We have gotten a lot of calls and emails lately from LPTV licensees who simply do not understand the basics of what will be happening to them as a result of the incentive spectrum auction. And just as many from who we thought would know since they are large scale operators. Then again, who really does know what is going to happen? The final rules for the auction and channel repacking have not yet been passed, and we only really know some of the basic outlines of them. When you consider what the courts might end up doing with the myriad of legal actions brought to them, it is a total unknown and void. And this is not a great place to be when you are trying to craft your business plan, operations plan, staffing decisions, and your own family legacy and personal retirement plans. And it for sure does not help those of you with organizations which rely on LPTV for getting their non-profit content delivered. So let's look at what we know, and what we do not know:
WHAT WE KNOW (OUR CERTAINTY)
1) The Incentive Spectrum Auction legislation passed in 2012, and for the past three years it has been going through a rulemaking process. This process will not stop until the final rules are passed, although it will have some detours possibly into the courts, before everything is final. The rest of this rulemaking process could take all the way through 2015 to complete.
2) The detours into the courts could take months if not years to work out. There is one case currently in the courts (NAB & Sinclair) and that could be ruled on this summer or fall. So far there have been legal threats from LPTV (our Coalition on numerous occasions), and now the auction-eligible sellers themselves. So the crowd is getting larger, and we welcome all of those currently, and soon to be, affected by this legislation. If you start to see the potential buyers (Verizon, AT&T, etc.) start to use the legal language which signals a pending legal action, then the auction process will grind to a halt.
The auction legislation enshrined the then 2012 existing LPTV rules, and this is where we can say for a certainty that LPTV has the ROD, the "right of displacement". It is easy to think of the ROD as a "spectrum hunting license" that you have earned by either being a licensed facility or having obtained a permit, before you are displaced. Many industry leaders and experts still are using fear to say that this right does not matter since there will not be channels to displace to. Yet none, yes none of these folks have ever produced a study or analysis to back up their claims. They are using fear to stoke licensees into joining their groups or buying tickets to their events. If anyone or group tells you LPTV is going to be dead, not have any channels to move to, and is toast, tell them "SHOW ME THE STUDY"!
4) We also know for certain that in those few cases in the large markets where remaining spectrum will be at a premium, that LPTV channel sharing, or displacing to another city of license within the DMA may need to be done. But this is consistent with our current LPTV rules, and is not a "taking" of our spectrum. You need to understand this. The FCC is not going to take your license, just tell you to move at your own cost. The Coalition is fighting for the authorization for "adjacent DMA displacement moves", which in most cases could be very useful to "rim shot" LPTV, or those licensed on the edge of a DMA. By moving into the next DMA they may be able to beam back into the DMA to find your audience.
5) We also know that there are special interest groups which want priorities in the post auction channel repacking. The FCC asked about this issue in the NPRM, and four different types of groups are now pushing for it:
a) The first are major network affiliates which want to be given a retroactive Class-A status for repacking because they are already fulfilling the Class-A rules.
b) Another group are also major network affiliates who want to be awarded Class-A stations as a priority for repacking, but to have a short open window to qualify.
c) And then there are the PBS-affiliated translators which want to make sure they get to the front of the line for channels
d) And finally the primary station affiliated translators which also want to make sure they get to the front of the repack, and say that the "service area" which is protected in the repack in more than the "contour" of their primary station.
6) We also know that current Class-A stations which are not qualified for the auction, since they were out-of-core displacements and did not receive their new Class-A assignments before the arbitrary Feb. 2012 deadline, they also do not receive any priority in the repacking, even though they meet all of the other criteria. It is almost a certainty these will end up in the courts also. (Hint FCC, let these few in to avoid this, LPTV does not care, that means more channels for us.)
7) We know for sure that the ATSC Committee will be submitting an ATSC 3.0 candidate standard late this spring or early summer for the FCC to begin a rulemaking on. And we know that they are asking only for approval of the "transport" layer, and not all of the services.
8) We also know that without an OFDM-based interference model for post-auction repacking, that there will not be enough channels for even the displaced and moving primary stations.
(Hint FCC, run the repacking simulations for this before we challenge it)
9) We also know that voluntary channel-sharing for LPTV will be allowed, but it sure would be great to share with a non-com primary so that they can still keep their MVPD must carry status, or a commercial primary also.
This could be huge for LPTV in that they could lease out channels to these other stations. (Hint FCC, model this and see many more auction eligible stations enter the auction.)
WHAT WE DO NOT KNOW (OUR UNCERTAINTY)
1) We do not know if the FCC will follow through in the final LPTV rulemaking with what they have strongly hinted at in the NPRM. These include, and are not limited to:
a) The use of the TV Study auction software "optimization model" to find displaced LPTV stations with new channel assignments after the auction. This would be the first time they ever have done this, and it would prevent a mass frenzy by those most powerful to file first and often to get in the front of the line for new channel assignments.
b) We do not know if the FCC will provide LPTV with any cost benefit analysis about the auction impacts to LPTV prior to the auction, which if they do not could force some in the industry into seeking relief from the courts through a mandamus filing.
c) We do not know, as of now, what the FCC simulations show about the number of channels in each DMA which could be left for LPTV to both displace into, and which would be displaced from.
d) We do not if the FCC will give priorities to stations claiming that they are acting like a Class-A, or to the PBS affiliates, or to the religious broadcasters, or to any of them. Huge First Amendment fights could be started with ANY priorities given out unfairly.
e) Will the proposed digital-to-digital replacement translators will be governed strictly or will they be able to run amuck and grab channels willy nilly. We suspect a tight regime, and wonder out loudly if by the adopting of ATSC 3.0, with the capability for it to deploy a single-frequency network, is there even a use for the DRT's.
f) We do not know a lot actually, but we hopefully soon will...although there is no definitive schedule for when we know it. (
Hint FCC, get this done asap or we will be forced to petition for it)
g) The Commissioners still have an NPRM to vote on issuing to start rulemaking about whether the TV White Space and unlicensed users can have a free TV channel in each market to use, ahead of us licensed users. While this seems outrageous to even be considered, it is for sure a huge uncertainty to prepare for.
So, as the singer Bobby McFerrin says,
"DON'T WORRY, BE HAPPY"