FATE OF REVOKED DTV CHANNELS DEBATED IN FCC RULEMAKING

Digital allotments vacated by broadcasters for failure to build should be made available for other potential users, HDTV Assn. of America (HDTVAA) told FCC. In comments filed late Mon. on FCC rulemaking on steps agency should take if licensees failed to comply with DTV construction schedule, HDTVAA said it “unequivocally supports” auction of such channels and only in “extraordinary circumstances… should allotments be retired.”

NAB and MSTV argued just opposite in joint filing. Any DTV allotments turned back for failure to construct should be “held in reserve for use in eventual repacking” of DTV spectrum or for translator service in congested areas, associations said: “Removal of an allocation could enable maximized possibilities where they previously were not possible.” Any unused allotments should be deleted, associations said, “to provide a modicum of flexibility in now extremely congested bands [since] there are certain to be more and more areas of unexpected interference.”

In general, and particularly in largest markets, broadcasters have met their DTV transition obligations, NAB- MSTV said. However, in smaller markets stations are facing “insurmountable difficulties, including financial ones,” in meeting deadlines, associations said. In such cases, Commission “should carefully evaluate [licensee’s] specific circumstances before invoking sanctions” as rulemaking proposes: “We believe that only impossibility of building would lead stations to risk forfeiture and ultimate loss of their DTV future.” Again opposing broadcasters’ position, HDTVAA said it supported proposed sanctions for stations in major markets that hadn’t met digital construction deadlines.

Only 8 comments in rulemaking (Doc. 02-113) were available at press time, most from licensees with digital permits that had received extensions. In identical comments, Brunson Communications and Sunbelt Multimedia said FCC’s “extraordinary and compelling circumstances test” in granting further extensions was “analytically unserviceable and should not be adopted.” They objected to proposal to delegate authority to Media Bureau to deny extension requests as creating “a defacto assumption” against appeals to full Commission, said delegating such authority was “ill-advised.” Nor, they said, should FCC “impose harsh penalties,” such as proposed fines, for failure to meet deadlines: “The harm that the Commission’s proposed approach would cause to broadcasters vastly outweighs any benefit from bullying them into attempting to offer digital service prematurely.”

Paxson Communications urged FCC to use “a real world sensibility” on DTV deadlines, using sanctions “to punish only in the most inexcusable cases.” Thus, Commission should abandon its announced intention of granting only two 6-month extensions -- position Paxson said was “often inappropriate and unsupported by the facts.” It said it “hopes” rulemaking “portends similar [agency] action on more extensive DTV problems, such as cable interoperability, copy protection,” digital must-carry, interference.

Assn. of Public TV Stations (APTS) told FCC its proposal to delete reserved but not constructed DTV channel from table of allocations was “contrary to over 30 years of congressional and Commission policy.” It also would reverse FCC’s “promise” to restore vacant analog allotments to DTV at end of transition to digital, APTS said. While supporting increased sanctions for failure to construct digital facilities, APTS said it “strenuously opposes the auction of any channel -- reserved or unreserved” -- for which there were competing applications if at least one had proposed noncommercial service.

New Life Evangelistic Center (church), which holds 2 DTV permits in Mo., said limiting construction extensions to 2 for 6 months each was “not only unreasonable, it goes up against every principle of good judgment” for similar licensees and small businesses. Moreover, church said, sanctions proposed by FCC -- “at least as they would apply to churches and other religious organizations -- are illegal.”

Public safety groups International Municipal Signal Assn. and International Assn. of Fire Chiefs took position “only an act of God” should constitute justification for licensees not to meet build-out deadlines. Groups said they “know of no reason” why TV station “should not be able to comply [with] a firm and fast deadline.” FCC should fine station “as soon as the licensee is in violation” of deadline with “a further, and more severe” fine imposed at 2nd stage, groups said, and fines “should be sufficiently meaningful” to have impact on licensee.