As Congress prepares to take up spectrum incentive auctions in the new session -- there are both Senate and House bills -- Blair Levin, former head of the Federal Communications Commission's National Broadband Plan, is making it known that he thinks the way the bills have structured the auctions is akin to making the agency walk a tightrope in handcuffs and weighted down with lead weights.
Levin, currently a fellow at the Aspen Institute, helped develop the first FCC auctions as a top commission staffer. He says that given that experience, "what [the bills] are doing on a practical level pretty much ensures incentive auctions won't work."
He said those "handcuffs" -- he also called them lead weights -- are primarily the language that requires the FCC to as closely as possible replicate TV station's coverage areas.
The bills would give the FCC the authority to pay broadcasters to exit spectrum, but Levin is more worried about the wording of the bills' protections for the broadcasters who remain on their spectrum but who will be repacked to free up contiguous blocks for auction.
Levin, who proposed reclaiming broadcast spectrum through incentive auctions as part of that plan, told B&C in an interview that he was primarily concerned with language on repacking that broadcasters have sought and that he argues will lead to the possibility of endless litigation. He is also concerned about the up to $3 billion in TV station and cable operator moving costs that he says will lower the returns to the government.
"They have put broadcasters in a position that any individual broadcaster has a right to sue and hold up any auction," he said, given the nature of the language.
"NAB respects Blair's tenacity, but we'll take a pass on responding to his musings," said National Association of Broadcasters spokesman Dennis Wharton. "Our entire focus is on preserving the continued access of free and local television to tens of millions of Americans."
Levin believes the FCC will try to replicate coverage areas and interference protections, but by including language like "reasonable efforts" in statute is an invitation to litigation. "Anybody can say they didn't take reasonable efforts," he said.
Levin maintains that the right legislation would be one sentence giving the FCC the right to compensate broadcasters -- as he has pointed out before, the FCC already has the authority to reclaim the spectrum. But, he said: "If you put into law all kinds of handcuffs, you are not going to produce any money or create any spectrum."
Levin's argument is not about the politics of Republican or Democratic versions of the bill. "The point of incentive auctions is very simple," he said. "We need a mechanism to reallocate spectrum as markets change...This is not a Republican or Democratic thing with me." He points out that he supported the Republican idea of auctioning, rather than allocating, D block spectrum for an emergency communications network.
Levin says that if there is one thing the FCC knows about, it is auctions. "This notion of locking in certain decisions before you know where the technology is going is an incredibly bad idea," he said.