Commission seeks comment on “uses of spectrum”

If you’ve got a TV license, you’ve got a problem. After a couple of months’ of crescendoing news reports, rumors, indirect proposals, and other non-official murmurings, the Commission has issued a formal request for comments on “uses of spectrum”. But don’t let that hopelessly vague title fool you. The focus of the inquiry is the possible repurposing of TV spectrum for wireless broadband services.

Yikes! Talk about an inquiry of staggering scope and complexity, with vast implications for the economy and the very cultural fabric of our society! Not to worry, though – you have a grand total of 19 days, to December 21, 2009 (oops – make that 18 days now), within which to gather your thoughts, bundle them up coherently and ship them off to the FCC.

The motivation here is the notion that there’s just not enough spectrum currently available to “meet the demand for wireless broadband services in the near future”. Since the arrival last summer of Chairman Genachowski (motto: “Mmmm, Broadband – Is there anything it can’t do?”), the Commission has been on an All-Broadband-All-The-Time juggernaut. With Congress adding to the frenzy through its multi-billion dollar broadband stimulus give-away program, the expansion of broadband into every nook and cranny of the USofA has become a regulatory obsession. And pushed by that obsession, the Commission has set out on a quest for a modern Philosopher’s Stone that might turn base spectrum into wireless broadband-worthy gold. Some helpful (if not entirely disinterested) observers, including the wireless industry and the Consumer Electronics Association, have suggested that TV spectrum would be a good place to look.

Taking that hint, the Commission has posed a series of questions about (a) how generally to assess the use of spectrum, and (b) what approaches might be available to “increase spectrum availability and efficiency”. We won’t bother to reproduce all the questions here – you can find them in the FCC’s notice. The notice does ask how the relative merits of broadcast and wireless broadband services should be evaluated. But it then tips its hand ever so slightly by asking the following:

What would be the impact to the U.S. economy if insufficient additional spectrum were made available for wireless broadband deployment, in terms of investments, jobs, consumer welfare, innovation, and other indicators of global leadership?

From the way that question is framed, our guess is that the Commission already has its answer, and that answer is “a really, really big bad impact”. In a display of ostensible fairness, the Commission also poses an “impact” question about broadcasting: 

What would be the impact to the U.S. economy and public welfare if the coverage of free over-the-air broadcast television was diminished to accommodate a repacking of stations to recover spectrum?

Apparently, investments, jobs, consumer welfare, innovation and other “indicators of global leadership” aren’t likely to be factors there. Go figure.

The notice also asks how TV spectrum is currently being used and what plans broadcasters have for its future use. Not unreasonable questions in some circumstances, BUT let’s not forget that the TV industry has just been forced, by the government, to convert itself to digital at a cost of hundreds of millions of dollars. Less than six months after the completion of the DTV transition, it seems a bit premature to expect the industry to have fully settled into its new mode, much less to have fully explored all the possibilities that that new mode entails. Any data on current operations or possible future innovations are likely to be less than compelling simply because it takes more than six months for an industry, and its consumers, to settle into a new technology and identify (and avail oneself of) all its possibilities.

With respect to more efficient use of TV spectrum, the Commission is clearly looking at crowding broadcasters together, spectrally and geographically, in order to free up space for broadband. “Channel-sharing”, greater collocation of antennas, use of to-be-developed transmission technologies, revised transmitter and receiver standards – all are in the possible mix, according to the Commission’s notice. And the FCC is also looking at the possibility that enough viewers get their TV from cable or satellite delivery that it might make sense to “replace over-the-air delivery to MVPDs and consumers with other means”.

Interestingly, the Commission also asks “what are the benefits of free, over-the-air television broadcasting, in particular with respect to public awareness of emergency information, local news, political discourse, and education?” That is interesting because the Commission has, for several years now, been pounding on the importance of localism in broadcasting. To ask now what the public interest benefits of local broadcasting might be seems inconsistent with the urgency with which the Commission has previously pressed its localism proceeding.

Finally, the Commission asks about “market-based or other incentive mechanisms” that might “enable broadcasters to choose whether or not to make any spectrum (excess or otherwise) available” for wireless broadband use. The Commission may be looking for a way to make an offer that broadcasters can’t refuse.

One question the notice does not ask is exactly how much spectrum is needed.  And another is exactly how much spectrum the wireless broadband folks already control but are not yet using — and how long they may have been sitting on it.  If there is considerable spectrum already sitting unused in the wireless warehouses, wouldn’t it make sense to put that to work first before poaching spectrum for other services?  (This leads to the suggestion that, as part of an orderly and logical decision-making process, the Commission might first want to develop an inventory of all spectrum — including who holds it, how long they have held, and what they are currently using it for.  A bill has been introduced in the Senate that would require a spectrum inventory along those lines, but there’s no law that says that the FCC can’t develop an inventory on its own, even without Congressional direction.)

Of course, it may turn out that the national expansion of wireless broadband will be of such overriding national benefit that serious disruption of over-the-air television can and should be tolerated to achieve that expansion. These are the types of predictive judgments that administrative agencies get paid the big bucks to make. But the TV industry – and the viewing public – were seriously disrupted just months ago. The repercussions of the DTV transition are still being experienced, and are likely to continue for some time to come. Does it really make sense – and is it really fair – to put over-the-air TV (and its viewers) through the wringer again so soon after the last time?

In that vein, let us not forget that the DTV transition was delayed, at the last minute, because of governmental concern that a significant portion of the audience dependent on over-the-air reception might not be ready for the transition (despite the months of build-up to that moment). Aren’t those same at-risk audience members likely to be equally at risk from some further re-tooling of over-the-air service. And would those at-risk folks be ones who would likely derive any significant benefit from increased availability of wireless broadband?

Such questions – including those the Commission has asked and those which loom, unasked but nonetheless important – are all massively complicated. The Commission can’t be faulted for seeking public input. But the Commission has provided less than three weeks within which to submit responsive comments.  Again, if you missed it above, the deadline for comments is December 21, 2009.  Like we said, if you’ve got a TV license, you’ve got a problem – and very little time in which to make your case. Stay tuned to for updates.