Wheeler to AMers: I've Got Your Revitalization Item ... Right Here

Action on AM rescue items may come soon, but things aren’t looking good for an AM-only FM translator window.

About 18 months ago, the Commission adopted a Notice of Proposed Rulemaking (AM Revitalization NPRM) that represented, in the words of then-Acting Chairwoman Clyburn, “the next significant step in our effort to buttress AM broadcast service and ease regulatory burdens on AM broadcasters.” Commissioner Pai, a long-time supporter of the AM industry, declared the NPRM a “landmark effort … to energize the nation’s oldest broadcasting service”. Optimism ran high that AM was about to catch a break.

Then things went quiet. We here in the CommLawBlog bunker have received a boatload of inquiries asking where the much-vaunted AM Revitalization proceeding stands. And now we have some idea: In a recent post on the FCC’s blog, Chairman Wheeler has announced that he “intends to conclude” this proceeding “in the coming weeks”.

There’s good news and bad news here.

On the plus side, the fact that the Chairman is looking to “conclude” the proceeding at all is a big step in the right direction. The word on the street has been that a draft decision had been prepared by the Media Bureau staff and delivered to the Chairman’s office some time ago, but Wheeler was not inclined to fast track it. Whether that was because of other distractions (net neutrality and spectrum auctions being two obvious examples) or because of internal disputes with one or more other Commissioners (e.g., AM cheerleader Commissioner Pai, who has found himself cross-wise with the Chairman on more than one occasion) or because of some other factor, it’s impossible to tell. But at least we now know that we can expect some movement.

(The fact that we don’t have a specific time frame for that movement is, however, a bit disappointing. Wheeler says “coming weeks”; in a statement applauding Wheeler’s announcement, Pai expresses hope that action will be taken “in the next couple of months”. Weeks? Months? Hmmm. But let’s not look a gift horse in the mouth.)

On the down side, there appears to be trouble ahead for possibly the most eagerly anticipated element of the revitalization proposal: a window for new FM translator applications that would be open only to AM licensees. While the Chairman, in his blog post, seems to approve of most of the proposals advanced in the AM Revitalization NPRM (we summarized those proposals here), he draws the line at an FM translator set-aside. He has two “concerns”. First, he seems to think that there may already be enough translators to take care of any AM licensees who want one. Second, he questions whether any new translator filing opportunity should be limited to AM licensees only.

With all due respect, the raw number of FM translators currently authorized is irrelevant to the survival of AM stations if those translators don’t happen to be located in areas where AM stations can take advantage of them. As we have seen, the ability to move a translator to a place where it can be used by an AM licensee is narrowly circumscribed. Unless the constraints on such moves are significantly loosened, saying that there are plenty of translators around is like telling a guy in the middle of a desert that he doesn’t need to worry about water because there’s plenty of it somewhere on the planet – even if it doesn’t happen to be in the desert where he is.

As far as an AM-only window goes, Wheeler thinks that spectrum availability should be an “open opportunity” that doesn’t “favor one class of licensees” to the exclusion of others. Perhaps. But in the AM Revitalization NPRM, the Commission (of which the current Chairman was then not yet a member) considered that question. It tentatively concluded that “an applicant-limited and technically limited window … will provide immediate benefits to the AM service without materially affecting future FM translator window applicants”; by contrast, “an open window could frustrate our goal of providing expeditious relief to AM broadcasters”.

Those conclusions were, of course, tentative, so Chairman Wheeler is well within his rights to differ with them. But he should at least be prepared to acknowledge those earlier conclusions and explain why they weren’t valid or why, if they were valid, he is now inclined to ignore them.

Perhaps the most intriguing aspect of all this is Commissioner Pai’s statement applauding Wheeler’s blog post. Pai makes no specific reference to the FM translator window proposal (and Wheeler’s apparent rejection of that proposal). Does that suggest that Pai would accept a revitalization order that does not include an AM-only translator window? That would be a major disappointment to many AM licensees. There is one glimmer of hope, though. In his statement, Pai observes that “there is nearly unanimous support in the record for the ideas put forward by the Commission under Acting Chairwoman Clyburn’s leadership”. Those ideas included the AM-only translator window. Is it possible that Pai is looking to form a three-vote bloc (with fellow Commissioners O’Rielly, a Republican, and Clyburn, a Democrat) intending to embrace, among other proposals, an AM-only window? Obviously, this is pure speculation, but it’s at least something to think about.

In any event, the AM Revitalization proceeding appears to be about to break through whatever bureaucratic logjam it’s been bottled up in. We can all keep our fingers crossed. (Of course, you should check back here for updates.)

Audio Division Calls a Spade a Spades

Decision narrows Mattoon Waiver policy, tortures language in the process.

“When I use a word, … it means just what I choose it to mean – neither more nor less.”

While that quote is, of course, from the noted wordsmith Humpty Dumpty, you’d be forgiven if you guessed that it came from the FCC’s Audio Division. The Division based a recent decision on the odd notion that the filing of a single application may constitute a “history of serial modification applicationS”. (We have capitalized and boldfaced the “S” in “applications” to highlight the conceptual difficulty of a single application being deemed “serial applications”.)

And with that linguistic tour de force, the Division made it considerably more difficult to get a Mattoon Waiver. This is not especially good news for AM licensees.

Readers will recall that, in 2011, the Media Bureau invented the Mattoon Waiver, a policy designed to afford FM translator licensees flexibility in transmitter site moves. Its ultimate goal was to create additional opportunities for AM stations to acquire or utilize FM translators for fill-in purposes.

Because not every translator was located where it might be used by an AM station, lots of translators had to move closer to AM stations. But FCC restrictions on translator site changes often precluded making the necessary relocation in one fell swoop. Creative folks determined that they could achieve through a series of shorter moves, or “hops”, that which they couldn’t achieve with a single application proposing a much more distant move. The “hopping” approach was not prohibited by the rules – indeed, the Audio Division staff granted a lot of “hop” applications – but that doesn’t mean that the staff liked it. In an effort to squelch the “hopping” trend, the staff eventually declared “hopping” to be an abuse of process.

But if AM licensees were to be able to avail themselves of the use of translators, there had to be some way to get the translators moved closer to the AMs.

Enter the Mattoon Waiver.

It permits an applicant to propose a single long “hop” that would otherwise be prohibited by the “major change” rule. To be eligible for the waiver of that rule, the applicant must (among other things) have no “history of filing serial modification applications”.

When you read that condition, you’d think that it bars only translator licensees who have filed multiple applications, right? So if the totality of your mod application “history” involved no more than one relocation, that shouldn’t disqualify you from getting a Mattoon Waiver, right?


In its recent decision, the Division announced that it takes only one prior modification application to move you out of the “eligible” category.

The application in question, which was not opposed by anybody, satisfied all the other technical criteria for a Mattoon Waiver. But then the staff noted that the applicant had filed one modification application already. Oops. The staff concluded that the “evident purpose” of the earlier move had been “to manipulate the Commission’s modification and waiver policies in an effort to achieve an otherwise prohibited result.” The staff faulted the applicant for not providing “any information to the contrary.”

Of course, the applicant had only the Division’s previous articulation of the waiver policy to work with in preparing the waiver request. And that articulation did not suggest that a single application (as opposed to “serial applications”) might be deemed to constitute improper “manipulation”. So it’s hard to see how the staff could fault the applicant for not initially addressing the notion that a single application it had previously filed might be deemed a disqualifying “manipulation”. Agreed, it’s not unreasonable for the staff to expect waiver seekers to provide information responsive to previously announced waiver policies. But when the staff moves the goalposts by interpreting policies on the fly in unpredictable ways – for instance, by deeming a single application to be “serial applications” – an applicant’s failure to predict the unpredictable really shouldn’t be held against it, should it?

And even if the Division had alerted the applicant to the staff’s concerns about the earlier application’s supposed “evident purpose”, in order to respond persuasively the applicant would have had, in effect, to prove a negative. That is, the staff appears to have expected the applicant to be able to demonstrate conclusively that the purpose (evident or otherwise) of the earlier application was not to manipulate the Division’s policies. Since the staff appears to have concluded that the mere fact that the first move was in the same direction as the second revealed its “evident purpose”, it’s hard to imagine how the applicant could have convinced the staff otherwise.

Since the Mattoon Waiver policy was a creation of the Division in the first place, the Division can define its metes and bounds. So the fact that this recent decision seems to cut back seriously on the overall utility of the policy, while disappointing, is probably something the Division can do if it likes (and if it jumps through the right hoops, of course). But if the Division wants to change its policy, why not just change the policy? Why rely on the improbable notion that the plural term “serial applications” should or could have been understood by anybody to mean “one application”? The use of the plural “applications” directly undercuts such a reading, as does the notion of “serial” – when was the last time you saw a series of one thing?

And why conclude that a single application might, on its own, constitute an abuse of process? That seems an extraordinarily harsh conclusion to draw on the basis of pretty thin evidence.

As alert readers will recognize, this is the Division’s second decision in the last month of so cutting back on the Mattoon policy. Coincidence? Of course not. In the long-awaited AM revitalization rulemaking proceeding, the FCC is moving toward complete elimination of the Mattoon policy. In that proceeding the Commission is considering opening an FM translator window for AM stations only. At least in theory, such a window opportunity would obviate the need for Mattoon waivers. So the Mattoon Waiver policy may be a Dead Policy Walking at this point.

Translator applications have been a particular thorn in the staff’s side for more than a decade. And the Mattoon Waiver policy has aggravated that by spawning a boatload of mod applications involving waiver requests that have to be carefully analyzed, one at a time, by hand. The Division can be forgiven any antipathy it may bear toward translators generally and toward the Mattoon Waiver policy in particular. Presumably, when the AM revitalization rulemaking wraps up, that’ll be the de jure end of Mattoon Waivers; in the meantime, it looks like the staff is doing its best to eliminate them de facto.

[Blogmeister's Note: Blogger Harry Martin represented the applicant in this case.]

Audio Division to AM Licensee: Tell City is No Mattoon

Division dismisses AMer’s request for waiver that would have allowed move-in of distant FM translator.

A Hail Mary tossed up by an AM licensee looking for quick access to an FM translator has fallen short of its mark with the Audio Division’s rejection of the licensee’s request to extend the Division’s “Mattoon waiver” policy. As a result, we can kiss good-bye (at least for the time being) to the notion of a “Tell City waiver”.

This is not particularly good news for the AM industry.

The story starts with Station WTCJ in Tell City, Indiana, an AM station saddled with a relatively meager 0.85 kW ERP. Presumably looking to improve its service by adding an FM translator to the mix, the licensee arranged to buy one and move it to Tell City. But the translator it contracted to buy had a couple of problems: it wasn’t anywhere near Tell City, and the frequency it was authorized to operate on wouldn’t work in Tell City anyway. In fact, its license would have to be moved about 61 channels up the dial to make it work.

Those factors were potential roadblocks because the translator moves (both geographically and spectrum-wise) necessary to make the translator useable in Tell City constituted “major changes” under the rules, and no opportunity for seeking “major changes” is currently available. The application appeared, therefore, to be a non-starter.

No problem. Knowing that the Audio Division has evinced some flexibility with respect to FM translator relocations in some contexts – most specifically, the Mattoon waiver policy adopted by the Division in 2011 to assist AM licensees – the WTCJ licensee figured that that spirit of flexibility and accommodation might work for him, too. So he asked for a waiver so that the proposed translator move could be treated as a “minor change”.

Nearly two years after the application was filed, the Division dismissed it.

In the Division’s view, what the licensee was asking for really wasn’t appropriate waiver fodder. Also, the request ran afoul of the Ashbacker case and, in any event, sought relief better suited to a broader rulemaking rather than a narrow adjudicatory waiver proceeding.

Declaring that waivers should be available only in “special circumstances”, the Division concluded that the proposed waiver wouldn’t qualify because it would provide a “general boon to the AM industry”. In other words, because a potentially significant number of other similarly situated folks might be able to seek similar waivers, the Tell City request can’t really be deemed an appropriate request for “waiver”. Rather, according to the Division, the request sought more of a “regulatory change” than a “waiver”. Of course, the Division didn’t seem so concerned about such subtleties when it announced the Mattoon waiver policy, which sure looks like the same kind of “regulatory change”, too. But perhaps Mr. Emerson speaks to that.

The Ashbacker policy, which finds its roots in a 1940s-era Supreme Court decision, provides generally that the Commission should not routinely grant one application while denying or deferring a mutually exclusive application without some form of comparative process. The idea is that, if spectrum is to be made available for application, everybody should have a fair and equal shot at it.

The Division figured that, because other potential applicants would not have had a chance even to file applications that were mutually exclusive with the Tell City proposal (much less have them compared against the Tell City request), the Division should not, under Ashbacker, go ahead and give the Tell City applicant what it was asking for.

Whether Ashbacker in fact compelled that result is not at all clear. A variety of procedural devices (e.g., STA’s, interim authorizations) could have been invoked to address the Ashbacker concerns while still permitting Mr. Tell City to start using the translator right away. The Division, however, was unenthusiastic about going that route. That’s possibly because heading down that path would eventually require the development of some means by which to resolve mutual exclusivities. Currently, there is no process for picking and choosing between competing applications for changes in translator facilities. Coming up with – and then implementing – a new comparative process would likely amount to a boatload of work over an extended time. Absent some absolute requirement that the Division move in that direction, the Division was probably not inclined to do anything that might force it to do so.

