Watching the Repack, Thinking About Radio

Q&A With Attorney John Garziglia
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Q&A With Attorney John Garziglia

This Q&A about implications of the TV “repack” on U.S. radio stations is with John F. Garziglia of the law firm of Womble Carlyle Sandridge & Rice. Look for more coverage of this issue in the June 22 edition of Radio World.

RW: When will the FCC announce which TV stations will be changing channels? What is the timeline and how many TV stations are expected to participate?

Garziglia: We will not know what TV stations will be changing channels until after the incentive auction ends. The incentive auction will end after wireless companies complete their bidding on spectrum. After the incentive auction ends, the FCC will release a public notice announcing the TV stations that will be reassigned to new channels or “repacked.” Unless the incentive auction concludes more quickly than currently anticipated, the release of this repacking public notice is likely to be in early 2017 or later.

The release of this repacking public notice will begin a 39-month post-auction transition period in which those TV stations that must change channels will be required to do so. The goal of the TV band repacking is to create contiguous blocks of cleared spectrum for wireless use in the upper portion of what is now the television band.

RW: If a radio station does share tower space with a TV station, what steps could be taken in advance to minimize any possible disruption of service?

Garziglia: Now would be the time to apply for an auxiliary transmitter site or at the very least, an auxiliary antenna at a different height on the same tower far enough away from TV antennas so that work on them do not require the radio station to leave the air. The FCC allows licensed auxiliary antennas to be used without prior permission from the FCC whenever a radio station’s main antenna is out of service for repairs or replacement. Such an auxiliary antenna should be built out prior to the TV repacking commencing. Once TV repacking begins, available tower crews may be sparse and likely to be more costly due to the demand for their services. Therefore, obtaining an FCC authorization now to construct and license an auxiliary antenna would be prudent.

RW: While the FCC says it will reimburse TV station owners for antenna relocation expenses during the spectrum auction process, has it given any indication it would reimburse other services like FM that could be disrupted or forced to move?

Garziglia: There is nothing in the statute authorizing the TV repacking funds that contemplates any direct payments to radio stations for disruptions or forced moves. That being said, if a radio station forced off the air for a time period, or is forced to relocate an antenna, it may be entitled to recompense.

Such a compensation payment would either result from provisions in the radio station’s tower lease agreement, or from payments the TV station would offer to the radio station to induce it to move. If the tower lease gives a radio station an ironclad right to specified space on the tower without disruption, it would be the TV station needing the space who must come to the radio station with an offer to move in exchange for compensation.

Also, many tower lease agreements have provisions protecting against interference and denigration to an existing user’s signal. Depending upon how broad such provisions are, they might come into play in protecting a radio station against any forced substantial repositioning or reconfiguration of antennas on a tower.

Now is a good time to look at tower lease agreements to review what are the protections and provisions for a forced move of a station’s antenna. Also, if a tower lease is coming up for renewal, now might be the time to attempt to bargain for stronger provisions protecting the right to current tower space.

RW: Do broadcast lease agreements for tower space typically have disruption of service caveats?

Garziglia: While tower lease agreements from the large tower owners typically have common provisions, it all depends upon when a lease was initially negotiated, who did the negotiations and whether there are any protections against a tower owner induced disruption of service. For many radio stations, leases were negotiated decades ago and continue largely with the originally negotiated terms.

Many leases will have a carve-out against tower owner liability for what is termed force majeure, meaning circumstances that curtail station operations due to natural disasters and other such events out of the control of either party. Some leases will have provisions allowing a tower owner to force a move of an antenna. One of my favorite ways to negotiate a forced move provision is to ask, assuming that my client radio station is not already at the top of the tower, that any forced move of the radio station’s antenna be to a space higher on the tower.

If a lease does not have a provision allowing for a tower owner to unilaterally move an FM station to another space on the tower, or to create a situation where the station must leave the air for an extended time period, then the radio station may have significant bargaining power.

The TV repacking process is going to create significant issues for tower owners and for TV stations. Given the consolidation of tower ownership in the past decade, tower owners may have substantial bargaining power in dealing with TV stations needing additional aperture space for antennas, or for replacing lesser weight antennas with antennas that weigh thousands of pounds more.

Also, tower structural standards are constantly evolving and may present significant impediments to TV station antenna changes which may, in turn, impact tenant radio stations. Tower structural standards vary from state to state. In many states, and for many insurance companies, TIA-222 Rev. G tower structural standards are now required. Any antenna changes on an existing tower that is not up to Rev. G standards may require significant structural enhancements. A radio station tenant on such a tower may be required by the terms of its lease to participate in the costs of such structural enhancements.

So, the overall suggestions for radio stations co-located on towers with TV stations: (1) if the radio station does not have an authorized auxiliary antenna, apply now to the FCC for it and build it out as soon as possible; (2) review the current lease to assess whether the radio station’s antenna can be subject to a forced move and what technical and financial protections the station has in such a situation; and (3) also review the lease to determine whether the radio station can be subject to additional costs should tower work be required to meet current structural standards. Finally, if a tower lease is coming up for renewal, consult your counsel to determine what lease terms and conditions might be prudent to renegotiate in anticipation of the TV repacking process.

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