That’s the good news.
Let’s start with the back story.
If you’ve got an FM translator, your ability to change facilities depends on whether the proposed change is “major” or “minor”. To be “minor”, the 1.0 mV/m contour of the proposed modification must overlap at least a little of the previously authorized 1.0 mV/m contour. Additionally, the frequency specified must be, with respect to the translator’s authorized frequency, either (a) the same or (b) three channels higher or lower or (c) 53 or 54 channels (10.6 or 10.8 MHz) higher or lower.
Any mod application proposing a bigger change in geographical location or frequency is classified as a “major change”. Major change applications can be filed only during a filing window – which is a real problem, since the last FM translator filing window was in 2003 and it’s far from clear when the next one will be. Minor changes, by contrast, may be sought anytime -- no need to wait for a window to open.
Against that regulatory background, other developments have occurred. With the FCC now formally allowing AM stations to be rebroadcast on FM translators – and informally allowing FM stations to rebroadcast their digital HD-2 and HD-3 channels on analog FM translators – the demand for FM translators has risen sharply. But the supply of available translators has been limited by the fact that the grant of new permits, until very recently, has been frozen for years. A further complication: many of the translators already on the books don’t happen to be located within a minor mod of the larger communities where the increased demand has been greatest.
A number of enterprising translator operators took a close look at the rules and noticed something interesting. While the major change rule prevented them from moving their translators as far as they might like in one fell swoop, the rules did permit them to achieve a move of “major change” proportions by breaking up the move into minor-mod-sized chunks or “hops”. As long as each of the incremental hops was a “minor change” under the rules, a patient translator licensee could file a series of applications designed to move its translator a very considerable distance from its original site.
When such licensees tried out this approach, sure enough, the Commission granted their “serial applications” without question or hesitation.
But now the Audio Division says it has had enough. In its recent decision, the Division states broadly “the filing of serial modification application represents an abuse of process”. The Division acknowledges that no rule specifically prohibits the practice. But as the Division sees it, the process of “hopping” a translator to a distant, but more lucrative, site constitutes an effort to abandon its present service area. Since the minor mod rule is intended to prevent such abandonment, the Division has now announced that serial applications evidently designed to achieve that purpose can and must be discouraged under the broad “public interest” standard.
The Division is also troubled by the fact that serial modification applications implicate the 66-year old Ashbacker doctrine. The theory there is that serial applicants are closing off the opportunity for applicants in the next filing window – whenever that may be – to file for the desirable facilities being gobbled up through the serial modification process.
Still, the Division acknowledges that some translator moves may be warranted even if they would exceed the current “minor mod” limitations. And to demonstrate that, in its decision the Division has granted a waiver permitting a translator to relocate beyond the “minor mod” standards.
The translator licensee in question wanted to move its translator to the town where it also owns an AM station; the translator would serve as a fill-in for the AM. But the town was too far away for a single “minor mod” move. Rather than hop its way there with serial minor mod applications, the licensee instead proposed a single move, which would require waiver of the minor mod limitation. And the Division was happy to accommodate that request.
The waiver was justified on the basis of the interplay of several factors:
- The licensee in question had no history of filing serial mod applications;
- The proposed modification would have been mutually exclusive with the station’s authorized facilities, even though there was no overlap of the proposed and authorized 1 mV/m contours;
- The market into which the translator would be moved had not been identified as “spectrum-limited” in the recent LPFM/FM translator decision, and the proposed move would not foreclose any future LPFM licensing opportunities there; and
- The move was intended to facilitate the use of the translator as a fill-in for an AM station.
So the good news for translator licensees is that the Division is open to permitting, as “minor mods”, at least some relocations that do not involve 1 mV/m overlap. This should expand opportunities for translator licensees who have historically been unwilling to undertake a series of “hops”. The bad news, of course, is that licensees who were willing to go the “hop” route can no longer avail themselves of that device.
Since the Division has opted to announce this change in policy in the context of an individual waiver request (as opposed to, say, a more broadly applicable declaratory ruling or policy statement), the precise metes and bounds of the new policy won’t be developed and refined until more waiver requests are submitted and acted on. As a result, we can’t say for sure how such future requests will fare. For instance, might mutual exclusivity along with a record free of serial applications be enough to justify waiver, regardless of market and regardless of proposed rebroadcast of an AM signal? Would the presence of any three of the four factors do the trick? Such questions abound, but none of them can be answered for sure at this point.
Interestingly, the Division does not explain precisely what circumstances will be sufficient to cause a translator licensee to be deemed to have a “history of filing serial modification applications”. If such a history is going to disqualify a licensee from eligibility for future waivers, it would be nice to know how the Commission is going to make that call. And why should such a history be disqualifying in the first place? After all, the practice of “hopping” is not prohibited by the rules and has been effectively condoned by the Commission for years. Why should a licensee be penalized after the fact (or, as they say in the Constitution, ex post facto) for engaging in conduct that was legal at the time?
The aftermath of the Division’s ruling remains to be seen. But you can be reasonably safe in predicting that the price of translators that happen already to be located where prospective buyers want them will go up.
For instance, remember the rural radio proceeding, which (among other things) established new, and considerably more rigorous, criteria for radio station “move-in” applications? You could be forgiven if that particular item has been swept out of your short-term memory, because the Commission’s Second Report and Order there was released back in early March. In any event, the FCC has now announced that six petitions for reconsideration of that decision have been filed. Apparently time is not of the essence here, because the petitions were filed back in late April and early May, right around the time the new rules became effective. Never you mind about that, though, because the clock is now ticking if you want to respond to any or all of the petitions. Oppositions to the petitions are due by January 5, 2012, and replies to oppositions are due by January 17, 2012. 
You may as well keep your calendar opened to January 5 and January 17, because the Commission has also announced that two petitions for reconsideration were filed with respect to the FCC’s Report and Order permitting FM translators to rebroadcast the signals of AM stations.
It’s been a tough year so far for FM translator licensees, who have seemed repeatedly to get stuck at the back of the line – behind, in particular, 
On September 1, we 
