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Group Owners: FCC's Spectrum Reclamation Plan Would Be Unlawful

State associations also oppose plan without enforceable guarantee broadcasters will be held harmless in all respects.

A Who's Who of owners representing hundreds of TV stations have asked the FCC to withdraw its proposal to reclaim spectrum for wireless broadband, saying there is no spectrum crisis and that the move would be against the public interest and against the law.

Representatives of state broadcast associations said they were equally unconvinced by the FCC's plan, despite a personal pitch from FCC Chairman Julius Genachowski during the National Association of Broadcasters convention in Las Vegas earlier this month. They stopped short of asking the petition to be withdrawn, but want an ironclad guarantee of "voluntary."

In reply comments on various FCC proposals to help with that reclamation, including channel sharing, moving and boosting VHF reception, Allbritton, Tribune, Meredith, Gray, McGraw-Hill, Nexstar, Granite and almost two dozen more station groups said flatly the FCC proposal to reclaim and auction broadcast spectrum was the wrong way to go and asked it to terminate the proceeding. The groups filed collectively as Local Television Broadcasters.

The groups said that if the FCC pursues its present course, it would be "arbitrary, capricious, and contrary to the public interest." According to the Administrative Procedure Act, "arbitrary and capricious" agency decisions are unlawful.

They argue that the FCC can't accomplish its proposed repacking and sharing without causing "certain and irreparable harm to television broadcasters and viewers."

The commission continues to argue that the spectrum crunch is real, and that a marketplace mechanism--an incentive auction--will generate enough broadcaster interest to free up spectrum, which combined with sharing and repacking will leave a viable over-the-air service while providing crucial spectrum real estate for broadband.

The stations are not buying it, however. "The ensuing reallocation and repack are highly disruptive mechanisms, involving excessive government intervention that is an unnecessary solution to a spectrum "crisis" that does not exist," they maintained.

Broadcasters are increasingly pushing for alternatives to relocation, including allowing broadcasters to negotiate with wireless carriers directly to handle peak broadband traffic using their more efficient one-to-many regime. Capitol Broadcasting made a personal pitch to the FCC for that flexible approach in a story first reported in B&C/Multi.

"Such market-based, locally-oriented approaches are superior to the centrally planned model envisioned by the [Notice of Proposed Rulemaking] and its proponents," the groups said in their filing.

The approach would avoid a second DTV transition within a decade, and would be a swifter response than "years of uncertainty inherent in seeking and obtaining Congressional authorization, conducting incentive auctions, and overseeing wireless operators' build out."

Broadcasters have said they did not oppose a voluntary reclamation/auction process, but it is looking increasingly unlikely they will be able to agree with the FCC on a definition of "voluntary."

A group of state broadcast associations, in a separate filing. Also this week weighed in against the reclamation plan. They stopped short of asking the FCC to terminate the proceeding, but said it should be "held in abeyance" until the FCC completes a "truly independent" spectrum inventory. They also want an iron-clad "voluntary" guarantee in the form of a "legally binding commitment to the effect that no television station will be caused to suffer any adverse monetary or non-monetary impact, condition or consequence as a result of choosing not to turn in all or a portion of its spectrum via auction or otherwise. "