Lower 12 GHz can be a win-win-win for consumers, competition and U.S. leadership — O'Rielly 

By Michael O'Rielly 

Aug 15, 2023 12:17pm 

FCC12 GHz 

Former FCC Commissioner Michael O'Rielly is a member of the 5G for 12GHz Coalition. (Photo by Mark Wilson/Getty Images) 

 

The Federal Communications Commission (FCC) has lost – albeit hopefully temporarily – its authority to conduct spectrum auctions, but luckily for consumers and industry, the agency still has tools to make desperately needed mid-band spectrum immediately available for terrestrial broadband uses. 

Thanks to changes in technology, the landscape around the lower 12 GHz band (12.2-12.7 MHz) has evolved significantly over the last several years. At the same time, 5G fixed wireless access (FWA) has taken the connectivity world by storm.

Given the importance of identifying and maximizing the use of spectrum bands, I urge my peers at the FCC to immediately issue new rules to enable the use of 500 MHz of spectrum in the 12 GHz band for high-power fixed broadband. 

Authorizing the 12 GHz band for fixed broadband would represent a historic spectrum policy win: it is one of the few bands of scarce spectrum resources that is ready for immediate deployment — just in time for the NTIA’s $42.5 billion investment in broadband. It can be utilized for higher power services without harming incumbent users or needing coordination with any government entities, allowing government dollars to go further and connect people sooner. 

Efforts to unleash the 12 GHz band have made significant progress since 2016, despite some detractors’ best efforts to muddy the water and delay any change. The agency’s examination of the 12 GHz band has been thorough, thanks to a robust record and substantial engineering, economic, and technical data demonstrating this band’s availability for new higher-power fixed uses. A broad range of stakeholders, from trade associations to public interest groups to licensees, have weighed in to support new rules.  

During a time of uncertainty and hamstrung American spectrum capabilities, policymakers must look for ways to make critical bandwidth available to consumers and industry alike. If the FCC doesn’t act soon, we risk holding back technologies that can help close the digital divide, today. The good news is the FCC can supply the American public with 500 MHz of easy to unleash mid-band spectrum through a regulatory decision that is ripe for action.  

Michael O’Rielly served as a Commissioner at the Federal Communications Commission from 2013-2020. O’Rielly is currently principal at MPORielly Consulting, LLC, a visiting fellow at the Hudson Institute’s Center for the Economics of the Internet and a senior fellow at the Media Institute. He is a member of the 5G for 12GHz Coalition. 

Industry Voices are opinion columns written by outside contributors—often industry experts or analysts—who are invited to the conversation by Fierce Wireless staff. They do not necessarily represent the opinions of Fierce Wireless. 

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The FCC’s Nonexistent Role in Internet Streaming (B+C Guest Blog)

By Michael O'Rielly

( Broadcasting & Cable )

 published July 28, 2023

Regulating streamers like old-school cable providers would ignore market realities and Congressional prerogatives, says former commissioner Michael O’Rielly

 
 
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The explosive rise of online streaming video services like Netflix, Hulu and YouTube has dramatically altered the consumer experience for video content unlike anything seen since the advent of color television. And while gallons of ink have been spilled analyzing streamers’ threat to the cable TV business, streaming has also massively disrupted local television broadcasters’ economics — both in terms of advertising revenue and fees for retransmission rights. 

Tough circumstances have caused some parties to seek refuge via government protections at the Federal Communications Commission, arguing Internet streamers should be captured within the agency’s grips akin to old-school cable operators, which would improperly give broadcasters exponentially more leverage in content and carriage negotiations. Aside from being an absolutely horrible policy decision, the FCC has no authority to do so. Commissioners should flatly reject calls to (re)explore such a misguided direction. 

Broadcasters Must Adjust to Changes

As a long-time defender of local television broadcasters, I respect the valuable contributions that individual stations and their network partners bring to viewers and their respective communities.  But the current market realities cannot be ignored: technological advances and consumer viewing patterns have changed dramatically. eMarketer estimates that almost 36% of families have cut the traditional cable video cord, choosing to get programming through the internet and other means. And Barron’s estimates that internet streaming time already has surpassed hours spent watching cable or local broadcast stations. Broadcasters, like all industries challenged by progress, will need to alter their practices and counter competitors in the market.  

The best response from affected parties and government agencies would be to seek to completely deregulate almost every aspect of local broadcasting. Rather than continuing as a regulatory piñata, broadcasters should push regulators vehemently to eliminate every burden in which they are treated differently than their streaming counterparts. Media ownership limits on the national or local level? Expensive record keeping and licensing reviews? There is no logical defense in today’s radically remade video marketplace to maintain regulations designed for a 1970s industry. 

Those seeking to pursue the regulatory state as local broadcasting’s savior, rather than the nemesis it can be, are fundamentally missing or intentionally ignoring the fact that the market is already working. This is particularly relevant for those demanding the government interfere in the content negotiations between Internet streamers and television networks. Market forces and private-sector negotiations are already doing just fine on their own: the networks (and their programming partnerships) who hold rights to certain programming get to determine how the content is sold or carried by Internet streamers. If local broadcasters are being neglected or ignored in these negotiations, they’re free to work out those disagreements via their affiliate contracts with the networks. The commission inserting new rules and regulations would create new rights where none exist today.

To the extent that internet streamers seek to carry the entirety of a local broadcaster’s signal, broadcasters are free to negotiate that right to render the proper price point and conditions. But they must be aware that what they are selling can be mostly replicated by other broadcasters or the networks themselves.  There is no market scarcity, much less market exclusivity, in an always-on video world of thousands upon thousands of programming options. 

Congress’s Key Role

Equally important, Congress hasn’t authorized the FCC to insert itself into these negotiations.  The definitions and language Congress wrote into current statutory provisions do not extend to internet streamers. 

While my good friend and former FCC commissioner Rob McDowell recently argued that this omission is a loophole or quirk in the regulations, that is just not accurate. When serving at the commission, I extensively reviewed the previous proceeding’s record and took all the meetings in which these exact jurisdictional issues — a specialty of mine — were explored. The argument is without merit, no matter whatever legal gymnastics lawyers seek to pursue.  Simply put, the commission is precluded from acting without subsequent authority granted by Congress.    

Reopening a dead proceeding — even if the FCC is just examining if it has authority to act — breathes a hint of hope that the government might extend its fishing expedition, eventually to be rejected by the courts.  By that time, however, the commission’s unlawful overreach would already be distorting the video marketplace by generating unfair leverage in private negotiations.      

Internet streaming is a wonder for consumers, despite how troublesome it may be for the traditional industry participants. The government, in this case the FCC, should avoid interfering in a working market and reject calls to examine its nonexistent authority to intervene. To paraphrase Ronald Reagan, government is not the solution to the problem; government would become the problem.