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While the theory has some facial attraction, one does not need to look very far to find breaks in the logic.  For instance, of the households that supposedly do not receive their television programming over-the-air, many in fact have second or third television sets that are not connected to cable or satellite.  Satellite is itself an "unwired" medium that uses spectrum that could theoretically be used for more mobile services, but satellite has found a growing audience for its transmissions to what are most usually the fixed locations that the theory suggests are best served by wired communications. 

Moreover, much of the demand for new wireless spectrum is for the transmission of what looks an awful lot like the traditional "wireless" broadcast media - audio and video content.  These niche services, though certainly becoming more commonplace, are still dwarfed in terms of number of viewers and amount of content delivered by the content delivered through more traditional media.  Already, we are reading stories about the "the Internet" being strained by the demands put on it by current content.  Even if "wireless" were to be given TV spectrum, if there is a wholescale switch to an IP delivery of broadcast content, would there be the capacity to deliver content to everyone?  Broadcasting still remains a very efficient means to delivery content to mass audiences.

It is interesting that these discussions are following so soon after the FCC spent the first 6 months of this year working to preserve the delivery of free-over-the-air television to viewers during the digital transition.  One of the biggest concerns of the FCC was the fear that distinct groups, including the poor and certain minority communities, may well be the most likely to be disenfranchised by the lack of a free over-the-air alternative.  In fact, one of the promises of the digital transition was the potential of broadcasters delivering multiple free streams of programming to these persons to give them something closer to the diversity and choice delivered to subscribers to multi-channel pay delivery systems.  Even leaving a lifeline over-the-air service, as suggested by the TV NewsCheck article, would not in any way add to the richness of choice to these viewers that can be provided under current systems

What are broadcasters to do?  Broadcasters need to remember to promote their over-the-air reception, so that it is not taken away.  From all that I have heard, the uncompressed over-the-air HD signal is perhaps the best picture that a TV viewer can get - yet that is rarely if ever promoted by broadcasters.  And, as mobile versions of the digital signal are rolled out, broadcasters need to take advantage of those systems promptly and aggressively to show that they are indeed making use of the spectrum of which they are guardians.  The reallocation of the TV spectrum is an issue that has been building for quite some time - broadcasters should weigh their actions carefully to make sure that it is a idea whose time has not yet come.

Update 10/26/2009, 1:40 PM:  I just returned from a lunch meeting of the Federal Communications Bar Association, where the speaker was William Lake - Chief of the Media Bureau of the FCC.  When asked about these reports of the use of TV spectrum for broadband, he said that the Media Bureau was working with the rest of the Commission on broadband issues, and that spectrum was an important part of that review.  So it appears that the issue is at least being studied at the FCC - though who knows how far along the process may be.

Update: (February 5) - the Advisory in now available.

The FCC will also have to complete the digital transition of TV translators and LPTV stations, which are not bound by the February 2009 conversion deadline. The FCC will need to set a digital conversion deadline – a conversion that many translator and low power licensees are not looking forward to paying for, but which may be necessary to preserve their over-the-air viewership as the analog tuner becomes an historical relic.

Radio, too, has its own technical issues to deal with. The Commission will be faced with resolving proposals for increased power for HD Radio operations (In-Band On Channel or IBOC digital radio), which some broadcasters have opposed as holding the potential for adjacent channel interference. The Commission will also be faced with resolving proposals for making the measurement of AM antenna patterns easier but, on a most fundamental level, it has also been asked to recapture some of the television spectrum, including Channel 6 and possibly Channel 5, and to use that spectrum for new radio stations. While some worry about the increased competition that new radio channels could bring, others see the expanded FM band as a way to eliminate congestion on the current band – giving LPFM stations places to operate without restricting FM upgrades or endangering FM translators – and others have even suggested that some or all AM stations could be moved onto these channels. This is likely to be a long-term project, but one that may get serious consideration this year.

Programming, too, may come in for more review this year. The Commission’s rules, adopted a full year ago, requiring TV stations to document in minute detail their public interest programming on Form 355, has never been implemented, as the form has never been approved by the Office of Management and Budget as being in compliance with the Paperwork Reduction Act. As this form required so much new information, for no appreciable purpose, it seems unlikely that it could survive such a review. Thus, the Form may be revised before being implemented, or it may wait for new FCC programming rules to be adopted as part of the FCC’s localism proceeding, mandating some form of public interest programming, which could then be used to justify the collection of some data requested by the questions on Form 355.

