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?

Wrong.

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.]

Media Bureau to 104 More FM Translator Singletons: Come On Down!

A second window for long-form translator applications is now open through October 9.

If you’ve got a singleton FM translator application still pending but you weren’t among the 1,200+ applicants who got invited to file long form Form 349 applications last July, take heart! The Media Bureau has issued another invitation, this time to 104 more translator applicants. You can see a PDF of the invite list here, or you can find a more sliceable and diceable Excel version here.  If you're on the list, get ready to act right away.

The same drill that applied to the July invitees applies this time around.

First and foremost, the deadline: this latest window will be open only until through Wednesday, October 9, 2013.  Mark your calendars.

And heads up – if you’re planning on amending your technical proposal, be aware that the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).  So the sooner you file, the better.

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

For example, modifications to the last-filed tech proposal may be proposed in the long-forms, but any modifications must be limited to “minor” changes and, as noted above, facilities proposed in long-form applications will be accorded protection from other FM translator applications on a first-come, first-served basis. If you propose new facilities that amount to a “major” change, you can expect to be summarily shown the door. Ditto if your amended proposal conflicts with any pending Auction 83 tech box proposal.

Also, applicants looking to change their technical proposals from the specs that were on file as of June 16, 2013 MUST INCLUDE a Preclusion Showing relative to LPFM filing opportunities. (You can find background about such Preclusion Showings, and some useful links, in our previous posts on the subject.)

And the public notice makes explicit what we had previously predicted:

[A]ny Form 349, to the extent it differs from the underlying tech box proposal (as pending on June 16, 2013), is not protected from applications submitted during the October 2013 (LPFM) filing window.

As we have reported, the Bureau has included conditions to that effect on a number of recent FM translator construction permits.

There are various other considerations to bear in mind.  Anyone with an application listed among the 104 listed singletons should read the Bureau’s public notice super-carefully. It would be a shame to have waited more than a decade, only to stumble on one or another minor detail at this very last minute.

FM Translator Update: ". . . What Condition My Condition Was In."

Condition on new translator CP's confirms they are vulnerable to not-yet-filed LPFM applications.

As we have previously reported, FM translator facilities proposed after June 16, 2013, are – at least in the current view of the Audio Division – subject to interference from any LPFM application(s) that are filed during the upcoming LPFM filing window.  The Division staff has been circumspect on this point, not providing any clear and definitive announcement of precisely how its protective stance toward still-unfiled LPFM applications will be implemented. 

But thanks to several translator applications that have been granted recently, we now know for sure that some FM translator facilities are definitely at risk.

How do we know?  Because a number of recently-issued translator construction permits include the following condition:

This authorization is subject to modification or cancellation as a result of applications submitted during the October, 2013 LPFM filing window. See DA 13-1385. Any construction is at the permittee’s sole risk. LPFM construction permits granted from the October, 2013 window filings may require the permittee to change channels, propose other facility modifications and/or terminate operations with the facilities specified herein. A license will not be granted to cover this construction permit until after the close of the October, 2013 filing window.

[Blogmeister’s Note: The reference to “DA 13-1385” is to the June 17, 2013 public notice announcing the upcoming LPFM window.  For our readers’ convenience, here’s a link to that public notice.]

Of course, as we have also reported, conversations with the staff indicate that they feel confident that the likelihood of problems involving translator/LPFM interference is small and such problems should be readily addressable on a case-by-case basis.  That may be --  but it’s going to be a while before we know whether they’re right.  And we also won’t know for sure that the Bureau’s approach here is strictly legal for a while, either – that will depend on whether anybody (most likely an FM translator permittee who finds her facilities whittled down by LPFM applicants) has the time, resources and inclination to take this to court, a multi-year prospect at best.

For now, anyone counting on a new FM translator to cover particular areas should be sure to check for this condition on their CP’s.  That includes not just permittees, but folks looking to buy any new translator permits.  Just because you happen to be holding a piece of paper that says “Construction Permit” on the top does not mean that the facilities specified in that permit are etched in stone.  To the contrary, if the permit is subject to the condition quoted above (or some such equivalent language), you’re going to have to wait to see what gets filed during the LPFM window before you will know for sure precisely what facilities you'll be able to build and operate.

Good luck.

Media Bureau to Singleton FM Translator Applicants: NOW you can file

The window will be open through August 30, but it may pay to act sooner than that.

The long-awaited white flag has been waved and the last lap has begun: the Media Bureau has opened the window for the 1,239 FM vintage 2003 translator applicants previously identified as “singletons”. They can now file their long-form applications (Form 349). Can’t remember whether you’re one of those lucky 1,239? Here’s a PDF of the list and, perhaps more helpfully, here’s a sliceable and diceable spreadsheet version of the same list.

The filing opportunity is not without its gotchas.

First and foremost, the deadline: the window will be open only until through Friday, August 30, 2013. The clock is ticking. [Blogmeister's Note: We originally indicated that August 30 would be a Tuesday; our bad.  That mistake has been corrected, thanks to a tip from one of our readers.]

And heads up – if you’re planning on amending your technical proposal, it does NOT pay to dilly-dally until the very last day of the window period. That’s because the long-form application (and amendments) will be entitled to protection from all subsequently-filed FM translator applications (and their amendments).

