FCC Should Go Further on Quiet Period, Attorneys Say
FCC suggestions Friday of upcoming relief for broadcasters of incentive auction prohibited communications rules aren't enough, according to interviews with their lawyers and filings in docket 12-268. Attorneys told us Friday that they welcomed the release of more information about the repacking (see 1701270064). There were few surprises in the transition scheduling plan and accompanying post-auction procedures public notice, many lawyers said.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
Though Friday’s transition scheduling PN explicitly stated that broadcasters could talk with engineers and others about repacking plans as long as no bidding strategies are revealed, that’s not far enough, said Wiley Rein broadcast attorney Kathleen Kirby in a letter Monday. The PN sent “mixed signals,” stating that such communications are allowed “while on the other hand warning that ‘precautions taken will not protect a party against liability in the event a prohibited communication nevertheless takes place,’” Kirby said. “Broadcasters, engineers, equipment vendors, and attorneys continue to be very reluctant to engage in any communications that could result in liability.”
The Wireless Bureau "intends to address any appropriate waiver of the rule when letters regarding post-auction channel assignments are sent," said the transition scheduling plan. It was released by the Media Bureau and the Incentive Auction Task Force. The Wireless Bureau has been involved in other rulings involving the quiet period, such as the waiver that allowed Nexstar's buy of Media General to be approved during the auction.
Few other details from the pair of PNs came as much of a surprise, several broadcast attorneys told us. The phased repacking and the reimbursement schedule and other details are very similar to what was proposed, with some small concessions, said Wiley Rein's Ari Meltzer in an interview.
The FCC could “provide much-needed relief to broadcasters simply by clarifying that nothing a broadcaster says about the reverse auction at this point would violate the prohibition,” Kirby said. Numerous broadcast attorneys agreed. Without explicit relief from the quiet period, broadcasters’ ability to take action on the repacking is limited, attorneys told us. FCC guidance on communications during the quiet period is “confusing” with its mix of allowed actions and warnings, Fletcher Heald broadcast attorney Davina Sashkin told us. The IATF didn’t comment.
There’s no reason for the FCC to continue holding broadcasters to the quiet period, attorneys told us. “There is absolutely nothing a broadcaster could say about the reverse auction at this point that would ‘affect, or have the potential to affect, bids and bidding strategies,’” Kirby said. The broadcaster portion of the incentive auction is over, though the forward auction for wireless bidders is ongoing. The FCC will begin using a 10 percent increment to set new clock prices for all products in each round starting Wednesday, the agency announced on the auction Public Reporting System Monday. A 5 percent increment had been used.
The quiet period has “hamstrung” broadcasters’ ability to discuss mergers and conduct other business, Kirby said. The pent-up deals are expected to lead to a rush of mergers when the quiet period ends, broadcasters and analysts have told us. The early notice of channel assignments that the FCC will send out in confidential letters can benefit broadcasters “only” if the quiet period is relaxed, said Locus Point Networks.