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However, the FCC's database that is supposed to be established to register the locations at which multiple wireless microphones are being used has not yet been established, so Spectrum Bridge cannot call on that database, nor on the databases of other database managers (who are supposed to set up a system for sharing the registrations of sites that need to be protected).  Thus, the current authorization for Spectrum Bridge is for the Wilmington, North Carolina area only, where a white-spaces system is apparently ready to be rolled out (interesting that Wilmington was also the first market to go all digital during the DTV transition).  Service can begin as early as January 26 - so look for white spaces devices to be a reality very soon - providing a real-world opportunity to test the impact of these services on TV reception. 

Broadcast stations can't function without the engineers who take care of their operations.  In recent years, I have heard from many broadcasters in different parts of the country that it is increasingly difficult to find broadcast engineering help.  Some attribute this to the competition for technically gifted individuals that now comes from the tech industry - providing those interested in technology and media another outlet for their talents.  While I was glad to see a full room of broadcast engineers in Michigan, concentrating on the recruitment and training of engineering personnel for broadcast stations to make sure that similar rooms are filled in every state needs to be made a high priority for our industry.

Radio Issues

Radio has fewer unique issues on the front burner in Washington, but at least one is of incredible significance - the performance royalty.  Here are some of the issues facing radio broadcasters:

Performance Royalty:  Even though the performance royalty will have to start from scratch in the new Congress after dying in the Congressional session that just ended (despite having cleared both the House and Senate Judiciary committees for the first time), advocates of the royalty have made clear that they will be pushing on this bill again in the new session of Congress which began this week.  Look for the settlement talks with the NAB to restart now that everyone has returned from their holidays.  As with most issues, this is not an easy one, as the NAB put what many broadcasters thought was its best deal on the table in the Fall, only to have that deal rejected out of hand by the pro-royalty forces.  So don't look for any quick resolution of the issues this year. 

LPFM/FM Translator Issues: At the very end of 2010, Congress passed the long-delayed legislation clearing LPFM stations to operate on channels that are third-adjacent to full power FM operations.  Look to the FCC to adopt rules to implement this legislation, and to finally resolve the issues of what to do with the FM translators left from the 2003 translator window.

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years, ripe for resolution, while others are raised in proceedings that are just beginning.  These include:

Multiple Ownership Rules Review:  Last year, the FCC issued its Notice of Inquiry to start its Quadrennial Review of the FCC's ownership rules.  Broadcasters hope that the FCC looks at the relaxation of small market duopoly rules for television and the sub-caps (limiting the number of AM and FM stations that one party can own) for radio, while some public interest groups are seeking tighter rules on ownership, including potentially cracking down on shared service agreements in television.  While the FCC had hoped to have this proceeding close to resolution by this point, the Commission has yet to even issue a Notice of Proposed Rulemaking setting out specific proposals, as certain academic studies on which the FCC planned to rely in making conclusions about the media marketplace, have been delayed.  Delay in resolving ownership issues should  really not be a surprise, as the appeals of the 2003 FCC decision revising the ownership rules, and of the FCC's decision in 2007 slightly relaxing the broadcast-newspaper cross-ownership rules, are still pending.  Look for more action in this proceeding, though probably no decision, this year.

Localism Rules and the Future of Media:  FCC's proposals to impose specific rules on how broadcasters serve the public interest, advanced in its "localism proceeding," are over 5 years old.  The rules that it adopted for television stations mandating on-line public files and detailed reporting on the quantity of news, public affairs, local programming, civic programming , election programming, independently produced programming and many other categories of programing, were adopted over 3 years ago, but have never become effective.  Some had thought that the FCC might be spurred to final action on some of these proposals after its special task force on the Future of Media issued its report as to how media should best serve the needs and interests of residents of their communities.  That report was supposed to have been issued by the end of 2010.  Obviously, that target was not met, so the consideration of all the localism issues seem to be stalled.  But don't be surprised to see that report in the first part of this year, spurring more FCC discussion about these issues - though probably in the form of further comments on the meaning of the report and the impact of its findings on these pending proceedings. 

EEO Rules:  The FCC recently issued some fines for EEO violations by broadcasters, but there are fundamental issues about the FCC's policies that have not been addressed in the 7 years since these rules were first adopted.  Proposals to extend the rules to part time employees, and to require the filing of FCC Form 395 (the form that classifies all employees by race and gender), are still pending.  Also pending are proposals sought in requests for reconsideration of the adoption of the EEO rules that would make the EEO rules comport with today's reality - such as the proposals to allow Internet-based EEO recruiting.  More recently, minority organizations suggested that the enforcement of the rules be suspended until they could be made tougher, as these organizations did not believe that the rules were sufficiently stringent to encourage diversity in the broadcast workforce.  Maybe this will be the year that some of these outstanding issues are finally resolved.

