CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

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

The bottom line result should not surprise anybody. The Commission’s rules prohibit interference caused by a translator to “the direct reception by the public of the off-the-air signals of any [full-power] broadcast station”. But when two co-channel operations happen to be as close as these two were, interference is bound to occur. So you had to figure that the translator’s days were numbered.

Still, the translator licensee came up with a novel response to his plight. Remember, while the rules bar interference, they also give the translator licensee the opportunity to try to eliminate the interference “by the application of suitable techniques”. In this case, the Detroit translator proposed to give a smartphone with an “iHeartRadio” app installed to each listener complaining of interference. The Toledo station is available through the “iHeartRadio” on-line service (no shock there: “iHeartRadio” is a service promoted by Clear Channel, which – IRONY ALERT! – happens to be the ultimate owner of the Toledo station). The Internet feed of the station would not be affected by any over-the-air interference caused by the translator, so the translator licensee argued that the smartphone offer satisfied the rules.

Not so fast, said the Audio Division. Providing interference-free access to would-be listeners through a non-broadcast service is not the same as “eliminating interference”. The goal of the rule is to assure interference-free over-the-air reception. The smartphone ploy may provide an end-run around the interference problem, but it does nothing to eliminate that problem. As a result, the proposed smartphone solution is “patently insufficient”.

If the Division’s letter had stopped there, it would have been of relatively limited interest – how many translator licensees are likely to be wanting to hand out smartphones, for crying out loud?

But the Division went on. It noted that, because the translator and the full-power station were co-channel and geographically close to one another, there is a “considerable likelihood” that the Commission will face a “never-ending series” of complaints. That’s because the usual “suitable techniques” used to remedy interference when second- and third-adjacent stations are involved – e.g., relocation of the translator, or installation of filters – just don’t work in co-channel situations. (The Division could probably also have lumped first-adjacent situations in with co-channels on that score as well.) And absent remedial devices, the Division appears to anticipate essentially irremediable interference, the only answer for which is termination of the translator’s operation.

This should send a chill down the spines of translator operators (or applicants) who have tried to engineer their stations to squeeze into tight allotment situations. It is possible – on paper, at least – to pick technical facilities that appear not to cause any theoretical interference: carefully reduced power, a carefully selected site, and a finely sharpened pencil in the hands of a motivated engineer can work magic. Based on such a theoretical showing, the Commission can, and often does, grant construction permits for such facilities. But once those facilities are built, the grim reality kicks in: close geographical proximity plus co-channel (and possibly first-adjacent) operation equals real world interference, both inside and outside the full-power station’s protected contour. 

And that’s the kind of interference that the Division seems to be saying will be the kiss of death, literally, for the translator.

The bad news doesn’t end there. The Division’s letter reflects a loss of bureaucratic patience with translators. After running through a litany of questions that the Commission might have to resolve if it were to endorse the proposed smartphone remedy, the Division throws up its regulatory hands and walks away: “The Commission cannot and need not expend such significant resources to keep a translator station on the air.” Ouch.

While this may sound like bad news to some translator operators, it is no doubt great news to any full-service licensee who finds itself beset by interference from a nearby co-channel translator. All indications are that the Audio Division feels your pain, and is prepared to help you out.

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.

The official effectiveness of the new priorities and related Presumption/certification requirements means that the Commission’s staff is now free to require pending applicants to demonstrate that they comply with the priorities and Presumption. Since the staff has been working with the new policies for some time already (hey, they’re the ones who cooked up the new priorities in the first place), the staff has a pretty good idea of which pending applications comply and which don’t – and we’re guessing that lots of those applications don’t. 

We understand that pending applicants may expect to receive “deficiency letters” in the not-too-distant future. These billets doux from the staff will be directed to any applicant whose currently pending showing fails to establish that the proposed change in community of license satisfies the new priorities. We’re guessing that the deficiency letter will afford the applicant an opportunity to demonstrate that its proposal does comply with the new allotment approach. Failure to make that showing will result in the dismissal of the application.

One other aspect of the new allotment priorities – creating a “tribal preference” designed to increase the number of radio stations owned by Native American tribes – has also now taken effect. That preference, though, is likely to have a greater impact on future applications than on many (if any) applications already in the pipeline.

