Uncertainty created by upcoming TV repacking brings call for uniform, blanket extension.
If you’re holding onto a construction permit for an unbuilt digital low power television (LPTV) or TV translator station, listen up. The Advanced Television Broadcasting Alliance (ATBA) has asked the FCC for a blanket extension (or rule waiver) – to September 1, 2015 – to complete construction of such stations. And the Media Bureau has now requested comments on ATBA’s proposal (which was filed last February).
Although all full power television stations had to convert to digital operation in 2009, in 2011, in 2011 the FCC extended the deadline for existing LPTV stations to terminate analog operation until September 1, 2015. That date was set as the expiration for all construction permits for flash cut from analog to digital on the same channel, or for digital facilities on a different channel (companion stations). But the FCC denied requests for similar relief for holders of construction permits for new digital LPTV stations. Instead, the construction deadlines for such permits were left at their original dates (i.e., three years from their issuance), which meant that some such permittees face a deadline prior to September 1, 2015. Demonstrating that this was not just some inadvertent bureaucratic oversight, the Commission denied a request for reconsideration of the decision not to extend such permits.
ATBA, whose Executive Director is Louis Libin, is one of two groups currently representing LPTV interests before the FCC. The other is the LPTV Coalition, headed by Mike Gravino.
As ATBA sees it, the reasons justifying an extension of flash cut and companion channel permits apply just as well to permits for new stations. LPTV stations are, of course, secondary to full power stations. As a result, many LPTV stations are likely to have to change channels – and some may not be able to find new channels and may be forced to shut down – after the anticipated repacking of the television spectrum into a smaller number of channels next year. It makes little sense to entrepreneurs to invest in constructing any kind of new digital LPTV facility now, not knowing whether that facility will have to be rebuilt on another channel in a few years, if it survives the repack in the first place.
Sure, they may be distinctions between incumbent LPTV stations and as-yet-unbuilt stations. But from an investment point of view, the risks are similar for both groups. Both incumbent licensees and unbuilt permit holders are, understandably, very unenthusiastic about buying and installing equipment that may not be usable for its normal life cycle. Moreover, you can’t claim that permittees of new stations knew when they applied that they did so subject to the risk that a major channel repacking might be coming down the line: most of the applications for stations which remain unbuilt were filed in the 2009-2010 time frame, while the Middle Class Tax Relief and Job Creation Act – the statute which established authority for the Incentive Auction and TV spectrum repack– wasn’t enacted until 2012.
In addition to equitable considerations, there are practical reasons for the FCC to consider granting some kind of blanket relief. Under existing rules, each LPTV permittee must file for extension of each permit. The Bureau takes the position that it is able to grant no more than two extensions of six months each; requests for any additional extensions must be referred to the full Commission for a vote. According to ATBA, the Bureau has processed 674 applications for first and second extensions so far, and we know that several applications are pending for third extensions. The individual permit-by-permit application requirement, coupled with the six-month limit on each extension and the need to get full Commission sign-off on extensions beyond the first two, imposes a significant burden on the permittees (who have to prepare that many more requests) and on the FCC itself, which then has to process that many more requests. Since it’s clear that LPTV permittees are constrained, if not outright spooked, by the upcoming repack, it’s equally clear that a blanket extension would simplify life for all involved and allow realistic investment decisions to be made.
Whether September 1, 2015, is a reasonable deadline is a different question. It may be convenient, since it coincides with the deadline for flash cut and companion channel construction, and it may have made sense at a time when, in the flush of early optimism, the FCC hoped to conclude the repack and Incentive Auction in 2014. However, the auction target date is now 2015. In addition, the FCC has promised to undertake a separate rulemaking proceeding to determine how it will deal with displaced LPTV stations, but that rulemaking isn’t expected to start for another two months or more.
In other words, LPTV stations are not likely to know more about their long term fate by September 1, 2015, than they know now: their fate will be determined at least in part by how many full power and Class A television stations participate in the Incentive Auction and how many TV channels the FCC will be able to reallocate for wireless use based on the auction results.
Other questions include whether TV translators should be given the same relief as LPTV stations and whether a September 1, 2015, deadline should apply only to construction permits granted prior to September 1, 2012. If that deadline were imposed on permits granted after September 1, 2012, it would in effect truncate the normal three-year construction period for those stations.
Comments on the ATBA proposal are due to be file by August 14, 2014. Reply comments may be filed by August 29. Comments may be uploaded to the FCC’s ECFS online filing site; refer to Proceeding No. 03-185.