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Just How Voluntary Is Senate Spectrum Bill?

The Senate bill authorizing FCC TV spectrum auctions is raising red flags after an amendment was added that makes it unclear that such auctions be entirely voluntary for broadcasters. Another is that the FCC is not required to protect sufficiently those broadcasters that choose to hang on to their spectrum from increased interference and loss of service area.

Earlier this month, the Senate Commerce Committee adopted a bill (S.911) that would permit the FCC to auction TV spectrum and share the proceeds with broadcasters who give up spectrum.

But the bill’s intent — that broadcasters’ participation in the so-called incentive auctions be voluntary — may be undermined by an amendment that was added by Democratic Senator Maria Cantwell of Washington.

The Cantwell amendment states in part that “84 MHz shall be assigned via a competitive bidding process.” It’s that “shall” that bothers broadcast lawyers and lobbyists. They believe the amendment, if it remains unchanged, directs the FCC to auction 84 MHz of broadcast TV spectrum even if that much spectrum is not voluntarily relinquished.

It’s gotten the attention of the National Association of Broadcasters. “We want to make sure that voluntary stays voluntary,” says Dennis Wharton, NAB’s EVP for media relations. “Any provision that would force broadcasters to involuntarily relinquish spectrum would be strongly opposed by NAB,” he adds.

According to Wharton, NAB is working with Cantwell to “clarify the amendment and to ensure that those stations choosing not to go out of business — along with the tens of millions of viewers that they serve — are held harmless by incentive auctions.”

Some TV lobbyists say that Cantwell’s office has indicated it will fix the amendment. However, they also point out, the senator has so far made no move to do so. Cantwell’s office did not return TVNewsCheck’s calls.

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Broadcasters are also hoping that Commerce Committee Chairman Jay Rockefeller (D-W.Va.), the bill’s chief author, will weigh in and revise the language if Cantwell doesn’t.

The Cantwell amendment is not the only language in the bill that needs repair, broadcasters’ Washington reps say.

Another concern is that the FCC is not required to protect sufficiently those broadcasters who choose to hang on to their spectrum from increased interference and loss of service area, says Gerry Waldron, a communications attorney with Covington & Burling, whose clients include the CBS and NBC affiliate organizations.

The interference and loss of service would come, the broadcasters fear, during “repacking” — the process by which the FCC would consolidate large blocks of spectrum for auction by reassigning TV channels.

According to the broadcasters, the legislation should give the FCC specific guidelines to deal with interference issues and establish clearly that a broadcaster’s service area will remain unaffected, says Waldron. “We think the bill needs to be tightened in that regard.”

Broadcasters are also concerned that the bill says only that the FCC “may’’ cover antenna and transmitter costs associated with moving TV stations to new channels following the auction.

“We think the bill gives the FCC too much discretion in terms of determining whether a broadcaster should be reimbursed for expenses incurred due to repacking,” says Waldron.

As now written, the legislation would require the FCC to reassign stations on UHF channels to other UHF channels, which have proven to be far better for broadcasting digital signals than VHF channels.

But broadcasters also want to make sure that stations in the high VHF band (chs. 7-13) are not downgraded to the inferior low VHF band (chs. 2-6).

“We think it would be a bad outcome if as a result of this legislation that a broadcaster with a current high VHF channel be moved to a low VHF channel,” Waldron says.

Broadcasters who are considering giving up spectrum would also like to see some changes. They are concerned that the bill does not specify how the FCC would determine how much of the auction proceeds they would be entitled to.

The bill states only that at least three months before any incentive auction the FCC chairman tell Congress what methodology it is using to determine the value of each licensee.

It also indicates that the agency should take into account the spectrum’s value as it is currently used and how quickly a licensee relinquishes the spectrum.

Broadcasters would like to see stronger language included that directs the FCC to determine immediately how much broadcasters might receive for their spectrum.

“What a lot of broadcasters fear is that they will find out too far down the process that they are only going to get pennies on the dollar,” says Lee Petro, a communications attorney with Fletcher, Heald & Hildreth.

