Many thought the broadcast incentive auction was the most complex task ever undertaken by the FCC, but the ten-phase spectrum repack following the auction is running a close second. The TV stations being repacked in Phase 1 are serving as the pioneers of the repack process, and since they must complete the transition to their post-repack channel by November 30, 2018, the applicable deadlines are coming at a fast and furious pace.
The process of repacking these Phase 1 stations has led to lots of questions, and in an effort to answer at least some of them, the FCC released a Public Notice this week discussing a variety of details for stations completing the repack. Since Phase 1 will be the template for all subsequent phases, all stations being repacked should review the Public Notice with an eye toward discerning their obligations and timely meeting the various milestones.
The Public Notice also reminds transitioning stations that they can, where necessary, seek authority from the FCC to go silent, operate with alternate facilities or reduced power, remain on their pre-transition channels for a period of time, or commence early operations on their post-transition channels. All of these require filing for Special Temporary Authority and obtaining Commission consent in advance. While such flexibility will be useful for stations facing unusual repack obstacles, such stations must be sure to schedule adequate time to request and secure Special Temporary Authority from the Commission, lest they find themselves in the uncomfortable position of being forced to violate either the FCC’s repack requirements or the FCC’s operating rules (or being forced off the air entirely).
While the Public Notice provides various ground rules for stations, it also provides a lot of densely packed information on the procedures stations must follow during the repack. To assist stations, we have consolidated that information below in a concise format that will hopefully make it easier to follow. While the dates will obviously be different for stations assigned to other phases of the repack, the information below provides a good overview of the path that all repacked stations must navigate during their own repack phase. Note that the information below assumes that a station will not terminate operations on its pre-transition channel until the last day of the phase (November 30, in the case of Phase 1 stations). Stations transitioning before that time will need to adjust the other various dates accordingly.
The Public Notice makes clear that between September 14, 2018 and November 30, 2018, Phase 1 stations may test their equipment/signal and commence operating on their new channel pursuant to program test authority. The testing phase, however, is strictly for testing, and does not permit stations to simulcast content on both their pre-transition and post-transition channels. Broadcasters should be aware that some stations’ construction permits do not grant them automatic program test authority (e.g., stations transitioning to Channel 14), so those stations must build extra time into their schedules to request and obtain such authority.
Finally, the Public Notice indicates that linked stations cannot simply test their own equipment and commence operations on their post-transition channel as they choose. They must coordinate with the other stations in their phase with which they are linked by interference concerns.
The schedule for Phase 1 stations is as follows:
|September 1, 2018||Last day to provide notice of channel change to MVPDs. Any stations granted additional time or flexibility to transition by the FCC must provide MVPDs with this notice 90 days prior to commencing operation on their post-transition channel. Stations should also review their construction permits for individual notice requirements. For example, a station must provide notice of its channel change to health care facilities in its service area an “ample time before commencing operation” on its new channel, and some stations may be required to give notice to nearby AM stations, as discussed in more detail in the Public Notice.|
|September 4, 2018||Last day to request 180-day Construction Permit Extension on Form 2100, Schedule 337. Stations may request one extension of up to 180 days in which to complete construction of their new facility. An extension application must include an exhibit demonstrating circumstances that, despite all reasonable efforts by the station, were either unforeseeable or beyond the station’s control.|
|September 14, 2018||Testing Period begins.|
|September 21, 2018||File Transition Progress Report on Form 2100, Schedule 387. Transitioning stations must file a transition progress report ten weeks before the end of their assigned construction deadline.|
|October 1, 2018||Deadline for channel-sharing repacked stations to file a minor modification application. Applications must specify the host’s post-auction channel and the parameters of the sharee’s facility.|
|October 10, 2018||File Quarterly Transition Progress Report on Form 2100, Schedule 387. Transitioning stations must file a transition progress report on the tenth day following each calendar quarter, providing information regarding the steps taken during the previous quarter to construct facilities for its new channel and end operations on its current channel. This obligation ceases when a station has completed its transition and has filed a final report with the FCC indicating that fact.|
|November 1, 2018||Last day to commence consumer notifications of channel change. Any stations granted additional time or flexibility by the FCC must provide viewers with this notice 30 days prior to commencing operations on their post-transition channel.|
|November 30, 2018||Last day to operate on pre-auction channel absent FCC consent.|
|December 5, 2018||Last day to file “Pre-Auction Termination” Transition Progress Report on Form 2100, Schedule 387. Any stations that terminate operations on their pre-auction channel earlier than November 30 must file this report within 5 days of terminating operations on their pre-auction channel.|
|December 10, 2018||Last day to file “Construction Completion” Transition Progress Report on Form 2100, Schedule 387. Any stations that complete construction earlier (including before September 14, 2018) must file this report within 10 days of completion of all construction-related work.|
|December 10, 2018||Last day to file License to Cover Application on FCC Form 2100, Schedule B (full power) or Schedule F (Class A). Any stations that commence program test operations earlier than November 30 must file this application within 10 days of commencing program test operations.|
|December 30, 2018||Last day to file certification of compliance with viewer notification obligations. Any stations that complete their transitions earlier than November 30 must place these certifications in the public file within 30 days of completing the transition.|
Considering the variety of notices, reports, applications, and certifications involved in the repack process, and how tightly interwoven the associated deadlines are, stations should not dally in finalizing their repack plans. One missed deadline can quickly cascade into multiple missed deadlines, severely undercutting a station’s prospects for achieving a successful repack.