LS Client Memo

FCC Initiates Critical Inquiry Concerning Broadcast Television;

Seeks Comment on Current Use and Future Potential

of the TV Broadcast Spectrum

Comments Due December 21, 2009

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The FCC has released its anticipated Public Notice seeking comment on current use= of the broadcast television spectrum and potential approaches to maximizing = its future development. The inq= uiry is the latest request for input as part of the Commission’s effort = to identify potential spectrum to meet potential long-term demand for wirele= ss broadband service. In intro= ducing a series of specific questions regarding TV broadcast spectrum, the Commission notes that it will take “into account the value that the United States puts on free, over-the-air television” but will also = explore “market-based mech= anisms for television broadcasters to contribute to the broadband effort any spectrum in excess of that which they need to meet their public interest obligations and remain financially viable.”

The initiation of this inquiry unquestionably marks the beginning of a critical period for television broadcasters. While the NAB and MSTV will cont= inue to be leaders in protecting broadcaster interests, given both the importa= nce of this proceeding and the kinds of data that the FCC is attempting to gather, it is essential that individual broadcast companies be active participants. Wireless carriers and others pro= moting the wholesale reallocation of broadcast spectrum will not sit quietly on = the sidelines and allow CTIA and the Consumer Electronics Association to be t= heir principal advocates, so broadcasters will need to be equally – or m= ore – active in all phases of this process.

The current momentum in this proceeding is not favorable to broadcasters’ interests, and= it will take a strong push to try and turn the tide in a way that benefits t= he long-term health and growth of the industry. In addition to working with the = NAB and MSTV to help provide concrete and detailed responses to the specific questions the FCC poses (as outlined at the end of this advisory), compan= ies should file their own comments addressing these issues to bolster the rec= ord and demonstrate to the FCC the industry’s determination to protect itself against unwarranted or inequitable spectrum reallocation proposals. We note in this = regard that there is more than a little irony in the fact that, on the eve of its Quadrennial Review of its Media Ownership Rules -- and less than six mont= hs after the DTV transition was completed -- the Commission is suggesting the possibility of reallocating digital TV spectrum from licensees that are limited to no more than two 6 MHz channels in even the largest markets to promote use of this spectrum by the wireless services industry, for which= the FCC currently does not become concerned about undue spectrum concentratio= n in the hands of a single service provider until a 95 MHz “screen”= ; is exceeded.

Tackling these issues is a task that must be undertaken immediately given= the very short time-frame for responses – comments are due in less than three weeks. While the FCC would ordinarily p= rovide a much longer time-period for comment on a policy question of this magnit= ude, it is constrained by the Congressional mandate to deliver a National Broadband Plan by mid-February. Accordingly, please gi= ve this matter your immediate attention and contact us if you have specific questions regarding the issues outlined below.

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The FCC’s inquiries address four general areas= of interest, focusing on the current use of the broadcast spectrum and anticipated future developments, approaches that might be taken to increa= se efficient spectrum use, the value of broadcast service in meeting public = interest goals compared to the emerging need for more spectrum to meet wireless broadband demand, and the evaluation of market-based or other incentives = that could be offered to broadcasters to spur the reallocation of spectrum to broadband. The specific = issues that the FCC wants commenting parties to address are detailed below:<= /p>

A. Assessment= of Current Spectrum Use and Anticipated Future Development

1. Factors that the Commission should consider in examining and comparing the benefits of using spectrum for over-the-air television broadcasting vs. use of spectr= um for wireless broadband services;

2. The impact on the U.S. economy in terms of investments, jobs, consumer welfare, innovat= ion, and other indicators of global leadership if there is insufficient spe= ctrum made available for wireless broadband;

3. The impact on the U.S. economy and public welfare if free over-the-air broadcast television coverage were diminished to accommodate a repacking of stations to recover spectrum;

4. Details on TV broadcasters’ current use of the capabilities of digital televis= ion, including information on data rate allocations to HD, SD, multicast strea= ms, and bandwidth leasing arrangements, as well as the business rationale underlying each of these choices.

5. Planned future use of the TV broadcast spectrum, including:

a. Future innovations in applications, services, or business models that could create synergies between broadband and broadcast services, or derive other new value from the currently licensed spectrum; and

b. How best to evalu= ate the future economic value of over-the-air digital television and new capabilities to offer mobile TV broadcasting, and the prevailing view= of the financial community concerning this future value.

6. The impact of more frag= mented and time-shifted viewing on the TV broadcasting industry, and how the Commission might help broadcasters participate in this evolution.

7. Under requirements of the 1996 Telecom Act, the Commission also seeks input concerning:

a. &n= bsp; Possible alternative uses, including pu= blic safety use, of the spectrum used for advanced television broadcasts; = and

b. &n= bsp; The extent to which the Commission may be = able to reduce the amount of spectrum assigned to advanced television broad= cast licensees.

B. Potential = Approaches to Increase Spectrum Availability and Efficiency

The Commission suggests that “there may be opportunities for broadcaste= rs to share 6 MHz channels in a market without significantly disrupting the = free over-the-air television service that consumers enjoy today,” and se= eks comment on this idea, including possible trading of capacity (in Mbps) between or among stations sharing existing channels. The FCC seeks commen= t on the following specific issues:

1. Advantages and disadvantages of a channel-sharing approach to broadcasters’ business, as well as the technical and business requirements to enable successful channel sharing;

2. Using collocation= of transmission facilities closer to the center of densely populated are= as to enable spectrum sharing, and consideration of potential financial or other benefits of collocation, as well as tradeoffs for broadcast TV stations and consumers in terms of signal coverage and local programming efforts;

3. Potential improvemen= ts to be gained over time using current MPEG-2 and 8-VSB technologies, as we= ll as any improvements in spectral efficiency that could be gained by deployment of next generation technologies as opposed to the current = ATSC standard, and what would be required for broadcasters and consumers to tr= ansition to more advanced technologies;

4. Whether antenna a= nd receiver standards would facilitate spectral efficiency and improved reception, and what other actions the FCC might take to enhance efficienc= y in the use of broadcast spectrum; and

5. The percentages of broadcast programming streams that are transmitted to MVPDs over-the-air<= /u>, and the percentage of MVPD subscribers that receive broadcast TV stations via an over-the-air broadcast link (either directly or through the MVPD), and th= e projected costs to replace over-the-air delivery to MVPDs and consumers with ot= her means (fiber, microwave).

C. The Benefi= ts of Broadcasting to the Public Interest

Th= e benefits of free, over-the-air television broadcasting with respect to public awareness of emergency information, local news, political discourse, and education.

D. Market Mechanisms or Incentives for “Spectrum Contribution”

Market-based or other incentive mechanisms that the Commission should consider to = enable broadcasters to choose whether or not to make spectrum (excess or otherwi= se) available for reallocation to wireless broadband use.

December= 4, 2009

This memorandum is intended only as a general discussion of these issues = and should not be regarded as legal advice.

We would be pleased to provide additional deta= ils or advice about specific situations if desired.

2000 K Stre= et NW, Suite 600 | Washington, DC 20006-1809
tel. 202.429.8970 | fax 202.293.7783 | www.lermansenter.com

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