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  • Jerianne Timmerman 10:15 am on August 20, 2015 Permalink

    The Mandatory “Upgrade” the FCC Forgot 

    In a blog last week claiming credit for “upgrading” the FCC’s “media rules” to reflect today’s marketplace, FCC Chairman Tom Wheeler neglected to even mention the mother of all media rules, the broadcast ownership restrictions. Unfortunately, this conspicuous omission should come as no surprise. Despite Congress expressly requiring the FCC to regularly update its ownership rules, the Commission has repeatedly – even serially – failed to modernize those restrictions.

    The FCC has strictly regulated the multiple ownership of broadcast outlets since the World War II era. The Commission prohibited in 1941 the licensing of a TV station under the same ownership as another station broadcasting in substantially the same area – and nearly 75 years later, the Commission still prohibits the common ownership of two TV stations in most markets. By comparison, other FCC ownership restrictions – such as the disco-era ban on common ownership of a newspaper and a single radio or TV station in the same market – are merely middle-aged, rather than senior citizens. If the FCC’s criteria for determining whether its rules should be eliminated depends primarily on their age – as the Chairman’s blog implied with regard to the “50-year old” program exclusivity rules – then the almost octogenarian ownership rules should be long gone from the FCC’s books.

    Much more importantly, the FCC’s failure to update its ownership rules flies in the face of Congress’ directive that the Commission must every four years “determine” whether its rules remain “necessary in the public interest as the result of competition” and “repeal or modify” those that are not. While the Commission may be fulfilling its obligations under the 2014 Satellite Television Extension and Localism Reauthorization Act, as the Chairman specifically noted, the FCC at the same time has cavalierly disregarded its obligation under the Telecommunications Act of 1996 to complete the 2010 quadrennial ownership review.

    As the D.C. Circuit Court of Appeals suggested in an earlier ownership case, the Commission’s failure to make the determinations required by statute for retaining its ownership rules indicates its inability to do so. Retaining the current newspaper/broadcast cross-ownership ban, for example, would require the Commission to show that competition and diversity in the media marketplace have not changed since 1975. Obviously, that is impossible to show, as the owners of newspapers, TV stations and radio stations have made clear starting in 1996 when the Commission first requested comment on reforming the cross-ownership ban. Despite last week’s story about updating FCC rules to “better reflect today’s media marketplace,” the cross-ownership prohibition stands unchanged, nearly two decades since the Commission began reexamining it.

    In irresponsibly delaying reform of its ownership rules, the Commission has had to deny the existence of competition to TV and radio stations and newspapers. For example, even though the FCC, according to Chairman Wheeler, is “updat[ing] the [broadcast] Contest Rule for the Internet age,” the agency – seemingly with a straight face – previously dismissed competition in the video marketplace from pay-TV and online sources as being of “limited relevance” for its review of the local broadcast TV ownership rule. And, as newspapers continue to disappear, the Commission effectively ignored the hundreds of millions of Americans that use the Internet, and dismissed evidence showing consumers moving away from newspapers to online news sources, because the Internet is not available to all Americans. So while the Internet, according to the Commission earlier this year, “drives” the U.S. economy and serves “every day” as a “critical tool” for Americans to “conduct commerce, communicate, educate, entertain, and engage in the world,” in the alternate universe of broadcast regulation, it merits only a change in the FCC’s contest disclosure rules (which, notably, apply only to over-the-air broadcasting and no other medium).

    For decades, NAB and its members have fought to truly modernize the FCC’s media rules by reforming unfair and inequitable broadcast ownership restrictions – rules that do not apply to broadcasters’ increasingly consolidated video and audio competitors, including cable, satellite and online. Rather than indulging in misplaced self-praise over eliminating rules that are as important as ever in the video marketplace, the Commission must stop willfully and blatantly ignoring its statutory duty to, borrowing a phrase from Chairman Wheeler, promote the “public interest” and “help ensure the continued viability” of free, over-the-air broadcast service. Particularly in an era of overpriced subscription services offered by companies with rock-bottom customer service ratings, American consumers deserve a viable – indeed, a thriving – free option.

  • Rick Kaplan 11:52 am on July 22, 2015 Permalink

    You Want Breaking News Coverage? Then Mind the Gap 

    When was the last time you turned to TV to follow details of breaking news as it unfolded – the real, on-the-ground coverage from reporters in the field? In the first half of this year alone, we learned firsthand about the civil unrest in Baltimore following the death of Freddie Gray, followed with bated breath the manhunt throughout local communities in upstate New York for two convicted murders who had escaped from prison, watched crowds of Americans gather on the South Carolina State House grounds to see a flag come down and heard from those rallying on the Supreme Court steps from local TV reporters at the scene.

    If you care about live, on-the-ground coverage of events that are shaping our world – then you care about something called the duplex gap.

    Last year, the FCC announced it would no longer reserve two channels in each market within the TV band for critical wireless microphone use, which is essential for broadcaster coverage of breaking news and emergencies. Instead, the FCC decided to set aside space for wireless microphones in the duplex gap, a vacant lot of spectrum located within the wireless band. Wireless mics’ new home in the duplex gap was by no means a perfect solution, but it was all the FCC said it could manage, and broadcasters have done their best over the past year to start figuring out exactly how to make these new digs work.

    But just as mics were getting ready to settle into their new home, the FCC just last month said there was one more catch: this real estate would not be available everywhere, as the FCC will place TV stations themselves in the duplex gap in certain markets after the spectrum auction. When a TV station sets up shop in the gap, no other service can use it, including the mics used by reporters rushing to cover tragedy, weather emergencies and other critical events on the ground.

