After Likely LPFM, Ownership Votes in 2012, FCC Media Agenda May Be Light in 2013

A low-power FM order that was expected to have circulated late Friday (CD Nov 9 p17) will be one of the few remaining mass-media issues to get commissioner attention this year, agency and industry officials predicted. They said the way that order deals with waivers for LPFM stations wanting to be two notches on the dial away from a full-power station may be an issue that gets lobbying attention in the three weeks before the Nov. 30 commissioner meeting (http://xrl.us/bnrn2i). An LPFM order Friday night was tentatively scheduled to be voted on at that meeting. The order has “final procedures to approve more than 6,000 pending FM translator radio applications and implementation of the Local Community Radio Act,” the agency said. “These items will represent the final steps toward enabling non-profit groups nationwide to apply for low power radio licenses to further expand the diversity of local voices in the media landscape."

The bureau likely will circulate next week a media ownership order, agency officials told us. Genachowski appears to want the forthcoming order voted on by year’s end, they said. Bureau and FCC spokespeople had no comment for this story.

Tuesday’s re-election of President Barack Obama, and the continuing partisan split among chambers of Congress, won’t likely affect media issues at the FCC, industry officials predicted. That also holds for the outlook on telecom regulation (CD Nov 9 p1). Look for continued oversight of the commission by the next Congress, with the House again GOP-controlled, and for the FCC to continue trying to get accord between the companies and public-interest groups affected by any rules before they're issued, said former FCC chairmen from both parties and a telecom executive. They expect House Republicans to again try to get FCC process reform bills passed, with a Democrat-controlled Senate unlikely to approve any such bills that pass the House.

Regardless of whether Genachowski stays at the FCC, as some now think he could do for at least a few months in 2013 (CD Nov 8 p1), or departs around Inauguration Day as others expect, there may be few high-profile media issues besides spectrum at the commission in the foreseeable future, said agency officials and cable and broadcast lawyers and an executive. Genachowski has made no decision about what to do, he told CNBC Friday. (See separate report below.) “I have no plans to go anywhere,” he said. “This is an exciting place."

The way the agency changes how telcos and others contribute to the USF, as contribution reform is expected to be a priority in the coming year, and any rules for how AT&T holds new interconnection model tests the company seeks (CD Nov 9 p11) may be the areas most affecting cable operators in 2013, commission and industry officials told us. For TV stations, the way the spectrum auction is held and rules on repacking their channels may greatly affect broadcasters, industry lawyers said. “I expect that the Media Bureau’s attention is going to be primarily focused on the spectrum auction matter” in 2013, predicted cable lawyer Paul Feldman of Fletcher Heald.

An FCC during Obama’s second term likely will be “more of the same,” predicted Mark Fowler, FCC chairman under President Ronald Reagan. “In many ways, the FCC will continue to be the FCC -- the Federal Cannot Commission. Net neutrality is a good example.” Fowler thinks the commission went “way overboard” in placing more importance on the needs of carriers for more spectrum for wireless broadband and less on broadcasting as an efficient medium to distribute video, he said. That the agency is looking to free up fallow frequencies for commercial use is good, “because there is a lot of spectrum out there that is not being used, or is being sat on for various reasons, and that’s wrong,” Fowler said. He owns Fowler Radio Group and Digital PowerRadio.

The Association of Public TV Stations expects the auction proceeding to go on in Obama’s second term as February’s spectrum law intended, said APTS President Patrick Butler. “I don’t think either election would have had much to do with how the FCC’s going to deal with this spectrum auction proceeding,” he said of the race between Obama and former Gov. Mitt Romney and the congressional elections. APTS held a webinar last week with bureau officials about the auction process, Butler said. The event was intended to help stations understand what the proceeding is all about, and “what the public TV community’s options are and help them make well-informed choices when the time comes to do that,” he said.

The auction likely will be a non-partisan event at the commission, said Lonna Thompson, APTS executive vice president. This year’s spectrum law made clear that the issue isn’t a political one, because legislators from both parties widely supported that legislation, she said. APTS had some concerns that some stations’ coverage areas would be impacted by the repacking process (CD March 8 p7). “I think the administration and FCC are very interested in making sure that the broadcast industry comes out at the other end of this auction whole and perhaps even stronger,” Thompson said.

The forthcoming order ending the quadrennial review of media ownership rules by the FCC, which was due under the Telecom Act to have been completed in 2012, may not be on any meeting agenda, and may instead be approved on circulation, agency officials predicted. If FCC members begin voting on the draft order before the December’s commissioner meeting, Genachowski likely wouldn’t seek a vote at the Dec. 12 gathering, commission officials predicted. They said that’s because he likely wouldn’t agree to grant an extension of the three-week voting period triggered when three or more members vote on an item, so any colleagues who hadn’t voted wouldn’t be given a delay by Genachowski’s office.

Don’t look for action in 2013 on retransmission consent, if there aren’t many high-profile blackouts of TV stations on multichannel video programming distributors, predicted a commission official and broadcast and cable lawyers. If the commission continues to hold off issuing new rules for what constitutes bad faith in retrans negotiations, that would be positive for broadcasters and negative for MVPDs that sought expanded retrans rules, industry attorneys said. The FCC may not take much action next year on cable programming issues, either, said commission and industry officials.

The only possibility on the horizon for the agency to deal with the problems MVPDs that don’t also own content say they face in getting lower prices for programming would be a followup order to October’s ruling ending a ban on exclusive contracts between terrestrially delivered cable channels affiliated with operators (CD Oct 9 p1), industry and agency officials said. Whether the agency will issue such a followup order in 2013 remains to be seen, agency and industry officials said. They said they don’t now expect an ambitious order that would address many of the programming practices non-vertically integrated MVPDs complained about, such as volume discounts on what programming costs per subscriber. Such non-affiliated MVPDs continue to have “an interest in further relief” on programming cost issues, said Fletcher Heald’s Feldman, who’s unsure if the commission will act in this area.

For now, the agenda at the FCC seems unchanged, said CEO Matt Polka of the American Cable Association. A change in leadership at the commission would raise questions of how the next chairman’s office would approach pending issues, he said. “That’s probably one of the biggest questions out there,” he said. “What changes [from the new Obama administration] ultimately flow through to the FCC, in terms of the personnel leading the organization?” ACA and members will continue to ask Congress to change retrans law, Polka said. “Things are teed up to move forward, and we certainly hope they move forward sooner rather than later.” That could mean legislation based on a video bill introduced by Sen. Jim DeMint, R-S.C., and Rep. Steve Scalise, R-La., this Congress, or something tied to renewing the DBS industry’s distant-signal authorization in 2014, Polka said.