[opendtv] Re: Must carry fiasco

  • From: "John Willkie" <JohnWillkie@xxxxxxxxxx>
  • To: <opendtv@xxxxxxxxxxxxx>
  • Date: Tue, 22 Mar 2005 23:11:31 -0800

I've known Keith for more than 2 decades, and H. Hossein for 15 or 16 years.
They're both good engineers and great guys.  However, only a foole would ask
an application processing engineer to interpret rules.  In my time, they
would ask Maggie or when he was the other attorney-advisor at branch, my
good friend Terry Hardy to interpret the rules.

I could find the loopholes -- using Commission precedent, practice or merely
the rules -- in many of the positions put forward by Maggie or Terry.  I
also read every document they issued; even the letters that only appeared in
the "correspondence" files or the original license file (not the duplicate
license file, when there was such a thing) that for LPTV was only kept in
the branch.

Of course neither Keith or Hossein would tell you that the Commission owns
mistakes in the granting of construction permits, because they were directly
or indirectly responsible for the error or omission.It's why people hire
communications counsel to -- at least assist them before the commission.
Everything there is due process, and an attorney would most likely have told
you that he or she could have sucessfully defended you if you were to act on
the commisison's cp grant and operate using COFDM

Keith and Hossein are advocates for the FCC; you needed more knowledge and
weight on your side.  If you had had an effective advocate on your side of
the table, the conversations would have been more focused and more to your

My LPTV was on the air for more than three weeks BEFORE we applied for a
construction permit for our actual location.  Technically, that was a
violation of the authorization and the rules and could have resulted in a
recission of the grant, but I also knew precedent and practice and procedure
and that the LPTV branch had never done such a thing in the past, even going
back to Wetherell in Alaska in the early 1970's.  I can say, as a result of
my "tardiness", the license was granted in almost record time after receipt
by the commission.  Once I figured out -- with helpful hints -- the maximum
power I could use at the new location.

I'd have to read all the authorizations and correspondence and bone up on
the rules and decisions to be really confident, but it seems to me that your
going to the Commision and asking questions, rather than having a well-known
counsel making statements to the Commission alongside you, cost you a great
deal here.

Let me give you an example.  When my application was the winner in the
April, 1984 LPTV lottery, I was opposed by a Pat Robertson front
organization represented by one of the larger DC law firms with a
communications practice.  The attorneys, on the clock and with nothing to
work with, opposed the grant because they said that I was not a minority,
and that we were not financially qualified.  If I had hired an attorney,
rather than knowing the rules and social environment myself, he or she would
have responded within a month with a sheaf of papers trying to disprove the

I responded first by giving the opposing attorney's paralegal (not a friend,
but an acquaintence of mine) with a draft reply full of invective and
ad-hominem attacks.  Then, I went home (I lived then less than 2 blocks from
the commision; closer than most law firms) and honed the reply.  I noted
that my mother's maiden name was Ruiz, that her first language was Spanish,
and under the applicable rules, I was a minority if I was recognized as such
in my home town.  I described how people would come up to me in San Diego
and speak to me in Spanish if I hadn't shaven for a day or two.  Also, the
commission staff knew me and of my latin temperament.  As to the financial
qualifications, I didn't constructively respond.  I cited the letter the
Commision had written to Mountain TV network, described how the staff wanted
to investigate the finances of this organization that filed thousands of
LPTV applications, but the commisison reversed that position.  "If the
Commission won't investigate the finances of Mountain TV Network with
hundreds of (unbuilt) grants, it CANNOT investigate the finances of Civic
Light Television.

My early invective provided to opposing counsel ended up with a better
effect than I could have planned; their counsel, despite it being not
permitted in the rules, overreached by providing a reply to my reply.  That
made it look like big, stupid Pat Robertson was ganging up on little
minority John Willkie.

Step 1:  learn everything you can BEFORE you meet with the commision.
Before scheduling your meeting, define your strategy and figure out your
tactics.  Game plan how you'll respond to the predictable responses of the
other side.  The only questions one should ask are "what is your name", or
if you're not happy with a response, ask 'why.'  Otherwise, advance your
position.  DON'T ASK QUESTIONS; make statements and give answers.

Oh, yeah -- use any likely commission proceeding to advance your position,
but don't do so wildly or daintly.  Look at their questions, and rationalize
between what you want and what the Commission is likely to be interested in,
within their resources.  In the commission's lottery proceeding, they asked
how long filing windows should be open.  Most people -- interested in
graceful, high-billing proceedings, said for 30 days -- so nobody needed to
rush, and they could charge several clients for the same work.  Little old
minority-controlled Civic Light Television responded that the windows
initially should be open for no more than 30 days, but once the application
backlog was behind them, they could have windows open for as little as 1
day.  THAT is EXACTLY what the Commision has done, and the practice has also
informed the auction proceedings.

