Auction Draft Draws Broadcaster Ire

FCC proposal could land incentive auction in court
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Broadcasters have at least three major bones to pick with the FCC over the incentive auctions, and they boil down to money, microphones and methodology.

The last of those, methodology, will almost certainly lead to a court challenge of the mega-sale unless the commission backs off on its current set of calculations, according to a broadcast industry source. Leave things as they now read and the issue is “clearly headed for litigation unless one of the Democrats can be convinced” not to vote for it, said a broadcast source speaking not for attribution.

In meetings with FCC commissioners and staffers, National Association of Broadcasters executive VP and former FCC Wireless Bureau chief Rick Kaplan and others outlined those flashpoints.

Methodology: It was broadcasters who pushed for a provision in the broadcast incentive auction legislation specifying that the FCC would use its current method of calculating populations served by a TV station signal (OET-69) for its calculation methodology. Instead, the commission’s Office of Engineering and Technology (the OET in OET-69) has updated the figures, saying it was merely adding in new data such as the 2010 census, while not changing the actual methodology. That may ultimately be the case, but in a 2007 order updating OET-69 to include 2000 census numbers, it was referred to as a revision of methodology.

Broadcasters have also complained that the FCC did not put out the OET-69 changes for comment via a commission-level decision, as it did with the 2007 version.

According to a source familiar with the meetings, broadcasters have made clear to the FCC on various occasions that if this had just been about using new census data, broadcasters would not have complained.

A spokesman for FCC chairman Tom Wheeler declined comment on the broadcaster complaints, making things that much more frustrating.

Microphones: The FCC has proposed giving wireless microphones no exclusive spectrum, and instead letting them share spectrum bands with other users, protected by a smart database similar to one used to allow unlicensed devices in the TV white spaces. Among those mic users are broadcasters dispatched to cover breaking news.

Unlicensed devices had 12 channels before the DTV transition, then two; according to the FCC proposal for after the auction, it’ll have none to call its own.

“No single service is hurt more by the draft incentive auction order than wireless microphones,” says Kaplan. “If the FCC takes broadcasters’ role as first informers seriously, it will make sure that there is at least some exclusive spectrum for wireless mics in the 600 MHz spectrum band.”

The NAB has offered an alternative proposal that would give wireless mics some exclusive spectrum in the “duplex gap” between wireless uplink and downlink spectrum.

Money: The NAB complains that the FCC draft treats the $1.75 billion broadcaster relocation fund as though it is a partial payment, and it wants the commission to regard it instead as a budget, meaning it will limit the repacking of stations—and the resultant dislocations— to what can be covered by that money. If that doesn’t happen, the NAB would like the FCC to dictate that wireless companies would make up the difference, as winning bidders have done in other auctions.

BROADCASTERS SEEK CONSUMER GROUP HELP IN RETRANS FIGHT

Broadcasters are hoping to enlist consumer groups in battling cable operators over what broadcaster-backed group TVfreedom.org calls abusive pay TV billing practices, such as early termination and equipment fees. At least one group, Public Knowledge (PK), signaled it would be happy to oblige. In return, TVFreedom might expand the discussions to other issues public advocates care about, such as Internet ‘fast lanes.’

It is TVFreedom’s latest volley in its battle over retrans fees, which cable operators blame in part for the rise in cable bills. TVFreedom is suggesting the government should look at cable billing practices if it is concerned—and FCC chair Tom Wheeler has made clear it is—about the cost of cable.

The request came in a letter to eight public interest groups, including PK, which is actually a member of the American Television Alliance, which is pushing for the retrans reforms TVFreedom is fighting.

PK senior staff attorney John Bergmayer confirmed his group was interested. He said while PK supports ATVA on retrans reform, it has plenty of issues with other cable practices, billing and net neutrality among them. “Our eyes are wide open about what is going on,” he said, “but if we can get positive action on discrete issues without signing up for the whole agenda,” which he says is the case with ATVA, “we would be happy to work with [TVFreedom].”

TVFreedom spokesman Rob Kenny said the discussion may expand beyond billing to other practices PK has issues with, such as Internet fast lanes or usage-based pricing.

Broadcasters have at least three major bones to pick with the FCC over the incentive auctions, and they boil down to money, microphones and methodology.

The last of those, methodology, will almost certainly lead to a court challenge of the mega-sale unless the commission backs off on its current set of calculations, according to a broadcast industry source. Leave things as they now read and the issue is “clearly headed for litigation unless one of the Democrats can be convinced” not to vote for it, said a broadcast source speaking not for attribution.

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