Political Rules:  As more and more money makes its way into the broadcast marketplace for political advertising following the Supreme Court's Citizens United decision, some have suggested that a comprehensive review of the FCC's political rules is in order.  These rules were last reviewed almost 20 years ago, and since then, there have been major campaign reform acts (e.g. the McCain-Feingold campaign reform act or BCRA), and significant Supreme Court decisions repealing portions of that Act.  Sales practices at broadcast stations have also changed, and the FCC has a long-outstanding proceeding on how Internet-based ad sales of remnant broadcast advertising inventory affect lowest unit rates.  With this being an off year before what will no doubt be a huge political year in 2012, if the FCC is going to review the political rules, this would be the time that it should be done.

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Many other issues may be decided through Court actions.  We just saw a ruling on indecency issues this week, and the appeals on that subject may well bring the issue back to the Supreme Court.  So expect more thrashing about on indecency this year, as a final court decision will likely be some ways down the road. 

While not really DC issues, copyright proceedings to determine ASCAP and BMI rates for both radio and TV could also be important.  Renewing old agreements or, particularly for radio, the potential reduction of obligations for music royalties to these organizations, are likely to be the subject of litigation that will take place this year.  Noncommercial broadcasters may also have to asses these issues, as the Copyright Royalty Board has just issued a notice commencing a proceeding to decide the royalties paid ASCAP, BMI and SESAC by noncommercial broadcasters for the next 5 years.

With their online activities becoming more and more important to broadcasters, actions that could affect advertising and on-line programming become ever more important.  One of the major areas likely to be considered this year that could affect online businesses is in the area of privacy regulation.  Both the FTC and the Commerce Department recently issued proposals for privacy regulation (see summaries of these reports from our firm's Broadband Law Advisor Blog, here and here), and Congress has been considering this area as well.  Look for more action here, and assess its potential impact on Internet advertising, recommendation software and other business practices. 

These are but some of the legal and regulatory issues that will be facing broadcasters in the upcoming year.  Each year, we make these predictions, and there are always numerous other issues arise that we did not anticipate.  So watch the trade press and the pages of this blog to see what trouble Washington can make for broadcasters as this year progresses.

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.

To answer the call for more spectrum for wireless broadband, the Commission is seeking to locate up to 500 MHz of spectrum to be redeployed for broadband use. Some of the spectrum that the Commission will seek to repurpose is that which has already been allocated to some wireless uses, but where service rules currently make broadband deployment difficult. These include the Wireless Communications Service (WCS) and Mobile Satellite Service (MSS) spectrum. The Commission proposes to make the use of this spectrum more flexible, so that existing licensees can dedicate the spectrum to broadband or else sell it to others who can put it to such use.

But the largest swath of spectrum to be used to meet this perceived need is proposed to come from television broadcasters. The Commission’s plan proposes to recapture 120 MHz of spectrum (20 UHF channels) from television broadcasters. This would be done essentially in two steps – a voluntary sale by some broadcasters of all or part of their spectrum, followed by a repacking of the spectrum to make a more efficient use of the remaining spectrum by the remaining television broadcasters. 

Throughout the section of the report dealing with the potential recapture of TV frequencies, the Commission suggests that the television frequencies are underutilized, and that television broadcasting is not the highest and best use for the channels. In the view of the Commission, this spectrum is not being used efficiently at the moment, as many television stations have the ability to transmit their over-the-air signals in less than the full 6 MHz of spectrum allotted to each television station. While High Definition programming and opportunities for multi-channel operations are possible on the current channel allotments, in the Commission’s opinion, too few broadcasters are making full use of the spectrum. Moreover, as only about 15% of US households currently rely on over-the-air television as their sole means of television reception, other alternative means of viewing television are available, thus freeing the broadcast television spectrum for broadband use. While the Commission recognizes that mobile DTV is now being rolled out, and offers the potential for relieving some network congestion by delivering video programming to mass audiences from a single transmitter, the Commission expresses its finding that the roll out of this service has been slow thus far.

Thus, the Plan suggests reclaiming some of the television spectrum from broadcasters in order to repurpose it for wireless broadband. Some stations may sell out entirely, while others could agree to share current frequencies (e.g. allowing two stations to each use 3 MHz of one 6 MHz TV channel, allowing the other 6 MHz to be reclaimed by the FCC for broadband use). While the Commission indicates that the need for recaptured spectrum is most acute in large markets, it also finds that some spectrum can be used in small markets to reach unserved rural areas. To compensate broadcasters for that return of some of the spectrum currently used for television broadcasting, the Commission would in exchange provide a payment out of the revenues recognized from the re-auction of that spectrum. The details of how that auction could work are discussed in the report – suggesting that an auction by the FCC where a portion of the proceeds are paid to the broadcaster is the favored method, though a direct sale of spectrum by the broadcaster to the wireless company is an alternative.

