Wheeler Circulates LPTV Proposals, Broadcasters Seek Impact Studies
The FCC hasn’t systematically studied the effect of the TV incentive auction on low-power TV stations (LPTV) and translators, and they don’t factor into auction simulations or repacking analysis, said FCC Chairman Tom Wheeler Monday in a letter to Rep. Renee Ellmers, R-N.C , in which he announced the circulation of policies designed to mitigate the auction’s effects on those broadcasters. LPTV industry officials -- and legislators in an October letter to which Wheeler was responding Monday -- have been pushing the FCC to release the impact studies used to create the auction, and a Freedom of Information Act request from LPTV investor Free Access & Broadcast Telemedia (FAB) for that information was rejected using similar language to Wheeler’s.
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The FCC didn’t model scenarios that “cast light on the possible impacts of LPTV clearing,” said a September response to the FOIA request from Incentive Auction Task Force Assistant General Counsel William Scher, which Free Access has since appealed. LPTV broadcasters want the impact information released because they believe it will be a powerful tool for convincing legislators to take steps beyond the FCC’s to ease the auction’s effect on LPTV broadcasters, said Advanced Television Broadcasting Alliance Executive Director Louis Libin. “It is very very late” in the auction process, said Libin, so an act of Congress is what’s needed to protect LPTV: “We’re not trying to derail the train, just to change its direction a little.”
The proposals Wheeler put on circulation Monday don’t do enough to ameliorate the damage the auction will do to LPTV, LPTV industry officials told us. The draft proposals include extending the digital transition date for LPTV and TV translators for a year after the 39-month post-incentive auction transition period, Wheeler said. “This extension would prevent stations from having to upgrade facilities to meet the digital transition deadline before knowing whether the station would be displaced by the auction repacking process,” he said. Wheeler is also proposing to allow channel sharing between LPTV and translator stations and to use the auction optimization software to help displaced LPTV stations find new homes. The proposals aren’t enough, LPTV officials told us. Libin believes the vast majority of LPTV stations and translators in the top 30 markets will be wiped out, he said. Wheeler said he's “confident” the proposals “will help ensure the continued availability of LPTV and TV translator services post-auction.”
The FCC’s impact data would show the extent of the auction’s effects on LPTV and translators, allowing industry advocates to more effectively lobby for relief by highlighting specific businesses in legislators’ districts that would go dark, Libin said. Free Access’ FOIA request asked for all communications among FCC staff on channel assignments or standing for LPTV stations regarding the auction, and for data from any auction simulations. Even if the commission didn’t model scenarios specifically focused on LPTV, the data they did use could still be analyzed to draw conclusions, said Garvey Schubert attorney Colin Andrews, who represents Free Access.
That FOIA was denied, but FAB appealed the denial, and last week filed a letter asking that another member of the General Counsel’s staff sign off on the FCC’s appeal response, because of Scher’s long involvement with the auction. “FAB believes he has an interest in the outcome of this FOIA” request said the letter. FAB also requested all other FOIA requests related to the auction that Scher has been involved with. The FCC didn’t comment, but Andrews said the commission is working with FAB on a response to the FOIA request, looking for emails or other information that might relate to auction impacts on LPTV. A ruling on the appeal is expected soon, Andrews said.
LPTV groups also hope the GAO will provide ammunition for its arguments to Congress, Libin said. The GAO was ordered to study the matter, but hasn’t issued a report.