Spectrum Category

Another Year Over and a New One Just Begun

Scott R. Flick

Posted January 17, 2014

By Scott R. Flick

Around this time every year, you typically see an abundance of articles in the trades making predictions about what the FCC will do in the coming year. It has become such a rite of the new year that I've even joked about it in past posts.

This year, however, I have noticed much less predictive commentary about the FCC, and it isn't hard to understand why. 2014 is so far looking like a "to be continued" year, forcing FCC soothsayers to concede that it's hard to say precisely how 2014 will differ markedly from 2013 at the FCC.

For example, 2014 was originally supposed to be the Year of the Broadcast Spectrum Incentive Auction. However, after the confusion surrounding the federal Affordable Care Act website demonstrated that "set a deadline to launch and it will surely be figured out by then" might not be the optimal approach to complex government projects, Chairman Wheeler agreed with much of the broadcast industry that it will take more time to get such a complicated undertaking right. As a result, he announced last month that the auction is now likely a mid-2015 event. While buying health insurance is indeed complicated, it is ditch-digging compared to designing the Broadcast Spectrum Incentive Auction (official motto: "The Broadcast Spectrum Auction--Making quantum mechanics look easy since 2010").

Similarly, Chairman Wheeler also last month took media ownership proposals being considered internally at the FCC under the prior Chairman off the table in order to give a "fresh look" at the FCC's media ownership rules. By statute, the FCC is required to review its media ownership rules every four years and eliminate any that are no longer in the public interest. The tabled proposals were part of the still-in-process 2010 quadrennial review, increasing the likelihood that the 2010 proceeding will now be rolled into the 2014 quadrennial review (official motto: "It's 2014 already?").

So does this mean 2014 will be boring for media watchers? Not at all. First, one reason for the dearth of breathless predictions is the relatively recent arrival of Chairman Wheeler. A new Chairman can bring many surprises, and as he has succeeded so far in holding many of his cards close to his vest, it's too early to tell just what all may be on his 2014 wish list. What he will do in 2014 therefore remains more a matter of speculation than prediction, leading many prognosticators to hold back for the moment.

Second, even if 2014 ends up being a quiet year of incremental change at the FCC, there is plenty to keep things interesting on the media front outside of the FCC. First and foremost, last week's announcement that the Supreme Court is jumping into the Aereo fray ensures that there will be some dramatic developments in 2014. Similarly, the 2014 elections promise to be a significant event for many media outlets, both in terms of bringing political ad dollars through the door while affecting the political balance of a Congress that has promised a rewrite of the Communications Act of 1934 in the next few years.

While such events will create an interesting 2014 regardless of what the FCC has on its menu, it's meeting the daily deadlines that keeps media businesses going, and meeting the legal deadlines that keep broadcasters in particular operating. For example, while the state by state radio license renewal application filing cycle concludes in 2014, the TV renewal cycle continues on throughout this year and into 2015.

One way, however, that 2014 will differ from 2013 is that October 1, 2014 marks the every-three-years deadline for TV stations to send their must-carry/retransmission consent elections to cable and satellite carriers. Given the growing importance of retrans dollars for broadcasters, and the fact that, at least with regard to cable, a failure to make an election results in a default election of must-carry, these elections are critically important (in contrast, note that failure to send an election to DirecTV or Dish leads to the opposite result, a default election of retransmission consent, just to make it as confusing as possible).

To help broadcasters navigate the less-exciting but still critically important deadlines that keep their licenses intact, at the end of 2013 we published the 2014 edition of our annual Broadcasters' Calendar. It can be found on the right side of the CommLawCenter main page, as well as at the Communications Publications section of Pillsburylaw.com.

Also, to stay up to date on industry events, keep an eye on our main page Interactive Calendar, as we upload numerous 2014 industry events, including NAB shows, state broadcasters associations conventions, and Pillsbury seminars and webinars on a variety of communications-related subjects. Predicting may be more fun, but knowing your regulatory deadlines keeps the lights on. Regardless, as 2014 reveals itself, I have little doubt that there will be a lot to talk about, and make predictions about, here at CommLawCenter.

One More Piece of the TV Auction Puzzle

Tony Lin

Posted July 23, 2013

By Tony Lin

Late yesterday, the FCC released a public notice providing information on the repacking process that will follow the broadcast spectrum incentive auction. This is the FCC's second response to calls by a number of parties seeking greater transparency (and information in general) regarding the technical aspects of the repacking process, including the FCC's repacking model and modeling assumptions. The FCC anticipates that more pieces of the puzzle, including details about how bids will be selected, how channels will be assigned, and the associated algorithms, will be made public in the coming months.

Specifically, in conjunction with the public notice, the FCC has made available the following:

  1. an update to its TVStudy computer software (now version 1.2) and supporting data for determining the coverage area and population served by television stations using the methodology described in OET Bulletin 69. According to the FCC's public notice, the updated software operates in the same way as the prior version, but has an improved user interface and enhanced capabilities for station-to-station analysis;
  2. data about Canadian and Mexican television allotments and incumbent licensees in a format that can be readily used with the updated TVStudy software program; and
  3. descriptions of the analysis for "pre-calculating" which stations could be assigned to which channels in the repacking process, and which stations cannot operate on the same channels or adjacent channels, based on geographic issues. The software and data being provided contain preliminary assumptions necessary to perform the analysis. The Commission states that those assumptions are for illustrative purposes only and that the FCC has made no decision as to whether to adopt any of them.

While all additional information regarding the auction and repacking process is welcome, this most recent release appears incremental at best, and we have a long way to go before broadcasters or potential auction bidders will be able to accurately assess their options. Given the stakes, however, those who can decipher the FCC's auction tea leaves earliest, and most accurately, will be at an advantage in the months to come.

FCC Modernizes Its Experimental Licensing Rules

Tony Lin

Posted April 29, 2013

By Tony Lin

The FCC's revised rules for its Experimental Radio Services ("ERS") were published in today's Federal Register, and become effective on May 29, 2013 (except for several rules that contain new or modified information collection requirements, which require further approval by the Office of Management and Budget). These revised rules allow parties, including manufacturers, entrepreneurs, and students, to engage in a wide variety of experiments involving radio spectrum, including, for example, technical demonstrations, equipment testing, limited market studies, and development of radio techniques. The FCC's revisions streamline and modernize the ERS rules, allowing parties to more quickly develop new technologies and products for the marketplace.

