FIRST REPORT AND ORDER, FURTHER NOTICE OF PROPOSED RULE MAKING, AND NOTICE OF INQUIRY
Released: October 23, 2015
Here's our briefing paper on the FM Translator modification windows (existing FM Translators Only) and the follow-on FCC auction windows for new FM translators (to be associated with AM facilities only).
First a little housekeeping on the part of the Commission - the staff has been directed by the Commission to dismiss any pending "Tell City" waiver applications.
PENDING TELL CITY WAIVER REQUESTS - footnote 38.
"We note that the pending Tell City waiver request could likely qualify for processing under the waiver procedures announced herein. However, in order to promote a fair process for all AM stations in reallocating FM translator spectrum, including to spectrum limited markets, we will not afford that proposal cut-off rights over other filings. We also direct the Media Bureau to dismiss, without further consideration, waiver requests filed prior to and in anticipation of the opening of the modification application filing windows."
They also make it clear that the proposed FM translator AM only windows are an either or situation, not both.
CHOOSE MODIFICATION OR AUCTION PATH (WINDOWS) - NOT BOTH -footnote 40.
First a little housekeeping on the part of the Commission - the staff has been directed by the Commission to dismiss any pending "Tell City" waiver applications.
PENDING TELL CITY WAIVER REQUESTS - footnote 38.
"We note that the pending Tell City waiver request could likely qualify for processing under the waiver procedures announced herein. However, in order to promote a fair process for all AM stations in reallocating FM translator spectrum, including to spectrum limited markets, we will not afford that proposal cut-off rights over other filings. We also direct the Media Bureau to dismiss, without further consideration, waiver requests filed prior to and in anticipation of the opening of the modification application filing windows."
They also make it clear that the proposed FM translator AM only windows are an either or situation, not both.
CHOOSE MODIFICATION OR AUCTION PATH (WINDOWS) - NOT BOTH -footnote 40.
"AM licensees and permittees will be eligible to participate in either one modification or one auction window, but not both."
"AM station assignments or transfers during the multi-window process will not create an opportunity for new owners to participate in an auction window when the former licensee participated in a modification window."
...and then this little tidbit about periods of association with the AM station (the primary station to be rebroadcast).
IF AN FM TRANSLATOR IS ACQUIRED DURING THE AUCTION WINDOWS, IT IS FOREVER LINKED TO THE AM PRIMARY STATION -paragraph 17 of the report and order.
AND if acquired during the modification window, it is linked to the AM station for 4-years.
This exactly like those facilities that have been authorized under the "Mattoon" waiver being currently granted.
The difference between the two mandates is because on the one hand - the modification acquired FM translator is an existing permit (in the spectrum inventory), while a permit for a new FM translator acquired at auction is exactly that, new spectrum. It is also being made for a particular purpose - to aid AM stations.
This prevents an AM licensee from warehousing or other financial speculations in FM translators or moving them around to other stations within its local cluster. If you go the auction route, then you are forever linked.
The Commission (I think) seeks to control the inventory to protect other users in the band (LPFM and traditional FM to FM translators).
Now on to the main event:
ONLY ONE TRANSLATOR PER AM FACILITY IS TO BE ACQUIRED UNDER THESE WINDOWS (AUCTION OR MODIFICATION).
Got it? One-per-facility.
OUTREACH PROGRAM & ALLOCATION TOOL(S)
The Media Bureau will "Establish a 3-MONTH Outreach Program - and Spectrum Tool." to educate AM station owners.
"We direct the Media Bureau to expeditiously initiate a three-month outreach effort to promote Class C and Class D participation in this modification window filing process; to develop, as practicable, technical tools similar to those created for the LPFM window to assess spectrum availability and potential FM translator acquisition options; and to establish streamlined procedures for handling inquiries from the AM and FM translator broadcast community."
"We also direct the Media Bureau to open the modification windows upon completion of this outreach."
Good luck with that spectrum tool! - I don’t see it being easily done, there are too many variable to consider, variables in which you need the assistance of a seasoned professional to help you. Unlike LPFM which is for the large part a based upon fixed distances to other facilities (the exception being inference waiver request to the 2nd adjacent channel stations). FM translators are contour to contour. Each proposal and site presents it own set of circumstances. Plus of course the various waiver requests to 2nd and 3rd adjacent channels, antenna options to support the wavier requests, etc., etc., and of course the maximum power to stay within the prescribed AM contour or distance. For this and other important considerations, I doubt that any tool that the FCC develops will be that useful. Seriously, you need people like me to sort it out (shameless plug call 703-848-2130).
Then following the educational program - two FM translator modification windows will be opened.
Theses are "one-time" only modification windows that will be opened by AM Station Class.
Theses are "one-time" only modification windows that will be opened by AM Station Class.
The first window will be for Class C (local channel) and D (daytime) stations only. The second will be for all stations (including those Class C and D stations that did not participate in the first window.)