Once stations agree to this voluntary plan, the FCC will take the remaining television stations and repack them into a smaller portion of the television spectrum, to clear up a large contiguous swath of spectrum for broadband users. Broadcasters may need to share spectrum or transmitter sites, reduce coverage, or otherwise modify their technical operations to fit into the more limited allocated television band.

The plan justifies this transition of spectrum from broadcasting to broadband on the determination that spectrum is currently not used at its highest and best use. To reach that conclusion, the Commission looks at its calculation of the prices paid for wireless spectrum in the last broadband auction and contrasts that price to the Commission’s perception of the market value of the broadcast spectrum. Based on that comparison, the Commission concludes that wireless spectrum is valued at $1.28 per megahertz per person, versus 11 to 15 cents per megahertz per person for television. To compute the value of television, the Commission looks at what it believes to be the total enterprise value of the television industry ($63 billion), and the fact that only 14-19% of TV households rely solely on over-the-air viewing, and then divides the value of the 14-19% of the total enterprise value of TV by the number of people in the country and the total spectrum devoted to TV. The Commission determines the enterprise value of the TV spectrum by multiplying what it finds to be the total broadcast revenue times the perceived operating margin of television operators (estimated from 2010 earnings reports of public TV companies) times an assumed EBITDA multiple used for sales of stations in the TV marketplace. The Commission thus premises its views the value of the industry based on the approximately 15% of homes that rely exclusively on over-the-air reception, ignoring the value of the rest of the industry.

The Commission further suggests that the value of television stations may be decreasing. To reach that conclusion, the Commission looks at recent advertising sales issues to question if the television business model continues to be viable. The Commission also suggests that recent court cases challenging the must carry rights of television stations, and the Commission’s own multiple ownership proceeding that will be conducted this year, could further depress the value of television stations (query what that implies about the outcome of multiple ownership issues such as duopoly relief to television broadcasters, especially in smaller markets).

Finally, the Commission indicates that, if broadcasters are not ready to voluntarily step forward to give up sufficient spectrum to accomplish the plan, broadcasters and any other spectrum that is not dedicated to “flexible uses” (i.e. where FCC rules and not the market decides the best use of the spectrum), should be assessed a yearly spectrum fee. The plan suggests that the fee should be set by the FCC and NTIA, based on their perception of the highest and best use of the spectrum to encourage those who do not make that best use to allow for a change in the use of the spectrum. No spectrum fees are proposed for other users of wireless spectrum, even though these other users may, in some cases, be marketplace competitors of the broadcasters. In addition, the FCC suggests that, if these methods don’t succeed in clearing enough spectrum, the FCC could either force broadcasters to give up spectrum (recognizing that this would be a long legal battle), or that the technical rules could be changed (requiring, for example, a cellularization of the TV spectrum though mandated use of low power stations instead of high power transmitters). 

These approaches will require significant changes in order to be implemented. First, Congress will have to authorize the redirection of auction proceeds to pay broadcasters who choose to surrender their spectrum. Second, the Commission will need to adopt rules for the auction, and how the repurposed spectrum would, for maximum efficiency, be packaged into contiguous blocks. For instance, there is no discussion of how the costs of such shifts would be authorized. The FCC states that it will initiate a rulemaking proceeding this year to adopt rules on these issues – aiming to conclude that proceeding in 2011 so that the spectrum reclamation can begin in 2012. 

At the same time, Congress is in the process of considering a bill that would provide the FCC and NTIA with funding to inventory the current usage of the entire radio spectrum in order to identify inefficiencies and potential areas where additional spectrum might be found to meet future wireless broadband needs. In the most recent House version of that bill, the inventory process is to take 5 years. Given this process of determining what, if any, needs exist for spectrum and what spectrum may be available to meet these needs, along with the controversy that is always engendered when the government considers changes to television, one wonders how quickly any of the proposals advanced in this report will be implemented. 

The Commission also proposes other ideas to immediately use the television spectrum more efficiently. The final resolution of the TV White Spaces proceeding is urged. Also, it is suggested that the conversion of LPTV to digital, a deadline for which has yet to be set, be accelerated. Commissioner McDowell, in his statement on the Report, suggests that broadcasters be urged to immediately lease excess digital spectrum to wireless uses, which would be a voluntary plan not requiring Congressional or FCC action. 

