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October 1, 2011 marks the triennial deadline for full power television stations (and a few lucky qualifying LPTV stations) to send their written must-carry or retransmission consent elections to each of the cable and satellite providers serving their market. The elections made by this October 1st will govern a station’s carriage rights for the three-year period from January 1, 2012 to December 31, 2014, and the impact of these elections will be far more significant for individual TV stations than any made before.

To understand why, keep in mind that in the early days of must-carry/retransmission consent elections, the lack of local competition among cable providers allowed them to take a “my way or the highway” attitude toward television broadcasters. As cable subscribership soared, and local cable providers faced little or no competition for subscribers, broadcasters had little choice but to make their programming available for retransmission. Because cable providers were in a position to refuse to pay cash for retransmission rights, the largest broadcasters were limited to negotiating for non-monetary compensation (e.g., obtaining carriage for an affiliated program service, which led to the launch of Fox News, among others). Smaller broadcasters typically did worse, as they had a weaker negotiating position and little need for non-monetary compensation like guaranteed carriage of a non-existent second channel. These were the days before digital multicasting made such additional local channels at least plausible.

Faced with these challenges, many stations just elected must-carry, which guaranteed cable carriage while avoiding the need to engage in prolonged negotiations likely to result in little gain. That all changed with the arrival of satellite television providers, who provided competition to cable, and more importantly, needed local TV signals to take market share from cable providers. Both of these developments were critical to creating a free market for the retransmission of broadcast programming. First, because they lacked cable’s monopoly position, satellite providers were willing to pay cash to obtain the broadcast programming that would allow them to compete for subscribers. Second, as subscribers left cable for satellite, cable providers suddenly had to compete for subscribers, and couldn’t do it without ensuring continued access to local broadcast signals.

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Paul A. Cicelski

As I reported last month, my colleague Dick Zaragoza and I filed a Petition with the FCC asking for a further extension of the deadline for EAS Participants to implement the Common Alerting Protocol (CAP) standard for the Emergency Alert System (EAS).

We filed the Petition on behalf of representatives of all EAS Participants, which included the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. Today, the FCC released an Order agreeing with the need for an extension and changing the CAP deadline from September 30, 2011 to June 30, 2012.

The extension means that the thousands of EAS Participants across the country now have additional time to acquire and install the equipment needed to become CAP-compliant. In its Order, the FCC agreed with the arguments made in the Petition by the broadcast and cable industries that a later deadline was necessary in light of the regulatory uncertainty that remains regarding what is necessary for CAP compliance, particularly because the FCC’s EAS Third Further Notice of Proposed Rulemaking (released in May and which we reported on here) will undoubtedly lead to significant EAS rule changes that could alter the requirements for EAS Participants in a way that would impact the manner in which they will go about buying, installing, testing and operating new CAP-compliant EAS equipment. In short, the extension will enable EAS Participants to review and adapt to the final rules adopted or altered in the EAS proceeding.

According to the FCC’s Order, the extension is warranted because “until the Commission has completed its rulemaking process, it cannot meaningfully impose a deadline by which EAS Participants must be able to receive CAP-formatted alerts.” The Commission further stated that no one “can comply with section 11.56 yet, because the Commission has not finalized all the key technical specifics necessary for receiving CAP-formatted alerts” and that it is “unlikely that the Commission can address all of the issues raised in the Third FNPRM and ensure that the corresponding Part 11 rule amendments are adopted and effective prior to the current September 30, 2011 deadline.” Primarily for these reasons, the FCC extended the deadline to allow “adequate time to evaluate the impact of any changes to Part 11 before being required to comply with regulations the full impact of which cannot yet be known.”

On another positive note, the Commission’s extension of the CAP-compliance deadline may allow the first-ever National EAS Test scheduled by FEMA and the FCC (set for November 9, 2011) to run more smoothly. The hope is that, as argued in the Petition, the extension of the CAP-compliance deadline until June of next year will allow participants in the scheduled November 9, 2011 National EAS test to focus on the success of that test instead of being concerned with the functioning of newly-installed EAS equipment. For those interested in more background on the National EAS test, we previously reported on it here and here). With this most recent extension of the EAS CAP deadline, we hope we will be able to later report that the national test went smoothly.

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For those of you who remember the sense of relief you felt as a kid when you forgot to study for a test and later found out that class was cancelled, the FCC is giving you a chance to enjoy that feeling again. Despite the fact that annual regulatory fees were due yesterday, September 14, 2011, the FCC announced late today that the filing deadline is being extended until 11:59 pm ET tomorrow, September 16, 2011.

