ATBA Appalled with FCC Proposed Rulemaking

The Advanced Television Broadcasting Alliance (ATBA) is appalled at today’s Notice of Proposed Rulemaking in the Incentive Auction. The Federal Communications Commission (FCC) in the notice is proposing to reserve a television channel in each market, post-auction, for unlicensed use.  Low Power Television stations (LPTVs) and Translators filing displacement applications post-auction will have to show they protect the reserved unlicensed use channel.

“The FCC today released a Notice of Proposed Rulemaking that is terribly devastating to the Low Power Television industry,” Louis Libin, ATBA Executive Director. “It is shockingly aggressive”

The notice proposes that full power stations will not have to protect the reserved channel, but asks whether they should be required to do so after the post-auction period for filing license modifications.

Libin continues, “This is a terrible day for LPTV and the American way with the FCC taking a direct shot at localism, news and entertainment. The entire item is absolutely negative to LPTV. I am particularly concerned about what could amount in some markets to a permanent freeze on license modifications that would change the interference footprint and devastate LPTV. This item makes the reserved unlicensed channel co-primary with full power broadcast licenses!”

There was not unanimity among the FCC Commissioners in the release. Witness the comments from Commissioners Pai and O’Rielly, the two, minority (Republican) members.

Commissioner Pai:

“Speaking of those other tentative conclusions, I cannot support the Commission’s proposal to prioritize the spectrum needs of unlicensed white space devices over those of translators and LPTV stations. Since the beginning of this proceeding, I have emphasized the need to take action where we can to preserve the vital services provided by these low power television stations. After the incentive auction, there will not be enough spectrum available to keep all translators and LPTV stations on the air. That is a fact. But here is another fact: The Notice’s proposals will force more translators and LPTV stations off the air. Translators and LPTV stations that could have been placed in the last vacant channel in a market will have to make way for unlicensed white space devices.

Notwithstanding the underwhelming impact of unlicensed white-space devices in the market to date, my objection to the Commission’s proposal is not rooted in a belief that the services provided by translators and LPTV stations are more important than those provided by unlicensed devices. Rather, it is based on the simple reality that translators and low-power television stations won’t have anywhere else to go after the incentive auction. If they are not allowed to continue operating in the UHF band, they will go out of business. On the other hand, there are other spectrum bands where unlicensed devices can operate, and I hope that soon there will be even more. For example, since October 2012, I have been calling for the FCC to take action to make 195 MHz of new spectrum available for unlicensed use in the 5 GHz band, an amount that dwarfs the 6 MHz of spectrum that is being fought over here.

Finally, a word about process. When I offered four proposed edits to this item, I did not expect that all four would be accepted. But I did have hope that some of my proposals, especially those involving the treatment of full-power television stations, would make their way into the item. Unfortunately, all four of my suggestions were dismissed out of hand. To be sure, I can’t say that I was completely surprised. It is indicative of the partisan manner in which the incentive auction proceeding has been run. But it remains unfortunate. I continue to believe that the Commission’s work product is better when all Commissioners, Democrats and Republicans, are allowed to contribute. And while the evidence to date does not provide much cause for optimism, I will continue to offer constructive suggestions in the hope we can structure the incentive auction in the same bipartisan spirit that animated Congress in 2012.”

Commissioner O’Rielly

“Finally, as I have stated in the past, in implementing the Spectrum Act and conducting the Incentive Auction, we need to treat all parties fairly. This includes those broadcasters that decide not to participate in the auction and are repacked. Instead of bringing broadcasters to the table, we keep considering actions that are likely to alienate them or, like the decision today, make it harder for the broadcast industry to compete and thrive in the modern marketplace. Apparently, localism, diversity and media ownership are really important for some people, until they are not. And all we are doing here is starting down a path towards statutory authority challenges and further litigation.”

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