    This was quite a change from the FCC’s initial promise, so many parties, including FCC commissioners, asked Commission staff to explain why this about-face was necessary. In producing its information, the staff revealed that it had only done an analysis of one possible scenario for each of three spectrum recovery targets, but staff argued that data showed that in certain markets the FCC needed to put stations in the duplex gap. Chairman Wheeler has said that the number of affected markets would be no more than six. This proposed change is very bad news for newsgatherers who rely on wireless mics to report the news, for viewers who depend upon local and national reporters to get in the middle of a story and public safety officials, who work hand-in-hand with local broadcasters to keep the public and first responders safe.

    But the FCC staff is insistent on undoing the original compromise and broadcasters are now in a pickle. We support the auction and want to see it succeed. But we also know we need wireless microphone technology to ably cover the news and keep our communities safe.

    So yesterday NAB proposed a new compromise (or “recompromise”) – one that is far from ideal for us – but one that at least holds the Commission to its (new) word, and asks that no more than one station in each of six markets (if necessary) are put in the duplex gap to avoid widespread elimination of wireless microphone use to cover local news. Six markets is damage enough, especially if one of them is the second-largest. But if that’s the number, then let’s agree to it, figure out alternative solutions in those markets for wireless mics and go forward.

    If the answer, however, is that it’s potentially more than six markets, the FCC has a major credibility problem. If the goalposts move again, we should all be wary of what’s in store for this auction. For it to be successful, we all need to be able to trust the FCC.

    Broadcasters have met the FCC far more than halfway. Now let’s put it in ink and move on to the auction and better solutions for broadcasters, their viewers and public safety.

  • Patrick McFadden 11:04 am on April 30, 2015 Permalink
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    What to Expect When You Are Expecting (TV White Spaces Comments) 

    Last month, NAB filed a petition asking the Federal Communications Commission (FCC) to amend certain rules governing the use of TV White Spaces (TVWS) devices. In particular, we asked the FCC to require fixed TVWS devices to eliminate the illusory notion of “professional installation,” an undefined concept that allows an installer to enter the location of a device in the TVWS database. We’re asking the FCC to require automatic geolocation capability, and to hold database administrators accountable for falsified information entered into the database.

    While oppositions and comments on our petition are not due until tomorrow, the responses are predictable, and, in the public interest we thought we’d provide a little primer to what you are likely to see from TV white space proponents and their proxies.

    TVWS COMMENT #1: “NAB cannot identify a single instance of harmful interference caused by an unlicensed device.”

    This is a personal favorite, because it’s misleading on so many different levels. First, it’s a little like saying you shouldn’t wear a seatbelt because you haven’t yet had a car accident, or you shouldn’t have homeowners insurance because your house hasn’t yet burned down. No adult uses this approach in real life. Instead, we take reasonable precautions, precisely to avoid bad outcomes we can clearly anticipate. Second, there’s no surefire way to know if there has been harmful interference to licensed services from unlicensed devices. If a television viewer can’t receive a particular channel, she has no way of knowing if that’s due to a neighbor’s use of a TVWS device; she may just assume she can’t receive that channel and give up. Third, there are less than 600 TVWS devices operating nationwide right now. Yes, in the entire United States. Saying TVWS devices haven’t yet caused interference is a little like saying you haven’t yet been attacked by Bigfoot. It’s a true statement, but it doesn’t prove anything, and you probably don’t want to brag about it in public.

    TVWS COMMENT #2: “Problem? What problem? The FCC has cleaned up the database.”

    Not long after NAB filed its petition, the FCC went to work to clean up the database. TVWS enthusiasts are likely to say that the database has now been thoroughly scrubbed and polished and, as a result, there is no longer a problem. This is the equivalent of a teenager telling his parents he cleaned his room when all he did was shovel everything into the closet and slam the door. What you won’t hear is that anyone – yes, even you! – can register a TVWS device in the database right now, using a falsified location, and get access to channels you should not be able to use. Are you in Washington, D.C. and stuck without a single vacant TVWS channel? Don’t worry! You can easily register your device and enter its location as rural Montana to get access to channels that are currently occupied by local licensed users. This is the result of an obviously broken system destined to lead to interference problems.

    TVWS COMMENT #3: “TV White Spaces are really, really cool.”

    They may try to distract you. Because they don’t want to acknowledge the problem, and because they can’t deny the risk of interference, one or more TVWS enthusiasts will point at a really shiny object, and hope you look. They’ll wax poetic about the untapped, limitless benefits of more unlicensed spectrum for their corporate financiers. They’ll promise “Super WiFi,” “WiFi on steroids,” increased broadband competition, and expanded rural service. Of course, they won’t acknowledge that there are only a few hundred of these devices operating right now, five years and counting after the FCC approved the current rules.

    TVWS COMMENT #4: “NAB’s petition is premature. Don’t worry.”

    Kicking the can down the road is a great way to try to outlast the opposition. Some will argue that, even if there is a problem, the FCC can easily fix it later. This is, of course, shortsighted; rumor has it horses are really hard to chase down once they’ve been let out of the barn. Instead, a more reasonable approach is to establish clear rules of the road and allow manufacturers to start incorporating automatic geolocation capability in new devices before the market heats up. If, and it’s a big if, white spaces technology ever actually does live up to the rather large promises its proponents have been making, retrofitting thousands or hundreds of thousands of devices to incorporate geolocation capability will be costly and disruptive. That’s exactly the outcome NAB is trying to avoid.