Other aspects of the localism proceeding seem likely to be resolved in 2009. The proposal for a fully manned main studio during all hours of operation, located in the station’s city of license, seems to be less likely to be adopted as regulators realize the costs that such a requirement would impose. Yet requirements for some form of mandatory ascertainment of community needs, plus some enhanced disclosure of public interest programming, seem more likely. Some of the proposals rumored to be on the table include requiring that broadcasters be judged by whether they perform certain tasks set out on a menu of options by which they would demonstrate their service of the public interest. One would hope that any set of menu options would be broad enough to recognize all the diverse ways that broadcasters serve their communities, and not so restrictive as to make every station meet the public interest in the same cookie-cutter way, and thus eliminating diversity in approaches that has allowed the broadcast industry to flourish.

The return of the Fairness Doctrine, which many conservative pundits have predicted, is unlikely because of the constitutional and practical problems of implementation. Yet some fear that  mandated political coverage and issue-responsive programming, which is more likely,  may effectively take the place of the Doctrine. Restrictions on violent programming could also be at the top of the Congressional agenda, as Senator Rockefeller, the new head of the Senate Commerce Committee, has supported such regulation in the past. . 

In the advertising world, the FCC will be resolving its embedded advertising and product placement proceeding, where some “public interest” groups have advocated a total ban on such advertising, while others have suggested immediate sponsorship identification, through a crawl or superimposed caption, of any product for which consideration has been paid for its inclusion. The related issue of video news releases – whether stations have to identify on-air anything given them at no charge (e.g. a script, video footage, etc.) before its inclusion into a news report – will also likely be resolved. Some have also suggested that the Commission may be planning some adjustments to its payola rules, though what those changes would be, and how they would improve on the current rules, is hard to fathom.

There is also real concern that the Congressional committees which oversee the FCC may well push proposals for limits on prescription drug advertising. The new chairman of the House Energy and Commerce Committee, Henry Waxman, has favored a moratorium on such advertising while the industry works out rules that restrict various perceived abuses. If industry voluntary agreements don’t satisfy Congress, new restrictions on advertising directed to children are also possible, especially in connection with ads for food considered unhealthy (however that may be defined).

Copyright issues could also impact the broadcast industry this year – perhaps in ways more fundamental than any of those other issues listed above. For radio, we may see the webcasting royalties issue be resolved one way or the other. Congress has given webcasters and the recording industry until February 15 to settle the webcasting royalty issues and, if that doesn’t result in a resolution of the issue, the pending appeals will be argued this year and perhaps resolved by the end of the year. 

2009 will also bring about a renewed attempt by the recording industry to impose a performance royalty on broadcasters for their over-the-air signals, the “performance tax” as it has been labeled by the NAB. That performance royalty would require broadcasters to pay the recording industry and recording artists royalties for the use of music over the air – in addition to the ASCAP, BMI and SESAC royalties that are already paid to the composers. The recording industry was able to get that proposal through the House Judiciary Committee last year, and will make a renewed attempt to have it adopted by Congress. If such an attempt is successful, this could potentially result in the transfer of billions of dollars from broadcasting to the recording industry.

TV has its own copyright issues, as the law permitting Dish and DirecTV to import local broadcast stations into local markets must be renewed, and some have suggested that this might be the time to reexamine the must-carry and retransmission consent process for both cable and satellite. While nothing firm is on the table, this issue could arise just as retransmission consent fees are beginning to offer television broadcasters a meaningful new revenue stream.

All of these issues seem like plenty - but we haven't even discussed the resolution of the indecency cases currently pending before the Supreme Court that should come this year.  The Commission ended 2008 with several large EEO fines, and this year may bring the resolution of long-pending petitions for reconsideration of the current EEO rules, as well as resolution of whether the Form 395 Annual Employment Report  will make its reappearance and whether the information on the form should be available to the public to judge the EEO performance of broadcasters or should the information be used simply for industry profiling.  Commissioner Adelstein suggested that the information should be public in his concurring opinion on these recent fines.  The FCC's change in its multiple ownership rules to allow some broadcast-newspaper combinations is still on appeal as it becomes increasingly irrelevant (as newspaper companies don't have the money to buy broadcast station, and broadcasters probably don't want to buy newspapers), and other issues as to the local radio ownership rules and the attribution of TV JSAs are still pending and may be resolved one day - perhaps this year.  Even political rules may be revisited in 2009 - as the Commission has never issued rules implementing the BCRA requirements, and it also has a long-pending proceeding to determine how to assess spots sold by on-line auctions for lowest unit rate purposes. 