It will offer the ability for an AM facility to "acquire non-reserve band facilities within in 250 miles and specify any rule compliant non-reserve channel as a minor modification.
Non-reserve means channels 221 to 300 only. No reserve band hopping. You can't move an NCE operating in the reserved band to the non-reserve band - that is what we call "band hopping." Reserve to non-reserve or non-reserve to reserve, the FM band is actually two band in one. The frequencies from 88.1 to 91.9 (channels 201-to 220) make up the reserve portion of the FM Band. So while you can pick/purchase any FM translator within the distance requirements and move it to your community - make sure that it starts out on a frequency of 92.1 or greater (the non-reserve portion of the FM band.)
I'M A NCE AM STATION LICENSEE, CAN I PICK A NON-COMMERCIAL (RESERVE FM BAND) STATION TO BUY OR USE AS A NON-COMMERICAL FM CHANNEL FOR MY TRANSLATOR?
No you can't - your licensee status (commercial/Non-Commercial Educational) does not apply. You may only use the non-reserve FM channels to move (buy) or use at your location.
FINDING A FM CHANNEL/FREQUENCY TO USE - IS ANYTHING OPEN/USEABLE IN MY AREA?
None of this works unless you have a channel available in your area. So first determine if there is a channel available in the non-reserve section of the FM band (channels 221 and above).
An important consideration to keep foremost in your potential FM translator frequency/channel selection is: "Is the channel survivable?"
Each day this firm and others do battle with existing full-service facilities and FM translators over interference issues.
We often find ourselves being advocates for full-service FM facilities in their efforts to limit interference to their signals from secondary services - it's what we do.
It's important to remember that all FM translators are "secondary services" and must not cause interference to a regularly received signal from a "full-service" facility, regardless of signal level of the full-service facility. Huh? Yes, armed with a hand-full of letters from listeners receiving interference from your newly acquired FM translator, your operation can be shut down. Choose you frequency wisely, and better yet, watch with care the conditions in your purchase agreement. Many agreements have a 1-year (more or less) no interference complaint clause, in addition to the usual FCC grant contingency's. All of this is tied back to purchase amount.
It is without a doubt one of the new "battle" fields in spectrum usage. We can prove that a channel works under the FCC rules and various grantable waivers, but if it causes provable real world interference to a full-service station it's gone. Never use a frequency for an FM translator that appears like it might be a problem with a co-channel or 1st adjacent channel full-service station, the survivability factor near zero if you do in our opinion.
Again you may meet the FCC rules regarding interference and protected contours to and from your proposal - but you might run afoul of real-world full-service facility listeners beyond the full-service's protected contour. The protected contour is a misnomer in this case, real-world listeners complaints trumps all when it comes to use of a secondary authorization.
The phrase "Buyer beware" has never been more important.
WHAT IS THE DISTANCE TO BE USED FOR MY SHOPPING CART?
The distance of 250 miles is a bit sketchy - is it 250 miles from your AM site, 250 miles from your community of license reference point, or is it 250 miles from the translators current site to the new site?
I believe that the distance limitation is from the FM translators current licensed location or unbuilt CP authorization to where you want to put it. Site to Site distance.
The FCC has confirmed that the distance is from the FCC translator - "We will measure from the existing FM translator licensed site (or permitted site for unbuilt stations) to the proposed FM translator site. The AM location doesn’t factor into that equation, except that the translator will obviously need to comply with the fill-in rule."
I believe that the distance limitation is from the FM translators current licensed location or unbuilt CP authorization to where you want to put it. Site to Site distance.
The FCC has confirmed that the distance is from the FCC translator - "We will measure from the existing FM translator licensed site (or permitted site for unbuilt stations) to the proposed FM translator site. The AM location doesn’t factor into that equation, except that the translator will obviously need to comply with the fill-in rule."
Do you really need another reasons to call us? (703-848-2130)
I FOUND AN FM TRANSLATOR, BUT ITS CONSTRUCTION PERMIT IS ABOUT TO EXPIRE - WHAT CAN I DO?
The Commission may be able to help you out - Is this an FM translator that was acquired in Auction 83 and has never been built (licensed)?
HERE'S WHAT THE REPORT AND ORDER SAYS ABOUT THAT - SEE FOOTNOTE #36 IN THE R&O.
"A substantial majority of the approximately 1300 outstanding Auction 83 construction permits are scheduled to expire in 2016."
"Modification applicants in one of these two modification windows may seek waivers of these construction deadlines. See 47 C.F.R. §1.3. Waivers can expand cross-service broadcasting opportunities for AM stations, will allow AM licensees to realize service improvements quickly, will incentivize FM translator permittee participation in the modification window process, and will provide a means to avoid the delays and administrative burdens of re-auctioning this spectrum."
"Accordingly, we find that a waiver of an Auction 83 FM translator construction deadline is presumptively in the public interest for applicants participating in one of the modification windows, provided that the AM station licensee proposing to use the FM translator for rebroadcasting its AM station commits to prompt FM translator station construction and initiation of broadcast operations."