Applicants will need to include a filing fee and Form 159 with their long-forms, but since the long-forms must be filed electronically through CDBS, you’ll be reminded of that when you file. CDBS may not alert you, however, to the fact that your application will be subject to a number of limitations.

For example, modifications to the last-filed tech proposal may be proposed in the long-forms, but any modifications must be limited to “minor” changes and, as noted above, facilities proposed in long-form applications will be accorded protection from other FM translator applications on a first-come, first-served basis. If you propose new facilities that amount to a “major” change, you can expect to be summarily shown the door. Ditto if your amended proposal conflicts with any pending Auction 83 tech box proposal.

Also, applicants looking to change their technical proposals from the specs that were on file as of June 16, 2013 MUST INCLUDE a Preclusion Showing relative to LPFM filing opportunities. (You can find background about such Preclusion Showings, and some useful links, in our previous posts on the subject.)

And the public notice makes explicit what we had previously predicted:

[A]ny Form 349, to the extent it differs from the underlying tech box proposal (as pending on June 16, 2013), is not protected from applications submitted during the October 2013 (LPFM) filing window.

There are various other considerations to bear in mind. They’re laid out clearly – some even in lots of bold face type, so you know the staff is really serious about them – in the public notice announcing the window. Anyone with an application listed among the 1,239 singletons should read that notice super-carefully. It would be a shame to have waited more than a decade, only to stumble on one or another minor detail at this very last minute.

Will LPFM Applications Have to Protect Amended FM Translator Applications?

Apparently NOT, according to informal word from Audio Division staffers – even though that approach could undo much of the progress that has already been achieved on the FM translator/LPFM front.

If you’ve got an FM translator application in one of the mutually exclusive (MX) groups identified by the Commission back in May and you’re thinking about amending your technical proposal to resolve the mutual exclusivity prior to the July 22 deadline for such amendments, there’s something you should know.

It appears that the folks in the Audio Division believe that any such technical amendments to pending translator applications filed on or after June 17 will NOT (repeat, NOT) be entitled to protection from LPFM applications filed during the next window opportunity. As we have reported, that next LPFM window is set to open on October 15 and close on October 29.

This possible lack of protection may come as a surprise to many. After all, when the Commission invited such technical amendments back in May, it did not even hint (much less state outright) that amendments filed in response to that invitation might not be entitled to protection. And it certainly didn’t suggest that amendments filed by June 16 (i.e., within the first half of the amendment window, which stretches from May 22 to July 22) might be entitled to more protection than those filed after June 16. But from informal contacts with members of the Audio Division staff, we have heard that that’s how they’re planning to handle things, at least as of now.

The issue about protection for after-filed LPFM applications has arisen thanks to the Division’s June 17 public notice announcing the October LPFM window opportunity. As we reported back then, that notice provided that LPFM applicants would have to “protect pending applications” for full-power, FM translator and FM booster authorizations “that were filed prior to the date of the notice [i.e., June 17].” You might think from that language that any to-be-filed LPFM applications would have to protect FM translator applications filed ten years ago, even if those translator apps might have since been amended to facilitate a grant.

The Audio Division, apparently, doesn’t see it that way.

As best we can figure – and, bear in mind, nobody at the Commission has yet bothered to provide any authoritative clarification of any of this – when the June public notice referred to “pending applications . . . filed prior to the date of the notice”, what it really meant was “facilities specified as of June 16 in any pending applications.”

The language of the June 17 public notice, of course, doesn’t support that reading – it speaks only of applications, not particular facilities.  (Ditto for the rule it's based on.) Whether or not an application is said to be “pending” ordinarily does not depend on the particular facilities specified in the application. (The only situation where that would not be the case would be if a “major amendment” is filed, requiring the application to be assigned a new file number reflecting the date on which the amendment was filed. Since the FM translator amendment window appeared to contemplate only minor amendments, that exception shouldn’t be of concern here.)

The Division’s apparent position is especially odd in view of the May 21 public notice, where the Commission advised translator applicants that the door for technical amendments would be wide open through July 22. If such amendments – or, more accurately, some but not all of such amendments – weren’t going to get full protection from later-filed LPFM applications, why wasn’t that made clear up front? Also, don’t Ashbacker and its early descendant, Kessler, indicate that timely-filed (i.e., by July 22) translator proposals should be entitled to comparative consideration as against other timely proposals including, presumably, LPFM applications?

While the most immediate impact of the Division’s interpretation would fall on translator applicants contemplating technical amendments in response to the May 21 invitation, that interpretation would also affect other translator applicants and even full-service licensees. 

The May 21 invitation, after all, was addressed only to MX applicants. But the FCC still hasn’t cleared the way for a boatload of translator applications, previously identified as singletons, to move forward in the application process. Those applications were all filed more than ten years ago. As a result, the odds are overwhelming that the technical specs of many, if not most, will need to be amended. Does the Commission sincerely believe, for example, that every transmitter site specified in 2003 is still available and/or suitable for use a decade later? 

So the Commission can and should expect a lot of those singleton applications to need to be amended, but it hasn’t yet permitted any amendments. As a result, under the Division’s apparent position, any such amendments will not be entitled to protection from LPFM applications to be filed during the upcoming October window unless the amended facilities remain within the protection umbrella of the original proposal. (That would mean no channel change or increase/shift in signal coverage.) Is it really fair to subject those singleton applicants to a ten-year delay and then, just steps from the Promised Land, force them to continue to sit idly by while the gates are opened to LPFM applications that could slam the door on the still-outside-looking-in translator applicants?