    NAB is eager to create an environment in which TV White Spaces can be used effectively while protecting existing licensed users. That’s why we have proposed only modest rule changes to help make White Spaces work for everyone. The rules already require some TVWS devices to have automatic geolocation capability – we’re merely asking the FCC to extend that requirement to fixed devices, which transmit at high power. We’re also asking the FCC to take the simple step of incorporating some basic accountability into its database administrator rules, so as to avoid the next batch of John Q. Public registrations with addresses in Anytown, USA, and phone numbers of 867-5309. These changes aren’t complicated, and they aren’t costly. Let’s get this done.

  • Bob Weller 10:24 am on March 30, 2015 Permalink

    Defanging a Paper Tiger 

    Every broadcaster dreads a visit by a Federal Communications Commission (FCC) inspector, but broadcasters also know that the presence of the “Highway Patrol of the Airwaves” helps keep the playing field level and the participants honest. Violators of the FCC’s rules risk detection and know that a fine (or worse) may result.

    For longer than the FCC itself has existed, a network of field offices has been key to maintaining order on the airwaves by resolving interference disputes, shutting down unlicensed operators and providing valuable and dispassionate advice on the FCC’s rules and policies that help minimize ongoing spectrum conflicts. The FCC’s own website observes that its field offices are its “eyes and ears” on the ground. Unfortunately, FCC Chairman Tom Wheeler is now circulating an order that effectively leaves the FCC in the dark.

    Earlier this month, Chairman Wheeler proposed to his colleagues to close more than half of the FCC’s field offices and cut field enforcement staff by almost two-thirds. New York City, Atlanta, Miami, Los Angeles, San Francisco, Chicago, Dallas and Columbia, Maryland: that’s the entire list of offices that would remain open. Slated for closure are offices near major cities like Seattle, Denver, Boston, Philadelphia and Houston.

    GPS outage in Honolulu? Chairman Wheeler says he’ll send a “Tiger Team” from Columbia, Maryland, to work on it. Sheriff department radios getting jammed in Tampa? Someone will be there within 24 hours, he told Rep. Gus Bilirakis (FL-12). All technical enforcement for the entire nation will be handled by a cadre of just 33 FCC agents spread across only eight offices.

    As it stands today, most of the field offices already operate with only a skeleton crew. In 1995, the FCC automated its monitoring station operations, resulting in the closure of more than a dozen field offices with a commensurate reduction in staffing. Some of the remaining offices were converted to “Resident Agencies,” a euphemism for a one- or two-person office with no support staff. At that time, the FCC offered early retirement and a humane personnel relocation program. Increased training, improved technology and a reasonable travel budget were offered as assurances that no reduction in enforcement effectiveness would result.

    In the past couple of weeks, the FCC’s Enforcement Bureau informed stakeholders that there would be no reduction in enforcement effectiveness because there would be increased training for the remaining agents, improved technology and an increase in travel funds. Do those assurances sound familiar? Even if all of the promises are kept about new training and new equipment and more money for gasoline, and even if the FCC continues to largely ignore all complaints except for interference to public safety (as they do today), the proposed staffing numbers just don’t add up. People take leave, training takes time, on-scene investigations mean in-office paperwork. So, the actual number of field agents available for assignment on a typical day might be half the total, or 16. Sixteen pairs of boots on the ground, doing field investigations for the FCC for the entire country. Think about that.

    In 1935, shortly after the FCC was established, there were about 50,000 FCC-licensed stations, including two-way, broadcast, amateur and marine. Unlicensed devices, such as WiFi, microwave ovens and garage door openers did not exist. Today, there are hundreds of thousands of licensed stations and hundreds of millions of unlicensed devices. How can the FCC reasonably expect to keep on top of all these transmitters and ensure the safety of Americans with a day-to-day crew of perhaps 16 field agents nationwide?

    The problems with the FCC’s spectrum enforcement plan will only be compounded by its intention to promote additional spectrum sharing. NAB supports the concept of spectrum sharing, but a robust mechanism for enforcement is critical to ensure that devices operate only on the frequencies they are authorized. Even if a fraction of a percent of devices have incorrect data or malfunction, widespread interference – including interference to safety-of-life services – will result. That means disrupted emergency and AMBER Alerts, unreliable police and fire communications, riskier air travel and a host of other scary possibilities.

    Just last week, NAB filed an emergency petition for rulemaking asking the FCC to fix its broken white space database. One-third or more of the database entries contain errors, many of them serious enough to obscure the location and/or ownership of the actual transmitters, which are required to register in a database so that they can be shut down if interference occurs. The FCC is now proposing to expand use of white spaces in part because of the purported sparkling quality and wild success of the database system. Further, the agency proposes to use the white space database system as a model for frequency-sharing in other bands, including some used by Department of Defense radars and weak-signal satellite downlinks.

    The unauthorized use of devices can, and has in the past, caused widespread interference – including interference to safety-of-life services. FCC field staff are uniquely qualified with training, equipment and authority to locate and shut down such devices. Even if the affected user is able to identify the source of the problem, there is no right of private action in the Communications Act that could force the source shut down. State and local law enforcement are reluctant to take on interference or unauthorized transmitter cases due, understandably, to lack of expertise. FCC field staff possess the expertise and have sole authority to investigate and enforce laws relating to radio.

    Fortunately, there is still time for the FCC to reverse course and rethink its proposal to gut the field offices. Perhaps it took the proposal itself to help the agency realize just how valuable those who use radio frequencies believe the field offices to be. Most of all, at a time when it the FCC is pursuing policies that will inevitably create an environment where interference is more likely to occur, it must not devastate its field enforcement resources.

  • Jerianne Timmerman 10:45 am on February 19, 2015 Permalink

    Double Standards, DISH and Designated Entities 

    The FCC should have been taking a victory lap following its $45 billion AWS-3 auction, which closed in late January. Instead, the agency was left fending off widespread criticism that “loopholes” in its auction rules effectively gave billions of dollars in subsidies to one of the largest corporations in the country.

