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.]