Wednesday - 10/15/14

If you have not reviewed the full text of last week's two important LPTV related FCC documents, here they are.  

The following are my own comments, as our members have been waiting for me to share with them what I think, which is below.  I am sure our collective position and Comments into Proceedings will be different and more measured.

Construction Permit Public Notice Analysis
When you read this simple, 2-page Public Notice, you will see that licensed and built analog stations with digital construction permits are being treated the same as new digital permits without any underlying license. What is key here is that the FCC does not tell us the "calendar date" the CPs will be pushed back to, but it alerts us to a "process point" of when they will make that decision.  Like, after they figure everything out.  So thanks for the clarity and the ability to do some business planning folks.  But at least we all know that the costly and time-consuming process of filing 2nd and 3rd extensions will be halted while this process is defined. Too bad for the lawyers who got to file the extensions, but we are sure they will make up for it with all of the other things to deal with. Essentially this is a smart move by the FCC, combine the two classes of CPs, and treat them the same going forward.  What they do not mention is that there are over 2400 new digital construction permits in addition to the 1574 analog to digital permits.  And they threaten in the NPRM that if you are dark for a year (the analog's) you may lose your license.  

Does anyone at the FCC remember that most all of these 3974 construction permits were originally issued BEFORE the auction legislation and the ensuing 30 months since the Act was passed?  Is it the LPTV industry's fault that they have been unwilling to invest further into building out with such uncertainty? Do they not realize that this process has literally stopped many from getting financing or investments?  This is over $250 million of economic activity just to build these out, and it has been stalled by the auction process.  

"...there are 795 LPTV and 779 analog TV 
translator stations which have not yet 
completed their conversion to digital."
LPTV Incentive Spectrum Auction 3rd NPRM statistic

And now in the NPRM they threaten anyone being dark for a year to have their license taken away.  And the need to quickly convert to digital because the FCC employees may have a performance bonus for getting that done on time?  No, pushing back the A-D conversion date, or sunset date, is not only needed, but is essential.  And it needs to be pushed back all the way to at least month-51 post-auction, or one year past the 39-month primary repacking date.  There are simply not enough tower crews to do all of this work at the same time.  You can not simply take a cell tower crew and say climb the big towers and install equipment which is hundreds if not thousands of pounds.  We will respond in the 3rd NPRM about this, as we have already in the 2012 NPRM, but when is the FCC going to get this message?  At this point I feel like we are being strung along so that we have little time at the end of the process when the LPTV R&O comes out, then a recon period, and only then may we go to court over these issues.  

"...approximately 56% of LPTV, 80% of TV translator 

stations and 58% of Class A television stations 

have completed their conversion to digital."

LPTV Incentive Spectrum Auction 3rd NPRM statistic


FYI - any CP may be built out anytime, that is your right today, and will be your right going forward.  But you have to do that with eyes wide open, and checkbooks filled with cash and credit.  Then, as soon as you know what your new channel assignment will be you can act if you want.  Oh but wait, then there will be those new primary Digital Replacement Translators...oh no, your CP is no longer good, and you will have to do it all over again.  Then again, I recommend you build out now, so that you can qualify to be in the first LPTV displacement window, 6 months post auction.  (That was a promotional message from our manufacturer members needing the business).  Yet this is the reality.  While a "double-build" is not being forced on us, if you do not build out you are at a distinct disadvantage in that you will have to wait until after the first LPTV displacement window happens, and then be left with very few if any quality channel assignments.  By harmonizing the built and licensed analog-to-digital stations with unbuilt digital CPs, along with the never-built new digital CPs, whatever it meant to have a license is now wiped out.

LPTV NPRM Analysis
This long awaited LPTV NPRM document starts off with a bang, and an untruth.  In the section I.1 it reads: 


"These (LPTV and TV translator) stations are a 
source of diverse and local programming for viewers, 
especially in rural and remote locations."
2004 LPTV DTV Report

Now what is so wrong with this statement?  Are not rural communities in danger of losing their valuable and diverse programming if the TV translators are messed with?  Funny thing here folks.  This is 10-year old research, actually 11-12 year old research.  And since the DTV switch-over, the rural areas have been given a lot more programming options than just the primary networks.  This is not to say that the rural areas are not in danger here, but over 70 rural TV DMA are not even consider valuable enough for the recently released Greenhill Report to have given values for the spectrum.  What the above statement totally disregards is that 5/6th's of the USA population is in urban/suburban areas.  It is in these high density areas that there are numerous diverse audiences with many orders of magnitude more viewers who rely on many more diverse LPTV stations and channels than TV translators.  

