July 23, 2014
This is an analysis of the House "LPTV Preservation Act of 2014" sponsored by Congressman Barton of Texas. We are providing this so that the LPTV community and supporting industry can understand why we are opposed to the language within it. The Congressman, his staff, and the Majority counsel staff all say this bill is intended to help LPTV, and while that may be their intention, we believe the opposite is true. And the Minority is in on the Fix!
Bill Title
H.R. ____, the LPTV and Translator Preservation Act of 2014
Analysis
The title in the bill says that LPTV and Translators need preservation. While we would totally agree with this of course, we think that the intent of this was already accomplished in the original 2012 legislation with the paragraph below. We can think of only two reasons for revisiting this bill in this manner. First, there are problems which need to be fixed; or, there are changes which are desired to be made. If as we assume that the preservation of LPTV and translators was accomplished in the original 2012 language, then what could the Congressman and/or Committee counsel want changed? This will become obvious as we continue, just keep in mind that the Congressman and Committee counsel (on both sides) have a huge investment into a successful auction which does not allow LPTV in it, does not provide for any LPTV relocation funding, and is totally committed to freeing up as much spectrum for the big corporate wireless providers as possible. And they have already spent the projected funds, so their budgets and coffers are lacking.
Bill Language
A BILL - To amend the Middle Class Tax Relief and Job Creation Act of 2012 to protect the spectrum usage rights of low-power television stations, television translator stations, and television booster stations, and for other purposes.
So far, so good. This is what the entire LPTV industry desires the most, the protection of our spectrum usage rights "as they existed at the time of the 2012 legislation". The reason this is important is that for the past 30 months we have been doing all of our business planning, making our investments, and taking on considerable debt to prepare for the unfunded mandate placed on us by this same Committee members and counsel to move channels when displaced.
Bill Language (original 2012)
(A) IN GENERAL.- Nothing in this section shall be construed to alter the spectrum usage rights of low-power television stations, television translator stations, or television booster stations.
Coalition Analysis
The above original 2012 bill language was first thought to be too little to late to save LPTV. But it has proven upon closer examination, and through extensive use while analyzing and lobbying with the FCC for LPTV, to be the most effective tool in limiting the demise of LPTV. It literally stops the contemplation by the FCC from attempting a "taking" of LPTV licenses in the channel repacking, and setting the table for all discussions as to how the FCC will conduct rule making for LPTV related to the auction, repacking, and post-auction operational environment. In simple language, this paragraph must not be changed in any way at all. And while in this bill the words are not changed, the added paragraphs below change it from a tool to save LPTV licenses, to a mechanism for the "taking" of licenses we have all feared.
Additional Commentary by a 2012 LPTV Industry Representative Who Helped Draft The Act
The original intent of having this paragraph inserted in the legislation was to provide some broad protection for LPTV in the 2012 Act. A great deal of time, effort and money was expended to accomplish this, and the result has been essentially favorable for the LPTV industry. Although it would have been preferable to have more specific language relating to protections for LPTV licensees, the inclusion of the 2012 paragraph enshrined the LPTV "Right of Displacement", and has prevented the FCC from completely disregarding LPTV in its Auction procedures. Further, the 2012 paragraph purposefully does NOT address the "Secondary" issue, and it has served as a basis for the preparation of potential litigation relating to the issue of LPTV Secondary status. Existing "spectrum usage rights of low-power television stations, television translator stations, or television booster stations", are Secondary only to Full Service television stations under the existing rules. Any erosion of these rights, including the elevation of other services, particularly unlicensed services, such as TV White Spaces, is effectively not allowed. The paragraph, while short, is powerful in what it allows and prevents.
New 2014 Bill Language
(B) PRESERVATION- The Commission shall
(i) consider the benefits of low-power television stations, television translator stations, and television booster stations to the communities of license of such stations;
Coalition Analysis
This new paragraph runs counter to the entire body of LPTV rules and regulations in that it enables the FCC to make a determination as to the value of the subject matter of the programming of the station to what the local communities of license need or want. This has never been a consideration which the FCC has either sought or should be empowered with. Is faith-based programming more important than civic, is sports more important than Big Bird, will the LPTV programming be measured against what the primary stations are airing? Or does the author want to say that the FCC should consider if the 4th LPTV station in the market is too many, and maybe only three are needed? Or is the author attempting to put into the bill a mandate for the FCC to consider before it eliminates an FCC license the type of programming, or the number of stations (competition) in the market?
