LPTVs Face Loss of Channels as FCC Looks to Downgrade 40

Heightening concern is an unprecedented spate of Media Bureau orders approved starting the day after HR-3630 became law, said attorneys representing low-power stations and owners of those outlets. The bureau has ordered 40 Class A stations since Feb. 23 to show cause why they shouldn’t lose interference protection and become regular LPTV broadcasters, our research found. That’s 8.3 percent of all Class A stations (http://xrl.us/bmyvbk), which under the law are the only class of LPTVs getting the same protections as full-power broadcasters. Links to all FCC show-cause orders are at www.warren-news.com/showcause.htm.

The show-cause orders “are just a thinly veiled attempt by the FCC to clear spectrum” for the agency’s National Broadband Plan targeting 120 MHz of TV frequencies for wireless broadband, said lawyer Francisco Montero of Fletcher Heald, representing a station owner that got an order. “Given that LPTVs and Class A’s have a relatively high percentage of small business and minority owners, this is like evicting residents of low-income housing in order to sell the land to Donald Trump for new condos."

The stations getting orders appeared to have violated many rules for years, in some cases because they couldn’t stay on-air due to lack of money, executives said. “My theory is they're picking the low-hanging fruit right now, and rightly so, because those people have not followed the rules, but when that’s done, what’s next?” asked President Ron Bruno of Bruno Goodworth Network, owner of 11 Class A’s that weren’t targeted. “There is only so much low-hanging fruit,” and all LPTVs “are very, very, very concerned about what the FCC is doing,” he said. NAB President Gordon Smith and other executives worry about broadcasting diversity declining because LPTVs, which backers have said are more likely to be minority owned than full-powers, could go off-air.

Those orders and the bureau’s determination that non-Class A LPTV secondary status means they're not protected from any interference changed the compact the FCC had with the industry, said executives and lawyers. “This is kind of a new world for Class A’s,” said President Greg Herman of Watch TV, owner of 7 such stations. He predicted “many more rounds” of show-cause orders. Class A’s had faced fines previously for violations or weren’t granted the status in the first place rather than risking having it yanked, while industry officials said secondary meant other types of LPTVs couldn’t cause any interference with full-power broadcasters, not that they lacked protection altogether. That changing interpretation “just smells like a giant lawsuit,” said Bruno. “The whole industry has been duped by the FCC -- this isn’t what we signed up for.” The bureau declined to comment.

Full-power broadcasters are also at risk, executives said. Meredith Corp. and Sinclair are among the full-power station owners with translator stations not protected under the new law from being moved without government reimbursement, they said. Full-powers may lose terrestrial access to audiences in rural areas of the West that rely on translators to get rebroadcasts of regular programming, executives said. That has prompted calls from low-powers and full-service broadcasters alike for the NAB to step up its lobbying of the FCC to protect all stations as much as possible in the repacking. NAB members say the association is working on that issue, and Sinclair, the largest owner of TV stations that’s never been a member of the group, joined March 1 in part because of the spectrum issue (CD March 19 p15).

Regular LPTVs can’t afford to change channels in the broadcast spectrum repacking the commission plans before holding the voluntary incentive auction, lawyers and executives said. They said it would cost about $100,000 to change channels, which may require a new transmitter and antenna when slots change say from UHF to VHF. It’s unlikely most low-powers would have that amount of money, or if they do, be able to build out new facilities before FCC construction permits expire and they face the loss of the license, executives said. “Low-power broadcasters thought they got the short shrift” from the law, said General Counsel Craig Parshall of the National Religious Broadcasters association. “We are very concerned."

Other LPTVs may not have anywhere to relocate, because there will be fewer available channels post-repacking, so they'd effectively lose their license, industry officials said. “They probably are going to be placed out of existence,” said President Gary Cocola of Cocola Broadcasting, which owns low- and full-power stations. The industry faces a stark future, some executives said. “It is declaring war” by the FCC on LPTV, said Vice President Mark Aitken of Sinclair. “You destroy low-power, and you literally destroy a voice that literally cannot exist any other way in this country.” Sinclair has 57 translators covering 3 million people in 11 markets, where there are another 182 translators that often are community-owned.

The FCC has never so strictly interpreted the 1999 Community Broadcasters Protection Act that gave those stations the same interference protections as full-powers, lawyers for the stations and executives who own other Class A’s said of the spate of show-cause orders. “I only remember a random here-and-there questioning where a Class A got caught for something else or they were randomly inspected” by a commission staffer, said broadcast lawyer David Oxenford of Davis Wright. “I have never seen anything like the last two weeks.” Such an interpretation now is a change of the FCC’s longtime treatment of Class A’s that may lead to a lawsuit against the commission if it yanks interference protection, executives said. The bureau appears to have had a batch of show-cause orders waiting to go, executives said. It adopted 16 show-cause orders Feb. 23, the day after the spectrum legislation was signed, and issued them later that month, our research found. “They clearly were lined up -- this is a game of poker,” Aitken said.

L4 Media got the orders for 13 stations, and Una Vez Mas for six, our research found. Most of the other orders went to individual stations throughout the country, with another one released Tuesday. (See separate report in this issue.) L4 hasn’t violated any FCC rules, and will oppose the downgrades, said Montero, who represents that company. Una Vez Mas’s lawyer declined to comment.

The FCC ought to issue rules now via a “prospective policy statement” to give all low-powers a clear idea of how they'll be held to account, rather than applying the new interpretation retroactively as it’s doing, said lawyer Peter Tannenwald of Fletcher Heald. “This is the first time that I've seen them go after stations that were dark,” said Tannenwald, with a client that got a show-cause order that will dispute it. “The way they put the letters, there’s no defense.” The bureau proposed to fine some LPTVs that didn’t keep up required records but whose violations weren’t found to be so severe as to warrant downgrade. Full-power TV broadcaster Belo Corp. was among the recipients of bureau proposed fines totaling $58,000 to six Class A stations, our research found.

Some executives fear the FCC will come after full-power spectrum next, although the spectrum law requires the agency to compensate such broadcasters for spectrum. Regardless of the letter of the legislation, what’s happening now with Class A’s is reason for broadcasters of all power levels to work together through NAB to ensure there are enough channels left after repacking for all stations, executives said. “If they don’t stand up right now and defend every piece of spectrum that’s out there for broadcasting, then it’s going to go away,” Bruno said of the NAB. “They're crazy if they don’t defend us, with everything they've got, right now.” The association might want to think about inviting LPTVs to join, said Cocola, whose company is a member because it owns some full-powers.

NAB is looking at how to address the low-power issue, said Smith and Meredith Local Media Group President Paul Karpowicz, head of the association’s joint board. Karpowicz noted “many full-power broadcasters have low-power stations.” That means there “a lot of people” that “will be affected by that, if they get that issue wrong,” Smith said of the FCC and translators. Repacking “gets rid of low-power” stations that give “opportunity for diversity in broadcasting,” he said. “You are going to squeeze out the entry level, those who are trying to get a toehold into broadcasting. They may be the first victims of freeing up space for broadband.”