Condition on new translator CP's confirms they are vulnerable to not-yet-filed LPFM applications.
As we have previously reported, FM translator facilities proposed after June 16, 2013, are – at least in the current view of the Audio Division – subject to interference from any LPFM application(s) that are filed during the upcoming LPFM filing window. The Division staff has been circumspect on this point, not providing any clear and definitive announcement of precisely how its protective stance toward still-unfiled LPFM applications will be implemented.
But thanks to several translator applications that have been granted recently, we now know for sure that some FM translator facilities are definitely at risk.
How do we know? Because a number of recently-issued translator construction permits include the following condition:
This authorization is subject to modification or cancellation as a result of applications submitted during the October, 2013 LPFM filing window. See DA 13-1385. Any construction is at the permittee’s sole risk. LPFM construction permits granted from the October, 2013 window filings may require the permittee to change channels, propose other facility modifications and/or terminate operations with the facilities specified herein. A license will not be granted to cover this construction permit until after the close of the October, 2013 filing window.
[Blogmeister’s Note: The reference to “DA 13-1385” is to the June 17, 2013 public notice announcing the upcoming LPFM window. For our readers’ convenience, here’s a link to that public notice.]
Of course, as we have also reported, conversations with the staff indicate that they feel confident that the likelihood of problems involving translator/LPFM interference is small and such problems should be readily addressable on a case-by-case basis. That may be -- but it’s going to be a while before we know whether they’re right. And we also won’t know for sure that the Bureau’s approach here is strictly legal for a while, either – that will depend on whether anybody (most likely an FM translator permittee who finds her facilities whittled down by LPFM applicants) has the time, resources and inclination to take this to court, a multi-year prospect at best.
For now, anyone counting on a new FM translator to cover particular areas should be sure to check for this condition on their CP’s. That includes not just permittees, but folks looking to buy any new translator permits. Just because you happen to be holding a piece of paper that says “Construction Permit” on the top does not mean that the facilities specified in that permit are etched in stone. To the contrary, if the permit is subject to the condition quoted above (or some such equivalent language), you’re going to have to wait to see what gets filed during the LPFM window before you will know for sure precisely what facilities you'll be able to build and operate.