One of the primary changes to the rules is the creation of three types of ERS licenses: (1) Program Licenses; (2) Compliance Testing Licenses; and (3) Medical Testing Licenses. An applicant for a license must demonstrate in its application that it meets the eligibility requirements, must provide a certification of radio frequency (RF) expertise or partner with another entity with such expertise, and must explain the purpose of its experiment. Each license has a term of five years and is renewable.

Under a Program License, the license holder is permitted to conduct an ongoing program of research and experimentation under a single authorization without having to obtain prior FCC consent for each distinct experiment or series of unrelated experiments, as would have been required under the FCC's prior rules. Eligibility is limited to colleges, universities, research laboratories, manufacturers of radio frequency equipment or end-user products with integrated radio frequency equipment, and medical research institutions. Authorized entities must provide a "stop buzzer" point of contact, identify the specifics of each proposed experiment in advance of the testing on a public web database established by the FCC, and post a report detailing the results of each experiment upon completion of the experiment (A "stop buzzer" point of contact is a person who can address interference concerns and cease all transmissions immediately if interference occurs).

A Compliance Testing License allows a test lab to conduct testing for FCC equipment authorizations. Such licenses are available to labs that are currently recognized for RF product testing as well as any other lab that the FCC finds has sufficient expertise to undertake such testing. Unlike a Program Licensee, a compliance testing licensee does not have to identify a "stop buzzer" point of contact, provide any notification period prior to testing, or file any narrative statement regarding test results. Testing is limited to those activities necessary for product certification.

The third type of experimental license is a Medical Testing License. This license allows an eligible entity to conduct clinical trials of medical devices (i.e., a device that uses RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring). Only health care facilities (defined as hospitals and other establishments that offer services, facilities and beds for beyond a 24-hour period in rendering medical treatment, as well as institutions and organizations regularly engaged in providing medical services through clinics, public health facilities, and similar establishments, including government entities and agencies) are eligible for this type of experimental license. Medical devices tested under a Medical Testing License must comply with the FCC's Part 15, 18 and 95 rules. Authorized health care entities must provide a "stop buzzer" point of contact and also follow the same notice and reporting requirements as Program Licensees. A Medical Testing Licensee is required to file a yearly report with the FCC on the activity that has been performed under the license.

The FCC's other changes to its ERS rules include:

  • consolidating all of the experimental licensing rules into Part 5 of the FCC's Rules;
  • consolidating its rules regarding marketing of unauthorized devices;
  • allowing demonstrations in residential areas of devices not yet authorized, so long as the relevant spectrum licensee is working with the device manufacturer;
  • permitting, without an experimental license, the operation of devices not yet authorized, so long as the devices are operated as part of a trade show demonstration and at or below the maximum power level permitted for unlicensed devices under the FCC's Part 15 rules;
  • allowing more flexible product development and market trials;
  • standardizing and increasing the importation limit for devices that have not yet been authorized to 4,000 units; and
  • codifying the existing practice of allowing RF tests and experiments conducted within an anechoic chamber or Faraday cage without the need for obtaining an experimental license.
Parties interested in learning more about the FCC's revised ERS rules should contact their communications counsel for advice.

FCC Announces Immediate Freeze on TV Modification Applications

Scott R. Flick

Posted April 5, 2013

By Scott R. Flick

This morning, the FCC released a Public Notice announcing that, commencing immediately and until further notice, it will no longer accept modification applications (or amendments to modification applications) from full power and Class A television stations if the modification would increase the station's coverage in any direction beyond its current authorization.

The Public Notice also indicates that the FCC will cease processing modification applications that are already on file if the modification will increase the station's coverage in any direction. Applicants with a pending modification application subject to the freeze are being given 60 days to amend their application to prevent an increase in coverage (or seek a waiver), thereby allowing those applications to be processed by the FCC. Modification applications that are not amended within that period will not be processed until after the FCC releases its order in the Spectrum Auction proceeding, and at that point will be subject to any new rules or policies adopted in that rulemaking that would limit station modifications.

With regard to Class A stations specifically, the FCC will also not accept Class A displacement applications that increase a station's coverage in any direction. Class A applications to implement the digital transition (flash cut and digital companion channels) will continue to be processed as long as they comply with the existing restrictions on such applications.

The FCC states that the reason for putting modification applications in the deep freeze is that:

We find that the imposition of limits on the filing and processing of modification applications is now appropriate to facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated. The repacking methodology the Commission ultimately adopts will be a critical tool in reorganizing the broadcast TV spectrum pursuant to the statutory mandate. Additional development and analysis of potential repacking methodologies is required in light of the technical, policy, and auction design issues raised in the rulemaking proceeding. This work requires a stable database of full power and Class A broadcast facilities. In addition, to avoid frustrating the central goal of "repurpos[ing] the maximum amount of UHF band spectrum for flexible licensed and unlicensed use," we believe it is now necessary to limit the filing and processing of modification applications that would expand broadcast television stations' use of spectrum.

So once again, television broadcasters are tossed into a digital ice age, unable to adapt their facilities to shifting population areas, which seems to be the polar opposite of what Congress intended in requiring that spectrum incentive auctions not reduce broadcast service to the public. Aggravating the situation is that, unlike some of the DTV transition application freezes, the FCC is not limiting this freeze to large urban markets where it hopes to free up broadcast spectrum for wireless broadband. Indeed, modification applications were already less likely in those heavily populated urban areas because of the existing spectrum congestion that makes modifying a TV station's signal difficult.

As a result, the broadcasters most likely to be hurt by the freeze are those in more rural areas--areas that have ample available spectrum for broadcasting and broadband, and which the FCC has said are not really the target of its spectrum incentive auction. Those broadcasters will have to hope that the FCC is serious about considering freeze waiver requests. Otherwise, rural Americans will once again see improvements in their communications services delayed while the FCC focuses all its attention on securing more spectrum for broadband in urban population centers.