    These criticisms arose from disclosures that two companies in which DISH Network reportedly has an 85 percent stake claimed about $3 billion total in “bidding credits” when acquiring licenses in the FCC’s AWS-3 auction. Bidding credits allow a bidder to reduce by some percentage its actual payment on its winning bids following an FCC auction. In this instance, DISH’s interests in Northstar Wireless and SNR Wireless – smaller companies with “designated entity” status under the FCC’s auction rules – will allow DISH to reduce its bill to the Treasury from around $13 billion to about $10 billion. Unsurprisingly, the headlines generated across the political spectrum decried these “government handouts” to large corporations and the “rip[ping] off” of U.S. taxpayers.

    While the public reaction focused on the massive subsidies afforded to DISH, broadcasters in particular were left scratching their heads. Less than a year ago, the FCC decided to treat a broadcast TV station that sells more than 15 percent of the advertising time of another TV station in the same market as owning that second station. As a result, stations in most markets are forbidden from selling more than 15 percent of the ad time of another station under the FCC’s decades-old broadcast ownership rules.

    How in the world does the FCC square its treatment of various forms of ownership? Why can’t a small TV station in South Dakota or South Carolina sell 20 percent of the advertising time of another station without the FCC saying it “owns” that station, when DISH can possess an 85 percent interest in a company without the FCC counting that as ownership?

    These diametrically opposed policies cannot be reconciled or justified. The FCC decided to attribute TV joint sales agreements (JSAs) under its broadcast ownership rules due to the supposedly significant influence that the joint sale of even small amounts of advertising time would provide one TV station over another. Indeed, the FCC is so convinced of the supposed harms of these JSAs that even long-established agreements expressly approved by the Commission must now be unwound, regardless of the detriment to the two stations.

    But now, remarkably, the FCC appears poised to determine that DISH’s 85 percent interest does not so significantly influence the two designated entity companies, thereby resulting in a free $3 billion to DISH in the AWS-3 auction. Even for broadcasters unfortunately inured to inconsistent, unfair and anti-competitive regulatory treatment, this outcome reaches a new low.

    NAB and its members have for decades fought the FCC’s disparate restrictions on the multiple and cross-ownership of television and radio stations – restrictions that do not apply to competing video and audio providers, including cable, satellite and online. The FCC must stop this unfair treatment if it truly cares about competition, diversity and localism. Rather than imposing uncompetitive ownership structures on broadcast stations that provide free local service, while at the same time shelling out billions in subsidies to pay-TV operators that charge consumers ever-higher subscription fees, the Commission should reform its rules to let broadcasters compete on equal footing.

  • Dennis Wharton 9:35 am on November 20, 2014 Permalink  

    Dumb Stuff Said in Washington, D.C. 

    Inside the bubble of Washington, DC — which often challenges Hollywood as the true entertainment capital of the world — one hears astonishingly silly proclamations almost daily.

    Last week, however, I heard a whopper that deserves entry into DC’s Hall of Fame of Dumb Stuff Said.

    The comment came during a panel discussion at the National Press Club. The topic: whether Internet-delivered program content will result in a “break-up” of “bundled” cable TV packages. Panelists included Wall Street investment analysts and academics who purportedly are expert pundits in the communications world.

    During the question-and-answer session, an audience member posed a timely question: How does the rise of web-delivered content impact localism? Should the importance of localism be factored into the debate when Congress considers a rewrite of the Communications Act? And is the value of localism worth consideration as the FCC weighs designating “over-the-top” Internet providers MVPD (multichannel video program distributor) status?

    Not to worry, replied one of the panelists. “Localism,” he said with smug certainty, “is a myth.”

    Broadcasters long ago abandoned localism, the panelist continued. The real concern is the loss of local newspapers at the local level, he said.


    But wait, there was more.

    The esteemed panelist suggested that the only reason TV broadcasters still hold spectrum is because of the clout of the TV lobby. The FCC’s upcoming incentive auction will rightly re-direct airwaves that broadcasters are “wasting” to a more efficient use — wireless broadband, claimed the panelist.

    Those of us in broadcasting have heard the “highest and best use of spectrum” narrative many times before.

    It’s a claim that comes courtesy of our competitors — the well-funded pay-TV and wireless lobbies who bankroll “retransmission consent reform” efforts — along with “research” crafted with a pre-determined outcome that dismisses the value of free and local broadcasting.

    It’s been apparent for years that there is a concerted effort by broadcasting’s primary competitors to eliminate local TV as a competitive threat to their nirvana world — a world where “free” is eliminated from the telecommunications lexicon and programming content is only made available to those who will pay for it. In their world, the highest and best use of spectrum is used only by those who charge a fee for delivering content.

    But only of late have we been confronted with the bald-faced falsehood that “localism is a myth.”


    So let’s drill deeper into the fundamental question: Is localism a myth? Have broadcasters stopped doing local programming?

    The answer, resoundingly, is no.

    Every day, across America, broadcasters are delivering local content on multiple platforms that keeps communities informed, educated, and safe in an emergency. Local news is a trusted source of information, and is viewed by the public as a far more credible source of information than what’s on cable, satellite or the Internet.

    In fact, local news still commands a huge audience, and more broadcasters are delivering local news at a nearly all-time high.

    In many cities, such as Indianapolis, Grand Rapids and Charlotte, broadcasters have begun offering local news as early as 4 a.m. to meet the growing needs of a commuter-driven workforce.

    Even cable news networks like CNN – when there is a breaking emergency situation in Anytown, USA – are carrying live coverage from LOCAL TV STATIONS. So much for the “myth” of localism.

