Articles Posted in Low Power & Class A Television

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Today, the FCC released a Public Notice with a 45-page Appendix listing all full-power and Class A television stations eligible to participate in the reverse auction and receive protection in the repacking process. Licensees should immediately review the Appendix to ensure their station has been included and to determine whether the appropriate authorization for their facility has been listed for auction participation and protection in the repacking. Any station that believes it has been wrongly omitted from the Appendix must file a Petition for Eligible Entity Status by July 9, 2015.

In addition, the Public Notice announces that Form 2100, Schedule 381, the Pre-Auction Technical Certification Form, must also be filed by July 9, 2015. This form requires that the licensee review the station’s authorization listed in the Appendix, as well as the underlying technical information contained in the FCC’s database, and certify whether that information is correct. If it is not, the licensee must state in the form whether the discrepancy is the result of a Commission error or of the licensee operating at variance from its authorization.

If the discrepancy is due to an error by the FCC in its records, the corrected facilities will be used by the Commission for participation in the reverse auction and protection in the repacking process. Where the discrepancy is due to the licensee operating at variance, the licensee must file the appropriate applications to correct that information in the FCC’s database.  Those corrected parameters will not, however, be used for participation in the reverse auction or protection in the repacking process.

As we have written previously, Schedule 381 requests a great deal of information, such as the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station; the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The Public Notice states that if a licensee does not file a Schedule 381, the FCC will assume that the information in the station’s authorization and in the FCC’s database is correct. However, in that circumstance, the Commission will not have the same information regarding that station as it has for stations that did file the Schedule 381, so it is unclear at this time how the FCC will handle that situation.

The FCC will ultimately release a detailed summary of the baseline coverage and population served by each station eligible for participation in the auction and protection in the repacking process. That summary will reflect the information submitted in the Schedule 381, including corrections of discrepancies resulting from FCC errors, along with any changes made as a result of successful Petitions for Eligible Entity Status.

With today’s Public Notice, the FCC moves the spectrum auction a significant step closer to reality.

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While the road to hell may be paved with good intentions, the path to any government objective is usually paved with forms and paperwork. We were reminded of that today when the FCC released a Public Notice reminding full power and Class A television stations of the May 29 Pre-Auction Licensing Deadline. Only those facilities that a station has constructed and for which a license application has been filed by May 29 will be recognized by the FCC for purposes of the reverse auction and spectrum repacking process. That is, stations will not be able to benefit in the reverse auction from, or claim protection in the repacking process for, any facilities modifications completed after May 29, despite the current September 1, 2015 deadline for transitioning Class A stations to digital operation. We wrote about this deadline back in January.

More importantly, the Public Notice further fleshes out the pre-auction process, announcing that the FCC will release a list, expected in mid-June, of each station’s eligible facilities as reflected in the FCC’s database on May 29. Every full power TV and Class A station will then be required to certify to the FCC that the information for that station in the FCC’s database is correct, or identify any errors.

If the error in the database is the FCC’s mistake, it will be corrected in the database and the corrected facilities protected in the auction and repack.  Where the discrepancy is due to the licensee’s error, the licensee must file a modification application to correct the error and seek Special Temporary Authority to operate at variance until a new license is issued. In the latter case, the corrected facilities will not be used for the reverse auction, nor protected in the repacking if licensed after May 29.  Accordingly, the Public Notice urges licensees to make use of the remaining window of opportunity to modify their authorizations to reflect the parameters that they wish to carry into the auction and repacking process.

As you may have guessed, there will be another form involved, so the Public Notice also officially releases Form 2100, Schedule 381, which stations will have to complete not only to make the certification above, but to provide a significant amount of technical information that the FCC has not previously collected.  The information appears designed to assist the FCC in analyzing the impact its repack decisions will have on individual stations and to identify hurdles to completing the repack in the 39-month time period the FCC anticipates.  Among the requested items are: the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station and the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The information sought is detailed and may take stations time to collect. However, today’s Public Notice announces that stations are expected to file the form within 30 days of the FCC’s release in June of its “protected facilities” list. Accordingly, all full power and Class A television stations that have not already done so should review their facility parameters as reflected in the FCC’s CDBS and Antenna Structure Registration databases to confirm their accuracy and immediately file any needed corrective applications. In doing so, stations should also compile the information they are going to need to complete Schedule 381, as the FCC will be looking for that completed form in July.