While we will be writing about the issues raised by this proceeding in coming weeks and months, there is no doubt that there will be objections to these proposals. Television representatives have expressed concerns about the rumors of these proposals, arguing that broadcasters and the public have just spent billions of dollars converting their over-the-air operations from analog to digital, thereby greatly improving the efficiency of the spectrum and already returning substantial spectrum to be repurposed for broadband use in the process. While broadcasters may not all currently be using their full 6 MHz of spectrum to its maximum potential, it has been less than a year since the digital transition was completed, hardly providing broadcasters with the time to fully utilize the spectrum or for the industry to capitalize on the enhanced opportunities afforded by the digital transition. For example, while the FCC dismisses mobile DTV as not being widely deployed, it is just now being rolled out by broadcasters, promising far more use of the spectrum in coming years.

Broadcasters also argue that forcing all viewers onto pay platforms is not in the public interest, as most of the proposals for subsidies are limited in duration and will thus, inevitably lead to higher costs to consumers. Moreover, they contend that the portent of a spectrum crunch is overstated. They argue that wireless carriers have not yet fully deployed systems on the existing spectrum currently allotted for their use. Additionally, by forcing all over-the-air broadcast uses onto other platforms, spectrum congestion may actually be increased, as the point-to-multipoint service provided by broadcasters is, in fact, the most efficient way to deliver mass content to large numbers of viewers. These issues will no doubt be debated in the coming months, so watch as this debate unfolds. 

Spectrum conflicts with radio will also be on the table. There have been proposals for the reallotment of TV Channel 6, and perhaps even Channel 5, to radio uses. Particularly given the issues that many major market television stations had with the digital conversion of VHF stations, and the demand by more and more entities for radio spectrum, this proposal has already been advanced for public comment by the FCC in several proceedings, and could theoretically be ripe for action. More likely is further consideration, as there are many issues that would need to be resolved – like who would pay for the few remaining TV stations on these channels to move elsewhere on the TV band, plus questions of how the spectrum, if reallocated to radio use, would be divided. More on that below in the radio discussion.

The FCC will also have to complete the digital transition of TV translators and LPTV stations, which were not bound by the June 2009 DTV 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. This transition may also bring to the fore questions about the use of LPTV stations on Channel 6 for quasi-radio stations broadcasting audio that can be received on 87.7 or 87.9 on most radio receivers as analog television audio signals are just below the bottom of the FM dial. This use of channel 6 stations for Fm broadcasting would disappear if LPTV stations go digital, and thus there may be resistance to the transition from that element of the LPTV community.

Another carryover issue from 2009 is the status of the SHVERA extension, authorizing DirecTV and DISH Networks to rebroadcast local broadcast television signals to satellite TV subscribers in their markets. That authorization expired at the end of 2009, and has been extended by Congress, but only until March. While everyone seems to agree that a further extension is appropriate, many parties are trying to load up the bill with all sorts of goodies from the wish lists of various industries – everything from a mandatory extension of local-into-local service into every television market (as urged by TV interests), to changes in must-carry and retransmission consent schemes and rules on the importation of distant network affiliates (sought by various multichannel video providers), to issues about allowing the carriage of in-state TV stations in markets with counties that currently receive their television service from stations in adjoining states. These and other issues will need to be resolved before a more permanent extension can be granted.

Radio Issues

The most fundamental issue for radio broadcasters is the potential for the broadcast performance royalty – which would require that radio stations pay not only the composers for the use of music on the radio (which they currently do through ASCAP, BMI and SESAC payments), but also to pay performers (and the record companies, as the copyright holders in these performances) for the use of their recordings on the air. Radio has never paid such royalties, though digital cousins of radio – satellite radio, Internet radio and cable radio – have paid these royalties for the last decade. While broadcaster representatives have thus far been able to beat back attempts impose this performance royalty for the use of sound recordings, both the House and Senate Judiciary Committees passed forms of this legislation in 2009, and proponents of the royalty will be pushing for a vote on these bills this year. With the potential for a crippling new cost to be imposed on radio if these royalties are adopted and imposed on top of the royalties already paid to ASCAP, BMI and SESAC (which are themselves in negotiation for new royalty rates as old rate agreements expired at the end of 2009), music radio could be dealt a severe blow if the proposal was to be adopted in this time of decreasing revenue. While the new NAB President has seemingly taken a somewhat more conciliatory tone in dealing with this issue (no more claims that the royalty will only be discussed at knifepoint), it is difficult to see where the revenue to pay such royalties would come from. But it will be an issue that will be fought hard this coming year.

