FCC EASES VOLUNTARY CLEARING RULES FOR CH. 60-69 BROADCASTERS

While all 5 commissioners approved item, which was adopted just before Comr. Gloria Tristani’s departure and responded to several petitions for reconsideration, all but Chmn. Powell issued separate statements. In initial order released in Jan., Tristani dissented in part over rebuttable presumption that private, band- clearing arrangements were in public interest, saying such deals should get case-by-case review. She lauded additional flexibility in new order for those who gave up 2nd channel allotment and would have more time to continue operations in remaining analog channel.

Tristani called that “an improvement over the status quo that left viewers of these stations without broadcast service.” Without flexibility of more time to build out DTV facilities, she had argued that viewers would experience temporary loss of analog service. Of change in Sept. 7 order, Tristani said: “I note, however, that this comes only at the expense of the Commission’s stated goal of furthering the DTV transition. If the majority demands across-the-board clearing policies rather than case-by- case review, I believe that continued access to free over-the-air broadcasting must take precedence over facilitating the transition to DTV.”

Earlier 700 MHz order said that if broadcaster were left with single analog allotment as result of voluntary band-clearing pact, it still must meet DTV construction deadlines that start in 2002. SCA asked in March that broadcasters that fell into that category be able to continue analog operations beyond construction deadline and convert at any time during DTV transition. SCA represents nearly 70% of 99 analog TV stations now operating at Ch. 59-69. FCC said order meant that such broadcasters could continue in analog mode and convert to DTV at any time up until Dec. 31, 2005, and seek further extension of DTV construction deadline if less than 70% of TV households in its market were capable of receiving DTV signal. Order also provided limited relief from DTV policies on interference protection of nonreplicated service areas and created 90-day processing deadline for modification applications filed in conjunction with band-clearing arrangements. Order said: “We find that the DTV conversion process as a whole will not be significantly retarded by affording this limited group of broadcasters the flexibility to complete their digital conversion at a later date.”

Overall, order affirmed item released by FCC in Jan. that extended general rebuttable presumption previously adopted in favor of agreements between new 700 MHz wireless licensees and incumbent broadcasters. Presumption was expanded to include 3-way agreements that would let incumbents reach agreements with wireless licensees to relocate to lower band TV channels, which in turn would be cleared voluntarily by lower band TV incumbents.

Paxson, which has 17 stations in upper 700 MHz band, praised FCC decision. “In all cases, the early migration of our analog station operations away from channels 59 through 69 would be coordinated with and subject to receiving compensation from bidders in the 700 MHz spectrum auction,” Paxson Chmn. Bud Paxson said. Company had asked that stations have right to operate in analog on their in-core TV assignments, whether analog or digital, subject only to FCC interference rules. Paxson asked for ability of stations to flash-cut to digital operations on their in-core channels and abandon their digital or analog channels in Ch. 59-69 before end of DTV transition. He said that to ease “united negotiating strategy” with potential bidders in 700 MHz auction, he had retained services of investment bankers Allen & Co. and telecom consultant Spectrum Exchange Group. New arrangement will allow all Ch. 59-69 analog or digital broadcasters to join Spectrum Clearing Alliance, with Allen & Co. having exclusive right to negotiate with bidders in 700 MHz auction for compensation for broadcasters. “Preliminarily, we have support from 65 to 70% of the stations and now we need to officially get them to join” alliance, Paxson said.

In separate statement, Comr. Abernathy praised extent to which order “provides for regulatory symmetry between single- channel broadcasters who were not eligible for a second channel and those left with a single channel as a result of a voluntary band-clearing arrangement. She said order gave those stations same 31-month replication period after beginning to transmit in digital that FCC provided to all broadcasters in DTV biennial review order. “Finally the Commission assures licensees that it will endeavor to provide prompt service to these licensees by processing routine spectrum clearing applications within 90 days of receipt,” she said. Abernathy said order didn’t “abdicate” FCC responsibility to analyze impact of each transaction on public interest.

In his separate statement, Comr. Copps said he agreed with result of order but was “troubled by the potential disenfranchisement of American television viewers that could occur if we accelerate the mandatory conversion from analog to digital.” Strict adherence to single channel stations of 2002 DTV construction date “would have been worse than our alteration of their final conversion responsibilities,” he wrote. “Were it not for this unique circumstance, I would have been troubled by potentially accelerating the mandatory conversion from analog to digital.” In his concurring statement, Comr. Martin stressed “that in our quest to move incumbent broadcasters off this band, we must not lose sight of the value of free, over-the-air television services.” He said he agreed that extending time in which single channel broadcasters could continue analog operations would help stave off “premature disruption” of those services. “I am concerned, however, by the potential ramifications of the new conversion schedule for single-channel stations, which seems to require a conversion when as many as 30% of viewers in a market still may not have access to a digital signal,” he wrote. “I am troubled by the possibility that such a requirement may leave too many analog viewers behind.”