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.

None of the Alliance’s proposals is explored in particular detail in its petition. The Alliance urges simply that “locally originated programming” be permitted on translators. In other words, all translators could become originating LPFM stations, at least part-time. (More on the “part-time” aspect below). In the Alliance’s view, this would increase the potential for more local programming pretty much everywhere. Moreover, since the Alliance would apparently not limit the originated programming to purely non-commercial fare (a limitation which has historically been imposed on LPFM stations), this change could lead to a “revival of ‘Mom and Pop’ commercial radio”. According to the Alliance, such small, local operations were muscled into virtual extinction by media consolidation in the 1990s.

And to incentivize existing translator licensees to start originating local programming, the Alliance asks the Commission to create a “lower priority” secondary FM service. The “lower priority” service would consist of translator stations which are fed, “exclusively or primarily”, either with satellite programming or with programming originated from a studio more than 120 miles from the translator. If such stations – which the Alliance creatively dubs “satellators” – don’t begin to originate at least a minimum amount of local programming, they would . . . well, it’s not exactly clear what regulatory limits would be imposed, but at a minimum such satellator stations would not be deemed to be the equivalent of real LPFM or translator stations.

Recognizing that some start-up time might be necessary to get the origination ball rolling, the Alliance suggests that satellators be given an initial deadline by which they would have to broadcast at least two hours a day of locally originated programming. Within a year of that initial deadline, the amount of such programming would have to double; within two years it would have to have reached at least six hours a day; and thereafter it would have to be at least eight hours a day. Failure to meet any of these benchmarks would result in the satellator station being relegated to a new class of service, i.e., “Auxiliary Secondary Service”, which would have a “lower priority” vis-à-vis other secondary service stations such as originating translators and LPFM stations.

The Alliance’s proposal is an obvious response to one aspect of the LCRA that presumably disappointed the Alliance. The Act requires that “FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full service FM stations.” That language seems to say that translators – including 100% non-originating translators – are no better and no worse than LPFMs when it comes to licensing priorities, regardless of any lack of local program origination.

The Alliance, however, chooses to read that particular statutory language to refer only to “new” stations. (It finds the restriction to “new” stations in some language that appears in an introductory section.) In other words, the Alliance figures that the Commission remains at liberty to alter the relative status of any translator stations already licensed as of the day when the LCRA became law. And, since the Alliance clearly thinks that stations that originate are more deserving than stations that don’t, the Alliance’s proposal is geared toward lowering the status of the latter in favor of the former.

It’s not at all clear that the Alliance’s reading of the statute is correct. While the word “new” (referring to licenses) for sure appears in the prologue of Section 5 of the LCRA, that word does not show up in the subsection in which Congress mandates that all secondary FM services (translators, boosters, LPFMs) “remain equal in status”. That can hardly be seen as a Congressional green light for the FCC to treat some some of those services unequally.

And even if the Alliance’s reading were supported by the statute, its proposal still raises a host of practical problems that the Alliance doesn’t even acknowledge, much less attempt to resolve. For example, precisely how would regulatory treatment of “auxiliary secondary services” differ from treatment of non-auxiliary secondary services? 

And how would the Commission be expected to assess whether any particular programming was sufficiently “local” to avoid demotion to “auxiliary” status – any First Amendment problems there? How about the definition of “origination” for purposes of the proposal? Ordinarily, origination refers to the fact that the programming is not being transmitted, seamlessly and simultaneously, as it arrives from some other source – but what if a “satellator” operator were to record programming delivered by satellite and then replay the recording the following day. Would that constitute “origination”? (Our guess is that this isn’t what the Alliance had in mind, but its petition doesn’t delve into such niceties.) And if translators are allowed to air commercial programming, would LPFM’s be permitted to do the same?

Since the Commission is already facing the tough task of adjusting its rules to the terms of the LCRA, the arrival of the Alliance petition is probably not a welcome development, since the petition advances seriously complicating concepts without suggesting solutions. Of course, the Commission is under no obligation to address the petition – witness the fact that the Commission has for more than five years already ignored a proposal that the public file rule be eliminated – but the LPFM lobby obviously has historically managed to get itself heard, so it might not be easy to ignore the Alliance petition. Suffice it to say, though, that the petition is not likely to speed up the ultimate resolution of the translator/LPFM face-off.

