repacking of TV spectrum

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The FCC has released a Public Notice, as promised by FCC Chairman Wheeler at last week’s NAB convention, asking for public comment on the proposal filed by the National Association of Broadcasters, the Consumer Technology Association and others requesting that the Commission approve ATSC 3.0, the next transmission system for over-the-air television broadcasting.…

At the NAB Convention last week, FCC Chairman Tom Wheeler discussed the timing of the incentive auction and how some of the remaining issues may soon be resolved. One subject of talk in a number of NAB sessions, as well as in the trade publications, has been how the repacking of broadcast television spectrum will proceed after the auction. Even FM broadcasters noted the potential for disruption of their operations as the repacking may affect shared users of broadcast towers, and given that hundreds of TV stations potentially face changing out antennas to operate on new channels in the smaller post-auction television band.

The Chairman made clear that the FCC will be announcing soon, perhaps as early as this week, the “spectrum clearing target” for the auction. In other words, the FCC will be announcing how much of the TV band it intends to try to clear for wireless broadband uses, based on how many TV stations expressed interest in potentially taking a buyout of their spectrum in their commitments filed at the end of last month. After the targets are announced, the FCC will quickly begin the reverse auction, a process where, round by round, the FCC will lower the prices offered to TV stations to abandon their spectrum until the FCC has committed to buy just the right amount of spectrum to meet its clearing targets. Then, it will turn around and repackage and resell that spectrum to wireless companies in the “forward auction.” The Chairman indicated that the clearing target may also signal the answers to many other issues.
Continue Reading As Incentive Auction Draws Near, Focus Begins to Shift to TV Spectrum Repacking – and Even FM Broadcasters Take Note of Potential Issues

The road to the incentive auction’s anticipated start in March continues to be paved. With broadcasters who are intending to participate in the auction needing to file their initial Form 177 applications expressing that intent by January 12 (see our article here), the FCC has published instructions for completing the FCC Form 177 applications, providing an almost line-by-line explanation of the requirements for filing of the forms. These forms are to be filed by every licensee who is thinking about possibly offering their station up for any sort of compensation in the auction, whether that compensation is a total buy-out of their spectrum, or whether it is merely compensation for moving from a UHF channel to a digitally-less-desirable VHF channel. The full instructions for the form are available here and, as we wrote here, you can find a view of the form itself here (with the actual form not to be available until the window for filing that form opens on December 8).

To further explain the process, the FCC will be conducting a webinar on the reverse auction process on December 8 at 1 PM Eastern Time. Information and an agenda for the webinar were released yesterday, and can be found here. The webinar looks to be focusing on the nuts and bolts of the completion of the Form 177, a general overview of the auction process, the specific information sought by the Form including the filing of any channel sharing agreements, and the options for offering your station for buyout or move to VHF in the auction. The Public Notice also provides links to register for the auction and the web page from which the stream will originate (and at which it will be archived).
Continue Reading No Holidays for the Incentive Auction – Instructions and a Webinar for Broadcasters Who Plan to Enter the Auction and Disputes Over Repacking and LPTV

The Incentive Auction, by which the FCC is to pay TV stations to surrender their spectrum and then resell that spectrum to wireless carriers, is to begin on March 29, 2016 (see our article here which broke that news). At the end of last month, my law partner Jonathan Cohen and I presented a webinar to members of 11 state broadcast associations on the auction process, as clarified by the FCC last month in its Incentive Auction Bidding Procedures Public Notice (here). The slides from our state association presentation are available here. These slides set out the background of the proceeding, the process that broadcasters will go through to participate in the auction, an outline of the issues that come up in channel sharing agreements, the post-auction repacking of the TV spectrum into the fewer channels that will remain dedicated to TV use, and the deadlines for stations to either end their service or implement any facility changes ordered as part of the repacking.

