FCC LPTV Draft Rules Called Insufficient
An upcoming FCC draft order on the incentive auction's impact on low-power TV and translators isn't seen as doing enough, said LPTV attorneys in interviews and LPTV investor Free Access Broadcast (FAB) and Telemedia in an ex parte filing. Chairman Tom Wheeler said the draft rules will “help enable LPTV and TV translator stations remain on the air,” in a recent letter to Congress (see 1511170066). The Advanced Television Broadcasting Alliance (ATBA) put up a website asking the public to sign a petition telling the FCC not to reserve any broadcast spectrum for wireless use. “Do you know that the FCC wants to take your TV Channels away?” said the headline above the petition.
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The FCC is "gonna do a lot of things that don't do anything,” said Fletcher Heald LPTV attorney Peter Tannenwald. Since the repacking of broadcasters and possibly unlicensed use will both take priority over LPTV, the measures in the draft order are unlikely to do much to keep LPTV on air if many stations are displaced, he said. “They're running the repacking without LPTV in the computer.”
The draft order contains rules to extend the digital transition deadline for LPTV and TV translator stations by 12 months after the 39-month deadline, allowing channel sharing between LPTV and translators, and using the auction optimization software to find new homes for displaced low-power stations and translators, Wheeler wrote Congress. But the letter contains “what will likely be deemed by the courts a sweeping violation of the Regulatory Flexibility Act,” said FAB in itsex parte filing, because Wheeler said the commission hadn't analyzed the incentive auction's impact on LPTV. “Without, at a minimum, repacking protection, relocation support and technical flexibility in place before the auction begins, the Commission cannot as a legal matter satisfy its obligation to explain the steps it 'has taken' to mitigate impacts on LPTV broadcasters,” FAB said. The FCC didn't comment.
The government shouldn't be allowed “to confiscate the airwaves from broadcasters without compensation,” said ATBA on its petition website. “If full protection is not granted, hundreds, perhaps thousands of low power television and translators stations will go off the air,” said ATBA. The petition, which had 580 supporters Friday, will be sent to Wheeler and all regular commissioners.
The FCC doesn't know how the auction will affect LPTV, and no one will know until the amount of participation in the auction becomes clear, said Tannenwald. “LPTV and TV translator licensees and permittees will have to wait until April to know the first 80 percent of the damage, with the final 20 percent not being able to be known until the auction is over,” emailed LPTV Spectrum Rights Coalition Director Mike Gravino to members.
Despite being strongly critical of the commission's LPTV policies, Gravino is more optimistic about the FCC's LPTV draft rules than others in the industry. He doesn't believe the auction will displace as many LPTV stations as others and told us that displacement could be “an opportunity.” LPTV is heavily concentrated in some areas and absent in others, and displacement could be an opportunity for the service to become more evenly distributed, he said.
The FCC has “ample leeway to address the outstanding issues" on LPTV "with dispatch,” said FAB in its ex parte filing. The FCC can help LPTV “without risk of any delay in commencement of the reverse incentive auction,” FAB said. It said the agency should also grant an FAB motion to re-open the record on incentive auction proceedings involving the Greenhill report on estimated broadcast auction revenue for a “time-limited 30 to 45 day comment period.” Doing so would allow comments in the record incorporating information from a GAO report on the expected impacts of the incentive auction that FAB has been waiting for, it said.