For the time being, though, the Commission has not yet given the proposal a file number or opened even a preliminary opportunity to comment on it. Check back here for updates.

That's because the Federal Register publication makes no reference to any effective date for the policies.  Oops.  As a practical matter, though, the precise effective date of the new policies is probably immaterial. Even if the policies are not now in effect, the Audio Division’s processing staff is not likely to take any actions inconsistent with the announced policies. So if you’ve got an application on file that will clearly not make the grade once it comes time to file the new 307(b) certifications, you probably shouldn’t hold out any hope of a grant between now and then.

But let’s look on the bright side. If you’ve got an application pending that is (or should be) grantable under the new policies, do you have to wait for the certifications to clear the OMB PRA review process before you can expect action? Good news. The answer is that you can probably file your certifications now as an amendment to your application. You can use the Second R&O as a guide relative to the analyses you would need to perform in order to support a proper certification. Include a request that the staff go ahead and process the application. We understand that, given those circumstances, the Audio Division may be inclined to move things along now rather than wait for completion of OMB review. 

Of course, the number of applicants able to take advantage of this opportunity is probably pretty limited, but if there are any, they may wish to act now.

Often, when the FCC imposes a new “information collection”, it involves a new, or revised, application form. Here the Commission is asking for comments on the instructions to Form 301, even though it has not changed any questions on the form or added any new questions. According to the latest notice, the revised form will lay out, in updated instructions, the certification requirements adopted in the Second R&O (and described in some detail in our earlier post here).

Anyone wishing to comment on the revised application requirements may do so until May 23, 2011. Comments should be limited to the following:

• whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
• the accuracy of the Commission's burden estimate (The Commission estimates that it will require somewhere between 1-6.25 hours, on average, to address the new requirements);
• ways to enhance the quality, utility, and clarity of the information collected;
• ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, and
• ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

Once the 60-day FCC comment period wraps up, the Commission will refer the matter to OMB, which will provide interested parties an additional 30-day comment period. Based on that time line, it’s likely that the new requirements won’t become effective until mid- to late summer, at the earliest.

For almost 30 years, radio allotments have been subject to a set of four priorities. In the Commission’s view, the highest priority (dubbed Priority 1) calls for channels to provide first fulltime audio reception service. If a radio proposal would deliver service to areas and populations that don’t already receive any radio service at all, that proposal moves to the front of the line. Next up (Priority 2) are proposals which would provide a second fulltime audio service to areas/populations that receive only one other such service.

As a practical matter, though, there are very, very few areas/populations in the U.S. that do not already receive at least two aural services. So Priorities 1 and 2 are largely vestigial; they seldom if ever come into play anymore.

That leaves Priorities 3 and 4. Priority 3 awards preference to any proposal which would result in a community receiving its first local station. The idea is that, to the extent possible, every community should have its own radio station which would, the FCC imagines, focus its programming on the needs and interests of its community of license. Priority 4 is a catch-all, rewarding “other public interest matters”. (Normally, Priority 4 tends to involve comparisons of populations proposed to be served by competing proponents; the nod generally goes to the proposal promising to serve the greatest population.)

Note that Priority 3 requires only that the proposed station be the first in the community. It says nothing about where that community might be, or how many other radio services it may already receive. Accordingly, for many years the typical way to get the okay to put a station in an urban area has been to specify a community of license in or near the urban area, with no local station. 

Presumably suspecting that the “first local station” test might lead to less-than-sincere proposals, the Commission eventually imposed additional mandatory showings if a proposed allotment brushed up against an urbanized area. In particular, the so-called “Tuck showing” (named after the 1988 decision in which the showing made its regulatory debut) requires allotment proponents to provide an extensive laundry list of information designed to establish that the proposed community of license really does have an independent need for its own local station.

But over the years, move-in proponents and their lawyers have become adept at making the required Tuck showings – possibly, in the view of some at the FCC, too adept.

