FCC moves to protect broadband licensees from TV Ch. 51

Perhaps frustrated at the slow pace of Congressional cooperation in passing incentive auction legislation to allow it to take a meat cleaver to the TV spectrum and serve up a chunk to wireless operators, the FCC is starting to chip away at TV with a small ice pick. The first move is to put Channel 51, the uppermost TV channel, on ice, imposing an immediate freeze on applications for new stations and improvements in existing stations on that channel.

As we wrote back in March, Channel 51 is immediately adjacent to the 698-746 MHz band (formerly TV Channels 52-59), which have been reallocated to wireless services. Channel 52 has been auctioned, and the winning bidders don’t like the idea that the high power used by TV stations might blast their smaller wireless devices into oblivion. They asked the FCC to, in effect, create a guard band on the TV side of the border rather than the wireless side by stopping any growth on Channel 51.

The FCC has obliged, with a combination of steps that freeze and thaw at the same time, apparently intended both to stop growth on, and to encourage abandonment of, TV Channel 51.

Remember that while the FCC is considering how much of the TV band it can chop off for wireless use, it has already frozen growth in the entire TV band. No new applications or channel changes are allowed for full power stations, and no new applications are being accepted for low power TV stations on any channel. All of this is to ensure a fixed database when the FCC is ready to use the cleaver. 

But clearing Channel 51 has risen to a higher priority than having a fixed database, so the scramble is on.

Full power TV stations on Channel 51 are invited to get out of Dodge right now and move to any lower channel they can find. Their rulemaking petitions to amend the TV Table of Allotments and their applications for construction permits to change channel will get the warm fuzzy treatment. On the other hand, pending applications for new LPTV stations on Channel 51, most of which were filed in 2009 and 2010 and were being processed up to now, have been given the liquid nitrogen treatment and flash frozen – except that before the freezer door is shut and locked, they too can enjoy a thaw in the form of a 60-day window to change channels. Channel-change amendments are normally major changes that were previously forbidden, but they will now be classified as permissible minor changes for those who can find a lower channel.

Existing full and low power stations authorized on Channel 51 may continue to operate undisturbed — undisturbed, that is, except for the long, dark  shadow now cast on their long-term future. They will be permitted to file minor change applications, but only if they do not propose to cover any new area they did not cover before. That will place a considerable damper on LPTV stations that are used to hopping round and inching toward larger markets.

The new dance floor is for only Channel 51 stations and applicants. Anyone on any other channel remains subject to all the old processing rules: full power stations may not change channels, LPTV applications will be processed but no new applications will be accepted, and any station may file for a minor change even with an expanded service area.

There are some things we still don’t know. One is whether any priority will be given to Channel 51 abandoners. Obviously full power stations may move to new channels and exterminate secondary LPTV stations in their way, both incumbents and applicants. But what about existing LPTV stations that do not have to abandon Channel 51 but want to skeedaddle while the skeedaddling is good? Will they be allowed to claim that they are displacement and move now? If so, will their applications take priority over ungranted earlier-filed applications for new LPTV stations or changes in existing stations, the way that displacements from Channels 52-69 do? Will Class A stations be treated any differently from LPTV stations? Will amendments to pending Channel 51 LPTV applications take priority over pending applications on lower channels? And what about granted but unbuilt construction permits for new LPTV stations on Channel 51? May they build on 51? If they prefer to move, may they do so as a minor change the way pending applicants may do?

And you thought that the TV database was going to be held in place pending further notice. It looks more like the hopscotch game has begun.