The construction of a new FM translator near the California/Mexico border is set to move ahead after the Federal Communications Commission clarifies its rules on deleted stations, contour overlaps, tendered filings and the definition of a nullity.
Family Stations Inc. was the winning bidder for a new cross-service translator station in El Cajon, California, a city approximately 25 miles from the Mexico border. The bid was part of the Federal Communication Commission’s Auction 100 in 2019, which involved bidding for new cross-service FM translators to be paired with AM stations.
Soon after, when it was realized that Family’s proposed facility violated contour overlap requirements set by a 1992 agreement between the governments of Mexico and the U.S. (in regard to FM service in the 88-100 MHz band), Family filed a long-form application to change the technical proposals specified in its previously submitted short-form application.
Soon after, the commission put into place amendments to its translator interference rules that would allow a translator licensee or applicant to mitigate interference by changing channels to any available frequency. Family followed up with a petition for reconsideration and amendment seeking to move its station from Channel 261 to Channel 266, having discovered that a “sizable zone of potential interference” existed within the translator’s current 25 dBu contour overlap and a neighboring station’s 45 dBu contour.
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In September 2019, a modification application was filed by Positive Hope Inc., licensee of KVIB(LP), specifying modified facilities on Channel 266 that it said were mutually exclusive with Family’s amended translator application. That same month, the Media Bureau at the commission dismissed the KVIB modification application because it did not comply with minimum distance separation requirements in regard to the translator.
The next month, Positive Hope filed an informal objection to Family’s amended translator application as well as a petition for reconsideration asking to reinstate the KVIB(LP) modification application.
The next step the bureau took was to reinstate Family’s translator application in a reconsideration after finding that Family’s amended application was due to a minor amendment — something the FCC will consider when an applicant submits a relatively minor curative amendment within 30 days of the original dismissal.
In the objection filed by Positive Hope, the licensee said that Family’s translator application should have been dismissed for several reasons:
- The application failed to protect another station — KRSA(LP) on Channel 266 — in El Cajon (even though that station’s license would eventually be cancelled by the commission). Positive Hope said the move to Channel 266 is not an option because the eventual cancellation of LPFM station KRSA(LP) on that channel was still under appeal and not yet final when the translator application was originally filed.
- The Family petition was procedurally inadmissible under FCC Rules because it was “tendered” three days after the Sept. 6, 2019 deadline to file a petition for reconsideration. Positive Hope said in its filing that “tendering is the act that counts” when determining the timeliness of a petition.
- The bureau erred in reinstating Family’s amended translator application because Family evaded the commission’s waiver request requirements. The bureau was wrong to reinstate the application under the nunc pro tunc processing policy because Family’s reinstatement request and curative amendment were based on an interference claim rather than a typographical or clerical error. As a result, such a request for reinstatement is improper, Positive Hope said.
- The bureau erred in reinstating the Family application because the bureau relied on a rule that came into effect after the application was dismissed. Positive Hope cited the commission’s Translator Interference Order, which states that the new translator interference rules apply only to “applications or complaints that have not been acted upon as of the effective date of the rules.”
- Any application that contains a no-waiver request and is dismissed as defective becomes a “nullity” — and as a nullity, the translator creates no interference and so how can it have any to mitigate? According to Positive Hope, Family cannot satisfy the FCC Rule criteria that says that a non-adjacent channel change applicant must show interference to or from any other broadcast station.
In light of these issues, Positive Hope asked the commission to either dismiss the Family petition and reinstate the KVIB modification application, reinstate and compare both applications as mutually exclusive or dismiss both applications for failing to protect station KRSA.
But the commission either dismissed or denied Positive Hope’s arguments on several grounds.
In regard to moving to Channel 266, the commission explained that, although a third party had indeed filed a petition for reconsideration concerning the cancellation of KRSA’s license, the cancellation was effective because there was no standing “request for stay.”
In regard to the timeliness of Family’s application filing and the phrase “tendered,” the commission said that the petition was indeed filed correctly on the day it was due — Sept. 6, 2019 — in the bureau’s Consolidated Database System. The commission dismissed and denied the argument that the Family petition was not filed on time since the “tendered date” that Positive Hope referred to is used for internal administrative processing.
The commission also denied Positive Hope’s argument that the translator application should not have been reinstated. Rather, the commission said, it is following the established, liberal amendment policy it applies when it comes to auction applications. “This policy provides that an auction long-form applicant may file an amendment to cure any defect, as long as the amendment does not constitute a major change to its originally proposed facilities,” the commission said in its order. “The non-adjacent channel change proposed in [Family’s] amended translator application is classified as a minor change.”
The FCC admitted to one slip in processing. Instead of dismissing the translator application, the Media Bureau should have instead issued a deficiency notice to Family and given the applicant the opportunity to file a curative amendment. The commission confirmed the bureau’s finding that the channel change proposed by Family resolved or reduced interference to Mexican station XHTY by eliminating a spacing violation and to a neighboring station KKLJ(FM) by eliminating a sizable zone of potential interference within the two stations’ contour. The situation was further resolved when Mexican government notified the commission’s International Bureau that it concurred with the facilities that Family had proposed in its amended translator application.
As a result, the commission granted the long-form application filed by Family and dismissed and denied Positive Hope’s objections and its application for review.
Susan Ashworth is the former editor of TV Technology and a long-time contributor to Radio World. She has served as editor-in-chief of two housing finance magazines and written about topics as varied as broadcasting, education, chess, music, sports and the connected home environment.