The New Presumption. Concerned that the continuing trend of stations toward metro areas may be leaving the radio needs of rural areas underserved, the FCC has now come up with a new approach designed to slow (if not stop altogether) that trend. The Second R&O creates a “rebuttable presumption” applicable to proposals to allot AM or FM channels either: (a) to a community in an urbanized area or (b) in such a way that the facilities proposed would (or, with a minor modification application, could) cover 50% or more of the urbanized area with a city-grade signal (for AM’s, that would be the daytime city-grade). If either of those conditions is met, then the proposal will be presumed to be proposing service to the entire urbanized area rather than the named community of license.   In other words, no Priority 3 preference would be awarded, even if the proposed community of license technically did not have any other local stations. For ease of reference, we’ll call this concept “the Presumption”.    

Additionally, the FCC has tweaked Priority 4 to put much greater emphasis on coverage of relatively underserved areas rather than raw differences in the number of people covered.

The Second R&O explains how these changes are to be applied to various common radio allotment situations. Those include: (a) proposed community of license changes (for both FM and AM stations); (b) applications for new AM stations and major modifications to existing AM stations; and (c) new FM allotment proposals.

Community of License Changes. To change an AM or FM station’s community of license, the applicant must demonstrate that the proposed facilities in the proposed community will serve the FCC’s allotment priorities better than do the station’s present facilities in its present community.

The FCC will apply the Presumption to all such proposals – even those that were pending before the Second R&O was released. That will limit severely the ability of proponents to avail themselves of Priority 3.

Recall that the Presumption applies not only when a proposal would put a city-grade signal over at least 50% of the urban area, but also if the proposed facilities could do so after a minor mod. Because of that, the applicant will also need, in effect, to demonstrate a negative – i.e., that it will not be able to use its proposed facilities as a launching pad for a change that would produce 50% or greater urban area coverage. 

It’s always hard to prove a negative, of course. In this context, the Second R&O addresses that problem by requiring proponents to certify that “there are no existing towers in the area to which, at the time of filing, the applicant’s antenna could be relocated through a minor modification application to serve 50% or more of an urbanized area and still cover its proposed community of license.” In making that certification, the applicant will be required to consider every existing tower with an Antenna Structure Registration and every unregistered tower currently used by licensed radio station. The applicant also must consider possible use of a directional antenna, contour protection and other techniques widely employed to fashion a rule-compliant modification application.

The Commission will also impose an absolute bar to any facility modification that would create a “white” area (i.e., an area with no over-the-air service available) or a “gray” area (an area with only one over-the-air service available).

And under the newly-tweaked Priority 4, the Commission will “strongly disfavor”: (a) any change that would result in the net loss of third, fourth, or fifth reception service to more than 15% of the population in the station’s current protected contour; and (b) any proposed removal of a second local transmission service from a community with a population of 7,500 or greater.

There’s more. Applicants will have to set forth the size of the populations that would gain and lose service, together with the numbers of services those populations will receive if the application is granted. Historically, in this context the Commission’s concern has topped out if at least five other services were shown to be available to a given area; that is, once a proponent could show that at least five services were available, it could stop counting. No longer. Here’s how the FCC describes the showing it would expect in a proposal to provide a 21st new reception service to 500,000 people while removing the sixth reception service from 50,000:

A detailed summary should suffice, for example, to point out that 50,000 people would receive 20 or more services, 10,000 would receive between 15 and 20 services, 7,000 would receive between 10 and 15 services, etc. The showing should, however, state what service the modified facility would represent to the majority of the population gaining new service, e.g., the 16th service to 58 percent of the population, and the corresponding service that the majority of the population losing service would lose, e.g., 60 percent of the current coverage population would lose the ninth reception service. New service or service losses to underserved listeners should be detailed.

The Presumption is, by its very terms, rebuttable presumption. Like all rebuttable presumptions, it can be, um, rebutted. But to do so, a proponent must make a “compelling” show. You can start with a Tuck showing, but that may not be enough. The Commission has said it will scrutinize Tuck showings more rigorously “than has sometimes been the case in the past”. For example, an applicant “should submit actual evidence of the number of local residents who work in the community, not merely extrapolations from commute times or observations that there are businesses where local residents could work if they so chose.”    

