi, Inc. (CONDITIONAL SUPPORT) Channel 51 of San Diego, Inc. (KUSI) (I) Channel 51 of San Diego, Inc. (KUSI) (II) Citadel Communications Co., Ltd. Clark County School District Clear Channel Television Licenses, Inc. Cosmos Broadcasting Corporation (I) Cosmos Broadcasting Corporation (II) Dispatch Broadcast Group Diversified Communications Duhamel Broadcasting Enterprises (DBE) du Treil, Lundin and Rackley, Inc. The Electronic Industries Association and the EIA Advanced Television Committee Fisher Broadcasting Inc. Fouce Amusement Enterprises Fox Television Stations Inc. Gannett Co., Inc. (I) Gannett Co., Inc. (II) Garden State Communications, L.P."='),l(l(,,+"ԌGOCOMOuachita License, L.L.C. Guy Gannett Communications HDTV Grand Alliance The Hearst Corporation Heritage Media Corporation HSN, Inc. Hubbard Broadcasting, Inc. Huntsville Television Acquisition Corp. Independence Television Company JeffersonPilot Communications Company Journal Broadcast Group, Inc. Jovan Broadcasting Corporation (COMMENTS) KHQ, Incorporated KLAS, Inc. (KLASTV, Las Vegas, NV) Lewis Broadcasting Corporation County of Los Angeles John A. Lundin Maryland Public Broadcasting Commission (I) Maryland Public Broadcasting Commission (II) Max Television of Tyler L.P. (KETKTV, Jacksonville, TX) Media Access Project et. al. MidSouth Public Communications Foundation (WKNOTV, Memphis, TN) Motorola Mountain Broadcasting Corporation National Cable Television Association National Public Radio (two separate filings) Nebraska Educational Telecommunications Commission Oregon Public Broadcasting Paxson Media Group, Inc. Pulitzer Broadcasting Company (WDSUTV, New Orleans, LA and other stations) Reece Associates Limited Rhode Island Public Telecommunications Authority Sangre de Cristo Communications, Inc. Sinclair Broadcast Group Southern Broadcast Corporation of Sarasota (WSBTV, Sarasota, FL) South Florida Public Telecommunications, Inc. Speer Communications Holdings I Limited Partnership St. Lawrence Valley Educational Television Council, Inc. Telemundo Group, Inc. Third Avenue Television, Inc. Thomson Consumer Electronics, Inc. Tribune Broadcasting Company (I) Tribune Broadcasting Company (II) Tribune Company (III) University of Houston System University of North Carolina Center for Public Television Viacom Inc. Virginia Broadcasting Corp. Washburn University of Topeka WAVY Television, Inc. "='*,l(l(,,+"ԌWCPX License Partnership WSOC Television, Inc. Young Broadcasting Inc.  S-Parties Filing Replies to Oppositions/Comments  1. 1. 1. a.(1)(a) i) a)h 1. 1. 1. 1. 1. 1. 1. 1.AutoList34Ad Hoc Group of 25 LowVHF Stations  1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1. 1.AutoList34AutoList33Association for Maximum Service Television, Inc. and the National Association of Broadcasters Association of Americas Public Television Stations and the Public Broadcasting Service Association of Local Television Stations, Inc. Birmingham Broadcasting (WVTM TV), Inc. Community Broadcasters Association Cosmos Broadcasting Corporation (I) Cosmos Broadcasting Corporation (II) Cosmos Broadcasting Corporation (III) Duhamel Broadcasting Enterprises Innovative Technologies, Inc. JeffersonPilot Communications Company KM Communications, Inc. Maranatha Broadcasting Company, Inc. Media Access Project et. al. Midwest Television, Inc. National Public Radio, Inc. Pulitzer Broadcasting Company Rapid Broadcasting Company Ruarch Associates Limited Partnership Sangre de Cristo Communications, Inc. Shenandoah Valley Educational Television Corporation Sinclair Broadcast Group, Inc. Skinner Broadcasting, Inc. (I) Skinner Broadcasting, Inc. (II) Warwick Communications, Inc.  Sm-WCPX License Partnership"m+,l(l(,,"  S-, APPENDIX B T  MINOR CORRECTIONS TO THE RULESTP  S4- Part 73 of Title 47 of the U.S. Code of Federal Regulations is corrected as follows: PART 73--RADIO BROADCAST SERVICES   1x 1. Section 73.624(c) is corrected by deleting the word "telecommunications" throughout the  xsection; changing the phrase "no video broadcast signal provided at no direct charge to viewers shall be  xkconsidered ancillary or supplementary" to "any video broadcast signal provided at no direct charge to  xLviewers shall not be considered ancillary or supplementary;" changing the word "license" to "licensee" in  xthe last sentence in subsection (c)(2); and changing the phrase "that it deems inappropriate or undesirable"  x.in subsection (c)(2) to "in the sole judgment of the permittee or licensee." As revised, Section 73.624(c) reads as follows:  73.624 Digital Television Broadcast Stations x   nx(c) Provided that DTV broadcast stations comply with paragraph (b) of this section, DTV  xbroadcast stations are permitted to offer services of any nature, consistent with the public interest,  xconvenience, and necessity, on an ancillary or supplementary basis. The kinds of services that may be  xprovided include, but are not limited to computer software distribution, data transmissions, teletext,  x\interactive materials, aural messages, paging services, audio signals, subscription video, and any other  x\services that do not derogate DTV broadcast stations' obligations under paragraph (b) of this section.  xzSuch services may be provided on a broadcast, pointtopoint or pointtomultipoint basis, provided,  xhowever, that any video broadcast signal provided at no direct charge to viewers shall not be considered ancillary or supplementary.   x(1) DTV licensees that provide ancillary or supplementary services that are analogous to other  xKservices subject to regulation by the Commission must comply with the Commission regulations that apply  x=to those services, provided, however, that no ancillary or supplementary service shall have any rights to  xcarriage under Sections 614 or 615 of the Communications Act of 1934, as amended, or be deemed a  xmultichannel video programming distributor for purposes of Section 628 of the Communications Act of 1934, as amended.   x(2) In all arrangements entered into with outside parties affecting service operation, the DTV  xlicensee or permittee must retain control over all material transmitted in a broadcast mode via the station's  xfacilities, with the right to reject any material in the sole judgment of the permittee or licensee. The licensee or permittee is also responsible for all aspects of technical operation involving such services.   x(3) In any application for renewal of a broadcast license for a television station that provides  xancillary or supplementary services, a licensee shall establish that all of its program services on the analog  x.and the DTV spectrum are in the public interest. Any violation of the Commission's rules applicable to ancillary or supplementary services will reflect on the licensee's qualifications for renewal of its license.  S -x * * * * *"!,,l(l(,,$"  S-+ APPENDIX C T  ADDITIONAL ELIGIBLE BROADCASTERS T Addendum to Appendix E of the  S- Fifth Report and Order in MM Docket No. 87268 ĐTP Television Licensees and Permittees Receiving Digital Television Channel AssignmentsTP  S -Call Sign` ` ChannelName of LicenseehppStation Location City and State  S -840720KG` ` 38 Coast TV@hppSanta Barbaraxx 0CA KAWJ(TV)` ` 36 Three Feathers Communications, Inc.Hutchinsonxx 0KS