TV Channel-Sharing Ground Rules Start to Emerge

Commission adopts skeletal preliminary rules for sharing, but leaves plenty of important details to be worked out in future proceedings

And so it begins.

The Commission has adopted the first minimal rules paving the way for the repacking of the TV broadcast spectrum. The new rules are, at most, preliminary guide markers. In that respect they’re much like the seemingly inconsequential surveyor’s stakes that quietly appear as an early harbinger of the heavy-duty construction teams that will eventually re-shape the idyllic pastureland into a ten-lane highway. Like those surveyor’s stakes, they mark the beginning of a process that will likely lead to dramatic changes in the landscape.

As everyone by now knows, the Commission (with Congress’s clear support) is intent upon repurposing a substantial chunk of the spectrum currently used for over-the-air television broadcasting. The goal is to free up UHF spectrum for broadband use. The full technical details of how the FCC might hope to accomplish that have not been revealed (and may not even have been fully formulated as yet). But you’ve got to start somewhere, so the Commission has now taken its first step.

In its recent Report and Order (Channel Sharing Order), the Commission has opened the door – at least for the purposes of the incentive auctions that Congress has authorized – to permit channel-sharing by full-power and Class A TV licensees. (The Commission will consider channel sharing in non-auction contexts in a later rulemaking.) The channel-sharing concept, under which multiple TV licensees would share a single six MHz channel, arose a couple of years ago. It was also an integral component of the spectrum portion of the “Middle Class Tax Relief and Job Creation Act” (which the FCC refers to as the “Spectrum Act”) the Congress enacted last February. 

According to the new rules, when channel-sharing eventually becomes a reality, it will be subject to the following general considerations:

Eligibility – Channel-sharing will be available only to full-power and Class A TV licensees (commercial and noncommercial) who participate in the incentive auction process by which the Commission hopes to coax TV stations off their current channels.  Of course, what these TV licensees are eligible for isn’t entirely clear – since, as noted below, multiple key details of the channel sharing procedure are left to be determined in future proceedings.  (Note: Since the purpose of the auction is to facilitate the repacking of the TV band, and since LPTV stations, being “secondary” licensees, need not be protected in the repacking process, LPTV licensees will not be eligible to participate in the incentive auction and thus are not eligible for channel-sharing under the new rules.)

Voluntariness – Sharing will be entirely voluntary. The Channel Sharing Order seems to go to great lengths to assure broadcasters that whether to share, and with whom to share, will be questions left to each licensee. No arranged marriages here – the FCC says the new rules will not “authorize the Commission to choose channel sharing partners”. But hold on there. Elsewhere in the order the Commission says that “the sharing parties must have a say in selecting their sharing partners” (those are our emphases, not the Commission’s). Isn’t there a difference between (a) having total control over who your partner is going to be and (b) “having a say” in that decision? Does the Commission’s choice of words mean that the agency could veto a sharing arrangement because the FCC doesn’t think the pairing is suitable for some reason? It’s hard to say, but the use of the expression “must have a say” does not discourage such thinking.

Minimum capacity – The manner in which a given six MHz channel would be divided by sharing licensees will be left to the licensees, provided that each sharing station retains enough capacity to operate at least one standard definition programming stream at all times.

Single facility/separate licensing – While stations sharing a single channel will utilize a single common transmission facility, each will continue to be licensed separately. Each sharing licensee will keep its original call sign, retain all rights of an FCC licensee, and remain subject to the full panoply of FCC rules, policies, and obligations.  For example, each station will still have to comply with the full range of rules governing children’s programming, political broadcasting, minimum operating hours, main studio, and EAS.  Sharing licensees will not be responsible for each others’ programming content or rule violations, although exactly how blame will be determined when technical violations occur has been left to (you guessed it) a future proceeding.

Must carry – The Commission asserts that the new sharing rules will have no effect on broadcaster’s current cable and satellite carriage rights. Sort of.  Specifically, each separately licensed station will be entitled to the same carriage rights at the shared location as it would have at that same location if it were not sharing, and only so long as it meets all of the usual technical requirements for carriage from that location.  The same would be true for the “local-into-local” “carry one, carry all” requirement for satellite broadcast signal carriage.  

But even if a sharing station is entitled to the carriage rights which it would get as a standalone station at the shared location, the fact is that as many as half of all sharing stations will likely be relocating their facilities as part of the sharing arrangement. Such a relocation could, for example, alter the moving station’s service area and, thus, the station’s ability to deliver the requisite “good quality signal” to all cable and satellite providers that it reached from its original site. And, in the case of a relocating Class A station, the move could take it more than 35 miles away from cable headends (i.e., outside the limit within which Class A stations are entitled to carriage). And don’t go crying to the Commission if your voluntary channel sharing arrangement results in the loss of must-carry rights: “[W]e expect that stations will take into account technical obligations that could affect their continuing carriage rights when designing their channel sharing arrangements.”

NCE-Commercial sharing – Commercial and NCE stations are permitted to share, so long as NCE licensees structure their arrangement to ensure continued compliance with NCE rules to maintain their NCE status.  Should an NCE licensees operating on a reserved channel opt to move to a non-reserved channel as part of a channel sharing arrangement, the NCE station must continue to operate on an NCE basis.  That, of course, gives rise to a follow-up question: what happens if a commercial station elects to share a channel that has been reserved for NCE use? Answer: The Commission will address that conundrum in a future proceeding.

Also relegated to a later rulemaking is the significant matter of how Class A and full power station sharing will work out in practice. For example, the “single transmission facility” requirement may mean that a sharing Class A station could benefit considerably by operating at greater power (with a considerably expanded service area) than currently allowed under the Class A service rules.  But would the converse be true? That is, would a full power station sharing the facility of a Class A station have to operate at a reduced power and service area? That would appear to create a serious disincentive to such arrangements.  

The prospect of multiple “future proceedings” looms large in other areas throughout the Channel Sharing Order. In addition to the “future proceedings” mentioned above, the Commission alludes to additional “future proceedings” that would address: issues involving technical requirements (including RF compliance) for sharing stations; procedures “through which stations may undertake their voluntary proposed channel sharing arrangements”; channel-sharing in non-auction contexts; the timing of the auction process; and whether to allow channel sharing to result in service losses (and whether such potential losses should be taken into account by the Commission “when considering the proposed sharing arrangement”. Whether the Commission intends to address all of these loose ends in a single wide-ranging proceeding or a series of more narrowly-targeted proceedings is not clear.

According to the FCC, its goal in adopting these initial channel-sharing rules is to “provide greater certainty to stations that may wish to consider channel sharing”.  At least some licensees, however, will need answers on the issues left outstanding before they will know whether channel sharing is a choice they want to make.

One final observation. The concept of channel-sharing necessarily means that each sharing licensee will have less than six MHz of spectrum in which to operate. But the use of a full six MHz channel is

necessary to provide viewers and consumers the full benefits of digital television made possible by the DTV Standard, including high definition television (“HDTV”), standard definition television, and other digital services. The DTV Standard was premised on the use of 6 MHz channels. To specify a different channel size . . . would not promote [the FCC’s] goals in adopting the DTV Standard.

That’s not us talking; that’s what the Commission said back in 1997, when it rejected arguments for digital TV channels of less than six MHz. In doing so, the Commission expressed particular concern about “the longstanding expectations of the parties, on which they have based the technology and established their plans”. In its efforts to promote channel-sharing, the Commission seems to   be singularly unconcerned with how that might affect the promotion of free over-the-air HDTV.

The new rules, such as they are, will become effective 30 days after the Channel Sharing Order is published in the Federal Register. Check back here at CommLawBlog for updates.

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