Details of FCC’s Repack Plans for LPTV and TV Translator Stations Emerge

by Pillsbury - CommLawCenter
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Ever since the idea of holding an incentive auction to reclaim and repurpose broadcast spectrum for new wireless uses first surfaced, a major concern has been how to balance full power stations’ need to replicate their pre-auction signal coverage with low power television (LPTV) and TV Translator stations’ need for displacement channels in the remaining television band.  Throughout the process, the FCC has announced a number of initiatives aimed at balancing those needs.

Included among these efforts is the FCC’s creation of a new category of translator for full-power TV stations to fill in loss areas, a special filing window for LPTV, TV Translator and analog-to-digital replacement translator stations seeking displacement channels, and rules permitting LPTV and TV Translator stations to channel share, both among themselves and with full-power stations.  Until last week, stations in these secondary services have had to stand on the sidelines and wait to see how these initiatives play out.  That changed last Friday when the FCC released a detailed Public Notice outlining procedures and timelines applicable to LPTV, TV Translator, and replacement translator stations during the repack.

Most significantly, the FCC announced its intent to open a Special Displacement Window in the first quarter of 2018.  The FCC stated that it anticipates releasing a public notice in November or December of this year that will give 60 days’ warning of the opening of the Special Displacement Window, which will remain open for 30 days.

Only LPTV, TV Translator, and analog-to-digital replacement translator stations that were “operating” on April 13, 2017 will be eligible to file displacement applications in the window.  To be deemed an “operating” station, the station must have constructed its facilities and filed a license to cover application by that date.  These stations can file a displacement application in the Special Displacement Window if they are displaced by a full-power or Class A TV station being repacked in Channels 2 through 36, or if they are on a channel higher than 36 and are displaced by the flexible uses envisioned by the FCC for the portion of the broadcast band repurposed via the auction.

In the filing window, applicants will have to provide interference protection to other users in the repacked TV Band and in adjacent bands, including land mobile operations, existing LPTV, TV translator and analog-to-digital replacement translator stations, full-power and Class A TV stations that were not repacked, repacked full-power and Class A TV stations as specified in the FCC’s Closing and Reassignment Public Notice, and full-power and Class A television station facilities specified in applications filed in either of the two priority windows occurring prior to the Special Displacement Window.

Helping to balance those restrictions, displaced stations may specify as their displacement channel the pre-auction channel of a station being repacked or which relinquished its spectrum, subject to the condition that operations on the displacement channel cannot commence until the full-power or Class A TV station currently occupying the channel vacates it.  To assist stations in developing their displacement proposals, the November/December public notice announcing the Special Displacement Window will also contain updated channel availability information identifying locations and channels that displaced stations cannot propose in their displacement applications.

To avoid a “race to the courthouse” when the window opens, all applications filed in the Special Displacement Window will be deemed to have been filed on the last day of the window for purposes of determining mutual exclusivity.  In other words, an application filed on the first day of the window will have no higher processing priority than an application filed on the last day of the window.  In cases of mutual exclusivity, the parties will be given an opportunity to resolve the mutual exclusivity among themselves via engineering amendments or settlements.

If applications remain mutually exclusive after the settlement period, the FCC will give priority to any application filed by a full-power TV station for displacement of an analog-to-digital replacement translator station or for a new digital-to-digital replacement translator station.  The analog-to-digital replacement translator stations were authorized to fill in areas of a full-power station’s analog contour that were lost in the digital transition.  The digital-to-digital replacement translator stations are a new class of station intended to serve a similar role in filling in areas of a full-power TV station’s digital contour that its repacked facilities can no longer reach.

Full-power TV stations can apply for new digital-to-digital replacement translator stations beginning with the opening of the Special Displacement Window and continuing through July 13, 2021.  Whenever filed, digital-to-digital replacement translator applications will have priority over all prior new, minor change, and displacement applications filed by LPTV and TV Translator stations.  If applying this priority does not resolve mutual exclusivity among applications filed in the Special Displacement Window, the FCC will resort to conducting an auction among the applicants.

Stations that can avoid having to file a displacement application by making a minor change to their existing facilities prior to the opening of the Special Displacement Window are encouraged to apply to do so as soon as possible.  A freeze on filing such minor change applications will be announced, likely in October or November 2017, in preparation for the Special Displacement Window.

Stations that are not eligible for, or that simply do not file in, the Special Displacement Window will have to wait until a public notice is issued after the close of the Special Displacement Window lifting the minor modification application freeze, as well as the freezes previously imposed on the filing of non-window displacement and digital companion channel applications.

Digital LPTV and TV Translator stations that receive a displacement construction permit will have three years to build those facilities.  Construction permits related to an LPTV or TV Translator’s transition to digital operation, or for new digital LPTV or TV Translator stations, will expire on July 13, 2021.  Stations that experience difficulties in meeting their construction deadline can seek a 180-day extension of time to construct.  For permits expiring on July 13, 2021, requests for an extension must be filed by March 13, 2021.  After March 13, 2021, stations needing additional time must file a request for tolling of the permit expiration date.  The FCC indicates it will look favorably upon extension and tolling requests where the station is able to demonstrate that it is unable to procure resources to construct due to the demand for those resources by full-power and Class A TV stations being repacked.

Analog stations making their initial transition to digital operation must air viewer notifications during the time period when viewers are most likely to be watching if the station has the ability to locally originate programming.  Stations that do not have local origination capability may use other reasonable means, such as notification via newspaper or a crawl on the full-power station being rebroadcast.  Stations have discretion with respect to the frequency, length and content of their viewer notifications.

Finally, the FCC noted that LPTV and TV Translator stations can continue to operate on their existing channels until the initiation of service by a repacked Class A or full-power TV station or the receipt of a notice from a new 600 MHz wireless licensee that the station is likely to cause interference.  Such notice must be provided in writing at least 120 days prior to the new wireless licensee commencing operations or conducting first field application testing.  If needed, a station can seek authority from the FCC to go silent to prevent interference to the new user of its frequency prior to the station completing the move to its displacement channel.

While the numerous points discussed above may already have your head spinning, Friday’s Public Notice actually contains many additional details that will be important to those seeking to navigate the repack.  In particular, LPTV and TV Translator stations will now need to consider their options carefully.  The good news is that with this latest release of information, they are no longer trapped in the role of spectators at the auction, and can begin taking the steps needed to assess the impact of the repack on their facilities and respond accordingly.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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