Late yesterday, the FCC released the Public Notice setting out the instructions for the upcoming window for Class C and D AM stations to file for new FM translators. The window will be open for the submission of applications from July 26 to August 2 – and mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. This is a very complicated Public Notice, as the FCC is treating these applications as those filed in preparation for an auction. Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a yet-to-be-announced settlement window when engineering solutions to resolve conflicts between applications filed in the window will be allowed. There actually is a rule against “prohibited communications” outside of the settlement window – meaning that mutually exclusive applicants can’t talk to each other except during these designated settlement windows.
Resolving mutually exclusive applications is also not as easy as some may have thought. Applicants can resolve conflicts only by filing settlements or technical amendments that comply with the minor change rules – meaning that they can only amend to different sites on the same channel, or on channels three up and three down from that initially specified, or a channel precluded from use by the initially proposed channel because of Intermediate Frequency interference. Applicants, under the rules announced yesterday, cannot amend to any vacant channel that may be available in their area (a restriction different than that allowed in some past secondary service windows in the past – such as that opened for LPFM applicants).
This may be to preserve some channels for applicants in the next window – one to be announced in the future for all AM stations (including Class A and B AM stations) to file for new translators. But that second window will only be open to AM stations that did not rely on the 250 mile waivers in last year’s AM Revitalization windows (see our article here) or in this first upcoming window. AM stations that previously obtained translators for their stations without relying on the 250 mile waiver last year, however, are not precluded from filing for another translator in the upcoming window. Once an application is filed in this window (or if one was filed last year in reliance on the 250 mile waiver), even if it is ultimately dismissed, the applicant who submitted the application cannot take advantage of a subsequent window. So it would seem that mutually exclusive applications filed in this upcoming window, that cannot file a minor change application to resolve their conflict, will not have another chance to file for a translator in the second window later in the year.
And, as noted above, these applications are not the simple application for an FM translator construction permit that many applicants might be used to filing. Instead, they are auction applications which require certain auction-related disclosures to be acceptable. Hopefully, the FCC will be holding some sort of training session for these applications, as I expect that some small AM stations that may be interested in filing in this window will come away baffled by the auction instructions. As noted above, these rules include the restrictions on prohibited communications – forbidding applicants with applications that are mutually exclusive from talking about auction strategy or tactics, which would seemingly include trying to settle the conflicts – except during designated settlement windows. So, while you can consider engineering solutions to resolve conflicts with your engineer, don’t convey the potential solution to other applicants except when the FCC tells you that you can do so.
As part of the Public Notice, the FCC also announced a filing freeze on any technical changes to existing translators so as to freeze the database that applicants will use to prepare their applications. The freeze will be in effect from July 19 until August 2.
In short, read these instructions carefully, and go over them with your attorney and engineer to make sure that you don’t inadvertently overlook some requirement that would result in your missing this opportunity to get a new FM translator for your AM station.