    And guess where Americans turn for election coverage? You got it – the local broadcaster. Even C-SPAN, the cable network that gets wide praise for even-handed political coverage, gets much of its election programming in the form of live debate feeds from local TV stations.

    Indeed, it was a banner year for election coverage, courtesy of local radio and TV stations who offered more free time for candidate profiles, debates, and hard news reporting than in any mid-term election in history.

    Earlier this year, the Pew Foundation found that local TV news viewing is up throughout the day. Nearly three out of four adult Americans tune in regularly to local news, compared to just 38% who watch cable news, according to Pew.

    Investigative journalism at local television stations has replaced the daily newspaper as the government watchdog. Don’t take my word for it; just look at the number of broadcast TV stations who are Peabody and Edward R. Murrow award winners for quality investigative journalism. From Gannett to E.W. Scripps to Hearst to Dispatch Broadcasting to Cox to Raycom to LIN (and many others), local broadcasters are dedicating huge resources to investigative journalism, holding public officials accountable, and offering tough consumer reporting that is second to none.


    Nowhere is the value of broadcast localism more apparent than in times of emergency. We’ve seen time and again the remarkable, boots-on-the-ground reporting by local broadcast reporters during tornadoes and hurricanes. At great personal risk, broadcasters have waded into harm’s way during tornado outbreaks in Tuscaloosa, Alabama and Joplin, Missouri, in Moore, Oklahoma, and in the path of Hurricane Sandy.

    And there is no question that local TV weathercasters in Tornado Alley have been responsible for saving countless lives.

    Broadcast station personnel cover wildfires in the west, flooding in the Dakotas, and record cold temperatures throughout the country.

    When cellphones and the Internet crash because of overcapacity, it is the local broadcaster that is always on, always there.

    And unquestionably, it is the local broadcaster that galvanizes relief efforts once a crisis or natural disaster is over. Not because the government demands it — but because community service is just part of the makeup of a local broadcaster.


    Why don’t we ask Craig Fugate if he agrees with the claim that “localism is a myth”? Fugate oversees the Federal Emergency Management Agency, and is responsible for keeping Americans safe when disaster strikes. Here’s what Fugate told CNN as Hurricane Irene was bearing down on the Eastern seaboard three years ago:

    “Those local broadcasters are going to be giving you the best information, real time, from those local officials out of those press conferences. So make sure you got your radio and television…and again cell phones get congested, but we did have some success with people text messaging or using social media…but remember cell phones themselves in heavy congestion may not be able to get through. And stay off the phones if it is not an emergency, because other people may be trying to call 911. Use text messaging, use land lines, but again local TV and radio are going to probably be one of the best sources of information from those local officials during the crunch time of evacuation.”

    Need more proof that local broadcasting remains the trusted resource for emergency information? Well how about this:

    In one of the most prominent acts of domestic terrorism in American history — during the Boston Marathon bombing — President Obama abandoned cable news for the reliable, authoritative reporting from Boston’s LOCAL TV stations. Just as America knows that broadcasters are always on in times of emergency, so too does the leader of the free world.

    No wonder that 68% of Bostonians watched local TV news — NOT cable and NOT the Internet — during the search for the terrorist attackers. And no wonder that the Columbia Journalism Review reported the following:

    “Local Boston TV news has reported the whole thing, and done an absolutely heroic and tremendous job of it, proving that, even though local TV news is often maligned, it can serve a huge need in times of crisis — and can rise to the occasion when other, national outlets do not.”

    Bottom line: When the leader of the free world and the administrator of FEMA say “Trust your local broadcaster,” perhaps it’s time for Ivory Tower academics to acknowledge that free and local broadcasting remains an indispensable resource for every American.

    Broadcasters are not perfect, and nor are broadcasting’s critics. Our challenges are many as we move our programming to a multi-platform, multi-screen world.

    But as the original wireless technology, broadcasting is reinventing itself before our eyes and will remain available to every American in every community, free of charge.

    And yes: localism is alive, well and thriving.

  • Rick Kaplan 11:09 am on November 17, 2014 Permalink  

    Let’s Not Fumble the Over-the-Top Opportunity 

    FCC Chairman Tom Wheeler recently circulated a proposal to his colleagues that recommends classifying certain over-the-top providers as multichannel video programming distributors (MVPDs). The proposal aims to stimulate competition in the increasingly consolidated pay-television market.

    NAB agrees these are worthy goals. Emerging over-the-top distribution provides an opportunity to unleash new competitive alternatives while preserving and enhancing localism and diversity in the Internet age. Broadcasters support the deployment of new and innovative video services that have the potential to boost competition to the benefit of consumers. We are committed to providing our highly sought after and unique blend of local and national content on any device wherever Americans want and need access.

    Broadcasters are doing much of that innovation on their own today. ABC developed one of the original iPad apps, now referred to as “Watch ABC,” giving consumers a new avenue to great content from the earliest days of the tablet. Fox and Univision have announced plans for similar services, as has NBC with its NBC Now Service. Syncbak, a smartphone and tablet app developed by broadcasters, provides local viewers access to broadcast television through Internet-enabled devices. And just recently, CBS announced CBS All Access, its new over-the-top service, experimenting with new ways for consumers to access CBS stations from around the country. These are just a few examples of recent innovations that have furthered consumer access to broadcast content online, and the fact remains that local broadcast stations have the most viewed local content on the Web.