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The FCC’s Media Bureau issued a Public Notice today announcing that it would immediately suspend the September 1, 2015 digital transition date for LPTV and TV translator stations. The FCC’s Second Report and Order had established the September 1 deadline for LPTV, TV translator, and Class A TV stations to terminate analog operations and transition to digital. However, in its Third Notice of Proposed Rulemaking, the FCC recognized that the upcoming spectrum auction and repacking process would likely displace a substantial number of LPTV and TV translator stations, and that 795 LPTV and 779 TV translator stations had not yet completed their digital conversion. Seeking to avoid requiring those stations to incur the costs of the digital transition prior to completion of the auction and repacking, the FCC proposed suspending the transition deadline. In today’s Public Notice, the FCC concluded that suspending the digital transition deadline would be appropriate to permit analog LPTV and TV translators to postpone construction of digital facilities that could be impacted by the spectrum auction and repacking.

The FCC’s decision, however, does not affect Class A TV stations, which are still required to complete the digital transition by the September 1 deadline. Class A stations that do not complete construction of their digital facilities by 11:59 pm, local time, on September 1, 2015 will be required to go dark until they complete construction of their digital facilities.

Additionally, although Class A stations are not required to cease analog transmissions until September 1, their digital facilities must be licensed or have an application for a license on file by May 29, 2015 for those digital facilities to be fully protected by the FCC in the repacking process. Any Class A station that fails to meet the May 29 Pre-Auction Licensing Deadline will be afforded protection based solely on the coverage area and population served by its analog facilities, as set forth in the Incentive Auction Report and Order.

The FCC has not announced when the new transition date will be, other than to say the deadline will come after final action in its LPTV DTV proceeding. According to the Third NPRM, the FCC is weighing the benefit of waiting until the close of the auction to establish a new deadline—which would allow the FCC to take into account the overall impact of the repacking process—against announcing a deadline sooner than the end of the auction, which could provide more certainty to LPTV and translator stations about when the digital transition will end and expedite the completion of that transition.

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March 2015
This Broadcast Station Advisory is directed to radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

April 1, 2015 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to place their Annual EEO Public File Report in their public inspection file and post the report on their station website.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.
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March 2015
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2015, reflecting information for the months of January, February and March 2015.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.
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In a just released Public Notice, the Media Bureau has designated May 29, 2015, as the Pre-Auction Licensing Deadline. That is the date by which certain full-power and Class A TV stations must have a license application on file with the FCC in order for their modified facilities to be protected in the repacking process following the spectrum incentive auction.

While the FCC earlier concluded that full-power and Class A TV facilities licensed by February 22, 2012 would be protected in the repacking, it envisioned protection of TV facilities licensed after that date in a few specific situations. It is to this latter group that the May 29, 2015 deadline applies. These include:

  • Full-power television facilities authorized by an outstanding channel substitution construction permit for a licensed station, including stations seeking to relocate from Channel 51 pursuant to voluntary relocation agreements with Lower 700 MHz A Block licensees;
  • Modified facilities of full-power and Class A television stations that were authorized by construction permits granted on or before April 5, 2013, the date of the FCC’s announcement of a freeze on most television modification applications, or that have been authorized by construction permits that were granted after April 5, 2013, but which fit into one of the announced exceptions to the application freeze; and
  • Class A TV stations’ initial digital facilities that were not licensed until after February 22, 2012, including those that were not authorized until after announcement of the modification application freeze.

Today’s announcement means that, with the exception of stations affected by the destruction of the World Trade Center, stations in the categories above must complete construction and have a license application on file with the FCC by the May 29, 2015 deadline if they wish to have those facilities protected in the repacking process. According to the Public Notice, licensees affected by the destruction of the World Trade Center may elect to protect either their licensed Empire State Building facilities or a proposed new facility at One World Trade Center as long as that new facility has been applied for and authorized in a construction permit granted by the May 29 deadline.

The Public Notice will inevitably cause some confusion, as it refers in a number of places to having a facility “licensed” by the May 29 deadline (e.g., “We also emphasize that, in order for a Class A digital facility to be afforded protection in the repacking process, it must be licensed by the Pre-Auction Licensing Deadline.”). Fortunately for those of us that read footnotes carefully (that’s what lawyers do!), the FCC stated in the small print that “[t]he term ‘licensed’ encompasses both licensed facilities and those subject to a pending license to cover application….”

For those holding TV licenses that are more interested in the spectrum auction than in the repacking of stations afterwards, the Pre-Auction Licensing Deadline is also relevant, as the FCC indicates that “[t]he Pre-Auction Licensing Deadline will also determine which facilities are eligible for voluntary relinquishment of spectrum usage rights in the incentive auction.” In other words, to the extent the FCC bases auction payments in part on a selling station’s coverage area, the facilities constructed by the Pre-Auction Licensing Deadline (with a license application on file) will be used in making that determination.

