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For over one-hundred and thirty days it was under wraps and super secret. Thirty-five pages of densely packed legal and regulatory language which has the potential to upset and put into turmoil the news bureau's of Main Street, and the debt and equity markets of Wall Street. It was on circulation with the FCC Commissioners and their staff. Only the privileged few outsiders would see it, and those that did so, did so illegally. It was written in response to what is the last line of defensive regulatory language 8,000 FCC licensees and permit holders have, and the Congressional intent explicit language used to protect them in the Incentive Auction enabling legislation. And this was language which the FCC was trying to use their discretion to get around, at any cost at all.
The problem was made more dangerous when the only solution which Bureau staff
legal counsel could come up with was to use what many call the "nuclear option" - the citing of the most basic of tenets of the Communications Act, the ultimate statutory authority of the FCC. And thereby telling Congress, the FCBA members, the engineers, and all licensees - we can do what we want whenever we want, to any licensee, no matter what.
While staff and Commissioners pondered during those one-hundred and thirty days looking for an alternative, none suitable could be found. So checkmated had the situation become, any normal regulatory solution would not work. And if truth be told, none was really looked for all that much. The decision had been made on high, at another paygrade outside the Portals, and campaign-funded political payback was in order. The Valley needed their fix, and they were owed.
So internet age industrial policy had the three votes it needed. One from the vulture capitalist making good on his promise to the valley he derived his wealth from; another, whose Doctrine of Secondary For Everything would guide and shape the risky legal framework; and the other, clueless and taking direction from afar, never publicly defended the small, the diverse, and those that brought her to the dance.
This is the story of one 6-MHz channel, and not the 24-MHz which was already in the repacking plan for unlicensed use, nor the 195-MHz already allocated in another band. No, this is a story of greed and avarice. And this 6-MHz was symbolic, would serve as the test case to show the ultimate authority of the Commission, and to let all FCC licensees, large and small, wireless, TV, and radio know, that the Commission was willing to use a nuke when a simple rational reasoned argument would do.
The problem was, none could be found to counter the checkmate - the ROD (right of displacement) had won. That is, if current on the books regulations and Congressional intent were followed. But this would not be so - as is said - unchecked power corrupts, and so they brought out the nuke.
So let all Wall Street analysts know that any media business which has the value of spectrum holdings embedded within their balance sheets and stock prices, that as of sometime this fall, the FCC is prepared to strip them of their rights, at any time, for any reason, and especially if it suits their internet age industrial policy. No matter if you have homesteaded for twenty years your spectrum usage rights, or just won them in a gazillion dollar auction. They can be nuked at any time, for any political payback reason, for the good of the Valley and their legions of doom now embedded inside of the Beltway.
But that's ok. We understand, responding to change is in our DNA, is part of our covenant with the government. We, the small and many, we have our own game afoot. A new game board is being crafted to play on in which we write the rules, and benefit from the outcome, as well as the country. And it has lots of dollar signs attached to it. So much so that money talks, and a positive score means you got a raiser. And while we take our time doing it, good luck FCC dealing with the unexpected consequences and new found alliances formed between all potentially affected licensees, wireless, TV, and radio. In this MMOFPS, we all get to play GOT.
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