    The FCC’s new inquiry, while intriguing, does have its challenges. It will take an open-minded and thoughtful approach to address the complex web of legal, policy and practical implications inherent in applying facilities-based rules to over-the-top providers. It is therefore somewhat concerning that, in recent public comments, Chairman Wheeler appeared not to appreciate these complexities:

    “By facilitating access to [broadcast TV] content, we expect Internet-based linear programming services to develop as a competitor to cable and satellite. Consumers will be able to buy the channels they want instead of having to pay for channels they don’t want. As you know, a startup called Aereo has already proposed doing this, but the broadcasters were able to stop it in court, in part because of the old rules of the FCC. Aereo wasn’t the reason for the new rules, but the idea that entrepreneurs should be able to assemble programs to offer consumers choices is something that shouldn’t be hindered by the FCC.”

    First, by asserting that “the broadcasters were able to stop [Aereo] in court,” the Chairman conveniently ignores that broadcasters were not the only ones to object to Aereo’s illegal operation: the Justice Department did as well. As the Solicitor General argued to the Supreme Court, “[Aereo’s] unauthorized Internet retransmissions violate… statutory requirements and infringe [broadcasters’] public-performance rights under [the Copyright Act].” The Obama Administration was therefore as responsible for “stopping” Aereo as broadcasters were.

    Second, the Chairman misidentifies not only who, but what actually stood in the way of allowing Aereo to continue to misappropriate content. It wasn’t “the old rules of the FCC.” It was a statute: the Copyright Act. The Act is designed to ensure that content creators are fairly compensated for the work they develop, and derives from rights explicitly prescribed by the U.S. Constitution. If the Aereos of the world could simply take what local stations and networks pour billions of dollars into producing and turn around and charge consumers for it – especially with no added value – content creators would have little or no incentive to produce that work. That is why the Supreme Court found that Aereo “infringe[d]” on the networks’ exclusive right” under the Act. Thus, even if the Chairman could unilaterally change the FCC’s “old rules” today, Aereo’s business model would still violate the law.

    Third, simply because someone introduces a new service, he or she is not suddenly an “entrepreneur that shouldn’t be hindered by the FCC.” Shouldn’t it matter to the FCC, at a bare minimum, whether content is distributed legally or illegally? Aereo was innovative only in its creative attempt to skirt the copyright laws, not, for example, in the quality or speed of its streaming service. Let’s not forget that Aereo is only now approaching the FCC to obtain MVPD status, having waited until after the Supreme Court made clear that its attempt to charge consumers without compensating rights holders plainly violated the law.

    NAB supports the FCC examining how best to ensure that online entities can offer competitive alternatives. It is an important inquiry. While it presents exciting opportunities for consumers, however, without the proper level of humility and recognition of all of its challenges, it could lead to serious pitfalls. Tough questions loom, including how to handle a deluge of new potential MVPDs, how to avoid further homogenizing news, weather, sports and entertainment, and how to prevent stifling new business models outside of the MVPD context that could further enhance consumer welfare. These are all essential ingredients that must be in the mix. And yes, the law matters.

    The FCC has a terrific chance to get this challenging and novel proceeding right. If it does, we are likely to see increased competition, localism and diversity. But a healthy respect for the law and the incentives it creates (and prevents) is essential at the outset. We look forward to working with the FCC as it forges ahead in this unchartered territory.

  • Rick Kaplan 1:10 pm on September 10, 2014 Permalink  

    Sorry to Disappoint, But NAB Is Playing It Straight Up 

    FCC Chairman Tom Wheeler certainly traveled a great distance simply to accuse the NAB yesterday in Las Vegas of seeking to delay or derail his upcoming broadcast spectrum incentive auction. With all due respect Mr. Chairman, I fear that your comments are not only wrong, but will create the very uncertainties and distractions you say you want to avoid.

    At both the CCA and CTIA wireless conferences, the Chairman seemed overly preoccupied by NAB’s lawsuit to overturn certain targeted elements of the Commission’s incentive auction order. Among other related comments, in his prepared remarks the Chairman noted that, if NAB “w[as] to win, the effect would be to delay the auction, notwithstanding NAB’s claims to the contrary.”

    The NAB “claims” to which the Chairman refers is a blog I recently wrote that details everything NAB is doing to have our legal concerns addressed as soon as possible. NAB did not file a petition for reconsideration first, as T-Mobile and Sprint did, which would have given us another layer of process behind which to hide if we really were aiming for delay. We did not wait until the last minute in the 60-day period during which legal challenges could be filed; we filed on day one. And we affirmatively sought and were granted expedited review of our lawsuit to ensure that it moved rapidly. Hard to assail our efforts to move as expeditiously as possible.

    What the Chairman was really saying, however, is that, if NAB wins, then NAB will have caused the auction to be delayed. I guess in one sense that is correct, as the court finding that the FCC acted unlawfully would necessitate a reworking of the rules in question. But if the court finds in our favor, isn’t it the FCC that is responsible for the delay? NAB has laid out why we believe the FCC has acted outside the law in a few distinct areas. We have even proposed numerous compromise solutions that seek to help the FCC achieve what it wants while not harming broadcasters or skirting the law. So if the FCC insists on seeing the litigation through and loses, then it has no one else to blame but itself. Don’t pin that on us.

    Look, I’ve been around a bit and I get it. It’s easy to blame the broadcasters when everyone else is chomping at the bit to get our spectrum – whether free (“unlicensed”), paid for in full (AT&T/Verizon Wireless) or at a discounted, government-subsidized rate (T-Mobile, Sprint, DISH).  It’s certainly easier to point the finger at someone else rather than ponder other potentially misguided policy decisions that have undermined trust with the very industries needed to participate in the auction. Easier than blaming the rocky net neutrality proceeding which has sucked nearly all of the air out of the auction room and scared wireless carriers into focusing solely on whether they will be subject to a bevy of new government regulation. Easier than blaming the frayed trust with broadcasters as a result of forcing them to unwind scores of sharing arrangements that had only recently been expressly blessed by the Commission. Easier than blaming the fact that, until just recently, senior FCC leadership has shown little interest in collaborating with broadcasters who are interested in continuing to serve their communities. And it is definitely easier than blaming the fact that would-be spectrum sellers still have no idea what kind of return they can reasonably expect in the auction.