Finally, the Public Notice indicates that this is a “last opportunity” for full power and Class A TV stations to modify their licenses to correct errors in their stated operating parameters if they want the FCC to use the correct operating parameters in determining post-auction protection.

So, whether a television station owner is planning on being a seller or a wallflower in the spectrum auction, today’s announcement is an important one, and represents one of the FCC’s more concrete steps towards holding the world’s most complicated auction.

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In what has become an annual holiday tradition going back so far none of us can remember when it started (Pillsbury predates the FCC by 66 years), we released the 2015 Broadcasters’ Calendar last week.

While starting a new year is usually jarring, particularly breaking yourself of the habit of dating everything “2014”, this new year seems particularly so, as many took last Friday off, making today, January 5th, their first day back at work. For broadcasters, whose fourth quarter regulatory reports need to be in their public inspection files by January 10th, that doesn’t leave much time to complete the tasks at hand.

To assist in meeting that deadline, we also released last week our fourth quarter Advisories regarding the FCC-mandated Quarterly Issues/Programs List (for radio and TV) and the Form 398 Quarterly Children’s Programming Report (for TV only). Both have not-so-hidden Easter Eggs for Class A TV stations needing to meet their obligation to demonstrate continuing compliance with their Class A obligations, effectively giving you three advisories for the price of two (the price being more strain on your “now a year older” eyes)!

And all that only takes you through January 10th, so you can imagine how many more thrilling regulatory adventures are to be found in the pages of the 2015 Broadcasters’ Calendar. Whether it’s SoundExchange royalty filings, the upcoming Delaware and Pennsylvania TV license renewal public notices, or any of a variety of FCC EEO reports coming due this year, broadcasters can find the details in the 2015 Broadcasters’ Calendar. For those clamoring for an audiobook edition, we’re holding out for James Earl Jones. We’ll keep you posted on that.

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Late today, the FCC released a Public Notice stating that “[e]ffective immediately, the expiration dates and construction deadlines for all outstanding unexpired construction permits for new digital low power television (LPTV) and TV translator stations are hereby suspended pending final action in the rulemaking proceeding in MB Docket No. 03-185 initiated today by the Commission.”

As referenced in that statement, the FCC simultaneously released a Third Notice of Proposed Rulemaking (NPRM) seeking comment on a number of issues related to the transition of LPTV stations to digital and their fate in the post-auction spectrum repacking. Specifically, the FCC states in the NPRM that:

In this proceeding, we consider the measures discussed in the Incentive Auction Report and Order, other measures to ensure the successful completion of the LPTV and TV translator digital transition and to help preserve the important services LPTV and TV translator stations provide, and other related matters. Specifically, we tentatively conclude that we should: (1) extend the September 1, 2015 digital transition deadline for LPTV and TV translator stations; (2) adopt rules to allow channel sharing by and between LPTV and TV translator stations; and (3) create a “digital-to-digital replacement translator” service for full power stations that experience losses in their pre-auction service areas. We also seek comment on: (1) our proposed use of the incentive auction optimization model to assist LPTV and TV translator stations displaced by the auction and repacking process to identify new channels; (2) whether to permit digital LPTV stations to operate analog FM radio-type services on an ancillary or supplementary basis; and (3) whether to eliminate the requirement in section 15.117(b) of our rules that TV receivers include analog tuners. We also invite input on any other measures we should consider to further mitigate the impact of the auction and repacking process on LPTV and TV translator stations.

While primarily focused on the future of the LPTV and TV translator services, the NPRM definitely includes some issues of interest to full-power TV stations as well, including the idea that repacking full-power stations may necessitate the construction of digital-to-digital translators to address situations where such stations “experience losses in their pre-auction service areas”. The extent to which the FCC may create such losses is of course one of the issues currently on appeal before the courts, but such losses might also result from stations voluntarily moving from UHF to VHF channels in the auction, or moving from a High VHF to a Low VHF channel. The FCC proposes to permit such translators only where a loss of service has occurred, and to limit such translators to replicating, rather than extending, a station’s prior coverage area.

Another interesting issue for which the FCC is seeking input in the NPRM is whether to allow LPTV and TV translator stations to channel-share with full-power and Class A TV stations. That issue, as well as the proposal to allow Channel 6 LPTV stations to provide an analog FM audio service as an ancillary service, will make this a particularly interesting proceeding likely to attract lots of comments.

