FCC’s Next Step on Spectrum May Be Broadband Notice

The notice, from the commission’s Omnibus Broadband Initiative, seems to have been delayed several weeks, industry officials said. Some FCC officials and broadcast executives said they've seen increased recognition by the FCC of a need for further efforts to persuade broadcasters to part with spectrum.

The FCC broadband team headed by Blair Levin has released 23 notices and others are on the way, according to a slide in an update to the commission last week, but spectrum reallocation wasn’t among the notices listed as coming. Chairman Julius Genachowski said last week the commission probably won’t be able to identify by the February deadline for the National Broadband Plan all of the spectrum which the wireless industry will need (CD Nov 19 p2).

“The record shows there is a looming spectrum gap, and the commission has an obligation to explore all avenues that might close that gap,” said a spokesman for the broadband initiative. “Obviously, we continue to listen to and learn from all parties as they provide meaningful new data and ideas.”

Many broadcast lawyers and some at the FCC say they've noticed Levin backing off in public on finding spectrum, but last week he continued to seek information about it. Levin wrote the NAB Thursday in reply to a letter from its General Counsel Jane Mago that said broadcasters need all the spectrum allotted for HDTV to get good enough sound and picture quality to earn compensation for carriage from pay-TV providers (CD Nov 20 p14). Levin sought “studies or analytical support” for Mago’s statements that the availability of free terrestrial TV helps keep subscription video costs in check.

A public notice “could help the FCC build its case insofar as public comments submitted on the record,” a telecom analyst said Friday. The commission has met resistance from broadcasters, “but I doubt broadcasters have persuaded FCC to back off,” the analyst said, noting the commission’s initial finding that huge amounts of spectrum are needed to support mobile broadband and saying reclamation of broadcast spectrum is the “most attractive -- if not realistically the only -- option for addressing a looming spectrum crisis.” Getting spectrum from the Department of Defense or other government agencies would be even more difficult, the analyst said.

“I believe this presents a major opportunity as well as a challenge,” said a wireless attorney. “Given how long such a reallocation might take, not to mention how contentious it might be, now is the right time to start assessing such a reallocation. The National Broadband Plan provides the right backdrop to assess the relative efficiencies and public interest benefits of every MHz under 4 GHz, without taking a position as to the potential outcome.”

Bernstein Research analyst Craig Moffett said in a research note Friday that last week’s tower-siting order was just a “Band-Aid” and the wireless industry really needs more spectrum. “Getting more spectrum is no mean feat. It goes without saying that the spectrum map -- the management of which is increasingly the primary mission of the FCC -- is fully spoken for. Today’s spectrum is fully assigned for military applications, transportation and logistics, medical applications, first responder networks, local law enforcement, and satellite services. Finding spectrum on this map will be a long and torturous process.” Moffett said broadcast spectrum may be attractive but could also prove elusive. “Bear in mind that the plan to simply move the broadcasters from one spectrum band to another in 2009 began way back in 1984, with the birth of HDTV,” he said. “The wireless operators’ need for spectrum can hardly wait twenty five years.”

Public Knowledge Legal Director Harold Feld questioned whether the FCC needs to release additional public notices as it develops the National Broadband Plan. “If the FCC is serious, they have enough data to construct some proposals and figure out the criteria for the for conducting the evaluation under the statute,” he said. “This would be both the most efficient and most fair thing to do. There are a lot of different possible proposals being whispered. We've reduced the debate to a shouting match between NAB and CEA, with NAB saying, ‘We need every MHz to provide valuable service to the public,’ and CEA saying, ‘Broadcasters are parasites. Give us their spectrum now.'”

Feld said any reallocation of broadcast spectrum raises issues about the future use of the broadcast white spaces. “If we are going to go down this road, the FCC needs to explain how this will impact development of the white spaces,” he said. “We have Microsoft doing a pilot project in rural Virginia on this approach for wireless access today. I would gently suggest that the FCC would be better served getting out the public notice on the white spaces database so we can finish up that rulemaking and get that technology deployed before it goes chasing after an idea that will take years to iron out and implement -- if it ever happens at all.”

“As we go through this process, NAB’s primary concern is ensuring that television viewers don’t lose access” to over- the-air services, a spokesman for the group said. “We recognize that broadband is an important policy goal for the Obama administration. We support that. But we want to make sure that as we go through this process that broadband isn’t seen as a replacement to broadcasting, and I think that’s what you are going to see our primary focus on.”

Gordon Smith was blunter Tuesday in one his first speeches as the NAB president (CD Nov 19 p2). He agreed with others, after meeting with commissioners and Levin, that he FCC has scaled back discussion of spectrum reallocation. “I would say this is a work in progress. … It is something being constructed in a policy vacuum. They ran into political reality. And the political realities in this are huge.”

Several TV industry lawyers and observers said they think Levin is increasingly open to solutions besides having TV stations stop broadcasting in HD and switch to standard definition. “He’s ratcheting it back, and Julius [Genachowski] is clearly distancing himself” from Levin’s initial proposal, a TV attorney said. “Are there other solutions? Is it possible to think about repacking? Sure.”

Spectrum repurposing still seems “to be not much more than a ‘germ’ of an idea that has been kicked around for a number of years,” said broadcast lawyer John Garziglia of Womble Carlyle. “Mobile TV is perhaps television broadcasters’ last hope to maintain control of their wide swath of spectrum.” Levin is “well-positioned to make the broadcasters a good deal, but there remain questions about how this plays out, not just on Capitol Hill, but even among other forces within the FCC,” said President Adam Thierer of the Progress & Freedom Foundation. It’s “obvious” that OBI staff “want to advance the ball on this proposal but understand they will need to bargain with broadcasters to get them to the table,” Thierer said.

“It would be fantastic if a component of this discussion was sort of a negotiation between broadcasters and others,” and that is “obviously the easiest way to move forward,” said CTIA Vice President Christopher Guttman-McCabe. “Not only should all bands of spectrum be on the table, but also all [kinds] of solutions, whether they are negotiated or mandated.” Though he’s “not surprised” broadcasters don’t think Section 336(g) of the Communications Act applies to spectrum recycling, “I think it’s directly on-point to what we're looking at,” he said. “Congress is very good about amending sections of the Act, and they specifically didn’t choose to amend” that statute even after the date for the analog cutoff was set.

Some broadcasters seem interested in giving up some spectrum for a cut of auction proceeds, CEA Vice President Jamie Hedlund said. “It appears that the broadcasters are not all of one mind in terms of opposing a reallocation of some of their spectrum under the right conditions,” he said. None have come forward yet, TV officials noted. But “there are a lot of creative potential solutions out there” and 336(g) “is obviously one way to go and have the statutory hook,” Hedlund said. “We hope that the discussions with broadcasters will be fruitful.”