Decision narrows Mattoon Waiver policy, tortures language in the process.
“When I use a word, … it means just what I choose it to mean – neither more nor less.”
While that quote is, of course, from the noted wordsmith Humpty Dumpty, you’d be forgiven if you guessed that it came from the FCC’s Audio Division. The Division based a recent decision on the odd notion that the filing of a single application may constitute a “history of serial modification applicationS”. (We have capitalized and boldfaced the “S” in “applications” to highlight the conceptual difficulty of a single application being deemed “serial applications”.)
And with that linguistic tour de force, the Division made it considerably more difficult to get a Mattoon Waiver. This is not especially good news for AM licensees.
Readers will recall that, in 2011, the Media Bureau invented the Mattoon Waiver, a policy designed to afford FM translator licensees flexibility in transmitter site moves. Its ultimate goal was to create additional opportunities for AM stations to acquire or utilize FM translators for fill-in purposes.
Because not every translator was located where it might be used by an AM station, lots of translators had to move closer to AM stations. But FCC restrictions on translator site changes often precluded making the necessary relocation in one fell swoop. Creative folks determined that they could achieve through a series of shorter moves, or “hops”, that which they couldn’t achieve with a single application proposing a much more distant move. The “hopping” approach was not prohibited by the rules – indeed, the Audio Division staff granted a lot of “hop” applications – but that doesn’t mean that the staff liked it. In an effort to squelch the “hopping” trend, the staff eventually declared “hopping” to be an abuse of process.
But if AM licensees were to be able to avail themselves of the use of translators, there had to be some way to get the translators moved closer to the AMs.
Enter the Mattoon Waiver.
It permits an applicant to propose a single long “hop” that would otherwise be prohibited by the “major change” rule. To be eligible for the waiver of that rule, the applicant must (among other things) have no “history of filing serial modification applications”.
When you read that condition, you’d think that it bars only translator licensees who have filed multiple applications, right? So if the totality of your mod application “history” involved no more than one relocation, that shouldn’t disqualify you from getting a Mattoon Waiver, right?
In its recent decision, the Division announced that it takes only one prior modification application to move you out of the “eligible” category.
The application in question, which was not opposed by anybody, satisfied all the other technical criteria for a Mattoon Waiver. But then the staff noted that the applicant had filed one modification application already. Oops. The staff concluded that the “evident purpose” of the earlier move had been “to manipulate the Commission’s modification and waiver policies in an effort to achieve an otherwise prohibited result.” The staff faulted the applicant for not providing “any information to the contrary.”
Of course, the applicant had only the Division’s previous articulation of the waiver policy to work with in preparing the waiver request. And that articulation did not suggest that a single application (as opposed to “serial applications”) might be deemed to constitute improper “manipulation”. So it’s hard to see how the staff could fault the applicant for not initially addressing the notion that a single application it had previously filed might be deemed a disqualifying “manipulation”. Agreed, it’s not unreasonable for the staff to expect waiver seekers to provide information responsive to previously announced waiver policies. But when the staff moves the goalposts by interpreting policies on the fly in unpredictable ways – for instance, by deeming a single application to be “serial applications” – an applicant’s failure to predict the unpredictable really shouldn’t be held against it, should it?
And even if the Division had alerted the applicant to the staff’s concerns about the earlier application’s supposed “evident purpose”, in order to respond persuasively the applicant would have had, in effect, to prove a negative. That is, the staff appears to have expected the applicant to be able to demonstrate conclusively that the purpose (evident or otherwise) of the earlier application was not to manipulate the Division’s policies. Since the staff appears to have concluded that the mere fact that the first move was in the same direction as the second revealed its “evident purpose”, it’s hard to imagine how the applicant could have convinced the staff otherwise.
Since the Mattoon Waiver policy was a creation of the Division in the first place, the Division can define its metes and bounds. So the fact that this recent decision seems to cut back seriously on the overall utility of the policy, while disappointing, is probably something the Division can do if it likes (and if it jumps through the right hoops, of course). But if the Division wants to change its policy, why not just change the policy? Why rely on the improbable notion that the plural term “serial applications” should or could have been understood by anybody to mean “one application”? The use of the plural “applications” directly undercuts such a reading, as does the notion of “serial” – when was the last time you saw a series of one thing?
And why conclude that a single application might, on its own, constitute an abuse of process? That seems an extraordinarily harsh conclusion to draw on the basis of pretty thin evidence.
As alert readers will recognize, this is the Division’s second decision in the last month of so cutting back on the Mattoon policy. Coincidence? Of course not. In the long-awaited AM revitalization rulemaking proceeding, the FCC is moving toward complete elimination of the Mattoon policy. In that proceeding the Commission is considering opening an FM translator window for AM stations only. At least in theory, such a window opportunity would obviate the need for Mattoon waivers. So the Mattoon Waiver policy may be a Dead Policy Walking at this point.
Translator applications have been a particular thorn in the staff’s side for more than a decade. And the Mattoon Waiver policy has aggravated that by spawning a boatload of mod applications involving waiver requests that have to be carefully analyzed, one at a time, by hand. The Division can be forgiven any antipathy it may bear toward translators generally and toward the Mattoon Waiver policy in particular. Presumably, when the AM revitalization rulemaking wraps up, that’ll be the de jure end of Mattoon Waivers; in the meantime, it looks like the staff is doing its best to eliminate them de facto.
[Blogmeister's Note: Blogger Harry Martin represented the applicant in this case.]