For the last few issues of this industry newsletter, we have been reporting on a clandestine meeting held in an executive conference room of the FCC, under the auspices of the FCC's Incentive Auction Task Force (IATF). This secret meeting was attended by representatives of the cellular telephone carriers (the buyers), and only two of the groups representing the television spectrum sellers (NAB and APTS), and only one of the networks (PBS), unless you count the primary networks NAB stations carry. In total there were 19 industry reps and 11 FCC officials.
NAB filed an ex parte notice
of the meeting. When we read the ex parte we had numerous questions about both the meeting itself and what went on, and what was agreed to in the meeting.
Make sure to read
to see what our specific concerns are. We believe that if our questions are not answered, the Incentive Auction process is at grave legal risk.
What is now new and we are revealing here, is the answer we got from the FCC's Office of General Counsel.
Thank you for bringing this matter to our attention. Based on our review, we conclude that, given the nature of the meeting, the notice filed by NAB is adequate. We have been informed that the purpose of the meeting was to encourage the private stakeholders present to confer among themselves (apart from the Commission) about the challenges associated with repacking and to see whether they could agree on measures that might address these challenges and serve the interests of both broadcasters and carriers. The meeting was not intended to present views to FCC staff but merely to lay the groundwork for future discussion. At such time as the private stakeholders had views to present to the FCC, these would be fully disclosed in detail. Arguably, under these circumstances, there was no need to file an ex parte notice of the meeting at all. See, e.g., 47 C.F.R. ? 1.1204(a)(10) (exempting presentations requested by or made with the advance approval of the Commission for purposes including how a proceeding might be settled). In the interests of transparency and out of caution, however, FCC staff requested that the parties file an ex parte notice. The notice NAB filed conformed to the staff's expectations.
We appreciate your continuing interest in this matter."
So, as you can see from the above response, there are now many more actual questions about the intent of the meeting, and what actually went on. Like "what was discussed to be settled?", by whom, under what authority? Who gave NAB and APTS authority or permission to negotiate for the 436 auction eligible Class-A stations?, the independent primary stations, the religious broadcasters, the hundreds of civic, government, and noncom stations, the thousands of LPTV stations and permit holders, and the hundreds of other networks which are carried independent stations and LPTV?
No one gave them permission, and for the FCC to host this meeting to see "how a proceeding might be settled", well what issue are we talking about, repacking? What is the "secret deal" which was struck between these sellers and buyers? Why are they the only ones to know about the secret deal, and party to the secret negotiations? Are not the rest of us with valid FCC licenses and permits allowed to be part of this discussion?
What advantage has now been given to NAB members and APTS members? What do they know to do, to submit, to plan for, that the rest of us do not? Has the Incentive Auction proceeding been compromised? (Ok, communications attorneys,
let us know what you think
If the FCC suggested an ex parte needed to be filed, then that ex parte needed to have been done in the proper form of full disclosure, as we have pointed out in our complaint. It clearly was not, and now the Office of General Counsel is attempting to cover the tracks of the IATF. Just what is being hidden? Why can't our simple, reasonable questions be answered? Remember, it is usually the cover-up that gets smart people in legal trouble, not the actual deed itself. Although hosting a secret meeting without having ALL stakeholders present may undo over 1100 days of rule making.
There are billions at stake for our members, and our segment of the industry, and we will not rest until we find out what the secret deal was which made at that meeting. And neither should you...WE GOT YOUR BACK LPTV, CLASS-A'S, INDIE AND CIVIC TV TRANSLATORS, INDIE PRIMARY STATIONS, RELIGIOUS BROADCASTERS, AND EMERGING NETWORKS!