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THE BATTLE for spectrum

The battle for television broadcast spectrum continues to rage much like a wildfire out of control, being fanned by the hot winds of the CTIA and a parched Congress willing to sell almost anything of monetary value. At the same time, some Americans are asking, “If there is smoke, is there really a fire?” Depending on where one sits, and as time progresses, the battle lines seem to be less and less clear as the smoke spreads. So, let's wind back the clock to see how we got to where we are (or are not), and better understand what was the genesis of the debate unfolding before us.

“In the beginning, God created the heavens and the earth,” and from all accounts by the FCC, CTIA, CEA and others, not enough spectrum. (It is nice being better informed than the almighty.) In an address at a CTIA meeting on Oct. 5, 2009, FCC Chairman Julius Genachowski said, “I believe that the biggest threat to the future of mobile in America is the looming spectrum crisis.” From that date forward, this crisis, unknown and unnamed by anyone before then, has taken on a life of its own.

In March 2010, the FCC announced its controversial National Broadband Plan (NBP). This aggressive plan promised to transform the nature of broadband and shape an understanding of a new American policy initiative. I found a well-articulated summary (sort of a “Readers Digest” version of the plan) written by Rob Frieden, a professor of telecommunications and law at Penn State University. Frieden writes on his blog, regarding the NBP:

“In a nutshell, I see much to like about the Plan, but doubt whether many of the ‘should’ language will get done. More broadly, the Plan does not provide much insight on what the authors think the Commission can do, on its own accord, versus the need for new statutory authorization.”

Background

The drive for statutory authorization has been the focus of the FCC from virtually day one. Let's try to navigate what has transpired.

On June 28, 2010, the White House endorsed the FCC's proposal to free up 500MHz of spectrum from government and commercial users for wireless broadband and other uses with the avid support of the CTIA, CEA and others. The alignment of parties and issues speaking to “the looming spectrum crisis” are perhaps best characterized as the haves and the have-nots.

The NBP has all the twists and unexpected turns that one would expect to thrill most every daredevil, and the promised excitement can be felt, but are the wheels for the ride attached in a safe and meaningful way? There is a whole lot more in the NBP than the discussion of spectrum, but it is the spectrum policy issues and their characterization that have been driving the discussion.

From the executive summary of the NBP we find:

  • Spectrum is a major input for providers of broadband service. Currently, the FCC has only 50MHz in inventory, just a fraction of the amount that will be necessary to match growing demand. More efficient allocation and assignment of spectrum will reduce deployment costs, drive investment and benefit consumers through better performance and lower prices. The recommendations on spectrum policy include the following:
  • Make 500MHz of spectrum newly available for broadband within 10 years, of which 300MHz should be made available for mobile use within five years.
  • Enable incentives and mechanisms to repurpose spectrum to more flexible uses. Mechanisms include incentive auctions, which allow auction proceeds to be shared in an equitable manner with current licensees as market demands change. These would benefit both spectrum holders and the American public. The public could benefit from additional spectrum for high-demand uses and from new auction revenues. Incumbents, meanwhile, could recognize a portion of the value of enabling new uses of spectrum. For example, this would allow the FCC to share auction proceeds with broadcasters who voluntarily agree to use technology to continue traditional broadcast services with less spectrum.
  • Ensure greater transparency of spectrum allocation, assignment and use through an FCC-created spectrum dashboard to foster an efficient secondary market.
  • Expand opportunities for innovative spectrum access models by creating new avenues for opportunistic and unlicensed use of spectrum and increasing research into new spectrum technologies.

It would certainly seem that several ways might exist that could lead to a vigorous industry discussion about one or another course that could affect such a bold plan. One might also think (or at least hope) that such an open discussion of spectrum would lead to a multiplicity of ideas regarding policies that might yield such spectrum. But alas, this is Washington, and easy things than can be resolved by being candid rarely if ever follow such a dignified course.

In Chapter 5 of the NBP — “SPECTRUM” — the plan states, “The FCC should initiate a rule making proceeding to reallocate 120MHz from the broadcast television (TV) bands.” Where did that come from? The FCC has identified 225MHz through 3.7GHz as “prime wireless spectrum.” If television broadcasters occupy only 5.18 percent of this wide swath of frequencies exclusively (another 3.65 percent is shared with land-mobile and BAS), why is the FCC so intent on confiscating 24 percent of “needed spectrum” (120MHz of the stated 500MHz) from television broadcasters up front?