That may be a relief to many, as this year the FCC did not send out individual notices of the fee filing deadline to licensees, meaning that the number of licensees who forgot to file is likely higher this year than is typically the case. However, that is not the reason for the extension. Those who waited until the last minute to file their fees discovered that the FCC’s electronic filing system was struggling under the load. Because of this, the FCC decided to grant the extension to make sure no one can complain that they tried to file on time but were prevented by the system from meeting the filing deadline. In other words, there’s no excuse for missing the filing deadline now!

Because regulatory fees paid by check must reach the FCC’s lockbox in St. Louis by the deadline, the more practical way of meeting the new deadline is through the use of a credit card for payment. Fees received after the deadline are subject to the automatic 25% late fee.

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In an uncertain economy, obtaining financing for business transactions can be a challenge. It can be even more challenging for FCC licensees, since FCC rules prohibit granting a security interest in an FCC license. Because lenders want an enforceable lien on all of a borrower’s assets, when those assets include FCC licenses, agreements must be structured carefully to give a lender all of the economic benefits of holding a security interest in the FCC license, without taking a security interest in the license itself.

The standard approach has been to provide the lender with a security interest in the “proceeds” of a license sale. That approach was called into question last October after a decision by the Colorado Bankruptcy Court (In re Tracy), which held that a security interest in the proceeds of an FCC license does not survive bankruptcy. While many communications lawyers saw this decision as an aberration, and the New York Bankruptcy Court (In re Terrestar Networks) rejected it outright in reaching an opposite conclusion last month, just a few days after that New York decision, on appeal, the Colorado U.S. District Court affirmed the reasoning in Tracy, once again opening the issue to debate.

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In the past few days, details have emerged from the White House regarding the funding sources being proposed to cover the cost of the American Jobs Act. In the government’s search for cash, it should surprise no one that in addition to broadcast spectrum auction language (which seems to be in every new funding bill these days), spectrum fees are also being proposed. While there is some good news for television broadcasters, who are exempt from the fees in the current draft of the bill, you can never tell if that exemption will survive the rough and tumble legislative process. Radio broadcasters aren’t so lucky–no exemption for them.

One trend is clear–the government’s growing reliance on fees from broadcasters and other FCC license holders. When I started practicing in the 1980s, the FCC did not generally charge fees. Congress later instructed the FCC to collect a fee for each application or report filed, and to set the size of the fee at an amount that would cover the cost of processing that particular application/report. While there was some grumbling about having to pay the FCC to process reports that the FCC had required be filed in the first place, most understood that the government was not going to surrender this newly-found revenue source.

However, when Congress later required the FCC to also collect annual regulatory fees from spectrum users in amounts sufficient to cover the FCC’s total operating budget, spectrum users cried foul. They were already paying a filing fee to have the FCC process their applications, and now were expected to pay a separate annual fee to cover all of the FCC’s operating costs (including application processing). This meant that the government was double-dipping–collecting fees under the guise of “covering costs” that in fact exceeded those costs. To his credit, Commissioner McDowell acknowledged this strange situation in 2009, when he urged the FCC to “take another look at why we continue to levy a tax of sorts of allegedly $25 million or so per year on industry, after the Commission has fully funded its operations through regulatory fees. That money goes straight to the Treasury and is not used to fund the agency.” Despite the protests, the FCC continues to be required by Congress to collect those fees, which increase every year.

So broadcasters and other spectrum users can be forgiven if they are skeptical of calls for yet one more government fee on their existence. Even if the exemption for television broadcasters stays in the bill, that is limited comfort for TV licensees, since any spectrum fee adopted will almost inevitably creep over to television as Congress continues its search for revenue sources that can be called “fees” rather than “taxes.”

Sensitive to these complaints, the White House attempted to bolster its case in a summary of the bill, stating that “it is expected that fees would encourage efficient allocation and use of the radio spectrum, as the opportunity cost of spectrum resources would be reflected to commercial license holders that did not receive authorizations through competitive bidding.” This perennial argument, that broadcasters shouldn’t complain about any governmentally-imposed burden because “they got their spectrum for free,” remains one of the urban legends of Washington. Like most urban legends, however, it has no basis in fact.

Very few current broadcasters “got their spectrum for free.” The FCC has been auctioning off broadcast spectrum for over a decade, and broadcast stations that were licensed before that time have typically been sold and resold at “fair market value” many times over the years. As a result, it is a rare broadcaster that currently holds a broadcast license obtained directly from the FCC “for free”. Most broadcasters have paid dearly for that license, both in terms of the station purchase price and the public service obligations that come with the license.

