Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

It is also interesting that this freeze is implemented across the country, not just in the major markets where the FCC has acknowledged that the principal spectrum crunch lies.   This implies that the spectrum block that the FCC seeks to recapture is a nationwide block, not one isolated to the large markets.  Thus, while small market TV stations may have thought that they did not need to worry about broadband reallocation issues, some stations in rural areas may well face the worst of all worlds - no mobile company may be willing to pay for their spectrum as there is plenty of empty spectrum in these rural areas, but these stations may nevertheless be forced to change channels to clear a nationwide swath of spectrum for broadband use.  Who will be paying for these channels changes?  That, so far, is unclear.

As if TV broadcasters need any convincing, this public notice demonstrates that the FCC is serious about the reallocation of TV spectrum for broadband uses, seemingly to the exclusion of various proposals advanced by TV broadcasters for allowing TV and LPTV stations to themselves provide broadband service.  Broadcasters need to carefully consider their next steps to preserve their spectrum in light of this FCC action.

When the FCC recently adopted the Notice of Proposed Rulemaking asking when LPTV stations would be required to transition to digital, one of the open questions was whether that transition should be delayed until after the FCC's plans for the TV spectrum are finalized.  That thinking - that secondary services like LPTV and TV translators might suffer in any repacking of the TV spectrum - seems to underlie this order.  Why allow applications for new LPTV stations, allowing applicants to make investments and other financial decisions, if there is a possibility that the spectrum will be pulled out from under the broadcaster?  So LPTV and TV translator operators, like all other TV licensees, will need to wait to see what the ultimate impact on the TV spectrum of the process that the FCC set in motion with the Broadband Plan (and to participate in shaping that future) .

Perhaps the biggest change was in the requirement that these devices use spectrum-sensing technology to avoid interfering with television stations and wireless microphone users.  The original proposals for these devices were premised on this technology, but this technology was also the most controversial, as broadcasters argued that the devices that had thus far been produced were not reliable in sensing the existence of a signal that was to be protected.  Instead of spectrum sensing technology (which the Commission speculates may be included in future generations of white space devices to allow them to avoid actual interference to their operations), the Commission has decided to rely on the database that it will create of existing users of the spectrum.  The white spaces devices will need to be able to determine where they are and what channels are listed in the database of protected channels in that area, so that the devices will use other channels.  Very specific rules for how often white spaces devices need to assess their location and to access the database were also adopted to make sure that these new interference standards are observed.  Security measures to assure that the communications between the devices and the database are not corrupted were also adopted. 

The Commission also rejected requests to increase the permissible power of these devices and the height from which fixed white spaces devices can operate, and for the operation on channels adjacent to television stations, so as to limit potential interference.  Similarly, requests for more protection for "direct pickup devices" (e.g. the connection between a cable box and a television set that uses a television channel to transmit information from one device to another) were rejected, as the Commission found that manufacturers of such devices could provide more shielding for their connections or otherwise engineer around the issues that might be presented by white space operations.  

On the wireless microphone issue, the FCC decided to set aside certain channels in each market to be dedicated to their use, to establish a specific set of frequencies in each location that can be entered into the database.  Provisions for temporary operations outside of those set-aside frequencies were also established so that accommodations could be made for increased use of such microphones when employed for some big event (e.g. a political convention or major sporting event). 

As is clear from the discussion above, the protection of all current users of these frequencies will rely on the establishment of an accurate and up-to-date database that can be accessed by all of the white spaces devices that may be developed.   The Commission reaffirmed rules that allow for the selection of multiple database operators, and required that their information as to FCC licensees, and other information required by FCC rules, be publicly available so that it can be reviewed for accuracy.  Issues as to fees to be charged to wireless operators by the database operators were left to the discretion of the operator.  Certain other technical rules were adopted.  Of course, before any of these operations can be implemented, the database operators must be selected and approved by the FCC's Office of Engineering and Technology  (see our post here on the FCC's RFP seeking applications for database managers).  The FCC delegated the Chief of that office to oversee the operation of these databases once they are put into use.

When will these devices be operational?  At this point, given the need to establish the databases, and to engineer devices to work with the databases that are established, it is safe to say that the operation will not occur overnight.  When the Commission first approved the concept of white spaces devices, many had predicted operations at points that have long come and gone .  As with everything else in the technology world, when it will happen, and the impact that the rule changes will have in the real world, will only be apparent at some point in the future.  We will all see how this new service develops, and its actual impact on the existing users of these channels but we won't see it tomorrow. 

