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An FCC incentive auction of broadcast TV spectrum will likely "fail" if, as expected, Congress adopts Republican House authorizing legislation, according to Blair Levin, the chief architect of the FCC’s 2010 National Broadband Plan that first proposed the auction."The legislation ties the FCC’s hands in a variety of ways," said Levin, who left the FCC following release of the broadband plan and is now attached to the Aspen Institute. "It opens it up to litigation risk, which then, in conjunction with the other handcuffs, makes it difficult to pull off a successful auction.
"The nature of the bill dramatically increases the probability that there will be less spectrum recovered and less money for the [U.S.] Treasury."It prevents any forced relocation to an inferior channel assignment and makes clear that this is a one-time auction with a sunset on the FCC’s authority to repurpose broadcast spectrum.
And the measure would set aside $3 billion to compensate broadcasters for costs associated with "repacking" — the wholesale switching of channels that would occur after the FCC identifies the spectrum it will have to auction and consolidates it into large swatches that can be more easily auctioned.
Such provisions were championed by the National Association of Broadcasters, which from the start has been wary of incentive auctions and how they might impact the broadcasting business.
But Levin said that the protections undermine the intent of the original incentive auction proposal, which was to produce more spectrum for wireless broadband.
Levin is principally concerned about the "reasonable efforts" language, which, he said, "definitely makes the FCC more vulnerable to litigation. Nobody wants to go to an auction when there is the threat of a judge anywhere having the ability of holding it up. I believe a good lawyer could find a way to get the question of whether the FCC took all reasonable efforts in front of a judge,” he said.If given his way, Levin would adopt a bill stating simply that "the FCC shall have the authority to share revenues with any licensee that contributes its spectrum to an auction. ’’
Levin’s suggestion mirrors spectrum language contained in a White House Jobs bill (S. 1660).
Acting under broad authority, the FCC would take steps on its own to protect broadcasting, Levin said. "You can get a good deal for the public and preserve broadcasting. I am not saying we should eliminate broadcasting.”
But broadcasters are not so sure about Levin's interest in protecting broadcasters.
Said one TV industry source: “This is just Blair being Blair. Remember that by [former FCC Chairman] Reed Hundt’s own admission, he and Blair were plotting 20 years ago to replace broadcasting with broadband.
"Why should anyone be surprised that Blair now objects to a bill designed to protect hundreds of TV stations from being involuntarily forced off the air?”
Levin conceded that there is probably little that can be done to derail the Walden legislation with NAB-endorsed broadcaster protections.
"Congratulations to [NAB President] Gordon Smith," he said. "He did a great job. He did the job he was hired to do. I respect him for that.
"But let’s not kid ourselves: That’s not putting the United States first. That’s not putting getting spectrum into the bloodstream of our economy first."