FCC Offers Further Clarity on Post-Auction Station Repacking Process
The FCC approved a declaratory ruling, at its meeting Tuesday clarifying how the repacking approach it previously approved meets a congressional mandate to make all reasonable efforts to preserve the coverage areas and populations served by broadcasters. But Republican Commissioners Ajit Pai and Mike O'Rielly dissented, raising procedural objections. The ruling was one of three incentive auction items approved by the FCC Tuesday. (See related report in this issue.)
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The ruling offers clarification of the repacking approved by the FCC in May (CD May 16 p4), FCC officials said (http://bit.ly/1rDeFzQ. It clarifies that its equal area approach will enable stations assigned new channels to replicate the areas within their current station contours as closely as possible using their existing antenna patterns, officials said. The same viewer-friendly approach prohibits channel assignments that would cause one station to interfere with reception by 25 percent or more of another station’s viewers. “At the end of the day nothing is more critical to auction success than broadcaster participation,” said FCC Chairman Tom Wheeler.
Pai said as a matter of law the FCC can’t change the May order without seeking further comment. The main reason for the declaratory ruling appears to be inoculate the agency against the NAB legal challenge to the incentive auction order, he said. In August, NAB filed a court challenge on the use of auction software TVStudy in the auction order in the U.S. Court of Appeals for the D.C. Circuit (CD Aug 19 p1).
"Perhaps worried about its chances of prevailing in court, the commission decides at this late date to offer up additional arguments for its already-made decision not to protect the unpopulated portions of stations’ coverage areas against interference when repacking,” Pai said. The FCC starts down a dangerous path in the ruling, Pai said. “Where will it end?” he asked. “Will we issue an order that responds to parties’ D.C. Circuit briefs? If oral arguments do not go well for the commission, will we issue an order to answer the court’s questions and allay its doubts? Courts don’t countenance such shenanigans.”
O'Rielly said that in May he expressed concerns about how quickly the FCC moved in approving the auction rules and asked whether that left the agency open to legal challenge. “Now, the commission attempts to clarify a portion of the previous item posthaste,” he said. “In doing so, it sidesteps normal commission procedures for questionable gain.” O'Rielly questioned whether the FCC will be able to hold the auction next summer as planned: “The commission would be wise to slow down and conduct this proceeding more thoughtfully.”
"Only in Washington is it possible to get wound up on whether something is a modification or a clarification,” Wheeler said, responding to the two Republicans. Wheeler said the complaints appear to be a “renewal of dissent” by two commissioners who also dissented to the original auction order. “This does not modify the treatment of coverage areas,” he said. “This does explain how the report and order meets the statute. One would think that clearing up a misunderstanding is a good thing.” The 2012 spectrum law gave the FCC authority to hold its first incentive auction.
"NAB believes the FCC’s procedure here is quite suspect,” said NAB Executive Vice President Dennis Wharton. “The court will have to decide if it passes legal muster.”