Amendments to specify digital operation – and maybe more – due by May 24, 2010

Charles DarwinLast week we observed that the Spring Cleaning bug had hit the Audio Division. The same was true of the Video Division as well – but with a twist or two. (This report on the Video Division’s efforts has been delayed as we tried to unravel things.) Here’s what we know for sure: the Video Division has identified approximately 750 LPTV/TV translator applications, all but a small handful with file numbers showing that they were filed back in 2000 and all proposing analog facilities. The Media Bureau has issued a public notice listing all those applications and advising that they must be amended by May 24, 2010, “to specify digital operations”. Applications which have not been so amended by that date “will not be processed”, a delicate turn of phrase which we take to mean that those unamended apps will be summarily dismissed.

The applications were originally filed in response to a “filing window” in 2000. The Commission expected that the applications would ultimately be subject to auction, so applicants were required to file only minimal technical information: FCC Form 175 (the FCC’s pre-auction form) and an abbreviated version of Form 301-CA (for Class A stations) or Form 346 (for LPTV/TV translator stations). The goal was to get just enough technical information to enable the FCC to determine which applications were mutually exclusive and, thus, would be heading to auction. No filing fees were required. 

But now the Commission is looking for much more: the amendments mandated by the latest public notice must include a complete Form 301-CA or 346 and will be considered “major changes”. They must be complete, and a $705 filing fee must be coughed up for each amendment (no fees were collected in 2000).

The twists?

The FCC’s rules specify that a “major” amendment results in assignment of a new file number. The rules also say that applications are filed on a first-come, first-served basis, with each filing taking priority over any conflicting application filed on a later date. Back in 2000, applications filed during in the window were all treated as if they were filed on the last day for prioritization purposes – so it didn’t make any difference whether you filed on the first day of the window or the last. But if each amendment is assigned a new file number on the day it is submitted, the implication is that the first applicant to amend in 2010 would prevail over any later amenders, even if the later amenders were timely back in 2000 and, thus, presumably entitled to compete in an auction. If that’s really how the Commission plans to proceed, it could set off a race to be the first to amend. 

That approach – which is not specifically laid out in the Division’s public notice – seemed a bit unusual, upsetting the expectations of those who filed in 2000 –  so we dug into the question a bit more and finally got a clarification. Yes, each application may be assigned a new file number on the day it is amended. But the file number will not necessarily be determinative of any priority because mutual exclusivity among the applications on the list will again be evaluated as of the last day of the amendment period (i.e., May 24), at least if they don’t create any new mutual exclusivities that did not exist before. In other words, all amendments filed by May 24 date will be prioritized as if they had been filed on that day. So it may be safe to wait until May 24 after all – but since the FCC has not formally announced that this is, in fact, how it will proceed, do you really want to roll those dice?

Another consideration to bear in mind is that although the public notice says that the listed applications must be amended “to specify digital operations,” it appears that that’s not the only kind of amendment that can be filed. Because the mandated amendments will be treated as seeking “major changes” – as the public notice says – just about any aspect of the application is fair game for changes: channel, transmitter site, and city of license. In effect, each amendment will be treated as an application for a new station and can include anything that could be included in a completely new application.  

And at least some such amendments must be contemplated here, because the rules have changed a boatload in the ten years or so since most of the applications were filed. For example, the Commission has stopped issuing new TV authorizations above Channel 51 – but a number of the listed applications specify operation on now-forbidden channels. They must be amended to a lower channel or be consigned to the trash heap. Ditto for folks who had filed for communities within 75 miles of large markets – a zone from which new station applications are excluded. Some applicants, apparently unaware that the same exclusion zones existed in 2000, specified operations inside the zones. The FCC never examined the technical acceptability of any of the applications. Had it done so, those within the exclusion zones would have been dismissed. If they do not amend to move out of those zones now, they will be toast.

So the story is that if you have an application on the list, you have until May 24 to amend to specify digital operation, clean up and complete the full application form, comply with all current interference requirements, and contribute a non-refundable $705 to the U.S. Treasury –  or your application will be out of luck. If you are not on the list, you can still file an application for a new station, since applications outside the 75-mile exclusion zones may be filed at any time under current rules; but any applicants for new stations must protect all applications on the list unless and until the old applications are actually dismissed. Old applicants do not have to protect their own old proposals, so they have more flexibility in what they can put in their amendments.

The Division’s effort to clear out its closets of a bunch of applications that can’t be processed in their current state is understandable. All the listed applications specify analog service, which is so Last Century. The FCC has in effect initiated a partial mandatory transition to digital operation for LPTV stations by deciding that even though existing stations still have no digital deadline, no more construction permits will ever be granted for new analog stations. Moreover, LPTV applications haven’t been real money-makers for the Commission auction-wise – in past LPTV/TV Translator auctions, applicants have demonstrated a reluctance to go beyond the minimum bid, if they showed up to bid at all. So the pending applications do not represent a potential treasure trove in unrealized auction revenue for the FCC.

Faced with these circumstances, the Commission opted to require applicants to re-engineer, amend, and pay a hefty filing fee. The result may well be that many drop out, thinning the herd and increasing the chances for settlements among those who remain in the game.

But if the Division is hoping to get rid of some, possibly most, of these applications, why not just toss them – like the Audio Division did in similar circumstances? One distinction between radio and TV: the Video Division does not face the kind of struggle the Audio Division faces between FM translators and low power FM stations, which are different classes of station with different rules with competing interests. On the video side, LPTV and TV translators are treated as essentially the same service for engineering purposes, with stations having the freedom to switch their category at will. Therefore, it is not necessary to put the brakes on one class of station to preserve spectrum opportunities for the other.

Some of the LPTV applicants have already dismissed their applications, and many are likely not to amend. When the dust settles after May 24, few enough applicants may remain to allow orderly processing, settlements, and grants in rural areas where there is a demand for more network repeaters and local programming services.