Proposals for New/Major Mod AM Facilities. Like proposals to change community of license, applications filed during an auction window for a new AM station or major changes of an existing station will be subject to the Presumption. In such cases, applicants have historically been able to prevail without going to auction if they can demonstrate up front that their proposal is preferable on Section 307(b) grounds. Factoring in the Presumption will likely make such auction-free results more difficult to achieve. 

As with community of license changes, the Commission will consider not only whether the proposal itself would serve the urban area, but also whether the applicant might be able to realize such service through a minor mod of the proposed facilities. In assessing the hypothetical potential for such service, the Commission will consider only whether the applicant could file a minor mod specifying the same site and a frequency available at the time the filing window closed without changing the proposed antenna configuration.

With respect to Priority 4, large service population differentials between competing applicants, without more, will not be sufficient to secure a dispositive Section 307 (b) preference. But an AM applicant that will provide third, fourth and/or fifth reception service to at least 25% of the population within its proposed primary service area and has specified a community of license with no more than two local stations may receive a dispositive Section 307(b) preference. 

An AM applicant also may, but is not required to, submit something called a Service Value Index (SVI) showing. This complicated (indeed, geeky) formula takes into consideration the population served and the number of reception services received by segments of that population. In order for an AM applicant to prevail with an SVI showing, it must demonstrate a 30% differential between its proposal and the next-highest-rated proposal.

The Presumption and the other policies and procedures adopted in the Second R&O will not be applied to the applications still pending from the AM Auction 84 window, which closed in 2004. But they will be applied the next time an AM window is opened.

The Commission also formally codified a previously informal standard used to determine when the nighttime proposals included applications for new AM stations or major changes of existing stations are mutually exclusive. Detailed explanation of this is best left to the engineers. According to the Commission, two applications will be deemed mutually exclusive if either application’s nighttime proposal would enter into the 25% exclusion RSS nighttime limit of the other. That will be the case even if each applicant could still provide the requisite nighttime coverage of its community of license.       

FM Allotment Proposals. The Presumption and the policy under Priority 4 of putting heavier emphasis on reaching underserved populations (as opposed to simply reaching a greater total population) will be applied immediately to all pending petitions to amend the FM Table of Allotments, all other open FM allotment proceedings and all non-final FM allotment orders – except any non-final FM allotment proceeding in which the Commission has already modified a radio station license or granted a construction permit.

FM Translator “Band-Hopping” Applications. The FCC has decided it does not like it when the owner of an unbuilt or relatively new FM translator seeks to “hop” in or out the NCE reserved portion of the FM band (88.1 MHz to 91.9 MHz). The Commission is concerned that that practice might reflect an effort by some applicants to game the system. For example, an applicant might apply during a filing window for translators in the non-reserved portion of the band. With a non-reserved permit in hand, it could then modify to the permit to hop over to the reserved portion and thereby take advantage of certain less strict regulations applicable to the reserved portion. 

The Commission is not enthusiastic about such initiative. According to the Second R&O, the practice wastes staff resources and otherwise is, well, not a good thing.  So an application to change an FM translator’s frequency from the non-reserved potion of the band to the reserved portion or vice versa may now be filed only by an FM translator station that has been (a) licensed (or for which a licensee application has been pending) and (b) operating for at least two years. (Note, however, that the rule language adopted by the Commission makes no mention of any two-year holding period. If the FCC really does want to impose such a limit, we may be seeing an erratum in the near future spelling that out officially.)

Tribal Priority. The Second R&O also adopted certain changes, and proposes other changes, regarding the Tribal Priority which the focus of last year’s preliminary action in this proceeding. Since the Tribal Priority is available only to a very limited universe of applicants (i.e., an applicant  that is itself an Indian Tribe or of which the majority owner is an Indian Tribe), we will leave to another time the discussion of this topic, although we stand ready to field any questions that come our way.

The Second R&O is a sweeping action which reflects the Commission’s determination to stem the flow of radio service toward urban, and away from rural, areas. Whether – and if so, for how long – these changes will serve that purpose remains to be seen. 

