The Long Reach of TV Spectrum Repacking

Many TV stations may think they’re safe from FCC mandatory “repacking” of their technical facilities and service areas during the upcoming FCC auction of TV spectrum. But based on the current state of play in the FCC’s “first in the world” auction rulemaking (FCC Docket No. 12-268), they may be in for unpleasant repacking surprises.

Background

On Feb. 22, 2012, Congress enacted the “Spectrum Act,” formally named the Middle Class Tax Relief and Job Creation Act of 2012. The act empowered the FCC to conduct a three-part auction process of a large part of current TV broadcast spectrum for future use by providers of commercial wireless broadband services to users of smart phones, tablets and other evolving consumer devices.

• Part I of the process is the “reverse auction.” In it TV broadcasters can volunteer to sell their allocated spectrum and either exit the business or share a channel with another TV station. This is designed to open up as many current TV channels as possible for wireless broadband and to ease the consolidation of the remaining TV broadcasters in Part II.

• Part II is repacking. What happens to stations that didn’t volunteer to sell their spectrum depends on their current channel. TV stations on channels 31 and above have to move to vacant channels below 31 as the FCC reconfigures or “repacks” the band.

• Part III is the “forward auction” of former upper-band TV channels to wireless companies who bid on them at auction.

To envision this in nontechnical terms, think of current TV broadcast channels as offices in a well-occupied 20-story building. Occupants of the upper ten floors are required to vacate their space and move to offices in the lower 10 floors. Clearly this requires reconfiguration and reassignment of many lower floor offices. Lower and upper floor tenants are offered monetary incentives to leave the building altogether or to share office space. Remaining upper floor tenants are moved to offices that were vacant before the process started, or to offices that become vacant through buy-outs (as in the “reverse auction”). Combining of all occupants in part of the building requires considerable “repacking” of long-time, and newly-moved, lower floor tenants.

Add to this analogy the factor of TV stations’ potential to interfere electronically with each others’ signals, particularly when crowded into smaller, more crowded space.  Office tenants generally don’t cause or receive electronic interference to or from their neighbors. TV broadcast signal interference, in contrast, is a major concern.

This is already a problem in many existing TV markets, before the FCC has even adopted spectrum auction rules. (Both wireless providers and broadcasters have also expressed concerns about avoiding interference with each other, and there is some cooperation on that between the NAB and wireless industry representatives).

This year the FCC plans to resolve issues raised by the NAB and a legion of others on all sides of the auction rulemaking, and to adopt TV spectrum auction rules. Next year the FCC plans to complete the auction. NAB’s position is that it’s more important to do the auction right than to do it “right now.”

How Repacking Could Affect Unsuspecting Stations 

1.  In Part I of the process, stations offering their spectrum for sale will do so completely voluntarily. Part II repacking will be mandatory, subject to protections in the Spectrum Act such as no involuntary relocation from UHF to VHF.  

2.  Stations already on channels below 31 may think they won’t be moved or reconfigured. But this will vary by market, how many stations volunteer during Part I and the engineering details of each station and its neighboring stations.

3.  A station can be repacked whether or not it remains on its current channel.

4.  Repacking will be more extensive in the already-congested largest markets.

5.  The Spectrum Act requires the FCC to make all reasonable efforts to preserve as of the enactment date the coverage area and population served of each broadcast television licensee as determined using the methodology in OET Bulletin 69 of the FCC Office of Engineering and Technology. The Act does not indicate exactly what that means. The FCC has proposed three options to define “all reasonable efforts.”

The FCC’s proposals essentially would allow lopping off parts of a station’s coverage area (and the viewers there) and compensating for the loss by adding coverage in an area the station’s signal did not reach before. The FCC suggests that this meets the Spectrum Act’s “preservation” requirement as long as repacking of a station’s coverage area yields the same total number of square miles and the same total population the station had in February 2012, but in different areas. NAB advocates that the Act requires preservation of the same coverage area and viewers that stations had on the enactment date. This is a key issue for TV stations.

6.  On Feb. 4, the FCC Office of Engineering and Technology issued a public notice seeking comment on proposed revisions to the software used by the FCC to implement OET Bulletin 69.  This could change the coverage areas and population served that the Spectrum Act requires the FCC to make all reasonable efforts to preserve.   NAB has vigorously opposed the proposed revisions and their timing as inconsistent with the Spectrum Act, including the timing of the proposed revisions.

7.  There is a great deal of uncertainty about what rules the FCC will adopt, or how the repacking phase will play out. Some of this is uncertainty stems from the number and complexity of the spectrum auction issues and details. Other causes are that this process has never been done before anywhere, and that no one can know ahead of time how many TV licensees will volunteer to give up spectrum, whether repacking can be done effectively, or the outcome of the “forward auction” to wireless companies. At this point there are no guarantees that a station will remain untouched by repacking. NAB has asked the FCC to seek public comment on the details of the repacking plan it settles on before adopting rules.

8. The FCC proposes not to protect low-power TV and TV translator stations. According to the rulemaking notice, if those stations receive interference from repacked full-power TV stations, or cause interference to them, “the low-power television or translator station will be ‘displaced,’ and will either have to relocate to a new channel that does not cause interference or else discontinue operations altogether…. For purposes of this discussion, the term “low-power television stations” excludes Class A television stations.”

Next Steps

The FCC will decide whether to issue a further notice of proposed rulemaking focusing on repacking (and other) specifics of how the FCC intends to resolve the many issues raised in the rulemaking and commented on by interested parties. In the meantime, FCC “ex parte” rules provide for interested parties to provide comment and information to the FCC. It is important for television broadcasters to be aware of ongoing developments, and not to assume prematurely that repacking won’t affect your station.

This column on TV law and regulation by Michael D. Berg, an experienced Washington 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 television and radio 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. 

Manny Fragata, a legal intern at Berg’s firm, contributed to this article. He expects to have his Juris Doctor degree in 2014 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.