And was it fair to force folks with more than 50 translator applications to pick and choose which they would forego without letting them know in advance that amendments to their surviving applications would not be entitled to protection from later-filed LPFM applications?

And beyond fairness, there’s just plain silliness. As the Division seems to see things, upcoming LPFM applications won’t even have to protect full-service applications filed after June 16. Really? Since full-service stations are deemed to be “primary”, by definition they trump such secondary services as LPFM. So why should any full-service amendment take a back seat to any LPFM application? Indeed, even if a full-service licensee filed a mod application now and an LPFM application in October didn’t protect it, it seems that the full-service licensee could simply dismiss its pre-October filing and re-submit it after the close of the LPFM window.

Such a re-filed application would ordinarily be entitled to protection from LPFM applications (again, a secondary service must make way for a primary service), so any conflicted LPFM application would be out of luck. If that’s the case, why bother to create the pleasant illusion for LPFM applicants that, somehow, some way, they may be able to get the better of full-power stations? Under the Division’s apparent theory, everybody ends up doing a bunch of work that could easily be avoided.

The Division’s apparent approach would also have the undesirable effect of injecting considerable confusion and uncertainty into the LPFM process. The Commission has worked hard to sort out the Rubik’s cube of FM translator and LPFM applications, and appeared to be making excellent progress in resolving the ten-year-old translator mess before giving LPFM applicants the green light. By suggesting that LPFM applicants can ignore translator mods proposed after June 16, the Division would be opening itself up to a host of potential challenges that could tie up significant chunks of the LPFM and translator application processes for more years to come. That would appear to be precisely what the Commission should not want to happen.

We understand that, in conversations with various lawyers and consulting engineers, members of the Commission’s staff have optimistically indicated that they don’t expect many problems to arise. We should all hope so. But bear in mind that, according to some reports, back in 2003 the staff didn’t expect to receive more than 2,000 or so translator applications; they ended up receiving more than six times that many. Some folks expect at least that many LPFM applications will be filed in the October window – one estimate we have heard gets the number up to 100,000 or more. (Given efforts being made by LPFM cheerleaders to encourage applications in the window, and given also the more-than-ten-year hiatus since the last LPFM filing opportunity, we don’t think that 100,000 estimate is far-fetched.) If anywhere near that number are ultimately filed, is it really reasonable to think that only a small handful of problems will arise?

Division staffers have also suggested that MX FM translator applicants should proceed without regard to the LPFM window – go ahead and file your technical amendments by July 22. The staff has assured that they expect to be very accommodating if and when conflicts arise between amended translator apps and LPFM proposals. They have also indicated that they plan to continue to process routine FM translator applications not involving those still pending from the 2003 window.

That’s much appreciated, and if the number of conflicts turns out to be minimal, that may do the trick. But individualized case-by-case resolution of problems will be less helpful if there are scads of conflicts. And we still don’t know how translator applications filed after June 16 and granted before the LPFM window will be affected by later-filed, potentially MX LPFM applications. Will their construction permits be subject to conditions? We don’t know.

Again, at this point we have no formal confirmation from the Division, the Bureau or the Commission as to exactly how it will in fact deal with protection issues when the LPFM window opens. We have, though, had enough conversations with the staff, and been advised of other such conversations, that we figure it’s important to alert all parties of what we have heard. Of course, as developments warrant we’ll try to keep our readers up to date. Check back here for updates.

FM Translator Application Update: Last Chance Settlement Window Opened

Media Bureau provides MX applicants one last opportunity to avoid going to auction.

If you’ve still got one or more FM translator applications pending from the infamous 2003 window, listen up! The Media Bureau has opened a 62-day “Settlement Period” – up to and including July 22, 2013 – during which applicants with mutually exclusive (MX) applications may attempt to resolve their differences through engineering amendments or settlements.

For those of you who may have forgotten exactly which (if any) of your applications may still be alive and kicking, the Bureau has provided a list of the apps that the Bureau thinks are eligible for settlement (i.e., applications MX with one or more other applications). You can check that list out here (or in a more sliceable and diceable Excel version here). There are a total of 539 MX groups, so you’d better start looking now.

Important alert: The Bureau recognizes that its list may not be 100% complete, and it expressly encourages anybody who believes that one or more applications may have been omitted to get in touch with the Bureau immediately. Remember, to be on the list, your application has to be MX with at least one of the applications already listed.

All MX groups are heading to auction. But the Settlement Period affords pending applicants the chance to avoid the auction scenario by eliminating mutual exclusivities, either through negotiated settlement or unilateral amendment. Proposed negotiated resolutions may be universal – i.e., involving all members of a particular MX group – or non-universal – i.e., involving less than all members. But any proposed resolution – whether unilateral or negotiated – must “eliminate all mutual exclusivities between at least one application and all other applications in the MX group.”

In other words, all the applicants in a particular MX group can get together and work out a deal, or any subset of applicants can do the same, or just one applicant may be able to figure out a technical way to get itself out of mutual exclusivity hell. But in any of those situations the bottom line has got to be that at least one application is freed of all mutual exclusivities and thus becomes a (theoretically) grantable “singleton”.