He says the FCC needs to come up with a “valuation process’’ as a first step rather than the last step so that broadcasters can make “educated decisions.’’

Petro says he also has clients that would like to see the bill mandate that the FCC relocate low-power stations in the UHF band to the VHF band as part of the repacking process, despite the inherent weakness of the VHF channels. Current language permits the FCC to move LPTV stations to the VHF band, but it is not a mandatory requirement.

“To the extent that the bill can explicitly state that Class A and low-power television stations shall be protected and shall be included during the repacking process that would make a lot of folks happy,” says Petro.

The NAB has also made clear its desire to see a provision added that would sunset the FCC’s authority to repurpose broadcast spectrum and a ban on spectrum fees.

The Senate bill and a companion House measure that is still being written are not expected to reach the floors of their respective chambers until next year.

However, efforts to tweak the incentive auction language to make it more amenable to broadcasters will take on a new urgency if Congress decides to include it as part of legislation to increase the federal debt ceiling this summer.


Comments (18)

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Jason Roberts says:

June 29, 2011 at 8:20 am

This is hardly surprising. For years Congress and the FCC have been moving to take away television spectrum, all the while assuring broadcasters that they were simply improving television broadcasting. Democrets and Republicians alike have been viewing the sale of television spectrum aas a budget balancing bonanza. The only real question is why are broadcasters rolling over and taking this abuse? Who is searching for congressional candidates to support the interests of television broadcasters? If the same crowd of legislators is reelected in 2012, there will be no stopping the continued reallocation of television spectrum.

tom denman says:

June 29, 2011 at 9:22 am

I think part of the issue is that behind the headlines, some broadcast organizations would actually welcome the potential auction of their channel within a small or medium market. Chances are that the potential value of those small and medium market channels as TV stations will never again approach what auctioning them off would be. Of course larger markets are a different story, but their valuations are still pretty depressed too. Whereas I think most broadcast organizations are concerned about being railroaded, they’re still waiting to see what the FCC and Congress is willing to pay, both in covering relocation or joint transmission agreements, combined with whatever percentage of auction revenue would be made available. Broadcasters won’t admit it, but for some, it could be a win-win over battling it out trying to stay above water.

michelle maranges says:

June 29, 2011 at 10:41 am

This has nothing to do, at all, with raising money for the government as the actual dollars would be a literal drop in the bucket. Who can tell me what it is really about?

Paul Hnidka says:

June 29, 2011 at 11:14 am

This is all about the government forcing the populace to information platforms that can be easily controlled, redirected, monitored, and taxed. Historically, over the air broadcast platforms are the first thing dictators take control of. Wake up America!

Ellen Samrock says:

June 29, 2011 at 12:05 pm

If the government forces Class A and LPTV down to the VHF band then they might as well stick a fork in the service because it would be done. VHF with its poor propagation characteristics for digital is bad enough but LPTV is limited to 300 watts in that band. And even if the FCC should allow more power, there are very few LPTV stations that can afford either the high power amplifiers needed to provide suitable community coverage nor even the electric bill to keep them lit. Such a solution still fails to address interference issues and with a higher ERP could even exacerbate the problem. This is whole business is a disaster for broadcast TV courtesy of the Obama administration.

    len Kubas says:

    June 29, 2011 at 12:40 pm

    Class A and LPTV were always secondary, and their fate is actually orthogonal to this situation. Nice try.

    mike tomasino says:

    June 29, 2011 at 1:07 pm

    Let’s see here, the people who watch LPTV stations have an interest in their survival… But wait, since we don’t pay any subscription fees we don’t matter.

    len Kubas says:

    June 29, 2011 at 1:43 pm

    address health care first; you only choice here is to pick the channels to watch.