Coalition Recommendation
The FCC is already obligated by current law to provide a mechanism for LPTV licenses to exist, be built, be moved, be modified, be applied for, etc. The Congress should totally avoid telling the FCC how many LPTV in a market, which programming, and anything else about the details of the content. What this Committee failed to do in 2012 was to raise a point of order under UMRA, the Unfunded Mandates Regulatory Act, which should have been done, since LPTV licensees were required to pay for their own channel relocations and displacements, unlike the other participants in the auction. The UMRA threshold will be easily be reached by the LPTV industry each year of the auction process. And the FCC says it does not have to comply with UMRA. The 112th Congress did not do its duty, and LPTV has and will suffer greatly from that.
The 113th Congress, and this Committee, need to at a minimum, request of the GAO, an analysis of the impacts of the auction on LPTV, so that an accurate cost-model may be developed for LPTV relocation funding. Without this being done, no legislation should even be contemplated. This Committee simply does not know the facts. Now both majority and minority counsel to the Committee have debated this issue with the Coalition, as was the issue of Secondary status and what that means. It is obvious to the Coalition that both counsel are 100% biased towards new wireless services, and against LPTV. This Committee and its members are being ill-served by their Counsel for first not raising the UMRA point of order, and second, for thinking they are the smartest people in the room. They are not, and they are wrong on both of these issues.
We challenge Congressman Barton, Chairman Walden, and Congresswoman Eshoo to have a GAO study done on the impacts of the auction on LPTV, and let's see what it says. It can be done during the recess, and they can then revisit this bill in the fall to see if LPTV needs to be compensated for their channel moves. There are a wide variety of "pay-for's" which the Coalition has identified and has been building consensus around to deal with LPTV channel relocation funding. Remember, any member of Congress can raise the UMRA challenge when this bill moves towards adoption, and if you really do want to help LPTV, do the GAO, and then CBO studies. Rather than sitting on this bill for over 30 months this all could have been done already. Please do it now! And then revisit this bill or a new version of it. This is what the real LPTV community wants. And you would have known it had you asked and not prevented us from participating. Request the GAO LPTV Incentive Spectrum Auction Impact Study now!
New 2014 Bill Language
(ii) where possible, avoid the termination of a low-power television station, television translator station, or television booster station, as long as such avoidance does not adversely impact the reverse auction under subsection (a)(1) or the forward auction under subsection (c)(1); and
Coalition Analysis
This new paragraph is main problem with this bill. What it does is to enable the FCC to not have to follow the original 2012 don't mess with LPTV spectrum rights paragraph. It gives carte blanche authority to the FCC to make its' own determination which LPTV licensees should be terminated, or which should not. The FCC simply does not have that authority today. What the FCC does have full authority from Congress to do in the incentive spectrum auction is to structure the spectrum band so that an auction and subsequent repacking can be accomplished. All that the 2012 legislation did to LPTV was to authorize the FCC to have LPTV displaced to new channel allocations, not to eliminate any licenses. But this new 2014 bill does give the FCC the authority to do anything it wants with an LPTV license for the good of the auction. We know very well how the FCC interprets legislation. During the past 30-months since the spectrum auction act was passed LPTV has had to learn what was allowable and what was not. Eliminating a license is not. The FCC has already signaled that it will allow city-of-license channel moves, but not DMA moves. And we are fighting that point in the LPTV rule making this fall.
So why would Congressman Barton, and the two counsels put this in this bill? Could it be that they need this in the bill because they are worried about a failed auction and need for the FCC to have as much flexibility as possible to make it work? Could it be that the minorities tie to the Googleplex and netroots is so strong that they are spectrum hungry once again and know that the LPTV Right of Displacement totally screws up their 2012 plan to take our spectrum? Could it be that Google is now spreading campaign funds on both sides and this is the master plan to eliminate LPTV? Why should LPTV believe now the same legislators who would not allow LPTV in the auction, no channel relocation funds, and would not even do a study of auction impacts on LPTV.
