NAL of $89,200 to WHPA, Likely a Class A Record, Raises LPTV Spectrum Fears
An $89,200 proposed fine to a Philadelphia Class A station, likely a record to any low-power TV station, is raising anew LPTV operator fears the FCC would like to reclaim their spectrum so it can be sold to carriers. LPTV allies and an executive at a company that owns such stations said in interviews Tuesday that the agency has been singling out low-power stations among all broadcasters by threatening to downgrade their status so they lose interference protection and the owner’s chance to sell their spectrum in the incentive auction. Without Class A status, the FCC could potentially shift a station’s channel slot without reimbursing it for the move, letting it auction that frequency without the broadcaster getting a cut of the proceeds, LPTV executives have said.
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Threats to downgrade Class A status have come in Media Bureau orders to show cause that Class A’s delinquent in paperwork shouldn’t lose the status, said the LPTV allies. The bureau issued 47 show-cause orders in 2012 through Nov. 2 of that year after a law was approved allowing the incentive auction, Communications Daily has found (http://www.warren-news.com/showcause.htm). That involved about 10 percent of all U.S. Class A’s (CD March 21/12 p3).
The bureau has issued two such orders since November 2012, said a spokeswoman. To LPTV allies, the number seems much higher since then, they said. They also pointed to fines against Class A’s and settlements so their licenses could be renewed. For instance, Fletcher Heald LPTV lawyer Peter Tannenwald had worked on a consent decree of about $75,000 for about 10 Class A’s, he said. That’s less than $89,200, the proposed fine (CD April 29 p15) to a single Class A, WHPA Philadelphia, approved by commissioners and included in Tuesday’s FCC Daily Digest (http://bit.ly/S2VqBR).
It’s unfair to Class A’s that the FCC threatens to yank their protected status, which separates them from other LPTVs that can’t take part in the incentive auction, and doesn’t do the same to full-power broadcasters with paperwork and other compliance issues, said Director Mike Gravino of the LPTV Spectrum Rights Coalition. “The FCC is using a big stick to have some of these folks be current” with their public files and other issues to be “clean and clear licenses for auction,” he said of Class A’s. “As a class, I think they're purposefully going against Class A’s” to have their spectrum available to clear without being part of the auction, he said. “In many cases, I think it’s been justifiable.” Such moves come after many Class A’s lost programming after the DTV transition allowed such content to be shown as the multicast channel of full-power stations, said Gravino, who has been lobbying the FCC to protect LPTV spectrum. (See separate report below in this issue.) The amount the agency wants from downgraded Class A’s is “more spectrum they can sell,” he said.
A commissioner-approved notice of apparent liability to WPHA licensee DTV LLC said station owner/operator Randolph Weigner twice turned away Enforcement Bureau agents seeking to inspect the outlet, that the station transmitted from an unapproved location and that Weigner wasn’t at the main studio. DTV LLC showed “repeated and egregious disregard for several Commission rules,” said the NAL. Repeatedly refusing an inspection undermines the agency’s “ability to ensure proper operation” and reflects “indifference toward the licensee’s obligation to serve the public trust,” it said. “D.T.V.’s actions exhibited a blatant disregard of and contempt for the Commission’s authority.” The NAL included a $75,000 proposed fine -- the maximum -- for twice not allowing inspection.
The $89,200 total is “pretty big,” said DTV LLC lawyer Tannenwald, and neither he nor other LPTV allies we asked could recall a bigger fine. An agency spokesman declined to say if it was a record. “You can see how many Class A forfeitures there have been, so you can see where they're headed,” toward reclaiming the spectrum, said Tannenwald. “The forfeiture is unjustified, especially when imposed on a small business. The circumstances were certainly not as egregious as the FCC painted them.” Station personnel “get sick, and this guy was sick that day, it says it, right in the” NAL, Tannenwald said of his client, Weigner, who had no comment for this story. Weigner couldn’t allow an inspection when agents wanted because he was at the doctor, said the NAL and Tannenwald. The NAL speaks for itself, said the commission spokesman about criticism of the proposed penalty.
"I'm hoping that this isn’t a continuing attempt to intimidate the LPTVs even more than they're being targeted” already, said Executive Director Louis Libin of the Advanced Television Broadcasting Alliance, which includes LPTV’s and full-power broadcasters like Sinclair. “Perhaps the downgrading is an attempt to have less Class A’s for the incentive auction -- very painful.” The fine may galvanize LPTV stations to seek better treatment from the FCC, said Libin. “I hope the FCC will be kind to this station. But I also hope that this brings the plight of LPTV stations” to further public attention, he said. “I'm hoping that this can backfire, that this can all of a sudden raise attention to the plight.” -- Jonathan Make (jmake@warren-news.com)