Should the Entire TV Band Be Repurposed?

John K. Hane

Posted February 7, 2013

By John Hane

The engineers who worked heroically to push broadcasting across the digital threshold had barely caught up on their sleep before agitation for more change began to erupt. The National Broadband Plan concluded that the amount of over-the-air viewing doesn't justify the number of broadcast stations, and that the FCC could use incentive auctions to re-pack broadcasting into a smaller band of spectrum. Now incentive auctions are the law. This decade we will likely see more broadcast spectrum repurposed for mobile services and another "transition" as hundreds of broadcasters conform their facilities.

So what's the connection between incentive auctions and talk of a new technical standard? The FCC thinks we need more spectrum for mobile services -- in large part because of rising use of video on mobile devices. But the FCC's rules dictate a broadcast television technical standard that means much of the most popular video -- which is already available free-to-air -- can't be received by mobile devices. The FCC is right that spectrum best suited for mobile services should be useful for mobile services. So why stop with the highest frequency TV channels? If we're going to do all the work of another transition, why not open a path for consumers to access the entire TV band with mobile devices? Many of the same forward-looking broadcasters that championed 8-VSB are working with others on a new standard that incorporates next-generation transmission technologies, as an article in TVNewsCheck reported earlier today. ATSC 3.0 would be easily accessible on mobile devices and provide a much better indoor viewing experience as well. And it will be ready to deploy when incentive auction repacking takes place.

But will every broadcaster want to upgrade at the same time? And what about consumers? FCC rules require all broadcasters to use the same digital standard to ensure universality -- so every television can receive every broadcast signal. But not everybody thinks that's the best policy. Back in the 1990s, the FCC itself debated whether it should select one standard, approve several standards, or simply let the market work things out. It adopted the ATSC standard, but it also asked whether the requirement to use that standard should sunset after a critical mass of deployment was reached.

Nobody wants a television Babel. But what does universal access mean when people increasingly consume their video on-the-move and on devices that we don't think of as televisions? In my home near downtown Bethesda, Maryland, pretty close to many of the region's television towers, I can reliably receive only three stations, even with an attic-mounted antenna. I can't receive any broadcasts on any of my computers, tablets, or other mobile devices.

I love broadcast television, but in my case, it's difficult or impossible to use most of the time. Millions of other Americans either don't use over-the-air television directly, or use it less than they otherwise might, for similar reasons.

Continue reading "Should the Entire TV Band Be Repurposed?"

The FCC's Spectrum Incentive Auction NPRM: A Condensed and Abridged Version

Scott R. Flick

Posted October 22, 2012

By Scott R. Flick

In my last post, I discussed the FCC's mammoth NPRM asking for public comment on an immense number of issues relating to the planned spectrum incentive auctions. In particular, I noted the challenges faced by both the FCC and commenters in trying to cover so much ground on such complex issues in such a short time. One of the emails I received in response to that post was from an old pro in the broadcast industry who wrote that "I've been reviewing the NPRM for 12 days and haven't finished yet!"

Having heard that message from a number of people, the importance of the NPRM to a great many segments of the communications industry, and the inability of many of our clients to dedicate several weeks to perusing the NPRM, Paul Cicelski and I have drafted a highly condensed summary of the NPRM in a Pillsbury Client Advisory that may be found here. In condensing it, we were mindful of the quote, often attributed to Albert Einstein, that "everything should be made as simple as possible, but not simpler." While an entirely sensible approach, it would have abbreviated the 205-page NPRM (including attachments) only marginally. So instead, we threw that bit of advice out the window and condensed our summary down to five pages, giving us an industry-leading 41:1 compression ratio.

As a result, the Advisory cannot contain the level of detail found in the NPRM itself (that's how you cut out 200 pages!), but our hope is that it will make the NPRM's content accessible to a much broader audience, particularly the many who will ultimately be affected by the FCC's various auction and repacking proposals. In addition to providing a relatively painless way for those interested to learn more about this proceeding, the Advisory should provide a road map for parties seeking to identify the issues that will most greatly affect them so that they can focus their attention on those specific aspects of the NPRM when preparing comments for the FCC.

Given that the volume of issues to be addressed in the NPRM is so great, and there is literally no way any individual party could cover them all, the best chance for a well-informed outcome in this proceeding is for the FCC to hear from a large number of commenters who, cumulatively, will hopefully touch on most of the key issues in their comments and reply comments. As a reminder, the comment deadline is December 21, 2012, with reply comments due on February 19, 2013. Whether a potential seller in the reverse spectrum auction, a potential buyer in the forward auction, or a television bystander that may be buffeted by the winds of repacking, now is the time to step up and make your voice heard, rather than merely grumbling over the next several years about how the process is unfolding.

A Spectral Incentive Auction?

Scott R. Flick

Posted October 12, 2012

By Scott R. Flick

Given that the FCC adopted its Notice of Proposed Rulemaking to establish the parameters of its much-anticipated broadcast spectrum auctions on September 28, 2012, and released the text of that NPRM on October 2, 2012, you would think that the communications industry would now be buzzing over the details of the FCC's long-in-the-making plan. Instead, from many corners of the industry, there has been stunned silence; not because there were any real surprises in the NPRM, but because the NPRM made clear to those not previously involved in the process the sheer enormity of the tasks ahead.

Also feeding the industry's muted reaction is the fact that, because there were no surprises, the industry doesn't know much more now than it did before about how the auctions will be structured. Instead, we are left with many excellent but unanswered questions asked by the NPRM, leaving the auction rules and structure a very ethereal proposition. As the annual deluge of Halloween horror movies reminds us, people are afraid of ethereal entities, and are unlikely to visit the FCC's cabin in the woods (despite the "big money for spectrum" signs out front) until the FCC is able to remove the dark mystery from this undertaking.

On the one hand, the FCC's staff deserves immense credit for asking the right questions on what is unquestionably the most complex undertaking the FCC has ever attempted (it makes you long for the simple-by-comparison DTV transition, which only took 13 years to accomplish). On the other hand, asking the right questions meant producing a 140 page, 425 paragraph NPRM, along with an additional 65 pages of appendices and commissioner statements.