With these (and other) possible changes in the regulatory landscape, one can only hope that the government regulates with a light touch. While the Democrats who have been on the FCC during the Bush years have advocated tough, detailed regulatory mandates, the Obama administration has offered the hope of a less doctrinaire, more inclusive regulatory process. Given the economic outlook for the coming year, and the costs and likely disruptions of the digital transition, an administration that promises hope should deliver some to broadcasters simply by taking a break from excessive regulation to give everyone a chance to adjust to the new realities of 2009. But stayed tuned to these pages to see what develops in this new year. 

Given the limits on the use of these translators to areas that currently receive an analog signal from a station but will not receive a digital signal from that station, it is questionable how many stations really will have the opportunity to use these stations.  The Commission last week released maps of predicted coverage areas for digital station operations, comparing those signals with the station's current analog operations.  Most television UHF stations replicate their analog service in digital.  Many analog VHF stations however, show areas of lost service if they are operating on a UHF channel after the transition.  Seemingly, these stations will be the most likely to need to use these digital fill-in translator stations.

Television stations should look at their service before and after the transition and, if these translators will benefit their operations, they should consider submitting applications now to provide service after the February 17 digital transition. 

Not all markets will have a nightlight service - at least using the Commission's initial proposals.  The list of markets that will receive such service is available here.  The markets where no service is currently available are markets where all stations in that market would interfere with some station's digital operations were they to continue to operate their analog facilities after the transition deadline.  But, as stated above, it may be possible, through reduced power operations or in some other fashion, for at least some stations in these markets to provide some sort of post-transition analog service.

The Commission is looking for comments on the details of all of these proposals, including the details of what information the nightlight stations should provide, as well as the interference standards proposed by the Commission.  Parties with ideas about these issues should quickly prepare to file comments in this important proceeding so that service can be provided to those left out by the conversion of television stations from analog to digital on February 17. 

Another set of comments submitted by a group which includes a number of consulting engineers went even further, suggesting that all of Channels 5 and 6 be turned over to a radio service, that the service be operated in a digital mode, and that AM stations and LPFMs all be moved to these new channels.  The proposal is quite detailed, submitting a table of allotments for the relocation of the AM stations.  The proposal also sets out alternative channels for all current full-power television stations on Channels 5 and 6 where they could be moved to clear these two channels for radio operations.

On the other hand, a number of groups have opposed use of these channels for radio.  The opposition includes those stations who already are operating their digital stations on these channels, and organizations including the NAB and MSTV who represent broadcast television stations.  These groups argue that these two channels need to be retained as television channels not only for use by the television stations that have digital operations there, but also for new stations that can be allotted after the end of the digital transition, as well as for LPTV stations that are already operating there and ones that could be built in the future. 

Thus, the Commission will be faced with a choice between using these channels for more radio or more television.  So far, no party has argued that there is no need for this additional service given the multiple services that each TV and FM radio station can provide when operating digitally, nor have questions been raised as to what the addition of new channels (either radio or TV) will do for revenues of existing stations already facing unprecedented competition from other forms of new media.  Of course, the competition will come digitally in any event through other means of wireless delivery, so more competition is inevitable whether or not these channels are used for new broadcast services.  The use of these channels for more broadcasting will only hasten the inevitable increase in competition that broadcasters will face.   At the same time, the addition of all these channels will show, once again, that the incredible competition that exists to broadcasters and demonstrate that government regulation is not necessary to ensure that local service will be provided as, if the marketplace demands it, it will be provided (see our post here). 

Reply Comments on these important issues are due on August 29.

