At issue is a change in methodology that NAB and the Big Four networks say is both unlawful and fundamentally flawed. And just for good measure, they note that the timing of the change “is the height of arbitrary and capricious agency action.”
In comments sent to the Office of Engineering and Technology, the parties stated, “NAB firmly believes that the changes to the OET-69 methodology proposed in the TVStudy software are plainly unlawful under the Spectrum Act and applicable FCC regulations. Moreover, even if the proposed changes could be viewed as lawful, they are fundamentally flawed in their execution. And even if the TVStudy software’s numerous defects could be rectified, the timing of the proposed changes—on the cusp of the incentive auction, yet before the auction’s procedures have been determined—is the height of arbitrary and capricious agency action. NAB’s comments thus focus on at least four problems with the proposed changes to OET-69.”
The first objection is that Congress approved the use of known and predictable technology which was to be used to measure television station coverage and population reach. Replacing it with something new therefore flies in the face of congressional intent.
Second, the FCC is required by law to preserve station coverage and reach; however, initial NAB testing indicates that the new methodology will substantially reduce coverage and reach. It is therefore unlawful.
Third, the parties note that a change of this magnitude must be made at the Commission rather than the staff level, after allowing for complete notice and public comment phases.
Finally, the change will cause harm two ways, increasing both cost and uncertainty.
The parties concluded, “For these reasons, and as explained more fully below, NAB encourages OET to refrain from implementing any modifications to the OET-69 methodology in conjunction with the incentive auction.”