But even if the Division had agreed that Ashbacker wasn’t a problem, the Tell City proposal was still DOA. That’s because the Division sees the creation of a Tell City waiver to be more appropriately addressed by the full Commission in the context of the AM Revitalization Proceeding initiated not quite a year ago. The Division was particularly concerned because the Tell City applicant was seeking, in essence, an extension of the Mattoon waiver policy – and in its AM Revitalization order, the Commission strongly hinted that the Mattoon policy might get tossed as unnecessary if and when the Commission opens a window for AM licensees to apply for translator. The Division saw no reason to start fiddling with a waiver policy that might not be long for this world.

Long for this world? How long might that be? That, of course, is the big question. It’s fine to deny AM folks relief from their dire straits because some alternate relief is on the way, but if that alternate relief can’t reasonably be expected to arrive soon, should it really be cited as a reason to deny interim relief? In this regard, let’s not forget that a number of the proposals under consideration in the AM Revitalization Proceeding had been kicking around in one form or another for years before that proceeding got underway. In other words, AM licensees have already been waiting for relief for a long time.

Interestingly, Commissioner Pai didn’t seem to think that the Division should have punted. In a statement he expressed his disappointment that the Tell City waiver request was denied, noting in particular that the waiver “would have provided immediate relief to AM broadcasters”. Presumably, if the full Commission were on the verge of adopting AM revitalization measures, Pai would have known that and would have had no cause for disappointment.

In any event, the likely message of the Division’s decision here is that the Mattoon case was an aberration not likely to be repeated. With the full Commission supposedly toiling away on the AM Revitalization Proceeding, the Division is apparently reluctant to take any steps that might be seen as a prejudgment of issues under consideration there.

As noted above, that’s not good news for the AM industry.

[Blogmeister’s Note: FHH attorneys assisted the NAB in the preparation of an analysis of the Ashbacker case that was submitted in support of the Tell City proposal.]

AM Revitalization Update: Reply Comment Deadline Extended

If you were planning to file reply comments in the AM Revitalization proceeding and were getting worried about how you were going to work those into your schedule – what with Valentine’s Day and Presidents’ Day and all – you can breathe a bit easier. The deadline for replies has been extended a month, to March 20, 2014. That’s good news because a quick check on ECFS indicates that by February 7 there were already more than 150 items in the docket to which a replier might want to reply. Better get reading!

Reply comments may be filed electronically through ECFS beginning at this link; reference Proceeding Number 13-249.

AM Revitalization Update: Comment Deadlines Set

A couple of weeks ago we reported on the FCC’s adoption of a sweeping Notice of Proposed Rulemaking (NPRM) aimed at revitalizing the AM radio service. The NPRM has now been published in the Federal Register, which means that the deadlines for comments on the various proposals have now been set. If you want to file comments in response to the NPRM, you’ve got until January 21, 2014. Reply comments can be filed by February 18, 2014. Additionally, if for some bizarre reason you might instead feel motivated to comment strictly on whether the “information collection” aspects of the NPRM comport with the Paperwork Reduction Act, you can file those comments separately by January 21, 2014.

FCC Responds to AM Code Blue

With AM industry debilitated by numerous factors, the Commission is looking to treat some obvious symptoms.

Amplitude Modulation radio (AM to its friends) is old and by all accounts pretty sick . . . so the FCC’s wheeling in the crash cart, gelling up the defibrillator paddles and hoping to shock the patient back to vitality. Will it be enough? Will it be in time? 


Back in September, then-Acting FCC Chairwoman Mignon Clyburn announced that the Commission was considering a package of reforms to bolster the survival prospects of AM stations. And now, not quite two months later, the Notice of Proposed Rule Making in the new “Revitalization of the AM Radio Service” docket (we’ll call it the Revitalization NPRM) has been released. 

The FCC’s goal is to help AM licensees remain economically viable. Besides soliciting comments on these specific proposals, the FCC invites any other ideas for improving the quality of AM service.

Anyone paying the slightest attention to the radio industry already knows that AM has faced 30 or more years of struggle to hang on to a meaningful market share. Those of us who are a little long in the tooth (one metric: we were around when the Beatles’ White Album first came out . . . on something called “vinyl”) recall when FM was the poor stepsister of radio broadcasting. AM dominated the dial. 

But by the 1970s the erosion had begun. Listeners were looking for better sound. FM had it.  AM, not so much. By the mid-1980s, AM radio represented 30 percent of the nation’s radio listening hours. By 2010, it was down to 17 percent. Among younger demographics, the percentages were in the single digits.

Physics, construction techniques and electronic gadgetry have all added to AM’s woes.

Thanks to the laws of physics, AM signals bounce off the ionosphere at night. (The ionosphere conveniently thins out during the day thanks to the sun’s radiation, allowing AM signals to streak out into space and not bother anybody down here on earth; but when the sun goes down, the signals bounce back down.) The bounce, or “skip”, sends the reflected signal far afield of the transmitter, so that bounced AM signal can (a) be heard by distant listeners and (b) interfere with signals where the bounced signal ends up. For that reason, only a limited number of AM stations can operate with any appreciable power at night. Most AMs are left with little or no nighttime power and are unable to cover their market areas at night or, in many cases, during critical pre-dawn morning hours.

Meanwhile, the use of steel frame reinforcement and/or aluminum siding is ubiquitous in modern construction. Those types of materials somewhat impede AM signals.

Possibly most importantly, AM signals are particularly susceptible to interference from electronic devices – so the proliferation of computers, television sets, power lines, fluorescent lights and other RF generators that have been a boon in many ways are nothing but a bane to AM radio. 

Against this background come the FCC’s proposals intended to give AM stations a fighting chance of survival. 

AM-Only FM Translator Filing WindowThis is the proposal that has drawn the most huzzahs because it may present a realistic opportunity for cash-strapped AM operators to get FM translators. Ironically, it’s not so much an “AM Revitalization” plan as an “Escape to FM” alternative.

Since roughly 2009, AM stations have been allowed to rebroadcast their programming on FM translators whose 60 dBu contours are within the smaller of the AM station’s daytime 2.0 mv/m contour or a 25-miles radius from the AM station’s transmitter site. At first the FCC allowed only then-existing translators to be used for AM rebroadcasting. That left AM licensees to scrounge around for translators that were both for sale and located (or could be moved to) near enough to the AM station to be rebroadcast. In 2012, the FCC relaxed the rule a little, allowing AM stations also to use the new translators coming on line with the grant of a flock of long-pending Auction 83 applications. 

But two basic problems emerged: (a) often translators were available only from third parties at premium prices; and (b) translators tended not to be located where the AM stations could use them, thus requiring relocation. The process of moving a translator to a useable location typically is complex, time-consuming and expensive.  

The solution?  An FM translator window for AM stations only. In the Revitalization NPRM the Commission is proposing a one-time-only filing window during which only AM broadcasters would be allowed to apply for one and only one FM translator per AM station. The translator would have to operate in the non-reserved band and be located in compliance with existing requirements (i.e., the translator’s 60 dBu contour would have to fit within the smaller of the AM’s 2.0 mV/m contour or a 25-mile radius of the AM site).   It would be used solely to rebroadcast the AM station designated by the AM-licensee applicant. To ensure that that last limitation would be honored, the translator would be “permanently linked to the AM primary station acquiring it.”

These obviously stringent limitations are designed to avoid the “land rush” crush of zillions of translator applications that occurred with the last translator window for all comers in 2003. The Commission has tentatively concluded that the imposition of such eligibility criteria will pass muster under the longstanding Ashbacker test.

And those limitations could get more stringent. The Revitalization NPRM asks whether applicant eligibility should be restricted to allow only Class C and Class D AM stations or “stand alone” AM stations to file. No mention is made whether an AM licensee that already has one or more FM translators would be allowed to file for an additional translator.

If an AM-only window were to be opened, the Commission would consider eliminating the availability of “Mattoon waivers”. Those waivers, which technically remain available (at least for the time being), permit the avoidance of certain procedural rules in the processing of applications to relocate translators so they can be used to rebroadcast AM stations. Mattoon waivers can speed up such relocations considerably.

The FCC also is soliciting comments on whether an AM-only FM translator window will affect – for good or ill – full-power FM stations, small businesses, businesses owned by minority groups and women, other FM translator licensees and LPFM broadcasters.

Daytime Community Coverage. The FCC’s rules require an AM station to put a 5.0 mV/m contour over its entire community of license during daytime hours. That tends to limit, severely, AM stations’ ability to relocate and improve their facilities, since AM stations – especially ones with multi-tower directional antenna systems – require a lot of land for their transmission systems.   For years the FCC has let AM stations slide by if they put a 5.0 mV/m daytime contour over at least 80% of the area or population of their communities of license, a relaxation which has helped some. 

Since 2009, the Minority Media Telecommunications Council (MMTC) has been pushing for even further relaxation. MMTC argues that, even under the relaxed city-coverage standard, AM stations often still can’t change sites or make improvements. That inability forces AM licensees to undertake “protracted waiver proceedings” which can strain the resources of both the applicant and the FCC. MMTC proposes that, like NCE stations, each AM station should be required only to put a city grade signal (5.0 mV/m in the case of AMs) over 50% of its community of license.  

In the Revitalization NPRM, the FCC acknowledges that finding sites suitable for AM antennas is increasingly difficult and expensive. And the FCC is willing to consider some relaxation of the coverage requirement – but not to the full extent of MMTC’s proposal. 

The Revitalization NPRM proposes to allow a licensed AM station seeking to modify its facilities without changing its community of license to cover only 50% of either the area or population of its community of license. That should open up additional potentially useable sites that aren’t available given the current regulatory constraints. 

However, because of the importance of community coverage, an applicant for a new AM station or for a change in community of license would still be expected to specify a site that complies with the current daytime community coverage requirement (i.e., 100% coverage of the community with a 5.0 mV/m contour). 

The Revitalization NPRM solicits input on the likely effect of the proposed change, and also whether the relaxation should be extended to include new or change-of-community applications. The Commission is particularly interested in hearing from broadcasters about the anticipated costs and benefits of the proposed change: would the change materially help licensees (and if so, which ones), or would it lead to delivery of “sub-standard signal quality” to significant portions of communities of license?

Nighttime Community Coverage. As we previously mentioned, because of the transmission characteristics of AM signals, AM stations more often than not must operate with reduced power at night. But AM stations are still subject to nighttime community coverage requirements similar to the daytime coverage standards described above. (The precise limits are complicated; suffice it to say, as the Revitalization NPRM cogently summarizes, AM stations must “serve the bulk of their community of license at night”.)

Because of the reduced nighttime power limits, the nighttime community coverage requirement makes the quest for suitable sites for nighttime transmission systems even harder than is the case with daytime coverage requirements. Acknowledging this, the Commission is now contemplating the complete abandonment of nighttime coverage limits for licensed stations. If that proposal were to be adopted, such stations would not be required to cover any portion of their community of license at night. 

Applicants for new stations or changes of community would still have to demonstrate some community coverage – either 50% of the population or 50% of the area of the proposed community of license during nighttime hours with a 5.0 mV/m contour or a nighttime interference-free contour, whichever value is higher. But that would still be a significant relaxation of existing limits.

This aspect of the Revitalization NPRM – particularly the notion of totally tossing the nighttime coverage requirement – is radical, as the Commission seems to recognize. It asks a range of questions about what effects – good or bad – such changes would have on the AM industry and on the listening public. The FCC is also looking for any alternative suggestions anybody might have. (Along these lines, the Commission itself suggests that it might be a good idea to impose at least some minimum nighttime coverage standards on stations are the only radio service licensed, or which provide the only nighttime service, to the community.)

Death to the “Ratchet Rule”. The “Ratchet Rule” is a truly arcane requirement imposed on Class A or Class B AM stations seeking to modify their facilities. The Ratchet Rule for Dummies: Such stations must demonstrate that the net results of the proposed modifications will be a reduction in the amount of skywave interference caused to certain other AM stations. (For a more detailed, but probably less comprehensible, discussion of the nitty-gritty of the Ratchet Rule, check out our earlier post on the subject.)

Back in 2009, the revered engineering firms of duTreil, Lundin & Rackley (DLR) and Hatfield & Dawson (H&D) asked the FCC to ditch the rule because it discouraged or impeded stations trying to alleviate nighttime coverage difficulties due to noise and man-made interference. Eight parties filed comments in support of their petition; nobody opposed it.

The FCC now tentatively has agreed that the Ratchet Rule should go and seeks comments on whether that’s really a good idea.

Implementation of MDCL Without Prior Approval.  Modulation Dependant Carrier Level (MDCL for short) control technologies or algorithms have been developed to allow AM stations to reduce power consumption while maintaining audio quality and station coverage. (Feel free to refer back to our previous post on the topic for a quick refresher course on MDCL.)

Since September, 2011, the Media Bureau has been granting permanent waiver requests (30 in all so far) and experimental authorizations (16 to date) permitting use of MDCL techniques. Word back from these MDCL pioneers is all good: significant power cost savings and little or no perceptible effects on signal coverage or quality.

Accordingly, the FCC now is proposing to let AM licensees use MDCL technology without prior FCC authority, provided they notify the Commission within 10 days that MDCL control technology is being employed. There are a couple of minor catches: first, MDCL controlled stations would have to be able to reach full licenses power at some audio input level or when the MDCL control technology is disabled; second, they would have to disable the MDCL system when field strength measurements are taken.        