Option One requires the following:

• Between the effective date of the order (upon its publication in the Federal Register) and March 31, 2008, a station must run at least one PSA and one visual crawl on both its analog and digital streams, during each quarter of the day – midnight to 6 AM, 6 AM to noon, noon to 6 PM and 6 PM to midnight (actually to be run during prime time – 8 to 11 eastern and pacific, 7 to 10 central and mountain time)
• Between April 1 and September 30, 2008, a station must run at least two PSAs and two visual crawls on both its analog and digital streams, during each quarter of the day – midnight to 6 AM, 6 AM to noon, noon to 6 PM and 6 PM to midnight (at least one during prime time – 8 to 11 eastern and pacific, 7 to 10 central and mountain time)
• Between October 1, 2008 and March 31, 2009, a station must run at least three PSAs and three visual crawls on both its analog and digital streams, during each quarter of the day – midnight to 6 AM, 6 AM to noon, noon to 6 PM and 6 PM to midnight (at least one during prime time – 8 to 11 eastern and pacific, 7 to 10 central and mountain time)
• Each PSA must be at least 15 seconds long, and must contain the following information:

(A) After February 17, 2009, a television receiver with only an analog broadcast tuner will require a converter box to receive over-the-air broadcasts with an antenna because of the Nation’s transition to digital broadcasting. Analog-only TVs should continue to work as before with cable and satellite TV services, gaming consoles, VCRs, DVD players, and similar products.

(B) More information is available by phone and online, and provide appropriate contact information, including means of contacting the station or the network.

• The PSAs must, during the life of the campaign, also discuss the following information:

(i) The steps necessary for an over-the-air viewer or a subscriber to a multichannel video programming distributor to continue viewing the station after the transition;

(ii) Changes in the geographic area or population served by the station during or after the transition;

(iii) The channel on which the station can be viewed after the transition;

(iv) Whether the station will be providing multiple streams of free video programming during or after the transition;

(v) Whether the station will be providing a High Definition signal during or after the transition;

(vi) The exact date and time that the station will cease analog broadcasting, if it has not already done so; and

(vii) The exact date and time that the station will begin digital broadcasting on its post-transition channel, if it has not already done so.

Option Two consists of a compromise plan offered by the NAB, that focuses on longer announcements aired in higher listening hours with a more significant publicity push in the last months of the digital transition.  This option requires an average of 16 PSAs and 16 "crawls, snipes and/or tickers" per week between the hours of 5 am and 1 am.   Four each of these PSAs and crawls, snipes and/or tickers must air between 6 pm and 11:35 pm Eastern/Pacific time (5 and 10:35 PM in Central and Mountain time zones).  Each PSA must be at least 30 seconds long, or stations can substitute two 15 second PSAs for a 30 second spot.  Option Two also requires a 30 minute infomercial on the DTV transition to be shown once prior to February 17, 2009. 

Beginning November 10, 2008 (100 days prior to the transition), Option Two requires enhanced disclosure  That disclosure can take any of the following forms:

• Graphic Display.   A graphic super-imposed during programming content that reminds
  viewers graphically there are “x number of days” until the full-power transition. They
  will be visually instructed to call a toll-free number and/or visit a Website for details.
  The length of time will vary from 5 to 15 seconds, at the discretion of the station.
• Animated Graphic.   A moving or animated graphic that ends up as a countdown
  reminder. It would remind viewers that there are “x number of days” until the fullpower
  transition. They will be visually instructed to call a toll-free number and/or
  visit a Website for details. The length of time will vary from 5 to 15 seconds, at the
  discretion of the station.
• Graphic and Audio Display.   Option #1 or option #2 with an added audio component.
  The length of time will vary from 5 to 15 seconds, at the discretion of the station.
• Longer Form Reminders.   Stations can choose from a variety of longer form options to
  communicate the countdown message. Examples might include an “Ask the Expert”
  segment where viewers can call in to a phone bank and ask knowledgeable people
  their questions about the transition.95 The length of these segments will vary from 2
  minutes to 5 minutes, at the discretion of the station (Some stations may also choose
  to include during newscasts DTV “experts” who may be asked questions by the
  anchor or reporter about the impending February 17, 2009, deadline).

Noncommercial stations may either Option One or Option Two, or they can select a special option created solely for them.  Option Three consists of 60 seconds per day of consumer education of the station's choosing, of which 7 1/2 minutes per month must air between 6 pm and midnight.  This requirement doubles on May 1, 2008 and, on November 1, 2008, it triples to 180 seconds per day, of which 22.5 minutes per month must air between 6 pm and midnight.  Option Three also requires the 30 minute infomercial, which must air once between 8 am and 11:35 pm before February 17, 2009.