The correct way for that statement to read should be "especially in urban America." The FCC has not done any modern post-DTV transition research on LPTV other than the 2014 Broadcast Ownership Report.  And this Report is highly flawed in that it, as well as the 2010 Report (which was the basis of the FCC data for Congress for the Auction), both of these Reports DID NOT STUDY THE OWNERSHIP OF TV TRANSLATORS AND IGNORE MORE THAN 30% OF LPTV OWNERSHIP INFORMATION (no follow-up to incomplete answers).  This is key in that this information is a gateway into the diverse ownership.  And a leading indicator of the programming.  Since the FCC has never studied the actual types of programming which LPTV airs, it should not be using a more than decade old citation for how the 2016+ audiences will be affected.  Now this was the first paragraph, so let's see what the rest of the document has to say...

The end of the second paragraph is another bombshell (or maybe I need a a vacation).  It says...

"Accordingly, a significant number of LPTV and TV translator stations maybe displaced as a result of the auction or repacking process and required to find a new channel from the smaller number of channels that will remain in the reorganized spectrum or discontinue operations."
Page 2, 3rd LPTV NPRM

Now where did this language come from?  LPTV is governed under a specific set of rules and regulations which the auction Act says are not to be messed with.  One of these is our Right of Displacement, meaning if displaced we have the right to go find another channel.  Currently you may change a city of license, and with overlap, a built facility may move to an adjacent DMA.  Now we have had discussions, some in the public even (see Coalition Info-session with Media Bureau Chief William Lake), where the concept of an adjacent DMA move to search for an audience and coverage would be discussed.  The above statement completely ignores that concept and goes right from, oh, no channel, too bad you are out of business.  No way folks.  We currently have the right to move, and we will continue to have that right.  We need to get approved the adjacent DMA moves for built stations, and a subsequent right for CPs to go find a new channel also.  Think for a moment of the "rimshot" LPTV station, which transmits from the edge of the DMA into the core. And may have audience in both.  They especially need the right to do this, and so do the rest of us.  Do I even dare to go to the next section?.....

Ok, I now get activated by page 3, footnote 6.  Seems the FCC did not address in the June Report & Order the rights, if any, of the "out-of-core" not eligible Class-A stations.  And in this 3rd NPRM they are saying none of it applies to Class-A stations.  Have they forgotten about over 100 stations which have been attempting to comply with the Class-A rules and now find themselves out of the auction payday, and not eligible for any priorities or repacking protections?  Should they not also be included in this discussion?  We have called them "orphans" and now that is evident they are.

Postponing the Analog Sunset and DTV Conversion
It took me a while to come back to writing this because I was laughing so much.  Seems that the FCC is now very concerned about the benefits of DTV for the public that they just find it hard to postpone the deadline, but for LPTV they will, but we better have some good reasons.  Ha!  As stated above, it is their auction and the long drawn out process of it that has stalled the A-D conversion process. And now they are asking if one year post auction will give us enough time?  


If the answer is yes then they are either trying to force us out of business or they are smoking something organic and locally grown (although in DC next month legalization will probably pass).  

They simply can not expect more than 1500 A-D conversions to occur within the first year of the repack and rebuild, especially when we do not even know our new channel assignments until month 6 at the earliest!  The FCC has not done any study to see what percentage of the population still uses analog, how many LPTV are still broadcasting analog, and all they seem to be concerned about is checking the box which says they did the transition.  This is domino's folks, and if they push over one issue it cascades into others, and then they get rid of a lot of us and they get the unlicensed and white space spectrum they really want.  NO FORCED CP BUILD-OUTS, EITHER NEW OR A-D CONVERSIONS, UNTIL ONE YEAR POST REPACK, NOT POST AUCTION!!!!!!!!!!  It is all about "fairness".

Next they point out that there are over 1700 new digital construction permits, many of which have reached their 3rd extensions, are staggered, and that they want to conform those with the A-D conversions.  All well and good, but now they want to force everyone to be built by the same date.  So that means:

1500 A-D conversions
1700 New digital CPs
PLUS over 1800 displacements of operating stations from 51-38
PLUS over 1000+ potential displacements of operating stations 36-32

Ok, maybe by 2020...

