End of free spectrum?

There have always been “them” and “us” users of the RF spectrum. “Them” are usually government agencies that work with rulebooks the FCC doesn't seem to want to know about and has absolutely no control over. If you've ever been near a White House communications crew, for example, you will find that whatever spectrum you think you have been allocated has been commandeered for other uses.

The “us” users of the spectrum are the guys with licenses and the whole of 47 C.F.R. to obey, with the FCC at the ready to raise hell at any slipup. The inability to control piracy is more than matched by the fervor that sometimes accompanies a fine for being outside of your licensed power range. But there has, at least, never been a time when the whole idea of free broadcasting might be in doubt — until now.

The Spectrum Policy Task Force — with four working groups — recently reported its findings and recommendations to the FCC. No report is official FCC policy until/unless it passes through the commentary, reply and any rule and order phases, but a lot can be gained by the tenor of these particular reports. Also, the professionals who put the reports together are all employed by, or directly associated with, the Commission.

We all know that terrestrial broadcasting is really not free. Commercial broadcasting is funded by advertisers who build their on-air costs into the prices of the products they sell us. Public, college and religious broadcasting are nearly all paid for by begging money from us on regular occasions. But broadcasters have, at least, not had to pay for the spectrum they are using.

“The Commission has traditionally allocated spectrum specifically for broadcast use, based on statutory public interest considerations and the free over-the-air nature of broadcast services.” In that sentence “public interest considerations” is Commission-speak mostly for “reasonable access” to candidates for federal elective office, but that word “traditionally” put in there really made my brain light up. It is nearly always followed by a “but” somewhere. And it was.

Reporting that some commenters (sic) favored continued access to broadcasters for spectrum on a “command-and-control basis,” the task force also noted that “other commenters (sic) contend that the continued dedication of spectrum for broadcasters, and particularly for commercial broadcasting, is increasingly anachronistic as the public gains access to alternative sources of programming and information from cable television, satellite services, the Internet and other outlets.” Phew!

The task force quickly backs down from that possible viewpoint “for the time being” but later notes that “the Commission should periodically reevaluate its broadcast spectrum policies…in particular such reevaluation should consider the extent to which the public interest benefits provided by dedication of spectrum under a command-and-control regime can be provided through the application of more flexible, market-oriented spectrum policies.” In other words, folks, expect to be paying for your spectrum in the future if you are a commercial broadcaster.

There is an almost implicit threat a little later in the report that commercial terrestrial broadcasting may not be needed at all if there is sufficient multiple source access to the “types of information and programming that commercial broadcasters provide.” That would certainly make the must-carry rules more straightforward!

Does all this apply to radio and TV? The task force doesn't mention radio specifically at all in this section of its report, except in saying that “it is likely that there will be a continued need to set aside some spectrum for non-market-based broadcast uses, such as non-commercial and educational broadcasting.”

Don't call your Congressman yet; this would all have to go through FCC procedures when (did I say “when”? Sorry. I should have said “if,” right?) it comes to pass, and any decisions will be the hands of the government, which may of course feel that “public interest considerations” are still worth a free chunk of bandwidth rather than the money it could rake in. After all, we know very well that the FCC is just there to administer the laws passed by Congress and has never had any political agenda. But broadcasters need to know that the mood out there in the “them” camp is set to be hostile to the “us” camp. The spectrum simply isn't a big enough sandbox for you all to play in together.

Paul McGoldrick is an industry consultant based on the West Coast.