The digital transition in radio will also need to be addressed. While many stations are already operating with digital over-the air streams of programming, the Commission is still 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. While a compromise proposal to allow for IBOC power increases has been offered to the Commission, it has not yet been adopted. Watch for action on that front soon.

LPFM stations may become more common this year, as legislation to remove a ban on those stations causing third-adjacent channel interference to full-power FM stations may well be removed by Congress this year. A bill to do so has passed the House, and will likely be considered soon in the Senate. The House Bill did protect some full power stations from real cases of interference, and certain existing services like existing translators and stations proving reading services for the blind. But the bill must also be addressed by the Senate, and we will have to see what will be in the final legislation.

The related issues of the relationship between LPFM stations and other FM users also remain to be resolved at the FCC. A new LPFM window has been held up by issues on how to process the thousands of FM translator stations that remain pending from the 2003 translator window.  Similarly, issues remain to be resolved on whether LPFM stations, which were authorized as secondary services, should be able to be protected from increases in power or other facility changes by full-power stations. Perhaps the removal of third-adjacent channel protections will alleviate some of the conflicts, but others are bound to remain.

The proposals discussed above to recapture some of the television spectrum, including Channel 6 and possibly Channel 5, and to use that spectrum for new radio stations, may provide a further outlet for LPFM stations to remove some of the conflict with translators and full-power stations. Proposals are already pending to immediately allow LPFM stations on 87.5, 87.7 and 87.9 – all parts of channel 6 that can be heard on most FM radio receivers. But a longer term solution could result from this reallocation, giving LPFM stations places to operate without restricting FM upgrades or endangering FM translators. 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 further serious consideration this year.

 Finally, the FCC under Interim Chairman Copps, suggested rules that could limit the ability of FM stations to change city of license to move toward larger communities, undoing some of the flexibility accorded to stations in recent years to change city of license to reach larger audiences. Action on this proceeding might be forthcoming, or will perhaps be rolled into the localism proceeding discussed below. 

Issues for Both Radio and Television

The FCC’s Localism proceeding remains on the table, proposing a whole host of requirements to assure that broadcasters are serving their communities and the “public interest”. While comments have been filed and the proceeding ready for resolution for over two years, there are so many controversial issues raised by the proposals that coming to any resolution will not be easy. Some proposals seem to be dead – like that for a fully manned main studio during all hours of operation, located in the station’s city of license, as regulators realize the costs that such a requirement would impose, and the likely impact that the requirement would have on new entrants and on the 24 hour operations of some stations. 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 difficulty with localism issues is illustrated by the Commission’s rules, adopted over two years ago, requiring TV stations to document in minute detail their public interest programming on Form 355. This rule has never become effective, 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. Broadcasters argued that the information required to be documented would require the hiring of new staff whose only role would be to fill out this form. In an era of declining revenues for broadcasters, hiring a person to deal with these issues would, of necessity, require cutbacks in other areas, possibly compromising service to the public. 

While that would seem to be an issue, in recent hearings on the FCC multiple ownership rules, which will come up for a full review in 2010, certain public interest group representatives suggested that gathering detailed information about a station’s public service should be seen as a cost of doing business, and that owners who did not want to shoulder this burden should simply get out of the business. With views such as that being advanced in the multiple ownership proceeding, questions of how to modify the Commission’s ownership rules will not be easily resolved. The FCC’s 2007 modest relaxation of the broadcast-newspaper cross ownership rules has never been fully implemented, causing us to wonder if the restrictions may well outlive the newspaper itself.  Broadcasters, especially small market TV operators, have also been looking for the ability to combine operations under more flexible rules – an issue to be examined by the FCC in this upcoming 2010 proceeding (though don’t expect any final resolution this year).

The troubles of the newspaper industry, and of some broadcast stations, in funding their news operations, has given the FCC and the FTC pause, with both agencies conducting reviews of how the government may be able to facilitate good journalism in the 21^st century. The FCC has gone so far as to appoint a Special Advisor to the Chairman to look at the issues of how the media should best serve their local audiences and how to assure that service is forthcoming to local communities.  One wonders what the government can do to mandate what are essentially business decisions.  But some fear that any review of content issues, whether it be in the guise of community service or localism or some other form could be a backdoor way to bring back the Fairness Doctrine, which many conservative pundits have predicted.  Certainly, many of these proposal would face constitutional and practical problems in implementation. Yet these will be matters which broadcasters will need to continue to monitor. 

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. We’ve also written about the FTC’s recent actions on sponsorship identification (especially for the new media) and celebrity endorsements, obligations that are only now being fully implemented.

