A Harder Highway For Permanently Hushing An FM Translator

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RBR+TVBR OBSERVATION


By Greg Masters
Wiley Rein LLP

WASHINGTON, D.C. — FM translators have become a more pervasive and important component of terrestrial radio broadcasting than ever before.  Aided by the FCC’s AM revitalization initiative and increases in programming services via FM digital multicast streams, the number of authorized translator stations has increased sharply in recent years, as have the opportunities for translator licenses to carry considerable value through sale and rebroadcasting deals.

At the same time, interference disputes between translators and the owners of full-power FM stations (which have primary status over translators) have become more frequent, as more and more translators go online and nip at the edges of listenership to co- and adjacent channel full-powers.

It’s become apparent that the FCC is grappling with translators’ enhanced role in the radio world and is somewhat recalibrating the balance between translator value and full-power station protection.  This is most evident through the agency’s overhauled rules for the handling of interference complaints against FM translators, which among other things require a minimum number of complaints by listeners of the “victim” full-power station (it used to take only one), and for the first time establish an outer service contour of the full-power station beyond which listener complaints will not be considered.

A June 2019 decision by the FCC’s Audio Division could be read as a further, more subtle indication that the agency is looking at FM translators in a more permissive light.  The case involved an objection to a series of technical modification applications that, taken together, relocated a translator roughly 40 miles from its originally licensed community to downtown Chicago.

The long-distance relocation of FM translators through multiple “hops” has been a recurrent practice over the last decade or so.  As a general rule, when a translator changes sites, there must be some degree of overlap between the coverage contours of the old facility and the new.  Otherwise, the move is considered a “major change” that must be subjected to competing applications (i.e., must be submitted in a filing window open to everyone).  So, the translator “hopper” obtains a permit to move from site #1 to site #2 (maintaining contour overlap); builds the translator at site #2; obtains a covering license, operates for some period of time, and promptly applies for a new construction permit at site #3 (which has contour overlap with site #2).  The process repeats until the translator reaches its ultimate destination, typically in or around a metropolitan area or otherwise more populous locale, enhancing the translator’s value.

The FCC has from time to time waived the “major change” rule in the interest of AM revitalization—most recently in its two “250 mile” application windows, in which it allowed translators to propose moves of up to 250 miles in order to rebroadcast AM stations.  But outside these exceptions (and the case under discussion did not involve an AM primary station), the FCC has looked askance at the practice of serial modification, finding that it undermines the goal of preventing translators from abandoning their service areas and prejudices the rights of would-be competing applicants.  In fact, in 2011, the FCC’s Audio Division stated flatly that “[w]e believe the filing of serial modification applications represents an abuse of process.”

Now back to last month’s case:  the translator in question was originally authorized to serve Beecher, Illinois, a community of roughly 4000 located about 40 miles due south of Chicago.  Three times in succession, its licensee filed for and obtained authorization to move the translator closer to Chicago.  At each stop, the licensee constructed facilities, applied for and received a covering license, operated for some time at the intermediate site, and in short order filed applications for the next move.  Its fourth application, proposing a move into downtown Chicago, drew an objection from a Chicago LPFM station.  The objection claimed that the translator’s serial modifications should be disallowed as an abuse of process—citing, among other things, the Audio Division’s 2011 statement that serial modifications were exactly that.

The staff’s response could perhaps best be characterized as “well . . .  maybe.  It depends.”  Stepping back from its uncategorical 2011 proclamation, the Audio Division set forth a four-factor test for determining whether a serial modification mounts to an abuse of process:

  • Temporary construction at the interim sites: is there evidence to indicate that the translator operator intended the facility at each modification site “as simply a waystation on its path to its final destination”?  The Division cited a prior case in which it had found abuse of process, in large part because the applicant had no reasonable assurance of site availability at its intermediate sites and employed generator-powered portable antennas that were quickly taken away after a covering license application was filed.
  • Duration of operation: how long did the translator broadcast from each intermediate site?  Were long periods of silence involved?
  • Alternative purposes: were the applications filed for “demonstrably legitimate” purposes, such as unexpected tower damage or resolution of interference issues?
  • Pattern of translator relocations: do the serial applications represent a “straight-line march[]” to the intended destination? Is there a clear incentive to avoid the major change rule, such as increasing signal coverage in a densely populated area?

Applying these tests, the Audio Division found that the Beecher-to-Chicago facts weighed in favor of abuse of process under the last two of these tests:  there was no indication that the applications were filed “due to interference or any other clearly legitimate reason,” the modifications paved a straight path into downtown Chicago, and the ultimate destination was obviously a lucrative urban area.  But, since there was no evidence that the intermediate sites were merely temporary and incapable of long-term operation (two of the sites were on existing towers), and because the translator was operated from two of the intermediate sites for more than a year, the “temporary construction” and “duration of operation” factors did not support an abuse-of-process finding.

Ultimately, the Audio Division concluded that, taken as a whole, the evidence did not support a finding of a deliberate and abusive attempt to evade the major change rule, and it approved the translator’s fourth step into downtown Chicago.

The complaining LPFM operator has petitioned for reconsideration of this decision, and it will be interesting to see what happens there and in other cases involving serial modifications.

To be clear, the above discussion is not intended either as support or criticism for the result in the case—I have represented both sides in translator/full-power skirmishes.  I do think, however, that last month’s decision is another indicator that the FCC is recognizing the enhanced profile of FM translators in today’s radio industry.  Just as it has raised the bar for full power stations to lodge a valid interference complaint against a translator, here it has heightened the standard to challenge a multiple-hop relocation.

The takeaway, in my view, is that it’s becoming harder to take down a translator through FCC action than it used to be.

 


Greg Masters is a Partner at Wiley Rein in Washington, D.C. He is widely regarded as an experienced regulatory and transactional attorney who advises national, regional, and local media companies on regulatory compliance, structures and negotiates media transactions, and represents media companies in enforcement actions and disputes.

The views expressed by the writer are not those of Streamline Publishing or its audio industry publications: Radio + Television Business Report, Radio Ink or Podcast Business Journal.