In a strongly worded Petition for Reconsideration and Clarification NAB and MSTV criticized the FCC's Third Report and Third Memorandum Opinion and Order reallocating broadcast auxiliary spectrum at 2 GHz to the mobile satellite service (MSS) and advanced wireless service (AWS). (See RF Report for November 17, 2003).
"Although the Commission has attempted in its most recent relocation plan to balance the interests of all the parties involved, the resulting plan misses that goal by threatening the effective provision of incumbent services in ways that the Commission did not take adequately into account when it adopted the revised relocation plan," the NAB and MSTV said in its comments.
The associations said the plan requiring broadcast auxiliary system (BAS) incumbents in Markets 31-210 "to vacate two BAS channels without receiving any compensation or adequate assurance of future compensation merits reconsideration because it:
1. Underestimates the harm that the revised plan will cause to local news operations in markets outside the top 30,
2. Underestimates the disruption that the plan will cause to ENG operations across markets operating on different channel plans and
3. Fails to comprehend that the new entrants will have little incentive to compensate BAS incumbents that have already vacated the reallocated spectrum."
The NAB/MSTV filing says the FCC's decision is based on the implicit assumption that broadcasters outside the top 30 markets "provide measurably less news service than do broadcasters in the top 30 markets." The filing quotes multiple studies showing this is not the case -- 60 of the 70 TV markets from markets 31-100 have at least four stations offering local news, 32 of these markets have at least five and in two markets -- San Antonio and Fresno-Visalia -- seven stations offer local news.
NAB/MSTV conclude "These statistics show that broadcasters in markets 31-100 make nearly as extensive use of BAS spectrum as do broadcasters in at least markets 21-30. It follows, therefore, that taking away nearly 30 percent of the BAS spectrum in those markets will significantly hamper the ability of stations in those markets to sustain their local news services at current levels. Markets with as few as four local news stations fully utilize the seven BAS channels currently available to them. Local newscasts, which usually occur at the same time on all stations, typically include reports via ENG from several locations during each newscast. BAS channels are also used regularly for traffic and other reporting from helicopters and for transmitting video from stationary cameras at major traffic routes and intersections." Broadcasters in smaller markets also have more fixed links in the 2 GHz BAS band, which may be difficult to relocate to 7 GHz and 13 GHz due to long path lengths to distant satellite and translator stations. In some markets, additional relay sites could solve the distance problem, although at high cost, but in others, like the Honolulu market where the paths to other islands are over water, relay sites are not available.
NAB and MSTV cite a study conducted by the Society of Broadcast Engineers and Microwave Radio Corporation showing the FCC's plan for different channel plans for stations in the top 30 markets and those in markets below the top 30 will result in unacceptable interference to broadcast ENG operations. See the separate story in this week's RF Report for details on the SBE study and filing.
There are a number of ways to resolve the problems caused by this reallocation plan. The NAB/MSTV filing suggests three approaches:
* Issue a brief Public Notice seeking expedited comment on alternative relocation plans that will more effectively serve the competing goals of preserving incumbent services while facilitating MSS access to 2-GHz spectrum.
* Develop a relocation plan that minimizes up-front costs to MSS not by burdening the incumbents but by spreading relocation costs across all the new entrants who will benefit from the BAS relocation. This approach would be fully consistent with the Emerging Technologies principles adopted in this proceeding. Although this might introduce some further delay into the BAS relocation, that delay would not be the fault of the incumbents, but the inevitable result of the Commission's decision to reallocate a portion of the 2 GHz spectrum in the midst of the relocation process.
* In addition, if the Commission determines that at least some BAS incumbents will need to vacate spectrum prior to receiving relocation compensation, revise the rules to ensure that new entrants have proper incentives to compensate the incumbents in a timely manner. The Commission should thus (1) place a condition on each MSS entrant's license or authorization providing that the license or authorization will be revoked automatically in the event that the licensee fails timely to pay its pro rata share of the costs of relocating all BAS incumbents in all markets; and (2) provide that no fixed or mobile service provider shall be entitled to receive a license to use 2 GHz spectrum vacated by BAS unless and until the applicant has provided (or posted a bond to provide) pro rata reimbursement to BAS incumbents for any relocation costs that have not been reimbursed by MSS entrants or provided (or posted a bond to provide) pro rata reimbursement to MSS providers that have paid relocation compensation to BAS incumbents.
Refer to the NAB/MSTV Petition for Reconsideration and Clarification for more information on the legal basis for the Petition and problems with the plan for relocation compensation as currently structured.
