LPTV Attorneys, FAB Have Mixed Reaction to LPTV Order
Low-power TV attorneys and groups had an unenthusiastic response to the FCC’s recent order on the TV incentive auction’s effects on LPTV and translators. “Much more was said by the FCC than done,” said Free Access Broadcast and Telemedia (FAB), which challenged the commission’s incentive auction order in the U.S. Court of Appeals for the D.C. Circuit. “Whether -- and if so, how many -- LPTV/translator stations will benefit from the newly adopted measures is unclear,” Fletcher Heald broadcast attorneys Peter Tannenwald and Ashley Ludlow said in a blog post. The FCC declined to comment.
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FAB asked for an extension of the Dec. 30 due date for a petitioner’s brief in its court challenge of the auction rules so it can take the LPTV rulemaking into account, FAB said in a letter to the court. The petitioner’s briefs in the case are now due Jan. 11, and final briefs March 21, days before the expected start of the incentive auction.
Though they concede the proposals in the rulemaking will provide some help to LPTV and translators, Tannenwald and Ludlow criticized the FCC for not adopting any of the suggestions that would have made LPTV more attractive for capital investment. Tannenwald has long backed rule changes that would loosen restrictions on how LPTV stations use their spectrum. Such a rule change could have “expanded considerably the availability of broadband,” the blog post said. The FCC's not taking the proposal up is “especially odd in view of the FCC’s urgent efforts to expand such service in precisely such places,” Tannenwald and Ludlow said. The commission’s policies “will require LPTV stations to try to stay alive subject to restrictions that limit entrepreneurial innovation far more strictly than rules that will govern the wireless entities that take over the TV spectrum LPTVs are forced to vacate.”
Consideration of whether to adopt new or alternative technical standards for LPTV is “premature” and “outside the scope” of the auction proceeding, the FCC said in the order. “Even if such standards were to be adopted in the near future, a plan for implementation would have to be considered and developed by the Commission through notice and comment rulemaking proceedings,” the order said.
The FCC also could have included changes to the rules on when LPTV stations are considered to “go dark,” or provided a path to full-power status after the auction for such stations, Tannenwald and Ludlow said. In the order, the commission said it would “consider at a later date whether to allow LPTV and/or TV translator stations to obtain primary status after the completion of the Post-Auction Transition Period” but that a status change within that period is out of the question. “If LPTV or TV translators obtained primary status during this period, reassigned full power and Class A stations would have to take into account these additional protected stations when proposing expanded facilities and alternate channels, thereby impeding our goal of facilitating the post-auction transition,” the order said.
FAB criticized the FCC for not releasing data about how the auction will affect the LPTV industry, information which FAB has sought through several previous FCC filings. “The FCC fails to detail the anticipated impact of the incentive auction on LPTV service -- information that is of vital importance to creating a full record of the auction process,” FAB said in a released statement. Chairman Tom Wheeler told legislators there's no such data. The FCC should have waited for the GAO to complete its own study of the auction’s impacts on LPTV, FAB said. “Postponing action in this proceeding until after we receive GAO’s report would unnecessarily delay the measures we adopt in this Third Report and Order to mitigate the potential impact of the incentive auction on LPTV and TV translator stations,” the FCC order said.