How much are broadcasters not loving the FCC’s broadcast incentive auction framework—at least the ones hoping to come out on the other side in one piece and remain in business? Let them count the ways.
At present, the starting number is 1,978.
In recent weeks, as a vote on an incentive auction framework loomed, the National Association of Broadcasters (NAB) shifted into overdrive with meetings and filings, trying to get the FCC to change course on a couple of issues or simply act on others. One alternative among NAB options was offering legal challenges to the auctions on some or all of those issues.
The NAB has already signaled it may sue the FCC if the commission does not shelve its new method for calculating TV station coverage areas, and doubled down on that verdict with new evidence. It was still pushing last week to make room for wireless mic users, and international coordination issues are also on the list of possible court challenges, as is the FCC’s failure to act on some station petitions to change from VHF to UHF after years of inaction.
As to that magic number, 1,978 represents the stations the NAB says will have their coverage areas under-counted if the FCC uses new TVStudy software, rather than the current so-called OET-69 calculation to determine coverage areas when stations are repacked after the incentive auction.
Why does that matter? Because the FCC will also be calculating interference protections based on that area, and in the case of stations being assigned new channels, will be using that figure to assign that comparable channel with equivalent coverage.
According to a broadcaster source speaking on background, Congress went out of its way to specify the use of OET-69—language broadcasters pushed for—in order to give those broadcasters the assurance the FCC won’t move the goalposts on coverage areas and populations served during the auction.
The FCC says it is only changing the software to make it more accurate. But the NAB says the shift is actually doing a bit of both, creating inaccuracies and harmful results. The NAB would likely sue if that shadow remains unaltered by the future; a source confirms that is the most likely issue to wind up in court.
Testing: One, Two, Three
Zero is another number the NAB remains most concerned about, regarding the wireless microphones broadcast journalists use to report from the scenes of important events such as fires, tornadoes and other breaking news. That is how many reserved channels the FCC’s band plan had for those microphones before deciding to change course and offer 4 MHz.
NAB president Gordon Smith had told the FCC that its plan not to reserve any spectrum exclusively for wireless microphones would hamper broadcast breaking news coverage and emergency weather reporting, both of which get regular shout-outs from legislators at oversight hearings.
Broadcasters used to have 10 to 20 exclusive channels for wireless mics, a number reduced to two, and 6 MHz channels, when the FCC reclaimed spectrum in the first DTV transition in 2009. Then the FCC plan was to have no exclusive spectrum reserved for the mics. The FCC reportedly relented a bit, and will set aside that 4 MHz. The NAB’s executive VP, strategic planning Rick Kaplan says that while that’s moving in the right direction—since it recognizes the need for some reserved spectrum—because of the way the FCC plan doles it out, it does not provide sufficient interference protection for broadcasters or wireless companies. “From a technical standpoint, it’s not really viable,” said Kaplan.
If it is not workable, the wireless mic issue could land the FCC in court too, though that is said to be the least likely inspiration for a court date.
Then there are the border issues. NAB was joined by the broadcaster associations from over a dozen border states, including New York and California, in pushing the FCC to resolve border coordination issue before, not after, the incentive auction, which is now scheduled for sometime in 2015.
In a letter to the commission, the broadcasters warned of the consequences if the FCC does not agree to resolve those in advance of the auction. “Any failure to clearly address this issue in the order will require impacted parties to take all steps necessary to protect their interests,” they said.
One such necessary step would almost certainly include getting the court involved. Regardless, FCC chairman Tom Wheeler has signaled that coordination agreements will not necessarily be in place before the auction. The NAB has said it doesn’t think the auction would be legal if that were the case.
The broadcasters also wants the FCC to act on 10 pending station petitions to switch from VHF to UHF—the FCC is encouraging stations to make the opposite switch—which it points out have been pending since before the incentive auction legislation was passed. “There is no policy reason, beyond simply favoring mobile broadband service over broadcasting, not to process these petitions and act on them according to their merits,” the NAB has told the commission.
FCC ZAPS ZAPPLE
The FCC has officially declared the Zapple Doctrine null and void, and with that move reinforced broadcaster control of their content.
The doctrine was a corollary to the fairness doctrine, which the FCC scrapped in 1987 and took off the books officially in 2011.
“Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect,” the FCC said.
That came in a decision on the license renewal of a pair of radio stations in Milwaukee— Capstar’s WISN(AM) and Journal’s WTMJ(AM)—the FCC’s Media Bureau turned down petitions to deny the license by Media Action Center (MAC). MAC had cited the doctrine, which held that a station that gave time to supporters of one candidate had to make time available to supporters of an opposing candidate.
The fairness doctrine had broadly held that a station that gave time for one side of an issue of public importance had to provide time to opposing viewpoints. The Fairness Doctrine was found by the FCC in 1987 to be a violation of broadcaster speech rights, and Zapple presumably along with it. Broadcasters still have to make ad time available to other candidates if they accept it, but that is a separate issue.