FCC To FM Reallotment Proponents: Hands Off Vacant Channels

Going forward, FM channel reallotment proposals may not utilize vacant channels; Sole exception – substitution of same class channel

The art of moving FM channels around to achieve a preferable (and, at least for some, more valuable) channel arrangement has suffered a set-back with the announcement of a change in allotment policy. The Commission has withdrawn one of the technical mechanisms used by practitioners of that art: from here on out, with one narrow exception, vacant FM channels cannot be modified or deleted as part of an effort to re-jigger the distribution of channels.

The issue arose in a long-running contest between competing proposals for FM channels in the area of Keeseville, New York (conveniently located just across Lake Champlain from Burlington, Vermont). In 2004 the Media Bureau had allotted a vacant Class A channel to Keeseville. In so doing, the Bureau rejected a counterproposal to move an operating station from Hartford, Vermont, into Keeseville. Unwilling to take “no” for an answer, the Hartford proponent concocted an alternate approach and submitted it as a whole new rulemaking proposal. That alternate approach depended on, among other things, moving the newly-minted-but-still-vacant Keeseville Class A back out of Keeseville.

One of the supporters of the Keeseville Class A allotment (and – full disclosure – an FHH client) opposed that Plan B because it would eliminate the availability of a vacant channel in Keeseville, even though interest in filing for that channel, as a Keeseville channel, had been expressed. Well-established Commission policy provided that, in such circumstances, a vacant channel could not be moved. Despite that, the Bureau approved the Plan B alternative and yanked the vacant Class A Keeseville channel. 

The disappointed Keeseville Class A proponent appealed to the full Commission.

On review, the Commission agreed that the vacant Keeseville channel should not have been moved out since interest in applying for that channel had been expressed. The Commission then proceeded to engage in a creative exercise that ended up leaving both the vacant channel and the Plan B channel from Hartford in Keeseville.  

Despite the fact that the FCC was able to devise a solution that seemingly satisfied the contesting parties, the Commission clearly recognized that there’s an easier way to prevent such contretemps from arising in the first place.

Since the primary problem here was reliance (in the Plan B alternative) on moving a vacant channel out of its designated community, the Commission figured the best way to avoid recurrences would simply be not to allow such reliance in the future. Accordingly, it has “discontinue[d] the practice of accepting such proposals [i.e., proposals involving the deletion or reallotment of vacant FM channels] in the context of our FM allotment rulemaking procedures. To the extent that parties wish to pursue competing proposals, they should be timely submitted as counterproposals in the initial allotment proceeding.” 

There is one exception to this policy. Parties may still propose same-class channel substitutions in technically related rule making and/or application filings. The rationale for this exception is that FM channels in the same class are deemed interchangeable. So as far as the Commission is concerned, substituting one vacant Class A channel for another Class A channel in a given community does not affect the fair and efficient allotment of radio channels among the states and communities. 

In announcing this new policy, the Commission did not allude to other efforts the Commission has made in recent years to slow the movement of FM stations away from smaller rural communities and into major population centers. But the new policy is clearly in synch with those efforts. The ability to use one or more vacant allotments in the design of elaborate channel reallotment proposals often afforded the designers of such proposals considerable flexibility. That flexibility is now gone. While that won’t put an end to such proposals, it will impose one more impediment on them.