Community Programmers Lose Fight for Spectrum

(CN) — Upholding regulatory maneuverings meant to improve mobile broadband, the D.C. Circuit handed defeat to television stations focused only on niche, community programming.

Mako Communications and Beach TV Properties brought the underlying challenges on behalf of so-called "low-power television stations" left in the lurch by the federal Spectrum Act.

Passed by Congress in 2012 to address the growing demand for mobile broadband services, the Spectrum Act allows television broadcasters to auction off their spectrum rights so that wireless providers can bid for the existing spectrum. Another provision of the act permits the Federal Communications Commission to "repack" some TV broadcasters into a smaller spectrum.

Neither process offers any protection to low-power television stations, or LPTV stations, which have historically played second fiddle to full-power stations.

Unlike "full-power" broadcasters, LPTV stations carry niche programming catered to particular local communities. If their transmissions ever cross with primary service, regulators expect them to either eliminate the interference or cease operations.

The FCC's implementation of the Spectrum Act is expected to displace or shutter many LPTV stations, but the commission has said its hands are tied.

In an order on the Spectrum Act, the FCC noted that protecting LPTV stations "would increase the number of constraints on the repacking process significantly, and severely limit [its] recovery of spectrum to carry out the forward auction, thereby frustrating the purposes of the Spectrum Act."

Mako and Beach TV's challenges hinged on the argument that secondary-status to full-power broadcasters does not necessarily subordinate LPTV stations to wireless providers.

The D.C. Circuit cut through this argument last week, saying "LPTV stations had been subject to displacement by wireless licensees long before the Spectrum Act."

"LPTV stations' subordination to wireless services had been made explicit by at least 2004, when the commission reallocated a different portion of the spectrum from primary broadcast providers to wireless providers," U.S. Circuit Judge Sri Snirinivasan wrote for a three-judge panel. "In its Digital LPTV Order promulgated that year, the commission adopted procedures under which an LPTV station could be notified of its displacement by a 'primary' wireless service provider."

Snirinivasan said the LPTV stations have missed the mark.

"As was the case under the Digital LPTV Order, LPTV stations can still remain on cleared spectrum until a wireless provider actually displaces them," the Aug. 30 ruling states. "Thus, contrary to petitioners' claims, the challenged orders subordinate LPTV stations to wireless licensees in the same way the commission had done before the Spectrum Act."

R. Scott Caulkins represented the LPTVs for the Arlington, Va., firm Caulkins & Bruce . Caulkins declined to comment.

The D.C. Circuit rejected an unrelated challenge to the Spectrum Act last year by the National Association of Broadcasters.

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