• FCC Initiates Proceeding To Reallocate TV Broadcast Spectrum
  • February 21, 2011
  • Law Firm: Lerman Senter PLLC - Washington Office
  • Last November, the FCC released a Notice of Proposed Rulemaking (“NPRM”) on the reallocation of up to 120 MHz of TV broadcast spectrum for use in the provision of wireless broadband services, which the FCC expects to make available through incentive auctions.  The Federal Register published the NPRM on February 1, thereby setting March 18, 2011 as the deadline to file comments, and April 18, 2011 as the deadline to file reply comments, in response to the NPRM.  As the NPRM is the first in a series of proceedings whereby the FCC will seek to recover television broadcast spectrum, its outcome will likely frame the debate in future proceedings addressing the repacking of television stations into smaller portions of the TV broadcast bands and the conduct of incentive auctions.  We urge you to review these proposals carefully and to make your views known to the FCC.

    The NPRM does not address the actual reassignment of spectrum via competitive bidding, or the sharing of potential auction proceeds with broadcasters, as these steps would require specific Congressional authorization.  Instead, the current NPRM is a table-setting step for such future action in which the FCC requests comment in three areas:  (i) adding new “co-primary” allocations for fixed and mobile services in the current TV broadcast bands; (ii) a proposed framework for permitting two or more television stations to share a single 6 MHz channel; and (iii) approaches for improving reception of television service in the VHF band.  Although the NPRM notes the need to repack the broadcast bands if spectrum is repurposed for wireless use, which it euphemistically refers to as “Allotment Optimization,” it states only that it anticipates that “the fully developed model will be complete and validated in the near future.”

    Spectrum Reallocation.  The FCC proposes to add allocations for fixed and mobile services on each channel within the existing TV broadcast band (Channels 2 through 51, excluding Channel 37) that would be co-primary with DTV broadcast services.  According to the FCC, this approach would give it the maximum flexibility to allocate spectrum for flexible use by fixed and mobile wireless communications services, including mobile broadband.

    Channel Sharing.  To facilitate the recovery of the TV broadcast spectrum, the FCC proposes to allow two or more television stations to voluntarily share a single 6 MHz channel.  The FCC asserts that television stations that share channels “could use the cost savings and additional income from such arrangements to strengthen their financial condition and to develop new and enhanced programming.”  In addition, the FCC believes that channel sharing arrangements could provide small- and minority-owned stations the opportunity to enhance or preserve their local programming offerings.

    According to the FCC, two sharing stations could each broadcast a high definition (“HD”) video stream over a single 6 MHz channel, while three or more stations broadcasting in standard definition could share a single channel.  The FCC did not propose to evenly divide a 6 MHz channel among sharing stations, noting instead that stations could negotiate more dynamic arrangements among themselves that would permit them to exchange channel capacity when needed.  The FCC also proposes that each station sharing a channel would remain separately subject to all of the Commission’s rules and programming obligations (e.g., children’s programming, political broadcasting, etc.).

    The FCC acknowledged the concerns that a single channel would not provide sufficient spectrum for two or more stations to offer simultaneously the highest quality HD programming, and that channel sharing could adversely impact or even eliminate current and future DTV services, such as the expansion of HD programming and deployment of mobile television service.  The FCC also proposes to limit channel sharing to stations with existing applications, construction permits or licenses as of the date the NPRM was adopted.  In order to implement its channel sharing proposal, the FCC seeks comments on the following issues:

    • Channel Sharing by Commercial and Noncommercial Educational (“NCE”) Stations.  The FCC seeks comments on whether commercial and non-commercial stations should be permitted to share a single channel.  It also seeks comment on how a reserved channel could be partitioned or designated to preserve an NCE station’s status while allowing the reserved channel to be shared with a commercial station.

    • Service Losses.  Stations sharing a single channel must operate from a single transmission facility, which will necessitate changes to one or more of the stations’ existing technical facilities.  Such changes could result in a loss of over-the-air television service to some viewers, and gains in television service to others.  Although the FCC has historically found that loss of service was contrary to the public interest, it now requests comments on the types of mitigating circumstances it should consider in analyzing shared channel arrangements, such as the percentage of local cable penetration or satellite use in the loss area.  The FCC also inquires whether sharing stations should be permitted to offset service losses by offering to deploy on-channel Distributed Transmission Systems or other technical measures to restore service to loss areas.

    • Preservation of Must Carry Rights.  The FCC indicated that it intends to adopt a channel sharing framework that would not affect the carriage rights of any broadcaster, and anticipates that each station sharing a single channel would continue to have only one primary stream of programming regardless of the number of stations sharing a single channel.  However, required changes in channel sharing stations’ technical facilities could affect a commercial station’s ability to deliver a “good quality signal” to a cable or satellite provider, and the determination of whether a noncommercial station’s contour encompasses a cable system’s headend.  Although the FCC anticipates that stations will make any necessary changes to the shared transmission system to ensure continued carriage, it seeks comments on these issues.  The Commission specifically seeks comment on whether the potential sharing of channels by commercial and NCE stations could affect either station’s statutory eligibility for mandatory carriage.

    Improving Reception of VHF Television Service.  The FCC has concluded that UHF spectrum is highly desirable for flexible use.  Recognizing that television stations “have had some difficulty in ensuring consistent reception of VHF signals,” the NPRM explores ways to make that spectrum more attractive for television broadcasters as an inducement for them to vacate the UHF spectrum, including reductions in band noise, power increases, and establishing indoor antenna standards.

    • Reducing Band Noise.  While the Commission recognizes that band noise, primarily from consumer electronics equipment, is a factor in VHF reception issues, it concludes that it “would not be fruitful” to attempt noise reduction in the VHF bands due to the already widespread deployment of existing radio frequency emitters.  The FCC nonetheless seeks comment on whether there might be effective ways to reduce the impact of VHF band noise.

    • Power Increases.  The FCC recognizes that independent engineering studies have indicated that power increases that could be implemented realistically would only marginally improve VHF signal reception, while more substantial power increases that could significantly improve signal reception would not be practical.  Nevertheless, because power increases could provide “some level” of improvement in reception, the FCC has proposed to raise the maximum effective radiated power (“ERP”) in Zone 1 to 40 kW for low-VHF stations and to 120 kW for high-VHF stations with an antenna height above average terrain of 305 meters or less.  The maximum ERP would be lower for stations with antenna heights above 305 meters.  The benefits of the proposed VHF ERP increases may be limited as stations in Zone 1 (which includes much of the Northeastern United States which is already crowded with stations) would still be required to comply with existing interference protection standards and the requirement to coordinate with Canada or Mexico if necessary.  The FCC has not proposed to raise the maximum power limits for VHF stations in Zones II and III.

    • Indoor Antenna Standards.  According to the FCC, VHF reception difficulties are most common among consumers who use indoor antennas.  The FCC believes that it has the authority to set standards to ensure that the performance of indoor antennas is adequate to allow reception of VHF channels, and seeks comments on the scope of this authority and whether it should require that all indoor antennas meet the ANSI/CEA-2032-A “Indoor TV Receiving Antenna Performance Standard.”