    Despite all of these unfortunate self-created obstacles, we at NAB still believe this auction can be a success. We strongly recommend avoiding further finger pointing and getting to the table to try to find the best solutions for all stakeholders. Inventing rumors of wireless carrier disinterest or about NAB “elements” that don’t like the auction is a waste of everyone’s time. NAB has worked very well with all other industries in this proceeding, even when we’ve disagreed with them. We all have an auction to run. NAB is ready. We are willing. But it would sure help if we had a partner at the helm of the FCC.

  • Rick Kaplan 2:49 pm on August 18, 2014 Permalink  

    Getting the Auction Back On Track 

    NAB today filed suit against the Federal Communications Commission (FCC) in federal court to challenge certain elements of the Commission’s May 2014 incentive auction order, which was published in the Federal Register last Friday. The order, approved by a sharply divided Commission, establishes the “framework” for the FCC’s first-ever voluntary broadcast television spectrum incentive auction. That framework improperly diminishes key broadcaster protections embodied in the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”), and undermines the overall efficacy of the auction. Unfortunately, the Commission’s action has left NAB with no choice but to seek legal redress.

    Before explaining the substance of some of our objections, let me be clear about what our petition is not about: delay. NAB has never advocated for – in words or deeds – any undue delay in the auction. Where we’ve identified concerns with the auction or repacking design, we’ve suggested multiple reasonable and expeditious solutions. Consistent with that approach, we have filed our petition at the outset of the 60-day filing window and we will be seeking expedited review. Our aim is to resolve our core challenges as quickly as possible, so the FCC can immediately return to its auction preparations. We believe the court can help us swiftly address our discrete issues.

    The Spectrum Act was hailed largely because it achieves an important balance. On the one hand, it seeks to fuel the commercial wireless industry’s insatiable desire for spectrum. On the other hand, as with the recent DTV transition, the Act aims to protect broadcasters and their viewers in an otherwise unsettling repacking process.

    Broadcasters ultimately supported the auction legislation not because it gave them a chance to get out of the business – even a “successful” auction will only see no more than 15 percent of the 2,200 eligible broadcasters go off the air – but because Congress ensured, with the FCC’s backing, that broadcasters who choose not to enter the fray will not be harmed in the process. While there are many aspects of the legislation that make this point clear, perhaps the simplest and most direct expression of this balance for broadcasters is that participation in the auction is voluntary.

    There are three critical ways in which Congress did its best to ensure that auction participation remains voluntary and protect broadcasters and their viewers during and following the auction. Unfortunately, the FCC’s order is not faithful to these elements, and thus, fails to meet Congress’ mandate.

    First, Congress instructed the FCC to take “all reasonable efforts” to preserve broadcasters’ coverage areas and to allow them to continue to serve the same people they serve today. Unfortunately, the FCC reads this passage as if they must only take “reasonable” efforts to protect broadcasters and their viewers. The FCC believes that Congress left a substantial gulf between “reasonable” and all other kinds of efforts, and therefore Congress developed a fairly low bar for Commission compliance.

    A plain reading of Congress’ direction to the FCC, however, requires it to do all it can to protect broadcasters and the viewers who rely on them. Congress inserted the word “reasonable” simply to give the FCC some measure of flexibility in the unusual case where perfectly replicating a particular broadcaster’s coverage area and population served would jeopardize the success of the entire auction. If that circumstance were to arise, Congress provided the FCC with the flexibility to allow the auction to proceed, even if a small reduction in service area occurred for a particular broadcaster in a particular market. That is the fair equilibrium that Congress desired.

    Second, in an effort to ensure that broadcasters do not have to pay for their forced moves during repacking, Congress established a fund for the FCC to reimburse non-participating broadcasters that the FCC requires to relocate. The reimbursement concept was a key part of the FCC’s pitch to Congress in the run-up to the passage of the Spectrum Act. As former FCC Chairman Julius Genachowski said to broadcasters in a speech at the 2011 NAB Show, in the auction “it’s essential that broadcasters be treated fairly. That means, for example, that broadcasters should be fully compensated for any costs of any channel changes.”

    The FCC incentive auction order, however, does little to ensure that the Commission won’t repack beyond its financial means and that broadcasters won’t get stuck with the bill. Indeed, conservative projections suggest that broadcasters will be out of pocket at least $500 million dollars by the conclusion of the auction and repack. And for what purpose; which broadcasters gain? None. Local broadcasters should not be forced to go out of pocket to help multi-national wireless giants.

    Third, Congress took the unusual step of instructing the FCC on exactly how to compute the broadcasters’ coverage areas and populations served. It specifically stated that the FCC must use the same approach it uses today to evaluate any new station application, called OET-69. The FCC, however, sees Congress’ direction as inconvenient, and thus has made changes to this time-honored methodology (and for purposes of this auction only). The result is that, what Congress assumed to be a constant in the auction process – the methodology for calculating broadcaster coverage areas and population served – now is reducing the coverage areas and populations served for the majority of broadcasters. That methodological change was not part of the deal, and the FCC has improperly and imprudently moved the goalposts from the goal line on which we all agreed. In fact, the OET-69 provision was inserted into the Spectrum Act precisely to avoid this kind of mid-stream resizing.