Currently, domestic AM transmitter manufacturers (Harris and Nautel) offer MDCL control technologies. Additional MDCL options – transmitters and external adapters – are apparently in development by others. The Commission asks how it should deal with the anticipated expansion of available hardware in terms both of how the technology may permissibly be deployed and what information MDCL-equipped stations should report to the FCC.

In 2011, the jury was still out as to whether simultaneous use of both MDCL and a hybrid HD system would cause increased out-of-band emissions and/or suffer reduced signal quality of its HD stream. But the Commission hasn’t received any complaints about stations operating that way, so it tentatively plans to permit all AM stations – even those with hybrid digital facilities – to implement MDCL control technologies without prior authority. 

AM Antenna Efficiency Standards. The FCC’s “minimum efficiency” standards require each applicant for new or modified AM facilities either (a) to meet minimum height requirements which vary by frequency (the lower the frequency, the taller the tower) or (b) to meet specified field strength requirements. 

Arguing that the minimum efficiency standards make it tough to find suitable AM transmitter sites – particularly for lower frequency stations that need taller antennas – MMTC proposed that the FCC adopt a “minimum radiation” standard instead. According to MMTC, that change would allow stations to use very short antennas and “enjoy more flexibility in site selection, including rooftop installations.” 

The FCC expresses some bewilderment about this component of MMTC’s proposal, which the FCC says is “unclear as to both the exact problems that MMTC perceives with our current regulations, the specifics of the rule or rules it proposes to eliminate or replace, and why that solution is preferable.” Nevertheless, in the revitalization spirit, the Commission will consider reducing the minimum effective field strength values. That would offer AM broadcasters some relief by enabling them to propose shorter antennas. 

Specifically, the FCC seeks comment on whether it should reduce minimum field strength values by roughly 25%. The welcome mat is also out for comments on pretty much any technical and/or policy considerations relating to minimum antenna efficiency. For instance, would lower efficiency transmission systems face potential interference or stability problems?  Are the FCC’s existing methods sufficient to assess the performance of very short antennas? Would such antennas produce excess heat that would harm the transmission system? Would the RF radiation rules need to be revised to cover very short antennas? And if you can think of any other antenna efficiency-related questions, feel free to answer those as well.

The Revitalization NPRM proposes a lot of remedies to better the condition of the AM radio patient. But it does not solicit comment on some of the more radical ideas MMTC and others have floated – the heart transplant options, if you will – such as giving each AM station a digital channel in the band presently assigned to TV Channel 5 and 6, or switching the AM band to digital-only operation. Instead, the extensive changes proposed in the Revitalization NPRM are all aimed at helping the financial viability of the AM service rather than altering the technical quality of the signal it can deliver to the listening public. Indeed, a number of the Commission’s questions reflect concern that some of the proposals could lead to less or worse service. 

But the AM service is somewhat like a geriatric patient, subject to a variety of infirmities that simply may not be remediable, certainly not in the short term. In such cases the care-giver should do whatever it can and hope for the best. Here, the FCC is clearly looking to stabilize AM radio’s financial heartbeat as an essential first step to preserving the patient.

The deadlines for comments and reply comments have not yet been set. Check back here for updates.

LPFM Update: Effective Date Set for Remaining Changes from 6th Report and Order

In December of last year we reported on the Commission’s “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O was published in the Federal Register the following month, but (as we reported in January) that didn’t mean that all the new rules went into effect back then.

Rather, the changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 – and the revised version of FCC Form 318 – all had to be run past the Office of Management and Budget for its approval. (Those changes all involved “information collections” requiring OMB review thanks to the Paperwork Reduction Act.)

The Commission has now announced that OMB is happy with the changes. As a result, they will all take effect on May 23, 2013. It’s unlikely that the changes will have any immediate impact, since they relate primarily to LPFM applications, and there’s currently no opportunity to file for new LPFM authorizations. However, as we all know, the Commission is hoping to be able to open a window for new LPFM applications sometime in the near future – October, 2013 is one target date, although many are doubtful that the Commission will be able to hit that target. Anyone who expects to be filing any LPFM apps in that window should be sure to make note of the effectiveness of the 6th R&O changes.

FM Translator Application Update: Bureau Provides More Guidance on Preclusion Showings

Bureau gently prods applicants in the proper direction with a public notice that reads like “Preclusion Showings for Dummies"

As we have previously reported, FM translator applicants whose applications are still alive and kicking are subject to a variety of filing deadlines looming in the very near future. Different deadlines apply, based on whether the application has been identified by the Media Bureau as (a) one of 713 “singleton” applications or (b) one of a separate batch of 639 applications not satisfying the “singleton” criteria.

Some, but not necessarily all, of those 1,352 applicants must file “preclusion showings” as part of their required submissions. Apparently, from the filings that have already rolled in the door, the Bureau’s staff has concluded that at least some of the affected applicants haven’t fully grasped what’s expected of them. Accordingly, the Bureau has tried, tried again, this time by issuing yet another public notice providing further “guidance” or “clarification” of the filing requirements.

The notice, which reads like “Preclusion Showings for Dummies”, is relatively short and to the point. Where preclusion showings are required, the notice thoughtfully bold faces the word “required” as an additional helpful visual cue. The concepts don’t appear to be particularly complicated (but then we didn’t think they were particularly complicated when they appeared in the Fourth Report and Order or in the previous public notices). In any event, anybody with a translator application still in the hunt should be sure to review the public notice carefully and to follow its directions thoroughly.

Hint: We gather from indications we have received from Bureau personnel that one particular bugaboo involves applications which, as originally filed, proposed facilities within 39 km of a “Spectrum Available Market Grid”. If no changes at all are being proposed to those originally-specified facilities, then no preclusion showing is required. But if the applicant proposes to amend its original proposal – by changing power, height, channel, location, antenna pattern, etc. – then a preclusion study is required. 

That’s because the staff’s initial determination that the application was in a “Spectrum Available Market Grid” (and, thus, not subject to the preclusion showing requirement) was based on the originally-proposed facilities. Any change in those facilities could alter the underlying factors that made the application’s market “Spectrum Available” in the first place. The preclusion study, based on the application’s amended proposal, will allow the Bureau staff to assess whether the market remains “Spectrum Available” or whether it has become, as a result of the amended proposal, “Spectrum Limited”. 

Some might view the most recent public notice as an annoying bit of unwelcome bureaucratic niggling, but hold on there. The Bureau is trying to get the word out to all affected applicants sooner rather than later to ensure that those applicants will have been given every possible opportunity to satisfy the Bureau’s requirements before the applicable deadlines come and go. If, as appears to be the case, the Bureau has already noted considerable shortfalls along those lines in what has been submitted thus far, the Bureau is doing everybody a favor by trying again to point applicants in the right direction.

As we observed last month, a failure to give the Bureau what it wants could result in dismissal of your application(s).  It would be a shame to have come this far in the process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

FM Translator Application Update: Bureau Announces Window for Filing of Preclusion Showings

639 surviving applicants face the next hurdle in the now decade-long contest.

In the long-running reality show “Survivor – 2003 FM Translators”, if you happen to be a player whose FM translator applications haven’t yet been kicked off the island, heads up: the Media Bureau has just announced the next challenge. This time affected applicants have been given a 19-day window (from April 1-19, 2013) within which to submit their Preclusion Showings.

Which applications are subject to the challenge? Any of the 639 still-pending FM translator application originally filed in the 2003 window (for Auction 83) which specifies a transmitter site that is (1) inside a Spectrum Limited market and/or (2) within 39 km of any Spectrum Limited Market Grid. For those of you who may be unclear about whether you’re still in the game (and, thus, facing this next chore), the Commission has provided a list of all 639 lucky applications. You can find a PDF version of the list at this link, but we suspect that you may find this MS-Excel version a bit more useful in terms of slicing and dicing the data on the list, which spans ten single-spaced pages. Here’s the Bureau’s explanatory description of the list:

Attachment A lists each Auction 83 Filing Window tech box proposal for which a Preclusion Showing amendment must be electronically submitted by the April 19 deadline. The list is sorted by the state in which the specified community of license is located. The “Market” column lists, if applicable, the Fall 2011 Arbitron Market number as set forth in Appendix A in the Fourth Report and Order. Each market designation was based on the location of the proposal’s specified transmitter site. The “In SL Buffer” column identifies with a “Yes” each proposal that specifies a transmitter site that is within 39 km of at least one Spectrum Limited Market Grid.

And what the heck is a “Preclusion Showing” anyway?

The Bureau’s announcement of the window walks you through the practical end of how and what it expects you to file. In addition, the Bureau has issued a separate summary description of the tests (i.e., the “Grid Test” and the “Top-50 Transmitter Site Test” that will have to be satisfied in the Showings. We strongly recommend that any applicant planning to file one or more Preclusion Showings review both of these notices in detail and be prepared to jump through all the hoops set out in each.

Anyone who may be a little fuzzy on what this whole FM translator application situation is all about may want to revisit our extended collection of posts on the subject, which may be found here. (Just keep scrolling down - there are a lot of posts covering several years' worth of developments.)  At this stage of the game, though, if you’re wondering what a “Grid Test” is or whether you’re in a “Spectrum Limited Market”, you’ve got a lot of catching up to do.

For those of you who are still in the game and playing to win, remember: the window for Preclusion Showings opens on April 1 and slams shut on April 19. Good luck.

Update: Deadline Set for Oppositions to Petitions for Reconsideration of Latest LPFM Decision

Last December the Commission released its Fifth Order on Reconsideration and Sixth Report and Order in the long-running LPFM proceeding. Five parties weren’t 100% happy with the results so – surprise, surprise! – they have filed for reconsideration of various aspects of the FCC’s decision. The petitioners (with links to their respective petitions) are:

Prometheus Radio Project

Michael Couzens and Alan Korn

REC Networks


LifeTalk Radio, Inc.

According to a notice in the Federal Register, if you want to oppose any (or all) of these petitions, you have until March 21, 2013Replies to any oppositions will be due by April 1.

While the opening of a new pleading cycle – with the consequent opportunity for a pleading war – is often a harbinger of delay, our guess is that that’s not the most likely scenario here. As we have reported, the Media Bureau is doing its darnedest to tee the next LPFM application window up as quickly as possible (maybe even by next October, if the Chairman gets his wish). It’s unlikely that a handful of recons will distract the Bureau from that mission, but you never know. In the meantime, look for continued progress in the Bureau’s efforts to clear the FM translator application dead wood, a necessary antecedent to the LPFM window.

FM Translator Application Update: Singleton List Released, Long-form Deadline Set

The FM translator application juggernaut rolls on. 

Having processed the Selections Lists and Caps Showings filed in January and having, as a result, tossed several thousand applications earlier this month, the Media Bureau has sifted through the remaining rubble and identified 713 singleton applications that may be grantable in relatively short order. The lucky 713 applications: (a) are apparently not mutually exclusive with any other applications filed back in the 2003 filing window and (b) don’t run afoul of the technical limitations imposed in last year’s Fourth Report and Order. (Helpful reminder: To satisfy those limitations, an application must be: (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid.)

Heads up, though. If you’re on the singleton list, you’ve only got until March 28, 2013 to prepare and file your long-form application (Form 349), along with any required filing fee and Form 159, in order to stay in the game.

The public notice announcing the singleton list also includes some guidelines relative to what you can and can’t do in the long-form application. Attention should be paid to those details, because a failure to comply could result in dismissal. It would be a shame to have come this far in the application process only to crater on a technicality at the ultimate (or maybe penultimate) stage of that process.

In particular, the long-form application may specify facilities (including, e.g., transmitter site, power, height, directional pattern, channel) different from those specified in the original 2003 “tech box” showing as long as they constitute “minor” changes. If the proposed changes would result in a site (a) within the 39 km buffer of any defined Market Grid and/or (b) at an out-of-grid location within a Top-50 Spectrum Limited Market, the applicant will also have to file a preclusion showing relative to the amended proposal. (If the facilities specified in the long-form Form 349 application are identical to those specified in the “tech box” filed back in 2003, no preclusion study is necessary.) 

Along with the public notice announcing the singleton list, the Bureau has also released a separate set of guidelines describing in considerable detail the required preclusion showing. Again, attention should be paid to the details, since the Bureau has made clear that preclusion studies must be complete and sufficient and, most importantly, they may not be “amended, corrected, completed or resubmitted” after March 28.

Once the March 28 deadline has come and gone, the Bureau will review the amendments, dismiss any applications that fail to satisfy the terms set out in the public notice, and the rest will be put out on a public notice which will trigger a 15-day petition to deny period. Of course, any of the 713 applicants who fail to file a Form 349 by the deadline will also be dismissed.

More FM Translator Applications Down the Tubes

Media Bureau gives Dave Doherty a break, provides itemized list of latest victims

In what may be the last peristaltic spasm of the FM translator review process, the Media Bureau has announced that it has dismissed “several dozen” (by our count it’s a total of 40) remaining FM translator applications that were filed back in 2003. According to its public notice, the Bureau “has now completed” its review of the Selection Lists and Cap Showings filed last month by translator applicants and “has identified those applications which do not satisfy filing requirements”. So if your application (a) wasn’t already tossed out in last week’s mass dismissal and (b) isn’t listed in this most recent batch, then presumably you’ve survived the cut and your application can now be processed. 

