Just before the National Association of Broadcasters Show got underway the FCC Media Bureau issued a news release
announcing limitations on the filing and processing of full-power and Class A TV station modification applications, effective immediately.
The Spectrum Act authorizing the incentive auctions to reallocate UHF TV broadcast spectrum included language that requires the FCC to “make all reasonable efforts to preserve, as of [Feb. 22, 2012], the coverage area and population served of each broadcast television licensee....” when repacking UHF TV spectrum, and the latest FCC news release stated: “Additional development and analysis of potential repacking methodologies is required in light of the technical, policy, and auction design issues raised in the rulemaking proceeding. This work requires a stable database of full power and Class A broadcast facilities. In addition, to avoid frustrating the central goal of repurpos[ing] the maximum amount of UHF band spectrum for flexible licensed and unlicensed use,' we believe it is now necessary to limit the filing and processing of modification applications that would expand broadcast television stations’ use of spectrum.”
The FCC release specifically stated: “Beginning immediately, and until further notice, the Media Bureau will not accept for filing modification applications (or amendments to pending modification applications) by full-power and Class A television broadcast licensees and permittees for changes to existing television service areas that would increase a full-power station’s noise-limited contour or a Class A station’s protected contour in one or more directions beyond the area resulting from the station’s present parameters as represented in its authorizations (license and/or construction permit). Similarly, we will not accept Class A displacement applications that would increase the station’s protected contour.”
The FCC will allow filing of Class A minor change applications to implement the digital transition (flash-cut and digital companion channel), and will process the applications subject to current limitations in the FCC rules.
Also, the FCC will consider requests for waiver of the filing limitation on a case-by-case basis “when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site.”
TV broadcasters that have pending applications that are at variance with the limitations (i.e. the application would extend coverage beyond that of Feb. 22, 2012) were given 60 days to modify the application to comply with the limitation or request a waiver. The FCC said, “Pending applications that are not amended consistent with this Public Notice will be processed after the Commission’s release of a Report & Order in the Incentive Auction rulemaking proceeding, subject to the rules and policies adopted therein.”
The status of construction permits granted, but not constructed, as of Feb. 22, 2012 remains uncertain. In the Incentive Auction NPRM, the FCC stated it interpreted Section 6403(b) (2) as requiring all reasonable efforts to preserve facilities that were licensed, or for which an application for license to cover authorized facilities was on file as of Feb. 22, 2012. The NPRM also said the Commission did not interpret Section 6403(b) (2) as prohibiting it from granting protection to additional facilities where appropriate.
While it did not say under what conditions it would grant protection to these construction permits, the announcement stated: “We take this opportunity to remind stations that, as provided in the Spectrum Act and the NPRM, the extent to which a facility that is not covered by Section 6403(b) (2) (a “non-covered facility”) will be preserved in the repacking process will be decided by the Commission in the Incentive Auction rulemaking proceeding. For stations with non-covered authorized facilities, we take this opportunity to remind them, before additional investments are made in these non-covered facilities, that the extent to which the non-covered facility will be preserved in the repacking process will be decided by the Commission in the Incentive Auction rulemaking proceeding.”
The announcement does not--as I read it--stop stations from constructing facilities for which they have been granted a construction permit, but makes it clear that in the repacking the coverage from the new facilities may not be protected. The extent to which these will be protected in the rulemaking will likely be based on the criteria listed above for a waiver on the filing limitation.
What isn't clear is whether the FCC at some point in the rulemaking process will cancel “non-covered” construction permits for which they haven't received an application for license. That possibility puts broadcasters that have not been able to complete construction in a difficult position. Do they take a chance and build the new facility with the risk it won't be protected in the repacking, or risk losing the opportunity to improve coverage, perhaps only for a few years, by waiting until the rulemaking more clearly defines how the FCC will handle existing construction permits?