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.