Without even so much as a hint as to how such a swath of spectrum is to be made available, how it might affect the present occupants (television broadcasters, us), and without any stated critical analysis as to the specific necessity of the upper UHF, the “broadcast television spectrum debate” has churned on this narrow issue. The rest of the NBP seems to have escaped the attention of everyone.

There has been some flexibility exhibited in discussions and offers of various small segments of the “prime spectrum” by NTIA, from some government assets with an offer of 115MHz. But on the broader discussion of what amount of what spectrum from whom might be made available at what cost and by which means to answer the stated “need” of 500MHz, well, there has been little flexibility (as in none) about the 120MHz that broadcasters occupy and the means by which it should be taken away.

No alternative to auctions?

There exists a lack of diversity and dialog, and everyone has settled on the two ends of the only plan: auction spectrum. Are you for or against? With no other options having been put on the table, parts of the television broadcast industry have offered support to the idea of a “truly voluntary incentive auction,” and given the nod to giving up spectrum. (I, for one, have not embraced such a position.) Everyone except perhaps the FCC and those wireless carriers coveting the television broadcast UHF spectrum seem to understand the meaning of “voluntary.” But how did we get to here (auctions of television broadcast spectrum) from there (we need 500MHz of wireless spectrum)?

The FCC, which is held accountable by Congress as the expert agency on spectrum matters, has yet to make good on what would seem to be the required first step of devising and executing a plan. What spectrum do we have, how is it being used, by whom, and what is the impact of reallocating it to address the needs of the NBP would seem to be some initial steps.

There have been frequent calls from the likes of Rep. John Dingell (D-MI) to make good on the various request for a spectrum inventory and an understanding of the repacking plan (allotment optimization model [AOM]), but little want on the part of this FCC's chairman to suitably answer the request. Genachowski is quoted as saying AOM “remains very much a work in progress,” adding that he was “deeply concerned that disclosure of predecisional information would potentially damage the commission's deliberative process, as well as result in needless public confusion about the status of the Commission's work on the voluntary incentive auction concept.”

Before Sept. 28, 2011, the discussion was largely about an auction for television broadcast spectrum, but the new call (chanted for by Steve Largent of the CTIA and others) is for a series of auctions. This idea was first delineated in a paper prepared for the 39th Research Conference on Communication, Information and Internet Policy. One position taken in the paper hypothesized increased revenues brought by a series of auctions for 120MHz of television broadcast UHF spectrum.

One thing is evident: Before the end of October, no one had offered an alternative plan to auctions. In conversations with FCC staff, when asked, “Why only auctions?” the answer was a simple one. They would consider other options, but none had been offered. As a result, you have both the House and the Senate with draft language to authorize the FCC and auctions. Some thought that the “Supercommittee” would include spectrum auction language. Everything there was DOA. Rep. Greg Walden (R-OR), chairman of the House Communications Subcommittee has submitted a bill including spectrum incentive auctions for mark up, and, if all goes as expected, it could get voted out of the subcommittee. Again, auctions were the only option that had been on the table from the beginning, and the focus on the part of the haves and the have-nots has been specific language. Broadcasters — high-power, low-power, class A and translator operators — are looking for protection.

One might ask a simple question, “Is there an option beyond auctions?” Starting in late October, some may have seen reports of a Broadcast Overlay plan put forward by The Coalition For Free TV and Broadband. They state “… broadcasters have better ideas, more potential to create jobs and revenue that will benefit the federal government, and ways in which they can help alleviate the spectrum crunch.” They appear intent on making sure Class A TVs, LPTVs and TV translators are not lost in the spectrum auction discussion. Rep. Gene Green (D-TX) said some low-power TV spectrum plans may make sense. At a meeting with LPTV executives, “we discussed how the Dingell/Green bill protects Americans' access to free OTA television,” he said. “They also highlighted an idea of theirs that would raise $100 billion over 15 years, which is far more than any of the current spectrum proposals raise,” Green said of the coalition. “Their proposal agrees with the Dingell/Green bill, to ensure that broadcasters that wish to stay in the market are not forced out. This idea deserves scrutiny, and I look forward to working on it,” he said. Their plan would be an alternative to auctions.

This 112th Congress has before it numerous spectrum-related bills, including the president's jobs bill. The group Public Knowledge has a list and searchable copies of the legislation as well as an “informational chart comparing the bills to help you navigate the spectrum bill tsunami.” It may take a tsunami to put out this raging spectrum wildfire. It may also make sense to put on the hip waders.

Mark A. Aitken is vice president of advanced technology, Sinclair Broadcast Group.