At Thursday's House Committee on Energy and Commerce's Subcommittee on Communications Technology hearing concerning the LPTV and Translator Act, it was difficult to see what the act would actually do to protect LPTV and translator stations.
Louis Libin, executive director of the Advanced Television Broadcasting Alliance, testified that the FCC "has adopted rules that run the auction at a breakneck speed with, literally, no consideration at all of the impact on citizens served by LPTV and translator services. The rules reallocate LPTV spectrum to wireless carriers without assigning any value at all to the LPTV and translator services that would be eliminated."
He went on to say that "This is not a market mechanism. It is a pointless, tragic destruction of value, jobs, diversity, localism and rural service. The FCC could shut down thousands of LPTV and translator stations to give wireless carriers spectrum in rural areas that they do not need and likely will not use."
Libin added that while LPTV and translator operators and audiences would like to see much more done on their behalf, the LPTV and Translator Preservation Act was "a step in the right direction."
Harold Feld, senior vice president at Public Knowledge, also testified at the hearing. He too was sympathetic to the plight of LPTV and translator stations, but didn't see how the act would give those operations more protection than they already have without introducing delay and uncertainty into the spectrum auction.
Feld said: "Unfortunately, Public Knowledge cannot support the third bill under consideration, the LPTV and TV Translator Act of 2014. Public Knowledge generally agrees with the sentiments expressed in the bill that LPTV and TV translators provide valuable service to their local community. Furthermore, as we read the pending legislation, it essentially recapitulates the existing FCC responsibility to consider the 'public interest, convenience and necessity' when making decisions with regard to the assignment of licenses. Nevertheless, as I explain below, because of the delay and potential confusion that any new legislation would engender, we recommend that Congress take no further action on the Incentive Auction at this time."
Feld warned that if Congress were to pass the legislation proposed, it would add delay and uncertainty to the overall auction process.
"The FCC will be forced to consider how the new law impacts the repacking process," he said."Despite clear direction that the proposed bill does not alter the rights of full-power broadcasters and Class As, the FCC will nevertheless need to entertain comments and arguments from stakeholders on how the new statutory language does or does not alter the FCC’s previous determinations or influence how the FCC should conduct the repacking."
He continued: "For example, does the passage of a new law mean that Congress rejects the calculus the FCC made to minimize the cost of repacking, and that the FCC should therefore rewrite the repacking software to maximize availability of space for LPTV and translator licensees regardless of the cost to the auction or to full power broadcasters? Nothing in the statute officially requires such an outcome, but the fact that Congress passed a new law drawing attention to the importance of LPTV and translator services will give rise to such arguments."
Feld was also concerned that some stakeholders may see passage of the act as "an opportunity to re-litigate even entirely unrelated issues."
He noted that stakeholders could argue that if the FCC had to consider changes based on the new legislation (regardless of whether these changes are adopted), it would possibly have to consider other "minor or technical" changes too.
After the hearing, Mike Gravino, director of the LPTV Spectrum Rights Coalition, issued a statement strongly rejecting Libin's testimony.
"Mr. Libin was just not in command of the facts and figures of the LPTV industry," said Gravino. "This may for some create the impression that we are not organized as an industry and need the help of the very organization (NAB) and institution (Congress) which prevented LPTV from full participation in the auction. Have no doubt about it, our Coalition will stand up for all of LPTV to become auction eligible, for no station and construction permit to be denied a channel, for all built channels which are displaced to be provided relocation costs, and for a path to a flexible transmission future, not after the NAB members, but before. LPTV has always been the innovator in this industry, and we have that in our DNA, and in our promulgated rules and regulations."
Gravino distanced his organization not only from Libin, but also from the House Subcommittee as well.
"Mr. Libin, Congressman Barton, Chairman Walden, and Congresswoman Eshoo failed to speak to the most important issue facing LPTV, the $1 billion unfunded mandate which Congress gave to LPTV," Gravino said. "No one in the 112th Congress stood up with a UMRA (Unfunded Mandate Regulatory Act) point of order to stop it. And the FCC claims that it is not bound by it as an independent agency. No CBO study was ever done on either the benefits of including LPTV in the auction, nor the costs and impacts on the industry. Our Coalition demands that this be done now, and we will not stop until we have asked every member of the 113th Congress to do so. However, we will not work with this Subcommittee at this time as it is infected by the wireless industry and full power industry, and is playing patronage politics with LPTV. We will take our plight and fight against this unfunded mandate to the Senate." Gravino did agree in part with Feld, providing this summary of Feld's Public Knowledge testimony:
"Often quoted public interest group, with direct ties to the Google-plex and Silicon Valley, and who want the public’s spectrum for free to use for private gain, pleads not to add any new legislative directive to the FCC during the so far 30-plus month rule making process for the incentive spectrum auction. They claim, and our Coalition agrees, that by doing so, it would introduce entirely new dynamics into an already difficult process of balancing the needs of broadcasters, the wireless bidders, the LPTV licensees, and the unlicensed spectrum and TV white space users, which are all fighting to get as much spectrum allocated to their needs."
Gravino didn't see the Act providing any additional protection to LPTV and translator stations:
"Let’s be clear and precise. LPTV, in the Incentive Spectrum Auction Act of 2012, was afforded the best possible protections it could negotiate, the enshrinement of its’ then existing spectrum usage rights," he said. "The key right, which Chairman Walden inserted in the 2012 language, and traded with Congresswoman Eshoo for the unlicensed spectrum usage provisions in the Act, are the unsaid story in this drama. For LPTV this means that the FCC currently prevented from a wholesale taking of LPTV spectrum is the 'Right of Displacement'. This simply and powerfully says that an LPTV license has the right to find another channel if it is displaced by a primary spectrum user. For the past 30-plus months our industry has used this as the only clear mechanism we have to keep the interpretative powers of the FCC in check, and they are in agreement with us about it."
Also see Harold Feld's testimony