The concept of “negotiation”, of course, requires that the MX applicants communicate among themselves. But as we all know, in the pre-auction context, MX applicants are absolutely prohibited by the FCC’s rules from engaging in any application-related communications with one another. No problem. The regulatory Cone of Silence has been lifted during the Settlement Period to permit inter-applicant discussions looking to resolve mutual exclusivities.

There are, of course, a number of gotcha’s here. For example, negotiated settlements are subject to the standard limitations on such deals, including restrictions on reimbursement. That means, among other things, that a dismissing applicant cannot expect to be paid anything more than its “legitimate and prudent expenses” in return for its dismissal. (The rules provide that that “legitimate and prudent expenses” cap does not apply to “bona fide merger agreements”, although whether such a merger arrangement might make sense in the FM translator context remains to be seen.)

And for anyone contemplating a unilateral engineering route out of mutual exclusivity, note that any amendment must be “minor” in nature, and it cannot create any new mutual exclusivities. Heads up, too: if the amendment specifies a transmitter site within either (a) 39 kilometers of any Appendix A Market and/or (b) any Top-50 Spectrum Limited Market, the amendment must include a Preclusion Showing. (For a refresher on Preclusion Showings, check out our previous posts on the subject.)

One more caution flag on the technical amendment front: our colleague Matt McCormick reports that, according to some informal advice from the Bureau’s staff, technical amendments will be processed on a “first-come-first-served” basis. That means an earlier-filed tech amendment will cut off any later-filed amendments that happen to be MX with the earlier-filed. So anyone contemplating an engineering fix should act sooner rather than later.

The Bureau’s public notice lays out the various procedural niceties involving in getting any proposals filed. We won’t get into the deep weeds on these here, but readers should know that some items are to be filed on paper and some electronically through CDBS – and there are even very specific instructions for how CDBS items are to be identified in the pre-form. Anyone contemplating the submission of any such proposal should review the notice carefully and be sure to comply with all details. 

The big thing for all to remember: the deadline for any settlement proposal or technical amendment is July 22, 2013.

The Bureau’s notice also includes an additional opportunity for anyone proposing a noncommercial educational (NCE) station as the translator’s primary station to avoid dismissal. As we reported last month, applicants seeking NCE authorizations are not permitted to participate in auctions. Since that prohibition cropped up after the 2003 FM translator filing window had come and gone, a number of still-pending applicants identified themselves as “NCE”, which was the kiss of death. To give those applicants a chance to avoid dismissal, the Bureau allowed them a brief opportunity to “de-select” the NCE status. As it turns out, though, there was yet another potential problem: an FM translator proposing an NCE station as a primary station is deemed to be NCE, so even if an applicant has chosen not to identify itself as “NCE”, it’s still subject to dismissal of its application specifies an NCE primary. 

Because of that, the Bureau is giving applicants in that position the green light to amend their applications to specify a non-NCE primary station. Such amendments will be treated as “minor”, but they must be submitted during the Settlement Period, i.e., no later than July 22, 2013. Failure to take care of this detail will result in the summary return (as unacceptable) any application specifying an NCE primary station – even if the applicant in question took advantage of last month’s “de-selection” opportunity.

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 Announces Ten-Day Window for NCE "De-Selection" Amendments

Window follows rejection of Request for Declaratory Ruling looking to get multiple NCE applications dismissed.

We’ve got good news for you if (1) you’ve got an FM translator application still pending from the 2003/Auction 83 filing window and (2) you identified yourself as a noncommercial educational (NCE) applicant when you first filed the application. The Media Bureau has announced that, between April 8-17, you will have an opportunity to “de-select” that NCE filing status. If you want to keep your application alive, you’ll take advantage of that opportunity.

In announcing this amendment window (and in a separate letter ruling), the Bureau made short work of a recently-filed Request for Declaratory Ruling which looked to thin the herd of pending applications by effectively prohibiting such amendments.  

The problem being addressed here arose when the Auction 83 window first opened in March, 2003. Back then, applicants seeking NCE authorizations were permitted to participate in such proceedings. At the time, NCE applicants were explicitly instructed to designate their status as “noncommercial educational” in the box provided on the Form 175.

Shortly after the closing of the Auction 83 window, however, the Commission revised certain of its procedures and processing rules for all NCE broadcast applications. Among the new rules was the proviso that any NCE application found, after a settlement opportunity, to be mutually exclusive with a commercial station would automatically be dismissed.  Further complicating matters, Section 1.2105(b)(2) specified that any attempt to change an applicant’s status from NCE to commercial would be an impermissible major amendment.  In other words, NCE applicants who had followed the FCC’s instructions and identified themselves as NCE in their applications had unintentionally placed themselves in a no-win situation if it turned out that their applications were MX with those of commercial applicants.

Recognizing the fundamental unfairness of the bait-and-switch situation which it had unwittingly created, the Commission in 2008 directed the Media Bureau to waive the major amendment prohibition to permit the de-selection of NCE status by applicants who could not have foreseen that indicating NCE status (as the FCC then required) might be an irreversibly fatal decision.

The April 8-17 window provides NCE applicants in the Auction 83 proceeding to take advantage of that opportunity.