The NPRM is a densely packed document with numerous questions and issues raised for public comment in each paragraph. Part of the problem, however, is that in order to get the entire package of materials down to 205 pages total, some of the NPRM's questions had to be condensed so severely as to make it difficult to discern what precisely the FCC is asking about or proposing. As a result, you will note that a lot of the third-party summaries circulating are short on condensed narrative and long on direct quotes from the NPRM--often a sign that the person drafting the summary gave up on trying to figure out what the NPRM was trying to say, and decided to let the reader take a crack at it instead.

Comments on the NPRM are due on December 21, 2012, with Reply Comments due on February 19, 2013. While the FCC indicates that it intends to hold the spectrum auctions in 2014, keep in mind that once the Reply Comments are filed, if the FCC were able to resolve a paragraph's worth of issues each and every day the FCC is open for business after that date, it would resolve the final issues in October of 2014. It would then need to release an order adopting the final policies and rules, and begin the process of setting up the reverse auction (for broadcasters interested in releasing spectrum) and the forward auction (for those interested in purchasing that spectrum for wireless broadband). Completing that process before 2015 will be extremely challenging.

Even this understates the actual time that will be required for the FCC to have a shot at a successful auction. Critically important to the success of such auctions is providing adequate time for potential spectrum sellers and buyers to analyze the final rules and assets to be sold to determine if they are interested in participating and at what price. If the FCC wants to encourage participation, it will need to ensure that potential spectrum sellers and buyers have at least a number of months to assess their options under the final rules. Otherwise, it is likely that many who might participate will not have attained an adequate level of comfort in the process to participate, or at least not at the prices the FCC is hoping to see. In that case, they will elect to remain on the sidelines.

Given the number of moving parts and these related considerations (which ignore entirely the possibility of additional delay from court appeals of the eventual rules), a 2014 auction seems very optimistic unless the FCC's goal shifts from having a successful auction to just having any form of auction as soon as possible. While those already intent upon being a buyer or seller of spectrum would certainly prefer a fast auction since that means quicker access to spectrum and spectrum dollars and less competition for both, the FCC and the public have a vested interest in holding auctions with a broader definition of success (in terms of dollars to the treasury, less disruption of broadcast service, producing large enough swaths of spectrum to maximize spectrum efficiency, etc.).

This morning, the FCC announced an October 26, 2012 workshop focusing on broadcaster issues in the NPRM, so efforts at removing at least some of the mystery surrounding the auctions are already underway. Given that all television broadcasters will be affected by this process, whether through participation in the reverse auction or by being forced to modify their facilities in the subsequent spectrum repacking, it would be wise to participate in the workshop, which is also being streamed on the Internet.

And one last bit of good news: the workshop will be held at the Commission Meeting Room at FCC Headquarters in Washington, DC rather than at that cabin in the woods mentioned above. However, don't be surprised if there is still a "big money for spectrum" banner over the door when you get there.

FCC Adopts Equipment-Related Consent Decree With Guitar Manufacturer to the Tune of a Quarter Million Dollars

Tony Lin

Posted August 21, 2012

By Tony Lin

Last week the Federal Communications Commission (FCC) adopted a Consent Decree involving a "voluntary contribution" of more than a quarter of a million dollars by a well-known guitar manufacturer, Fender Musical Instruments Corporation, relating to claims of unauthorized marketing of bass amplifiers, pre-amplifiers, tuners, audio mixers, and wireless microphones. While one might be puzzled by the FCC's interest in regulating musical equipment, the fact is that these devices, like virtually all modern day products, incorporate digital circuitry and generate (intentionally or unintentionally) radio-frequency signals that can cause interference to other spectrum users. The FCC's action is a reminder to all types of businesses that digital devices are regulated and must comply with the FCC's Part 2 and Part 15 rules regarding equipment authorization, including certification, verification, and declarations of conformity.

The FCC's investigation into Fender's products began in June 2010, when the FCC sent the company a letter of inquiry. While the content of the letter is not publicly available, it appears that the FCC sought information about when Fender received equipment authorizations for certain products, the labeling of such products, and the information disclosed in the user manuals for those products.

Over the course of the next two years, Fender, through its legal counsel, submitted a number of filings responding to the FCC's inquiry, and executed tolling agreements that permitted the FCC to extend its investigation. Ultimately, Fender reached an agreement with the FCC terminating the investigation. In the agreement, Fender did not acknowledge any wrongdoing (nor did the FCC reach any such conclusion), but the company voluntarily agreed to contribute $265,000 to the U.S. Treasury and institute an internal program to ensure future compliance with the FCC's rules. While this is nowhere close to being the most expensive equipment-related contribution or fine the FCC has received or assessed for unlicensed devices (in one case the FCC assessed a $1 million dollar forfeiture), it does send a loud message to manufacturers and importers of almost all modern day electronic devices that the FCC polices its equipment authorization rules and treats potential violations seriously.

For an overview of the FCC's Part 2 and Part 15 rules, you can check out our Client Advisory on the subject.

FCC's TV Channel Sharing Rules Go Into Effect Soon But the Picture Isn't Clear

Paul A. Cicelski Lauren Lynch Flick

Posted May 25, 2012

By Lauren Lynch Flick and Paul A. Cicelski

The FCC has announced that the preliminary television channel sharing rules in the FCC's Report and Order in the Innovation in Broadcast Television Bands proceeding will become effective on June 22, 2012. The rules establish the basic framework by which two or more full-power/Class A television stations can voluntarily choose to share a single 6 MHz channel. Channel sharing is integral to clearing the television broadcast spectrum so that the FCC can auction it for wireless broadband as called for in the National Broadband Plan. The rules follow the signing of the "Middle Class Tax Relief and Job Creation Act of 2012", which we discussed in detail in a previous post. Also called the "Spectrum Act," that law gives the FCC authority to conduct incentive auctions to encourage television broadcasters to get out of the business or find new business models that rely on less spectrum, such as doubling up with another station on a single 6 MHz channel.

