Spectrum Proceeding Request Based on Outdated Statute, Say TV Lawyers
The law cited by the consumer electronic and wireless industries in seeking an FCC review of TV spectrum allocation is both obscure and moot, said broadcast and communications lawyers. Section 336(g) of the 1996 Telecom Act, the cornerstone of the request by the CTIA and the CEA (CD Nov 18 p1), was superseded by 1997 and 2005 legislation dealing with the DTV transition, they said. The completion of the transition and the auction of what were the analog-TV airwaves to wireless companies also make the provision moot, they said.
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But an ex parte letter from the associations Tuesday may still lead to a rulemaking, because FCC Chairman Julius Genachowski and Executive Director Blair Levin of the Omnibus Broadband Initiative seem intent on adding bandwidth for wireless broadband, said commission and broadcast officials. With work on spectrum reallocation unlikely to be done before the National Broadband Plan must be finished, a rulemaking would give the commission a way to keep dealing with the matter after the Feb. 17 broadband plan deadline, they said. A spokesman for the commission’s broadband effort said the agency is studying the request. A CEA official referred a media inquiry to a CTIA official, who didn’t immediately reply to messages seeking comment.
“The ex parte is a smart move tactically and the timing is impressive,” said lawyer John Hane of Pillsbury Winthrop. “It shows a very high degree of orchestration” -- even though the section “is meaningless today” because of the DTV Act. That law, which set the date for the DTV transition, “obviated both the letter of that section and the narrow concerns that were behind it in the first place,” he said. “This debate is too important to begin with the conclusion and then try to justify it. It may be that the wireless industry needs more spectrum in some places, maybe appreciably more. But so far we haven’t seen any information that really shows a shortage.”
The 10-year evaluation, called for in 336(g), of the market for DTV receivers and alternative uses of spectrum for public safety and other services could be thought to start in 2018 -- 10 years after the digital switch-over, said lawyer Vincent Curtis of Fletcher Heald. “Clearly, as far as the public safety issue goes, the broadcasters just gave up all of the analog spectrum,” he said. “I think this is pretty cheeky but I can understand their position since they have Mr. Broadband sitting on the eighth floor and the White House that is hell-bent to spend taxpayers’ money on the broadband fiasco.”