No official word yet on when the next processing steps are likely to happen, but we’re guessing they’ll be happening sooner rather than later – possibly in a matter of a few weeks. As we have previously reported, the Commission has made clear its hope that the next LPFM window can be opened promptly (as early as next October, if the Chairman has his way), and the Bureau has thus far been doing its darnedest to turn that hope into reality.

One additional note: Unlike last week – when the Bureau tossed more than 3,000 applications without issuing any itemized public notice specifically identifying those applications – this time around it has provided a listing of the 40 latest victims in PDF and Excel formats, convenient for easy slicing and dicing. That should take our friend Dave Doherty off the hook this time around.

Lists of Surviving FM Translator Applications Now Available

Apparently undaunted by the approaching blizzard, Dave Doherty at Skywaves Consulting up in Millbury, Massachusetts, has been hard at work culling potentially useful information from CDBS about the FM translator application situation. Now, in addition to the lists of dismissed applications he passed along to us a few days ago, he has provided a couple of lists reflecting all the vintage 2003 FM translator applications that survived the first round of dismissals. Here you go: a list of surviving applications arranged alphabetically by applicant, and a list of the same applications arranged by state and city. This, ideally, will help address the concerns expressed by a commenter to an earlier post,

Dave cautions that the Media Bureau has indicated that more applications may be headed for the Dismissalville in the near term – thanks, apparently, to the fact that some applicants’ tech showings were either messed up or MIA, thus requiring additional staff analysis. The smart money figures that such additional analysis will identify more applications destined for the dumpster. Presumably the Bureau will let us all know if and when that happens, but you never know.

And while caution is being dispensed, we’ll add here that we have not test-driven Dave’s latest set of lists, so you rely on them at your own risk. But, as we noted the last time around, the lists provide a more useful approach than the Bureau’s public notice. Thanks again, Dave – and don’t hurt yourself shoveling snow!

FM Translator Dismissal Aftermath - The Private Sector to the Rescue!

Searchable lists of the 3,000+ dismissed applications now available

Let’s have a big CommLawBlog cheer for the private sector! As we reported yesterday, the Media Bureau unceremoniously dumped about 3,000 FM translator applications into the trash. In doing so, the Bureau chose not to issue the type of public notice that usually accompanies such actions. Instead, the staff issued a public notice announcing, in general terms, that it had tossed the apps, and advising that anyone who wanted to know which applications had been tossed could knock themselves out performing wildcard searches in CDBS. As we observed, this approach was not especially helpful to folks in the private sector who might have an interest in figuring out which applications were gone and which are still alive and kicking.

Fortunately, Dave Doherty from Skywaves Consulting LLC in Millbury, Massachusetts has come to the rescue. Dave has prepared two lists of all the dismissed applications. One list is organized alphabetically by applicant, the other alphabetically by state. They both contain the same data – Facility ID Number, Channel, Frequency, State, City, Applicant Name and File Number.  Both lists are searchable. We haven't doublechecked Dave's handiwork, so if you're inclined to rely on it, you do so at your own risk.  But at least it attempts to provide a more useful approach to the dismissed translators than the FCC did.  We asked Dave if we could post links to his two lists for our readers, and he graciously agreed. Thanks, Dave! (Dave’s contact information is available on his lists, if you want to thank him personally.)

Bureau Disposes of FM Translator Applications

As drive toward an LPFM auction moves forward, applications get tossed for real while Selection Lists/Caps Showings get released, sort of.

That loud flushing noise you may just have heard was the sound of about 3,000 FM translator applications heading down the tubes. Having analyzed the various Selection Lists and Caps Showings submitted by translator applicants late last month, the Media Bureau has announced that it has now tossed “approximately 3,000” vintage 2003 translator applications. In the same public notice, the Bureau has also announced the “release” – and we use that term loosely – of all of the underlying Selection Lists and Caps Showings submitted during the recently closed Selection Filing Window.

Which applications got thrown out and which didn’t? Good question. The Bureau’s one and only (apparently) public notice on the subject doesn’t include a list of the dismissed applicants, or applications, or file numbers, or any of the other conventional data you might expect. If you want to know any specifics, the staff apparently expects you to head online to CDBS, where you can probably figure out precisely which applications got dismissed and which continue to live on if you’ve got boatloads of (a) time and (b) motivation and (c) luck.

According to the public notice, each of the translator applications dismissed today “will include the following CDBS Public Notice comment: ‘Dismissed February 5, 2013 per DA 13-XX.’” A quick random spot check of FM translator applications dismissed today did not turn up any such comment, but the staff may still be working on that. By performing a “wildcard” search we were able to generate a list of 3,033 translator applications that were (a) filed in March, 2003 and (b) dismissed as of today. However, that list identified the applications only by file number – no reference to applicant or community of license or channel – so it’s not clear how useful that list would be to anybody.

[For the record, here’s how we performed our search: 

(1) Go to CDBS and click on “Search for Application Information”;

(2) For the following fields, enter the information indicated (see illustration):

            File Number:                   BNPFT            200303%

            Application Status:      Dismissed

            Status Date:                    02/05/2013      02/05/2013

(3) Click on “Submit Application Search” button.]

Of course, if you happen to have an idea of what you’re looking for – maybe you’re interested in a particular applicant, or a particular community, channel, state, etc. – you’re in better shape, because you can narrow down the wildcard search accordingly.  But we suspect that even such a narrowed-down quest will yield results that will require considerable patience to sift through.

If you want to see the Selection Lists and Caps Showings the Bureau has now “released”, that, too, will require considerable effort. Each applicant’s Lists/Showings submission has apparently been uploaded to CDBS, but only to the applicant’s last-filed “BNPFT” application listing. To find a particular applicant’s submission, the staff (in a footnote to the public notice) instructs you to: (a) perform a wildcard search for all FM translator applications filed by that applicant in March, 2003; (b) once that search produces a list of applications, click on the “Info” link relative to the first application at the top of the list; (c) when the Info page comes up, click on the “View Correspondence Folder” link; and then (d) click on the link labeled “Click to View Imported Letter” bearing the date February 5, 2013.   Repeat as necessary.

On the one hand, the Media Bureau is to be applauded for digging through the Selection Lists/Caps Showings submitted just last month and weeding out thousands of ten-year-old applications that were clogging up the system. The Bureau is, of course, under the gun to tee up an LPFM auction – as early as next October, if the Chairman has his way – so there was pressure to get this job done sooner rather than later, but it’s still impressive that the staff managed to handle it as quickly as it did.

On the other hand, the apparent desirability of quick action may not completely excuse the less than helpful manner in which the staff’s action has been packaged and presented to the rest of us. For example, applicants who remain hopeful that their applications may yet be granted have no easy way of determining which, if any, other applications may still be standing in their way. It’s also difficult to confirm that the list of dismissals conforms to the various Selection Lists/Caps Showings submitted by the affected applicants. Is it possible that some applications that should have been on the chopping block were inadvertently spared, or vice versa? Good luck figuring that out. Sure, we’re only talking about FM translators here, and sure, these applications have been sitting around for ten years already, for crying out loud. But does that justify imposing unusual burdens on any translator applicants still theoretically in the fight?

In the end, we suspect that the Bureau’s approach, inelegant though it may be, is not an inappropriate way to signal the start of the shut-down process for Auction 83, an auction that never really got off the ground in the first place. To be sure, some surviving applications will somehow remain to be processed and, eventually, granted. But it has long been evident that, in order even to begin to wrap things up here, drastic action would have to be taken. The Bureau’s public notice reflects such action.

Update: Effective Date Set for New LPFM/FM Translator Rules

As we reported last month, in December the Commission released its “Fifth Order on Reconsideration and Sixth Report and Order” (we refer to it as the 6th R&O) in which it (a) tied up some loose ends relative to LPFM and FM translator matters and (b) adopted new rules and policies governing LPFM applicants. The 6th R&O has now been published in the Federal Register, which means that most (but not all) of the new rules are set to become effective on February 8, 2013.

The changes to Sections 73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860 and 73.872 will not take effect on that date, though. All those sections involve what we call “information collections”. As a result, they are subject our old friend, the Paperwork Reduction Act, which means that they will have to run past the Office of Management and Budget first before they can be implemented.

Note that the establishment of effective dates for the new rules should not affect the fast-approaching deadline by which FM translator applicants must file their “Selection Lists” and “Caps Showings”. As we have previously reported, the window for filing those lists and showings opens on January 10 and closes on January 25.

FM Translator Application "Selection Lists"/"Caps Showings" Requirements Clarified

With January 25 deadline fast approaching, the Media Bureau has provided some (non-binding) guidance to FM translator applicants.

If you’re one of the folks with a bunch of FM translator applications still pending from the 2003 filing window, you’re probably hard at work trying to figure out what, if anything, you should be filing in response to the Commission’s public notice announcing the deadline for “Selection Lists” and related “Caps Showings”.  (You might have missed that notice, since it was released the afternoon of December 21 – that is, the Friday of the long Christmas weekend.)

As we pointed out, in the wake of that notice a considerable amount of work must be done, and there’s not a lot of time to do it in. The window for filing Selection Lists and Caps Showings opens in two days (on January 10), and closes on January 25

But the Media Bureau feels your pain, and in an effort to assist translator applicants, the Bureau has released a set of 12 clarifying examples (actually, it’s 17, if you count the five sub-examples tacked onto Example 12). They provide reasonably specific directions for what is and is not expected of applicants in a variety of possible scenarios. (They’re especially helpful if you happen to have five applications pending in the Atlanta area, three of which are Inside the Atlanta Market.) So translator applicants currently struggling with making selections and assembling showings would be well-advised to take a few minutes (and a couple of deep breaths) and check out the Bureau’s examples. That may save some time and aggravation.

But heads up. While the examples are “intended to provide general guidance reflecting the staff’s initial interpretation of the application selections and cap showings procedures”, they may not be the last word.   The Bureau’s notice specifically disclaims that the examples “are not intended to establish binding precedent”. Further, “[t]he staff will make specific rulings in response to actual selections and submissions on a case-by-case basis.” In other words, applicants should feel free to rely on the examples, but such reliance will not necessarily safeguard an applicant’s selections or showings from adverse determinations by the staff down the line.

Good luck.

FM Translator Application Dismissal Lists - A Clarification

“Selection Lists” may be filed by email.

Last month we reported on the Media Bureau’s announcement of the deadline and procedures for filing lists of FM translator applications to be dismissed pursuant to the provisions of the “Fifth Order on Reconsideration and Sixth Report and Order” (which we’ve previously referred to as the 6th R&O). In our post, we said that “[a]ll showings will be submitted on paper – there will be no electronic filing.”

Oops. As a helpful member of the Audio Division has pointed out to us, the Bureau’s public notice DOES provide for submission of the Selection Lists (and related “Caps Showings”) by email, which is technically “electronic filing” (even if it doesn’t involve CDBS). 

The address to use: FXshowings@fcc.gov. While that address may or may not be operational as of today (January 3, 2013), we have been advised that it’ll for sure be up and running by January 10, the day the window for filing Selection Lists and Cap Showings opens.

But heads up. The FCC’s email system will not accept attachments larger than 10 MB. The Bureau’s notice instructs that “files beyond that size [i.e., 10 MB] should [be] divided into multiple sub-10 MB documents and sent via separate e-mails.”

Our apologies for any confusion that we may have caused.  And many thanks to our sharp-eyed reader who brought this to our attention.

Update: Deadline for FM Translator Dismissal Lists Announced

Public notice spells out showings that must accompany applicants’ choices of which 2003-era FM translator applications will stay and which will go

If you’re one of the lucky folks who happens to have translator applications still pending at the Commission from the famous 2003 filing window, heads up – depending on how many applications you have and what markets they propose to serve, you could have a lot of homework to do between now and January 25. That’s because the Media Bureau has announced that the window period for submitting “translator application selection” lists (“Selection Lists”) and related “Caps Showings” will run from January 10-25, 2013

So much for taking any time off during the Christmas/New Year’s/MLK extended holiday season.

The Bureau’s public notice is not unanticipated. As we noted just ten days ago, the Commission is highly motivated to wrap up the long-running face-off between FM translator applicants and would-be LPFM applicants. The culling of the herd of translator applications that have been sitting around for nearly ten years is an essential step in achieving that goal.

As those of you who have been following the LPFM/FM translator imbroglio through our blog already know, the Commission has devised a highly complex set of technical guidelines to govern which translator applications will be processed and which will be dismissed. The applicants themselves will have the first say, but their ability to pick and choose among their pending applications is subject to the Commission’s complex guidelines.

In announcing the deadline for submitting the Selection Lists, the Bureau has provided a useful summary of the technical factors that will come into play as applicants prepare their lists. We won’t try to summarize those factors here – the Bureau has already done an admirable job on that front, so we’ll simply provide another link to the Bureau’s public notice.

We will, however, note that the January 25, 2013 deadline appears to be absolute. In bold face text the Bureau warns that “Selection Lists and Caps Showings may not be submitted, amended, corrected or resubmitted for further consideration after the Caps Deadline.” So if you’re going to be among those filing lists and showings during the upcoming window, be sure to double- and triple-check your work before turning it in.

And just who will be having to submit Selection Lists and Cap Showings? According to the notice, “[n]o submission is required for this filing window by any Auction 83 [FM translator] applicant that has fewer than 51 pending Applications nationally and no more than one pending Application in any of the Appendix A Markets.” The term “Appendix A Markets” refers to a list of markets set out in Appendix A to the Commission’s Fourth Report and Order. (We described that Report and Order last April.) So you’re off the hook if you have no more than 50 pending translator applications and no more than one application in any Appendix A Market.

