NAB Recon Petition Shouldn't Lead to Auction Delay, NAB says
NAB petitioned the FCC to reconsider its incentive auction procedures public notice on the issues of market variability, repacking broadcasters in the duplex gap, and reserving space for wireless mics. The challenges, posted Friday in docket 12-268, won't “require the FCC to delay the auction or upend fundamental aspects of its auction design,” the association said in a news release. “Both issues can be addressed through software settings and do not require reevaluation of the Commission’s auction design.” Speaking on an episode of C-Span's The Communicators filmed before NAB's petition was posted online, Incentive Auction Task Force Chairman Gary Epstein said the auction is on track to start March 29 as planned.
It will be very difficult to get the FCC to change its mind on the procedures PN, said Fletcher Heald broadcast attorney Peter Tannenwald, because it was only recently issued and represents a lot of work from commission staff. That shouldn't prevent incorrect rules from being challenged, said NAB General Counsel Rick Kaplan. The procedures PN is a huge document that contains many issues, and the petition for reconsideration is a way to get the commission to focus and pay more attention to a particular aspect of it, Kaplan said.
If the FCC rejects the recon petition, NAB's recourse would be to take the matter to court, and the association lost an appeal of incentive auction rules against the FCC in the U.S. Court of Appeals for the D.C. Circuit earlier this year. But the plan to repack stations into the duplex gap could provide new ammunition for arguments that the FCC isn't abiding by the congressional directive to protect broadcasters, Tannenwald said. Kaplan didn't comment on whether going to court was a possibility, but said NAB believes the matters in the petition can be addressed quickly: “We can resolve this without delaying anything." The FCC and CTIA didn't comment on the petition.
The NAB shouldn't have filed a recon petition, said Expanding Opportunities for Broadcasters Coalition Executive Director Preston Padden in an email. "While we have great respect for NAB and agree with them on many issues, this Petition appears to ignore the Kenny Rogers Rule about knowing when to 'hold em' and when to 'fold em.'” The EOBC's agenda is different from NAB's, an NAB spokesman told us in an email. “To paraphrase the Steve Miller Band, their mission is to ‘Take the Money and Run.’ Ours is to ensure fairness for those stations who wish to voluntarily participate in the auction, while also preserving a vibrant local TV future for those choosing to stay in the business of free and local broadcasting.”
The FCC proposal to relocate stations in the duplex gap and reserve two channels for unlicensed use doesn't address the lack of reserved spectrum for wireless microphones, NAB said in the petition. “The Commission needs to finish its work and either determine not to place stations in the duplex gap or develop an actual solution for wireless microphones in impaired markets,” the petition said. “Claiming that a 6 MHz shared channel does the job is specious.” The FCC should preserve the duplex gap for use by licensed wireless microphones and unlicensed operations by using “software settings” to designate the duplex gap as unavailable for relocating TV stations, NAB said.
The FCC should also use its deals with Canada and Mexico as a guideline for lowering the amount of impairment it plans to allow in the U.S., NAB said. “The Commission should take advantage of the framework provided by these agreements and lower its nationwide impairment standard significantly.” The FCC should adopt a 3 percent impairment limit proposal previously submitted by AT&T and NAB, the association said. “This modification will not delay the auction in any way, as the Commission can simply lower the level of impairment its software will permit in repacking television stations.”
Along with noting the auction's being on time, Epstein said on the C-SPAN episode set to have been televised this weekend that he doesn't expect the public to lose overall broadcast service as a result of the incentive auction or repacking. He also said that broadcasters considering banding together to sell their spectrum to wireless carriers themselves after the auction will be unlikely to find as good a price. Because the FCC has the “one-time” power from Congress to repack the stations and a budget for relocation costs, it's not likely that the prices available in the incentive auction could be matched through any private undertaking to sell broadcast spectrum, Epstein said. He estimated that the FCC would have a clearing target of between 86 and 126 MHz in the incentive auction. Though he declined to estimate how much money it would generate, he pointed to a Congressional Budget Office prediction of $40 billion net.