LPTV, NCE Much Affected by Incentive Auction Recon Order That FCC's Prepared To Defend

When LPTV and NCE interests met with FCC Chairman Tom Wheeler Monday to discuss the auction, Wheeler said the agency is prepared to defend itself from lawsuits over the auction policies, said an attendee. Wheeler “told us he knows where the courthouse is,” said Fletcher Heald broadcast attorney Peter Tannenwald, who was at the meeting and represents LPTV broadcasters. The FCC didn't comment.

The FCC recent action and the presentation made it clear that Wheeler and the Incentive Auction Task Force won't let anything dissuade them from their current course for the auction, Tannenwald said. “They are comfortable that their position is defensible,” he said. “Public TV has repeatedly tried to get protection against public service white spaces, but the commission has declined to do it,” said broadcast attorney Todd Gray of Gray Miller, who represents NCE TV's. Some of that confidence comes from the technical nature of the auction and the commission's recent defeat of NAB and Sinclair at the U.S. Court of Appeals for the D.C. Circuit (see 1506120050), Tannenwald said. “Unless the commission really steps in it big time, the court is less inclined to get into technical issues.”

Public TV broadcasters, though unsurprised the FCC rejected their request to preserve a public TV station in each market, could take the matter to court, Gray said. One factor might be what the commercial stations do, he said. It's easier to join a group legal challenge than take on the FCC alone, Gray said. The LPTV Spectrum Rights Coalition has told us it believes legal challenges are likely if the FCC adopts a rule preserving a vacant channel for unlicensed use in each market. Such a rule would be “galling” to all broadcasters, and could lead to many broadcast petitioners combining to challenge the commission's rules, he said. Litigation is expensive and has an uncertain outcome, Gray noted.

The upcoming July auction procedures order is also a factor in deciding how noncommercial and LPTV broadcasters will proceed, attorneys said. The order is expected to contain the “nuts and bolts” of the auction, important information for noncommercial and commercial stations deciding what to do, Gray said.

The Association of Public Television Stations, Corporation for Public Broadcasting and PBS had protested the recon order (see 1506220059). It's unclear how much of an affect the FCC choice not to set aside space for noncommercial use in designated market areas where all the public stations go into the auction will have, attorneys said. Broadcast lawyer Lawrence Miller of Schwartz Woods said he's not aware of any DMAs where all the public TV stations are expected to sell spectrum. There are markets where the repacking could lead to portions of the population not receiving public TV coverage, however, Miller said. “It's a priority of public TV to have universal over-the-air service.”

The FCC could seek to ease the auction's effects on public TV in other ways, attorneys said. Repacking priority for NCE DTV translators, or allowing some noncommercial stations to broadcast at higher power levels after the repacking, could help with coverage problems, they said. Wheeler offered in Monday's meeting to help persuade stations to switch to VHF rather than give up their spectrum, said an ex parte filing posted Tuesday in docket 12-268. APTS, CPB and PBS asked Wheeler to allow stations that switch to VHF to receive the full amount of the value of their spectrum rather than the currently contemplated discount price, and to reimburse such stations for the costs of moving bands. Those proposals would make bidding to move to the VHF band more viable “so that public television stations are able to voluntarily participate in the incentive auction while upholding the core universal service values of public broadcasting,” said the public TV groups.