Action on AM rescue items may come soon, but things aren’t looking good for an AM-only FM translator window.
About 18 months ago, the Commission adopted a Notice of Proposed Rulemaking (AM Revitalization NPRM) that represented, in the words of then-Acting Chairwoman Clyburn, “the next significant step in our effort to buttress AM broadcast service and ease regulatory burdens on AM broadcasters.” Commissioner Pai, a long-time supporter of the AM industry, declared the NPRM a “landmark effort … to energize the nation’s oldest broadcasting service”. Optimism ran high that AM was about to catch a break.
Then things went quiet. We here in the CommLawBlog bunker have received a boatload of inquiries asking where the much-vaunted AM Revitalization proceeding stands. And now we have some idea: In a recent post on the FCC’s blog, Chairman Wheeler has announced that he “intends to conclude” this proceeding “in the coming weeks”.
There’s good news and bad news here.
On the plus side, the fact that the Chairman is looking to “conclude” the proceeding at all is a big step in the right direction. The word on the street has been that a draft decision had been prepared by the Media Bureau staff and delivered to the Chairman’s office some time ago, but Wheeler was not inclined to fast track it. Whether that was because of other distractions (net neutrality and spectrum auctions being two obvious examples) or because of internal disputes with one or more other Commissioners (e.g., AM cheerleader Commissioner Pai, who has found himself cross-wise with the Chairman on more than one occasion) or because of some other factor, it’s impossible to tell. But at least we now know that we can expect some movement.
(The fact that we don’t have a specific time frame for that movement is, however, a bit disappointing. Wheeler says “coming weeks”; in a statement applauding Wheeler’s announcement, Pai expresses hope that action will be taken “in the next couple of months”. Weeks? Months? Hmmm. But let’s not look a gift horse in the mouth.)
On the down side, there appears to be trouble ahead for possibly the most eagerly anticipated element of the revitalization proposal: a window for new FM translator applications that would be open only to AM licensees. While the Chairman, in his blog post, seems to approve of most of the proposals advanced in the AM Revitalization NPRM (we summarized those proposals here), he draws the line at an FM translator set-aside. He has two “concerns”. First, he seems to think that there may already be enough translators to take care of any AM licensees who want one. Second, he questions whether any new translator filing opportunity should be limited to AM licensees only.
With all due respect, the raw number of FM translators currently authorized is irrelevant to the survival of AM stations if those translators don’t happen to be located in areas where AM stations can take advantage of them. As we have seen, the ability to move a translator to a place where it can be used by an AM licensee is narrowly circumscribed. Unless the constraints on such moves are significantly loosened, saying that there are plenty of translators around is like telling a guy in the middle of a desert that he doesn’t need to worry about water because there’s plenty of it somewhere on the planet – even if it doesn’t happen to be in the desert where he is.
As far as an AM-only window goes, Wheeler thinks that spectrum availability should be an “open opportunity” that doesn’t “favor one class of licensees” to the exclusion of others. Perhaps. But in the AM Revitalization NPRM, the Commission (of which the current Chairman was then not yet a member) considered that question. It tentatively concluded that “an applicant-limited and technically limited window … will provide immediate benefits to the AM service without materially affecting future FM translator window applicants”; by contrast, “an open window could frustrate our goal of providing expeditious relief to AM broadcasters”.
Those conclusions were, of course, tentative, so Chairman Wheeler is well within his rights to differ with them. But he should at least be prepared to acknowledge those earlier conclusions and explain why they weren’t valid or why, if they were valid, he is now inclined to ignore them.
Perhaps the most intriguing aspect of all this is Commissioner Pai’s statement applauding Wheeler’s blog post. Pai makes no specific reference to the FM translator window proposal (and Wheeler’s apparent rejection of that proposal). Does that suggest that Pai would accept a revitalization order that does not include an AM-only translator window? That would be a major disappointment to many AM licensees. There is one glimmer of hope, though. In his statement, Pai observes that “there is nearly unanimous support in the record for the ideas put forward by the Commission under Acting Chairwoman Clyburn’s leadership”. Those ideas included the AM-only translator window. Is it possible that Pai is looking to form a three-vote bloc (with fellow Commissioners O’Rielly, a Republican, and Clyburn, a Democrat) intending to embrace, among other proposals, an AM-only window? Obviously, this is pure speculation, but it’s at least something to think about.
In any event, the AM Revitalization proceeding appears to be about to break through whatever bureaucratic logjam it’s been bottled up in. We can all keep our fingers crossed. (Of course, you should check back here for updates.)