In opening the window, the Bureau rejected a Request for Declaratory Ruling filed by a couple of commercial broadcaster less than two weeks earlier. The request suggested that, in order to afford NCE applicants the opportunity to “de-select”, the Commission would first have to open a notice-and-comment proceeding. The Request was clearly aimed at getting all those pesky NCE applications dismissed out of hand.

The Request, of course, ignored the fact that such “de-selection” opportunities had been routinely provided repeatedly in the past, and had been mandated by the Commission. In its separate letter ruling tossing the Request, the Bureau evinced little sympathy for the Request, characterizing it as “frivolous, repetitive and not warranting consideration by the Commission”. Ouch.

So the Media Bureau has once again deemed that the public interest will be best served by waiving the major change prohibition, since doing otherwise would be inconsistent with fundamental due process requirements.

Applicants who designated NCE status on their 2003 Auction 83 Form 175s will have a one-time opportunity to “de-select” this status by paper amendment and email submitted to the FCC between April 8-17, 2013.   (The specifics of the amendment process are set out in the Bureau’s public notice.)

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

LET THE CITIES IN!!

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.

Last Tango in Translator-Land?

Audio Division turns up the heat on the practice of “hopping” FM translators

The FM Translator Tango.  Always a complicated dance. Some may have figured that it was a harmless pastime, a no-lose bet with zero downside and nothing but upside. 

They may have figured wrong, as a recent Audio Division letter demonstrates

What’s the Translator Tango? It’s the dance in which enterprising FM translator owners hop their stations across significant distances to where they are more useful and more valuable. It’s a slow, gradual dance that uses a series of rule-compliant minor modification applications.  The choreography:  Starting with a construction permit specifying service to Nowheresville, the licensee moves the permit to Better Market. Better Market is invariably far away, so far that, under the Commission’s “major change” rules, the licensee could not ordinarily propose simply to move there in one giant leap. So the dance consists of a series of incremental steps, or hops, each moving the licensee farther away from Nowheresville and closer to Better Market.

Each incremental step involves a number of gyrations. The licensee has to file an application for a new construction permit specifying modified facilities. The Commission has to grant that permit. The licensee then has to construct the modified facilities and file a license to cover them. Then it’s supposed to go on the air from that location. The FCC follows by granting the license. Then the process starts again. Repeat as necessary to get to Better Market. 

We described this process in less terpsichorean terms several months ago. As we reported then, the FCC staff had signaled its great displeasure with the process of moving translators through a series of minor modification applications. You think? In a September 2, 2011 letter, the Audio Division put it about bluntly: “We believe the filing of serial modification applications [for FM translators] represents an abuse of process.” 

Harsh, but perhaps not totally daunting to the die-hard hopper.

That’s because the September, 2011 ruling technically didn’t involve a serial hopper. Rather, it involved a translator applicant’s request for waiver of the “major change” rule to allow it to make one big leap to its desired location.  That waiver was granted because, among other factors, the applicant did not have a history of filing multiple minor modification applications.  

But the Division’s most recent letter does involve a minor “mod” frequent filer. The target of the letter has filed a series of six applications, the overall arc of which suggests an intent to move its FM translator from Beloit, Wisconsin to the Milwaukee market. The letter uses tough language:  the Media Bureau is “investigating potential statutory and rule violations and related instances of potential misrepresentation and/or lack of candor”. That’s the type of language the Commission uses when it’s gunning for someone’s license, rather than gently correcting a wayward licensee’s ways.

The letter directs the target to provide within 30 days a whole lot of information regarding its series of six modification applications – five of which had been granted previously.

For each hop, the target must state whether it had “reasonable assurance” of the availability of the transmitter site specified, and it must provide documentation backing up any claim of availability. Then it has to report, with respect to each location:

  • How long the translator actually was on the air;  
  • What primary station was being rebroadcast and whether the primary station’s licensee had granted permission to rebroadcast; and
  • The precise period of time the translator was silent for 30 days or longer at each location, the reason for that silence and an explanation for any failure to notify the Commission of the translator’s silence.

The Division’s letter also calls on the target to identify the location it ultimately intends the translator to serve and the primary station that would be broadcast. All correspondence, engineering studies and other documents regarding relocation of the translator from Beloit to that target location (or any other community) must be handed over. 

Rumors abound that similar investigatory letters are in the works for other licensees who have evidenced “serial hopping” tendencies. Whether any of this sleuthing leads the Media Bureau to designate one or more translator licenses for revocation hearings remains to be seen. But the mere possibility of such a fate may have been enough to cause a number of translators applicants to leave the dance floor tout de suite:  a quick look at CDBS indicates about a dozen FM translator applications have been dismissed since the date of the Division’s latest letter. Coincidence? You make the call. 

Stay tuned to see if the dance continues or if the dancers call it a night.

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

Despite Free Smartphone Offer, FCC Kills FM Translator

Audio Division suggests translators operating near co-channel full-service stations may be lost cause

This just isn’t the year to be in the FM translator business. First, there were setbacks in the long-running battle between translator and LPFM interests. Then there was the Audio Division’s announcement that the practice of “hopping” translators from site to site is Very Very Bad Behavior (even though the Division acknowledged that that practice was not prohibited by the rules, as demonstrated by the fact that the Division had repeatedly grants such hops for years). 

