Wheeler Seen Giving Little Ground on Incentive Auction Duplex Gap

Broadcasters and public interest groups pressured the FCC to change course and keep TV stations out of the gap. The duplex gap was highlighted as a major concern in the GOP memo on this week’s Commerce Committee hearing. NAB asked Wheeler to stick to a "promise" the group says he made after the July 16 meeting and agree to putting TV stations in no more than six markets, only one of which is a major market (see 1507210062). But in the runup to next week’s meeting, industry officials said there are few signs that provisions on the duplex gap have changed even a little, industry lawyers told us Thursday.

Wheeler is “holding firm,” said a lawyer who represents wireless carriers. Broadcasters are eager “to have the chairman confirm what he said publicly -- that he needs to impair six markets at the most,” a broadcast lawyer said. “The greatest fear is that the number he threw out was not real and that the simulation done was results-oriented and at the end of the day, the FCC will put many stations in the duplex gap, throwing news coverage overboard.”

“I think Chairman Wheeler is maintaining maximum flexibility in what remains a fluid situation, where others, like the NAB, want to tie him down now,” said Roger Entner, analyst at Recon Analytics. “This highlights again how extremely complex and difficult the incentive auction is and that the rules will still take a while to be ironed out. It is important to do this right, not fast.”

Though broadcasters are widely opposed to getting repacked into the duplex gap, few believe Wheeler will change his mind, broadcasters and broadcast attorneys told us Thursday. The two Democratic FCC commissioners in the end aren't likely to go against the chairman on the matter, particularly Commissioner Jessica Rosenworcel, these officials said. Rosenworcel is seen as supporting reserved space for unlicensed use ahead of broadcasting, the officials said.

Some broadcast officials told us a compromise on an eventual home for wireless microphones is in the works, but others said the sides are still far apart. Several broadcast attorneys told us they don’t have a clear sense of how the matter will be resolved.

There are fewer signs of such a compromise for low-power TV (LPTV) and translators, broadcast officials and attorneys told us. Wheeler’s comments to legislators Tuesday on the lack of protection for those facilities show that his mind is made up on that score, said Fletcher Heald attorney Peter Tannenwald, who represents LPTV stations. That makes the chances of litigation against the auction greater, he said, though not certain. “Someone is going to have to write a big check for that court case,” he said.

It’s unlikely the commission would be able to find a way to protect translators -- some of which are owned by large networks -- while not protecting LPTV stations, which tend to be smaller companies, Tannenwald said: “The statute doesn’t let you pick and choose.” If the commission did pick and choose, it would be more vulnerable to a court challenge, Tannenwald said.

Michael Calabrese, director of New America Foundation’s Wireless Future Project, told us he believes the FCC is moving in the right direction on making sure unlicensed spectrum is available after the auction. “After meetings today at the FCC, our consumer coalition is cautiously optimistic that Commissioner Rosenworcel and the auction team have found a way to ensure that there will be at least three channels for enhanced Wi-Fi services in every market nationwide, whether or not it is necessary to relocate a TV station in the duplex gap in a few markets,” Calabrese said. “We greatly appreciate Chairman Wheeler’s willingness to delay a vote and explore alternatives that can sustain a balanced policy.” There's also “widespread agreement” at the FCC that “consumers will benefit most from an incentive auction that results in both more licensed spectrum for competition and the amount of unlicensed spectrum needed to support a mass market for super Wi-Fi chips in smartphones and other mobile devices,” he said.

Representatives of wireless mic maker Shure were at the FCC this week to express concerns about the proposed auction rules, said a filing in docket 12-268. “To avoid what effectively could be a costly and disastrous flashcut in certain markets, the Commission should not assign TV stations in the duplex gap where certain wireless microphones, especially those used to cover breaking news, are expected to operate,” Shure said, according to the filing. If TV stations are assigned to the gap “wireless microphones should have access to any other UHF spectrum that may be designated to ‘replace’ the duplex gap spectrum in affected markets,” Shure said. Shure also requested access to any guard bands that might be put in place around Channel 37, which is used by medical telemetry and radioastronomy.

CTIA, meanwhile, reported on a series of recent meetings at the FCC to discuss the association’s continuing auction concerns. CTIA referred back to previously released test results by consultant V-Comm (see 1503020024). “CTIA highlighted the real-world testing results of V-COMM, which demonstrate that the Commission’s proposed technical rules for unlicensed operations in the 600 MHz guard bands and duplex gap would result in harmful interference to licensed services in violation of the Spectrum Act,” the wireless association said in a filing in docket 14-165. “To provide the necessary and statutorily-defined rights for 600 MHz licensees, CTIA reiterated the need for the Commission to increase out-of-band emission limits and frequency separation as outlined in V-COMM’s report.”