Little Off-Air TV Protection Offered in American Jobs Act
September 16, 2011
Visit www.WhiteHouse.gov, skipping the sign-up page, and you'll find videos and even a slide show on the American Jobs Act. Tracking down the full text of the Act is a little more difficult. I'll save you the trouble--it's here. Read the actual language of the Act and the proposed rules for the Incentive Auctions of TV broadcast spectrum and you'll find that the Act offers little assurance broadcasters will be able to continue serving the same audience they do now. It omits the critical protections in John Dingell's HR 2482 – Public Safety and Wireless Innovation Act.
Most articles I've seen this week on the American Jobs Act provide few details as to how the Incentive Auctions proposed in the Act would impact broadcaster, likely because the language isn't clear. I'll give my interpretation and welcome comments from people that might have a different understanding.
The American Jobs Act allows the FCC to move TV broadcasters to clear spectrum.
John Dingell's HR 2482 would have reimbursed broadcasters for all direct and indirect costs of the move. The Jobs Act is not as clear, saying amounts in the Incentive Auction Relocation Fund may only be used by the NTIA, in consultation with the Commission, to cover:
"(I) the reasonable costs of television broadcast stations that are relocated to a different spectrum channel or geographic location following an incentive auction under subparagraph (F), or that are impacted by such relocations, including to cover the cost of new equipment, installation, and construction; and
"(II) the costs incurred by multichannel video programming distributors for new equipment, installation, and construction related to the carriage of such relocated stations or the carriage of stations that voluntarily elect to share a channel, but retain their existing rights to carriage pursuant to sections 338, 614, and 615."
That's the end of the good news. Paragraph (F) gives the FCC wide authority to modify the licenses of broadcasters that don't give up their spectrum in an Incentive Auction and it isn't clear whether licensees would have to agree to them. It states:
"If the Commission also determines that it is in the public interest to modify the spectrum usage rights of any incumbent licensee in order to facilitate the assignment of such new initial licenses subject to new service rules, or the designation of spectrum for unlicensed use, the Commission may pay to such licensee a portion of the auction proceeds for the purpose of relocating to any alternative frequency or location that the Commission may designate."
Unlike HR 2482, there's no provision within the Jobs Act to protect a TV station's coverage area or to protect it from interference.
What happens if the incumbent licensee doesn't want change channels?
The wording "any alternative frequency or location that the Commission may designate" seems very broad to me. If they want your New York City spectrum, can they move your station to Montana?
If this is truly voluntary, it's unlikely that stations operating on UHF channels would want to move to a VHF allocation, but stations on the higher UHF channels would likely be open to moving to another UHF channel with costs covered by the NTIA fund mentioned earlier. Will the amount the FCC pays the licensee depend on the undesirability of the location or frequency it would have to move to? What happens if there aren't enough channels for the broadcasters that don't want to change location or move to a less desirable channel?
The Jobs Act exempts broadcasters from spectrum fees, so it appears that fees can't be used to persuade stations to "voluntarily" move off UHF channels.
It isn't clear whether Congress will pass the Act, and if it does, if there will be an opportunity to bring the legislation on Incentive Auctions more in line with HR 2482. The Jobs Act, as it stands, does little to remove the uncertainty over the future of of-air TV.
There is one indication that proponents of reallocating TV spectrum for wireless broadband are beginning to realize the National Broadband Plan recommendation to take 120 MHz of UHF TV spectrum isn't practical. The Act doesn't limit the amount of spectrum to be auctioned or limit it to UHF, but it did set a threshold at 84 MHz. After 84 MHz of broadcast TV spectrum is auctioned (and payments received), a portion of the funds from any additional TV spectrum auctions "may be disbursed to licensees of other frequency bands for the purpose of making additional spectrum available, provided that a majority of such additional spectrum is assigned via competitive bidding."
If 84 MHz of UHF TV spectrum is auctioned off, wireless services would start at TV Channel 38, with the Channel 37 spectrum reserved for medical devices and radio astronomy serving as a buffer between broadcast and wireless services. Broadcasters have to notify all nearby medical facilities before they can build a UHF TV station. I wonder if the wireless carriers that buy these frequencies will have to do this also?
Incentive spectrum auctions are only a small part of the Jobs Act, but it would be ironic if it passed as submitted and those people struggling to make ends meet lose access to free TV as a result.
Also see Reclaimed TV Spectrum Valued at $28 Billion in Obama Jobs Bill on TVTechnology.com.