[The timeline below is my own estimate - I’m not overally optimistic.]
2ND QUARTER 2016 FIRST MODIFICATION WINDOW.
THE FIRST MODIFICATION WINDOW OPENS TO ONLY CLASS C AND D STATIONS
(Local Channels and Daytime Only).
This is a one-time window opportunity to acquire and move a non-reserve FM translator facility within 250 miles of presumably the current location of the FM translator.
I personally believe that the FCC really means up to 250 miles from the translator's current authorized site - but will ask for a clarification) and to specify any rule compliant non-reserve channel as a minor modification at a location the qualifies for use as an FM translator for your AM station.
The window will be open for a 6-month period - first come, first serve cut-off list. During the window period, the FCC will accept applications as minor change applications - to relocate the FM translator to your area. It you're a broadcaster and need help call us.
This is a six-month period - those that act first will be in better shape than those that wait. Your application is protected (cut-off) on the day you file from other applicants. If for example there is only 1-available frequency in your area for use by an FM translator and you have two applicants for the frequency - whomever files first for the frequency/channel will be protected from any additional competing applications.
1ST QUARTER 2017 SECOND MODIFICATION WINDOW
SECOND WINDOW OPEN TO ALL OTHER CLASSES INCLUDING C AND D STATIONS THAT DID NOT PARTICIPATE IN FIRST MODIFICATION WINDOW.
I personally believe that the FCC really means up to 250 miles from the translator's current authorized site - but will ask for a clarification) and to specify any rule compliant non-reserve channel as a minor modification at a location the qualifies for use as an FM translator for your AM station.
The window will be open for a 6-month period - first come, first serve cut-off list. During the window period, the FCC will accept applications as minor change applications - to relocate the FM translator to your area. It you're a broadcaster and need help call us.
This is a six-month period - those that act first will be in better shape than those that wait. Your application is protected (cut-off) on the day you file from other applicants. If for example there is only 1-available frequency in your area for use by an FM translator and you have two applicants for the frequency - whomever files first for the frequency/channel will be protected from any additional competing applications.
1ST QUARTER 2017 SECOND MODIFICATION WINDOW
SECOND WINDOW OPEN TO ALL OTHER CLASSES INCLUDING C AND D STATIONS THAT DID NOT PARTICIPATE IN FIRST MODIFICATION WINDOW.
This one time window is exactly like the first, with the exception that all AM facilities may apply, and it is only for a 3-month period. BUT remember if you applied during the first window, you do not get another bite of this apple.
However if you haven't applied at it for whatever reason this is the time to it, (presumably that you have a translator you can move into your service area.
The one MAJOR point to keep in mind - if you apply in either of these two modification windows you can not apply during the auction windows for new facilities. So if for whatever reasons your deal to acquire the existing translator goes astray - you may be out of luck (clarification needed from the FCC on this point).
FM Translators acquired in modification windows 1 and 2 above , must be associated with the AM primary station for a period of 4-years.
Now that the FCC has opened and closed the two modification windows - its time for them to clean up the left-over 2003/2013 FM Translator filing window stragglers.
2ND QUARTER 2017 CLEAN UP FM TRANSLATORS LEFT OVER FROM WINDOW 83
BEFORE OPENING A NEW FM TRANSLATOR WINDOW (i.e. NEW MEANS "NEW")
"We also direct the Bureaus to hold an auction for all remaining mutually exclusive commercial Auction 83 applications following the completion of the Incentive Auction, Auction 1000, and prior to the first FM translator auction window."
The Incentive Auction is part of the TV spectrum auction and for some absurd reason the FCC believes that it is on-track and on-time. I don't think so, if for no other reason than these things rarely unfold in the manner that man decides ("Man plans, God laughs.")
But if they can pull it off, then lets move on to the fall or winter of 2017.
3rd AND 4th QUARTER 2017 TWO AUCTION WINDOW FOR NEW TRANSLATORS
For those AM licensees and permittees that do not (did not) participate, i.e., file an application, in one of the modification windows ONLY.
FIRST AUCTION WINDOW FOR NEW FM TRANSLATORS
CLASS C AND D STATION ONLY.
The first FM translator auction window, as with the initial modification window, is limited to Class C and D AM station permittees and licensees that have not participated in either modification window.
SECOND AUCTION WINDOW - ALL OTHER STATIONS (AFTER SETTLEMENT WINDOW OF 1ST AUCTION WINDOW)
The second FM translator auction window, to be opened "as soon as possible" after the first window has closed AND applicants in the first window have had an opportunity to resolve mutual exclusivity through settlement or technical resolution, will be open to all AM permittees and licensees that have not participated in any of the prior modification or auction windows.
Remember, that those facilities acquired via the "NEW" facility auction path, are bound to the primary station forever, and can not be assigned at a later date to another primary station. If the primary ceases to exist so does the secondary station (the FM translator).