Still, fee proponents argue that because the original license holder didn’t have to pay the government for the spectrum, the “free” argument still applies, no matter how many times the station has changed hands since then. That argument is eviscerated, however, by a simple analogy. When the United States was settled, the government issued land grants to settlers who “staked a claim” to virgin territory by promising to make productive use of that land (the “Sooners” being one of the better-known examples). Other than the promise to use the land, these settlers did not pay the government for their land grants. The land then passed from generation to generation and from seller to buyer many times in the years since the original grant. However, despite the fact that the original owners “got their land for free”, I would wager there are few homeowners among us who would agree that we received “our” land for free, much less accept a governmental fee premised on that assertion.

How spectrum/licenses were originally assigned by the FCC (or its predecessor agency) many years ago bears no more relevance to today’s broadcaster than 19th century land grants relate to the modern homeowner. In both cases, the original owner lived up to its commitment to the government to make productive use of the asset, and was therefore permitted to eventually sell its claim to others. To assert that these buyers are somehow suspect beneficiaries of land or spectrum ignores reality. Today’s broadcasters are merely the spiritual descendants of a different kind of settler–the pioneers of the airwaves.

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Yesterday, the reinstatement of the FCC’s “video description” rules finally became official with their publication in the Federal Register. It has been a long time coming, given that the rules were originally created by the FCC in 2000. In short, the reinstated rules require large-market broadcast affiliates of the top four national networks, and cable/satellite systems (MVPDs) with a large number of subscribers, to provide programming with video descriptions to their viewers.

“Video description” is defined by the FCC as the “insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses in the program’s dialogue with the goal of making video programming more accessible to individuals who are blind or visually impaired.” The FCC’s original adoption of the rules in 2000 was challenged by the Motion Picture Association of America, among others, in the United States Court of Appeals for the District of Columbia Circuit. In its 2002 decision, the Court vacated the FCC’s rules, holding that the FCC had “insufficient authority” to enact such rules.

In a very slow but deliberate response to the Court’s decision, Congress gave the FCC explicit authority to adopt video description rules in the Twenty-First Century Communications and Video Accessibility Act of 2010 (TCCVAA), which became law in October of 2010. As we reported previously here, the TCCVAA mandated that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules that had been vacated by the D.C. Circuit.

As required by Congress, the FCC issued an Order late last month announcing the reinstatement of its video description rules. According to the FCC, the most important aspects of its reinstated rules are:

  • Full-power affiliates of the ABC, CBS, NBC and Fox networks located in the top 25 television markets must provide 50 hours of video-described prime time and/or children’s programming each quarter;
  • MVPDs that operate systems with 50,000 or more subscribers must provide 50 hours of video-described prime time and/or children’s programming each quarter on each of the top five non-broadcast networks that they carry; and
  • All broadcast stations affiliated with any network (including non-commercial stations) and all MVPD systems must pass through video descriptions contained in programming that they distribute as long as they have the technical capability to do so. “Technical capability” means having all the necessary equipment except for items that would be of minimal cost.

The TCCVAA also requires the FCC to eventually expand the broadcast requirement to the 60 largest markets, and the Commission has designated July 1, 2015 as the date when ABC, CBS, NBC and Fox affiliates in markets 26-60 (based on the Nielsen market rankings as of January 1, 2015) will be required to provide video description on 50 hours of prime time and/or children’s programming each quarter.

While the video description rules will technically become effective on October 8, 2011, the FCC indicates that broadcast stations and MVPDs will not be required to begin full compliance with the rules until July 1, 2012. Even though July 2012 sounds like the distant future now, broadcasters and MVPDs should acquaint themselves with the new rules as soon as possible. The FCC’s Order reinstates dozens of rule provisions, some of which are highly technical and will require significant effort on the part of broadcasters and MVPDs to ensure that they can comply in time or obtain waivers where necessary.

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The FCC today filed its Brief at the U.S. Supreme Court defending its actions against Fox and ABC programming it found to be indecent. In the case of Fox, the alleged indecency was celebrity expletives uttered during the 2002 and 2003 Billboard Music Awards, while ABC was fined for rear nudity shown during an episode of NYPD Blue. As I wrote earlier, the fact that the Court is reviewing such disparate forms of indecency (fleeting expletives during live programming versus nudity during scripted programming) increases the likelihood of a broader ruling by the court regarding indecency policy, as opposed to a decision limited to the very specific facts of these two cases.

