Senate Commerce Rejects 2009 Deadline for Spectrum Return

Analog broadcasters won’t face a Senate Commerce Committee deadline to vacate their spectrum -- unless they're Univision, Paxson or a few others. In its markup Wed., the Senate Commerce Committee approved 13-9 an amendment from Senate Communications Subcommittee Chmn. Burns (R-Mont.) that replaced much of Senate Commerce Committee Chmn. McCain’s (R-Ariz.) proposal -- known as the SAVE LIVES Act -- to set a 2009 deadline for all broadcasters to vacate the analog spectrum. Instead, the Committee approved a 2008 deadline for broadcasters on analog spectrum approved for public safety. NAB said it would affect 75 broadcasters, including many Paxson and Univision stations. Several senators said there were doubts whether the legislation would pass this year because Congress is focusing on appropriations and elections.

The Burns amendment has many similarities to the HERO Act pushed by Rep. Harman (D-Cal.). The HERO Act (HR- 1425), which had languished in Congress, got new life after the 9/11 Commission report recommended passage of its provisions. The HERO ACT set a 2006 deadline to remove analog broadcasters from spectrum allocated for public safety: 764-776 MHz (channels 63, 64) and 794-806 MHz (channels 68, 69). McCain emphasized the public safety aspect of the SAVE LIVES Act, which also included provisions to help the Dept. of Homeland Security coordinate interoperability and other public safety concerns. The Burns amendment didn’t affect those provisions.

Several senators and public safety advocates expressed concern about one provision in Burns’ amendment that was described McCain as a “mile-wide loophole.” The amendment gave the FCC the power to waive the deadline requirements “to the extent necessary to avoid consumer disruption.” McCain, Sen. Boxer (D-Cal.) and a host of public safety groups said the provision could allow broadcasters to block the transition by claiming consumer disruption. Burns told Boxer he wouldn’t take the provision out, which she said had to be done to win her support. Senate Commerce Committee ranking Democrat Hollings (S.C.), who supported the Burns amendment, said the provision was necessary to give the FCC flexibility, though he admitted potential for abuse.

Burns said McCain’s bill, which established a 2009 deadline for all broadcasters to vacate the spectrum, could make 73 million TV sets useless. When asked about cable availability, Burns said many rural TV viewers -- including many in his state -- didn’t use cable and the effects could be damaging to his constituents. Burns, along with Sen. Cantwell (D-Wash.), also questioned whether McCain’s proposal for a $1 billion subsidy for converter boxes would be enough to cover analog viewers. McCain said the subsidy was intended to support low-income viewers who relied on over-the-air broadcast, not middle- class and wealthy households that use analog TVs as supplements to cable viewership.

Burns acknowledged the spectrum needed to be cleared for public safety purposes and Hollings said the Burns amendment took only the portion of spectrum that was necessary. McCain argued it was discriminatory, particularly to Spanish-language TV stations, to evict only a few broadcasters. McCain said 33% of the stations that had to vacate would be Spanish stations. Sen. Nelson (D-Fla.) expressed particular concern over the stations that would be evicted, since Univision and Paxson are headquartered in Fla. He said the provision would take the Miami Univision station, the top station in the market, off the air. Tampa, Sacramento and Philadelphia would also lose their Univision station, and Paxson would lose stations in San. Francisco, Boston, Indianapolis and Dallas, Nelson said. Nelson asked how NAB -- which initially opposed the HERO Act but supported the Burns amendment to weaken the tougher SAVE LIVES Act -- could “stick it to its members.” McCain said he supposed someone had to be “thrown over the side.”

Other Republican senators also supported tougher requirements on broadcasters. Sen. Ensign (R-Nev.) said the Burns amendment would gut the SAVE LIVES Act, which he didn’t think was aggressive enough. Ensign is also the sponsor of Satellite Home Viewer Improvement Act (SHVIA) legislation that would let DBS broadcasters deliver HDTV content in so-called “digital white areas.” Ensign said SAVE LIVES Act should have set a 2007 deadline for all broadcasters to get off the analog spectrum: “We should set a hard date and go for it.”

Sen. Sununu (R-N.H.) said he had concerns about delaying the 2006 transition deadline set forth in the 1996 balanced budget act: “We need to send a signal that this transition is coming.” Sununu said the 85% adoption threshold established in the 1996 Act was “silly” and should also be abandoned. Sununu even questioned whether a subsidy for converter boxes should be approved -- since it’s unclear how large a subsidy would be needed -- and if funding for first responders should be in the bill. “There’s already a lot of programs that exist for first responders,” Sununu said.

McCain attempted to attach a 2nd-degree amendment to Burns’ amendment that would add Burns amendment to the bill but not nullify his underlying language. McCain’s amendment would have essentially set a 2008 deadline for broadcasters in the public safety spectrum and a 2009 deadline for all other broadcasters. The amendment failed 13-9. Burns attempted to move an amendment that would have established a fund in the Agriculture Dept.’s Rural Utilities Services that would help rural stations pay for DTV transition. McCain called the amendment “outrageous” and Burns withdrew it before a vote.

Sen. Lautenberg (D-N.J.) won approval of an amendment that would require the FCC to establish guidelines for “locally originated programming, local electoral and public affairs programming and independently produced programming for television broadcast.” The guidelines would be used by the FCC as part of its license renewal procedure. FCC Comr. Copps said he supported the measure, which would place more emphasis on localism. “People want more locally-originated programs, better campaign and public affairs coverage, and more independently-created programming instead of the nationalized, one-side-fits-all diet that big media foists upon us. It’s time for the FCC to get the message,” Copps said.

NAB said it was pleased to see the Burns amendment pass. “Today’s vote balances the legitimate needs of public safety providers while limiting the disruption of local television service to millions of consumers,” NAB Pres. Edward Fritts said. The High Tech Broadband Coalition, which includes TIA and the Business Software Alliance, said it supported McCain’s efforts to accelerate the DTV transition.