Mark our words, if the minority quickly agrees with this bill, and it goes to the full committee right away, the fix is in, and LPTV will have been deceived big time. The only antidote we have is to get that GAO study, slow down the process, know what the impact is on us, and then see if there is a way to gain compensation for us, by using a pay-for which gets everyone what they want and need. Otherwise it is a taking ready to happen. The 2012 Act prevents a taking, and just enables an unfunded move. This bill will authorize the taking we have all feared.
Congressman Barton, Chairman Walden, and Congresswoman Eshoo, prove to LPTV that you care about us and get the GAO Auction Impact Study requested before voting on this bill.
New 2014 Bill Language
(iii) after the completion of the reassignments and reallocations under paragraph (1)(B), permit any low-power television station, television translator station or television booster station to request to operate at reduced power or from a different transmitter location consistent with the Commission's rules, if such station would otherwise lose its license as a result of such reassignments or reallocations.
Commentary by a Multiple Station Owner with 25 years in the LPTV service
The exact benefits of Paragraph (iii) are difficult to quantify. Throughout the history of the LPTV service, licensees have sought to increase the power of their facilities. In general, for broadcasters, more power equaled a superior service offering and often increased their protected service area. LPTV stations have always been allowed to decrease their power to avoid, or mitigate interference. LPTV stations have also been allowed to move the location of their transmitter within reason, as well. The paragraph states "permit any low-power television station, television translator station or television booster station to request to operate at reduced power or from a different transmitter location consistent with the Commission's rules, if such station would otherwise lose its license as a result of such reassignments or reallocations". The only new element here is perhaps the compulsory element for the FCC. It does beg the question as to who would decide if a loss of license was eminent and based on what technical parameters. Essentially, if there is any real benefits for LPTV licensees in this paragraph, it would require a real word test of the language to determine if it is actually effective.
Far too often, even well intentioned actions by individuals and or entities, claiming to represent a constituency (in this case the LPTV industry), who do not choose to operate in a transparent and open fashion and do not seek guidance and input from those they claim to represent, can lead to insular and poorly conceived outcomes. In the case of the draft LPTV amendment sponsored by Congressman Barton and encouraged and supported by the Advanced Television Broadcast Alliance, an obvious demonstration of the inadequacy of their approach is clearly demonstrated. Although, it may feel good to some in the LPTV industry to have any attention paid to them by Congress, sometimes such attention is merely ruse to aid in the preparation and implementation of a final solution. A solution crafted and paid for by powerful interests aligned against the LPTV industry and in fervent pursuit of their spectrum. Powerful interests who would have no difficulty using a Congressman and his offices to lull ignorant small business people into a false confidence, where they will willingly assist in cutting their own throats.
Coalition Commentary
What is really wrong about this bill is the obvious intent at enabling the FCC to by-pass the long established LPTV right of displacement by empowering the FCC with a full taking authority based on the needs of the auction. By having both the majority and minority agree on this point is very troubling. The fix is in yet again, and LPTV has traitors in its ranks, and they are aligned with NAB and the largest primary station ownership group. They simply do not represent the best interests of LPTV. This bill was crafted in secret and no LPTV interests other than the ones controlled by NAB members were allowed to participate. All members of this Subcommittee who were in office in 2012 bare the blame for the plight of LPTV, except that they did provide what has proven to be a single paragraph which protects LPTV spectrum usage rights. Now that we have used that to force the FCC to not even consider taking our spectrum but optimizing the repacking for LPTV, this bill was brought forward to counter our rights.
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The Coalition will hold a series of webinars in August to write our own LPTV bill and do it collaboratively with any and all LPTV licensees and industry partners. This entire process will be done in the sunshine and open for all to see. We will craft it to be introduced in the Senate, as this House Subcommittee is fatality infected by the wireless advocates. We will contact you about how to participate and follow what is being done. No shadowy private deals here. Stay tuned!
