In a second development this week that relates to next year’s incentive auction, the FCC voted 3-2 on Tuesday to launch rulemaking proceedings on the preservation of one vacant UHF TV channel in each market for shared use by wireless microphones and unlicensed wireless “white space” devices. The Notice of Proposed Rulemaking (NPRM) follows up on last year’s incentive auction order in which the FCC anticipated there would be at least one UHF band channel in all areas in the United States that would not be assigned to a TV station as part of the post-incentive auction channel repacking process. Citing the importance of white space devices and wireless microphones to the public, the FCC stated its intention in the incentive auction order to preserve one UHF channel in each area for such devices, subject to additional notice and comment.
Stressing that none of the proposals contained in the NPRM “will act as a constraint in the repacking process or limit the spectrum that is made available” to wireless carriers, the FCC said it would seek comment on plans to require applicants for low power television, TV translator and broadcast auxiliary service facilities “to demonstrate that their proposed new, displacement or modified facilities would not eliminate the last available vacant UHF television channel for use by white space devices and wireless microphones in an area.” UHF spectrum at Channel 21 and above would be subject to preservation, and specific channels to be preserved “may vary depending on the particular area.” While the aforementioned demonstration would not apply to modified Class A facilities or to modified full power stations during the 39-month post-auction transition period, the NPRM concludes tentatively that the demonstration should be applied to Class A station modifications after the transition period. The NPRM, however, seeks comment on whether the demonstration should be applied after the transition period to modifications of full power TV stations. Comment is also requested on whether the demonstration should be applied to channel allotment proceedings that involve full power stations.
Full or partial dissents were issued by FCC Commissioner Ajit Pai and his Republican colleague, Commissioner Michael O’Rielly. As Pai asserted that full power TV stations—the primary users of the UHF band—“should be prioritized over secondary users” that include operators of unlicensed white space devices, O’Rielly argued that “nothing in the Spectrum Act authorizes the Commission to restrict the future rights or opportunities of full-power broadcast stations post-incentive auction.” Although the National Association of Broadcasters also suggested that the NPRM “appears to be contrary to the Spectrum Act,” an official of the New America Foundation Open Technology Institute voiced support for the NPRM as he warned: “without this reserved channel in every market . . . chip makers and device makers won’t make the investments needed to incorporate TV white space connectivity.”