Incentive Auction Anti-Collusion Rules Said Complicated for Public TV

FCC anti-collusion rules for the incentive auction may create particular complications for noncommercial educational TV stations, said NCE officials in interviews last week. Collusion rules place restrictions on stations communicating with any other station about their auction plans. Lawyers representing broadcasters of all types are affected by the rules, with some attorneys saying the impact will be major (see 1505180056 and 1409290022) and the FCC preparing to respond to concerns (see 1506160060). Not much discussed yet has been the impact on NCEs.

Public TV stations are commonly run by boards or government entities, which makes abiding by such strictures more difficult, said Gray Miller attorney Todd Gray, who represents NCEs. Lonna Thompson, general counsel of the Association of Public Television Stations (APTS), also said NCEs may be affected.

In addition to complicated ownership and funding structures, public TV licensees will be inconvenienced by the anti-collusion rules in the same ways commercial stations are, said Wilkinson Barker broadcast attorney Rosemary Harold. A reverse spectrum auction that affects all TV broadcasters doesn't really have a precedent, and the language of the anti-collusion rules is “very broad,” Harold said. She will help NCEs understand the rules and their consequences in a July 20 webinar on the incentive auction anti-collusion rules organized by APTS, the Corporation for Public Broadcasting and PBS for public TV licensees. Penalties for violating anti-collusion rules are high, which underscores the importance of stations getting them right, Harold said. According to the FCC incentive auction order, stations found in violation could have their payments for spectrum reduced or withheld. With the breadth of the rules still unclear, stations should err on the side of caution, Harold said.

After the auction application deadline, auction-eligible stations are no longer allowed to communicate about their auction plans or even whether they're planning to sell spectrum in the auction at all, according to the anti-collusion rules (see 1411280041). Since public TV licensees have a culture of collaboration and information sharing and varied ownership, it's important to educate them about the importance of not discussing auction plans, said Gray. The matter is further complicated for commercial TV licensees that sit on public TV boards, he said.

Many public TV stations are operated by government entities such as public universities, Gray said. Such stations are essentially required to “do business in public” he said, which would run them right into the anti-collusion rules -- if that public business occurs after the auction application deadline. If such stations go through their required public processes before that deadline, they should be able to avoid coming into conflict with the commission, Gray said. That means such stations have less time to reach a decision than a commercial station owned by a single person would, Gray said. Commercial stations that are publicly owned may face similar complications, Harold said.

Both kinds of stations are affected by a lack of clarity in FCC rules about what constitutes communication about a station's auction strategy, Harold said. “What happens if you're in the middle of a retrans negotiation?” asked Harold. “Is that a signal that you are staying in broadcasting?” The presence or lack of public TV pledge drives and other parts of normal station business could all indicate whether a licensee is staying in broadcasting, Harold said. Journalists working for one station may not be able to report on whether another is selling its spectrum, she said. The FCC has been asked about such questions both formally and informally, and it's believed it is preparing a response, she said. A letter from FCBA seeking clarification of auction policy is also expected to receive a response, the FCBA told us last month. “I think it would be helpful for the commission to clarify its rules,” Harold said. Some information could be included in the upcoming auction procedures public notice, she said.