[Blogmeister’s Note: This is another in a series of posts describing the FCC’s Incentive Auction Notice of Proposed Rulemaking. You can find all installments in this series by clicking here. Contributors to this series include Dan Kirkpatrick, Rob Schill, Don Evans and Harry Cole.]

Whether or not you plan to participate in the “reverse” auction, if you’re a TV licensee, you should be aware of what the FCC has in mind for the spectrum around you.

It’s important to understand that the Incentive Auction program is merely a device designed to facilitate the “repacking” of the spectrum. That is, the FCC is dead-set on freeing up space for mobile broadband use in spectrum currently occupied by TV broadcast stations. In other words, many TV licensees can be expected to be moved off their current channels, whether voluntarily (through the “reverse” auction process) or by forced relocation. So while TV licensees not planning on participating in the “reverse” auction” may not be terribly concerned with the mechanics of submitting bids, all TV broadcasters need to pay attention to the FCC’s proposed approach to repacking the spectrum. 

Under the Spectrum Act, when the Commission relocates TV stations in its repacking efforts, it must take “all reasonable efforts” to preserve the “coverage area” and “population served” of every surviving full power or Class A station. For these purposes, “coverage area” and “population served” are to be determined using the methods set out by the Office of Engineering and Technology’s Bulletin No. 69 (OET-69). LPTV and translators station will receive no protection during the repacking process and will be subject to displacement by any relocated full power or Class A station, although the NPRM does request comment on some measures designed to help LPTV and translator stations survive in a post-auction world. 

As for full power and Class A stations, the Commission in the Incentive Auction Notice of Proposed Rulemaking (NPRM) is looking to determine just what “coverage area” and “population” must be protected. Under OET-69, the term “coverage area” is not defined, but it is used synonymously with “service area” as that latter term is defined in Section 73.622(e) of the rules. While “coverage area” (or “service area”) does not account for interference from other stations, OET-69’s measurement of “population served” does, counting only population that is both within the “coverage area” and where the signal is not masked by interference.

In the NPRM, the Commission proposes protecting full power stations’ “service area” as currently defined in Section 622(e) of the Commission’s rules. For Class A stations, the coverage area for purposes oepacking would be the station’s “protected contour”, i.e., the area within which the station’s signal is protected under the rules from interference. That “protected area” is frequently smaller than the area in which the station can actually deliver a signal. 

Since propagation characteristics vary from channel-to-channel, changes in channels may necessitate modifications to facilities in order to replicate the original “service area”. The FCC has software that should be able to calculate any necessary changes. Along those lines, the Commission suggests that it may not require construction of new antennas to precisely match the pattern that the software might specify; in those cases, the station would be permitted to continue to use its existing antenna pattern, with appropriate adjustment to its power level. Under the NPRM’s proposals, licensees would also be permitted to propose “alternate transmission facilities” to those specified by the FCC’s software. But such alternate facilities would not be permitted to (a) extend the coverage area in any direction beyond those specified by our replication software or (b) cause new interference. And any reduction in coverage area and/or population served would have to be de minimis.

To protect a station’s population served, the NPRM requests comment on three alternative proposals. First, the Commission could refuse to allow any new overall interference to any station’s population served – although if interference were removed in one area, new interference could be created in another. As was the case in the DTV transition, the Commission proposes that interference up to 0.5% would not count as “new interference”. 

As a second, stricter, option, the NPRM suggests that no new interference could be created to any specific population. This would be more difficult to implement but, in the FCC’s view, might be preferable because it would protect individual viewers from losing service. 

The third option would allow creation of up to 2% new interference, but only if the new interference were created by another station that already caused interference to the subject station. 

The NPRM requests comment on these three proposals, as well as various other considerations. Among those other considerations: whether greater interference should be allowed; whether new interference should be allowed only in areas with high MVPD penetration; and whether the Commission should amend its rules to allow stations to accept additional interference voluntarily.    

As a final part of the repacking process, the NPRM also sets out the Commission’s proposals regarding what facilities are to be protected. While the Spectrum Act requires the Commission to protect only facilities that were licensed (or for which a license application was pending) as of February 22, the Commission reads the Act to allow it to protect certain facilities that were not licensed at that time. 

First, in a move of very limited application, the NPRM proposes protecting new full power stations whose original construction permits had been issued as of February 22, 2012. The Commission notes that there are only three such stations. Other unbuilt full power construction permits would generally be unprotected. 

Unbuilt Class A digital permits, by contrast, could find themselves protected in some situations. The Commission proposes protecting only a single facility for each Class A station. However, to encourage the continued digital transition of Class A stations, it proposes allowing stations to notify the Commission in advance of the auction which facility (licensed analog or digital or a granted digital construction permit) they wish to protect. The NPRM also requests comment on whether the repacking should protect stations that hold construction permits to implement channel changes previously approved through a rulemaking proceeding. However, channel changes which have merely been proposed in, say, a petition for rulemaking would not receive protection if a notice of proposed rulemaking regarding the change has not yet been issued.

A second major post-auction regulatory issue is the treatment of LPTV and translator stations. As noted above, such stations are not eligible to participate in the auction, and their existing service will not be protected during the repacking process. As a result, many LPTV stations may be forced to relocate to alternative channels – even though, with the smaller number of channels available, it is likely that at least some displaced LPTV and translator stations will not be able to find alternative over-the-air channels. The NPRM requests comment on potential approaches to minimize the impact on LPTV and translator stations. These include:

  • authorizing voluntary channel sharing among LPTV and translator stations;
  • taking steps to encourage the use by LPTV and translator stations of extra digital capacity on Class A and full-power stations; and
  • taking steps to encourage distribution on MVPD providers or the internet. 

The NPRM also requests comment on whether it should adopt any rule changes governing the displacement of LPTV and translator stations. For example, new rules might prioritize such applications over other LPTV and translator modifications. Alternatively, a “window” period might be established during which LPTV stations might be allowed to file displacement applications after the full-power and Class A repacking applications have been processed, but before any actual interference has occurred to the LPTV stations. Recognizing the likelihood of competing displacement applications from LPTV and translator stations, the NPRM also asks for comment on whether it should adopt any set of priorities to govern the processing of such applications. LPTV and translator licensees, particularly in congested areas, should consider these options. Again, comments are currently due to be filed by December 21, 2012 and reply comments by February 19, 2013.

[UPDATE: As we have separately reported, on November 29 the Commission extended the comment and reply comment deadlines to January 25, 2013 and March 12, 2013, respectively.]