Your tack seems to be to whine and ask questions.  To me, that's "being a

Nowadays, I use communications counsel in my limited dealing with Commission
matters.  He knows more than I, and can coalesce things that I cannot, since
Tijuana is so far from "the eighth floor."

Anudder too long post.  Ah, well, time to get back to EtherGuide Ferret, my
PSIP test and measurement system.  First pre-alpha build went out earlier
this evening to a select few.

John Willkie

----- Original Message ----- 
From: "Bob Miller" <bob@xxxxxxxxxx>
To: <opendtv@xxxxxxxxxxxxx>
Sent: Tuesday, March 22, 2005 8:52 PM
Subject: [opendtv] Re: Must carry fiasco

> John Willkie wrote:
> >Geez, Bob.  I tend to not believe you.
> >
> >Let me see, I'll try an easy one.  Who -- I want names -- at the FCC told
you that a grant with no respect to modulation was a mistake?  Did you know
that the FCC can only correct a grant within 30 days of release, unless the
grantee permits the correction?
> >
> >
> Keith Larson, and no I did not know. I was told by Keith that the
> license was a mistake, had no modulation listed and that we could not
> use COFDM or go digital with it.
> >Who -- I need a name again -- at the FCC told you that you could not
transmit using COFDM on an LPTV?  Did, they actually refer you to a rule
> >section?  Have you actually read the rules, and -- more importantly -- 
the FCC Record decisions on licensing and modulation matters?
> >
> >
> Keith Larson and Hashemzadeh Hossein many times. Wrestled with this for
> a number of years.
> >And, just what's wrong with using an STA?  They're good for more than 6
months these days?  (Experimental or Experimental-developmental
> >authorizations prohibit one from airing commercial programming, but
that's not an issue with STAs.)
> >
> >
> We have used both an STA and an experimental on lower 700 MHz spectrum
> with COFDM. We never tried with LPTV in earlier years since we didn't
> have to. By the time we might have we were already working with Channels
> #54 and #59 non LPTV.
> >I suspect that what happened is more in the world of social engineering;
somebody at the FCC -- perhaps a  few somebodies -- didn't like you and
> >realized they could fool you.
> >
> >It's been more than a few decades since anybody there tried that with me;
but then I don't ask them in person to interpret the rules; I always knew
the rules in advance, and only asked them abou t the unwritten "practice and
procedure."  When they said that something couldn't be done, I usually could
come up with instances where it had been precisely been done the way they
said was proscribed.  Not everybody liked me, but they quickly learned that
the wool would seldom stick to my eyes.
> >
> >
> I have read the rules, new and old, many times. Could not find a
> loophole that would allow the use of COFDM. Would love to know more.
> Bob Miller
> >John Willkie
> >
> >
> >----- Original Message ----- 
> >From: "Bob Miller" <bob@xxxxxxxxxx>
> >To: <opendtv@xxxxxxxxxxxxx>
> >Sent: Tuesday, March 22, 2005 7:52 PM
> >Subject: [opendtv] Re: Must carry fiasco
> >
> >
> >
> >
> >>John Willkie wrote:
> >>
> >>
> >>
> >>>You obviously weren' paying attention.
> >>>
> >>>
> >>>
> >MID
> >
> >
> >>>1994.
> >>>
> >>>
> >>>
> >
> >
> >>>THE FCC.
> >>>
> >>>"Media Professionals" at one time offered an "inland marine" insurance
> >>>
> >>>
> >line
> >
> >
> >>>for broadcast liability protection.  I'm not sure if the NAB still
> >>>the package, but NAB associate members at one time could get coverage
> >>>
> >>>
> >based
> >
> >
> >>>on their highest spot rate.
> >>>
> >>>John Willkie
> >>>
> >>>
> >>>
> >>You say it but all the facts that I know say otherwise. One of my
> >>friends got a digital license on his LPTV station two years ago with no
> >>mention of modulation. When I took a copy to the FCC they told me it was
> >>just a big mistake.
> >>
> >>We have had three meetings with the FCC on this subject alone. No way
> >>could you go digital on LPTV or COFDM except as an experimental or STA
> >>and even that would have been iffy after 1999. The rules for going
> >>digital on LPTV have been passed, they have been recorded in the record.
> >>But there is no mechanism at the moment for an LPTV station to actually
> >>apply for such a license. The FCC needs some software written or
> >>possibly it has been written but they need to pay $20,000 for it and
> >>they do not have the money. Any month now we can apply for digital for
> >>LPTV. Any donations please?
> >>
> >>Could you give a pointer as to where you get such information? I have
> >>been dealing with Keith Larson, Hashemzadeh Hossein and Bruce A. Franca
> >>for the last six years. Seriously if you have any information on how
> >>COFDM could be used on LPTV I would love to hear about it.
> >>
> >>Bob Miller
> >>
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