The comment dates have not yet been set, but Comments will be due 30 days after the NPRM is published in the Federal Register, with Reply Comments due 15 days after that. Those operating LPTV and TV translator stations will no doubt be happy to see that the FCC is taking steps to “mitigate the potential impact of the incentive auction and the repacking process on LPTV and TV translator stations,” but the many issues covered by the NPRM make clear that, for many of these stations, it will definitely be an uphill climb.

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With the heat of Summer now upon us, the FCC is gearing up for its annual regulatory fee filing window, which usually occurs in mid-September. Like other federal agencies, the FCC must raise funds to pay for its operations (“to recover the costs of… enforcement activities, policy and rulemaking activities, user information services, and international activities.”). For Fiscal Year 2014, Congress has, for the third year in a row, mandated that the FCC collect $339,844,000.00 from its regulatees.

Accordingly, the FCC is now tasked with determining how to meet the Congressional mandate. At its most basic level, the FCC employs a formula that breaks down the cost of its employees by “core” bureaus, taking into consideration which employees are considered “direct” (working for one of the four core bureaus), or “indirect” (working for other divisions, including but not limited to, the Enforcement Bureau and the Chairman’s and Commissioners’ offices). The FCC factors in the number of regulatees serviced by each division, and then determines how much each regulatee is obligated to pay so that the FCC can collect the $339M total.

In its quest to meet the annual congressional mandate, the FCC evaluates and, for various reasons, tweaks the definitions or qualifications of its regulatee categories to, most often, increase certain regulatory fee obligations. FY 2014 is just such an occasion. In FY 2013, the FCC, which historically has imposed drastically different fees for VHF and UHF television licensees, decided that, effective this year, FY 2014, VHF and UHF stations would be required to pay the same regulatory fees. In addition, a new class of contributing regulatees, providers of Internet Protocol TV (“IPTV”), was established and is now subject to the same regulatory fees levied upon cable television providers. Prior to FY 2014, IPTV providers were not subject to regulatory fees.

The FCC’s proposals for FY 2014 regulatory fees can be found in its Order and Second NPRM (“Order”). In that Order, the FCC proposes the following FY 2014 commercial VHF/UHF digital TV regulatory fees:

  • Markets 1-10 – $44,875
  • Markets 11-25 – $42,300
  • Markets 26-50 – $27,100
  • Markets 51-100 – $15,675
  • Remaining Markets – $4,775
  • Construction Permits – $4,775

Other proposed TV regulatory fees include:

  • Satellite Television Stations (All Markets) – $1,550
  • Construction Permits for Satellite Television Stations – $1,325
  • Low Power TV, Class A TV, TV Translators & Boosters – $410
  • Broadcast Auxiliaries – $10
  • Earth Stations – $245

The proposed radio fees depend on both the class of station and size of population served. For AM Class A stations:

  • With a population less than or equal to 25,000 – $775
  • With a population from 25,001-75,000 – $1,550
  • With a population from 75,001-150,000 – $2,325
  • With a population from 150,001-500,000 – $3,475
  • With a population from 500,001-1,200,000 – $5,025
  • With a population from 1,200,001-3,000,000 – $7,750
  • With a population greater than 3,000,000 – $9,300

For AM Class B stations:

  • With a population less than or equal to 25,000 – $645
  • With a population from 25,001-75,000 – $1,300
  • With a population from 75,001-150,000 – $1,625
  • With a population from 150,001-500,000 – $2,750
  • With a population from 500,001-1,200,000 – $4,225
  • With a population from 1,200,001-3,000,000 – $6,500
  • With a population greater than 3,000,000 – $7,800

For AM Class C stations:

  • With a population less than or equal to 25,000 – $590
  • With a population from 25,001-75,000 – $900
  • With a population from 75,001-150,000 – $1,200
  • With a population from 150,001-500,000 – $1,800
  • With a population from 500,001-1,200,000 – $3,000
  • With a population from 1,200,001-3,000,000 – $4,500
  • With a population greater than 3,000,000 – $5,700

For AM Class D stations:

  • With a population less than or equal to 25,000 – $670
  • With a population from 25,001-75,000 – $1,000
  • With a population from 75,001-150,000 – $1,675
  • With a population from 150,001-500,000 – $2,025
  • With a population from 500,001-1,200,000 – $3,375
  • With a population from 1,200,001-3,000,000 – $5,400
  • With a population greater than 3,000,000 – $6,750

For FM Classes A, B1 &C3 stations:

  • With a population less than or equal to 25,000 – $750
  • With a population from 25,001-75,000 – $1,500
  • With a population from 75,001-150,000 – $2,050
  • With a population from 150,001-500,000 – $3,175
  • With a population from 500,001-1,200,000 – $5,050
  • With a population from 1,200,001-3,000,000 – $8,250
  • With a population greater than 3,000,000 – $10,500