There is also real concern that the Congressional committees which oversee the FCC may well push proposals for content regulations. Issues on limits on prescription drug advertising have been raised both independently and as part of the health care debate. Proposals on restrictions on violent programming and on advertising directed to children are also possible, especially in connection with ads for food considered unhealthy (however that may be defined). Congress also seems poised to pass a law regulating loud commercials – mandating that the volume on commercials be kept the same as that in programming, no matter how hard (and in some cases subjective) that may be to assure in reality.

Protecting children from violent or other potentially harmful content has also been the subject of both FCC and FTC proceedings, which may spur further actions this year.  Indecency issues will also continue to be litigated in the Courts, as both the Janet Jackson clothing malfunction and the Golden Globes fleeting expletive cases are considered after their remand by the Supreme Court.  The constitutional issues left unresolved by the Supreme Court may well be considered by the Courts of Appeals rehearing these cases, though an ultimate decision on the constitutional issues are probably several years down the road when these cases finally make their way back to the Supreme Court (so look for indecency on our list of issues next year).

And 2010 will be a big political broadcasting year.  While the political broadcasting rules have for the most part remained unchanged for almost two decades, there are aspects of the rules that need to be addressed as the technology has changed since the current rules were adopted. The FCC has a long-outstanding proceeding to decide how on-line sales of broadcast inventory by various advertising clearinghouses and aggregators affect a station’s lowest unit rate. It’s interesting that the proceeding itself has outlasted most of the companies that were offering the on-line sales of broadcast inventory.  Also, as both radio and TV are now multicasters in the digital world, the FCC has not yet addressed how reasonable access and other political rules apply to multicasting.  Are a station's multiple streams each considered a separate “station” for reasonable access purposes, or can a station decide that candidates can be accommodated on one or more streams and kept off of others.  While this may not be a big issue in this election as most multicast audiences are small, the issue will no doubt grow in significance in future elections. 

Copyright issues could also impact the broadcast industry this year. We discussed the performance royalty above.  But both radio and television have outstanding issues on their ASCAP and BMI royalties that could lead to rate court proceedings to decide what should be paid to composers for the use of their music.  And TV broadcasters have brought a suit against SESAC to try to bring it under the antitrust laws, a suit that radio broadcasters may well consider joining at some point in the future, 

Conclusion 

Just a cursory look at the broadcast issues to be dealt with by Washington this year is enough to give any broadcaster pause about the future.  And these are just some of the issues that could impact broadcasters.  Broadband rollout, network neutrality, and regulation of wireless and wired carriers can fundamentally affect the competitive landscape for the media in general.  And there are a whole host of other regulatory issues that we have not addressed here, including some that we have no idea are on the agenda but which are nevertheless bound to arise. In an industry rapidly adapting to new media competition and changes in the economy, broadcasters cannot afford to face the heavy hand of government regulation.  Broadcasters need the freedom to adapt to marketplace changes and to address the new realities of the advertising supported media. One can only hope that Washington recognizes these new realities and regulates with a realistic hand, not one based on the realities of a totally different time and place.  Stayed tuned to these pages to see what develops in this new year.

It should be remembered that the White Spaces order requiring that these wireless devices be allowed in the TV band on a non-interfering basis is a proceeding separate and apart from the recent discussions of the re-allocation of some or all of the television band from its current use for broadcast television to instead become spectrum dedicated to wireless services providing wireless broadband services.  While some of the same wireless services might be possible under the White Spaces proposals, given the requirements that primary users be protected, the broadband services envisioned by these more recent proposals would not be as easily implemented through the use of White Spaces devices.

The proposals to be the Database Manager are sure to be scrutinized by broadcasters and other users of the television spectrum to ensure that whoever assumes this important position provides reliable service that allows the wireless White Spaces devices to identify and protect the incumbent users.  The Commission has allowed interested parties to comment on the filings.  Comments are due on February 3, and Replies on February 18.  For television operators, this is an important process to be watched closely. 

In the first category - the issues of priorities of one type of service over another, issues include the following:

• The priorities between LPFM stations and FM translators and full power stations (see our posts here and here on that issue)
• Final resolution of the White Spaces issues - implementing the FCC's decision to make TV spectrum available for use by wireless devices, or reconsidering that decision based on the pending appeals by the television industry
• Deciding whether to take TV channels 5 and 6 and change them into radio channels (see our post here), when a limited number of full power TV stations, as well as a number of LPTV stations are currently using the channels
• Making a decision about increased HD radio power, which some other FM stations that rely on service at the fringes of their protected contours or or beyond worry would interfere by such power increases

In the second category of issues - the question of what public interest regulations the Commission should impose on broadcasters, issues include:

