Final Channel Sharing Order Without Must-Carry Opportunity for LPTV
FCC rules for channel sharing were approved Thursday on yes votes from Chairman Ajit Pai and Commissioner Mike O’Rielly. Commissioner Mignon Clyburn approved in part and concurred in part, over a change to the draft item’s effect on must-carry rules for low-power TV stations. “What disappoints me is that today we have actually closed the door on the very rare instances in which a secondary station could gain must-carry rights as a result of channel sharing,” she said. That alteration was praised by O’Rielly. “The commission is making clear with changes made to the text before us compared to the circulated version that television station must-carry rights are not being expanded in any aspect,” O’Rielly said. “As someone who is not necessarily the biggest supporter of must carry, we are correctly deciding not to reopen that can of worms here.”
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The draft item would have affected must-carry only in very rare instances, said Fletcher Heald broadcast attorney Peter Tannenwald in an interview. The channel sharing order allows all secondary stations to be both host or shared station in channel sharing agreements and requires they maintain the same carriage rights they had before channel sharing (see 1703020076). The draft item said it would have been theoretically possible for an LPTV station with must-carry status to give up its spectrum to be hosted in a channel sharing agreement, and then for a new LPTV station to take up that vacated spectrum and also be entitled to must-carry status, thus increasing the number of must-carry stations in a market. That could happen only if the FCC lifted a freeze on new LPTV stations and if the geographic situation fulfilled certain requirements, Tannenwald said. That possibility caused concerns on the eighth floor, acting Media Bureau Chief Michelle Carey said Thursday. The final order doesn't allow channel sharing to result in new must-carry stations, Carey said.
In making the change, the FCC removed from the order “a simple acknowledgement that the ‘benefits of channel sharing for secondary stations, outweigh any theoretical increase in the number of secondary stations cable operators may be required to carry,’” Clyburn said. “Nonetheless, I acknowledge that LPTV stations are free to privately negotiate for carriage, and am hopeful that many stations will find this to be a viable option.”
Other than the must-carry change, the final item seems to closely resemble the draft version, based on a Media Bureau release, though the text of the final order hasn’t been released. The order allows stations sharing under the incentive auction rules to make new sharing agreements if their current one ends, and allows Class A, LPTV and translators to channel share with full-power stations. “This flexibility gives LPTV and TV translator stations that are displaced by the auction repacking process more options for continuing to operate,” the bureau said. The order will allow low-power stations that are hosted by full-power stations to broadcast at the higher power level, according to the draft item.
The order is positive for LPTV stations but is unlikely to apply to many of them, LPTV Spectrum Rights Coalition Director Mike Gravino told us. Tannenwald too said the applications of the channel sharing rules might be limited, but conceded they may have more practicality in the future. Since the new rules could allow a secondary station to broadcast at higher power levels, they could be an opportunity for low-power stations that are network affiliates and could afford to pay a full power to enter into a sharing relationship, he said. That’s more likely to help larger businesses rather than the vast majority of low powers, however, Tannenwald said.
O’Rielly expressed concern about the possibility that LPTV stations could use channel sharing to offer their excess spectrum for wireless use. “This possibility has been bandied about in D.C. conferences and conversation for some time," O’Rielly said. "While I may or may not be in favor of permitting such arrangements in the future, this item does not serve to answer the necessary questions that would need to be addressed before allowing that to happen.”