With constriction of TV spectrum, Commission looks to set priorities.

With the impending repack of the TV band, already scarce spectrum will be getting scarcer.  In an effort to preserve UHF spectrum for unlicensed devices and wireless microphones, the FCC has issued a Notice of Proposed Rulemaking (NPRM) proposing the reservation of one vacant UHF TV channel in every geographic area of the country for use by unlicensed TV white space devices (WSD) and wireless microphones.

Under the proposal, once the incentive auction is completed, TV applicants – a universe that includes applicants for full-power, Class A, LPTV, TV translator and Broadcast Auxiliary Service (BAS) authorizations – would have to demonstrate that their proposed facilities would still leave one UHF channel available for unlicensed devices and wireless mics. LPTV’s, translators and BAS applicants would be subject to that requirement immediately following the incentive auction. Full power and Class A applicants would get a grace period of 39 months (corresponding to the time allowed for stations that were not bought in the auction to move to their post-auction channels) during which they would be exempt from the requirement. As the Commission currently figures it, though, after that 39-month period Class A applicants would have to make the showing. Whether or not full power stations would be similarly burdened after the exemption period is a question about which the FCC expressly seeks comment.

Other questions posed by the NPRM: Should Digital Replacement Translators (DRTs) forced to change channel post-auction be accorded some kind of priority over LPTV and translator applicants and if so, how? How about out-of-core LPTV stations eligible for Class A status which hadn’t obtained that status by February 12, 2012: such stations won’t be protected in the incentive auction – but should they be subjected to the vacant channel demonstration requirement?

The NPRM also recognizes that some new prioritizing may be necessary.

For example, in order to satisfy the vacant channel condition, should LPTV and/or translator displacement applicants be allowed to ignore applications for new or modified LPTV/translator facilities? Should Class A station applications (for the first time) be permitted to displace already authorized (or proposed) LPTV or translator stations? And what will happen to those stations – mostly  LPTV — that use vacant TV channels for studio-transmitter links?

The Commission does not envision that a single uniform UHF channel would remain available nationwide or even throughout a particular DMA. Rather, the required showing would involve a demonstration that white space devices and wireless microphones operating within the same area as the proposed broadcast or BAS station will have access to at least one channel.

The remaining available TV channel need not be uniform throughout a market. The FCC suggests that broadcast applicants make a showing based on 2 km cells in a grid. As long as one vacant channel remains available in each grid, using existing Part 15-broadcast interference standards, it won’t matter to what extent the channel may be different in every grid. The assumed power level for personal portable devices would be 40 mw, although the FCC asks whether it needs to accommodate 100 mw. Devices registered in the WSD database, including wireless mics, need not be considered by broadcast applicants, because presumably they are equipped to move about the spectrum as the database changes from time to time. Vacant channel availability at a given location would be determined using existing criteria governing where wireless WSD and microphones can operate.

The prospect of making full power stations subsidiary in any sense to unlicensed devices provoked dissents from Commissioners Pai and O’Rielly, with Commissioner Pai also criticizing the proposal to make LPTV stations defer to unlicensed uses. The majority put its mark down, stating that the Communications Act “endow[s] the Commission with expansive powers,” including “broad authority to manage spectrum…in the public interest.” The majority also cited a subsection of Section 6403 of the Spectrum Act which provides that nothing in that section “shall be construed to…expand or contract the authority of the Commission, except as otherwise expressly provided.” In so doing, the majority opted not to cite another subsection of the same section which provides that nothing in that subsection should be read to alter the spectrum usage rights of low-power television stations.

It is unlikely that any industry affected by these proposals will be happy with them. LPTV stations are already discontent with the prospect of being squeezed out of business (as Pai suggests is almost certain to happen); they are likely to object. Users of wireless microphones have underscored to the FCC at length that a single 6 MHz channel is not sufficient to meet the needs of entertainment, conference, and sports venues – as well as news gathering situations – and, moreover, that they need clean spectrum and cannot share with other unlicensed devices that operate at unpredictable locations. Likewise WSD proponents have stressed that they need more than 6 MHz of spectrum.

In other words, get ready for yet another incentive auction/repack-spawned struggle.

The deadline for comments has not yet been set, but will be 30 days from the publication of the NPRM in the Federal Register. Reply comments will be due 30 days after that. Check back here for updates. But the comment period is open now for those who want to file early. Comments and replies may be filed through the FCC’s ECFS online filing system; refer to Proceeding Nos. 15-146 and 12-268.