Now, with the announcement of next week's agenda item, it appears that the FCC is ready to move forward aggressively to allow the use of the TV spectrum on an unlicensed basis.  Chairman Genachowski has touted the TV white spaces as a platform for innovation and development.  In particular, it is seen as a way to expand Wi-Fi and extend broadband service, which in turn would take pressure off of existing wireless spectrum.  On the one hand, the use of the TV spectrum on an unlicensed basis is a simple and artful way for the Commission to "return" the spectrum recaptured by the DTV transition to the spectrum pipeline.  Opening the spectrum to unlicensed devices would allow parties to use the frequencies without the need for an FCC auction and would allow for the tapping of returned channels on a piecemeal, market-by-market basis, which avoids the issue of trying to aggregate contiguous television channels for use nationwide.  In contrast to the clearing of TV Channels 52-59 and 60-69, which was mandated by Congress and factored into the DTV transition from the beginning, there is no clear or easy path for clearing more TV channels nationwide barring a radical restructuring of the DTV Table of Allotments, which would undoubtedly be heavily contested by broadcasters in light of the substantial investments made and disruption brought by the recently completed digital transition.  Furthermore, if unlicensed devices are developed and deployed in the TV spectrum to provide Wi-Fi broadband access, this would potentially alleviate some pressure on the wireless carriers and forestall the much-warned-of and oft-debated "spectrum crunch", which is one of the main driving factors in the National Broadband Plan.  

On the other hand, deploying hundreds of thousands if not millions of unlicensed and unaccountable devices into the television spectrum could have a significant impact on the future of Mobile DTV, as well as on the ability for consumers to receive the signals of local TV stations in their homes.  The fact that the Commission is moving quickly and touting the white spaces as a way to release prime spectrum would seem to be a further indication by the Commission that it does not view over-the-air (OTA) TV signals to be as critical as they once were, notwithstanding the fact that Commission bent over backwards to ensure that broadcasters preserved and replicated their former analog OTA service as they were required to spend hundreds of millions converting their stations to digital.  The importance of the OTA TV signal and consumers' reliance on that signal, however, might change rapidly in the near future with a widespread introduction of Mobile DTV, or as folks cut the cable cord and replace cable service with a combination of over-the-air signals and video over the Internet.  In adopting rules and opening the TV spectrum, it will be essential that the Commission ensure that interference protections, frequency coordination efforts, and unlicensed devices all work as anticipated and do not infringe on the reception of over-the-air television signals. 

Regardless of where one stands on the use of the TV white spaces, and whether the FCC is picking winners and losers by advancing particular devices, services, and innovations to the detriment of existing license holders and industries, the issue is moving forward and will present some fascinating issues in the future.  For example, if a video program is broadcast over-the-air on a TV channel by a television station, it is subject to numerous restrictions and regulations, including the prohibition on indecent material, limitations on commercials in children's programming, rules governing political advertising, etc.  However, if a video program is transmitted through the Internet, which is then, in turn, streamed into the home via a vacant television channel, there would be no such restrictions, despite the fact that it is an identical video program that is being delivered via the same television spectrum.  In that scenario, it would be possible to essentially provide a broadcast-like service on a broadcast TV channel but with no broadcast restrictions and with no license.  Previously, when the Commission reallocated portions of the reclaimed television Channels 52 to 69 for commercial wireless services, it required that if the new licensees of the reauctioned 700 MHz spectrum provided "broadcast-type services" then those services would be subject to all of the applicable broadcast rules.  In the hypothetical posed above, however, there would be no new licensee providing a licensed service, but rather an unlicensed Wi-Fi operation permitting access to the Internet via the television spectrum.  And, with the FCC pushing for universal access to broadband, the differences between television and the new media seem to disappear.  What effect this evolution of media and technology has on the foundation of broadcast regulation remains to be seen.

The order allows mobile receivers to leave out not only the analog tuner, but also a tuner that is capable of receiving normal over-the-air digital television pictures, as long as their is a clear disclosure to consumers that these tuners are not capable of receiving normal analog or digital television programming.  Thus, these will be dedicated devices for the new mobile television service. 

One interesting note is that the success of this service will make it more difficult for the Commission to reclaim television spectrum for broadband use.  The old VHF channels, still used by some television stations, though much less congested than in analog days, are reportedly not very good for mobile use.  Were the Commission to try to take back television spectrum for broadband use, where could they put the TV stations displaced from the reclaimed spectrum, especially if they have successful mobile operations?  Thus, the services which this ruling promotes may help to shape the debate about the broadband recapture. 

The initial objections to the reallotment of these channels to radio came essentially from two groups of television operators.  The first were those few full-power stations that were still operating, after the digital television transition, on these channels and either couldn't move to another channel, or were unwilling to do so without getting paid.  The second group was low power television operators.  Many of these operators are using Channel 6 LPTV stations, which are still operating in an analog mode in many markets, as virtual radio stations, as FM receivers can pick up the audio of these stations.  While there will be an eventual transition of these stations to digital which will probably end their use as radio stations, the ultimate transition date has not yet been set.