The FCC's new rules allow a station to tender its existing 6 MHz channel to the FCC, making it available for the "reverse" or "incentive" spectrum auction. The tendering station can set a reserve price below which it won't sell. To encourage more stations to participate in the auction, the FCC is also permitting stations, in advance of the auction, to agree to share a single 6 MHz channel after the auction. In this scenario, one of the two stations would tender its channel into the auction, and both stations would share the proceeds and operate on the remaining 6 MHz channel after the auction. The FCC's Order makes clear that channel sharing arrangements will be voluntary, and that stations will be "given flexibility" to control some of the key parameters under which they will combine their operations on a single channel, including allocation of auction proceeds among the parties.

Each station sharing a 6 MHz channel will be required to retain enough capacity to transmit one standard definition stream, which must be free of charge to viewers. Each will have its own separate license and call sign, and each will be subject to all of the Commission's rules, including all technical rules and programming requirements. Stations that agree to share a channel will retain their current cable carriage rights. Commercial and noncommercial full-power and Class A TV stations are permitted to participate in the incentive auction and enter into channel sharing agreements, but low power TV and TV translator stations are not.

Many more details will have to be resolved prior to the incentive auction. Our own John Hane recently discussed the procedural uncertainties surrounding the auction in a detailed and comprehensive interview conducted by Harry Jessell of TVNewsCheck. The transcript of the interview can be found here. At bottom, John concluded that the largest obstacle facing the FCC will be designing the auction so that a sufficient number of broadcasters find it attractive to participate.

The FCC invited John and other industry experts to participate in a Channel Sharing Workshop earlier this week. In the meantime, John and other Pillsbury attorneys have been actively helping stations assess the risks and opportunities of the incentive auctions, including spectrum valuation and strategies for the forward and reverse auctions and spectrum repacking. Many of the issues raised at the FCC's Channel Sharing Workshop dealt with the intricacies of the arrangements broadcasters will have to craft to govern their relationship with a channel sharing partner. These ranged from how multiple channel "residents" will manage capital investments in facilities upgrades, to what might happen if one licensee on a shared channel goes bankrupt, sells, or turns in its license. A recording of the Workshop can be accessed here.

The FCC acknowledged that much work lies ahead of it. To that end, the FCC announced at the Workshop that the first of a series of Notice of Proposed Rulemakings concerning issues raised during the Workshop will be released in the Fall. The FCC did not predict a timeframe for completing the auction design process and establishing service rules.

As these and other issues take the fore, television broadcasters must remain engaged, shaping the process to allow them the maximum flexibility to develop relationships and business models that can thrive in the post-auction environment.

Death, Taxes and Voluntary Spectrum Auctions

Scott R. Flick

Posted May 2, 2012

By Scott R. Flick

The FCC created a stir in the broadcast community when, after proclaiming for more than a year that surrendering broadcast channels for the planned broadband spectrum auction would be entirely voluntary, it began to "volunteer" Class A stations it concluded had not complied with all FCC rules. I first raised this issue in a February post on the day the FCC released the first sixteen Orders to Show Cause demanding that the recipient Class A TV stations submit evidence as to why the FCC should not revoke their Class A status for infractions that would have previously drawn only a fine.

Loss of Class A status not only eliminates protection from being displaced by full power TV stations (or by a spectrum auction), but also disqualifies the station from sharing a post-auction channel with a full power station or seeking any compensation for its spectrum in the auction. Downgrading Class A stations to LPTV status therefore allows the FCC to sweep them aside involuntarily to clear spectrum for the auction, and avoid sharing the proceeds of the spectrum auction with that licensee.

It was therefore not too surprising when that initial batch of FCC orders was followed by dozens of subsequent FCC actions against Class A stations, some of which proposed substantial fines and indicated that the licensee had been earlier informed it could avoid a fine by notifying the FCC it wished to relinquish its Class A status.

Having put scores of stations on notice that their Class A status was either directly at risk or that they could avoid a fine by agreeing to relinquish Class A status, the FCC turned up the heat further this past week when it began issuing follow up orders revoking stations' Class A status. While the writing was already on the wall for many of these stations given the FCC's earlier actions against them, one of the orders offers a particularly disturbing insight into the determination with which the FCC is moving to thin the ranks of Class A stations (old FCC motto for Class A stations--"last bastion of independent voices in a consolidated TV world"; new FCC motto for Class A stations--"old and in the way").

Station KVHM is (or at least was) a Class A station that received a pair of investigatory letters from the FCC in late March and early August of 2011. According to the FCC, the letters noted that the station had failed to file required children's television reports and provided the licensee with thirty days to respond, making the first response due at the end of April 2011. However, as the FCC itself notes in the Order, the licensee, Humberto Lopez, died in May of 2011. According to his obituaries, Mr. Lopez, who owned multiple TV and radio stations and was an inductee of the Tejano Roots Hall of Fame, died "on May 16 after battling a long illness."

In the last few weeks of his life, he apparently didn't find time to respond to the FCC's March letter, and was certainly unable to respond to its August letter. His failure to respond led the FCC to issue a February 2012 Order to Show Cause demanding that Lopez demonstrate why his Class A status should not be revoked. When, not surprisingly, the licensee was unable to deliver that message from beyond the grave, the FCC issued last week's Order, stating "Lopez did not file a written statement in response to the Order to Show Cause, and, therefore, we deem him to have accepted the modification of the KVHM-LP license to low power television status." Talk about being tough on a licensee; the FCC demanded not just that Lopez rise from the grave to defend his Class A status, but that he do so in writing.

While it is easy enough to ridicule an FCC Order that is on its face so completely preposterous as to invite comparison with the worst cinematic portrayals of soulless bureaucracy, the real lesson of this case can be found by delving a bit deeper into the facts. On the FCC's side of the ledger, it is true that the first investigatory letter did arrive while the licensee was still alive, and that it was at least theoretically possible the licensee could have responded. Had the FCC's Order been based on this fact alone, rather than on the licensee's failure to respond long after his death to the 2012 Order to Show Cause, its action would have been hard-hearted, but perhaps defensible. The FCC could have argued that, given the licensee's failure to meet the original response deadline, his estate lacked the "clean hands" necessary to protest the loss of Class A status, and that the FCC was just playing the hand it was dealt. However, as it turns out, the FCC lacked clean hands as well.

