A wave of litigation over incentive auction results is unlikely, attorneys and analysts told us, despite two recent lawsuits connected to the lack of auction payout for a San Mateo, California, noncommercial station. Based on the complaints from the dueling suits filed in San Mateo Superior Court between the San Mateo Community College District and its auction consultant LocusPoint Networks, KCSM-TV’s failure to net an FCC auction payout stems from a mix-up while entering a bid, a pattern unlikely to be repeated elsewhere, said Fletcher Heald broadcast attorney Harry Cole.
Having to pay for the two employees required by the main studio rule is the biggest reason broadcasters want it eliminated, their lawyers told us. Paying for the people to staff the required main studio is “a fixed cost” that takes a big chunk out of the budget of smaller businesses, said David Honig, senior adviser to the Multicultural Media, Telecom and Internet Council. MMTC supported the rule’s removal, as is proposed in a draft NPRM. “It’s a real burden on small business,” said Fletcher Heald broadcast attorney Davina Sashkin.
NAB’s petition for reconsideration of the FCC repacking plan is deficient procedurally and on the merits, rehashes old arguments, and would lead to unnecessary delay, said T-Mobile, the Competitive Carriers Association and CTIA in opposition filings posted in docket 16-306 Thursday (see 1703170055). “The relief NAB seeks is not warranted on the merits and, if granted, will frustrate broadband investment and deployment,” said T-Mobile. All three entities attacked NAB’s assertion the FCC didn’t devote enough effort to creating the post-incentive auction transition plan. The broadcast association “can hardly claim that the FCC’s final rulemaking -- the result of which is the product of numerous years of advocacy by a variety of stakeholders -- can reasonably be deemed an ‘afterthought,’ and this assertion should be promptly rejected,” CCA said. Calling the repacking an afterthought “belies the thousands of pages of evidence on the record that Media Bureau carefully analyzed before releasing multiple detailed documents outlining the repacking process,” T-Mobile said. NAB’s claim wireless carriers aren’t truly interested in 600 MHz spectrum “is squarely contradicted by the fact that the auction generated the second most revenue ever for any Commission-held auction,” CTIA said. The wireless entities also condemned the petition as invalid for being late, “more than 900 days past the deadline for reconsideration,” T-Mobile said. NAB’s requested changes to the repacking plan are “based on arguments that either generally overstate the effect on broadcaster relocation or would unnecessarily delay the transition,” CTIA said. The broadcast association “already has tried, and failed, to challenge the Commission’s final rulemaking before both the FCC and the court,” CCA said. “NAB’s petition is an impermissible collateral attack on the 39-month repacking timeline disguised as a petition for reconsideration of the Media Bureau’s Post-Incentive Auction Transition Scheduling Plan,” T-Mobile said.
A draft item that would review nearly all of the FCC’s media regulations is hugely broad and likely will loop in controversial topics such as retransmission consent alongside narrower procedural rules, broadcast and pay-TV attorneys told us Thursday, after the draft public notice on the review was released. The Modernization of Media Regulation PN is planned for a vote at the commission’s May 18 meeting, as is a draft NPRM on eliminating the main studio rule for TV and radio broadcasters. Though the review item excepts media ownership and accessibility rules from the review, it includes every other media rule, according to the draft PN. Media entities likely will treat the proceeding “like a wish list,” asking the FCC to do away with every rule they don’t like, said Fletcher Heald broadcast attorney Frank Jazzo. FCC Chairman Ajit Pai announced both draft items at NAB 2017 (see 1704250065). Pai also is seeking votes on an open internet NPRM (see 1704270044) and on smaller wireless, wireline and satellite items at the meeting.
LAS VEGAS -- The lack of a reliable comprehensive database of music rights is an increasing problem for radio and TV broadcasters, said speakers at two NAB Show panels Tuesday and Wednesday. With the emergence of new performance rights organizations (PROs) and the increasing prevalence of songs with fragmented licenses shared among multiple PROs, broadcasters can no longer be sure if they have the right to use the music they're broadcasting, said Charles Warfield, a longtime radio broadcaster and senior adviser for YMF Media. “You want to know the terms under which you're doing business,” Warfield said. “There's so much uncertainty and lack of transparency.”
LAS VEGAS -- The FCC is handling poorly its responsibility to police the radio spectrum, its siloed internal structure should be reorganized, and outdated regulatory burdens for broadcasters should be “junked,” said Commissioner Mike O'Rielly in a speech at the NAB Show Monday. The speech preceded a panel on whether the FCC should be dismantled and O'Rielly bashed the prior commission while heaping praise on current Chairman Ajit Pai. “It wasn’t until the Obama administration that the independence of the agency was effectively eviscerated,” O'Rielly said, saying with Pai's leadership, the case for keeping the FCC is stronger. Pai could be “the catalyst for the regulatory golden age,” O'Rielly said.
LAS VEGAS -- The FCC will vote on a proposed “comprehensive review” of its media regulations at its May 18 meeting, Chairman Ajit Pai said during his keynote Tuesday at the NAB Show. The review will include looks at rules for broadcast, cable and satellite and will be distinct from the FCC's quadrennial review of its ownership rules, Pai told reporters after his speech. Though Pai declined to provide details about the proposal, numerous broadcast attorneys told us they expect the review to focus on “regulatory underbrush,” smaller, outdated rules. “Our goal is simple: to have rules that reflect the world of 2017, not 2007, 1997, 1987, or 1977,” Pai told broadcasters.
LAS VEGAS -- The number of TV stations that chose not to sell their spectrum in the TV incentive auction demonstrates that broadcasting is the "highest and best use of spectrum," NAB President Gordon Smith said, officially opening NAB 2017 Monday. He also discussed ATSC 3.0 and chips in smartphones.
ATSC 3.0 and the post-incentive auction repacking are expected to be the dominant subjects at NAB Show 2017, attorneys, broadcasters and analysts told us. The industry convention officially was to start Saturday. The new standard and the repacking are the biggest topics in broadcasting because they ultimately could determine “where we’re going as an industry,” Sinclair Broadcast Vice President-Advanced Technology Mark Aitken said in an interview. While broadcasters are comparing notes on repacking plans and eyeing new ATSC 3.0 equipment, they’ll likely also be talking about channel sharing possibilities, and feeling out potential deals, BIA/Kelsey Chief Economist Mark Fratrik said.
Though the FCC voted 2-1 Thursday to restore the UHF discount and re-examine the rule later this year along with the national broadcast ownership cap, both Commissioner Mignon Clyburn, who dissented from the vote, and Commissioner Mike O’Rielly said in news conferences after the meeting they believe altering the national cap is the province of Congress. “Something of that significance, I would appreciate additional guidance from Congress,” said Clyburn in response to a question from Communications Daily. O’Rielly reaffirmed his view the agency doesn’t have authority to change the cap, and said he's interested to see how the matter “gets litigated out.”