So yes, this all makes sense.  Force LPTV to build all around the same time, with little if no availability to tower crews.  Am I sounding like a broken record or stuck file?  No, this is your FCC at its' thinking best.  Now just for the record, all of this crap has been explained in detail to them numerous times in the Proceedings, in ex parte meetings.  I am now almost totally convinced this entire NPRM is a stalling tactic.  But that is ok, we are building the record for the courts.

Channel Sharing
There has not been one LPTV licensee which I have talked with or heard from which has been in support of channel sharing at all. Even if it is totally voluntary. And I have been the biggest supporter of it, since I believe that LPTV could gain a lot of channel leases by doing it, especially if they were to offer channels to the primary 2nd tier networks and the noncoms.  But LPTV on LPTV channel sharing, no interest I have heard of.  But the concept of leasing channels to auction participants which want to still have OTA coverage in the DMA and retain their MVPD carriage or retrans deals, well that is a winner.  And Big Bird needs our help.  Seems that the Greenhill Report has a lot of PBS affiliate station licensees (see below article) are now considering entering the auction.  So how about this....

Let the auction eligible stations sell in the auction.  And forget those channel sharing deals.  Take the full payday.  Then turn around and either purchase or lease LPTV licenses, and then negotiate with the MVPD for carriage.  Better still, why doesn't the FCC let them have their must-carry rights and be able to lease LPTV channels?  That is a win-win-win, heck let's add in another win.  (Harold would be then be happy).  And these arrangements of course would have to wait until the LPTV post-auction displacement window to be done, but that should not be a problem.  Noncom's, take the full auction proceeds and become LPTV operators!  There are already over 500 translators within the APTS membership, so for the urban markets also.  Help us help you...be one with our spectrum.  Show us the money!

Primary Digital Replacement Translators
Sorry, back now.  Had to take a pill (at least until the election here in DC). This item is probably the worst case scenario for LPTV.  The way it reads is that not only is the FCC going to let the primaries have spectrum in the repack for the few DRT's that are currently in the marketplace, but they are going to let the primaries file for new ones because the TV Study-enhanced OET-69 new and way improved software is going to create huge coverage gaps and losses so why not just throw a bone to NAB and let them file for as many LPTV channels as possible.  While there is language in this NPRM to offer safeguards about this, the reality is that the primaries can use this to literally wipe out LPTV stations like those rim shots I mentioned above.  Oh, a big hill has created a shadow, we need a DRT.  No folks, this one doesn't work for LPTV.  Fix the damn software so that the initial coverage losses are minimized as much as possible.  Hey Rick K., big time apologizes man, go get them with that Court of Appeals case (and congrats on the promotion).
A lot more on this one soon....Save NAB Coverage Areas!

Assistance to LPTV and TV Translator Stations in Finding Displacement Channels After the Incentive Auction
When this item was first introduced, again in the April 2014 Info-session with Chief Lake, it seemed like a really really good idea.  Use the same software to help repack LPTV as the auction used.  Could save LPTV a lot of money, time, and effort, and could make for a nice solid repack.  Especially if the channel assignments were voluntary.  And in theory all of that is still true and sounds great. 

But the question has come up and is one which I and many others just need to speak out about.  When?  Why do we need to wait until 6 months after the auction to run a computer program?  Why can not this be done during the rounds of the auction itself, so that the FCC can see the impact to LPTV during the auction process?  Why not run it as soon as the auction settles?  Oh you need to wait to see how the primaries modify?  I get that, but why not run it at various key points to see what the impacts are to LPTV?  I get it, the FCC was not directed by Congress to consider the impacts to LPTV during the auction, just try to help us after the damage is done.  But the FCC has said they have TOTAL control over how the auction is run, even to the point of superseding any part of the Act to accomplish the intent of the Act.  So what is wrong with running the software during the process to see how many channels are available for LPTV?  Oh yeah, thanks, use the software to help us afterwards, BUT WE RETAIN THE RIGHT TO NOT ACCEPT THE ASSIGNMENTS, CHANGE CITY OF LICENSE, AND DEMAND ADJACENT DMA MOVES TO FIND AUDIENCES FOR OUR PROGRAMMING!!!