• Dealing with the Petitions for Reconsideration of the FCC's decisions to require TV stations to put their public files on line and to complete the Form 355 detailing all of their public service programming in minute detail - rules adopted in late 2006 but never implemented or even sent to the Office and Management and Budget for review of their compliance with the Paperwork Reduction Act
• Resolution of the FCC's localism proceeding proposing regulations including:
  • A return to mandatory main studios in the station's city of license
  • Manned main studios during all hours of station operations
  • Mandatory public service obligations for broadcasters
  • Consideration of the process for the selection of music on broadcast stations and whether more local music should be required
  •   Potential extension of the TV public file and Form 355 obligations set out above to radio
• Issues about the Arbitron PPM and whether it discriminates against minority owned stations
• Resolution of the rural radio proceeding which includes questions about what kind of service stations need to provide to their city of license
• Decisions on the proposals to mandate stricter sponsorship identification rules allegedly to protect the consumer from being influenced by undisclosed sponsors

Other more technical or procedural issues are also pending before the Commission, including:

• The final stages of the DTV conversion - including the final dates for the digital conversion of LPTV and TV translators
• Various pending diversity proposals to increase new entrants into broadcasting
• Reconsideration requests from 2003 on the FCC's EEO rules
• Decisions on the question of how to treat on-line sales of commercials on broadcast stations for lowest unit rate purposes for political candidates

And, of course, there are those issues that never go away.  Indecency cases are still pending before the Courts, so the Commission may once again have to face that issue.  And there is that little question of the Fairness Doctrine that just refuses to go away.  I'm sure that there are other issues that have escaped my mind while I'm writing this - but even if there were not, it is clear that the new Commission has plenty to keep it busy without even needing to bring up any new issues for the broadcaster.  And Congress can always give the FCC new things to do, like reregulating children's television programming or restricting prescription drug advertising.  Let's hope that these keep the Commission plenty busy for now, and that they don't have time to start anything new. 

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. 

First, the devices must be designed so that they can determine where they are operating, sense other users of the spectrum, and access the database of other users of the spectrum.  That database has not yet been created, and the FCC has said that it will, by subsequent public notice, solicit private companies to create the database (or databases, as multiple companies may be authorized to maintain competing databases).  The database will list not only full power television stations, but also low power TV stations and TV translators.  And, while in most cases the TVBDs will be required to protect the full-power TV stations only to their protected contour, there will be added protections for stations outside of their protected contours in the path between the TV station and either LPTV or translator stations which pick up these stations off of the air, or cable television system headends which pick up TV station signals.  Thus, the location of cable headends and that of LPTV and TV translators, and the signal paths between them and the stations that they pick up, must all be computed.  In addition, there are Land Mobile radio services that operate in the television band, which will also have to be protected, and entered into the database.  Wireless microphones that operate in the TV band will also be predicted, and sites that regularly use those microphones (e.g. theaters, stadiums, churches) will be eligible for registration in the database.  Even sites that only use those microphones for special events can register for the length of the event.  All of these items will need to be entered into a database that will be accessible by the devices - a project that will obviously take time.

In addition, the devices will not be able to operate in areas near the Canadian and Mexican borders, nor in areas near the "quiet zones" around radio astronomy installations.  The TVBDs will have to be able to determine their locations so, for the most part, they will need outdoor antennas to receive the satellite signals to determine their locations.  Fixed location TVBDs, which can operate at higher power than mobile devices, will also have to register with the FCC so that, if they create interference, they can be located.

With all of these requirements, it will be quite a design feat for engineers to accommodate all of the FCC requirements.  In addition, the FCC will have to complete the regulatory requirements of authorizing the databases.  So don't look for these services to provide broadband access (or any other service) until all of these requirements are met.  And, of course, there still may be legal hurdles to overcome should opponents of the devices appeal the FCC decision.  So stay tuned...

Broadcasters are particularly concerned with the degree of protection that is to be provided by these devices.  Press reports quote MSTV (an association of television broadcasters) President David Donovan as being particularly concerned with interference that would be caused to television stations operating on channels adjacent to the channel on which the white spaces device would operate, and also expressed concerns about interference to cable boxes and to wireless microphones used by television newsgathering.  The NAB criticized the failure of the Commission to heed Congressional and industry requests to allow comment on the FCC's most recent engineering study on the interference potential of these devices, which was released only a month before the FCC meeting.  Of even more concern to broadcasters was their allegation that the proponents of the white spaces devices ultimate goal was to capture the entire television spectrum for unlicensed wireless devices, relegating TV to being provided by cable or similar subscription delivery systems.  These fears were based on statements made at a conference sponsored by Google and the New America Foundation, organizations backing the white spaces proposals.