Even more light was shed on the process yesterday, in remarks made by FCC Chair Tom Wheeler at the CTIA convention in Las Vegas. In his remarks, he reiterated the intention of the FCC to begin the auction next March. He also indicated that more specific advice about auction procedures would be coming by a subsequent FCC Applications Procedures public notice in October. Chairman Wheeler said that broadcasters will be indicating their intent to participate in the auction around Thanksgiving (by filing initial auction applications), and wireless companies will be filing their initial applications around the first of the year indicating their intent to participate in the second phase of the auction to buy up the spectrum surrendered by broadcasters. Note that these dates are all very general, so you’ll need to watch as specific guidance is provided by the FCC. Given that the FCC has said that broadcasters will be given 60 days of advance notice of the amount that they will be offered to surrender their spectrum before being required to file their initial application, if the Applications Procedures public notice is the document where the opening bids are provided, the Thanksgiving date, for instance, may well actually be sometime in December.
Continue Reading TV Incentive Auction Timing and Procedures Become Clearer – A Presentation on the Process, and More on Upcoming Important Dates

The FCC just took another step toward the TV incentive auction, and set one of the first of what will no doubt be many deadlines for stations to meet as part of the process. The FCC released a list of all stations that they find to be eligible to participate in the incentive auction. These are also the stations that will be protected in the post-auction repacking of the television spectrum if their licenses are not surrendered as part of the auction process.  The Commission also released a public notice explaining the next steps in the process and setting the July 9 filing deadline. The public notice sets out a process for any licensee that believes that its station was incorrectly left off the list of eligible stations to request that its station be included – so all station owners should carefully review the list now.

The Public Notice asks licensees to certify on a new FCC form, the “Pre-Auction Technical Certification Form,” FCC Form 2100 Schedule 381, that the information in the FCC’s technical databases regarding their station is accurate or, if it is not, to file corrections and explanations as to why the information is wrong. This new form will be filed in the FCC’s new LMS electronic filing system, and is due from all TV stations eligible to participate in the auction by July 9.  In addition, each station needs to provide information about the specifics of the facilities with which they operate – including specifics on their transmitter, antenna and tower.  This information will be used by the FCC to evaluate how to repack stations, taking into account their coverage and the costs associated with replacing the station’s equipment after the repacking.
Continue Reading Incentive Auction Next Step – FCC Identifies Auction-Eligible Stations and Requires All TV Stations to File Information on Technical Facilities by July 9

June brings some standard obligations for broadcasters in a number of states with anniversaries of their license renewal filing, plus the return of an obligation that we have not seen in 4 years- the obligations of radio stations in certain states to file an FCC Form 397 Mid-Term EEO Report. In addition to these routine regulatory deadlines, comment dates on certain FCC proceedings, a new CALM Act deadline, and some decisions for which broadcasters should be watching are among the regulatory actions that we can expect this coming month.

First, let’s look at the standard recurring obligations. By June 1, Annual EEO Public Inspection File Reports need to be placed in the public inspection files (including the online files of TV stations) of stations that are part of a station employment unit with five or more full-time (30 hours per week) employees that are licensed to communities in these states: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.  As we wrote in more detail yesterday, June 1 also brings the obligation of radio stations that are part of employment units with 11 or more full-time employees, and are located in Maryland, DC, Virginia or West Virginia to file their Form 397, EEO Mid-Term Report. Every other month for the next four years we will see a similar obligation arise for a group of radio or TV stations in states that have celebrated the 4th anniversary of the filing of their license renewal applications.
Continue Reading June Regulatory Dates for Broadcasters – EEO Public File Reports and Form 397, CALM Act Compliance Obligations, Incentive Auction Actions, Comments on Reg Fees and LPFM Rules, and More

The FCC continues to take its show on the road, announcing incentive auction seminars for TV broadcasters in several new cities. At these seminars, FCC officials meet with TV broadcasters in a general meeting to outline the mechanics of the proposed incentive auction to reclaim a portion of the TV band to be resold to wireless users for wireless broadband purposes, and the subsequent “repacking” when remaining TV stations will be assigned channels on which to operate in a smaller TV band. The new seminars are to be held at the following locations:

March 30, 2015: Cincinnati, OH

March 31, 2015: Columbus, OH

April 1, 2015: Cleveland, OH

April 7, 2015: Louisville, KY

April 8, 2015: Indianapolis, IN

April 14, 2015: Las Vegas, NV (in conjunction with the NAB Show)

TV broadcasters should contact the FCC to make reservations to attend. At the same time, broadcasters can schedule a private meeting with the FCC officials to talk about the likely opening bids to be offered to stations to surrender their frequencies and other details specific to the situation faced by their stations.
Continue Reading FCC Announces New Locations for TV Incentive Auction Seminars and Private Meetings