When the Supreme Court was contemplating whether to hear the FCC’s appeal of the lower court decisions, some broadcasters urged the Court to look beyond these particular cases and rule on the continued viability of Red Lion. The Red Lion case is a 1969 decision in which the Supreme Court ruled that it was constitutional to limit broadcasters’ First Amendment rights based upon the scarcity of broadcast spectrum. The logic behind Red Lion was that since there isn’t enough spectrum available for everyone to have their own broadcast station, those fortunate enough to get a broadcast license must accept government restrictions on its use. Red Lion is the basis for many of the FCC regulations imposed on broadcasters, but the FCC’s indecency policy is Red Lion‘s most obvious offspring.

While Red Lion is the elephant in the room in any case involving broadcasters’ First Amendment rights, its emergence in the Fox/ABC case was particularly unsurprising. In an earlier stage of the Fox proceeding, the Supreme Court reversed a lower court ruling that the FCC’s indecency enforcement was an arbitrary and capricious violation of the Administrative Procedure Act. The Court’s decision was not, however, a show of unanimity. The 5-4 decision included a main opinion from Justice Scalia, but also two concurrences and three dissents. The most interesting aspect of the fractured decision came from Justice Thomas, who joined the majority in finding that the FCC had not violated the Administrative Procedure Act, but who also noted the “deep intrusion into the First Amendment rights of broadcasters” and questioned whether Red Lion was still viable in the Internet age.

It is certainly true that much of the logic supporting Red Lion has been undercut by a changing world. There are now far more broadcast stations than newspapers, but no one argues that the scarcity of newspapers justifies limiting their First Amendment rights. Similarly, the Internet has given those seeking not just a local audience, but a national or even international audience a very low cost alternative for reaching those audiences. While broadcast stations may still be the best way of reaching large local audiences, they are no longer the only way.

These are just a few of the many changes occurring since 1969 that weaken the foundation of Red Lion. If you put two communications lawyers in a room and give them five minutes, they will be able to generate at least a dozen other reasons why Red Lion‘s day has passed. Try this at your next cocktail party. It’s far better than charades and communications lawyers need to get out more anyway.

It is therefore not surprising that broadcasters accepted Justice Thomas’s invitation and urged the Court to reconsider Red Lion in evaluating the constitutionality of indecency regulation. What is interesting, however, is that when the Court agreed to review the lower court decisions, it explicitly limited its review to the constitutionality of the FCC’s indecency policy, and declined to consider the broader questions raised by Justice Thomas with regard to Red Lion.

While some saw that as a defeat for broadcasters, I am inclined to think it was something else entirely. Although the composition of the Court has changed a bit since 2009, it is worth noting that four justices questioned the FCC’s indecency policy then, and a fifth justice explicitly questioned Red Lion, the very foundation of that policy. Given that it only takes the votes of four justices for the Court to agree to hear an appeal, the exclusion of Red Lion from that review is curious, and it is certainly possible that Justice Thomas is alone in his concern about the continued viability of Red Lion.

More likely, however, is that the Court is adhering to its long-held doctrine of keeping decisions as narrow as possible when addressing the constitutionality of a particular law or regulation. If that is the case, then the justices may well have concluded that the FCC’s indecency policy, at least in its current form, cannot survive constitutional review, and that there is no need to consider the broader issue of whether the government has any viable basis for regulating broadcasters and broadcast content. Stated differently, If the Court was inclined to uphold the constitutionality of the FCC’s indecency policy, an assessment of the continued viability of Red Lion would be critical to that decision, since a constitutional policy for which the government lacks a constitutional basis to impose on broadcasters is still unconstitutional.

While it is always a risky endeavor to attempt to “read” the Court, the entire basis of indecency policy is to protect children from content the government finds unsuitable for them. It is therefore telling that on the very day the Court agreed to hear the FCC’s appeal, it also released a decision overturning a California law prohibiting the sale of violent video games to minors, finding in a 7-2 decision that the law infringed upon the First Amendment, regardless of its intent to protect children. That decision makes clear that the Court will not merely accept “protecting children” as a valid basis for limiting First Amendment activities.

Of course, the California ban on sales of violent video games to minors affected only minors, whereas the FCC’s restriction on indecency limits the broadcast content that everyone–adults and minors alike–can access from 6am-10pm every day (the hours during which indecent broadcast content is prohibited). That fact, combined with the reality that there is far more “First Amendment” speech (political and otherwise) on radio and television than in most video games, means that the FCC may have a tough job convincing the Court that the FCC’s indecency policy can coexist with the First Amendment.

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Late-Filed License Application Garners $7,000 Fine
  • FCC Fines Noncommercial Broadcaster $5,000 for Alien Ownership Violation

“Inadvertent Error” Results in $7,000 Fine for West Virginia Broadcaster

The FCC recently issued a combined Memorandum Opinion and Order and Notice of Apparent Liability (the “Order”) fining a West Virginia FM broadcaster for unauthorized operation and failure to file a required form. The base fines associated with these types of rule violations total $13,000. However, based on the circumstances detailed below, the FCC decided to reduce the overall fine to $7000.

