NAB, Sinclair Count Ways FCC Auction Methodology Is Wrong

The National Association of Broadcasters and Sinclair have told a federal court that the FCC is bent on ignoring the will of Congress in its heading rush to reclaim spectrum from TV stations.

That came in reply briefs to the U.S. Court of Appeals for the D.C. Circuit in their lawsuit against the FCC's incentive auction.

"Congress directed the FCC, in repacking broadcasters who retain their spectrum rights in the incentive auction, to ‘make all reasonable efforts to preserve, as of February 22, 2012, the coverage area and population served of each broadcast television licensee, as determined using the methodology described in OET Bulletin.’ Yet the FCC repeatedly treats that unambiguous preservation mandate as an inconvenience to be minimized or ignored in the Commission’s myopic quest to transfer spectrum to wireless companies," they told the court.

That was accompanied by a laundry list of problems the broadcasters have with the way the FCC is calculating TV station coverage areas and populations served, as well as the way the FCC defended that decision to the court.

After the FCC said it had updated its TV Study software and would use that to calculate station coverages, NAB said that controverted the plain language of the statute and would lead to large coverage-area losses.

NAB and Sinclair filed separate suits against the auction, but they were consolidated and granted expedited hearing by the U.S. Court of Appeals for the District of Columbia.

NAB and Sinclair have told the court it needs to reject the FCC's May incentive auction order to the degree that it adopts the TV Study repacking methodology (outlined in bulletin OET-69), "fails to protect against terrain losses, denies protection to areas that are currently unpopulated, and fails to protect populations served by fill-in translators (NAB's issues)."

Sinclair wants the FCC to vacate the orders' deadline of 39 months after the release of channel reassignments for broadcasters to cease broadcasting on their pre-auction channel reassignments.

Sinclair also says the FCC should not have allowed spectrum reclamation in markets where only one station offers up spectrum.

The FCC in its brief argued that broadcasters were off base, that the statute did not require it to adopt a "fixed set of software and procedures."

"There is absolutely no reason under the statute for the agency to use 'archaic software' or 'imprecise' (and inaccurate) data, when a 'better program' and 'better sources' are available," it told the court back in December.

John Eggerton

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.