The rest of you should get busy.

You’re going to have to decide which applications you want to continue to prosecute and which you’re willing to toss. No applicant will be permitted to keep more than 70 applications on file, so some of you will have to do some whacking just to get in under that limit. 

And once you’ve made that cut, the fun will have just started. 

Applicants that plan to prosecute 51-70 applications nationally will have to demonstrate, with respect to any of its applications outside any Appendix A Market, compliance with a number of “national caps conditions”. That demonstration will include a “No Overlap Showing” and a showing that “at least one [LPFM] licensing opportunity will remain at the proposed site if the Application is granted.” In the “No Overlap Showing” the applicant will have to show that the proposed 60 dBu contour of the particular translator application won’t overlap with the equivalent contour of any other translator application or authorization held by the applicant as of December 4, 2012. (All contours will be determined by the standard prediction method.)

The Bureau’s notice also points out that the grant of any application with a transmitter site outside of an Appendix A Market will be subject to a condition that, for the first four years of operation, the translator’s 60 dBu contour must overlap the 60 dBu contour as originally granted. In other words, for the first four years a non-Appendix A Market translator won’t be able to be relocated so far away that its modified 60 dBu contour does not overlap the originally granted 60 dBu contour. (Again, all contours will be determined by the standard prediction method.)

For Appendix A Market applications, there may be even more to be done. Applicants wishing to prosecute more than one translator application in a given Appendix A Market will be subject to a number of restrictions. First, an applicant may prosecute no more than three applications in any Appendix A Market. For each such application, a “No Overlap Showing” will have to be submitted. And in addition, for each of those applications the applicant will have to demonstrate that certain LPFM licensing opportunities will not be precluded.

And all of this has to be wrapped up and delivered to the FCC by 7:00 p.m. (ET) on January 25, 2013. All showings will be submitted on paper – there will be no electronic filing.

As noted, once an applicant has filed its Selection List and accompanying Caps Showings, there’s no changing them at all. The Bureau will then sift through them and clear its files accordingly. If an applicant that should file a Selection List and Caps Showing fails to, or if it files a “deficient” showing, the Commission will follow a particular drill for deciding which applications will stay and which will go.

Finally, a note of caution to everybody who has a vintage 2003 translator application still pending. You all are still subject to the anti-collusion rules. That means that you cannot, at any point in the caps selection process, communicate with other applicants with respect to various application-related matters. (The particular areas to avoid are spelled out in Section 1.2105(c) of the rules.)

Effective Date of New LPFM Rules Set

Updated “water files” also released as FCC works to advance LPFM/FM translator plan

Having settled on a framework for clearing the FM translator logjam and getting the LPFM application process up and running (at least in theory), the Commission is losing no time in its efforts to implement that framework. The “Fifth Order on Reconsideration and Sixth Report and Order” in the ongoing LPFM/FM translator saga has now been published in the Federal Register. (We wrote about that order last week.) Barring a stay of the effectiveness of the order – and such a stay is unlikely in the extreme – the new rules will become effective on January 10, 2013. (That will also be the deadline for petitions for reconsideration, should anybody be inclined to seek reconsideration.  Parties interested in seeking judicial review will have until February 9 to get their petitions for review filed with an appropriate court.)

The Federal Register publication (and consequent effective date) probably won’t have any immediate impact on things, though. What will have an immediate impact will be the FCC’s public notice concerning the deadline by which applicants with more than the permitted number of translator applications must elect which of their applications they plan to dismiss. That public notice could show up any time now. Since (1) the Commission appears keen on getting the LPFM show on the road, and (2) the LPFM window process won’t be able to proceed until the translator backlog is cleared, and (3) the translator backlog won’t be cleared until dismissal elections have been made, and (4) dismissal elections won’t be made until the FCC sets a deadline for them, our guess is that that deadline is likely to be announced sooner rather than later. Check back here for updates.

And also on the LPFM front, the Commission has released some updated “water files” for certain markets. These files clarify or correct certain “minor discrepancies” with respect to the possible exclusion of grid points at locations over water or not within the United States. (For more on the significance of “grid points” and related matters, see our post from last April.) The communities affected by the updated water files: Chicago; Detroit; Los Angeles; and Jacksonville (the one in Florida). The code, updated water files and other relevant materials may be accessed in a zip file at http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip.

Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Clearing the translator backlog

First things first. Before the Commission can open an LPFM window, the remaining 6,000 or so translator applications filed back in 2003 have got to be cleared out. To hasten that, the FCC has revised the cap limits (i.e., the number of translator applications any single applicant can continue to prosecute) and settled on a process to deal with those applications that survive the cap-limit culling.

Application caps – Originally, the Commission had settled on a 50-application cap. But now that has been relaxed somewhat, in some limited circumstances. In the 6th R&O, the Commission has revised the cap upward to 70 applications nationally, with a limit of 50 in the largest U.S. markets. 

Additionally, translator applicants are now faced with a cap of three applications in the 156 largest markets – as opposed to the one-per-market cap announced last March. However, the relaxed per-market cap is subject to a number of considerations. For example, submarkets in the largest cities will be considered separate markets for purposes of applying the three-application local limit. No 60 dBu overlap will be permitted with another commonly-owned application. (And with respect to demonstrations of no-overlap, the Commission will not accept alternate contour prediction – e.g., Longley-Rice – showings.) Additionally, applicants will need to submit studies showing that their proposed translators will not preclude LPFMs in either the market “grid” or at the translator’s proposed site.

Thinning the herd – With those new caps (and related limitations) in place, here’s how the Commission plans to deal with the translator backlog.

The first step will be a public notice requiring compliance with the new national and local caps. As early as January 2013, applicants will be told to elect their top-70 (and top-50 in major markets) applications by a date certain. Applicants with more than three applications in the larger markets will be ordered to make similar elections. Thousands of FM translator applications should be eliminated from the database, thereby – the theory goes – making room for LPFM stations.

Next, or simultaneously, the FCC will begin processing “singleton” translator applications in non-“spectrum limited” markets (those where opportunities theoretically remain for new LPFM stations. Check out our post from last April for more details on “spectrum limited” markets.). Applicants in this category will be invited to file “long form” applications to supplement the abbreviated Forms 349 they filed in the 2003 translator window. 

At the same time, applicants in “spectrum limited” markets will be afforded an opportunity to file long-form applications which include, where possible, showings that the grant of their applications will not preclude opportunities for future LPFM stations. 

The FCC will then open a settlement window allowing technical settlements or limited buy-outs (for expenses only) among mutually-exclusive applicants for non-“spectrum limited” markets.

Singleton applicants in “spectrum limited” markets which can demonstrate no preclusion of LPFM opportunities will then be processed and granted. A settlement window will then be opened to allow the sorting out of non-preclusive applicants in “spectrum limited” markets.

Any remaining singletons will then be processed and granted. 

After these steps are completed, some groups of mutually-exclusive translator applications are still likely to remain. The FCC will conduct an auction among remaining applicants for commercial translator licenses; remaining non-commercial (NCE) translator applications will be chosen under the Commission’s noncommercial comparative points system. In hybrid groups of NCE and commercial MX applications, it’s likely the NCE applicants will be afforded an opportunity to amend to specify commercial operations, thereby avoiding dismissal.

Timing – As noted, we can expect to see, probably within a matter of weeks, the public notice requiring translator applicants to elect which of their applications they will continue to prosecute. Since all translator applicants have long been on notice that they would be having to make some such election (even if the precise application has been somewhat up in the air until now), don’t be surprised if the Commission provides only very limited time within which to make those elections.

But the follow-up processes of settlements, singleton processing, resolution of MX groups, etc. could take considerably longer. 

How long? According to the Commission, “to maximize LPFM filing opportunities it is critical for the Media Bureau to complete substantially all of its processing of the pending FM translator applications prior to the opening of the LPFM window.” So you might figure that no LPFM window will be opened until the translator backlog has been cleared. Perhaps, but as noted above, the Commission has tentatively set October 15, 2013 as the target date for the next LPFM window. That suggests that the Commission thinks it can wrap up the translator backlog in the next nine months. We wish them luck with that. (Perhaps recognizing the potential for delay along the way, in the 6th R&O the Commission authorizes the Media Bureau to “adjust” the October, 2013 date “in the event that future developments affect window timing”.)

The next LPFM window

When the LPFM window does open, LPFM applicants will be subject to a number of new rules and policies. They include:

  • New second-adjacent channel short-spacing waiver criteria for LPFM applicants vis-à-vis FM, FM translator and LPFM stations. The new criteria will permit use of the undesired/desired signal strength ratio methodology to evaluate potential interference. (Up to now, such methodology has been available only to translator applicants.). The criteria will also permit the use of directional antennas, alternate antenna polarization and lower ERP in waiver requests.
  • Interference complaint procedures for third-adjacent channel LPFMs vis-à-vis FM, FM translator, or FM booster stations. (Third-adjacent channel spacing requirements for LPFM applications were repealed by Congress in 2010, but actual interference is still a cognizable issue under the rules.)
  • Modified selection criteria for mutually-exclusive LPFM applicants. The new criteria will make available additional comparative “points” to those proposing to establish local studios and for applications by Native Americans to serve their tribal lands.
  • Expanded ownership limits which will permit, subject to certain restrictions, ownership of up to two FM translators by an LPFM station.
  • Elimination of the plan adopted in 2000 to license LP10 (10 Watt) LPFM stations.
  • Elimination of IF protection requirements applicable to LPFM.

What you see is what you get. 

So the FCC has finally resolved a proceeding that had its origins in the 2003 FM translator window. As to LPFM/full-power interference issues and the imposition of FM translator application caps, the FCC (with significant input from Congress) has spoken. Some mass filers will lose the bulk of their remaining translator applications, as will applicants who concentrated in just a few markets, but the adjustments to the caps may help some. LPFMs will have new spectrum rights vis-à-vis full-power FM and other FM services, new opportunities to own translators, and new limitations on the facilities they can hold. It’s safe to say that nobody is likely to be 100% happy with 100% of the Commission’s resolution of the LPFM/FM translator conundrum. But a decade of uncertainty is over, unless either the FCC re-thinks things or a court of appeals (at the request of one or another disgruntled party) finds some flaw in the Commission’s actions – neither of which possibilities is likely, in this writer’s view. If all goes as planned, the FCC’s new rules will become effective 30 days after their publication in the Federal Register (except for some aspects that will require prior OMB approval). Check back with us for updates on that situation.

OMB OK on FM Translator Application Culling

Meanwhile, back at the FM translator application backlog . . .

In March, the Commission announced the process by which the pile of several thousand FM translator applications, still pending since the infamous 2003 filing window, would be trimmed down. (You can read the Commission’s full 35-page – not including appendices – decision here, or our punchy, far more abbreviated recap of it here.) As we reported in May, the process by which the Commission intends to thin the herd involves “information collections” (as they are known in Paperwork Reduction Act parlance). Such collections must be approved by the Office of Management and Budget (OMB) before they can be implemented.

According to a notice published in the Federal Register, OMB has given its thumbs up to the Commission’s process.  (The imprimatur was technically handed down on July 24.) This clears the way for the FCC to get the culling started. Look for a public notice in the near future setting deadlines and the like. The Commission has been under considerable pressure to move things along on the LPFM front, and clearing the FM translator backlog is an essential first step. Because of that, we won’t be surprised if things start to happen pretty fast at this point. Folks with FM translator applications pending from the 2003 window should familiarize themselves with the FCC’s process as outlined back in March (if they haven’t done so already), determine how that process affects their applications, and be prepared to act in short order. Check back here for updates.

Update: FCC Invites PRA Comments on FM Translator Dismissal/Amendment Process

The Great FM Translator Application Purge has moved one step closer: the FCC has formally initiated the Paperwork Reduction Act (PRA) process which must be completed before the “information collection” aspects of the herd thinning measures can be implemented. With respect to the several thousand new FM translator applications still pending since 2003, the new rules adopted last March in the Fourth Report and Order (4th R&O) impose application caps of (a) 50 nationwide and (b) one in each of the 156 markets identified in Appendix A of the 4th R&O. Any applicant with more than 50 apps nationwide and/or more than one app in any of the listed markets must dismiss enough applications to bring themselves under the limits. The letters necessary to seek those dismissals constitute “information collections” subject to the PRA.

Additionally, the 4th R&O affords pending FM translator applicants some limited opportunities to amend their applications. Those amendments, too, are “information collections”.

With its notice in the Federal Register, the Commission has invited the usual PRA comments on both aspects.  We'd like to be able to tell you exactly what the "information collections" actually look like, but the notice doesn't contain any examples.  Instead, it provides instructions for how to find copies on the OMB website -- but when we tried to follow those instructions, we came up empty.  Ideally this problem will be corrected before comments are due.

And speaking of the due date, anyone so inclined has until June 29, 2011 to submit comments to the Commission. After that, the Commission will bundle up all comments received and ship them over to the Office of Management and Budget, which will open its own 30-day comment period. After that, look for a notice that OMB has approved the process, which will clear the way for the Commission to open its doors for dismissals/amendments. If things move smoothly, it looks like those doors might swing open toward the end of the summer. (Check back here for updates.)

