Oh really? NAB head suggests to Congress FCC's Broadband Plan is 'voluntary'

There are a handful of issues of contention that broadcasters (who transmit content over the public airwaves) have with the Federal Communications Commission's Broadband Plan. One such outstanding dispute concerns the FCC's proposed reallocation of unused digital spectrum from broadcast to broadband purposes -- a way to get at least some of the estimated 180 MHz of spectrum wireless operators say they need, without another complete re-auction.

On Tuesday, FCC Chairman Julius Genachowski announced the formation of a so-called Spectrum Task Force, which many see as his way of connecting the necessary dots between the public airwaves (the FCC's natural purview), wireless, and the Internet (the FCC's disputed territory). In his announcement yesterday, the Chairman said, "To lead the world in mobile, the FCC must ensure that our nation's spectrum is being put to its highest and best use."

It would seem, on first glance, that this stance would threaten the integrity of broadcasters' hold over the public airwaves, which they had previously thought was solidified after they traded their old analog TV frequencies -- which were then sold at auction to wireless providers -- for new and broader digital channels. But in testimony before Congress on Tuesday, the President of the National Association of Broadcasters, former senator Gordon Smith, surprisingly told lawmakers he wasn't as worried as he might have been.

The reason, according to Smith (as covered by Multichannel News), is that in a speech to Smith's NAB, Genachowski said the Broadband Plan's goals were not mandates, and that "this broadband plan would never devolve from voluntary to compulsory." Smith continued, "What he said is what he said, and we are prepared to work with him."

Indeed, certain elements of the Plan are voluntary for broadcasters, as Genachowski did point out, according to a transcript of his speech to the NAB convention on April 15 (PDF available here). After emphasizing, as he has in the past, the explosive data consumption rate among devices whose propagation among consumers is also exploding, Genachowski did lay out what he emphasized were options and choices that some heroic broadcasters could choose to make, though not necessarily all of them.

The plan, as Genachowski described to the NAB, "proposes voluntary incentive auctions -- a process for sharing with broadcasters a meaningful part of the billions of dollars of value that would be unlocked if some broadcast spectrum was converted to mobile broadband. The plan would give broadcasters the choice to contribute their licensed spectrum to the auction and participate in the upside. The plan would give broadcasters the option of channel sharing. For example, a broadcaster could contribute half of its capacity and share spectrum with another broadcaster in the market, continuing to broadcast their primary programming streams and more, while lowering their operating expenses and gaining infusions of capital."

The Chairman went on to characterize the potential of channel sharing as a cost-cutting move. "One, these auctions are voluntary. Period. Participation is up to the licensee and no one else. Two, for the Plan to work, we don't need all, most, or even very many licensees to participate. If a relatively small number of broadcasters in a relatively small number of markets share spectrum, our staff believes we can free up a very significant amount of bandwidth. And rural markets would be largely unaffected by the recommendation in the broadband plan because the spectrum crunch will be most acute in our largest population centers."

The day after Genachowski revealed the "voluntary" language, the National Journal reported that the Chairman made the pledge to the NAB's Smith as a "backroom handshake," the existence of which was revealed accidentally by Smith "during an exclusive, impromptu interview" with its technology blog. Or, the FCC chairman made the pledge during a public speech, which may be just another staging ground for a "backroom handshake."

In any event, the voluntary nature of this aspect of the plan was conveyed to Congress by Smith, so there's certainly nothing "backroom" about it now. The opposition to Smith's interpretation came from the representative of the wireless industry, former congressman Steve Largent, who heads CTIA. According to Multichannel News, Largent warned that if broadcasters voluntarily opt out of their participation in this plan, the wireless industry can't wait another 15 years for the next spectrum auction.