According to the Second R&O, all the changes made in the order will become effective as soon as it’s published in the Federal Register – except for one aspect of the Tribal Priority rule, which will require prior OMB approval. It’s not clear, though, that other changes – including, e.g., some of the new certification requirements – may not also require OMB approval, as they could be construed to be new “information collection” requirements. The Second R&O doesn’t address that possibility. Check back here for updates on these and other developments on this front.

Not to worry, though, if you happen to be one of the now-dismissed applicants. The Commission promises that the welcome mat will be out for you to refile the next time that there’s an NCE translator filing window open. When might that be? The staff reminds us that the Commission has said that “[t]he next filing window for a non-tabled aural broadcast service will be for new LPFM stations”. Also, let’s not forget the “numerous primary service licensing initiatives” which the Commission has already committed to complete. Bottom line: “the Bureau anticipates that it will not open a reserved band FM translator window for several years”.

So applicants who had been waiting for ten years will now have to wait at least “several” more, by which time who knows how much of the once-available NCE-FM spectrum will have been dealt off to LPFM applicants. While this may be the path of least resistance for the Commission, and a convenient way for it to balance the various conflicting demands on its time and resources, it’s still unsettling to realize that, while you were standing in line for ten years, nobody bothered to tell you that you were in the wrong queue.

These changes have been a couple of years in the making. Back in 2006, the NAB filed a petition for rulemaking proposing the idea of cross-service translation. And in 2007, the Commission had started issuing STA’s to let some AM folks translate on a case-by-case basis. We reported on that phenomenon here. (Through March 18, 2009, a total of 215 such STA’s had been issued.) The Commission released a Notice of Proposed Rulemaking moving the ball a bit farther down the field in August, 2007, and it looked like the final rules were set to be adopted last Fall. But suddenly the item was removed from the Commission’s agenda without explanation. (Some suspected that the LPFM lobby, which has no love for translators and would prefer to rein in their spread, had made a successful, last-ditch effort to derail the proposal.) While that disappearance from the regulatory radar screen may have been cause for alarm, the Commission continued to grant STA’s, suggesting strongly that the rules would ultimately be adopted.

And sure enough, here they are. The new rules should do the trick for many, if not most, interested AM stations. That is, AM stations subject to multiple interference sources (due to the nature of AM technology) should be able to reach their core service area with FM signals in addition to their AM signals.

But there are limitations. For example, while the AM licensee does not necessarily have to own the translator on which its signal is being rebroadcast, the limiting “financial support” rules that apply to FM licensees will equally apply to AMers. If the translator used for AM fill-in service is not owned by the AM licensee, a rebroadcast consent agreement between the two licensees must be in place.  And as to ownership of multiple translators, while a single AM station may own more than one FM translator, the Commission will not permit ownership of more than one translator serving the “same area”. This parallels existing rules for FM stations. By requiring full service stations, AM or FM, to demonstrate the “technical need” for more than one translator serving substantially the same area as another, previously authorized translator, the Commission hopes to prevent “monopoliz[ation]” of local spectrum.

In this vein, the Commission warns ominously that it will “consider it an abuse of our rules for a licensee to use two or more cross-service translators to effectively create a de facto FM station.” Ditto for a licensee who tries to “use two or more FM translators in a manner which circumvents the local radio ownership limits.” However, the Commission provides no clear indication of how it will identify such situations.

One other limitation: cross-service translation will not be permitted on translators operating on reserved (educational) channels.

While the cross-service translator proponents appear to have achieved a major success, the LPFM lobby did not go home empty-handed. The “currently authorized” limitation – i.e., the rule preventing cross-service translation on a translator authorized since May 1, 2009 – is intended to cap the universe of eligible translators and prevent any new efforts to squeeze more FM translators out of the FCC’s processing line. Providing further assurance along those lines to the LPFM folks, the Commission makes clear in the Report and Order that the next LPFM application window will be opening before the next FM translator opportunity. (No dates for either window have been set – and the smart money figures that we probably won’t be seeing the LPFM window for at least a year, but you never know.)

Additionally, the Commission expressly agreed that the LPFM service is generally at “cross-purposes” with the notion of allowing LPFM stations to rebroadcast AM signals. Still, the Commission elected to permit such rebroadcasts as long as they are done “in a manner that complies with the LPFM rules.”

