By a vote of 3-2 (with Commissioners Pai and O’Rielly dissenting), the Federal Communications Commission adopted a controversial Declaratory Ruling clarifying how the repacking approach it adopted in the Incentive Auction Report & Order meets Congress’s mandate to make all reasonable efforts to independently preserve TV stations’ coverage areas and populations served. This issue is controversial because the National Association of Broadcasters (NAB) has filed a lawsuit with the U.S. Court of Appeals for the D.C. Circuit challenging the Commission’s use of the TVStudy software during the 600 MHz Broadcast Incentive Auction rather than the FCC’s OET-69 software. The TVStudy software is critical to the Incentive Auction as it will be used to predict local TV stations’ coverage areas and populations served, which determine how broadcasters who remain on the air at the conclusion of the auction are repacked and how much spectrum will be available for wireless services during the forward auction.
