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Dingell: FCC Risks Lawsuit for Withholding TV Channel Repack Model

WASHINGTON: John Dingell is not letting go of his pursuit of the formula that will determine where TV stations end up after a spectrum incentive auction. The Democratic congressman from Michigan went after Federal Communications Commission Chairman Julius Genachowski Tuesday morning at an FCC oversight hearing of the House Subcommittee on Communications and Technology.

“I’ve tried for some time to get the commission to share with me the [Allotment Optimization Model] used to develop the incentive auction and variables,” he said to the chairman, whom he referred to as “Ginaski.” “The commission has to date refused to share these variables and assumptions.... Will the commission make public the AOM as well as the assumptions and variables in its incentive auction rulemaking?”

“The commission will make public all the information ‘relevant’ to the auctions,” Genachowski said.

Dingell said the FCC could find itself the subject of a lawsuit if it does not make its AOM public. He asked if it had been updated with new information on border issues with Canada and Mexico. Genachowski said he’d have to get back to Dingell on that. Dingell asked if the FCC was communicating with Canada and Mexico regarding the incentive auctions, to which the chairman replied in the affirmative.

Dingell first asked Genachowski to surrender the AOM in June of 2011. Genachowski missed Dingell’s request deadline, and in August, declined to provide the AOM, telling the Congressman it was a “work in progress.”

“I am deeply concerned that disclosure of pre-decisional information would potentially damage the commission’s deliberative processes, as well as result in needless public confusion about the status of the commission's work on the voluntary incentive auction concept,” he told Dingell at the time.

The AOM would provide information on how many TV stations would go off the air according to how much broadcast spectrum is auctioned off for wireless broadband. The National Association of Broadcasters has estimated that as many as 210 stations would go dark should the FCC secure the 120 MHz it seeks for auction.

Genachowski committed to providing the AOM when the FCC was granted the authority to hold incentive auctions. That authority was codified by President Obama in February. It allows the FCC to share auction proceeds with broadcasters who voluntarily relinquish spectrum. Genachowski said notices regarding the auction process would be issued this fall.

Dingell further mentioned the repacking roundtable recently held at the commission. Panelist Jay Adrick of Harris said that trying to repack 1,800 TV stations into 40 percent less spectrum in three years time would lead to “chaos.” Dingell asked Genachowski if the commission considered three years sufficient for repacking.

“Has the FCC collected information to support or refute that claim,” he asked Genachowski, who said he was not yet certain.

“I’d be a lot more comfortable if you knew the answer,” Dingell replied.

At that point, Rep. Greg Walden, (R-Ore.), chairman of the subcommittee, said the AOM was important for proceeding with incentive auctions. He said the issue needed to be discussed further.

The spectrum incentive auctions arose from the National Broadband Plan, which seeks to secure 500 MHz of spectrum for wireless broadband, including 120 MHz from the TV broadcast band. Broadcast proponents called for a spectrum user inventory, which was never conducted, though it has since been revealed that the federal government itself is using about 60 percent of the nation’s communications airwaves.

Rep. Cliff Stearns (R-Fla.) suggested an inventory of military and other government licensees. He also brought up a report from the Commerce Department that said it would cost $18 billion over 10 years to relocate federal users in the 1755-1780 MHz band.

He asked FCC Commissioner Robert McDowell for his thoughts on the report.

McDowell said the report was only as good as the information provided by other federal agencies. The good thing about repurposing federal spectrum is that the executive branch is controlled by one person—the president—who could easily order federal users to move, he said.

Brett Guthrie (R-Ky.) later asked McDowell if federal agencies were using spectrum efficiently. McDowell said there was no way to know, because the FCC did not conduct an inventory.

“The president could resolve these issues,” he said. “We need spectrum. The Broadband Plan calls for 500 MHz to be auctioned. I’m skeptical that incentive auctions will yield 80 MHz, and where, we don’t know. ...Even if we could find spectrum today, it would take the better part of a decade to get it into the hands of consumers.”

Today’s hearing on Capitol Hill marked the first for the newest commissioners, Ajit Pai and Jessica Rosenworcel, whose name was avoided by more than one member of the subcommittee.

Rosenworcel,recently confirmed as the Democratic replacement for former Commissioner Michael Copps, said the FCC should conduct incentive auctions “in a manner fair to all stakeholders.”

“I do not believe that incentive auctions alone will meet our spectrum challenge,” she said. “We also must find ways that reward federal users when they make efficient use of their spectrum and provide real incentives for sharing or return when their allocations are underutilized.”

Pai, the Republican appointee who took Meredith Attwell Baker’s chair, said the commission already failed to meet its stated goal of freeing 180 MHz of spectrum for broadband by the end of 2011.

“It is now the middle of 2012, and still none of the identified bands can be utilized effectively for mobile broadband. We must act quickly to turn this situation around,” he said.

One immediate option is to finalize the technical rules on 40 MHz of spectrum in the 2 GHz band already dedicated to 4G wireless services, he said. Longer term, the commission needs to “encourage” the efficient use of commercial wireless and unlicensed spectrum, and work with the Commerce Department to secure federal spectrum, he said.

Rep. Anna Eshoo (D-Calif.) asks about protecting unlicensed spectrum as the commission rounded up frequencies for broadband. Genachowski said it was an important issue, and that unlicensed spectrum had already contributed “trillions” to the U.S. economy.

Eshoo also grilled the commissioners about broadband speeds, which she said were often the subject of false advertising. Genachowski said the commission was working on comparing speeds to advertised claims. Rosenworcel noted that broadband speeds were a subject of a growing number of complaints at the commission.

Rep. Doris Matsui (D.-Calif.) asked about the possibility of pairing the 1755-1780 MHz block with another at 2155-2180. Genachowski said that would be ideal, and that an experimental license had been granted in the lower block to explore the possibility. Matsui and Stearns are cosponsoring a bill to combine the two spectrum blocks at auction and to give federal users five years to get out of 1755-1580. Stearns mentioned that he’d like to have a hearing on the bill.

Rep. Phil Gingrey (R-Ga.) asked the commissioners about a low-power TV station in Atlanta that applied for Class A status channel applied for Class A status. The station was denied, and filed an appeal, which has now been unanswered for 12 years. He asked the commissioners for a commitment to resolve the issue.

Rep. Charlie Bass (R-N.H.) brought retransmission reform. He said that several thousand people woke up this morning with a blue screen where ABC used to be on Time Warner Cable. Manchester, N.H. ABC affiliate WMUR is owned by Hearst Television, which is in a retrans stand-off with TWC. Bass asked when the commission intended to complete its retransmission rulemaking.

Genachowski said he’d get back to Bass on the rulemaking, but that the commission’s authority under current law is limited. He said the FCC’s retransmission procedure did not preclude Congress from taking action.
~ Deborah D. McAdams

Also see Leslie Stimson’s coverage, “Minority Ownership Promoted During FCC Reform Hearing.”