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FCC Again Fends Off Challenge to Translator Policies

Denies elevating cross-service translators over LPFMs

The Federal Communications Commission has again rejected a challenge to its decision to license a cross-service FM translator in Modesto, Calif., to iHeartMedia.

In ruling on this case, the commission upheld the earlier findings of its Media Bureau. It also laid out a justification of how it conducted the two auctions for FM translators in the AM revitalization effort. And it said that “nothing in the Auction 99 or 100 procedures elevates new cross-service FM translators to higher status than LPFM stations.”

The details

The license for K298DG to rebroadcast AM station KFIV on 107.5 in Modesto arose from Auction 100.

Howze originally petitioned the FCC to deny the iHeart translator application because, he said, it would violate the Local Community Radio Act, the 2011 law that sets out certain rules regarding the licensing of low-power FMs and FM translators.

Howze claimed that the LCRA required the commission to use the same procedures in the revitalization auctions that it did in Auction 83, an earlier, separate auction of translators. He said the commission should have limited the number of applications per licensee and required “preclusion studies” demonstrating that spectrum remained for future LPFM applicants.

The Media Bureau denied his petition, saying its Auction 99 and 100 procedures were in full compliance.

Howze then filed a reconsideration petition. In reply, the Media Bureau said the petition didn’t meet its procedural requirements but that it would have been rejected it anyway because iHeart had voluntarily produced a technical study showing that after the translator was awarded, at least five available LPFM channels in the market would still have satisfied the requirements for preclusion studies.

[Related: “Media Bureau Upholds Translator Policies”]

Continuing the fight, Howze then filed an application for review, arguing that the Bureau’s dismissal was flawed on several grounds.

That’s the application that the commission has now again rejected in a memorandum opinion and order.

FCC findings

It said the application for review doesn’t raise any new issues, so it could be rejected procedurally; but even putting that aside, the commission affirmed the decision to grant the translator and said that the Media Bureau’s handling of the auction was legal under the LCRA.

Among other things, the commission says it designed the AM revitalization proceeding and its related auctions to ensure continued licensing opportunities for all secondary services.

It said that the LCRA does not mandate a market-by-market evaluation of the availability of secondary spectrum or prohibit further award of translator construction permits where translators outnumber LPFMs, as Howze had argued.

The regulation, it said, only requires the commission to ensure that some minimum number of FM translator and LPFM licenses are available throughout the nation, not by market, and that there is no requirement that secondary services remain equal in number, only equal in status.

The ruling lays out specific reasons the commission rejected his several arguments, and you can read it here.

But the conclusion provides a retrospective justification for the way the auctions were handled.

“[W]e find that the Auction 99 and 100 procedures were in full compliance with [LCRA’s] dictates. … Applications were capped at one per AM station, and further capped by forcing applicants to choose between modifying an existing translator or applying for a new one, thus ensuring that new translators awarded through these windows would not consume all available spectrum. Additionally, the Auction 99 and 100 windows were scheduled to open after the 2013 LPFM filing window, affording LPFM applicants prior access to available spectrum.”

Further, “The commission found that AM stations provide uniquely local service in many instances, the needs of local communities were considered, and such communities will benefit by expanding AM service through use of FM translators by allowing service in dayparts that local AM stations cannot currently provide, with better signal quality.”

And “[N]othing in the Auction 99 or 100 procedures elevates new cross-service FM translators to higher status than LPFM stations, and in fact the transferability restrictions on these new translators afford them less flexibility than previously authorized FM translators and LPFM stations.”

It said the procedures it used to address the problem of processing over 13,000 FM translator applications in Auction 83 would not have been the right one to assist AM stations.

The FCC added a footnote pointing out that as a result of conditions placed on Auction 83 applicants, 5,450 new translator permits were awarded out of a theoretical maximum of 13,377, or 40.7 percent. “This paved the way for the October-November 2013 LPFM filing window in which 1,994 out of a total of 2,827 new LPFM station applications filed (70.5 percent) were granted.”