The newly constituted FCC faced its first congressional oversight hearing on Dec. 12 and emerged essentially unscathed, with more praise than criticism from the House Communications Subcommittee panel and with most of the questions directed to FCC Chairman Tom Wheeler.
One answer Republicans were looking for came in response to concerns about the FCC's critical information needs of communities study that some Republicans saw as a new take on the fairness doctrine.
Wheeler said that in order to determine whether there are barriers to entry, it must get data, and that to collect data it needs to do studies. He said flatly that the study in question was not an effort to influence the media.
Subcommittee Chairman Greg Walden (R-Ore.) did not seem entirely assuaged, pointing out that some of the questions being asked suggested otherwise. Wheeler pointed out that the study had been put out for comment, and that those concerns were part of that input. Walden had joined in a letter signed by all the Republican members of the subcommittee asking Wheeler to suspend the study. He did not agree to do that.
Wheeler was asked several times how he was going to incentivize both broadcasters to give up spectrum and wireless companies to bid on it and maximize revenue.
Wheeler promised that next month the FCC would start providing some of the information that the stakeholders need to make that decision, pointing out that "before he took this job I was in the business of doing business deals." He was a venture capitalist, and that was what the auction was. "This is a business decision that someone who has a license needs to make a decision about," he said.
He added that the FCC "needed to make sure the commission was getting relevant information on a timely basis into the hands of those parties to make that decision." He stated that in January the FCC would start laying out what that information is. He also said it was incumbent upon the FCC to have an outreach program so broadcasters small and large "understand how the program is going to work and what the economics could be."
Wheeler said it would be up to the marketplace to decide what is the highest and best use of spectrum. "The marketplace can't make that kind of decision until it's informed, so it is incumbent on us to make sure that kind of information is available in a timely manner and to help with that process."
Walden asked Wheeler whether he would close the Title II docket, a mechanism by which the FCC could apply mandatory access rules to ISPs if the D.C. court overturns its Open Internet order.
Wheeler, who elsewhere declared himself a strong supporter of the order--"full stop"--said that there was no need to rush to that decision before the court had weighed in on what authority the FCC has under its net neutrality approach in the order.
The hearing did generate some news, including that later today the FCC will announce a voluntary deal among wireless carriers to unlock users' cell phones, allowing them to work on other carriers when their contracts had expired.
Wheeler also put a September date for the auction of AWS-3 spectrum, one of three spectrum auctions on the FCC docket--the H block auction Jan. 22 will be the first, and the broadcaster incentive auction will bracket the other end in mid-2015.
Also on the news front. Look for a bill to give low power TV's some pathway to remaining in existence after the spectrum auctions.
Asked about low powers and translators, which are not protected in the TV station repack, Wheeler said that, in rural areas, a de facto shield may be that there is not as much pressure since there is more available spectrum. He also pointed out the FCC is taking comments on how to get that programming out to consumers in other ways. "This is clearly an issue where we need to be focusing on the effect on the consumer rather than the transmission medium, because you have told us how to look at the transmission medium." (The statute gives lower powers and translators secondary status. They are also not allowed to participate in the auction.)
It was not exactly news, but Wheeler also told an unhappy Rep. John Dingell (D-Mich.) that he could not guarantee the FCC would complete its spectrum border coordination before the broadcast incentive auction. Dingell suggested that would threaten viewer signals in his home state.
Rep. Dingell was much happier with Wheeler's answer on 5 GHz and the issue of expanding WiFi in that band, an expansion strongly backed by cable operators. He assured Dingell that the FCC would not allow additional WiFi if it interfered with the intelligent transportation systems (ITS) Dingell (and Michigan automakers) are concerned about. "I'm very glad you are here," Dingell said.
Some of the hearing was taken up with discussion of FCC reforms. Wheeler promised action on a report he wants on his desk by the end of the month, including how to speed applications and other decisions.
Walden tried to light a fire under the chairman on completing the media ownership rule review and providing regulatory certainty on the UHF discount. He suggested that the FCC's proposal to eliminate the discount, which treats the discount as effectively eliminated already, has hit the "pause" button on industry deals. He also warned the FCC not to limit bidders in the incentive auction, a point echoed by several Republicans on the panel.
Wheeler said he understood the statutory mandate not to exclude any bidders, but added there was another mandate, which was to promote competition and protect consumers through rules of general applicability. Wheeler promised the auction would do both. He also pointed out recent statements by AT&T that it would not oppose bidding conditions that prevented one company from walking away with all the spectrum, so long as it were applied equally to all.
While FCC oversight hearings can be gauntlets, this was more like a series of high-fives. Rep. Anna Eshoo (D- Calif.), ranking member of the subcommittee, said Wheeler had 100% goodwill from the committee and she thought probably the entire Congress. Commissioner Rosenworcel was praised for her E-rate advocacy, and former Acting Chair Mignon Clyburn was repeatedly hailed for her accomplishment. Rep. Lee Terry (R-Neb.) continued what has been a bipartisan week generally on the Hill by fairly gushing over Clyburn's tenure. "I love the way you reached out to us and, frankly, you are so extraordinary I think that every chairman, including the new one, should model themselves after that," he said. "It is very rare that we see that level of communication."