As of Memorial Day the FCC has not released the text of its Incentive Auction Report and Order and previous news releases and summaries have left many questions unanswered. Some hints as to what might be in the Report and Order when it is released can be found in the statements FCC Commissioners released when it was adopted earlier this month.
Commissioner Ajit Pai's dissenting statement indicates that the FCC’s TVStudy will be used for the repacking (not a surprise), but he's concerned that TVStudy departs enough from OET-69 methodology to invite a court challenge to its use in the repacking.
"To be sure, the item spends about 15 pages explaining why the Commission is not straying from the OET-69 methodology and thus is complying with the Spectrum Act," said Pai. "I know firsthand that the attorneys in our Office of General Counsel are extremely talented, and they have certainly done yeoman’s work here in developing arguments to support the Commission’s position. But at the end of the day, they are trying to fit a square peg into a round hole."
The Report and Order makes the argument that the Commission is changing "input values" rather than the OET-69 "methodology." Commissioner Pai points out that OET's argument is unable to point to any Commission precedent distinguishing between the two. He points out that the substitution of 2010 census data for 2000 census data contradicts a position taken by the FCC in 2007 before the DTV transition, where the Commission said: "We will revise the OET 69 interference analysis methodology to make the results more accurate and ensure consistent methodology. Specifically, we adopt the use of 2000 census data for use in all applications..."
Pai also cited a case where the use of a station's vertical elevation pattern was specifically described as part of the methodology, noting "In 2006, the Commission described these default vertical antenna patterns as "inherent in the OET-69 methodology." Pai continued: "We can’t take elements that were part of the OET-69 methodology at the time the Spectrum Act was passed and simply assert by fiat that they are no longer part of that methodology but merely inputs."
He provides another example: a one arc-second terrain elevation database is specified in the Report and Order instead of the three arc-second terrain elevation database currently used for OET-69 studies and writes: "The item justifies this change by arguing that OET-69’s reference to three arc-second data 'is a descriptive statement about an input database. . . not a prescriptive element of the OET-69 methodology.' This, however, is too cute by half."
Pai explained: "For one thing, the statute requires the Commission to use the 'methodology described in OET. Moreover, the distinction between 'an input database' and 'the OET-69 methodology' is an artificial one. Pursuant to the OET-69 methodology, a television station’s service is evaluated at one-kilometer increments. That service determination, in part, depends upon the elevation of terrain between the transmitter and each point, and that elevation is determined by a terrain elevation database with values every three arc-seconds of latitude or longitude. So the database, in reality, is part of the methodology."
Commissioner Pai did not object to changes to the FCC's computer software to support the incentive auction and does not object to those changes that do not alter the OET-69 methodology.
Regarding the changes in the Report and Order, he says: "But the changes discussed above do not fall into this category. They are luxuries, not necessities. They might be nice to have, but they are not must-haves. And they certainly aren’t worth the risk that a court will delay or invalidate the incentive auction because of our failure to comply with the Spectrum Act." I encourage readers to read The Dissenting Statement of Commissioner Ajit Pai. My take is if the issues he raises about TVStudy and the input data used are not taken into account, the FCC will be challenged in court and will either delay or invalidate the FCC's Incentive Auction.
Commissioner Michael O'Rielly issued a shorter dissenting statement and did not directly reference TVStudy and OET-69. His criticisms focused on bidding restrictions and how the end of the auction will be determined. Regarding the items postponed, he said: "Too many important pieces are punted to a later day, especially since the item admits that decisions made today may be "refined" in the future. So, instead of establishing a solid framework with a firm foundation, these may be, at best, temporary decisions."
O'Rielly also raised the possibility of court intervention:
"Finally, I will suggest that there are legitimate questions as to whether this item complies with the requirement in the statute to protect the broadcasters who chose not to participate in the auction and their corresponding viewers. The item seems to skid across the line in a couple of instances and I expect a court may find difficulty in supporting the Commission here, notwithstanding any normal deference given. Congress was abundantly clear that it wanted to hold harmless non-participating broadcasters in their ability to serve their over-the-air viewers. I am disappointed to see this directive not sufficiently honored."
For additional information, see the Dissenting Statement of Commissioner Michael O'Rielly.
Commissioner Mignon L. Clyburn issued a statement supporting the Report and Order. Many of her comments focus on the auction process and the need for more spectrum for wireless services, although she did have some comments on LPTV and unlicensed use of the UHF TV spectrum.
Regarding LPTV, she describes the more comprehensive rulemaking proceeding the FCC will take in the future, saying: "In addition to channel sharing, it will explore: (a) allowing these stations to transition to VHF channels; (b) using the repacking software to help LPTVs, find new locations to operate; and (c) extending the September 2015 deadline for converting digital services, so LPTVs do not have to relocate to meet that deadline, and relocate yet again, after the incentive auction."
She added: "The Order also adopts a rule that would allow these stations to continue, post auction, to serve in a 600 MHz license area until a wireless carrier commences operation. The wireless carrier must notify LPTVs, 120 days in advance, of that date."
The statement commended the staff for finding solutions for wireless microphones, noting: "In the Incentive Auction Order, we will permit wireless mics to operate in 4 megahertz of the duplex gap, and in the naturally occurring empty TV channel, in every market."
For more information, see the Statement of Commissioner Mignon L. Clyburn.