Operation of Analog Radio Services by Digital LPTV Stations 
as Ancillary or Supplementary Services
Ok folks, this is the big Kahuna, the whole Enchilada, the Tip of the Flex-use Spear, the nose under the tent...alright I will stop.  The channel 6 audio service opportunity (it is not an issue as it is one of the most successful LPTV stories, currently in analog serving tens of millions of multi-cultural listeners, and is fully authorized as part of our innovation mandate).  The dozen or so of major market channel 6 radio services using LPTV spectrum want to continue as long as possible in analog mode, and then when they do switch over to digital, they want an approved flexible use digital 6 solution which provides them with the same capability to transmit an "aural" signal, in addition to any type of video or data service.  Basically, this is exactly what ATSC 3.0 will provide for, and in the Auction Act is a right given to those non-auction primaries and Class-A's which elect to not accept relocation funding.  So if it is good for them it should be good for LPTV. 

Currently there are absolutely no technical interference problems with any of the channel 6 analog operations, never has been.  They operate in a manner foreseen in 1999 by the LPTV Digital Data Services Act, and had the auction process not been started all of these successful operations would have converted to digital and already be operating in that manner.  There are over 150 channel 6 operations from primary stations, noncoms, LPTV, as well as app's and CPs.  Channel 6 digital is where LPTV will first attempt to gain flexible use authority, and if we have to do it and pay the ancillary fees that is ok.  But we can not do that and also be governed as an FM station under the Radio division.  That will not work. It is clearly already provided for in law as an ancillary service.  A warning to any radio head who thinks they can just file against this on the grounds of not wanting LPTV to have this service.  Or that you want channels 5/6 for the AM service.  Those arguments will not win the day, this is the future of LPTV, a flexible use ATSC 3.0 future, and audio services are part of it.  Tens of millions of multicultural listeners are benefiting from this LPTV innovation, don't mess with it, enhance it to go digital. It is the template for other types of innovative services for the primaries as well. 

Elimination of Analog Tuner Requirement
Just do it and coordinate it with the new A-D sunset date, heck just do it now, it does not matter. (Of course tomorrow I will be given a dozen reasons why not, but got to shake things up more.)

Additional Measures to Preserve LPTV and TV Translator Services
"Finally, we seek comment on additional measures we should consider in order to mitigate the impact of the incentive auction on LPTV and TV translator stations and to help preserve the important services they provide. Commenters proposing other measures for consideration should identify our legal authority to take the proposed measures and describe in detail any perceived benefits and disadvantages of the measures advocated."

Ok folks, this is where we can ask for MVPD must-carry, flexible use authority, relocation funding, single frequency networks, increased power levels, increases in acceptable interference between LPTV licensees, and whatever else we want, AS LONG AS WE CAN FIND A WAY FOR IT BE WITHIN THE CURRENT LEGAL FRAMEWORK OF OUR RULES AND REGULATIONS.

Related News

Scroll to about 5:00 for a good lead into the relevant segment

From Members of Congress Barton & Eshoo

Other LPTV News

Comcast-Time Warner Merger Comments Needed Now! 
The Coalition still needs your comments on how either Comcast or Time Warner has treated your LPTV requests for must-carry, leased access, or retransmission of national networks or your own local channels.  We are compiling these comments into the merger proceedings and need to get it done asap, so CLICK HERE to do so.

DMA Repacking Studies Almost Ready 
We are almost ready to deliver DMA repacking studies for each of the 210 TV DMA.  Our new TV Study software and workstation are being configured, and now that we know a lot more from the auction process, we can begin.  We do however need to figure in a curveball related to the full-power Digital Replacement Translators, as they may take away potential LPTV displacement channels in the DMA they currently exist, or in other markets where the FCC interference levels are high.  So if you have already one of the studies you can look forward to in about a week getting yours. What these studies do is to take the simulations which the FCC ran for interference and look for the available LPTV channels, with as many as 100 simulations in some DMA.  LEARN MORE OR ORDER
License Brokerage
We have been getting a lot of calls for assistance in helping to sell and market licenses.  We can provide you with a match-matching service with willing buyers and sellers, and we also work with those who are professional brokers. As we get closer to knowing all of the rules of the auction and repacking, we can help with valuations, build-out decisions, and other related services.  Call or email, and let's see how we can help.

We could really use your support the rest of the year to get the research, technical, and legal work done on these issues.  If you want to support our mission and work


Mike Gravino, Director
LPTV Spectrum Rights Coalition