The FCC on Tuesday (10/30) released a Public Notice announcing a settlement window for mutually exclusive applicants in the Special Displacement Window where LPTV stations and TV translators are displaced by the incentive auction.
If you are impacted by this, noted Wilkinson Barker Knauer communications attorney David Oxenford has broken down what you’ll need to do.
The LPTVs displaced by the auction are faced with this situation either because they operated on channels above 37 that will no longer be used for television in the compacted TV band, or because some full-power or Class A TV station that had to move to accommodate the smaller TV band was put onto a channel that interferes with their current operations.
The FCC issued an appendix listing displacement applications that are mutually exclusive along with a public notice advising that parties with mutually exclusive applications may resolve their mutual exclusivity by an engineering amendment to resolve the mutual exclusivity or through a legal settlement filed up until 11:59pm Eastern on January 10, 2019.
“Absent settlement, the mutually exclusive displacement applications will go to auction after the close of the settlement period,” Oxenford writes.
He adds, “Legal settlements need to be submitted for FCC approval, showing that they comply with FCC rules on such settlements. These include evidence that any payments being made do not exceed an applicant’s to legitimate and prudent expenses in pursuing the application – in other words, no big payoffs to walk away from an application.”
Unilateral engineering settlements must be defined as a “minor change” under FCC rules (ruling out most channel changes).
“The Commission does provide some opportunity for application changes that would not normally be considered minor,” he says. “The FCC urges parties who work out legal and engineering settlements to, wherever possible, resolve their mutual exclusivity through minor engineering amendments, as defined by the FCC rules. However, applicants that are unable to resolve their mutual exclusivity through a minor engineering amendment may, as part of their legal or engineering settlement, amend their application(s) to propose a new available channel. The new channel proposal may not create a new mutual exclusivity or conflict with any other application previously-filed in the Special Displacement Window.”