The Media Bureau v. The National Broadband PlanDecember 21, 2009
At the December 16 Commission meeting, the folks working on the National Broadband Plan made a further presentation/sneak preview/trial balloon on what to expect when they publish the plan on February 17 (God willin' and the crick don' rise). While we at Public Knowledge criticized the plan for failing to have the courage of its convictions and the evidence by taking a pass (so far at least) on promoting structural separation, that does not make the plan worthless. The National Broadband Plan folks have identified some key ways to move the broadband ball forward, even if they seem intent on settling for a field goal when they could run it all the way to the end zone.
Meanwhile, however, the Media Bureau seems set on undermining two of the National Broadband Plan's biggest initiatives — reallocation (or re-examination, if you prefer) of broadcast spectrum and reform of the set top box rule. Not through deliberate opposition. Heck, Bill Lake (head of the Media Bureau) has twice at the FCC public meetings expressed his enthusiasm for set top box reform. No, this comes from the creation of “facts on the ground” and the inability (or refusal) of anyone over at the FCC to connect the dots between the world the NBP (and everyone else apparently) want to create and what folks in the Media Bureau are actually doing now, or about to do.
Our press release touched on the problem with set top boxes. The Bureau continues to welcome all waiver applicants and seems poised to grant a number of industry-wide waivers, such as the MPAA's SOC waiver. Again, the more the Bureau creates special little islands and enclaves of unique rules and “facts on the ground,” the harder it becomes to rationalize the system to create the sort of unified rule that promotes competition and innovation as envisioned by the National Broadband Plan team.
The bigger problem lies on the broadcast side. The Media Bureau open a opened a filing window for Low-Power TV and DTV translators back in August. The window remains limited to rural applicants until January 25, 2010. I will note that when the FCC opened a window for FM translators in 2003, it triggered a massive wave of speculative applications, with thousands of applications filed by a single organization. (You can read more details here and the impact on the LPFM service and aftermath here.) While a number of folks filed translator applications in good faith, a handful filed lots of applications either to create what amounted to a chain of low-power radio stations or simply to sell the permits for construction once approved.
So I don't find it unreasonable to believe that, given the likelihood that the FCC will try to clear at least some portion of the broadcast bands for wireless use, that we will see a fair number of speculative applications for LPTV and translators. The FCC has no limit on the number of applications anyone can file or the number of LPTV or translators anyone can hold. If an application conflicts with another, triggering an auction, the speculator can withdraw the application and avoid going to auction.
Also of interest, based on the public notice, the window does not appear to have a closing date. It gets cut off at the end of each day, so that all applications in a given day are considered filed at the same time. But from day to day, anyone can apply and the non-conflicting applications will apparently be granted on a rolling basis until all available slots are gone or the FCC announces the window is closing. So as the FCC firms up its plans for what to do about the broadcast spectrum, speculators can shape their applications and start applying like mad to get consideration. While it costs a couple of grand to prepare applications, and a $700 filing fee, that is chicken feed compared to what the wireless industry might ultimately pay to clear the band. After all, Tom Hazlett just told the FCC the broadcast spectrum is worth over $100 billion and they should let wireless providers buy out broadcasters. What speculator wouldn't spend a few grand to buy a ticket for that kind of lottery?
So the Media Bureau, which is already taking rural applications for LPTV stations, will proceed to open the floodgates for the much more desirable urban markets January 25, 2010, just a few weeks before the release of the National Broadband Plan. I'm doubtful anyone at the National Broadband Plan has talked to the Media Bureau about the window or that the Media Bureau has gone and briefed the NBP folks on how its ongoing little exercise could seriously screw up (or at least seriously complicate) the plan to find new spectrum for wireless.
In defense of the Media Bureau, while they have the authority to close the window and stop taking applications at any time, it is always more complicated than that. A lot of people need this window for legitimate reasons. For one thing, while all the full power broadcasters switched from analog to digital on June 12, 2009, LPTVs were not required. The window provides existing analog LPTV providers with a means to apply for a companion digital station so they can migrate to digital. It also gives full-power and LPTV broadcasters whose signal reach was seriously impacted by the conversion the chance to apply for needed translators to extend their signal reach in a legitimate manner. And, while most folks — particularly in well provisioned urban areas — believe broadcasting an obsolete technology, a heck of a lot of people use it. LPTV is a major source of non-English broadcast programming, particularly Spanish language programming. With rural Hispanic populations growing, real demand for Spanish language programming has increased, creating opportunities for genuine LPTV applicants wanting to use the service as intended, not for speculation on the hope of a wireless pay off.
Finally, while the FCC may ultimately decide to try to reclaim the spectrum, it continues to insist that all options remain on the table. It is difficult to tell all the folks who actually could use new LPTV or translator stations (or major modifications of existing stations) to hold off while the FCC spends some indefinite period of time weighing possible options.
So if the folks at the FCC actually weighed these things in the balance and settled on a policy, I would understand if they opted to keep the window open. But I see no indication that anyone is doing any serious consideration here. I am told by friends who have gone in to talk to the relevant people in the Media Bureau that the attitude is “well, we're going to keep doing our job of taking applications, and whatever that does to the National Broadband Plan is not my problem.” And, technically, they are right. Unless they get orders from someone higher up, staff do their job — whether it is processing requests for waivers that screw up the cable set top box initiatives or processing applications for LPTV licenses that screw up the FCC's spectrum initiatives.
Which is why it would make sense for some of the responsible folks in the Chairman's office to exercise some adult supervision here. The Chairman has the responsibility to balance among the competing goals of the agency when the various delegated processes start to interfere with each other. A wise Chairman consults the other Commissioners as well, of course, but management of the Bureaus is squarely in the Chairman's list of responsibilities. As part of our Petition to revise the cable set-top box rules, we've asked the FCC to declare a moratorium on granting waivers of the existing rules so that the current situation doesn't get even more screwed up. The FCC should grant the request, and impose a similar moratorium on applications for new LPTV stations (but not for major modifications or for companion channels for LPTVs converting to digital). This would strike a reasonable compromise between the interests of parties trying to play by the existing rules, while simultaneously avoiding the creation of “facts on the ground” that would make it difficult or impossible for the FCC to carry out its recommendations in the National Broadband Plan.
About Harold Feld
Harold Feld is Public Knowledge’s Senior Vice President and author of “The Case for the Digital Platform Act,” a guide to what government can do to preserve competition and empower individual users in the huge swath of our economy now referred to as “Big Tech.” Former FCC Chairman Tom Wheeler described this book as, “[...] a tour de force of the issues raised by the digital economy and internet capitalism.” For more than 20 years, Feld has practiced law at the intersection of technology, broadband, and media policy in both the private sector and in the public interest community. Feld has an undergraduate degree from Princeton University, a law degree from Boston University, and clerked for the D.C. Court of Appeals. Feld also writes “Tales of the Sausage Factory,” a progressive blog on media and telecom policy. In 2007, Illinois Senator Dick Durbin praised him and his blog for “[doing] a lot of great work helping people understand how FCC decisions affect people and communities on the ground.”