NAB, Sinclair Outline Incentive Auction Objections to Court

WASHINGTON—Broadcasters are urging a federal court to just say “no” to the rules governing the TV Spectrum Incentive Auction. The National Association of Broadcasters and Sinclair filed their joint brief with the U.S. Court of Appeals for the D.C. Circuit outlining their specific objections to the rules approved by the Federal Communications Commission in May.

“The Order violates the Spectrum Act in at least four ways,” the brief states, citing changes to OET-69, reductions in populations served and signal reach and the absence of protection for translators.

The petitioners note that when Congress passed the Spectrum Act authorizing the FCC to hold the incentive auction, it “unambiguously” required the commission to “use the methodology described in OET Bulletin 69.”

OET-69 was a “fixed suite of software and procedures that existed on Feb. 22, 2012,”—the date the Spectrum Act was passed—“and had been used by the FCC for years to calculate interference between broadcast signals. That is the methodology specified in the Spectrum Act—not TVStudy, which did not exist in 2012,” the petitioners said.

The NAB specifically targeted TVStudy in their original lawsuit because it uses updated data that the NAB says reduces coverage for 1,000 or more full-power and Class A TV stations.

“The commission cannot properly use a methodology that differs from the one required by Congress,” the petitioners said.

By extension, they said the population served by each broadcast licensee will be diminished, a violation of the Spectrum Act in itself. The Act directs the FCC to “make all reasonable efforts to preserve, as of Feb. 22, 2012, the coverage area and population served of each television licensee, as determined using the methodology described in OET-69.”

“Yet the commission decided not to protect against terrain losses that will occur to the signals of reassigned licensees,” the brief said. “Such terrain losses mean that, ex ante, the FCC will not protect broadcasters’ coverage areas and populations served. …its decision to protect only against new interference from other broadcast television stations plainly violates the Spectrum Act’s preservation mandate.”

Since both “population served” and “coverage area” of TV stations are specifically mentioned in the statute, the NAB and Sinclair say both constitute violations of Congressional intent.

“By protecting only geographic areas having a ‘population served,’ the commission reads ‘coverage area’ out of the statute,” the brief said.

Translators applied the same imperatives to fill-in translators. The Incentive Auction R&O doesn’t protect translators or non-Class A low-power TV licensees.

“Viewers who receive television signals from fill-in translators are no less served by broadcast television licensees than viewers who receive the main signals directly,” the brief states. “The FCC cannot preserve each licensee’s coverage area and population served without accounting for these expressly authorized translators.”

Sinclair further objects to the FCC’s 39-month deadline for stations to cease broadcasting on reassigned channels, and for allowing broadcasters in single-bidder markets to participate in the reverse auction. The reverse auction is the first of a two-stage process by which broadcasters name their price for their 6 MHz of spectrum.

Sinclair said the 39-month deadline will force some of its stations off the air.

“Sinclair owns at least 27 stations in the band most likely to face repacking. Many of Sinclair’s stations will be repacked, forcing Sinclair to redesign their facilities or construct new facilities to begin broadcasting on newly assigned frequencies,” the brief states. “There is a substantial likelihood that some of these stations will be forced to cease broadcasting until construction is complete, causing irreparable injury.”

Respondent briefs are due to the court Dec. 9. Briefs from intervenors in support of respondents, if there are any, are due Dec. 18. The NAB and Sinclair must reply to all by Jan. 13, 2014, with final briefs due Jan. 15, 2015.

The commission delayed the auction from mid-2015 to early 2016 in light of the legal challenges.

May 15, 2014,
Divided FCC Passes Incentive Auction Order
The FCC passed an incentive auction order codifying the use of contested technology and giving broadcasters 39 months to move. It also establishes a 5 MHz band plan, assumes a set-aside channel in each market for unlicensed devices, and allows LPTV stations and translators to continue operating in reassigned channels until the new airlords take over.

September 19, 2014,Sinclair Sues to Stop Incentive Auction
Sinclair Broadcast Group has filed a petition in federal court to stop next year’s spectrum incentive auction. The Baltimore-area broadcast group asked the court to vacate the final order of the FCC’s auction rules.

August 18, 2014,“NAB Sues FCC Over Incentive Auction Rules”
The commission modified the data used for 2009 repack in a way that many say changes signal reach. The National Association of Broadcasters claims this change violates the Spectrum Act, which directs the FCC to preserve coverage as it was measured Feb. 22, 2012.