And now the Division has reminded translators that they really are secondary to full-power stations.

In a letter resolving a face-off between an FM station in Toledo and a co-channel translator in Detroit, the Division has come down smack on the side of Mr. Toledo – with an order to Mr. Detroit to shut down his translator immediamente. And adding insult to injury, the letter flatly rejects the translator operator’s proposal to hand out “iHeartRadio”-equipped smartphones so that folks encountering interference to the over-the-air signal of the full-power station can receive an interference-free signal over the Internet.

iHeartRadio – maybe; iHeartTranslators – not so much.

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.

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.

Spectrum Quest (Home Edition)

Now you, too, can search for available LPFM or FM translator channels in the comfort of your own home!

The hunt for “available” spectrum can be brutally hard. That unpleasant reality was highlighted in the Commission’s recent Quest for Spectrum as it sought to sort out the Low Power FM/FM Translator problem.

In prepping for the LPFM/FM translator order, the dedicated Media Bureau staff went to extraordinary lengths to try to divine what channels might be available, and where, to accommodate demand for new LPFM and FM translator stations in more than 150 markets. Just what lengths, you ask? In the Commission’s words:

[T]he Bureau centered a thirty-minute latitude by thirty-minute longitude grid over the center-city coordinates of each studied market. Each grid consists of 931 points – 31 points running east/west by 31 points running north/south. Grid points are located at one-minute intervals of latitude and longitude. The Bureau analyzed each of the 100 FM channels (88.1 MHz – 107.9 MHz) at each grid point to determine whether any channels remain available for future LPFM stations at that location. Only channels that fully satisfy co-, first- and second adjacent channel LPFM spacing requirements to all authorizations and applications, including pending translator applications, are treated as available.

If our math is right (and there’s a reason we went to law school), the Bureau’s study involved about a squadrillion (well, almost 14,000,000) separate calculations – if we treat as a “calculation” each separate analysis of each of 100 channels at each of 931 grid points in each of 150 markets. (Note that we would have thought that a 31 x 31 grid would have contained 961 points, rather than the 931 the FCC mentions, but like we said, there’s a reason we went to law school.)

If you think that all sounds easy – or if you think you could have done better – here’s your chance. The Commission is making available to the Great Unwashed the spectrum availability analysis program the Bureau used, along with the coordinates used in preparing each market analysis. Talk about fun for the whole family! Now you can spend hours exploring the potential availability of frequencies for LPFM stations at locations throughout the United States! Just click on this link, download and unzip the files, and off you go. (The Commission cautions that you check out the Readme.txt file first – it’ll help guide you through the contents.)

Good luck.

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.

Rural Radio: Certification Requirements Now In Effect

If you’ve got a pending community-of-license application pending for an AM or FM station, you may be hearing from the FCC shortly

Last March (as we reported back then) the Commission took aggressive steps to stem the flow of radio stations away from rural areas and into urban areas. A central aspect of that action was a set of modified priorities by which the acceptability of proposed community-of-license changes by AM and FM applicants is to be assessed. The new priorities are to be applied to proposals for new and modified AM and FM facilities already in the pipeline as of the new policy’s adoption back in March, as well as all further such proposals (one exception: the new priorities won’t be applied to any still-pending new/major change AM applications filed during the Auction 84 window in 2006). In our earlier post we spelled out the details of the new priorities, including the overriding “Presumption” of service that serves as a cornerstone to the new approach. 

As we have reported since last March, the precise effective date of the new priorities has been a bit hazy. (Check out our follow-up posts here and here and here.) But never fear, the haze has now lifted.  The new priorities – complete with required certifications – have all formally taken effect as of July 19, 2011. This is thanks to (a) prompt and favorable review by OMB relative to the new allotment drill, and (b) publication of a Federal Register notice announcing OMB’s blessing.

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.

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: New Rural Radio Certifications Out For Comment . . . Again

Those of you who have been monitoring the gestation of the Commission’s revised rural radio policies will be pleased to know that those policies have taken what could be their penultimate step toward formal effectiveness. You may recall that, back in March, the FCC invited comments (as required by the Paperwork Reduction Act) on the certification requirements newly-imposed by the revised policies. The deadline for those comments (which were to be filed with the Commission) was May 23. With that deadline having come and gone, the Commission is wasting no time: according to a public notice in the Federal Register, the FCC has now bundled the whole shebang up and shipped it over to the Office of Management and Budget for its look-see.   If and when OMB gives the new certification requirements the thumbs up, the Commission will be able to put them into effect.

This is your last chance to toss in your two cents’ worth on the new requirements. This time, though, you’ll have to direct your comments to the OMB. The deadline is June 27, 2011 – which means that we can probably expect the new certification requirements to kick in for real sometime in July or August. The Commission will presumably issue a notice to let us know when that happens.

LPFM Cheerleader to FCC: Let Translators Originate

Amherst Alliance proposal would allow commercial operation on originating translators, demote non-originating translators to “auxiliary secondary” status

Back in January, just after the Local Community Radio Act of 2010 (LCRA) had been signed into law, we observed that there was still a long way to go before we could fully assess the impact of that Act on the low-power FM universe. After all, the Act imposed a number of new legal twists in the already long-running stand-off between FM translators and LPFM stations; it also gave rise to a welter of practical problems relating to the fate of thousands of translator applications still pending since 2003.   

