Prometheus Loses On ’17 Translator Reconsideration, Stay


Updated at 6:20pm ET

In response to a Stay Petition and a Petition for Reconsideration filed in early April 2017 by Prometheus Radio Project, the Commission’s top leadership late Tuesday offered a firm decision on the 40-mile limit for an FM translator’s move.

This FCC decision could be related to the informal objection filed May 16 by Prometheus, as the Commission had not acted on its filings from last year — as Prometheus noted last week.

In short, the FCC’s four commissioners all agreed to deny the reconsideration petition, which rendered the stay petition moot.

Central to the decision is the Commission’s disagreement with Prometheus’ objections to an amendment made to the FM translator siting rule.

Prometheus offered what the Commission considers “two broad arguments” in support of its Reconsideration Petition. First, it claims the decision not to adopt a set distance limit on siting of cross-service translators for AM stations with a 2 mV/m contour exceeding 25 miles was not a logical outgrowth of the original proposal as set forth in the AMR FNPRM, and therefore removing the limit violates the Administrative Procedure Act (APA).

Second, Prometheus claims that the Second R&O was arbitrary and capricious, arguing that it did not address the issues raised in the February Ex Parte, it is contrary to the goals of the Local Community Radio Act of 2010 (LCRA), and it falsely equates the public interest value of smaller, commercial AM radio stations with the community-oriented noncommercial educational LPFM service.

How did the Commission respond?

“We reject Prometheus’s claim that the Commission’s decision declining to impose a set distance limit on siting of cross-service translators for AM stations with a 2 mV/m contour exceeding 25 miles was adopted without adequate notice and opportunity for comment under the APA… As long as parties should have anticipated that the rule ultimately adopted was possible, it is considered a ‘logical outgrowth’ of the original proposal, and there is no violation of the APA’s notice requirements.”

Regarding the “arbitrary and capricious” claim, the FCC said, “the Commission did not fail to account for any adverse impact that the Order will have on LPFM stations. Rather, the Commission found that the public interest benefits of providing greater flexibility for AM stations to locate cross-service translators, even beyond the 40-mile limit, were significant and that nothing in the record, including Prometheus’s February Ex Parte, demonstrated harm to LPFM stations that would outweigh these benefits.”

This story was updated to correct an initial report that the decision addressed the informal objections filed last week. RBR+TVBR regrets the error.