GREG WALDEN
SECOND DISTRICT, OREGON
DEPUTY WHIP
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ENERGY AND COMMERCE
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August 4,2015 Received & Inspected
1211 WASHINGTON AVENUE
LA GRANDE, OR 97850
TELEPHONE: (541)624-2400
The Honorable Tom Wheeler
Chairman
Federal Communications Commission
445 1th Street, S.W.
Washington, DC 20554
AUG 142015
FCC Mail Room
Dear Chairman Wheeler:
I am writing to express my concern about the impact of the Commission's current plans
for the broadcast incentive auctions on Low Power Television stations and translators. As you
well know, LPTV stations offer local content valued by their communities. These small stations
continue to cater to unique interests and respond to their communities. Similarly, translators
allow broadcast signals to reach across challenging terrain to serve some of the most rural
Americans. Without translators, much of the western half of the United States would not be
served by broadcasting.
While the Commission was granted significant flexibility to repack broadcast stations to
optimize the recovered spectrum in the 600 MHz band, the Commission itself recognized that it
had the responsibility to "help preserve the important services" provided by LPTV and
translators. I I am concerned that the current focus on white spaces and unlicensed services
outside of the duplex gap and guard bands may unnecessarily harm the communities served by
LPTV and translators? The spectrum provisions of the Middle Class Tax Relief and Job Creation
Act of2012 (MCTR) do not charge the Commission with the "central goal" of "maximiz[ing]
the amount of spectrum made available for not only licensed use, but also unlicensed use."J
Rather, the Commission was charged with implementing an incentive auction that maximizes the
amount of high-quality spectrum licenses for wireless broadband while ensuring that the agency
made "all reasonable efforts to preserve ... the coverage area and population served of each
broadcast television licensee,,4 during the repacking process. While we have all agreed that
LPTV and translators are not explicitly protected under the Act, Congress has repeatedly urged
I Amendment of Parts 73 and 74 of the Commission's Rules to Establish Rules for Digital Low Power Television
and Television Translator Stations, Third Notice of Proposed Rulemaking, 29 FCC Red 12536 (2014) at ~ 1. See
also Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of
Proposed Rulemaking, 27 FCC Rcd 12637 (2012) at ~ 358, et seq.
2 See Amendment of Parts 15, 73 and 74 of the Commission's Rules to Provide for the Preservation of One Vacant
Channel in the UHF Television Band For Use By White Space Devices and Wireless Microphones, Notice of
Proposed Rulemaking, 30 FCC Rcd 6711 (2015).
3 Tom Wheeler, "Seizing the Opportunities of Unlicensed Spectrum and Wireless Microphones," FCC Blog (Jul. 16,
2015) at https://www.fcc.gov/b loglseizing-opportunities-unl icensed-spectrum-and-wireless-microphones.
4 Middle Class Tax Relief and Job Creation Act of2012 § 6403(b)(2), Pub. L. 112-96, 126 Stat. 156 (enacted
Feb. 22,2012) ("MCTR"),
Letter to Tom Wheeler, Chairman, FCC
Page 2
the Commission to ensure that LPTV and translators are preserved to the extent possible.i The
Commission's proposals for unlicensed operation in the broadcast band to supersede use by
licensed operations are inconsistent with both the statute and repeated calls from lawmakers to
preserve LPTV and translators where possible.
I support the FCC's efforts to increase the availability of unlicensed spectrum for
innovative new spectrum technologies to compete in the open market. This concept of
innovation without permission has animated the unlicensed bands since their creation and
continues today to provide fertile ground for new spectrum access technologies to be deployed
and compete. But plans for the purchase of full-power and broadcast licensees in order to make
way for unlicensed services within the broadcast band are inappropriate and not permitted by any
statute.
Section 6402 of the MCTR (codified at 47 D.S.C. 309G)(8)(G)), from which the FCC
derives the underlying authority for the broadcast incentive auction, authorizes the Commission
to "encourage a licensee to relinquish voluntarily some or all of its licensed spectrum usage
rights in order to permit the assignment of new initial licenses subject to flexible-use service
rules[.]" 6 Creating a band plan based on frequency division technologies necessitates a duplex
gap and the presence of adjacent services often necessitates guard bands. Both of these are
suitable candidates for additional unlicensed use and consistent with the MCTR. Additionally,
while the MCTR gives the FCC the flexibility to continue to implement the TV White Spaces
rules in the newly truncated broadcast band post-auction, it does not contemplate Part 15
operation in the broadcast band other than under the Commission's existing white spaces rules.
Finally, the flexibility written into the MCTR that permits the Commission to repack
broadcast stations to maximize the recovered spectrum is not carte blanche to upend the maxim
that colors all FCC licensing: licensed services take precedence over unlicensed services. While
the MCTR doesn't give LPTV or translator licensees rights to participate in the auction, they are
still licensed services, and are secondary only to full power stations in the television band, not
unlicensed. By providing important local programming to their communities these licensees
have an established constituency. The MCTR does not allow the FCC to elevate unlicensed
operations over translators and low power stations in the television band and to unnecessarily
deprive this constituency of their local programing.
5 For example, Chairman Emeritus Joe Barton drafted legislation that would enhance the ability of LPTV stations to
appeal to the Commission. The Subcommittee on Communications & Technology held a legislative hearing on the
draft bill on July 24, 2014. Representative Barton and Rep. Eshoo also requested that the Government
Accountability Office review the impact of the incentive auctions on LPTV stations and translators and their
respective communities. See Letter from Chairman Emeritus Joe Barton and Ranking Member Anna Eshoo,
Subcommittee on Communications and Technology to Mr. Gene Dodaro, Comptroller, Government Accountability
Office, dated Oct. 1. 2014.
6 MCTR § 6402 (emphasis added).
Letter to Tom Wheeler, Chairman, FCC
Page 3
~~Greg Wald
Chairman
Subcommittee on Communications
and Technology
Sincerely,
Joe Barton
Chairman Emeritus
House Committee on Energy and
Commerce