NAB Blasts FCC Chairman For ‘Disingenuous’ Testimony

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Screen Shot 2016-03-23 at 7.54.14 PMBroadcasters sent up their fighter jets as part of an informational bombing mission over FCC Washington, DC headquarters “The Portals” Wednesday, claiming that agency Chairman Tom Wheeler had not provided all of the facts to Congress when discussing the time it will take broadcasters to relocate antennas, transmitters, and other equipment and reestablish broadcast operations following the second phase of the upcoming spectrum auction, set to begin on Tuesday.

In a 1,012-word blog post titled “Time to Stick to the Facts and Find the Right Answer,” NAB Associate General Counsel Patrick McFadden responded to what NAB characterized as “repeated disingenuous comments” by Wheeler that NAB initially supported a 30-month “repacking” timeframe for TV stations to relocate to another channel after the incentive auction.  

McFadden wrote, “When pressed by Congress to defend that deadline given that the FCC has not done any serious analysis of what it would actually take to conduct a nationwide repack, the chairman explained that 39 months was a reasonable timeline, because, after all, even NAB had originally suggested that 30 months would be sufficient. This answer is disingenuous, and given that it has been repeated on several occasions by Commission staff, it’s time to address and bury it once and for all.”

McFadden made it clear in his post that now more than double the original number of TV stations will likely be involved, broadcasters are even more concerned about their ability to restructure their businesses in the specified time frame. “The greatest worry with respect to the upcoming 600 MHz transition is the Commission’s current rule requiring every broadcaster to complete its involuntary relocation within only 39 months following the auction. If the FCC is serious about repacking as many as 1,300 broadcasters, anyone who has any understanding of the broadcast industry knows that it is impossible to accomplish that task in such a short period of time.”

By way of background, McFadden noted that more than three years ago, NAB submitted its initial comments in the incentive auction proceeding (then under Chairman Julius Genachowski) recommending that the FCC extend its proposed timeline for moving stations to new channels following the upcoming broadcast spectrum incentive auction. “The FCC had proposed a minuscule 18-month timeline, to which NAB responded, “[t]he 18-month construction time frame proposed in the Notice for relocating stations is unrealistically short.”[1] At the time, NAB assumed, as many did, that the Commission was considering relocating “approximately 400 to 500 stations.”[2]

Thus, NAB recommended that the FCC extend the deadline to 30 months, which should be enough time to “allow most stations to complete” the transition.[3] In addition, to stretch that 30 months as long as possible, NAB also proposed that “the forward auction should not be deemed completed until, or after, the time at which stations file their construction permit applications,”[4] which the Commission did not adopt. And finally, NAB made clear that “based on television stations’ experiences in the DTV transition, stations in certain metropolitan areas (such as New York City and Denver) and stations in border areas requiring international coordination could require substantially longer than even three years to construct new facilities.”[5] Thus, not only did NAB rely on information at the time that suggested only 400 to 500 stations would move, and seek to push back the starting point for the timetable until after construction permits were issued, we also asserted that even repacking all of 400 to 500 of stations would require more than 30 months.”

“Beyond those inconvenient details, there have been three important developments in the intervening three-plus years. First, the FCC released a set of sample repacking scenarios in the summer of 2014, suggesting that the Commission is likely to repack far more stations than NAB anticipated in our 2013 comments. Instead of moving perhaps 400 stations to new channels, the FCC’s publicly released simulations suggested that the FCC could require more than 1,300 stations to relocate. Second, once the FCC released this data, NAB commissioned a study – the first of its kind – to examine each of the challenging elements that make up a nationwide repack of many hundreds or more than 1,000 stations. Third, in May 2014, the FCC surprised everyone by adopting a “death penalty” repacking rule that would require stations unable to complete their transitions within 39 months – no matter what the reason – to go off the air. The rule did not contemplate any exceptions or extensions – a rigid and inflexible deadline that no one anticipated.

McFadden’s Blog continued, “Faced with this new information, NAB re-evaluated the timeline for the upcoming broadcaster transition. It became immediately clear that 39 months would not provide sufficient time to repack the number of stations the Commission was anticipating. As a result, NAB has asked the Commission to establish aggressive, but achievable, deadlines for repacked television stations after the auction, when more is known about many stations will move, where they are located and to which channels they will be moved.”

McFadden said the point of the repacking conversation “is not to prove who is right; rather it’s to get it right. As the FCC pivots to thinking about repacking – which is now likely less than a year away – rather than being cute about past comments, it should actually engage and wrestle with the enormously complex repacking problem ahead. Only that course will give the broadcasting and wireless industries confidence that the post-auction transition will be a success.”

The FCC had no comment on the NAB blog posting. However, FCC spokesman Charles Meisch told Inside Towers last night “Chairman Wheeler and the Incentive Auction Task Force have said publicly that the Commission is focused on the transition, has made considerable headway on the relocation reimbursement process, and continues to meet with industry stakeholders to develop a schedule for repacking. They’ve also noted that we’ve had several studies and recommendations filed in the record that we are reviewing, and we’ve invited stakeholders – including broadcasters and NAB – to provide us with their best ideas and information to help us plan a smooth and efficient post-auction transition process.”

The spokesman also pointed out that Chairman Wheeler “said these same things on Capitol Hill yesterday.”

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