Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C

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1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C In the Matter of ) ) Amendment of Parts 73 and 74 of the ) MB Docket No Commission s Rules to Establish Rules ) for Digital Low Power Television and ) Television Translator Stations ) ) Expanding the Economic and ) Innovation Opportunities of ) GN Docket No Spectrum through Incentive Auctions ) Amendment to Part 15 of the ) Commission s Rules to Eliminate ) ET Docket No Analog Tuner Requirements ) To: The Commission NATIONAL TRANSLATOR ASSOCIATION REPLY COMMENTS IN THE THIRD NOTICE OF PROPOSED RULEMAKING The National Translator Association (NTA) offers the following reply comments as contemplated in FCC A1, released October 10, The comments address comments made during the initial comment period ending January 12, 2015 and will address them as identified in the text following. 1

2 1. Introduction: As stated in our initial comments in this proceeding, the NTA is a not-for-profit service organization that represents many television translator licensees, permittees and applicants whose facilities provide free over the air TV service to millions of rural U.S. residents who live in areas not effectively covered by over the air TV broadcast service from full service television broadcast stations or their networks. Most of these facilities are operated by small associations, clubs, special revenue districts or rural county governments, virtually all of which are themselves nonprofit and lack the resources to afford timely access to expertise that would enable them - once again - to redesign their systems, change channels or rebuild in new locations at their sole cost to accommodate another new federally imposed channel mandate. It is the NTA s mission to provide support to licensees, programmers and viewers of the TV translator service so that the audiences, however they may be disadvantaged by low income, sparse population density, age, ethnicity or other causes, have a fair chance at receiving television service. While translator service may not be comparable with urban services with large channel lineups, it does provide basic entertainment, education, news and emergency broadcasts to an audience that needs these services. The Commission has paid lip service to these needs but when it comes to serious measures to avoid degradation or even loss of translator services, the Commission has fallen short. 2

3 2. Comments of the National Association of Broadcasters (NAB). a. This organization has effectively and succinctly expressed its concerns as to how the Incentive Auction and subsequent band repacking will injure television service from LPTV and translator stations. We completely concur with the NAB's statement that while the FCC has, both over the years and quite recently, expressed how important the LPTV and translator service is to rural and underserved audiences, how it represents and supports the idea of diversity of service and of ownership and how that service must be protected, the agency then turns about and effectively shrugs off its involvement in what will be a probable debacle for the LPTV and translator service. How does it do that? The FCC now claims it is only charged with doing what the Congress has legislatively commanded and is thus unable to take steps to actively protect the LPTV and TV translator service. This assertion is made by the same FCC that devised the incentive auction and repacking plan and passed it to Congress with the intent that it become law. b. As noted by the NAB, the Commission has acted as though the repacking process is out of its control. Notably, the variable band plan was a Commission choice - one with which the NAB has taken issue - and we have the same concern. It is obviously easier to earmark more capacity for repacking outside the top markets where it will be difficult to find the optimum number of repurposed facilities. However, nothing in the Spectrum Act requires this approach. Successful bidders will of course protect their investments by means of rapid buildout in the largest markets first. It makes no sense to offer them spectrum in markets with fewer customers. It is well understood that the ready availability of more spectrum in rural areas is based on an insufficiently supported assumption. In point of fact, when all TV translator distribution is considered including both input and output channels, the impression of open vistas of unused spectrum disappears quickly. 3

4 The NAB wisely reviews the variable band plan as disproportionately harmful to LPTV and TV translator stations. Indeed, the NTA concurs with this statement, particularly as it affects translators and especially interconnected translator systems. As channels are shuffled in and around urban areas to accommodate the auction, translator input channels will be lost and new interferors/interferees will appear to translator output channels. It must be noted that within km of the larger markets, many translator systems exist. Because the interference environment is especially complex in these areas (both urban and rural transmitters must be protected by translators), the loss of a single channel in an interconnected translator system serving several towns can upset many viewers in several small communities. Finally, we note here that some of these distribution problems could be solved by terrestrial microwave or other means of delivery, but the FCC s approach, intended to harvest and redistribute billions of dollars, leaves the translators with an unfunded mandate which they can ill afford. As an example, a carefully designed group of translator systems in Northeastern Colorado called Region One has served many small communities by carrying front range area TV stations for many years. A cursory look at the structure of this network will reveal that loss or change of a small number of channels in the front range area could disrupt service to up to fifteen communities in six counties. To accommodate that, the Region One system operators would have to effectively redesign the complex network of interconnected channels and, while doing so, service to many viewers would be lost. Additionally, significant costs associated with the redesign and changes of channels, equipment and antennas would be borne by this small nonprofit entity if the system is to be restored to full operation. The variable band plan must be abandoned, both to avoid the unpredictability of its outcome with respect to the Longley-Rice interference model and to avoid the absolutely predictable loss of more LPTV and TV translator services than necessary. 4