While we would like to say that the PRA process gives everyone a meaningful opportunity to affect the course of FCC regulations, recent experience suggests that that might not be entirely accurate. Still, the invitation for comments has been issued, and we’d be remiss if we didn’t pass the word along.

Update: LPFM/FM Translator R&O Published in Federal Register . . .

. . . but with one exception, the new rules still aren’t effective

The FCC’s Fourth Report and Order and Third Order on Reconsideration (4th R&O) designed to break the longstanding logjam involving the LPFM and FM translator services has been published in the Federal Register.  (You can read more about the 4th R&O here.) While such publication would often mark the end of the rulemaking process by establishing the effective date of the newly-adopted rules, not so here. Since most of the new rules and policies adopted in the 4th R&O involve “information collections”, they all must first be run through the Office of Management and Budget’s Paperwork Reduction Act drill before the FCC can implement them. The Commission has not yet gotten that particular ball rolling, but we expect it to happen shortly, as the Commission seems highly motivated to wrap up the LPFM/FM translator imbroglio sooner rather than later. Check back here for updates.

The Federal Register publication does establish May 9, 2012 as the effective date of the amended Section 74.1232(d). That’s the rule that allows AM stations to rebroadcast their signals on FM translators. As we reported earlier, the 4th R&O expanded the universe of translators eligible for such cross-service operation. Despite the effective date, though, the rule revision is not likely to have much immediate effect. 

That’s because the rule as revised in the 4th R&O provides that AM signals can be broadcast not only on translators that were authorized as of May 1, 2009, but also on translators that had been applied for as of May 1, 2009. That tweak means that, once granted, any of the 6,500 or so translator applications still pending from the infamous 2003 window could be used for AM translation. However, since none of those applications will be granted until the rest of the 4th R&O takes effect, the May 9, 2012 effective date of the revised Section 74.1232(d) is largely symbolic for the time being.

LPFM - The Next Generation: FCC Invites Comment on Post-LCRA Regulation of LoPos

The Commission struggles to play the hand that Congress dealt it in the Local Community Radio Act

In this our third post in the last week on the subject of recent developments in the regulation of the low power FM (LPFM) service, we look at a number of rule changes proposed by the Commission in connection with its effort to clean up various aspects of that service. That effort, of course, was inspired (and in some respects mandated) by the Local Community Radio Act (LCRA). The proposals in question are contained in the “further notice of proposed rulemaking”  (NPRM) portion of the Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O). They encompass a wide range of LPFM-related topics, many involving considerable complexity. 

We’ll try to hit the high points and make as much sense out of it all as possible, but anyone with a serious interest in the FCC’s LPFM proposals – or in LPFM generally – should be sure to read the full NPRM. Be forewarned, though: the NPRM is not light reading. Keep your NoDoz® handy.

The proposals entail two broad categories of regulations: first, issues arising from the interrelationships between LPFM stations and other stations operating in the FM band; second, issues relating to the process of initially licensing LPFM stations.

LPFMs vs. Other FM Band Users

Second-Adjacent Channel Separation Waivers

First out of the box is a proposed approach to requests by LPFM stations for waiver of otherwise applicable minimum second-adjacent channel separations. In the LCRA Congress expressly authorized the FCC to waive those spacing requirements in some circumstances. What circumstances? Congress thought second-adjacent waivers should be permitted as long as the LPFM applicant establishes that its proposal “will not result in interference to any authorized radio service”. That showing can be made “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models”.

Of course, the Commission has had its own second adjacent waiver policy in place since 2007. But that policy (which involves a “balanc[ing]” of various interests) is a bit more loosey-goosey than what Congress seems to have had in mind. Congress’s approach requires first and foremost that the LPFM “will not result” in interference, regardless of whether the extent of possible interference might be said to be offset by any possible gains in service. So the Commission tentatively figures that its 2007 approach is history (although it still invites comments on that tentative conclusion).

How would an LPFM applicant demonstrate that its proposal would not “result in interference”? The Commission suggests that the undesired/desired signal strength ratio approach (used, for example, in assessing some translator applications) might be the way to go. It also suggests that LPFMs might be permitted to use directional antennas to protect second-adjacent stations.

The Commission also offers some other factors it might be inclined to consider in connection with second-adjacent waiver requests. For example, should LPFM applicants be required to show that no fully-spaced channels are available? Is it relevant that the LPFM proposal would eliminate or reduce interference received by the LPFM? How about looking at whether the proposal would result in “superior spacing” to other FM operations (full-service, translator, booster) on co-channel and first-adjacent channels? The FCC appears to be wide-open for further suggestions here.

With respect to handling complaints about interference caused by an LPFM station with a second-adjacent spacing waiver, the LCRA lays out a clear process to be followed. In the NPRM the FCC acknowledges that Congressionally-mandated process and proposes to incorporate it into the rules. But in doing so, the Commission solicits comments on some practical questions the LCRA doesn’t address – like how to define a “bona fide complaint”, and how the LPFM station accused of interference might demonstrate that it’s not the source of the complained-of interference.

Third-Adjacent Channel Interference

As previously reported, the Commission has – at Congress’s behest – deleted most (but not all) of the minimum separation requirements for third-adjacent channel LPFM operations. But that doesn’t mean that LPFM interference to third-adjacent stations is a thing of the past. To the contrary, it merely means that a threshold protective measure designed to prevent such interference has been removed. In ordering the deletion of the separations, Congress provided that LPFM stations would still be subject to interference limits. But in so doing, Congress managed to introduce an astonishing level of complexity which the Commission is now attempting to sort out.

Because of the language of the LCRA, the Commission finds itself required to establish two separate and distinct “LPFM interference protection and remediation regimes”. The first applies to LPFM stations that would have been short-spaced if the Commission had retained the minimum separation limits for third-adjacent operations; the second applies to LPFM stations that would not have been so short-spaced.

(Irony alert: Yes, it turns out that, even though the third-adjacent separation limits have been technically deleted from the rules, they will still be retained in the rules – but “solely for purposes of reference” to permit the Commission to determine which protection/remediation “regime” is to be implemented when third-adjacent interference rears its ugly head.)

Remediation Process for Section 7(1) Stations -For LPFM stations that would be short-spaced to third adjacent operations under the old spacings – what the Commission refers to as “Section 7(1) Stations” – the drill would track the process used for translators. Any actual interference from a Section 7(1) Station to the “direct reception by the public of the off-the-air signals of any authorized broadcast station” would be prohibited, regardless of where or when the interference occurs.  If such interference were to crop up, it would have to be eliminated or the LPFM would have to cease operation.

While the translator rules don’t say so in so many words, in order to warrant the Commission’s attention an interference complaint must be “bona fide”. In the FCC’s view, that means that the complainant must be “disinterested”, i.e., not having any “legal stake” in the matter.

Since the LCRA specifically instructs the Commission to use the translator interference remediation process (currently codified in Section 74.1203), it’s doubtful that the FCC has much room to change that process at all relative to LPFMs. Still, the Commission asks whether any changes might be possible and, if so, what they might be.

Remediation Process for non-Section 7(1) Stations – All LPFM stations that don’t qualify as “Section 7(1) Stations” would be treated as “Section 7(3) Stations”, which would enjoy a considerably more lenient process for dealing with interference. Where Section 7(1) Stations would have to either eliminate interference or turn themselves off regardless of where that interference might occur, Section 7(3) Stations would merely have to “address interference complaints within the protected contour” of the interfered-with third-adjacent station. (The LCRA also calls for the FCC to “encourage” Section 7(3) Stations to “address” any other complaints regardless of the locus of the interference.)

Of course, the statutory term “address” is not particularly specific. While it seems clear that “addressing interference complaints” does not require “eliminating” interference, “addressing” has still got to involve some action on the part of the LPFM station. But what exactly must an LPFM station do to “address” an interference complaint? The Commission’s not sure, so it has invited comment on that fundamental question, as well as other more practical issues (e.g., should complaints have to be filed with the Audio Division; should the complainant be required to provide contact information).

The LCRA does specify that newly-constructed Section 7(3) Stations must be required to broadcast, periodically during the first year following construction, announcements alerting listeners to the potential for interference. The announcements must instruct listeners to contact the LPFM station to report interference. (According to the LCRA, the LPFM station must in turn notify the FCC and any affected stations about any complaints within 48 hours of the time they roll in.)   The Commission is dutifully proposing to follow through with that, but it has a number of questions about the details – should the text of the announcements be specified by the Commission, when and how often should they be aired, etc. Oh, and the Commission is also thinking that it might impose the announcement requirement on newly-built Section 7(1) Stations, even though the LCRA does not expressly authorize such a requirement.

Translator Input Complaint Procedure

The LCRA requires the Commission to modify its rules to “address the potential for predicted interference to FM translator input signals on third-adjacent channels”. This is a significant change, since the Commission’s current policy is to require remediation of actual interference. That is, under the FCC's existing policy, questions of third-adjacent interference from an LPFM station to a translator’s input signal would be dealt with only if such interference actually arises; no consideration to the potential for such problems is given at the initial licensing stage.

Obviously, Congress’s approach – requiring the FCC to “address the potential” for such interference – means a change in the FCC’s SOP on this front. Rather than wait for an already authorized station to cause interference, the Commission will have to consider the possibility of interference before authorizing construction in the first place.

Accordingly, the Commission is proposing that any application for a new or modified LPFM station will be barred from using a transmitter site within a “potential interference area” of any FM translator station that receives the off-air signal of a third-adjacent channel FM station. Applications proposing such a site would be dismissed.

The term “potential interference area” would, for purposes of this policy, be defined as

any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator.

Applications specifying transmitter sites within “potential interference areas” could still be filed, as long as they include an exhibit demonstrating that no interference to off-air reception will be caused.  Applicants could make that demonstration by showing that the ratio of the proposed LPFM signal to the FM signal would be below 34 dB at all locations. Alternately, they could use an equation set out in Section 2.7 of “Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)”, which is a go-to resource when it comes to the technical aspects of LPFM.

I.F. Separation Requirements

The Commission is proposing to remove the requirement that LPFM stations operating with less than 100 watts protect full-service station on their intermediate (I.F.) frequencies. This change would bring LPFM into regulatory parity with FM translator stations and Class D FM stations, which are already exempt from I.F. when operating with less the 100 watts ERP.

LPFM Licensing Processes

Anyone who may be thinking about filing an application in the next LPFM window should pay particular attention Paragraphs 47-66 of the 5th R&O. There the Commission proposes a considerable number of changes to the some important aspects of the application and selection process. The proposals include:

Elimination of the LP10 class of service (i.e., LPFM stations with maximum power of 10 watts ERP at 30 meters HAAT), but creation of a new higher power class to operate with up to 250 watts ERP at 30 meters HAAT in certain smaller communities, rural areas, or “non-core” locations (i.e., outside population centers) in larger markets;

Clarifying that American Indian Tribes and Alaskan Native Villages (Native Nations) are both (a) eligible to apply for LPFM stations and (b) entitled to a point in the point system selection process. The NPRM also seeks comment on whether Native Nations should be permitted to exemptions from the multiple ownership and cross-ownership rules so that they might in some circumstances own more than one LPFM station and full-service stations at the same time;

Permitting cross-ownership of LPFM stations and one or more FM translator stations;

Jiggering with the process for selecting from among mutually exclusive applicants in various ways designed to further emphasize and enhance the “local” nature of LPFM licensees and the service they’re likely to provide;

Alternative ways of dealing with tie-breaker and time-share situations.

Again, the 5th R&O is dense with material and should be studied carefully by anyone concerned about LPFM service – or about FM service generally. That includes any potential applicant for an LPFM station as well as any existing full-service licensee who might suffer interference from new or modified LPFM operations nearby. While the Commission obviously has a lot of ideas of its own here, the agency appears to be wide-open to any alternative suggestions that interested parties might want to lob in. 

The LCRA clearly establishes that LPFM as a service enjoys substantial Congressional support – which means that it will have to be reckoned with. The 5th R&O’s NPRM reflects an important opportunity to define how the LPFM service is to be integrated into the panoply of other FM services going forward. For that reason it warrants the serious attention of anyone using, or thinking of using, the FM band.

The NPRM of the 5th R&O has been separately published in the Federal Register which, as we all know by now, sets the deadlines for comments and reply comments. If you want to file comments on any of the FCC’s proposals, you have until May 7, 2012. Reply comments are due by May 21. Since the proposals include some “information collection” requirements, you can also tell the FCC what you think about those, thanks to the Paperwork Reduction Act – comments in that vein are due by June 5.

Third-Adjacent LPFM Spacings Eliminated (Almost)

Most, but not all, third-adjacent separation requirements for LPFM stations set to go away as of June 4, 2012.

For those of you keeping score, the third-adjacent channel separation requirements for low power FM (LPFM) stations are about to be history – like they were back in 2000, before they were reinstated in 2001, at Congress’s express direction. But last year Congress had second thoughts, and so it’s “see ya” once again to the third-adjacent protections . . . except that some will still be with us.

As previously reported, the Commission has recently devised a complex Rubik’s Cube approach to sorting out the longstanding stalemate between FM translator applicants and the LPFM Insurgency (since LPFM is by definition a not-for-profit undertaking, it’s hard to call it an “industry”). But that was only part of the FCC’s recent LPFM-related work. In a separate decision – formally titled (deep breath first) the “Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration” (5th R&O) – the Commission has complied with Congress’s “unambiguous” direction and has tossed the on-again-off-again third-adjacent channel separation requirements applicable to LPFM stations.