Little did we know that things might get even more complicated. But a recent proposal from the Amherst Alliance could have just that effect.

The Amherst Alliance is a special interest group which was an early promoter of the concept of LPFM service. It has since been a “key player” (in the Alliance’s own words) in the debates that have shaped LPFM. And now the Alliance has filed a Petition for Rulemaking proposing to the Commission that translators be permitted to originate programming, including commercial programming. Oh yeah, and they also suggest a new hierarchical structure to be applied to the existing universe of secondary status FM operations, a universe currently populated by translators and LPFM’s. (FM boosters are also in that universe, but the Alliance doesn’t seem concerned about them.)

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.

Update: Effective Date Of New Rural Radio Rules Set

But what about the new Section 307(b) policies?

The Second Report and Order (Second R&O) in the rural radio proceeding has been published in the Federal Register. According to the notice as it appeared in the Register, the new rules will become effective on May 6, 2011, except for newly-revised Section 73.7000. (That section, which relates primarily to Native American Tribal factors, entails certain “information collections” that must first be approved by the Office of Management and Budget (OMB).)

For many broadcasters, though, the real attention-grabber of the Second R&O was not the rule changes it effected, but rather its overhaul of Section 307(b) policies. Perhaps even more important were the new certification requirements imposed on community-of-license-change proponents as a result of that overhaul.

So the real questions are: when do the new Section 307(b) policies become effective, and when will pending proposals have to be amended to include the new 307(b) certifications?

The answer to the latter question is a piece of cake. Since the new certifications constitute “information collections” subject to the Paperwork Reduction Act (PRA), they must go through the standard PRA drill. We noted this back when the Second R&O was first released, and we followed up with a report on the official commencement of the PRA process in March.

But what about the underlying 307(b) policies? Are they in effect now or not? 

The answer to that isn’t clear.

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.

Update: New Rural Radio Certifications Out For Comment

New “information collection” requirements for AM/FM change-of-community applications to undergo Paperwork Reduction Act review before taking effect

A couple of weeks ago we described the FCC’s revised approach to proposed changes in the communities of AM and FM stations and allotments. As we noted, the Commission’s Second Report and Order (Second R&O) indicated that that new approach would become effective upon publication of the Second R&O in the Federal Register. But that estimation seemed a bit at odds with reality – or, more specifically, with the Paperwork Reduction Act (PRA), which requires that most new “information collections” be run past the Office of Management and Budget. (We pointed that out, too.)

And sure enough, the Commission has now signaled that the new change-of-community showings do indeed need to be approved by OMB. This may slow the implementation of the revised policies, if only because OMB approval normally adds at least 90 days to the process. Since the new policies will apply to all change-of-community applications pending as of the release of the Second R&O (i.e., March 3, 2011), that delay could be an annoyance for folks whose applications may be stuck in the queue. It remains to be seen whether the Commission’s staff will be inclined to find some way to implement the new standards any earlier.

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.

Extreme Makeover - Radio Edition

AM/FM allotment policies overhauled as Commission looks to discourage relocation of service from rural to urban areas 

If you’re looking to move an AM or FM radio station from a small community to a different, bigger, community, your job probably just got a boatload harder. The Commission has released a wide-ranging decision – technically, a “Second Report and Order, First Order on Reconsideration, and Second Further Notice of Proposed Rulemaking” (ouch – let’s just call it the Second R&O for short) – in its two-year old “rural radio” proceeding. Unlike the Commission’s first order in that proceeding, the Second R&O tightens up radio channel allotment standards considerably.

Since radio broadcasting began, entrepreneurs have been inexorably drawn to the bright lights (and larger audiences) of big cities. Eschewing the bucolic delights of rural America, entrepreneurial folks have strived to locate stations in or near metropolitan areas. In response, the FCC has strived to keep the metro-bound tide in check. In recent years, though, the regulatory levees have been relatively easy to overcome, leading to a steady influx of channels to metro areas. With the release of the Second R&O, however, the flood barriers have been raised higher . . . much higher.  And, as a bonus, the Commission has made it harder for FM translators to pop in or out of the reserved portion of the FM band.    

First, some background.

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.

Turn-Of-The-Century NCE Translator Applications Dismissed

The Spring Cleaning bug has hit the folks in the Audio Division. They have unceremoniously dumped out at the curb nearly 300 applications for FM translators on reserved (noncommercial educational) channels that were filed ten or more years ago. The discarded applications – like disco suits or eight-track tapes you might find in some closet or file cabinet you haven’t looked in lately – have been overtaken by intervening trends, most importantly the current fascination for all things LPFM.

Of course, if you happen to be one of the applicants being shown the door, you might wonder how it is exactly that the Commission could invite you to file, then sit on your application for a decade, and then toss it out without so much as a “so sorry”. After all, it took time and money for the applicants – all noncommercial entities, most of them religious – to prepare the applications, and they all presumably had plans to use the proposed stations to bring new service to listeners. The summary dump of their applications seems more than a little harsh.

