In September, the FCC issued an order regarding its ongoing 700 mHz “band-clearing” proceedings in which it said television stations now operating on Channels 59-69 can move to their digital channels and operate in the analog mode until the latter of December 31, 2005, or the date in which there is 70 percent penetration of DTV receivers in their markets.
Previously, the Commission had encouraged band clearing by Channel 59-69 licensees, but said that any station moving its DTV channel as part of a band-clearing plan would have to convert to DTV and abandon analog operations altogether by the May 1, 2002, DTV operations deadline.
Various wireless industry groups have been pushing the FCC to adopt procedures to encourage clearing the 700 mHz band so it will be available for public safety and advanced wireless services. The FCC wants to clear the band so it can proceed with a planned June 19th auction of 700 mHz spectrum, which the government hopes will bring in billions of dollars. But with broadcasters occupying the band for the indefinite future, the FCC may be selling “green bananas” and will not likely receive the huge sums it expects.
The National Association of Broadcasters and the Association of Maximum Service Telecasters have been participating in these proceedings in order to ensure that existing TV stations do not find their service areas compromised by the new short-spaced analog facilities. The FCC allows a DTV station to cause interference (calculated according to the Longley-Rice method) to up to two percent (2%) of the Grade B service area of an incumbent analog station. However, the analog-to-analog interference rules are based on the minimum mileage spacings contained in Section 73.610 of the FCC’s rules. An industry study shows that of the 82 stations in the Channel 59-69 band which have DTV channels in the core (channels 2-51), only two could meet the FCC’s analog spacing standards using their DTV channels. This is not surprising. If DTV-allotted channels were fully spaced under the analog rules they would have been added to the Table of Allotments as analog stations years ago.
This means the FCC’s September initiative to further encourage Channel 59-69 band clearing may be a complete flop. Such a failure, as noted, would have disastrous consequences for the FCC’s efforts to get top dollar at its upcoming 700 mHz auction. Potential bidders for the frequencies will have no idea when they will be vacant and available for wireless use. Unless the FCC agrees in the context of individual waiver requests or through further action in its band-clearing rulemaking proceeding to relax its analog-to-analog interference standards, there will be very little band clearing until the nation has converted to DTV. With most DTV receivers still on the shelves at Circuit City and Best Buy, such a conversion is years away.
Individual applications on file propose, on a waiver basis, slightly higher interference than the rules permit. A Kentucky station, for instance, has proposed to abandon Channel 65 and move to Channel 7, its digital allotment, where it would operate in the analog mode until there is 70 percent DTV penetration in its market.
Use of Channel 7 on an analog basis, however, would create a short spacing to a co-channel analog station. Thus, a rule waiver is necessary. The waiver request shows that the interference caused to the co-channel station’s Grade B is 1.9 percent, which is less than the 2.0 percent already authorized in the Channel 65 station’s Channel 7 DTV construction permit. The request also shows none of the interference would occur within the market area served by the co-channel incumbent.
The Kentucky station is not being paid by wireless interests to abandon Channel 65. Its only incentive, the application reports, is to improve service and revenues so it can manage the ultimate, and expensive, transition to DTV. Paxson Communications Corporation, which has more Channel 59-69 licenses than anyone else, is making similar interference rule waiver arguments in individual applications, but it hopes to receive payments from wireless interests in return for clearing off the 700 mHz band.
These applications and waiver requests are expected to generate considerable controversy because they would permit more interference to incumbent broadcasters than the rules now permit, and on an indefinite basis since no one knows whether the DTV conversion will occur in this decade or later. Ultimately, the FCC may need to take the rulemaking route to determine how much protection should be given to the incumbents from the temporary analog operations now being proposed. Congress could weigh in on these issues given the billions of dollars that the Treasury would lose if the 700 mHz auctions are unsuccessful.
NCE-TV’s allowed to profit from DTV
NCE stations are prohibited by the Communications Act (and the FCC’s rules) from broadcasting commercial announcements or from making their facilities “available to any person for the broadcasting of any advertisement.” But they are nevertheless permitted to provide facilities and services in exchange for remuneration “as long as those uses do not interfere with the stations’ provision of public telecommunications services.”
A recent DTV ruling reflects the FCC’s effort to reconcile these seemingly conflicting policies. Under the ruling, NCE stations will be able to make money from their digital operations as long as the NCE licensee devotes “a substantial majority” of its weekly DTV transmissions to noncommercial services. The services the FCC envisions include computer software distribution, data transmissions, paging services and subscription video, among others. But such services must be provided on a non-broadcast basis, and they cannot be allowed to interfere with the provision of noncommercial educational broadcast service on a “substantial majority” of its weekly digital bitstream.
The deadline for commencement of DTV operations by all commercial stations is May 1, 2002. For noncommercial educational status, the deadline is May 1, 2003.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
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