Perhaps the real winners here are those lucky, or prescient, souls who managed to get themselves translator licenses or permits on unreserved channels prior to May 1, 2009. The new rules likely increase the demand for such stations, the supply of those stations is inelastic (having been set in stone as of May 1, 2009), and Econ 101 principles tell us that, in such circumstances, the price to acquire such stations is almost certain to go up, up, up.

The new rules will not become effective until they get published in the Federal Register and get blessed by OMB. As of the effective date, all outstanding cross-service translator STA’s will be cancelled, and any still-pending requests for such STA’s will be dismissed. (Any FM translator licensee currently rebroadcasting AM signals must file written notification specifying the AM primary station pursuant to Section 74.1251(c) sometime between now and then.) Check back here for updates.

According to the Commission, the suspension will permit it to "fully consider" arguments raised in various petitions for reconsideration of the LPFM rulemaking which spawned the dismissal requirement. 

The practical effect of the suspension is that the agency's dismissal of the excess applications has been ceased.  So even if you sent in a notice identifying which applications you would be willing to kiss good-bye to, fear not - those applications will still be pending, at least until further notice.  (Any applications which may have been dismissed as part of the FCC's forced culling procedures will be reinstated.)  Meanwhile, the Commission will continue to process applications for any applicant with ten or fewer applications as of March 4, 2008.

Any applicant with more than 10 applications on file has an opportunity, until April 3, to advise the Commission which 10 applications it wishes to continue to prosecute (and, therefore, which other applications may be voluntarily dismissed).  If an applicant fails to notify the FCC of its decision by the deadline, the Commission will retain the 10 first-filed applications - based purely on file number - and will dismiss all later-filed applications.

The application limit applies only to short-form applications (applicants can retain more than 10 long-form applications) BUT parties should pay close attention to the Commission's guidelines to ensure that high-priority applications are not dismissed.  Applicants with more than 10 long-form applications and no short-form applications on file will have all of their long-form applications processed.  But where an applicant filed more than 10 long-form and short-form applications combined, construction permits granted from the group of pending long-form applications will be counted toward the limit of 10.  Therefore, it may be in a party's best interest to voluntarily dismiss select long-form applications to avoid the dismissal of higher-priority short-form applications.

Instructions on how to notify the Commission of voluntary dismissal selections are set out in the Public Notice.  Please contact FHH if you have any questions or would like assistance in notifying the Commission of your selections.

WGNS(AM)
WRHI(AM)
WSSI(AM)

The first two (issued in January and February, 2007) are justified on the basis of apparent expansion of the stations' respective communities of license and unspecified technical impediments. One refers vaguely to "technical restraints imposed on [the station's] AM operation". The other is not much more specific, citing "interference from numerous sources adversely affecting the AM signal."

While those two letters are hardly models of detailed explication, they at least provide some justification for the STA's. But the most recent we have found doesn't even get that far. That STA, granted in July, 2007, simply indicates that the licensee stated that it "is unable to provide a nighttime signal because of its authorized hours of operation." This, of course, should not come as much of a surprise because the station is a daytimer, with no nighttime operating authority.

Still, the Commission granted the STA, based on this less-than-enlightening analysis: "Having given the proposal thorough consideration, we find that the Public Interest would be served by grant of [the] request."

The take-home message of the FCC's "analysis" seems to be that any nighttime-only station should qualify for an STA to rebroadcast on an FM translator, since every nighttime-only station suffers precisely the same "inability to provide a nighttime signal because of its authorized hours of operation".

Of course, the notion of rebroadcast of a daytime-only station on an FM translator raises at least one major conceptual issue: exactly what programming is the translator broadcasting at night? If the source station - i.e., the AM - is not authorized to operate at night, and if the translator is operating at night (and such operation is presumably to be expected, since that's the reason the STA appears to have been granted in the first place), then where is the translator getting the signal which it is supposedly translating? Does this mean that the translator is authorized to originate programming?

We may find out more about such questions if and when the FCC releases the long-awaited Notice of Proposed Rule Making in which the Commission is expected to propose amending its rules to permit AMers to use FM translators. But with the continuing flow of STA's authorizing such use, there does not appear to be much pressure on the Commission to issue the NPRM.