NCE, Commercial Broadcasters Teaming Up Seen as Challenging in Influencing Incentive Auction Order

The commercial and noncommercial sectors are continuing to come together to push shared objectives at the commission, said the Association of Public Television Stations and NAB. APTS, the Corporation for Public Broadcasting and PBS are working in close collaboration and are “considering all available options on how to ensure that the American public continues to receive uninterrupted access to free over the air public television services,” APTS and PBS said in a statement. The auction has helped commercial and noncommercial broadcasters develop an even tighter bond, said Rick Kaplan, NAB executive vice president. “We have been supportive of one another and share many of the same serious concerns about the auction.”

The FCC has got its course set, said Jason Rademacher, a Cooley communications attorney. “It’s going to be very difficult even with full unity of all broadcasters to get the FCC to change course in big ways.” A unified group can probably get the FCC to change some of the details, he said. “The repack reimbursement rules are going to be very detailed so they can maybe get some of what they want in that process."

There has to be “a coming together,” said Louis Libin, Advanced Television Broadcasting Alliance executive director. ATBA members include commercial and noncommercial low-power TV stations and broadcast engineers. “We're beginning to bring other partners together and become as much of a singular voice as possible,” said Libin.

APTS hasn’t made a decision on whether it’s necessary to take the FCC to court, said APTS President Pat Butler. “If we think it’s worthwhile to join in such suits, we will certainly consider that.” It’s “a little premature for us to say we're going to court or will be filing friends of the court briefs,” he said. “We'll keep the option open and see what the future will hold and what we need to do to respond to it."

'Tricky’ for Broadcasters

It’s “tricky” in terms of what the FCC or broadcasters can do, said Davina Sashkin, a Fletcher Heald attorney who represents some noncommercial broadcasters. The FCC could prohibit a public TV station from selling off its spectrum if it’s the last remaining public station in a market, but “the whole idea is that they want full participation from broadcasters, so I don’t know how they reconcile that,” she said. It’s possible that the FCC could be convinced that rejecting the public broadcasting’s request was a mistake and “contrary to congressional intent, but it might take a more clear expression of congressional intent to do it,” said Todd Gray, a Gray Miller attorney who represents noncommercial educational stations. The participation of public TV stations isn’t going to make or break the auction, he added.

Given the FCC’s current approach and attitude, it would take a pretty extreme set of facts to get the commission to turn down a bid, said a commercial broadcast attorney. Claiming that the FCC will harm noncommercial service unless it reclaims less spectrum is a hard pitch to make to the FCC, he added. Some relief may come out of court appeals if any are filed, the commercial industry attorney said. But “it will most likely be a while before we hear back from the courts,” he said: In the meantime, “everybody has to proceed on the assumption that this is moving forward as described."

There is pressure for the commission to encourage participation for the auction to be a success, said Rademacher. “So everything it does to discourage participation makes success less likely.” If the FCC isn’t ensuring that the stations that continue broadcasting won’t be negatively affected by the auction, then that’s discouraging participation, he said.

The FCC is supposed to make all reasonable efforts to preserve incumbent stations and not wreak havoc for them, said Craig Parshall, National Religious Broadcasters general counsel. “That’s not the approach that I read in the spectrum auction order.” The commission’s priority is obtaining spectrum and using it for broadband, and “one of the many considerations that will be thrown into the mix will be what the impact will be on broadcasters,” he said. “I'm going to assume good faith on the part of the commission” that it will protect incumbent broadcast stations, he said. NRB will continue to show the FCC how it can do that, he added.

Broadcasters’ refusal to participate in the auction will put pressure on the FCC, but it isn’t likely all broadcasters will take that stance, said Sashkin. “If they don’t participate, there’s no auction, and there’s no money, [and] there’s no availability for more wireless service.” However, a lot of broadcasters want to get out of the business, she said. Speculator groups are buying up stations that they have no use for otherwise, and Class A stations that don’t have a major network affiliation find it hard to be sufficiently profitable, so the auction is appealing to those groups, said a commercial industry attorney.

The public TV groups are working on a strategy for taking some remaining issues to the FCC, said Butler. APTS is grateful for other provisions that the FCC did provide, like advance payments for 90 percent of public stations’ repacking costs, he said. “We will be going back to the commission in the course of the public comment period and additional filings and additional proceedings that they'll be opening on spectrum-related issues.”