Why, you may ask, did the licensee's estate not step up to oppose the Class A revocation? Apparently because it is still waiting for the FCC to grant the application to transfer control of the station from the deceased licensee to the licensee's estate (controlled by an Executor). Despite the fact that such post-death transfers are normally accorded nearly automatic grants, that application remains pending at the FCC since early November 2011. Worse, the apparent reason why the transfer application is hung up at the FCC is because the FCC has still not acted on the station's 2006 license renewal, which also remains pending. To be blunt, the licensee literally died waiting for the FCC to act on his license renewal application. While the FCC will often sit on a transfer application until the underlying station's license renewal is granted based on the theory that the "seller" shouldn't profit from the transfer of a station unless the FCC can first determine he was qualified to own it, the licensee here is beyond caring about such profit.

So in the fair world we like to think we live in, the FCC would have promptly granted the station's transfer application (and perhaps its license renewal application as well), transferring control of the station to the Executor of the licensee's estate. Without altering its timetable one iota, the FCC could then have proceeded to issue its February Order to Show Cause, and the Executor would have had a reasonable opportunity to try to defend the station's Class A status. Instead, in its apparent haste to clear "voluntary" spectrum for auction, the FCC cut all of these procedural corners, leaving Lopez's wife and (according to the obituary) twelve children with an asset of significantly diminished value, and no opportunity to seek their share of any spectrum auction proceeds.

What is particularly ironic is that the Lopez family is the archetype of the kind of licensee the FCC has argued will be interested in participating in the auction--a licensee that may no longer be as interested in running the station as in monetizing it to pay estate taxes and to split any remaining proceeds among the many heirs. The FCC has placed itself in the role of the cattle baron who dams up the stream, depriving his neighbors of water so that he can obtain their land for next to nothing (or in this case, nothing). If the FCC's thirst for broadcast spectrum has become so intense that it is willing to sacrifice fundamental fairness and "widows and orphans" to get it, all broadcasters need to be looking over their shoulders for the next regulatory lightning bolt encouraging them to also "volunteer" their spectrum. Like death and taxes, it appears the FCC is determined to make surrendering spectrum for the auction an unavoidable fact of life (and death).

A Reprieve--and a Lesson--for Class A TV Stations?

Scott R. Flick

Posted March 7, 2012

By Scott R. Flick

I wrote in February about a sudden deluge of nearly identical FCC decisions, all released on the same day, proposing to revoke the Class A status of sixteen LPTV stations for failure to timely file all of their Form 398 children's television reports. While I noted at the time that the affected licensees had done themselves no favors by apparently failing to respond to FCC letters of inquiry, the decisions were still somewhat surprising in that the FCC has traditionally fined Class A stations for rule violations rather than revoked their Class A status. Class A status is important because it provides LPTV stations with protection from being displaced by full-power TV stations, and is now more important than ever, as the recently enacted spectrum auction legislation allows Class A stations both the opportunity to participate in auction revenues, and protection from being eliminated in the broadcast spectrum repacking associated with the auction.

Given the peculiar timing of the FCC's decisions (just days after the spectrum auction legislation became law), the sudden shift from fines to Class A revocation, and the release of sixteen such decisions at the same time, the decisions raise the specter that the FCC may be moving to delete the Class A status of non-compliant stations in order to facilitate clearing broadcast spectrum as cheaply as possible in preparation for the newly-authorized wireless spectrum auction. Within a few days of my post, a number of trade publications picked up on this possibility as well. The result was a lot of Class A stations checking to make sure their regulatory house is in order, and a growing concern in the industry that these decisions might be the leading edge of an FCC effort to clear the way for recovering broadcast spectrum for the planned auction.

While that may still turn out to be the case, I was nonetheless at least somewhat relieved to see a trio of decisions released this morning by the FCC that are largely identical to the February decisions with one big exception--the FCC proposed fining the stations for failing to file all of their children's television reports rather than seeking to revoke their Class A status. Specifically, the FCC proposed fining two of the licensees $13,000 each, and the third licensee $26,000 (because it had two stations that failed to file all of their reports).

Each $13,000 fine consisted of $3000--the base fine for failing to file a required form--and an additional $10,000, which is the base fine for having such documents missing from a station's public file. While a $13,000 fine is painful, particularly for a low power station, loss of Class A status could be far more devastating for these stations, and for Class A stations in general. Setting aside spectrum auction considerations, buyers, lenders and investors will be hesitant to risk their money on Class A stations that could suddenly lose their Class A status, and shortly thereafter be displaced out of existence. Stated differently, those considering buying, lending to, or investing in Class A stations will want to do a thorough due diligence on such stations' rule compliance record before proceeding.

So why did the FCC propose fines for these stations while the sixteen stations in the February decisions were threatened with deletion of their Class A status? Although today's decisions and the February decisions are similar in many respects, there is one big distinction. Unlike the licensees in the February decisions, the licensees named in today's decisions promptly responded to the letters of inquiry sent by the FCC, and upon realizing that they had failed to file all of their children's television reports, belatedly completed and submitted those reports to the FCC. While that didn't stop the FCC from seeking to fine these stations, it does seem to have avoided a reexamination of their Class A status.

While the FCC's February decisions to pursue deletion of Class A status are still a worrisome development for all Class A stations, today's decisions thankfully shed some much needed light on when the FCC is likely to pursue that option, and when it will be satisfied with merely issuing a fine. As I noted in my earlier post, a licensee that fails to promptly respond to a letter from the FCC is living life dangerously, and today's decisions confirm that fact. As a result, Class A stations should continue to make sure that their regulatory house is in order, and if they receive a letter of inquiry from the FCC, should contact their lawyer immediately to timely put forth the best possible response to the FCC.

Spectrum Auction Legislation Becomes Law, But Now What?

Scott R. Flick

Posted March 2, 2012

By Scott R. Flick

Following many months of debate and after trying several potential legislative vehicles, the House and Senate finally enacted spectrum auction legislation as part of the bill to extend payroll tax cuts for another year. It was signed by the President last week, and for those following the process for the past two years, the result was somewhat anticlimactic. That is mostly good news for broadcasters, as the NAB was successful in ensuring that the law contains enough protections for broadcasters to prevent the spectral armageddon that it once appeared broadcasters might face.

