In June, the Senate Commerce Committee approved S.911, a bipartisan bill that represents the most detailed effort yet to make TV band spectrum auctions a reality. The bill now goes to the full Senate. Due to other legislative priorities, the Senate may not take final action this year. Also, any auction plan would depend on action on corresponding bills in the House, which is not as far along as the Senate. But repurposing legislation could pass as early as this summer if it is attached to pending budget legislation.
The focus of S.911 is the creation of a public safety wireless network, which would be controlled by a new government-created corporation — the Public Safety Broadband Corporation (PSBC). TV spectrum repurposing enters the picture as a potential source of funding for the new public safety service, mainly through the sale of the reclaimed spectrum to big wireless providers. Pertinent to TV broadcasters are the following provisions:
- No full-power TV licensee would be forced to give up spectrum in order to make it available for an incentive auction. But, if a licensee opts to relinquish its spectrum, the commission would be authorized to share some part of the resulting auction proceeds with the licensee.
- The FCC's methodology for sharing auction proceeds must “consider the value of the spectrum voluntarily relinquished in its current use and the timeliness with which the licensee cleared its use of such spectrum.” This vague standard would be subject to FCC interpretation through the rulemaking process.
- Licensees choosing to retain their spectrum would likely be subject to spectrum “repacking,” which could require them to change to one of the frequencies that remain available for over-the-air TV. Such repacking may require frequency sharing or bandwidth reductions in markets where there is sufficient remaining spectrum to accommodate all migrating stations.
- In imposing such an involuntary move, the commission would only have to make “reasonable efforts” to assure that the repurposed licensee gets “an identical amount of contiguous spectrum” in the same band (i.e., UHF or VHF); in the same geographic market; and with the same area/population coverage and interference protection. Such protections would apply only if “technically feasible” and where their application would be “in the public interest.”
- The FCC would not be permitted to force stations to share a channel, although licensees who voluntarily elect to channel share would be guaranteed the same MVPD carriage rights they currently enjoy.
- No less than 5 percent of auction proceeds — but no more than $1 billion — would be set aside in a new Incentive Auction Relocation Fund (IARF). The IARF would be available to the NTIA, which would, in consultation with the commission, dole out funds to licensees and MVPDs to reimburse them for the “reasonable costs” incurred in repacking.
While S.911 includes considerably more detail than past spectrum repurposing bills, it is too early to draw reliable conclusions about what the repurposing process will eventually look like. Among the unknowns are:
- the extent to which repurposing will be resisted by broadcasters;
- if it is implemented, how much money will be paid out under an auction or repacking plan; and
- whether such funds would adequately compensate for lost spectrum or transition costs under a repacking plan.
Moreover, it is hard to know what will be left of over-the-air TV, particularly in smaller and midsized markets, if the Senate's bill becomes law.
There is also the practical reality that no bill will be enacted. Unless it is attached to budget legislation, as noted above, the legislation may not make it to the floor this year. And, controversial nonbroadcast proposals in the bill, e.g., creation of a new corporation that would hold the nationwide license for a public safety network, could bring down the legislation.
- Noncommercial TV stations in Iowa and Missouri must file their biennial ownership reports by Oct. 1.
- By Oct. 1, TV and Class A TV stations in the following locations must place their 2011 EEO reports in their public files and post them on their websites: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, the Pacific Islands, Puerto Rico, the Virgin Islands and Washington.
Harry C. Martin is a member of Fletcher, Heald and Hildreth, PLC.
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