DTV build-out sanctions approved

The Commission has adopted a series of new sanctions to be applied to DTV permittees who fail to complete construction within their required time and fail to receive an extension from the Media Bureau.

The great majority of DTV stations currently on the air are operating under Special Temporary Authority (STA), which allows them to operate at a lower power and with less-than-full facilities. The DTV construction deadline is tolled upon grant of an STA, although the FCC may later decide to start the clock running again. The only group of DTV permittees who were not given such an opportunity are network affiliates in the top 30 markets. They are required, absent extraordinary compelling circumstances, to build out a full facility. This policy was reaffirmed in the FCC's latest action. The only top-30 stations that have met the “compelling circumstances” waiver criteria are those who were previously located on the World Trade Center.

Under the new sanction procedures, if a request for an extension of time to complete DTV construction is denied because the Commission has not found extraordinary and compelling circumstances, the station will receive an admonition and be required to file a series of reports with the Commission. These reports, which will begin with a report due within 30 days after extension denial, must outline the steps that the permittee intends to take to complete construction and provide specific dates by which it expects construction to be completed. Again, absent extraordinary and compelling conditions, the Commission expects the build-out to be done within six months of the initial denial and admonition.

If at the end of the first six months the DTV build-out is still not completed, absent extraordinary and compelling circumstances, the Commission will issue a Notice of Apparent Liability. The forfeiture amounts could be in the $20,000 range. In addition to the NAL, the station also will be required to submit a report every 30 days as to proposed construction goals and its efforts to meet those goals. If construction is not completed within the second six-month period, then, absent extraordinary and compelling circumstances, the Commission will determine that the DTV permit has expired and the broadcaster will be left with no DTV channel.

Perhaps the most important effect of the loss of the DTV authorization is that while the licensee may at the end of transition seek to convert to DTV on its analog channel, it will be subject to cross-filings even if its channel is in the core (i.e., Channels 2 - 51).

In the event that a DTV authorization is rescinded, the channel will be deleted from the DTV allotment table. In the future, if other parties are interested in having that allocation revived, they will have to file a petition for rule making. In the meantime, the allocation will not be an impediment to modifications or maximizations of current DTV authorizations and allotments.

FCC regulatory fees up 23 percent

The Commission has issued a Notice of Proposed Rule Making to solicit comments on the reg fees due in September.

The total amount of money that must be collected for each fee category will go up by 23% this year. Because that 23% increase is measured by category, if the number of stations in a category has declined, fee increases in that category may be higher. On the other hand, if the number of stations in a category has increased, the fee increase may not be a full 23%.

The Commission plans to discontinue the routine mailing of regulatory fee public notices to all affected parties.

The Commission is planning a pilot program to mail postcards specifically stating the amount owed. The postcard will identify the station call sign, address, facility identification number and amount owed. The station will then have the opportunity to correct any mistakes before paying.

Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.