Having said that, we can't ignore that there were bodies left out on the legislative battlefield, the most obvious being low power TV and TV translator stations. Under the new law, these stations are not permitted to participate in the spectrum auction, are not protected from being displaced to oblivion in the repacking process, and are not entitled to reimbursement of displacement expenses. It is that last point that may be the most important in rural areas. While it is possible there could be enough post-repacking broadcast spectrum in rural areas for TV translators to survive, they will still need to move off of the nationwide swaths of spectrum the FCC intends to auction to wireless companies. Unfortunately, many if not most TV translator licensees are local and regional entities with minimal financial resources. Telling such a licensee that it needs to move to a new channel, or worse, to a different location to make the new channel work, may be the same as telling it to shut down.

This is particularly true when the sheer quantity of translator facilities that might have to be moved is considered. For example, there are nearly 350 TV translators in Montana alone. Moving even a third of them will be an expensive proposition for licensees whose primary purpose is not profit, but the continued availability of rural broadcast service. Further complicating the picture is the fact that in border states like Montana, protecting spectrum for low power TV and TV translators will inevitably be a very low priority when negotiating a new spectrum realignment treaty with Canada or Mexico to permit reallotment of the band.

While full-power and Class A television stations therefore fared much better in the legislation, for those uninterested in selling their spectrum, spectrum repacking will still not be a pleasant experience. Those of us who endured the repacking process during the DTV transition can attest to how complex and challenging the process can be, and the DTV process had the luxury of fifteen years of planning and execution, as well as a lot more spectrum in the broadcast band with which to work. Having already squeezed the broadcast spectrum lemon pretty hard during the DTV transition, the FCC may find that there isn't much juice left in it for a second go around. That, combined with a much tighter time frame, could make this an even more complex and messy process.

In addition, while it hasn't drawn as much attention as it should have, one other changed factor is that after the DTV transition was completed, the FCC opened up TV "white spaces" (spectrum between allotted broadcast channels) for unlicensed use by technology companies seeking to introduce new products and services requiring spectrum. Having enticed companies into investing many millions of dollars in research and development for these white spaces products and services, eliminating the white spaces during the repacking process (which is the point of repacking) could leave many of these companies out in the cold. This is a particularly likely outcome given that the very markets white spaces companies are interested in--densely populated urban areas--are precisely those areas where the FCC most desperately wants to obtain additional spectrum for wireless, and where available spectrum is already scarce. Like low power TV and TV translator licensees, these white spaces companies are pretty much going to be told to "suck the lemon" and hope there are a few drops of spectrum left for them after the repacking.

Still, while there certainly are some obstacles to overcome, the DTV transition gave the FCC staff priceless experience in navigating a repacking, and the FCC already has ample experience auctioning off spectrum. The question is whether this particular undertaking is so vast as to be unmanageable, or whether quick but careful planning can remove most of the sharp edges. Once again, the devil will be in the details, and no one envies the FCC with regard to the task it has before it. However, the chance for an optimal outcome will be maximized if all affected parties engage the FCC as it designs the process. In addition to hopefully producing a workable result for the FCC, broadcasters engaged in the process can ensure that the result is good not just for broadcasters in general, but for their particular stations.

For those interested in getting an advance view of what specifically is involved, Harry Jessell of TVNewsCheck recently interviewed our own John Hane to discuss some of the pragmatic issues facing the FCC and the broadcast industry in navigating the spectrum auction landscape. The transcript of the interview can be found here. John's comments provide additional detail on the tasks facing the FCC, as well as how long the process will likely take.

While everyone impacted by the spectrum auction and repacking process faces many uncertainties as to its outcome, of this we can be certain: challenging times lay ahead.

TV Stations' Class A Status on the Chopping Block

Scott R. Flick

Posted February 28, 2012

By Scott R. Flick

This morning the FCC released copies of 16 Orders to Show Cause sent to licensees of low power TV stations that have Class A status. Class A status protects such stations from being displaced by modifications to full-power stations and, with the recent enactment of the spectrum auction legislation, qualifies them to participate in the auction (for a share of the auction revenues) while protecting them from being spectrum repacked out of existence as part of the auction preparations.

Each of the Orders is surprisingly similar, noting that the FCC sent letters to the licensee in March and August of last year asking why it had not been regularly filing its FCC Form 398 Children's Television Reports with the Commission. The Orders note that the licensees failed to respond to either of the FCC letters, and that the FCC is therefore demanding they now tell the FCC if there is any reason why it should not relieve them of their Class A status, making them regular LPTV licensees with attendant secondary status.

It is possible that these are just the beginning of a tidal wave of FCC orders aimed at thinning the ranks of Class A stations. First, given that these stations were told they had not filed all of their Children's Television Reports and they then failed to respond to the FCC, these are the "easy" cases for the FCC, since it can assert that the licensee effectively defaulted by not responding. Presumably, for each licensee that did not respond at all, there were several that did respond to explain why their Children's Television Reports might not be showing up in the FCC's database. These cases will have more individualized facts, requiring the Media Bureau to write more detailed and diverse responses. Drafting those types of responses will take FCC staff more time than this largely cookie-cutter first batch, and that is why there likely will be more Show Cause Orders being sent to Class A stations in the not too distant future.

Beyond proving once again that "you don't tug on Superman's cape, you don't spit into the wind, you don't pull the mask off that old Lone Ranger, and you don't fail to respond to an FCC letter" (Jim Croce as channeled by a communications lawyer), the Orders are a bit surprising since the FCC had previously taken the position that, like full-power TV stations, the penalty for a Class A station failing to comply with a rule is typically a fine, not the loss of Class A status. While the licensees that failed to respond to the FCC letters in March and August certainly did themselves no favors, it is likely that loss of Class A status is going to be the FCC's favored enforcement tool going forward.

Why? Well, as I explain in a post coming out later this week on the new spectrum auction law, unlike Class A stations, LPTV stations were given no protections under the auction statute, leaving them at risk of being displaced into oblivion, with no right to participate in spectrum auction proceeds and no right to reimbursement for the cost of moving to a new channel during the repacking process (assuming a channel is available).