The applications in question – you can view a complete list here – were filed back in 2000 (a small handful go back a year or two further). They got iced in when the Commission imposed a freeze on NCE-band translator applications in April, 2000, in connection with the transition to the then-“new” NCE comparative process. Because of the freeze, the applications never got accepted or “cut-off”, leaving them pretty much nowhere for a decade.

In the meantime, LPFM managed to plant itself in the regulatory consciousness and gradually metastasize, eventually eclipsing any luster that translators (which operate on the same channels as LPFM) might once have had. And then there was the 2007 open window for full-service FM stations in the NCE band, which distracted the FCC’s staff and sucked up more spectrum that might otherwise have been available for translators. With all that going on, there was no incentive for anybody at the Commission to look in that back closet and think about doing anything with the vintage 2000 applications languishing there.

And now, ten years down the line, the Commission figures that it’s just too late to try to worry about them. So out they go.

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.

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.)

FCC OK's AM on FM Translators

In an effort to provide a lifeline to an AM radio industry in continued, and dramatic, competitive decline, the Commission has changed its rules to permit AM stations to rebroadcast their signals on FM translators under certain conditions. The long-awaited Report and Order – whose release was anticipated last Fall – opens the door for considerable, but not universal, “cross-service translation”.

Under the new rules, AM stations may rebroadcast on “currently authorized” translators in the non-reserved (i.e., commercial) portion of the FM band, provided that no portion of the 60 dBu contour of the translator extends beyond the smaller of either (a) the AM’s 2 mV/m daytime contour or (b) a 25-mile radius from the AM’s transmitter site. To be a “currently authorized” translator for these purposes, a translator must have been licensed or authorized in a construction permit in effect as of May 1, 2009. (In other words, translators whose initial permits are granted after May 1, 2009, will not be eligible; nor will any translators whose authorizations, even if granted on or before that date, have since expired.)

And for all you Class D AM stations, a special break: you will be allowed to originate programming on the translator during time periods when your AM station is not operating. While that does some violence to the technical concept of “translator” service (since origination, after all, does not involve “translation” in any sense), the Commission viewed it as in keeping with the agency’s desire to bolster the competitive position of AM licensees.

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.

FCC to Translator Applicants: "Never Mind"

As we reported here in early March, the Commission ordered applicants with more than 10 short-form translator applications still pending (from the 2003 filing window) to advise the Commission of which 10 applications the applicant wants to continue to prosecute.  All others would then be dismissed.  The deadline for those notices was Thursday, April 3. 

But five days after that deadline, the Commission has had a change of heart. In a public notice, the Commission has announced that the dismissal of FM translator applications has been suspended.

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.

Commission Seeking Voluntary Dismissal of Auction Applications

It's fish-or-cut-bait time for folks who filed more than 10 applications for FM translators in FM Auction No. 83 back in 2003: if you still have more than 10 applications pending from that window, you must decide - by April 3 - which 10 you want to continue to prosecute, and which others may be dismissed.  If you fail to make that call by April 3, the FCC will make it for you.   

In a Public Notice released March 4, the Commission followed up on the "limit of 10" policy which it had announced in its December 11, 2007 decision in the Low Power FM proceeding.

The "limit of 10" policy was established to address the Commission's "concerns about the integrity of [its] FM translator licensing procedures."  While 80 percent of filers in the 2003 FM translator window submitted 10 or fewer proposals, a handful of applicants filed many more.  The two most active filers - the commonly-owned Radio Assist Ministries and Edgewater - filed 4,219 proposals collectively, representing nearly a third of the Auction No. 83 filings.

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.

FCC Considers Allowing AM Stations to Use FM Translators

The FCC's proposal to allow AM stations to use FM translators for fill-in service (including at night, even if the AMer is a daytime-only station) has taken an important step forward.

The Notice of Proposed Rule Making (NPRM) containing that proposal has been published in the Federal Register (on Tuesday, November 6). With that publication, the deadlines for comments and reply comments have been established. If you want to file comments, you have until January 7, 2008. Reply comments are due on February 4, 2008.  The NPRM was issued in August in response to a petition filed by the NAB. The NAB's petition attracted some 500 sets of supporting comments.

The proposed rules would allow AM stations to operate FM translator stations to retransmit their signals as a fill-in service, provided that no portion of the 60 dBu contour of any such FM translator station extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. 

The proposal also contemplates that AM daytimers would be able to use FM translators at night, thus effectively allowing them to originate programming on the translator. Precisely how that nighttime capability would work as a practical matter remains to be seen. The proposal raises a wide range of ancillary questions which will have to be considered before the Commission adopts all or part of the proposal. Those questions relate to (among other things) eligibility criteria, technical standards, and timing considerations.

The NPRM may be found here.

Found in Translation: Daytimers Going Nighttime

Question: When is a daytime-only AM station not a daytime-only AM station?

Answer: When it manages to get an STA that permits it to rebroadcast its programming on an FM translator.

Over the last six-nine months, the Commission has issued a number of STA's permitting AM stations to rebroadcast on FM translators. These STA's have been largely - no, wait, completely - unheralded. The FCC has issued no public notices about them, no public releases about them, no nothing. A quick glance at CDBS indicates that the fact that an STA request has been filed does not necessarily even show up in an "Applications" search, so it may be impossible to tell how many such requests have been filed, let alone how many have been granted.

We have tracked down a few, though. You can view them here:

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.