The resulting rule changes, set out in the “Report and Order” portion of the 5th R&O, have now been published in the Federal Register. That sets the effective date for those changes. Mark your calendars: the changes are scheduled to take effect on June 4, 2012. (The “Further Notice of Proposed Rulemaking” portion of the 5th R&O contains a welter of proposed rule changes. Those have not yet been published in the Federal Register. We’ll address them in a separate post.)

The changes that have just been adopted are relatively narrow. 

In the Local Community Radio Act of 2010 (LCRA), Congress told the Commission to get rid of the third-adjacent minimum spacing requirements between LPFM stations and other FM band occupants (i.e., full-service FM, FM translators and FM boosters). How hard can that be? Just hit the Delete button every time “third adjacent” shows up in the LPFM rules, right?

Not so fast.

While Congress “unambiguously” wanted the Commission to deep-six third-adjacent protections, Congress also wanted to protect radio reading services (RRS) that operate on subcarrier channels which are particularly susceptible to (wait for it) third adjacent interference. So if you eliminate all third-adjacent separation requirements, which Congress wants, you threaten RRS operations, which Congress doesn’t want. Oops.

No worries. As it turns out, the Commission’s rules already included extra protections for stations carrying RRS on their subcarriers. Those rules, initially adopted back when the FCC first abandoned third-adjacent protection requirements for LPFMs in 2000, had become “redundant” when the requirements were reinstated the next year (at Congress’s insistence). Despite their redundancy, the Commission never got around to deleting the RRS protection rules. Good thing, since they will come in handy now that Congress has ordered those protection un-reinstated. As a result, Sections 73.807(a)(2) and (b)(2) of the LPFM rules will continue to contain some third-adjacent limitations on LPFM stations.

Oh, one more thing. Third-adjacent channel protection requirements applicable to LPFM stations in border areas will also remain in place. Treaties with Canada and Mexico impose such requirements, and nothing in the LCRA suggests that Congress intended to unilaterally revise those treaties.

While prospective LPFM applicants can presumably figure out fairly easily whether they’re close enough to the border to have to worry about the residual third-adjacent limits, the RRS question is another problem entirely. The FCC generally doesn’t regulate, much less keep track of, subcarrier use. As a result, figuring out what stations are actually carrying RRS on their SCAs may be a tad problematic.

Bottom line: Consistent with the will of Congress, third-adjacent minimum distance separation requirements for LPFM stations have been tossed . . . except (a) in border areas or (b) when the third-adjacent full service station happens to be providing RRS. The elimination (or, more accurately, semi-elimination) of these requirements is set to take effect on June 4, 2012.

Translate This! FCC Breaks LPFM/FM Translator Logjam

Complex process aims to preserve LPFM opportunities while allowing grants of some long-pending translator apps

In 2003 the Commission opened its doors to new FM translator applicants – and more than 13,000 applications walked in. Now, nearly a decade later, some 6,500 of those applications are still pending. But never fear. With some Congressional prodding (in the Local Community Radio Act (LCRA)), the FCC has knuckled down and devised a complex system for processing the remaining translator applications while assuring that translators will not gobble up all the available spectrum to the exclusion of new low power FM (LPFM) applicants. That system, first proposed last summer, has now been officially adopted in a Fourth Report and Order and Third Order on Reconsideration (4th R&O).

Congress insisted in the LCRA that the LPFM service be treated as “equal in status” to FM translators and boosters. Congress was less clear as to what, precisely, it meant by the phrase “equal in status”. Sorting that out was left to the Commission. The first 14 or so pages of the 4th R&O are devoted to identifying the “broad interpretive principles” underlying the LCRA. Feel free to read through them if you’re interested. For our money, your time would be better spent on pages14-25, particularly starting on page 19. That’s where the Commission explains its “revised translator application processing and dismissal policies” – i.e., how it’s going to cull grantable translator applications without shutting out LPFM wannabes.

It’s not necessarily pretty, and it certainly isn’t easy, but the Commission’s system seems to do the trick, preserving theoretical opportunities for future LPFMs while still allowing relatively prompt grant of more than 1,000 (by the Commission’s estimate) new translators from the applications filed in 2003.

If you’ve got one or more translator applications pending from 2003, pay attention. You’ll be having to do some homework, probably in the not too distant future. (The effective date of the new processes won’t be set until the 4th R&O makes it into the Federal Register. Check back here for updates on that – and know that the Commission is planning to move forward quickly with its efforts to clear the translator backlog while opening a filing window for LPFMs.)

Processing Pending Translator Applications

Here’s how the newly-adopted process is going to work.

Market Definition – “Spectrum Limited” vs. “Spectrum Available”

As previewed in last summer’s Notice of Proposed Rulemaking, the Commission has studied the availability of LPFM opportunities in the top 150 Arbitron markets (and six additional markets where more than four translator applications are pending). It did this by examining, for each of those markets, a thirty-minute latitude by thirty-minute longitude grid laid out over the center-city coordinates. The grid consists of 961 points (i.e., 31x31), and for each point the Commission analyzed the availability of all 100 FM channels for LPFM use. 

To be deemed available for such use, a channel at any particular point in the grid had to fully satisfy co-channel, first- and second-adjacent channel LPFM spacing requirements with respect to all outstanding authorizations and pending applications (including pending translator apps).

From the grid analysis the Commission determined how many LPFM availabilities exist in each of the studied markets. (“Availabilities” in this sense include both vacant channels and channels currently used by LPFM stations.) Armed with those determinations, the Commission then made an initial rough cut, dividing the studied markets into two groups: the “spectrum limited” markets (initially referred to as “dismiss all” markets) and the “spectrum available” markets (initially known as “process all” markets). The former consisted of markets where the number of LPFM availabilities fell below a certain “floor”. For Markets 1-20, the floor is eight channels; for Markets 21-50, it’s seven; for Markets 51-100, it’s six; and for the rest of the studied markets, it’s five. (FYI – The floor numbers were based on a “rough approximation of the number of noncommercial educational stations in the top 150 markets”, according to the Commission.)

The rough cut was then further refined. All markets initially designated as “spectrum available” were analyzed to identify markets in which the population is centrally concentrated. This was done by laying a 21x21 grid (rather than the original 31x31) over the market and checking the population within that 21x21 grid. If the 21x21 grid population amounted to 75% or more of the population in the 31x31grid, then the relevant “floor” for that market was determined by reference to availabilities only within the 21x21 grid, rather than the 31x31 grid. That exercise moved some of the markets from the original “spectrum available” column over to the “spectrum limited” side of the ledger. (The rationale for this additional step is that LPFMs may be best suited for urban communities, and use of the wider 31x31 grid might not provide an accurate assessment of spectrum availability in the actual population center.)

Using the results of that further analysis – along with up-to-date BIA information – the Commission devised its final lists of “spectrum available” and “spectrum limited” markets.

The Culling Process

Now let’s look at the pending translator applications. 

As a threshold matter, the Commission has adopted in the 4th R&O two separate caps on pending translator applicants. First, there’s a nationwide limit of 50 applications (from the 2003 filing window) per applicant. Second, each applicant may prosecute only one application in each of the 156 markets analyzed by the Commission. So if you’re among the pending applicants and you have more than 50 applications and/or more than one application per market, you will need to decide which of your horses you want to keep riding. The Commission will issue a public notice alerting applicants when and how applicants in that situation will have to advise the FCC which applications they plan to stick with – but be alert: much of the procedural spade work on this has been started already (including the Paperwork Reduction Act process), so things could happen quickly. While some analytical tools have already been made available to help run preclusion studies, word is that more such tools will be released soon. (Anyone who has to worry about tossing applications overboard should be careful NOT to consult with other applicants in making the decision about which apps to toss: as indicated below, the anti-collusion rules are still in effect.)

Once that winnowing process has been completed, all remaining applications in “spectrum available” markets will be processed, starting with any singletons and moving through the remainder of the mutually exclusive (MX) groups. MX applicants will be given an opportunity (probably no more than 90 days) to work out their mutual exclusivity by amendment or settlement – after which, it’s on to the auctions. Of course, amendments cannot preclude any LPFM availability identified in the grid studies. Amendments will be processed first-come/first-served, but unamended applications will enjoy cut-off protection against amendments filed during the settlement window.

As far as applications in “spectrum limited” markets go, there’s good news and bad news. The good news is that, contrary to the FCC’s original proposal last summer, all translator applications in “spectrum limited” markets will not be automatically dismissed. 

The bad news is that, to avoid dismissal, such applicants will have to demonstrate that they don’t cause any “preclusive impact” on protected LPFM channel/point combinations. There’ll be one opportunity to amend pending proposals to avoid such “preclusive impact”. It’s theoretically possible that some translator applications in some “spectrum limited” markets could squeeze themselves through the LPFM screen the Commission has established. For that reason, the elimination of the initially-proposed automatic universal dismissal is good, especially for proposals outside any market grid. (In-grid proposals, however, are less likely to make the cut.)

And there’s more bad news for any translator applicant proposing facilities outside the 31x31 grid in one of the Top 50 “spectrum limited” markets. If that’s you, you will also have to make a “Top 50 Market Preclusion Showing”, i.e., a demonstration that either:

(a) no LPFM station could be licensed at the translator’s proposed transmitter site or,

(b) if an LPFM station could be licensed at the site, an additional channel remains available for a future LPFM station at the same site.

Good luck with that.

A couple more tips on dealing with markets and grids.

First, deciding what’s a “protected LPFM channel/point combination” will vary, depending on whether you’re in a “spectrum limited” or “spectrum available” market. 

For “spectrum available” markets, an LPFM channel/point combination is entitled to protection only if an LPFM station at that site would meet all spacing requirements, including full spacing to all pending translator applications on co-channel, first- and second-adjacent channels. A pending translator application automatically meets that standard since, by definition, the hypothetical LPFM would have to be fully spaced to the pending application already. But note that, if the translator application is amended, all bets are off as far as the amendment goes: the amendment would have to demonstrate adequate spacing to all LPFM channel/point combinations.

For “spectrum limited” markets, on the other hand, the calculation (for both channel/point and Top 50 Market Preclusion studies) will “assume the dismissal of all translator applications in the market”. Also, neither of those calculations will take into account either (a) second-adjacent spacings to authorized stations or pending applications or (b) I.F. spacing requirements. In other words, the Commission is assuming that all LPFM applicants would be able to qualify for waiver of the second-adjacent spacing requirement, and it apparently doesn’t care about potential I.F. short-spacing.

Second, bear in mind that the grid for any particular market may be smaller than the market itself. LPFM opportunities that might exist outside the grid are not entitled to protection in either “spectrum limited” or “spectrum available” markets. So a translator application in any “spectrum available” market or any “spectrum limited” market below the Top 50 will be grantable if it specifies a site which meets the minimum LPFM-translator spacings. (And don’t forget that translator applicants in the Top 50 “spectrum limited” markets must also make that pesky preclusion showing.)

Other Matters

AM on FM Translators – The 4th R&O strikes a blow for the AM industry by expanding the universe of FM translators eligible to rebroadcast AM signals. In 2009, when such cross-service rebroadcasting was first permitted, the Commission limited eligibility for AM rebroadcasts to FM translators already authorized as of May 1, 2009. That meant that the 1,000 or so new translators which the Commission expects to grant out of the still-pending vintage 2003 applications would not have been available for AMers. The 4th R&O, recognizing that the cross-service option has been a “very successful deregulatory policy”, takes care of the problem by specifying that rebroadcast of AM stations will be permitted on any translator the initial application for which was pending as of May 1, 2009.

Since there haven’t been any new FM translator windows since May, 2009, that revised date limitation encompasses all currently existing and applied-for translators. As a practical matter, that may be all the translators there are likely to be. The Commission has committed to opening a new LPFM window before any further translator filing opportunities arise. The effect that that LPFM window will have on possible future translator opportunities isn’t clear. While a tsunami of LoPo applications could clog things up a lot, the flexibility of the translator rules may still afford plenty of opportunities down the line. We’ll just have to wait and see.

Freezes on New and Mod Translator Grants – Since 2005 there has been a freeze on grants of any of the 2003 translator applications, and since last year there has been a freeze on the filing of any translator “move-in” applications (other than relocations within the same “Spectrum Limited” market). Those freezes appear now to have been lifted. The 4th R&O expressly lifts the freeze on acting on any of the 2003 applications. It seems also to indicate that the move-in freeze is similarly lifted, although the 4th R&O is not as clear and unequivocal on that point as one might like. (Look for a clarifying notice on this, and possibly other aspects of the 4th R&O, at some point down the line.) 

Heads up, though. New move-in and mod applications that would bring a translator into a “spectrum limited” market will have to demonstrate that they will have no “preclusive impact” on protected LPFM channel/point combinations.

Anti-collusion Prohibitions Still In Effect – Translator applicants from the Class of 2003 should be aware that they are still subject to the anti-collusion rules, and will remain so at least through the process of identifying which applications they will continue to prosecute notwithstanding the application caps described above. As we have frequently cautioned prospective auction participants, those anti-collusion rules are strict, not necessarily intuitively obvious, and often unforgiving. Before discussing your plans and strategies with any third parties, you would be well advised to check those rules over to be sure that you’re not digging yourself into an unfortunate hole.

