Station Groups: FCC Spectrum Proposals Are Illegal

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Station Groups: FCC Spectrum Proposals Are Illegal
Argue channel sharing, co-primary status are arbitrary and capricious
By John Eggerton -- Broadcasting & Cable, March 21, 2011

More than two-dozen station groups and owners representing more than 200 TV stations across the country have banded together to tell the FCC that its approach to freeing up spectrum is illegal, and in comments to the FCC said, essentially, they can't comment fully on it because of the FCC's piecemeal approach to the issue.

The groups, which are commenting collectively as Local Television Broadcasters, include Media General, Nexstar, Allbritton, Granite, Gray, Tribune, McGraw-Hill and a veritable host of others.

In their comments on the FCC's spectrum proceeding, they told the commission that its proposals would do irrevocable harm to broadcasters, viewers, the public interest and the law. And when it comes to mobile DTV, they said the proposal for some broadcasters to channel share would "eviscerate" the service without any corresponding benefit.

They also argue that efforts by the FCC to improve VHF reception--as a way to encourage broadcasters to move there so the FCC can free up contiguous spectrum space in the superior UHF band, are doomed to failure.

The FCC has proposed changing the designation of the broadcast spectrum so that wireless broadband would be a co-primary use with broadcasting, and to allow broadcasters to share their current 6 MHz channel. But the broadcasters say that the FCC's proposals are arbitrary and capricious because they "presuppose a comprehensive spectrum reallocation and auction blueprint" that has not been advanced yet, and may never be advanced.

"Adoption of the proposals set forth in the NPRM [notice of proposed rulemaking] would result in Commission action based on inadequate study, unsupported speculation, and insufficient process, all in violation of the Commission's obligations under the Administrative Procedure Act and established administrative law principles," they argue.

And while the FCC has said that stations sharing channels would each get must-carry rights, the broadcasters aren't convinced the FCC could guarantee that. "If a court finds that the transmission apparatus used by multiple licensees in a channel sharing situation amounts to only one "station" under the Act, it would follow that the several broadcasters sharing that "station" would have no greater mandatory carriage rights collectively than licensees operating individual stations enjoy today."

They also say that FCC attempts to improve VHF will run up against another set of laws: physics. There are, they say, "immutable VHF propagation characteristics" that make any improvements likely to be only slight and insufficient to protect DTV service quality.

But the broadcasters aren't only about shooting down FCC proposals. They had ones of their own, including asking the FCC to consider the Capitol Broadcasting proposal, which would be for broadcasters to work together with wireless companies, subleasing capacity to handle peak video traffic using broadcasters more efficient one-to-many transmission model. Another suggestion would be to revise FCC rules to permit broadcasters to deliver wireless broadband themselves, while allowing broadcasters a fast-track to channel switching so they could free up contiguous bands for a national service, with the government getting a cut of the new business model.

Those, say the broadcasters, would be preferable, market-based approaches.

The FCC has proposed freeing up as much as 120 MHz from broadcasters current approximately 300 MHz allocation to auction for wireless broadband within the next four years.