Station Groups: FCC Spectrum Proposals Are Illegal

Argue channel sharing, co-primary status are arbitrary and capricious

More than two-dozen station groups and owners representing
more than 200 TV stations across the country have banded together to tell the
FCC that its approach to freeing up spectrum is illegal, and in comments to the
FCC said, essentially, they can't comment fully on it because of the FCC's
piecemeal approach to the issue.

The groups, which are commenting collectively as Local
Television Broadcasters, include Media General, Nexstar, Allbritton, Granite,
Gray, Tribune, McGraw-Hill and a veritable host of others.

In their comments on the FCC's spectrum proceeding, they
told the commission that its proposals would do irrevocable harm to
broadcasters, viewers, the public interest and the law. And when it comes to
mobile DTV, they said the proposal for some broadcasters to channel share
would "eviscerate" the service without any corresponding benefit.

They also argue that efforts by the FCC to improve VHF
reception--as a way to encourage broadcasters to move there so the FCC can free
up contiguous spectrum space in the superior UHF band, are doomed to failure.

The FCC has proposed changing the designation of the
broadcast spectrum so that wireless broadband would be a co-primary use with
broadcasting, and to allow broadcasters to share their current 6 MHz channel.
But the broadcasters say that the FCC's proposals are arbitrary and capricious
because they "presuppose a comprehensive spectrum reallocation and auction
blueprint" that has not been advanced yet, and may never be advanced.

"Adoption of the proposals set forth in the NPRM [notice
of proposed rulemaking] would result in Commission action based on inadequate
study, unsupported speculation, and insufficient process, all in violation of
the Commission's obligations under the Administrative Procedure Act and established
administrative law principles," they argue.

And while the FCC has said that stations sharing channels
would each get must-carry rights, the broadcasters aren't convinced the FCC
could guarantee that. "If a court finds that the transmission apparatus
used by multiple licensees in a channel sharing situation amounts to only one
"station" under the Act, it would follow that the several broadcasters sharing
that "station" would have no greater mandatory carriage rights collectively
than licensees operating individual stations enjoy today."

They also say that FCC attempts to improve VHF
will run up against another set of laws: physics. There are, they say,
"immutable VHF propagation characteristics" that make any
improvements likely to be only slight and insufficient to protect DTV
service quality.

But the broadcasters aren't only about shooting down FCC
proposals. They had ones of their own, including asking the FCC to consider the
Capitol Broadcasting proposal, which would be for broadcasters to work together
with wireless companies, subleasing capacity to handle peak video traffic using
broadcasters more efficient one-to-many transmission model. Another suggestion
would be to revise FCC rules to permit broadcasters to deliver wireless
broadband themselves, while allowing broadcasters a fast-track to channel
switching so they could free up contiguous bands for a national service, with
the government getting a cut of the new business model.

Those, say the broadcasters, would be preferable, market-based

The FCC has proposed freeing up as much as 120 MHz from
broadcasters current approximately 300 MHz allocation to auction for wireless
broadband within the next four years.