The Commission (and, in particular, the folks in the Audio Division) have completed a truly herculean task here. Sorting out the conflicting interests of translator and LPFM proponents was difficult enough, but doing so against the backdrop of 6,500 or so long-pending translator applications screaming for attention and Congressional direction that provided little useful, er, direction makes the accomplishment even more impressive. The way is now clear for the processing of a significant number of those translator applications. While it seems fairly obvious that few new translators will be authorized in the middle of major markets, that shouldn’t surprise anybody: the translator service was, after all, not designed for major markets.

Again, if you have one or more translator applications pending, you should be sure to get with your consulting engineer and start looking closely at the information from the FCC’s grids. It’s likely that you’ll be needing to make some decisions in the not-too-distant future, and the more time you give yourself to figure out your best move(s), the better off you’ll be when the time comes to make those moves.

Update: FCC Invites Comments on Recons

Sure, the Commission’s been sitting on the petitions for months (in one proceeding) and years (in another), but so what?  You’ve got two weeks (including Christmas and New Year’s) to check them out and respond to them.

Got your 2012 calendar yet? Better get on it, because deadlines for the new year are starting to pile 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

In case you want to check out the petitions yourself, here are links to each:

Friendship Broadcasting LLC

Radio One, Inc.

Entravision Communications Corporation

M&M Broadcasting Ltd.

William B. Clay

Educational Media Foundation/the Kent Frandsen Radio Companies

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.

That decision was released in (are you sitting down?) June, 2009. The petitions have been hanging around since July-August, 2009, a tad over two years ago. In the meantime, of course, Congress enacted the Local Community Radio Act and the Commission has taken a giant step or two toward resolving many of the thorny issues relative to the ever-prickly translator/LPFM relationship – including some tweaks relating to carriage of AM stations by translators. As a result, who knows whether the issues raised way back in 2009 are still hot and happening? Whatever the case may be, if you want to oppose either of these two petitions, you’ve got until January 5, 2012. Replies are due (no big surprise here) by January 17. You can find the two petitions here:

Robert A. Lynch

Edward A. Schober

Update: Reply Comment Deadline Extended (Again) in LPFM/FM Translator Rulemaking

If you’ve been burning the midnight oil working on reply comments in the LPFM/FM translator proceeding on the assumption that those reply comments are due on September 20, you can relax. The Media Bureau has extended the reply comment deadline by a week, to September 27, 2011. This comes at the joint request of the NAB and Educational Media Foundation, who observed that there are a boatload (that would be 47 in all) of comments to which to respond, several of which include extensive technical exhibits. Also, NAB/EMF pointed out that their counsel, and counsel for other interested parties, have been in Chicago at the NAB Radio Show this week.

NAB/EMF advised the Commission that several other parties – including Prometheus Radio Project – did not object to the requested extension. But hold on there, Sparky – it turns out that at least one party did object. That would be the Amherst Alliance, which lobbed in an opposition to the NAB/EMF request the same day that that request was filed. The Alliance (which describes itself as one of several “major LPFM advocacy groups”) took serious exception to any extension. Its concern is that deadline extensions will reduce the chances that the Commission may open an LPFM filing window next summer.

The Alliance’s fears about bureaucratic delay may be valid – but consider this: the NAB/EMF request was filed on September 15, and it was granted on September 16. Say what you will about bureaucratic delay, the Media Bureau can obviously move fast when it wants to.

Good News/Bad News for FM Translator Licensees

Audio Division signals expansion of “minor mod” possibilities, but only in some circumstances; “Serial modification applications” – or “hops” – now officially disfavored.

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, would-be LPFM applicants – as the quest for spectrum ratchets up. But a decision by the Audio Division appears to loosen at least one of the regulatory provisions that have limited the efforts of existing translator licensees to improve their facilities.

That’s the good news.

The bad news is that the Division has now also explicitly declared verboten a practice by some translator licensees that the Division has historically condoned (if only tacitly) and that the Division concedes has not been (and is not now) prohibited by any specific rule. The now-taboo practice involves the filing of serial applications – or “hopping” – in order to relocate a translator away from its original, usually less-than-desirable smaller community to a distant-but-bigger community.

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.

Update: Comment Deadlines Extended in LPFM/FM Translator Rulemaking

Forget about what they say about ill winds blowing no good. The East Coast’s recent encounter with Hurricane Irene has produced at least one arguable benefit: the Commission has announced that the deadlines for comments in the LPFM/FM translator proceeding have been extended for a week as a result of disruptions from the storm. The new deadlines: Comments are due September 6, 2011; reply comments are due September 20, 2011.

Update: Comment Deadlines Set in LPFM/FM Translator Rulemaking

With some proceedings, the FCC seems content to let its handiwork age tastefully before getting published in the Federal Register – like net neutrality, for example, or maybe the CableCARD report and order. That’s definitely not the case with the LPFM/FM Translator Third Further Notice of Proposed Rulemaking. Adopted on July 12, it’s already made it into the Register. That, in turn, establishes the deadlines for comments and reply comments. Get your calendars out: comments are due by August 29, 2011; reply comments are due by September 12, 2011.

LPFM v. FM Translator: The FCC Moves to End the Stalemate

With Third Further Notice of Proposed Rulemaking, FCC looks to implement Local Community Radio Act, open LPFM window, and complete processing of long-pending translator applications

It looks like the long-running stand-off between FM translator applicants and low power FM (LPFM) applicants may finally be heading toward some resolution. And from initial indications, it looks like the LPFMers are likely to get the first crack at available spectrum, based on a just-adopted Third Further Notice of Proposed Rulemaking (3rd FNPRM). (As of this writing, the full text of the 3rd FNPRM hasn’t been released; the Commission has issued a public notice describing it.)

The FCC’s action is, of course, an upshot of the enactment of the Local Community Radio Act (LCRA). The LCRA was Congress’s effort to help sort out the translator/LPFM problem which has been festering for years. 

The 3rd FNPRM invites comments on ways to increase the available opportunities for LPFM applications.  In particular, the proposed new rules would favor LPFM over FM translators in the top 150 markets by ensuring some LPFM spectrum availability before any new translators are authorized. Score one for LPFM. But on the translator side, the Commission is proposing not to re-impose its on-again-off-again limit of 10 translator applications per party -- at least not in areas where translator applications survive the new rules. (The Commission imposed a 10-application limit back in March, 2008, only to suspend it a month later.) Additionally, the freeze on the processing of translator applications would be lifted in “smaller markets and rural communities”, i.e., in places where there’s space for both new LPFMs and new translators.

To determine where translators might be allowed, the 3rd FNPRM contemplates an LPFM channel “floor” in the top 150 markets: unless a certain number of channels are available for LPFM in any specific market, no new FM translator applications would be accepted in that market, and any pending translator applications for that market would be dismissed.  Comments are invited on various important details, presumably including how the floor number might be determined, how a “market” should be defined, and whether existing LPFM stations – or only channel availability for new stations – will be counted in determining whether the floor test has been met.

The Commission intends to open a window for new LPFM applications once the availability of spectrum has been established through the market-floor process. That could be the final window for either LPFMs or FM translators if, as anticipated, applications filed during the window completely exhaust the available spectrum.  The filing window won’t likely open until comments and reply comments in response to the 3rd FNPRM have been submitted and the Commission has released a report and order adopting new rules. 

While that process would ordinarily be expected to take a year or more, Chairman Genachowski expressed hope that the LPFM window could be opened in the summer of 2012.  That schedule is optimistic in any event – even more so in view of the fact that, in addition to the various questions posed in the 3rd FNPRM, the Commission will also have to resolve, in a separate proceeding, a number of other issues necessary for the implementation of provisions of the LCRA. And let’s not forget about the possibility of appeals that might interfere with (or at least discourage) the immediate implementation of any new rules that might be adopted within the next year or so.

Other to-be-resolved questions include: how the Commission plans to address the issue of second-adjacent channel protection for full-power stations, and the related issue of how LPFM applicants may use signal contour plotting (as opposed to fixed mileage separations) to demonstrate that they won’t cause interference. Once such issues have been ironed out, we should all have a better fix on precisely how many channels may be open for filing in the LPFM window (and, thus, about how many applications might be expected).

Processing of long-pending FM translator applications is expected to resume in rural areas and larger communities where the LPFM channel floor is met – but, again, that won’t happen in larger communities until the conclusion of the just-started rulemaking, at the earliest, and it will be tricky even in rural communities while open questions remain about how much spectrum will be reserved for LPFM.

The NPRM also includes proposed limitations on the sale of FM translator licenses. The FCC apparently believes that many FM translator applications were filed by speculators whose primary objective is to sell rather than to operate stations. Whether the FCC will require construction and operation for a minimum period of time or simply restrict sales as it does for LPFM stations remains to be seen. The Commission presumably hopes that it can discourage many such speculators into simply walking away from their applications.

The NPRM would also open up more translators for potential use by AM radio stations.  The present rule allows the rebroadcast of an AM station on an FM translator only if the translator’s underlying permit (or license) was issued prior to May 1, 2009. The Commission invites comment on whether to eliminate that restriction and allow AM stations to use any translator for which an application was filed in the 2003 window, no matter when granted. 

Since there remain a significant number of pending translator applications which might still be granted, the elimination of that restriction would obviously expand the universe of translators available to AM primary stations. Of course, since it’s reasonably certain that many FM translator applications will be dismissed to preserve room for LPFM stations in the top 150 markets, that expansion might be limited to very rural areas. And, since no new translator window is expected until after the next LPFM window – and, as noted, it’s entirely possible that there will be no further new windows for either LPFM or translators if the next LPFM window sucks up all the spectrum – it is extremely unlikely that AM licensees will have an opportunity to file for new translators of their own.

Update III: AM On FM Translators - Revised Form 349 Now Available

On September 1, we reported that the FCC had, at long, long last, managed to get its order authorizing the rebroadcast of AM stations on FM translators published in the Federal Register, thus establishing an effective date for the new rule. But, as we also reported, there were still a couple of loose ends – a related rule (Section 74.1284) and several translator-related forms needed to be revised to conform to the new rules, and the revisions hadn’t yet been approved by the Office of Management and Budget. No problem – as we reported a week later, most of those loose ends got tied up pronto, allowing the new rules and revised Forms 303-S and 345 to take effect October 1.

But wait. Form 349 (for new and modified FM translator/booster CP’s) somehow got left behind, lost in OMB limbo. Not to worry, though. The Commission managed to hustle that last form over to OMB (on September 4), OMB gave it the thumbs up (on October 8), on October 16 public notice of OMB’s approval made it into the Federal Register and voilà! Revised Form 349 is now effective.

Update II: AM on FM Translator Rules Still Effective On October 1

OMB approves Section 74.1284, Forms 303-S, 345; Form 349 still in limbo

On September 1 we reported that the rules permitting AM signals to be rebroadcast on FM translators will become effective on October 1 – all the rules, that is, except Section 74.1284, which supposedly still required OMB approval. (OMB approval had already been given, as it turns out and as we reported, but that word had apparently not reached the FCC by the time it made its initial announcement about the October 1 effective date.) As we predicted would happen, the Commission has now issued a follow-up notice alerting the public to the OMB approval and consequent effectiveness of Section 74.1284 as of October 1.

The lack of effectiveness of Section 74.1284 had also meant that revised Forms 303-S (for license renewal) and 345 (for assignments or transfers of control of translators) were themselves technically not effective, either. But now that OMB is on board with the 74.1284 changes, it has also signed off on the revised 303-S and 345. Those, too, are good to go as of October 1.

But there’s one remaining loose end: Form 349 (for new and modified FM translator/booster CP’s) is still lost in OMB limbo. (It looks like the FCC didn’t get around to asking for OMB approval of that revised form until September 4.) Keep your eyes out for a further notice advising of the effectiveness of revised Form 349.

Update: AM on FM Translator Rules Become Effective October 1, 2009

At long last, the Commission’s Report and Order amending its FM translator rules to permit carriage of AM stations has been published in the Federal Register. That means that those rules now have an effective date, and that effective date is (the envelope, please – drum roll – hushed silence) – October 1, 2009. As we reported last June (when the R&O was initially released), as of that effective date all outstanding special temporary authorizations (STAs) permitting AM-on-FM-translator operation will be automatically cancelled (and any still-pending requests for such STAs will be dismissed). 

Anyone who is currently engaged in cross-service translator operations will have to file a notification, pursuant to Section 74.1251(c) of the Commission’s rules, formally specifying their AM primary stations. (Yes, we know that Section 74.1251(c) technically refers to changes in the “primary FM station being retransmitted” and makes no reference to any primary AM station. But the R&O specifically referenced Section 74.1251(c) when it specifically – that would be in Paragraph 19 – instructed folks to file notifications about their “AM primary stations, so the fact that 74.1251 doesn’t mention AM’s is probably not a matter of consequence.) While the R&O does not specify a deadline for those notifications, logically they would appear to be due no later than the new effective date, i.e., October 1.

If you read the fine print of the Federal Register item, you will note that the October 1 effective date technically does not apply to one of the rule changes (relating to Section 74.1284) effected by the R&O. That’s because that particular section involves an “information collection” requirement that must first be approved by OMB pursuant to our old friend, the Paperwork Reduction Act. No problem – OMB concluded its review on August 31, an OMB control number has been assigned to the FCC’s information collection requirement, and any potential snag has thus been avoided. (Presumably the FCC was not aware of OMB’s action when the FCC sent the item over to be published in the Federal Register several days ago.  Look for a follow-up notice to be issued shortly to clear up any possible confusion on this front.)