Noncommercial TV stations were taking aim Monday at the FCC's rejection of their petition to insure that there is still a channel available for noncommercial stations in each market after the broadcast incentive auction.
They suggest that, for the first time, the FCC is subjecting the future of noncommercial TV to commercial market forces.
"Through this decision, the Commission has disregarded the needs of the millions of Americans who rely on public television for essential services in education, public safety and civic leadership," the Association of Public Television Stations, PBS and CPB said in a joint statement.
The FCC said, in rejecting the petition by the noncom groups, that those stations could still give up spectrum and share, but that if a station wanted to get out of the business and the result was no more noncom channel in the market, it was not going to prevent that.
The FCC pointed out that stations could still give up spectrum and share with another station, reserving the noncommercial license on their part of the channel.
But in response to the FCC decision, the groups made clear their displeasure, particularly after a noncom volunteered for a sharing test that helped the FCC advance its auction proposal.
"Through the petition denial, the Commission has decided for the first time ever to make the continued existence of noncommercial educational reserved spectrum subject entirely to market forces," they said in a joint statement.
"By denying this petition, the Commission is discarding six decades of regulatory precedent and the clear mandate of the Public Broadcasting Act of 1967 to provide universal service. In taking this action without a rulemaking procedure in which interested parties might participate, the Commission is neglecting its own rules and ignoring the Administrative Procedure Act governing such rulemakings," they said.
No word on whether they would be willing to sue the FCC, potentially delaying the planned early 2016 auction date, but according to a broadcaster source, noncoms were among a group meeting with FCC chairman Tom Wheeler Monday about the auction. And the reference to ignoring the Administrative Procedures Act could be a signal since FCC challenges frequently cite alleged APA violations as the sort of arbitrary and capricious decision making that courts should overturn.
A spokesperson for APTS said they were conferring with their colleagues at CPB and PBS about what their next step should be.
“The FCC recognizes the important public service role that public broadcasting plays. All eligible stations have the option to take part in the incentive auction, but aren’t required to do so.," said an FCC spokesperson. "Commission staff has worked with public broadcasters to facilitate a range of auction participation options, such as channel sharing and moving to the VHF band, that would permit stations to benefit financially from the auction, while at the same time continuing to provide their valuable content to viewers.”
An FCC official speaking on background points out that the FCC will look, on a case-by-case basis, at where there could be a loss of noncommercial service in any specific market, and has a number of options to deal with that, but that a blanket reserve of noncom spectrum would make it harder to repack the band. The FCC's view is that this approach is more flexible, while still dealing with the loss-of-service issue.