In 1981, the Ramones released a song entitled "We Want The Airwaves." These days, other parties are interested. The Federal Communications Commission and the National Association of Broadcasters are two of them.
The FCC plans to hold a voluntary auction for airwave spectrums owned by television stations to ultimately be bought by fledgling and legacy 4G wireless carriers. These wireless carriers need improved service and more speed to meet the ever-growing demand for mobile broadband.
The auction, created in May 2014, was scheduled to take place in mid-2015, but there's now a wrench in the works. The NAB is filing a petition, taking the FCC to court to challenge what it says are unapproved changes made by the FCC to the final order of Expanding the Economic and Innovative Opportunities of Spectrum Through Incentive Auctions, as the FCC initiative is labeled.
Participating in this incentive auction are broadcast stations that will get a financial incentive to give up some of their valuable spectrum frequencies to the FCC. The FCC will then repackage and auction these frequencies to wireless carriers.
The NAB claims the FCC made changes to the final agreement without consulting with the NAB.
As the NAB says in its complaint, "Under the Spectrum Act, the FCC would reorganize the remaining broadcast spectrum (after broadcasters cede frequencies to the FCC) and auction blocks of cleared spectrum to wireless providers, subject to the statutory command that it protect broadcasters that do not relinquish their spectrum usage rights by 'making all reasonable efforts to preserve the coverage area and population served of each broadcast television licensee'." The NAB goes on to say that "Among other objectionable provisions, the Order adopts a new methodology, TV Study, for calculating broadcasters' coverage areas and populations served and fails to take reasonable steps to preserve broadcasters' coverage areas."
The NAB closes the petition with its conclusion that the order violates the Spectrum Act; is arbitrary, capricious and an abuse of discretion under the Administrative Procedure Act; and was adopted in violation of the APA's notice requirements.
The NAB believes that as presently constituted, the auction will damage NAB members, especially those who choose not to participate in the auction.
"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 midcourse correction that better reflects Congress' intent and that protects broadcasters and the millions of vulnerable over-the-air TV viewers," said Rick Kaplan, NAB executive vice president of strategic planning.
Based on past dust-ups between the NAB and the FCC, it is likely the litigation will be dropped if the FCC agrees to increase the $1.75 billion it has set aside to compensate NAB members for repackaging and moving to other frequencies.