5 c. The FCC proposes that there will be at least one channel in each market reserved for unlicensed use. The LPTV and translator operators have, since both such services were developed, been considered secondary to full service broadcasters operating with the same service and in the same band and a limited number of land mobile licensees in some cities. Licensees have accepted and lived with that secondary status for years and have respected their full service "elders" right to primacy. It has never been fact that any other service whatever whether or not licensed which desired the use of the TV band would supercede the extant rights of licensed services such as LPTV and translators. However, the FCC's declaration of a dedicated channel for unlicensed services in "all areas of the United States" at the end of the auction process is a severe, unexpected and inefficient blow to the efforts, money and expertise translator operators have steadfastly put into providing TV service to their neighbors. Indeed, we fear that many such channels will turn dark and will, particularly during important parts of many days of the week, lie fallow and remain stone silent in anticipation of the occasional unregulated, unlicensed TVWS device use. NTA has generally supported unlicensed services where they do not interfere with licensed services. In the same way that translators have been secondary to full service facilities, TVWS devices could function as secondary to licensed services. Earmarking an exclusive preserve, whether it be 6 MHz or another value, is not supported by sound analysis of needs or technologies. It subordinates progress and engineering flexibility to a rigid per se rule. We agree with the NAB that this is a mistake and thank the National Association of Broadcasters for their understanding of the real world facing LPTV and translator stations. 5

6 3. Comments of the Advanced Television Broadcast Alliance (ATBA) and of the LPTV Spectrum Rights Coalition (LSRC). Both entities have commented in favor of not setting a construction date for LPTV and translator facilities until well post-auction. While exact timing and details may vary, the uncertainty of construction before the completed repacking plan, together with the possible follow-on of the Digital-to-Digital Replacement Translators (D2DRTs), produces much uncertainty in the interference and coverage environment. Thus, it is NTA's belief that a construction deadline for outstanding LPTV/TV translator proposals should be set at least a year after the auction outcome. Until that date, neither the FCC nor station proponents will know enough about the environment to craft station proposals which have any hope of longevity. Additionally, pressing LPTV and TV translator licensees to construct facilities too hastily is a subject of these comments. Thanks to the uncertainty of the marketplace, at least two manufacturers have left the industry supplying TV translator equipment. Other vendors who remain in the industry will be busy with the effects of the repack for some time to come and will thus be unavailable to the translator licensees whose stations may need to be modified, moved or whose pending CPs must be built. Accordingly, a dearth of technical assistance will delay construction and modification of many displaced facilities. This situation is further pressure to delay the LPTV and Translator construction date until well post-auction. In comments provided earlier in this proceeding, the National Translator Association, the ATBA and the LRSC have advocated for the delay of the auction and subsequent repacking to occur only after the Government Accounting Office has released the results of its ongoing study of the impact of the spectrum auction on LPTV and TV translator stations and their audiences and the FCC has had time to fully evaluate the findings in the GAO report in order to determine if the process unfairly disadvantages 6

7 these small business entities and their rural audiences. This important study was requested by two members, Representatives Barton and Eshoo, of the U.S. House of Representatives Telecommunications subcommittee of the Commerce Committee in the 113th Congress. It is hoped that the study will be completed sometime this year and its results should be entered in this proceeding. The NTA has worked cooperatively with both ATBA and LSRC in efforts to preserve and enhance the LPTV and TV translator service and we are generally supportive of their assertions in this proceeding and appreciate their efforts in behalf of our service. 4. Comments of others (noted in the body of the reply). Open Technology Institute of the New America Foundation and Public Knowledge (OTI/PK) has commented that LPTV and translator stations be required to regularly provide evidence of their operational status in an effort to apprise the FCC (for the use of TV white space proponents) of their operational status. Presumably, this is to allow the FCC to either force construction or channel sharing in order to require a licensee or permittee to move aside to allow the channel's use by TVWS devices. Such a requirement fails to take into account two things. First, its suggestion by OTI/PK appears to be based on the belief that a number of translator and LPTV CPs remain unbuilt due to neglect by their permittees. Indeed, the truth is that many permittees are awaiting a resolution of the uncertainty of the auction/repacking itself. Once the future becomes clarified, it is believed by NTA that many will build quickly. Why? The market works. When there is certainty that a facility can be built and operated without being forced out of operation by the FCC, facilities will be built promptly in order to begin producing a level of revenue required to pay for their construction and operation. Unbuilt CPs are not a willful or neglectful act; they are the result of fear and uncertainty in the marketplace. 7