As we accelerate toward next year’s planned TV incentive auction, it seems like there is news almost every day of interest to television broadcasters who may be affected by the FCC’s efforts to clear TV spectrum so that it can be repurposed for wireless broadband use and sold to wireless companies and the subsequent repacking of remaining TV stations into a smaller TV band. Some of the broadcasters most directly affected by the auction and repacking will be LPTV stations who, thus far, have been promised no compensation should their operations be displaced by the repacking of the TV band, and offered no promises that they will have channels on which they can operate after the auction. The issues for LPTV stations, and the FCC’s proposals to deal with them, were to be addressed at a webinar on Tuesday, but the session was cancelled when the Federal government shut down because of snow in the DC area. The FCC yesterday announced that the webinar has been rescheduled for next Tuesday, February 24 – details in the Public Notice here. We wrote about the FCC’s rulemaking looking at what to do with LPTV stations after the auction here.

One of the big questions that many broadcasters have asked since the FCC rolled out the recent Greenhill Report (see our article here), setting out expected opening prices that will be offered to TV stations to surrender their TV channel, was how many stations could actually expect to be bought out in any market. The NAB released a study yesterday, suggesting that in some markets, it is very likely that the FCC will not need to buy out any stations, whether the auction tries to clear 120 MHz (20 TV channels, the maximum that the FCC has looked at clearing) or only 84 MHz (which some have thought was a more realistic goal). On the other hand, in several large markets and in markets in congested spectrum areas near some of those large markets, the FCC may need to get more than half of the stations in those markets to give up their licenses. The NAB computations are taken from FCC data, and the NAB provides many disclaimers that this information may change as auction plans change over time as different assumptions are made, and also are very dependent on the number of participants in adjoining markets. But the study is nevertheless one that gives some broadcasters an idea of how likely it is for them to really need to be an auction participant. See the NAB explanation of their procedures here, and the complete market-by-market chart of likely TV clearing needs here.
Continue Reading More Incentive Auction News – LPTV Webinar Postponed; NAB Study Looks At How Many Stations Per Market Will Need to Surrender Licenses for Successful Auction; More Auction Seminars Scheduled

The FCC adopted proposed auction procedures for its incentive auction at its meeting on Friday, and thus far has released a Fact Sheet on these procedures by which it plans to buy back spectrum from broadcasters and resell it to wireless companies for wireless broadband uses.  The tentative procedures, along with the recent “Greenhill Report” setting possible prices to be paid to television stations who are willing to surrender their channels for the FCC to resell to wireless companies (see our summary here), are setting the stage for a series of meetings with broadcasters to attempt to convince enough to participate in the auction to satisfy the FCC’s goals for the auction – goals that also became a bit clearer from Friday’s releases.  Further information on the auction procedures is expected soon in a more detailed Public Notice fleshing out the proposals outlined in the Fact Sheet so that comments can be filed by the end of January. 

The fact sheet is not the detailed notice of auction procedures that some broadcasters may be familiar with from participating in past broadcast auctions – that will apparently come soon in the Public Notice that it summarizes.  But it does provide an outline of proposed general principles that will be applied to the incentive auction.  Initially, it proposes that the FCC would set opening prices for each station – prices at which the FCC would offer to pay the licensee to give up its spectrum.  The prices would be set based on an analysis of two factors: (1) the impact that the station would have on the repacking of the broadcast spectrum after the auction because of the interference that it causes and (2) the population covered by the station.  If a station agrees to move to the VHF band instead of surrendering its licenses altogether, it would receive somewhere between a third and a half of the opening price if it accepts a high VHF channel, and between 67 and 80% of the opening price for a low VHF channel.  According to the fact sheet, the prices that will initially be offered to the broadcaster will be initially set high, and will be lowered as the auction progresses until the prices reach a point where there are just enough broadcasters willing to take the lowered offer to clear the amount of spectrum that the FCC needs to fill the demands of the wireless users.  There has also been introduced the concept of a “dynamic reserve price,” setting a limit on how much the FCC is willing to pay some stations for giving up their spectrum, which could conceivably result in the amount that they are offered being lowered even when it is known that they cannot be repacked into the amount of the spectrum that remains available in the smaller post-auction TV band.   How much spectrum must be cleared for the auction to go forward?
Continue Reading Putting Details to the Incentive Auction – FCC Asks for Comments on Fact Sheet on Auction Structure, and Prepares for Meetings with Broadcasters