A low-power TV advocacy group is promising a high-powered legal response to the FCC’s coming spectrum auction, warning the commission to prep for a wave of lawsuits that it asserts could push the incentive sale back six months or more—to late 2016 or even 2017.
The LPTV Spectrum Rights Coalition has set up a one-stop website to make it easy for supporters to weigh in on the future of low-power TV by the FCC’s Jan. 12 deadline for comment, which the group says has the added benefit of allowing those commenters to potentially “[sue] the pants off the FCC” over the auction.
The coalition may have to stand in line at the courthouse door, however. The National Association of Broadcasters and Sinclair have already fi led suit against portions of the auction, but the legal documents could really pile up if the coalition follows through on its plans, or the FCC changes course.
With the exception of a relative handful of class A low powers, and not even all of them, LPTV stations and translators (about 96% of them) are not eligible to participate in the reverse incentive auction, and can be displaced in the repacking of full-power stations after the auction—a reality the FCC has conceded, pointing to the statute that created the auction to begin with.
But in an October notice, the FCC asked for input on how it could mitigate the impact of the auction and repack on low-powers and translators, acknowledging they are “a source of diverse and local programming for viewers, especially in rural and remote locations.”
The coalition has advised LPTV owners that so long as they fi le comments correctly, they will be able to take the FCC to court over the auction. “Give your business the gift of having the standing to sue the pants off of the FCC about the Incentive Auction this New Year,” it has told members.
Among the coalition’s issues with the auction—and there are many—is that all but that handful of auction-eligible class A stations will have to pay their own relocation costs in the repack, which the coalition says could wind up being an unfunded mandate on low powers of $1 billion-$2 billion. Not to mention—though it’s happy to do so—the inability to participate in the billions of dollars in payoffs to stations that are eligible to put their spectrum up for auction.
Coalition director Mike Gravino outlined the strategy plan to B&C.
“As the incentive spectrum auction rulemaking begins to complete its Petitions for Reconsideration cycle this first quarter of 2015, the LPTV challenges in the U.S. Court of Appeals will begin,” he says.
And that is only the first wave, related to how the FCC dealt with LPTV issues in the auction report and order released last June.
Gravino says the additional challenges will include:
• The secondary-status definition of LPTV.
• The lack of an economic justification for designating most low powers as not auction eligible.
• The promoting of unlicensed services over licensed LPTV services (the FCC’s auction item specifically promotes setting aside spectrum for unlicensed devices).
• Why some class A stations (more than 100) “could lose all of their auction eligibility including a priority in the repacking.”
“Congress, through the Spectrum Auction Act, specifically directed the FCC to not change existing [Feb 2012] spectrum usage rights, yet the FCC has seen fi t within the Incentive Auction June 2014 Report & Order to do just that,” adds Gravino—who was just getting warmed up.
“A second wave of legal cases will emerge based on the current LPTV [notice for proposed rulemaking] comments process,” he says.
“We are confident that our incentive auction rules fully comply with the terms of the statute with respect to Low Power Television stations,” said an FCC representative.
While Gravino concedes that the court may end up consolidating the various challenges at some point, he thinks they represent at least a six-month delay in the auction, perhaps longer. The current target is early 2016.
“There are specific actions which the FCC could take in early 2015 to limit many if not most of these potential court cases,” he says, but only “if they listen carefully to what the LPTV industry is complaining about, and then craft the appropriate solution.” The coalition has over 150 members with more than 1,000 built stations or permits to build, says Gravino.
IN FCC MIRROR, OBJECTS MAY NOT BE LARGER THAN THAT OF ‘PEER’
The FCC’s informal shot clock on the proposed Comcast/Time Warner Cable deal was scheduled to restart Jan. 12, although plenty of folks were still trying hard to stop the deal from going through, with the FCC still collecting data on issues of concern, including the hot-button issue of paid peering.
The FCC revealed last week that it has asked a bunch of online video service edge providers—Netflix and HBO Go among them—for information on how their bits are carried and treated by Comcast and other ISPs; or in the case of Sony, how it is planning to arrange interconnection for its future over-the-top service.
Late-fi led TWC documents cited by the FCC as cause for the latest, and second, clock stoppage have combined with ongoing litigation over third-party access to program contract documents to insure that the deal vetting is not getting a smooth start in the new year, after ending last year on a flurry of comments opposing the deal.
Those came in reply comments late last month from, among others, the Stop Mega Comcast Coalition, whose members include Consumers Union, DISH, the Future of Music Coalition, Public Knowledge, the Sports Fans Coalition and Writers Guild of America, West. Meanwhile, the FCC is looking to drill down on the issue of paid peering on its own dime.