By: David Oxenford, Wilkinson Barker Knauer LLP,
On December 4, the FCC released the Public Notice setting out the instructions for the final window for AM stations to get exclusive access to FM translator stations. This window, to be open in late January, is primarily for Class A and B AM stations that were not permitted to file in this summer’s window when Class C and D AM stations could file for new FM translators. But any AM licensee who did not file in this summer’s window, and who also did not acquire a translator last year during the period when AM licensees could acquire existing FM translators and move them up to 250 miles to rebroadcast their AM station, can also participate.
The final window will be open from January 25 through January 31. As in this summer’s window, mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. Resolving mutually exclusive applications can be done only by filing settlements or technical amendments that comply with the minor change rules – meaning that the amendments 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 cannot amend to any vacant channel that may be available in their area. In this summer’s window, most applicants were able to avoid mutual exclusivity with other applicants – but not all (as witnessed by the mutually exclusive groups that had until last week to settle their differences through dismissals for no more than out-of-pocket expenses or by engineering amendments – see our article here).
Like in this summer’s window, this Public Notice is complicated, as the FCC is treating these applications as those filed in preparation for an auction (see our post on the instructions for the summer window here). Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a future 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 once an application is on file, mutually exclusive applicants can’t talk to each other about their applications except during these designated settlement windows.
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 January 18 through January 31.
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 last opportunity reserved for AM licensees to get a new FM translator.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.