However, because the statute gives Class A stations rights similar to full-power TV stations, every Class A station the FCC can now eliminate increases the amount of spectrum the FCC can recover for an auction, reduces the amount of spectrum the FCC must leave available for broadcasters in the repacking process, and increases the potential profitability of the auction for the government (since it can just displace LPTV stations rather than compensate them as Class A stations).

That the FCC seems to now be moving quickly to cull LPTV stations from the Class A herd just a week after Congress cleared the way for a spectrum auction is likely no coincidence. Instead, these Orders represent the first of many actions the FCC is likely to take to simplify the repacking process while reducing the costs inherent in conducting an auction for vacated broadcast spectrum. For the FCC, LPTV stations and "former" Class A stations are the low-hanging fruit in conducting a successful spectrum auction. The question for other television licensees is how much further up the tree the FCC is going to climb to make more spectrum available for an auction at minimal cost to the government.

Spectrum Fees and the Urban Legend of Free Spectrum

Scott R. Flick

Posted September 13, 2011

By Scott R. Flick

In the past few days, details have emerged from the White House regarding the funding sources being proposed to cover the cost of the American Jobs Act. In the government's search for cash, it should surprise no one that in addition to broadcast spectrum auction language (which seems to be in every new funding bill these days), spectrum fees are also being proposed. While there is some good news for television broadcasters, who are exempt from the fees in the current draft of the bill, you can never tell if that exemption will survive the rough and tumble legislative process. Radio broadcasters aren't so lucky--no exemption for them.

One trend is clear--the government's growing reliance on fees from broadcasters and other FCC license holders. When I started practicing in the 1980s, the FCC did not generally charge fees. Congress later instructed the FCC to collect a fee for each application or report filed, and to set the size of the fee at an amount that would cover the cost of processing that particular application/report. While there was some grumbling about having to pay the FCC to process reports that the FCC had required be filed in the first place, most understood that the government was not going to surrender this newly-found revenue source.

However, when Congress later required the FCC to also collect annual regulatory fees from spectrum users in amounts sufficient to cover the FCC's total operating budget, spectrum users cried foul. They were already paying a filing fee to have the FCC process their applications, and now were expected to pay a separate annual fee to cover all of the FCC's operating costs (including application processing). This meant that the government was double-dipping--collecting fees under the guise of "covering costs" that in fact exceeded those costs. To his credit, Commissioner McDowell acknowledged this strange situation in 2009, when he urged the FCC to "take another look at why we continue to levy a tax of sorts of allegedly $25 million or so per year on industry, after the Commission has fully funded its operations through regulatory fees. That money goes straight to the Treasury and is not used to fund the agency." Despite the protests, the FCC continues to be required by Congress to collect those fees, which increase every year.

So broadcasters and other spectrum users can be forgiven if they are skeptical of calls for yet one more government fee on their existence. Even if the exemption for television broadcasters stays in the bill, that is limited comfort for TV licensees, since any spectrum fee adopted will almost inevitably creep over to television as Congress continues its search for revenue sources that can be called "fees" rather than "taxes."

Sensitive to these complaints, the White House attempted to bolster its case in a summary of the bill, stating that "it is expected that fees would encourage efficient allocation and use of the radio spectrum, as the opportunity cost of spectrum resources would be reflected to commercial license holders that did not receive authorizations through competitive bidding." This perennial argument, that broadcasters shouldn't complain about any governmentally-imposed burden because "they got their spectrum for free," remains one of the urban legends of Washington. Like most urban legends, however, it has no basis in fact.

Very few current broadcasters "got their spectrum for free." The FCC has been auctioning off broadcast spectrum for over a decade, and broadcast stations that were licensed before that time have typically been sold and resold at "fair market value" many times over the years. As a result, it is a rare broadcaster that currently holds a broadcast license obtained directly from the FCC "for free". Most broadcasters have paid dearly for that license, both in terms of the station purchase price and the public service obligations that come with the license.

Still, fee proponents argue that because the original license holder didn't have to pay the government for the spectrum, the "free" argument still applies, no matter how many times the station has changed hands since then. That argument is eviscerated, however, by a simple analogy. When the United States was settled, the government issued land grants to settlers who "staked a claim" to virgin territory by promising to make productive use of that land (the "Sooners" being one of the better-known examples). Other than the promise to use the land, these settlers did not pay the government for their land grants. The land then passed from generation to generation and from seller to buyer many times in the years since the original grant. However, despite the fact that the original owners "got their land for free", I would wager there are few homeowners among us who would agree that we received "our" land for free, much less accept a governmental fee premised on that assertion.

How spectrum/licenses were originally assigned by the FCC (or its predecessor agency) many years ago bears no more relevance to today's broadcaster than 19th century land grants relate to the modern homeowner. In both cases, the original owner lived up to its commitment to the government to make productive use of the asset, and was therefore permitted to eventually sell its claim to others. To assert that these buyers are somehow suspect beneficiaries of land or spectrum ignores reality. Today's broadcasters are merely the spiritual descendants of a different kind of settler--the pioneers of the airwaves.

The First Domino Falls: Say Goodbye to Channel 51

Scott R. Flick

Posted August 22, 2011

By Scott R. Flick

The FCC this morning announced a "temporary" freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA - the Wireless Association and the Rural Cellular Association asking the FCC to take steps to "prevent further interference caused by TV broadcast stations on channel 51" to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to "(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel."

What is odd about the FCC's announcement, however, is that freezes are normally implemented to "lock down" the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today's notice goes farther than just a freeze, as it "(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment."

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much "temporarily" grants the wireless industry's petition.

That last aspect is particularly odd. In contrast to a freeze designed to "lock in" the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn't already clear where the FCC is heading, establishing a 60-day "window" for low power applicants to clear off of Channel 51 in response to only a "temporary" freeze would make no sense if the FCC didn't intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC's action is purely procedural and therefore "not subject to the notice and comment and effective date requirements of the Administrative Procedure Act" will be of little comfort to the low power applicant who waits to see what "permanent" action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.