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Commission Seeks
Comment On Modified FM Translator Application Processing Procedures Comments Due
August 29, 2011 Reply Comments Due
September 12, 2011
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As a consequence of
enactment of the Local Community Radio Act of 2010 (“LCRA”), the Commission
is seeking comments regarding proposed changes to the processing procedures for
the approximately 6,500 pending FM translator applications remaining from
more than 13,000 applications filed in the Commission’s 2003 FM Translator
window. Comments in this proceeding are due August 29, 2011, with
reply comments due September 12, 2011. In 2005, the Commission
froze its processing of these new and major change
translator applications due to concerns that such processing could
significantly limit the future licensing of low power FM (“LPFM”)
stations. In 2007, the Commission adopted a processing standard that
limited each applicant in the 2003 window a nationwide maximum of 10
then-pending FM translator applications. The LCRA, which was signed
into law earlier this year: (i) eliminated the minimum distance
separation requirements for LPFM stations on “third-adjacent” channels;
(ii) established criteria for the FCC to consider in processing FM
translator, FM booster, and LPFM stations; (iii) obligated the FCC to
ensure a minimum number of LPFM licensing opportunities; and (iv) directed
the Commission to resume processing of the remaining translator
applications. The proposed changes in processing procedures have been
released for public comment to comply with the requirements of the LCRA. Proposed Modification
of FM Translator Application Processing Procedures 1. To provide some
minimum number of LPFM licensing opportunities in as many communities as
possible, as required by Section 5(1) of the LCRA, the FCC proposes to
eliminate the ten-FM translator application cap processing standard.
Although the FCC found that while reliance on the cap would result in the
dismissal of a significant number of FM translator applications, there would
be no guarantee that the processing guideline would free up significant
additional spectrum for new LPFM opportunities in many communities. A
study undertaken by the FCC’s Media Bureau found that, unless all pending
translator applications currently “blocking” new LPFM opportunities were
dismissed, no channels would be made available for LPFM operation in 13 of
the top 30 markets and only one or two channels would be made available in
six of the other top 30 markets. The Commission proposes to
adopt a market-specific FM translator application dismissal policy.
Under this proposal, the FCC would set Arbitron-based, market-specific
“service floors” to ensure a minimum number of channels would be available
for LPFM service. Specifically, the FCC proposes that in Arbitron
markets 1-20, the service floor would be eight LPFM channels; in markets
21-50, the service floor would be seven LPFM channels; in markets 51-100, the
service floor would be six LPFM channels; and in markets 101-150 – and
smaller markets with more than four FM translator applications pending – the
service floor would be five LPFM channels. In determining whether there
are LPFM channels “available,” the Commission questioned whether existing
translator and LPFM licenses should be taken into account, stating that
language in the LCRA could suggest that future licensing decisions should
ignore existing translator and LPFM stations. Noting that 1,921
translators are licensed within the top 200 Arbitron markets, as compared to
290 LPFM stations that operate in those markets, the Commission stated that
this could favor dismissal of translator applications, at least in markets
where there is little or no remaining spectrum available for future LPFM
stations. If the service floor
proposal is adopted, the FCC proposes to resume immediately the processing of
pending FM translator applications in markets where sufficient spectrum would
remain available for LPFM service based on that market’s service floor
minimum. In markets where the number of available LPFM channels is
below the market-specific service floor, the FCC proposes to dismiss all
pending new FM translator applications. After the dismissal of those
applications, the Commission would open an LPFM-only window, possibly as
early as the summer of 2012. Upon substantial completion of processing
of the resulting LPFM applications, the Commission would then anticipate
opening a new FM translator-only window. 2. The Commission
proposes to modify its settlement procedures such that mutually exclusive
applicants would no longer be allowed to modify their applications to specify
adjacent channels or alternate transmitter locations. While such
amendments can eliminate prohibited interference between competing
applications and make them grantable, these amendments could block existing
spectrum on channels otherwise needed to ensure a market-specific LPFM
service floor remains available. To preserve the opportunity
for LPFM facilities in spectrum-limited markets, the Commission imposed an
immediate suspension of processing of any pending “move in” translator
application that proposes a transmitter site for the first time within any
market that has fewer LPFM channels available than the proposed channel
floor. The Commission implemented a freeze on the filing of new
“move-in” translator applications and directed the Media Bureau to dismiss
any such application filed since July 12, 2011; the freeze does not
apply to applications that seek to relocate a station’s transmitter site to
another location within the same spectrum-limited market. Review of FM
Translator and LPFM Service and Priority Status As the LCRA directs the FCC
to make licensing decisions based on the “needs of the local community,” the
Commission seeks comment on whether and how to compare the FM translator and
LPFM services in assessing local community needs. The Commission noted
that FM translators originate programming only in narrow circumstances, do
not have minimum community service contour requirements, and are not required
to broadcast issue responsive programming or maintain issues/programs
lists. In contrast, the LPFM service was created to “foster a program
service responsive to the needs and interests of small community groups,
particularly specialized community needs that have not been well served by
commercial broadcast stations.” The Commission also seeks
comment on the LCRA’s requirement that LPFM and translator stations “remain
equal in status and secondary to existing modified full-service FM
stations.” The FCC seeks comment on whether this obligation limits its
authority to waive the application processing cut-off rules in order to give
a later-filed LPFM application priority over a pending FM translator
application. While the Commission recited a number of factors seeming
to prohibit a waiver of the cut-off rule, it noted that doing so could allow
all existing translator applications to remain pending until after a new LPFM
window. Ultimately, only those translator applications in conflict with
new LPFM applications would be dismissed. Use of FM Translators
to Rebroadcast AM Stations In 2009, the Commission
authorized the use of FM translators authorized as of May 1, 2009, to
rebroadcast the signals of local AM stations. The Commission seeks
comments on whether that right should be extended to stations for which
applications were then pending but not granted until after May 1, 2009,
noting anecdotal reports of the ability to use FM translators having allowed
many AM licensees to increase coverage of local community issues, provide
timely information concerning governmental and school schedules, and better
serve the needs of their communities. The Commission also asks whether
its proposed FM translator processing changes would provide sufficient LPFM
opportunities to support this revision. Potential Licensing Abuses
Through Trafficking of Translator Construction Permits and Licenses The Commission expressed
concern that some parties may have abused the FCC’s translator licensing
procedures, noting that the top 15 applicants in the 2003 window filed
approximately one-half of the 13,377 applications, while nearly
80 percent of the remaining applicants submitted five or fewer
applications each. The Commission tentatively concluded that the LCRA
did not limit its ability to address potential abusive behavior. The Commission
seeks comment on whether it should establish a cap on the applications that
would remain pending in non-spectrum limited markets and unrated markets –
that is, whether the adoption of a cap of 50-75 applications would force
filers to concentrate on proposals in markets where they have a bona fide
interest. The Commission also seeks comment on whether applicants
should be restricted to a small number of applications in a single market and
other possible approaches to protect against abuse in the translator
licensing process. If you have any questions
about the FCC’s FM translator or LPFM application processing procedures, or
would like to submit comments regarding the FCC’s proposed changes to those
procedures, please contact any attorney in our office. August 15, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
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