Passing the Torch to the New FCC

Forty-eight years ago, John F. Kennedy signaled the passing of the torch to a new generation of Americans. Three days ago, Barack Obama did the same, setting the stage for a sweeping overhaul of the country's domestic and foreign policies.

The laws and regulations governing TV will not be immune. In fact, change is already underway at the FCC and in Congress, the two main regulators of television and related industries, in the form of new leadership. The change in policy will play out over the next four or more years, issue by issue. Some will be new Obama initiatives. Others are unfinished business from the Kevin Martin (and earlier) FCCs. 

Here, I highlight nine of many unfinished issues likely to be in the torch that's passed to the new FCC. Some, such as whether Congress postpones the DTV transition, are unusually urgent.

But first let's talk about that new leadership.

At the FCC the effects are already dramatic. Republicans Chairman Martin and Commissioner Deborah Taylor Tate -- 40 percent of the five commissioners -- are gone, their positions vacant. By law, at most three of the five commissioners can be from the same political party as the president, and each commissioner has one vote. All are nominated by the president for U.S. Senate confirmation. So the FCC majority will change from Republican to Democratic. 

The president names one commissioner from his own party as chairman, who controls the FCC agenda. Yesterday, President Obama appointed an acting chairman, current Democratic Commissioner Michael Copps, to serve until a permanent chairman is nominated and approved. Press reports indicate that Obama's Harvard Law school colleague and former FCC General Counsel Julius Genachowski is the likely choice for permanent chairman.

In Congress, House and Senate Democratic majorities are larger than before, and leadership of key FCC-related committees, where much of the work of Congress gets done, has changed. Sen. Jay Rockefeller (D-W.Va.) is now running the Senate Commerce Committee in place of Dan Inouye (D-Hawaii) and Rep. Henry Waxman (D-Calif.) beat out incumbent John Dingell (D-Mich.) for chairmanship of the House Energy and Commerce Committee. Also in the House, Ed Markey (D-Mass.) and Rick Boucher (D-Va.) have traded their traditional chairmanships; Markey now heads the Energy and Environment Subcommittee and Boucher the Communications, Technology and Internet Subcommittee.

And now for those nine unfinished issues.

1. Postponing the Feb. 17, 2009 DTV transition date. Bills are pending and could pass in the Senate and House at any moment to move the long-established analog cut-off date of Feb. 17 -- just 25 days away -- to June 12. The legislation would also give over-the-air-only viewers until July 31 to acquire and use the $40 NTIA coupons to buy converter boxes to continue receiving TV off air. 

Proponents include Obama and his transition team, the Consumers Union and others. They are concerned that the NTIA has run out of money to issue coupons, many consumers are confused about what to do (one estimate is more than 8 million households won't accomplish the transition), old antennas may be inadequate to receive the new signals and call centers can't handle all the questions and complaints.

Opponents include the Consumer Electronics Association, former FCC Chairman Martin (who cites consumer confusion from changing the date) and some congressional Republicans who cite the Jan. 15 successful conversion in Hawaii and the readiness of most broadcasters. Cost of continuing an analog signal is another factor.

If the deadline is extended, stations will likely still be able to convert early, but will need to continue consumer education efforts. Until the results of the legislative efforts are known, all stations must prepare to switch to digital-only by Feb. 17.

2. Digital translator and "nightlight" extended analog service FCC rulemakings/initiatives. Over the past month or so, the FCC has proposed, collected comments on and partially implemented a new window for stations to file applications for new digital TV translator stations to fill expected coverage gaps in stations' DTV-only signals. On Dec. 24, 2008, the FCC released coverage maps of all stations' digital signals to help identify gaps. Expedited application processing is up to the new FCC.

Simultaneously, the FCC considered and on Jan. 15 approved, on a rush basis, new rules implementing a congressional measure authorizing designated stations in each market to air, on a sponsored basis, transition-related and emergency material on their analog signals beyond the transition date. The idea is that often the best way to reach TV watchers is via TV.

These measures have wide support and should contribute to public readiness for the transition.

3. Must carry for TV digital multicast video signals. In 2005, the FCC ruled that TV stations' digital subchannels do not have must-carry rights and cable systems do not have to carry them. Broadcasters had argued that the potential of digital subchannels could not be realized if cable/satellite/telcoTV operators could refuse to retransmit them.