But the recent proposal for the repurposing of some of the television spectrum for wireless broadband creates a whole new problem for the use of Channels 5 and 6 for FM radio. Those channels might well be needed for television if the FCC seriously forces TV to give up part of the UHF band that is currently used for DTV service.  While VHF channels, like 5 and 6, have proved to less than optimal for DTV use, and are not expected to be very good for mobile DTV, television users could be forced to use these channels were the FCC to follow up with its suggestions of taking some of the UHF channels for mobile broadband.  These issues are all interrelated - a change in the use of TV channels for broadband may down the road affect the growth of FM.  In short, while Commissioner Clyburn may think that the idea has merit - don't look for it to be implemented anytime soon.

The Commission, while clearly having a mandate to foster broadband development, seems to be taking steps that look toward possible intervention in the technological development of the video marketplace - seemingly standing ready to help pick winners and losers through regulatory actions.  The proposals in this proceeding, if the Commission were to follow through with mandates that are mentioned in this Request for Comments, could impose costs on MVPD providers and others to assist in providing access to potentially competing video - video that developments from other companies (both Apple and Microsoft, for instance, having introduced systems over the years to make TV and Internet content available on a television screen) seem to demonstrate that the marketplace is quite capable of providing if there is consumer demand. 

The questions asked in the first of the paired Requests for Comments, the one looking at whether to reclaim the television spectrum, adds to this perception that the Commission is looking to select winners and losers in the video environment.  The questions asked in that proceeding raise so many fundamental issues about over-the-air television in a manner that seems to indicate a preference for other uses of the television spectrum that, by just asking the questions it does, the Commission could scare off vital investment just as the television industry is looking for ways to utilize the digital television spectrum that has just so recently been fully deployed (e.g. though the mobile digital television deployment which is only just beginning).  While we wrote about some of the general questions asked in that proceeding here, there are many complex, specific issues on which the Commission seeks detailed comment in just over two weeks.  These include:

• The factors that the Commission should review in assessing relative spectrum needs
• The impact on the US economy of increased wireless broadband and of any decrease in the amount of spectrum used by television broadcasters.
• The current and future uses of the digital capacity of television stations
• The views of the financial community on mobile TV broadcasting
• Whether over-the-air television could be more efficiently used through more co-location of facilities and though other compression technologies that could allow more services in less spectrum, and the costs of developing and implementing such changes - both to stations and consumers
• Whether better antenna standards or more use of MVPD retransmission could lessen the need for spectrum currently used by TV stations
• What benefits do over-the-air television stations provide in terms of local news, education, emergency information and political coverage
• What market-based solutions could be used to encourage broadcasters to be more efficient with spectrum and to potentially  free some of that spectrum.

Perhaps the most loaded question was one which started with a premise that appeared to contain a conclusion for all of the other questions asked:

Consumers are migrating away from mass-market “appointment” viewing to more fragmented and time-shifted viewing. What impact will this trend have on the television broadcasting industry? What can the Commission do to help broadcasters participate in this evolution?

This question alone seems to conclude that "appointment television" is dead - despite the fact that even on the Internet, appointment television seems to be continuing to play a big role - whether through coverage of a political speech, preliminary games of March Madness, a live U2 concert, or a swimsuit photoshoot.  Even on the Internet, appointment television seems to be alive and well - so a conclusion that its death is imminent seems difficult to reach at this time, and perhaps presumptuous for the Commission to even posit.  Even if one were to conclude that television broadcasters were the buggy whip manufacturers of the 21st century (and, given the continued reliance of advertisers - both political and commercial - and viewers on programming provided by such broadcasters, that seems a difficult conclusion to reach), should the Commission be encouraging or potentially be mandating their demise by pulling spectrum out from under them - when the stations and consumers have just spent billions of dollars to foster the digital transition that was only completed in June - before television broadcasters have even been given the opportunity to prove their ability to operate and function in the digital world?  Particularly in smaller television markets, these very broadcasters may well be the ones who are most likely to bring video programming innovations to their service areas - both in connection with their over-the-air operations and on other digital platforms.  Should the Commission presumptuously label their business model as one that is being replaced?

This Commission, in may ways, has striven to be an open one - seeking public comment on many topics, including broadband innovation and even the broadcast multiple ownership review that is coming next year, encouraging diverse and robust debate, as early in the process as possible.  Yet on these fundamental questions facing the television industry, there seems to be a rush to judgment - asking pointed questions where it is suggested that answers have already been reached, and giving interested parties such a short time frame to answer such fundamental questions that the Commission cannot possibly expect searching, detailed responses.  While we understand the Commission's need to meet it mandate to report to Congress on broadband deployment by February, must it really engage in this rush to judgment on questions concerning all video operations?  The history of the television digital transition shows the bumps in the government's handling of a basic change in just one portion of the video industry - and that was part of a 15 year process.  To reform the entire video industry at the speed with which the Commission now seems to be moving can only invite trouble.  We hope that affected parties file comments in response to these two Requests for Comments that fully state their cases by the December 21 deadline in a way that makes the Commission recognize that there need not be government anointed solutions to the major industry development issues now facing the various industries involved.  The evolution of the television industry is a process that needs to be allowed to develop in response to consumer demands - not in response to government mandates.