 The New America Foundation, on the other hand, claims that broadcasters claims of interference are overstated and incorrect - and are just part of a pattern of the industry trying to block every new technology that could be competitive.  The FCC Commissioners' statements released at the same time as the Public Notice (Martin, Copps,  Adelstein, McDowell, and Tate) also hail the promise of the new technology as a new broadband competitor while claiming that the protections that have been built into the rules will protect broadcasters. 

Even some commentators associated with the broadcast industry have suggested that broadcasters prepare for the coming of this new wireless technology. Mark Ramsey, in his Hear 2.0 blog, urges radio broadcasters to prepare for the coming competition from "wi-fi on steroids" that would be available on these channels.  Jennifer Lane, in her audio4cast blog, while not specifically reacting to this decision but instead to the general availability of wireless Internet options, suggests that radio broadcasters embrace the Internet, introduce their staffs to Internet radio, or otherwise they will be left behind by new digital competition. 

With all the controversy from broadcasters and others concerned about interference and the processes that the Commission followed, the controversy over this decision probably has not ended.  With all of the promises made for the uses of these devices, the supporters of white spaces are also likely to push to implement this ruling as soon as possible.  This may well be one of those issues that the new FCC will have to deal with yet again in the New Year.

The second proposal, on white spaces, is far more controversial.  We've written about some of the white spaces issues before, and about one FCC study that found interference problems from these devices.  As these devices operate in the TV band on supposedly empty channels, it is important that they be able to detect television operations so that the devices can protect the TV stations from interference.  Now, the FCC has put the issue on its November agenda, after the FCC's Office of Engineering and Technology ("OET") released a second report which some characterize as demonstrating that the white spaces devices could work in the TV spectrum without creating interference to television reception (or to wireless microphones that also operate in the same frequencies).  However, television representatives have opposed the consideration of this issue without opportunity to comment on this OET Report, arguing that the details of the report show potential interference, pointing particularly at data which, they state, suggests that the white spaces devices have particular problems sensing TV stations operating on adjacent channels and thus could cause interference to these stations.

Thus, broadcasters have been lobbying hard to have the Commission put the issue on hold for further study.  One of the most recent developments was a letter from House Energy and Commerce Committee John Dingell to FCC Chairman Martin, asking a series of questions about the FCC's process - asking if the FCC's engineering report was subject to peer review to suggest any shortcomings, whether the FCC considered licensing these devices so that tracking interference concerns could be easier than with unlicensed mobile devices, and asking for the FCC to account for ways in which it regulates other unlicensed devices and interference issues that may occur ("pirate radio" being included in the list of unlicensed operations about which enforcement history is requested - one area where many broadcasters have alleged that the FCC has often been slow to act to stop illegal operations).  Congressman Dingell has requested the answer to his questions by October 31 - before the FCC's scheduled November meeting.

With this October 31 deadline, we'll see whether Halloween brings a treats or a trick for the white spaces proponents. 

The NAB recently ran radio ads in DC opposing the white spaces initiative, held a press conference with members of sports organizations which also oppose the initiative (interference to wireless microphones is also feared), and otherwise signified broadcasters' opposition to the re-initiation of the FCC inquiry.  Both sides have been lobbying on Capitol Hill and at the FCC on this issue.  The Public Notice demonstrates that the issue is not dead, and the FCC will continue its review of the white spaces proposal. 

The Public Notice does not make any pronouncements about when the testing would occur, how long it would take, or when any decision could be expected out of the FCC on the issue.  It does not even indicate what devices will be tested - requesting that interested parties contact the FCC if they have devices that they want tested.  The issue is clearly one that will continue to be debated in Washington, and one that should be followed carefully both by broadcasters concerned about spectrum interference issues, and by tech companies looking for more access to spectrum for their wireless communications needs.  It is a war that likely still has many battles to be fought.

Broadcasters, on the other hand, fear that the these devices will not be able to fully protect television signals. Especially in a DTV world, where a picture is either there or not (it doesn’t just get snowy as does an analog signal suffering from interference), the risk of allowing an interfering device are great. And given the fact that we’re now right in the middle of the digital transition, where there are bound to be issues even without the introduction of a whole new set of potentially interfering devices, it only makes sense to delay these devices for the the near term. Also, as broadcasters are now looking at introducing their own mobile devices reusing the digital television spectrum ( see our post, here), the Commission should not take any action at this time.

This issue has already been the subject of significant Congressional lobbying, as well as many meetings with the officials at the FCC considering the matter. Given the OET report, it would seem that the push to introduce the devices may slow for the near term. But given that the Commission's staff has left the door open to retesting new wireless devices to see if they can perform better than those initially tested, and the nature of the companies driving this proposal, don’t expect it to disappear for long.