    The net effect of all of these changes (and others) is that broadcasters are effectively left with an auction that benefits everyone else while harming only them. NAB’s lawsuit is not designed to derail the auction, or even slow it down. We are looking for a mid-course correction that better reflects Congress’ intent and that protects broadcasters and the millions of vulnerable over-the-air TV viewers. We believe strongly that the FCC itself can achieve a better balance. If not, with this litigation we can right the ship that puts more spectrum out in the marketplace while ensuring a vibrant and robust broadcasting service for the American people.

  • Rick Kaplan 9:12 am on May 23, 2014 Permalink  

    The Point of Being a Ninja Is to Avoid Attention 

    As my 8-year-old works to navigate the travails of making friends in second grade, one of his most unfortunate emerging strategies has been to do silly things to get his peers’ attention. He took that approach to a new level this week when he spent some quality time with the school principal after dumping chocolate milk out of the school bus window on a dare.

    I was reminded of that incident when, in another second-grade moment, CEA’s CEO Gary Shapiro dumped his chocolate milk out of the window with a silly and misguided missive in The Hill (“Broadcasters’ madness hurting the public,” May 21).

    Mr. Shapiro’s innovative thesis is that NAB “implor[es] the federal government for all sorts of favors while completely ignoring what the public wants and needs.” As Exhibit A, he suggests that broadcasters have “done all [they] can to delay implementation of voluntary spectrum auctions,” and that “the NAB has dragged its feet since the law passed and is seemingly discouraging broadcasters from participating in the auction.” Mr. Shaprio’s Exhibit B is broadcasters’ suit against Aereo, an Internet service that takes free, over-the-air broadcasts and converts and repackages them and sells them to consumers for a fee.

    At the outset, Mr. Shapiro’s high-level thesis is absurd. He conveniently ignores the incredible and life-saving coverage broadcasters recently provided in communities hit hard by severe weather events. I may be way off base here, but I think what the public “wants and needs” is information that helps them stay informed and stay safe. These are services radio and television broadcasters provide across the country on a regular basis, and they are unequaled.

    In fact, if CEA really cared about the public interest, it would lean on its wireless carrier and device members to take the simple step of unlocking the FM chips already in their phones. Then, when the wireless alert system is activated to say “check your local media,” a consumer could simply hit a button and have instant access to a local radio station that provides critical information.

    With respect to the voluntary broadcast spectrum incentive auction, Mr. Shapiro is completely out to lunch. His initial claim, that broadcasters are doing all they can to delay implementation of the auction, has zero basis in fact. Indeed, he does not, and cannot, point to a single instance where NAB has attempted to delay the auction.

    NAB has been constructively engaged in the auction process at least as much as any other entity, and has consistently provided concrete solutions for every problem we have identified. We have faithfully lived up to our public statements that we will do what we can to give the voluntary incentive auction the best chance for success. At the same time, it is essential that the auction remains faithful to Congress’s intent of keeping it voluntary, and NAB will work to ensure that broadcasters who want to remain on the air and continue serving their communities can do so without any repercussions.

    What Mr. Shapiro also overlooks is how NAB played a major facilitating role in what is likely to be a $10-$15 billion auction this year of AWS-3 spectrum. As the FCC scratched its head to figure out how to auction largely valueless unpaired spectrum to meet a Congressional mandate, NAB, along with the Department of Defense worked quickly to develop a sharing framework that enabled the FCC to pair that spectrum. NAB gained nothing from that endeavor. We simply recognized that there was a significant public good to be gained by sharing our spectrum with DoD, and found a way to make it happen. NAB has clearly done its part.

    Mr. Shapiro’s second auction claim, namely that NAB is “seemingly” discouraging broadcasters from participating in the auction borders on libel. How are we “seemingly” doing this? Are we “actually” doing it or “seemingly”? I don’t even really understand his point, beyond its goal of attempting to poison the well with an irresponsible suggestion.

    That comment is akin to us saying that because CEA vigorously opposed basic laws and regulations that made electronics accessible to disabled Americans, “CEA seemingly doesn’t care about Americans with disabilities.” Or that, “CEA’s members seemingly exploit children overseas for cheap labor.” Or that, because its members manufacture millions of shiny new objects that end up polluting our oceans and landfills every day, “CEA seemingly supports devastating the environment.”

    I’m not saying these things are true, but hey, it may seem like they are.

    The other nonsensical point in Mr. Shapiro’s piece is his attack on broadcasters for taking Aereo to court. His argument is that, because broadcasters are supposed to provide their content for free, broadcasters can’t and shouldn’t prevent someone else from taking that content and selling it for profit. That makes no sense and is wholly inconsistent with his own advocacy on behalf of his members. I am confident that his members would not support the notion that they should pour a ton of investment into new technologies only to have their competitors steal it and sell it as their own.

    As Mr. Shapiro knows all too well, there are very good reasons why the law provides copyright and patent protection. Those protections are not merely there to coddle multi-national electronics manufacturers, but to protect the innovations of America’s broadcasters as well.

    NAB has an unofficial internal rule that we only respond to Mr. Shapiro’s comments once for every three or four of his outbursts. This is because, like my second-grader, if you react to something an attention-seeker does, it encourages them to keep doing it. And perhaps this blog is the equivalent of laughing at my son’s milk-scapade. But given the importance of the issues discussed, and the forum in which Mr. Shapiro elected to express his views, we believe it makes sense to correct the record.

    As I explained to my second-grader, there are appropriate and inappropriate ways to get people’s attention. In my son’s case, getting attention from others is best done through his intelligence, thoughtfulness and appropriate sense of humor. In Mr. Shapiro’s case, it’s attempting to stick to the facts, and also taking a good, long look in the mirror before penning another piece in The Hill.

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