According to a version of the House Republican payroll tax end-of-the-year legislative package being circulated Friday morning -- its details are scheduled to be released Friday -- the incentive spectrum auction authority language still includes the $3 billion figure for a broadcaster relocation fund and the requirement that broadcasters have to "choose" to give up spectrum.
That $3 billion is three times as much as Democrats were proposing in their version and was the subject of some debate when the stand-alone House version of the incentive auction bill was marked.
The incentive auction language gives the FCC authority to compensate broadcasters for reclaiming spectrum, but only allows that spectrum to be auctioned if "there is sufficient spectrum to accommodate the broadcasters that wish to remain broadcasters following the auction.
The bill also has language from an amendment added to the House Communications Subcommittee version of the bill that would prevent the FCC from limiting bidders for their size of how much spectrum they already had, or from putting network neutrality or mandatory wholesaling conditions on the spectrum being auctioned.
Those could still be excised from a final version and House Democrats indicated during markup of the stand-alone incentive auction bill last week that the amendment on bidders and network neutrality and wholesaling conditions could be a poison pill to final passage.
The language of the incentive auction portion of the end-of-the-year package both preserves and reduces some broadcaster protections. The FCC's auction authority is "restricted to protect those broadcasters that choose not to participate and remain in the television band following the auction." But broadcasters' "administrative remedies to protest channel changes" are also restricted to "facilitate the "repack" that will be needed in order to accommodate both broadcasting and broadband in the UHF spectrum."
The FCC has said some broadcasters would have to move to different channels. The stand-alone, Republican-backed JOBS Act that passed the Communications Subcommittee included language that broadcasters could not be moved from a UFH to a VHF channel and it was not clear whether that language was in the version being rolled into the end-of-the-year payroll tax package.
Below is the broadcaster related language being circulated:
Section 4103: Grants the FCC authority to conduct incentive auctions under which it shares some of the proceeds with licensees who return spectrum. Limits FCC authority to those auctions in which there is competition on the "reverse" side of the auction - the portion of the auction that sets the buy-out price.
Section 4104: Grants the FCC special authority to conduct an incentive auction for the broadcast spectrum in the UHF band. Places special restrictions on both broadcasters and the FCC in order to facilitate the auction. FCC authority to conduct an auction is restricted to protect those broadcasters that choose not to participate and remain in the television band following the auction. Broadcasters' administrative remedies to protest channel changes are curtailed in order to facilitate the "repack" that will be needed in order to accommodate both broadcasting and broadband in the UHF spectrum. Provides up to $3 billion for relocation costs of broadcasters and cable systems. Ensures that the auction is both self-funding and generates a profit for the treasury. Ensures that the auction is only consummated if there is sufficient spectrum to accommodate the broadcasters that wish to remain broadcasters following the auction and requires the FCC to make all reasonable efforts to preserve broadcasters' service areas. The FCC is required to auction the spectrum it clears, but retains discretion to add to the approximately 675 MHz of unlicensed spectrum currently available below 6 GHz by allowing secondary, shared use of this spectrum or primary, dedicated use of other spectrum.
Section 4105: Prevents the FCC from excluding bidders from participating in spectrum auctions for reasons other than citizenship, character, financial, and technical qualifications. Also prevents the FCC from using its licensing authority to impose net neutrality or mandatory wholesaling on licensees. This does not, however, alter the FCC's rulemaking authority in those areas.
Section 4106: Extends the FCC's auction authority through 2021.
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.