    Ellen Samrock says:

    June 29, 2011 at 2:00 pm

    Nice try?! What the hell are you talking about? What I said was merely an observation, it was not a plea. Primary or secondary, Class A and LPTV station owners are still broadcasters–broadcasters who have invested a great deal of money and sweat into their operations and conscientiously try to serve their communities. None that I know of want to be forced out of business which is what will happen if we are “ghettoized” by being forced onto the VHF band.

    len Kubas says:

    June 29, 2011 at 4:39 pm

    the rules were in place long before you invested — and you still invested. Now, you complain about the rules. You own it, and your views are orthogonal to the spectrum argument in general. Full service broadcasters have exclusive right to their channels; you do not, and that’s all the difference.

    Ellen Samrock says:

    June 29, 2011 at 5:51 pm

    Once again your distortion reality field is in full force. If you read the FCC’s rules for LPTV as it relates to being a “secondary” service the term applies only to interference (LPTV must not cause and must accept interference from full power stations) and nothing more. In fact, Class A stations have interference protection. There is nothing in the language which implies that the LPTV service is inferior, worthless and temporary — subject to being displaced by any and all new services.

    Meagan Zickuhr says:

    July 8, 2011 at 1:54 pm

    You are quite uninformed! Class A’s have PRIMARY STATUS…. And Low Powers are secondary only to full power stations. It scares me a bit that you had ANYTHING to do with writing the rules when you are not informed of the FACTS.

mike tomasino says:

June 29, 2011 at 11:07 pm

i·con·o·clast: “A person who attacks cherished beliefs or institutions.” Thank you for informing us of your purpose here. Please go back to fraternizing with the lying scum at CEA. Your real name doesn’t happen to be Gary Shapiro?

    len Kubas says:

    June 29, 2011 at 11:11 pm

    No, but I have tussled with G. Shapiro on various topics. Was also involved in LPTV long before D BP ever heard of it, indeed, I helped write the rules; my comments were incorporated into the rules and how auctions are conducted. Unlike D BP, I also know under international rules what a secondary service is. All LPTV grants say that they can be rescinded by the FCC for any reason — but D BP knows that if he’s ever seen a grant.. Class “A” stations have only limited interference protection; a full service station moving too close, and they’re gone. These guys lie and distort all the time about their position.

    mike tomasino says:

    June 30, 2011 at 12:13 am

    I don’t doubt you that broadcasters are not innocent of lies and deceit. That seems to be SOP for trade lobbying in general. I certainly wish that everyone could tell the truth, and do what was right, so that we actually do the right thing rather than get pushed around by the hegelian dialectic of whoever happens to be the most moneyed force at the moment. But, I seem to be a dreamer!!!

    len Kubas says:

    June 30, 2011 at 1:39 am

    I was speaking of LPTV, not broadcasters. NAB plays a quite different game. Dreamer and naieve; let’s stick with the facts.

    Ellen Samrock says:

    June 30, 2011 at 12:46 pm

    The old iconoclastd speaks and the FCC must listen. Gee, I’m surprised you can still use a keyboard. I’ll bet your still waiting for your lifetime achievement award for filing comments that the FCC supposedly used in some past rulemaking. I’m not sure what you mean by “grant” (and I don’t think you do either) but if you’re talking about a license, mine says: “This license is subject to the right of use or control by the Government of the United States conferred by section 606 of the Communications Act of 1934.” Maybe that’s what you’re referring to. Of course, you’ll find that language on all FCC licenses. If you’re talking about a CP for LPTV, mine has a special operating condition and restriction which outlines the interference my station must accept and that I’m prohibited in causing to full power stations. Now if you want to add something new about the FCC rescinding my license for any reason maybe you should give Mr. Hoshemzadeh a call. I’m sure he can’t wait to hear from some bloviating know-it-all like yourself.

    Ellen Samrock says:

    June 30, 2011 at 1:35 pm

    BTW, LPTV station owners ARE broadcasters. It says so on our licenses and construction permits. I have a receipt for a shiny new Linear ATSC transmitter and matching antenna system which I use for (ta-da) broadcasting a digital signal. Hey, LPTV station owners even get fined by the FCC like other broadcasters.


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