All of the options described above apply to both analog and primary digital stream channels and require PSAs to be closed captioned.  They also require the quarterly filing by each station of a new FCC Form 388, beginning April 10, 2008 and ending April 10, 2009, detailing the station's compliance with its chosen option as well as other (optional) station outreach efforts.  That form is filed electronically with the FCC, placed in a station's public file, and posted on a station's website.

The FCC also established educational initiative requirements applicable to multichannel video programming distributors (MVPDs) and consumer electronics manufacturers.  Briefly, MVPDs such as cable and satellite carriers must provide bill stuffers.  Manufacturers of TV receivers, converter boxes, DVD players and other devices that work with TV receivers must also provide consumer notices about the digital transition with their equipment.

There are no requirements applicable to translators, Class A or low power TV stations, although the FCC encourages them to advise viewers that they may continue to receive these analog stations after February 17, 2009.  They are also asked to encourage viewers buying DTV converters to get ones that will continue to pass through their analog signals.

Stations should take whatever steps are necessary to comply with the above requirements, since they become effective upon Federal Register publication, which could happen very quickly.  The FCC hopes that all of these consumer education requirements will help insure that no one is taken by surprise when full power analog broadcasting ceases on February 17, 2009.

The deadline for LPTV conversion is also in question.  A number of proposals have been made to allow these stations to keep operating in analog through 2012, as Federal funds to assist them in the digital conversion may be available, but not until 2010.  Of course, by then most viewers will have been watching digital television for years, so many LPTV stations may have made the conversion voluntarily well before that date to stay in tune with the viewers.

The final issue that we'll be seeing more of is the classification of more LPTV stations as Class A TV stations.  LPTV stations are generally secondary stations, which can be knocked off the air when a new full-power station starts broadcasting or when one improves its facilities in such a way so as to create interference to the LPTV.  A Class A station is not secondary, but instead must be protected by new stations or the increases in power of full-power stations.  Class A stations were created in a one-time window years ago, by demonstrating that they originated local programming and otherwise observed all of the rules followed by full-power television stations.  The Commission has discussed the possibility of allowing more stations to qualify as Class A stations, which will become more important as the freeze on modifications to full-power stations and on requests for the allotment of new full-power TV channels expires later this year once the final details of the digital transition have been set. 

Watch for all of these issues to be addressed in the near future, as the final digital transition details are set.

In recent weeks, a new FM station has surfaced in New York City - one which is not really an FM station at all, but instead a TV channel 6 operation being programmed like a radio station to emphasize the audio that can be picked up on FM radio dials.  Any FM station in New York would have easily cost many tens of millions of dollars to buy - so instead a new radio outlet was created by taking this low power television station, previously targeted to a narrow ethnic audience, to reach a much broader radio audience in the City.  A unique solution to the search for a spot on the crowded radio dial - and one that will not disappear in 2009 at the end of the digital conversion, as LPTV stations currently have no mandatory digital transition deadline. 

As a longer term solution, why not just take all of channel 6 and use it for FM operations?  That proposal was one that was advanced by consulting engineer Jack Mullaney in Comments recently filed in the digital television proceeding.  In his comments, Mullaney advocates the use of channel 6 (which has not been used by the FCC for digital operations of television stations to avoid interference to noncommercial FM stations, except in a few isolated cases where no alternative digital channel was available, ) for FM operations after the digital television transition has been complete.  As set out in Mullaney's comments, this could increase the FM band by 30 channels (there currently are 100 FM channels), which could create enough spectrum to allow for channels set aside for specific uses like LPFM, without having to worry about interference to full power stations.  Or channels could be set aside just for FM translators.  A section of the band could even be reserved for "pirate" radio - allowing anyone to start a radio station without an FCC license, provided that they stay on-channel and observe specific power limitations.

These innovative solutions to the current perceived scarcity of FM channels would be more advantageous than the Commission's current attempt to repeal the laws of physics by cramming LPFM stations into the existing band without displacing or otherwise interfering with other authorized users - a seemingly impossible proposition.  The proposal has been made - how will the FCC react to Mr. Mullaney's suggestion?