Broadcasters Ban Together to Terminate Anti-Collusion Rules

American consumers’ demand for wireless broadband (high-speed Internet access) is growing exponentially as the number of connected devices mushroom. The wireless airwaves, or spectrum, upon which these devices—from TV, radio and satellite to everyday products like garage door openers and baby monitors—rely, however, are a limited public resource.

Yet, U.S. citizens expect access to wireless connectivity for their data-hungry smartphones and tablets anywhere and anytime … to connect with friends and family, get their news, and even share real-time events. These devices eat up capacity; indeed, smartphones use 24 times more data than traditional cell phones, and tablets can consume 122 times more data than old traditional phones.

To ease congestion on wireless networks, in February 2012, Congress authorized the Federal Communications Commission (FCC), the government agency that tracks and monitors spectrum, to conduct an incentive auction of broadcast television spectrum.

This first ever incentive auction will repurpose some of the airways currently used for broadcast TV to make additional airwaves available for wireless broadband, helping meet Americans’ 21st century desire for mobile services.

The commission established the rules and policies for the auction, with input from broadcasters, wireless companies and other stakeholders, during the subsequent three years. The auction, which comprises both reverse and forward parts, began in March 2016.

Bidding in the forward auction for Stage 3 concluded in December without meeting the “final stage rule,” which includes raising enough revenue to pay broadcaster ask, plus other expenses. As it stands, broadcaster sellers and wireless buyers have yet to reach middle ground in the auction, although the benchmark price set to reflect a fair market price was achieved in all three stages.

The auction will end once proceeds meet the FCC’s set threshold. Some winning bidders in the auction will relinquish their spectrum usage rights and discontinue over-the-air operations. Others will relinquish their existing television channel and begin sharing another station’s channels. Still others will switch from a higher frequency to a lower frequency. Stations that did not participate or submit winning bids may also have their channel assignment changed as a result of how channels are repackaged post-auction to free up spectrum for flexible wireless use.

All of this reconfiguring will require broadcasters to collaborate with antenna manufacturers, tower owners, tower crews and other broadcasters. Yet existing anti-collusion regulations may impinge on broadcasters’ ability to effectively transition to their post-auction channels.

To address this concern, a group of broadcasters, in a joint filing, are now urging the FCC to terminate the anti-collusion rules for TV stations immediately after the incentive auction’s final stage rule is satisfied. The group, which includes Gray Television, Nexstar Broadcasting Group and CNZ Communications, is requesting the unfettered right to coordinate with their engineers, equipment manufacturers, attorneys and other stations without the fear of government reprisals.

As the group explained, “The anti-collusion rules are stated broadly enough that telling a consulting engineer, lawyer or other broadcaster that a station is being repacked could be construed as communicating bids or bidding strategies and, therefore, be a violation.” The broadcasters pointed out that station transitions to post-auction channels will not occur in a vacuum; they will involve many moving parts, all with the potential to collide and derail the commission’s transition schedule plan.

In addition to requesting that the anti-collusion rules be lifted, the group also asked the FCC to publicly release the preliminary channel reassignments—an action which would further support broadcasters’ ability to collaborate during the transition period.