8 Further, OTI/PK suggests that channel sharing be required of LPTV and translator stations. For reasons outlined in our original Comments, the NTA asserted and here repeats that most translators are not in locations that allow sharing beyond the sharing that already occurs in some instances. Additionally, forcing translators to share channels places an immediate burden of purchasing thousands of dollars of new encoding equipment in order to combine two channels into one translator. Finally and as stated in our original comments, enforced sharing will in all likelihood eliminate the use of High Definition video for one or perhaps more of the shared program streams, thus subjecting rural viewers to a substandard signal. The NTA recognizes the spectral efficiency of shared channel operations between stations, whether they be full service, Class A, LPTV or translators, but the NTA continues to oppose forced channel sharing while not opposing channel sharing agreements that are completely voluntary on the part of participants. It is The National Translator Association s position that these comments of OTI/PK fail to recognize reality and are counterproductive to the discourse on this matter. CTIA/The Wireless Association and Sprint have, in their comments on this proceeding, argued on behalf of turning back the clock of progress a quarter of a century or more in order to use the old F50,10 curves to predict interference caused to wireless operations by broadcast operations. These curves, which have been in use in some services since the 1950s, are long out of date over rugged terrain and commonly predict interference that is wildly in excess of reality. As a result they have, in the television service, been universally replaced by Longley-Rice OET Bulletin 69 analysis. Indeed, as a part of the engineering runup to these auctions, the OET 69 software has been further modified in an attempt to modernize it. If Longley-Rice is used as a technical basis for any part of the auction and repacking, it should be used for all and not be replaced by an obsolete technique whose use was patently - and blatantly - suggested to advantage wireless bidders. 8

9 Comments of others - and experience in the 700 MHz band - have advocated for requiring LPTV and translator stations on an auctioned channel at or immediately following the time of auction of that channel to quickly abandon operation, even when the purchasor of the channel is not yet ready to begin operations. NTA states that allowing LPTV or translator stations to continue their operations until the channel purchasor is actually ready to begin operations is not an unnecessary regulatory or business burden nor has it in practice created problems for any party. Conversely, requiring a licensee to cease operations well prior to the channel purchasor's actually requiring the use of the channel is unfair and pointless and adds insult to injury in the process. The NTA reminds the Commission that the real victims of such a practice are the residents in the rural communities whose TV service is lost as a result. These people will have lost their television signal only to have it replaced first by no signal whatever, and later by a signal which is not usable on the equipment they have been using. This issue and its results are well established. Channels in the 700 MHz auction have been taken from LPTV and translator operators and their viewers by fiat and the signal on which the viewers had depended was replaced by silence - in some cases for periods of years. The Commission has traditionally had a responsibility to concern itself with the rights of small business entities and in this instance, the organizations who can afford billion-plus dollar investments in spectrum should not be allowed to unnecessarily trample the rights of the very small businesses which operate the LPTV and translator stations by taking their spectral real estate from them long before it is needed. Such actions are unnecessary and cruel to rural viewers. 9

10 5. Conclusion. The National Translator Association, in its assiduous efforts to protect the interests of rural TV translator stations and their audiences, stands side by side with the National Association of Broadcasters, the Advanced Television Broadcasting Alliance, the LPTV Spectrum Rights Coalition and several others in our support of recognizing traditional rights for LPTV and TV translator stations and their viewers. We share several of the views with APTS, PBS and CPB respective to the maintenance of the rights of translators carrying public and educational broadcasting services and would like them extended to our membership as virtually all TV translator licensees are nonprofit or small government entities. In our original comments on the matter, the NTA had asserted that the spectrum auction and repacking contemplated in the "Expanding the Economic and Innovation Opportunities of Spectrum through Incentive Auctions" in fact determines winners and losers in a way that no government should. As we see it now, by actually denying economic and innovation opportunities to TV translator stations, the incentive auctions declare the winners to be multibillion dollar corporations and the losers are the rural communities whose residents often cannot afford to replace their lost TV broadcast service and the small entity licensees who work hard to provide that service. 10

11 Respectfully submitted, THE NATIONAL TRANSLATOR ASSOCIATION /s/ James R. McDonald, President Byron W. St. Clair, Ph.D., President Emeritus Michael Couzens, Vice President NATIONAL TRANSLATOR ASSOCIATION 6868 Vivian Street Arvada, CO (303) Fax (303) February 2,