A New System For FM Translators Gets Underway

By Gregg P. Skall
Womble Bond Dickinson (US) LLP

Last month the FCC adopted new rules to deal with the problem of claims of interference between full-power FM stations and the ever-growing number of FM translators serving both AM and FM stations. By some accounts, the tremendous increase in the number of FM translators created by the FCC's Revitalization of AM initiative, has also resulted a significant increase in interference to full-power FM stations. In May, the Commission released a draft Report and Order acknowledging the need to act. It noted the substantial growth in the number of FM translators as well as the increased financial importance of these translators to many AM stations and their increased use by FM stations rebroadcasting for digital sub-channels. On May 9th, it acted and adopted a Report and Order.

Any Channel Minor Change

In its new order, the most important change adopted by the Commission might be to allow FM translator stations to remediate interference, caused to or received from another broadcast station by changing its channel to any available same-band frequency as a minor change, provided that the request includes a showing of actual or predicted interference to or from any other broadcast station. Previously, the rules limited such changes to the first, second or third adjacent channel or the IF channel of the licensed translator. Note however, allowing the channel change as a minor modification, does not affect other minor change requirements, most importantly, that the translator must continue to provide service to some portion of its existing service area. Further, when the interference complaint comes from a new or modified full-power station, the Commission may condition the grant on the actual construction of the new or modified full-power.

Effective August 13th

Despite the fact that the order was issued over a month ago, it has yet to become effective. But what if a translator licensee jumped the gun and filed already, based on the adoption of the order. Knowing that the Commission had adopted the "any channel change" rule, many translator owners have been "itching" to file. Fortunately, the Commission just announced that the rule change will become effective on August 13th, 2019. So, beginning August 13th, a minor change application to any available frequency will be possible and may be filed, providing additional flexibility to those translators met with interference complaints in moderately or less congested frequency areas where unused channels are available but could not change to an adjacent or IF channel.

Slight Complications

Since the order came was adopted on May 9th, some translator owners may have already filed their minor modification application based on the order. That could prove problematic. The FCC's audio division staff seems to be taking the position that any FM translator modification application seeking to utilize this rule, but filed prior to the effective date of August 13th, will be subject to dismissal. This is particularly important since these applications are treated on a first-come, first-served basis.

To the extent that an existing full-power station might consider the channel change application a source of new interference to them, they may file an objection seeking dismissal as an untimely filed application. However, that also may be problematic. The part of the order that provides new section 74.1204(f) pre-grant objection rules is still awaiting OMB approval, and therefore it is not yet effective. If not approved and effective by August 13th, then presumably an objector will have to use the interference criteria specified under current section 74.1204(f). But if OMB approval comes before the FCC makes a decision, an old 74.1204(f) showing may be insufficient to succeed.

The effective date of August 13th also presents the issue of whether a minor modification frequency change filed prior to August 13th will take precedent as first-come first-served over one filed after August 13th, if it is not dismissed. Even more perplexing; how will the Commission treat existing FM translator applications that have been properly filed as a minor modification with a waiver request to move beyond a nonadjacent channel.

Conclusion

The bottom line is that we are in a state of transition that has some significant uncertainties that need to be dealt with and addressed by any translator licensee facing interference issues with the need to move beyond the first, second or third adjacent channels in order to find a clear frequency to serve its market. In any event, if there is actual or potential interference in the current channel and no available adjacent channel, being ready and filing on August 13th for a new non-adjacent channel may be critical, particularly if other translators in the vicinity face similar problems.

In addition, broadcasters should be alert to the other significant changes made to the translator interference criteria and burden of proof in the new FCC rules. These changes may affect a full-power station's ability to file a successful complaint, or if you are the translator operator, defend against one. Stay tuned to a future article.

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.