Last Train for Translators -- Next Stop, LPFM

Gregg Skall
Womble Carlyle Sandridge & Rice, LLP

"Speak softly and carry a big stick!" That sage advice from revered President Teddy Roosevelt has taken on legendary importance over the last century. In the formative days of broadcasting, it seems to have been the watchword as well. Maybe not the speak softly part, but everyone wanted a big stick.

The pioneers went for the big signals, clear channel Class A AMs, followed by Class C or Class B FMs. But there were only so many to go around and, as the Internet age dawned, individual listening became as important as group listening. Once reach could be achieved in multiple ways without a "big stick," having many sticks started to look as good, maybe better, than having one big one.

I'm talking about FM radio translators.

Because those who came later, in both AM and FM, weren't always able to obtain a signal sufficient to cover their market or reach their desired audience, in 1970 the FCC created FM translators and FM boosters as a low-power service on the FM broadcast band, at first to complement the primary FM service, and more recently AM stations, particularly daytimers. The supplementary service was intended for areas in which direct reception of radio service is unsatisfactory due to distance or intervening terrain barriers (e.g., a mountain). The maximum effective radiated power permitted is 250 watts for a translator or 20% of the main station's maximum class power for a booster station. Click Here for more on Translators.

Low-Power "Community Radio": Recently, the Commission announced its intention to open an application window in October of this year for Low Power FM Radio (or "LPFM"). There is a lot of pressure on and at the FCC to get moving with LPFM. But to get there it must first deal with the enormous backlog of still-pending FM translator applications.

Some background:

In 2003, the FCC opened a window for translator applications. Expecting a moderate level of filing, it received instead an avalanche of over 13,000 translator applications. Without a limit on the number of translators one could apply for or own, some applicants applied for hundreds, even thousands. However, pressure for new entry into radio broadcasting had also been building, and shortly after the new translator window, Congress got involved. The focus turned to LPFM and resulted in the Local Community Radio Act of 2010 ("LCRA"), with a mandate to open an opportunity for new entry into broadcasting through this new service. However, to make way for new low-power radio stations, the Commission would first have to deal with the approximately 6,500 applications that remain pending from the 2003 FM translator window. The LCRA required to FCC to do just that.

The "Hobson's Choice" of Translator Applications

First, the Commission had to find a way to reduce the backlog produced by multiple filers, and then get the unopposed remaining applications processed and granted. Last December, the Commission announced that all applicants subject to either the "National Cap" of 70 applications (only 50 in Spectrum Limited-Markets) or with two or three applications subject to the per-market "Market Caps" would have to choose which among its multiple applications it would prosecute and which to dismiss by January 25th, 2013. The choice had to be made based on the facilities specified in their pending applications, without amendment. By mid-February, the staff had already dismissed over 3,000 of these so-called "Tech-Box" proposals pursuant to applicant requests or for failure to file selections by the January 25th deadline.

The next step came on February 26th. The Media Bureau opened a window for filing Form 349 construction permit applications for the 713 "tech box" proposals it had determined were unopposed "singletons" and listed them in an attachment. By this action, the Commission not only authorized new translators for many FM and AM stations in need of expanded or more efficient coverage, but it also advanced the goal of getting closer to an LPFM filing window. The window closes March 28th and is only for singletons -- that is, timely filed proposals that are not mutually exclusive with any other applications and that specify a transmitter site (1) outside all Spectrum Limited markets and (2) not within 39 km of any Spectrum Limited market grid. These "singleton" applicants will be spared having to participate in a Commission auction.

Assuming that will take care of the singletons, what comes next for the mutually exclusive translator applications that remain after the January 25th "slimming down" that resulted from the National and local cap application paring?

FCC Audio Division officials have indicated they will offer the remaining mutually-exclusive commercial radio applications that made it through the National Cap and Per-Market Caps an opportunity to amend or settle in order to remove their mutual exclusivity before setting them for auction. They expect to issue a settlement window Public Notice within a couple of months.

WARNING: Applicants can expect only one opportunity to amend or settle. This window will be an exception to the general anti-collusion rule that prohibits discussion, or settlement, between applicants following the filing of an FCC "short form" application. After this window, the balance of mutually exclusive applications will be set for auction. Given the process and what it will take to get to this point, it is not anticipated that the auction can occur before sometime in 2014.

LPFM October Filing Window

With the backlog of pending translator applications pared and trimmed, singletons granted, a settlement window behind it and an auction of a known group of mutually-exclusive applications in front of it, the FCC will be in shape to open the LPFM application window as promised, on October 15th. The plan is to be done with the translator process, so that there is a known spectrum pool for LPFM applications. To facilitate the process, it is expected that the translator settlement window will likely permit unlimited payments, not restricted, as usual, to reimbursement of actual expenses incurred in prosecuting a bought-out applicant.

Further, while a decision has yet to be made, if the non-commercial educational "NCE" box was checked, the staff appears open to allowing an applicant to uncheck the option so it can participate in the commercial pre-auction settlement window. However, should such a non-commercial party have multiple applications, it may not be able to pick and choose which it wants to uncheck. It may be all-in or all-out.

In determining which applications can be amended to eliminate mutual exclusivity, applicants are reminded that, although Section 3 of LCRA did away with 3rd adjacent channel protection, absent a bona fide interference complaint, it directs the Commission to "comply with existing minimum distance separation requirements" for stations that broadcast radio reading services. Therefore, the Commission has retained 3rd adjacent channel protection for FM stations that broadcast radio reading services.

Conclusion:

I am often asked, particularly by an AM broadcaster, whether a one can still apply for a new FM translator. This discussion should put that question to rest: The freeze continues and there is now a plan to get beyond the logjam created by the overwhelming horde of applications filed in the 2003 auction window. LPFM will be next on the agenda, most likely even before the remaining mutually-exclusive translator applications find their way to auction. The best way to obtain a translator is to look for one in the current list of singleton applicants or to seek a deal with the applicant for one that can be obtained through settlement.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.