The licensing process begins with the grant of a construction permit and concludes with the grant of a station license authorizing permanent operation of the newly-constructed facilities. Pursuant to Section 73.3598(a) of the FCC’s Rules, construction must be completed within three years and a license application must be promptly filed with the FCC when construction is completed. Subsection (e) of this rule provides that a construction permit will be automatically forfeited upon its expiration if construction is not completed and a license to cover application has not been filed within the allotted three year period.

In the instant case, the FM broadcaster was forced to utilize an emergency antenna as a consequence of a 2002 tower collapse. In June 2004, the FM broadcaster sought to modify its station to relocate its authorized tower site to a location less than two miles away. As part of this process, the FM broadcaster filed an application for a construction permit. The FCC granted the application in July 2004 and issued a construction permit slated to expire in July 2007.

According to the Order, the FM broadcaster filed its license application in May 2011, almost four years beyond the expiration of the 2004 construction permit. The license application included a request for a waiver of Section 73.3598(e), indicating that the authorized construction had been completed by April 2006, well in advance of the three year expiration date, but that due to an “inadvertent error”, the license application was not filed prior to the construction permit’s July 2007 expiration.

In support of its waiver request, the FM broadcaster cited a May 2011 case in which the FCC had “affirmed the staff’s practice of waiving Section 73.3598(e) of the Rules in situations where the applicant conclusively demonstrates that it completed construction prior to the expiration of the construction permit, notwithstanding the tardy filing of the license to cover application.” In response, the FCC’s Order noted that the prior waivers occurred where the delay in meeting the deadline was “relatively minor”, as was the case in the cited May 2011 decision, where a license application was filed three days after the expiration of the construction permit. The FCC concluded that a four year delay could not be considered minor.

Ultimately, the FCC rejected the FM broadcaster’s waiver request, dismissed the license application, and on its own motion, granted the station special temporary authority to operate while it reapplied for a new construction permit. The FCC levied the full $3,000 fine for failure to timely file a license application, but reduced the unauthorized operation fine (for the period the station operated with modified but unlicensed facilities) from $10,000 to $4,000 since the station had previously held a valid license.

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In 2009, the FCC adopted an Order which expanded the types of commercial broadcast licensees required to file ownership reports on FCC Form 323 biennially. The FCC also established November 1 (of odd-numbered years) as the single national ownership report filing date for all commercial broadcast stations. As a result, all commercial full-power AM, FM, TV, and Class A and LPTV stations, as well as entities with attributable interests in those stations, were due to file their next biennial ownership reports on November 1 of this year. However, the Media Bureau issued an Order yesterday which moves the November 1, 2011 filing deadline to December 1, 2011. The FCC indicates that despite the change in filing date, the ownership reports should still include a snapshot of station ownership as it existed on October 1, 2011.

Keep in mind that the ownership report filing requirement does not apply to TV translators, FM translators, or low power FM stations. The FCC’s action also does not affect noncommercial stations, which continue to file their biennial reports on FCC Form 323-E by a filing deadline determined based upon the state in which they are licensed (rather than a single national date).

According to the FCC, the filing date was moved because “some licensees and parent entities of multiple stations may be required to file numerous forms and the extra
time is intended to permit adequate time to prepare such filings.” Despite providing the extra time, the FCC is still encouraging parties to prepare and file their ownership reports as soon as possible.

Having provided the extra filing time, the FCC will not be too pleased with broadcasters that fail to meet this new deadline. Broadcasters should therefore accept the FCC’s advice and try to avoid last minute ownership filings, which increase the likelihood of technical and other problems that can interfere with a successful filing.

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The FCC this morning announced a “temporary” freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA – the Wireless Association and the Rural Cellular Association asking the FCC to take steps to “prevent further interference caused by TV broadcast stations on channel 51” to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to “(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel.”

What is odd about the FCC’s announcement, however, is that freezes are normally implemented to “lock down” the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today’s notice goes farther than just a freeze, as it “(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment.”

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much “temporarily” grants the wireless industry’s petition.

That last aspect is particularly odd. In contrast to a freeze designed to “lock in” the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn’t already clear where the FCC is heading, establishing a 60-day “window” for low power applicants to clear off of Channel 51 in response to only a “temporary” freeze would make no sense if the FCC didn’t intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC’s action is purely procedural and therefore “not subject to the notice and comment and effective date requirements of the Administrative Procedure Act” will be of little comfort to the low power applicant who waits to see what “permanent” action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.