A divided FCC has voted to "clarify" that the FCC's incentive auction framework will make all reasonable efforts to protect both the coverage areas and interference protections.
The incentive auction legislation required the FCC to do that, but apparently the FCC's order on the incentive auction framework did not make the protections of both explicit.
The dissenting votes were from Republicans who saw it as a procedural gambit to repair the FCC's court arguments for the framework, which were challenged by the National Association of Broadcasters over how the FCC planned to protect, or in NAB's view not sufficiently protect, broadcasters' signals in the repacking of stations following the auction.
They argued the FCC was making an unusual move to make a retroactive change that should require notice and comment.
"Apparently worried about its chances of prevailing in court, the Commission decides at this late date to offer up additional arguments for its already-made decision not to protect the unpopulated portions of stations’ coverage areas against interference when repacking," said Republican commissioner Ajit Pai. "At this point, the FCC cannot legally change its prior decision other than through notice-and-comment rulemaking."
"NAB believes the FCC's procedure here is quite suspect," said National Association of Broadcasters spokesman Dennis Wharton. "The court will have to decide if it passes legal muster."
"I believe the legal term is ‘cheesy,’" added NAB executive VP Rick Kaplan, NAB's point person on the incentive auction.
An FCC source confirmed that the item was meant to clarify what they called a miscommunication brought up by NAB, and to do so before the FCC and NAB have to brief the court.
FCC chairman Tom Wheeler said only in Washington would an attempt to clarify something—he said it does not modify the framework—draw fire. He said the declaratory ruling was not unusual.