Border Issues Key Among Auction Concerns

Few upcoming FCC deadlines are as important to TV broadcasters, programmers and audiences as the Jan. 25 due date for opening comments, and the March 12 deadline for reply comments, on the FCC’s blockbuster TV spectrum incentive auction Notice of Proposed Rulemaking (FCC Docket No. 12-268). The FCC aims to adopt rules this year, based in part on the comments filed, and to conduct the auctions in 2014.

At stake in the NPRM are myriad details and alternatives for implementing the FCC’s congressionally-authorized plan to repurpose as much TV broadcast spectrum as possible for mobile broadband Internet use, including smartphones, tablets and other mobile devices.  

There will be three phases:

• A voluntary “reverse auction,” in which broadcasters can offer to sell and give up their bandwidth altogether, or to give up part of their 6 MHz spectrum block and share a channel with another station.

• “Repacking” the broadcast spectrum of some, perhaps many, of the TV  stations choosing to remain on the air, including, in some cases, channel changes required by the FCC to allow for aggregating contiguous channels for effective wireless use.

• A “forward auction” of licenses to wireless companies to use the spectrum vacated by TV broadcasters.

The FCC proposes to clear parts of the 600 MHz spectrum band of TV broadcasters and devote this “reclaimed” spectrum to broadband. Displaced broadcasters would be regrouped in what remains of the 600 MHz band and in lower blocks during the repacking phase.

Note that repacking can be required of stations having no interest in offering their spectrum for sale in the voluntary reverse auction. Congress has imposed repacking limits on the FCC, such as how closely a repacked TV station’s service area must resemble the pre-auction area.

This column shines a spotlight on one key issue that is addressed relatively briefly in the NPRM’s 166 pages and 423 paragraphs: the international coordination, potential interference and other  issues faced by stations in states bordering Canada and Mexico. These are on top of all the other aspects of the NPRM that can affect border and non-border stations. 

Among the U.S. border station concerns:

• By treaty, all U.S. TV stations within 250 miles (402 km) of the Canadian border or 199 miles (320 km) of the Mexican border must get advance approval by regulatory authorities on both sides of the border for auction-related (and other) changes. The main reason is to avoid interference to facilities on both sides. Non-border stations need FCC approval only. From experience, obtaining Canadian and/or Mexican approval can be time-consuming and sometimes complicated.

• Both Canada and Mexico are in the process of converting from analog to digital TV, which the U.S. completed in 2009. Canada converted 28 larger “mandatory” markets to DTV as of August 2012, with smaller non-mandatory markets converting on a voluntary basis. Mexico has set a deadline on its digital transition in 2015. This is likely to cause many complications to the auction-created changes to U.S. stations; consider, for example, how long and complex the U.S. digital conversion was. 

• Canada is far ahead of Mexico on converting to DTV. But, American broadcasters near a non-mandatory Canadian market may have to deal with avoiding interference with existing analog television signals, which take up a larger portion of spectrum than DTV. So the timing of needed coordination will be different for U.S. broadcasters having stations along each border. Canadian border stations are the more immediate concern, though the issues are important both south and north.

• Some concerns have already been expressed that repacking of U.S. stations near Canada could cause stations to go dark. For example, the Michigan Association of Broadcasters estimated that 31 full-power stations in Michigan could be affected and potentially lose their ability to transmit over-the-air, affecting as many as 1.6 million Michigan residents who rely exclusively on over-the-air television access.

• The U.S. and Canada have both designated the 700 MHz band of spectrum for public safety and commercial uses available in 6 MHz blocks, the amount of spectrum allotted to each TV station. But Mexico has taken a different approach, adopting the “Asian Pacific” plan for 700 MHz. In Mexico, the 700 MHz band is solely for cellular use in two 45 MHz blocks for upload and download.The 600 MHz band may also be affected along both borders.This could affect interference and the coordination agreement with Mexico. 

• The transparency of FCC (and other U.S. governmental) negotiations with Mexico and Canada, and the timing of sharing information with U.S. border stations, are another issue. For example, in a Dec. 21 2012 letter to FCC Chairman Julius Genachowski, three Washington State Congressmen — Jim McDermott, Adam Smith and Norm Dicks — noted that of the 37 full-power TV stations in their state, “14 … could have no place to be relocated when repacking occurs, meaning that they could be forced to cut power and lose viewers. Of the 17 full-power stations in the Seattle-Tacoma market, as many as 10 could have no place to go …. This could be harmful for the stations and the people who invest in them, but devastating to the hundreds of thousands of people that rely on free, over the air television.” The writers ask that the FCC promptly disclose to the public all information the FCC has on its contacts with Canadian authorities about repacking the TV band in northern border markets.

Senator Charles Schumer of New York expressed similar concerns in a Nov. 15, 2011, letter to Secretary of State Clinton, noting that the FCC’s plan could affect TV stations in his state in Albany, Elmira, Buffalo, Rochester, Syracuse, Watertown and Plattsburgh.

In sum, TV broadcasters, their viewers, communities and others have a strong interest in answering the international border policy and procedure questions asked about in the NPRM itself, and in providing the FCC additional useful information and proposed solutions to problems whether or not they are mentioned in the NPRM.

This column on TV law and regulation by Michael D. Berg, an experienced Washington D.C. communications lawyer and the principal in the Law Office of Michael D Berg, appears periodically. He is also the co-author of  FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He represents commercial and noncommercial broadcasters. He can be reached at 1200 New Hampshire Ave., Suite 800, Washington, D.C. 20036-6802; [email protected]; or 202-776-2523. Read more of Berg’s Legal Memos here. 

Dashiell Milliman-Jarvis, a legal intern at Berg’s firm, contributed to this article. He expects to have his Juris Doctor degree this spring from the Georgetown University Law Center. His email address is [email protected]. 

Note: This column provides general guidance only and is not a substitute for individualized legal advice for particular situations.