For FM Classes B, C, C0, C1 & C2 stations:

  • With a population less than or equal to 25,000 – $925
  • With a population from 25,001-75,000 – $1,625
  • With a population from 75,001-150,000 – $3,000
  • With a population from 150,001-500,000 – $3,925
  • With a population from 500,001-1,200,000 – $5,775
  • With a population from 1,200,001-3,000,000 – $9,250
  • With a population greater than 3,000,000 – $12,025

In addition to seeking comment on the proposed fee amounts, the Order seeks comment on proposed changes to the FCC’s basic fee formula (i.e., changes in how it determines the allocation of direct and indirect employees and thus establishes its categorical fees), and on the creation of new, and the combination of existing, fee categories. The Order also seeks comment on previously proposed core bureau allocations, the FCC’s intention to levy regulatory fees on AM Expanded Band Radio Station licensees (which have historically been exempt from regulatory fees), and whether the FCC should implement a cap on 2014 fee increases for each category of regulatee at, for example, 7.5% or 10% above last year’s fees. Comments are due by July 7, 2014 and Reply Comments are due by July 14, 2014.

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Surprise, surprise, the FCC has instituted yet another application filing freeze! The FCC effectively said “enough is enough” and stopped accepting applications for LPTV channel displacements and new digital replacement translators.

Yesterday, the FCC released a Public Notice indicating that, effective June 11, 2014, the Media Bureau would cease to accept applications seeking new digital replacement translator stations and LPTV, TV translator, and Class A TV channel displacements. The FCC did provide that in certain “rare cases”, a waiver of the freeze may be sought on a case-by-case basis, and that the Media Bureau will continue to process minor change, digital flash cut, and digital companion channel applications filed by existing LPTV and TV translator stations.

According to industry sources, there have been grumblings at the FCC that low power television broadcasters have been using the digital replacement translator and LPTV displacement processes to better position themselves from the fallout of the upcoming spectrum auction and subsequent channel repacking. That appears to be confirmed by the Public Notice, as it states that the freeze is necessary to “to protect the opportunity for stations displaced by the repacking of the television bands to obtain a new channel from the limited number of channels likely to be available for application after repacking….” Setting aside the freeze itself for a moment, it seems clear from this statement that the FCC has no illusions that there will be room in the repacked spectrum for all existing low power television stations.

While there have been myriad FCC application freezes over the years, they have been occurring with increasing frequency. From the radio perspective, absent a waiver, extraordinary circumstances, or an FCC-announced “filing window”, all opportunities to seek a new radio license (full-power, low power FM or translator) have been quashed for some time now.

The first notable television freeze occurred in 1948 and lasted four years. The FCC instituted a freeze on all new analog television stations applications in 1996. In furtherance of the transition to digital television, the FCC instituted a freeze on changes to television channel allotments which lasted from 2004 to 2008. In 2010, the FCC froze LPTV and TV translator applications for major changes and new stations; a freeze which remains in effect today.

Yet another freeze on TV channel changes was imposed in 2011 in order to, among other things, “consider methodologies for repacking television channels to increase the efficiency of channel use.” And as Scott Flick wrote here last year, still another television application freeze on full power and Class A modifications was launched on April 5, 2013. That freeze remains in effect and effectively cuts off all opportunities for existing full-power or Class A television stations to expand their signal contours to increase service to the public. The volume of application freezes has grown to such an extent that it is difficult to keep track of them all.

In terms of reasoning, yesterday’s Public Notice indicated that since the DTV transition occurred five years ago, the impact of the instant freeze would be “minimal” since transmission and contour issues should have been addressed as part of, or generally following, that transition. The Notice proceeded to say that LPTV displacement and digital replacement applications were necessary after the DTV transition, and up to the FCC’s April 2013 filing freeze, for purposes of resolving “technical problems” associated with the build-out of full-power DTV stations, but that since there have been no “changes” to those service areas because of the last freeze, there should be no need for LPTV channel displacements or digital replacement translators.

Left out in the cold by these cascading freezes are broadcast equipment manufacturers and tower crews. As previously noted by numerous broadcasters and the NAB, the FCC’s frosty view of just about every form of station modification is effectively driving out of business the very vendors and equipment installers that are critical to implementing the FCC’s planned channel repacking after the spectrum auction. As we learned during the DTV transition, the size and number of vendors and qualified installers of transmission and tower equipment is very limited and, given the skills required, can’t be increased quickly. Driving these businesses to shrink for lack of modification projects in their now-frozen pipelines threatens to also leave the channel repacking out in the cold.