FCC Seeks Comment on Proposed Incentive Auction Station Repack Plan

On September 30, 2016, the FCC issued a 51-page Public Notice describing the FCC’s proposed plan to repack broadcast television stations over a 39-month transition period subsequent to the completion of the incentive auction. Through the “repacking” process, the FCC proposes to move numerous TV stations to other locations of the television broadcast spectrum so that television stations remaining on the air post-auction will occupy a smaller portion of the UHF band. The reclaimed spectrum will then be “reorganized” to accommodate mobile broadband and unlicensed use. However, in order to accomplish this laudable goal, the FCC must reassign television broadcast stations to new, post-auction channel assignments in an efficient and orderly manner tailored to stations’ individual circumstances. This is not an easy task, but the FCC’s proposal for a phased transition does provide some order in what will certainly be chaos during the repacking period.

Transition Phases

The FCC proposes to assign broadcast stations to one of 10 “transition phases” with sequential testing periods and deadlines in order to “smooth the way for station coordination, promote efficient allocation of limited resources, limit the impact of the transition on consumers, and facilitate FCC monitoring to determine whether schedule adjustments are necessary during the course of the transition process.” Once the forward auction concludes, the FCC will issue a public notice that announces each channel assignment, technical parameters, assigned transition phase, phase completion date, and testing period for each assigned station. The transition phase each station is assigned will be based on an in-depth methodology that uses optimization techniques described in the appendix to the Public Notice. This methodology is intended to minimize interference issues. The timeline for completing each phase will be based on a range of estimates for each phase, which the FCC claims “are conservative and reasonable.”

Temporary Interference

The FCC will permit temporary interference above the normally allowable limits, which the FCC believes will produce substantial benefits without causing undue disruption during the transition period. The FCC states that the increased interference is a necessary evil of stations moving to their post-auction channels, and will relieve stations of the burden of first coordinating with a large number of other stations when testing or operating on their post-auction channels. Once the post-auction period is completed, interference will be limited to the level of interference currently permitted under the FCC’s rules.

Temporary Channel Assignments

The FCC tentatively concluded that the benefits of using temporary channels are not great enough to warrant their use in light of the potential burdens such as requiring a station to move twice, which would in turn require additional equipment and resources, and possibly confuse viewers. However, the FCC seeks comments on its conclusion, and offers further proposals should the use of temporary channels be adopted. For example, the FCC proposes that stations using a temporary channel assignment should continue to have mandatory must-carry rights. Additionally, the FCC proposes that any stations assigned to temporary channels would be subject to interference protection. Lastly, the FCC proposes that any costs incurred by stations as a result of their assignment to a temporary channel would be eligible for reimbursement, as would the costs of cable operators complying with must-carry requirements.

Expanded Facilities & Alternate Channel Requests

The FCC recognizes that some stations may seek to construct expanded facilities or move to an alternate channel that differs from what the station is assigned in a public notice to be released after the close of the forward auction. The FCC also recognizes that some stations may seek to continue operation on their pre-auction channel after their phase-completion date. The FCC states that it will evaluate these requests based on the impact that it would have on the phase transition schedule. If new or existing dependencies are likely to occur as a result of the request, the FCC is likely to deny it. However, the FCC will likely grant requests that are compliant with the rules or have little or no impact on the phase assignments and transition schedules. Additionally, if a requesting station has the approval of all of the other stations that would be affected by the request, then the FCC is likely to look favorably on granting it.

Prohibited Auction Communications

As the FCC has done at each stage of the incentive auction proceeding, it reminds broadcasters and forward auction participants that any communications relating to bids or bidding strategies of any party covered by the rules is expressly prohibited. The FCC spends four paragraphs describing prohibited communications associated with the incentive auction. Therefore, we remind any party participating in the incentive auction to remain mindful of the FCC’s rules when communications relate to the auction.

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While it may be a number of months before the incentive auction closes and the repacking scheme is implemented, it is encouraging that the FCC is seeking comment on the specifics of the repacking process. Currently comments are due October 31 and reply comments are due November 15, 2016. Hopefully a reasoned rule making process will lead to a fair, efficient, and coordinated transition.