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FCC Nixes Idea to Rebrand NCE Translator as Commercial

Local broadcaster argued the FM translator licensee should not receive noncom exemptions

The Media Bureau at the Federal Communications Commission has dismissed an objection filed against a Durham, N.C., FM translator. That objection claimed that the translator licensee should not be allowed to claim noncommercial educational exemption because the AM station being rebroadcast is owned by commercial organizations.

In its objection, Triangle Access Broadcasting alleged that the FM translator operator, Delmarva Educational Association who is licensee of W224DK, was not entitled to claim an NCE exemption for application and regulatory fees because the AM station they are rebroadcasting — WPTF in Raleigh, N.C., which is licensed to First State Communications — is a commercial station.

[Read: AM Station’s Spotty Operational Schedule Puts License at Risk]

Thus, Triangle argued, the translator is itself a commercial one. Triangle also argued that Delmarva shouldn’t be qualified to receive a nonprofit regulatory fee exemption. While Triangle recognized that Delmarva is a nonprofit entity, it argued that Delmarva disqualified itself from the nonprofit exemption because First State supplies commercial programming to the translator. According to Triangle, this gives First State an attributable ownership interest in Delmarva.

Triangle also alleged that Delmarva has failed to pay required application fees for the translator dating back to 2003. Triangle thus urged the commission to dismiss Delmarva’s application for failing to pay required fees and to cancel the translator outright unless the delinquency is resolved.

In response, Delmarva countered that its failure to pay a filing fee was inadvertent and it has since remitted payment. Delmarva also countered that the commission’s rules clarify that it is exempt from paying regulatory fees because it is a qualified nonprofit, tax-exempt entity under Section 501 of the Internal Revenue code.

Triangle acknowledged that even though Delmarva remitted payment, it questions Delmarva’s initial failure to pay during the licensing process. Triangle also maintained that Delmarva is not qualified for the nonprofit regulatory fee exemption because its operation of a commercial translator deviates from the “scope of its charitable purpose.” Added to this is the fact that Eastern Airwaves, a commercial entity that Triangle said co-owns First State, has exercised control over the translator. Thus it has an attributable ownership interest in the translator.

“[That makes it] improper for Delmarva to avoid regulatory fees based solely on Delmarva’s nonprofit status,” Triangle said.

But the Media Bureau disagreed. It said that informal objections to license renewal applications must not only provide well-supported allegations of fact but must also contain adequate and specific factual allegations. Triangle has not met this threshold, the FCC said.

For one, Delmarva acknowledged that it submitted the application without the requisite filing fees and went on to pay those fees. Secondly, the commission has already confirmed that Delmarva is a nonprofit organization. Finally, Triangle does not explain how First State or Eastern would have an attributable interest in the translator.

As a result, the bureau dismissed and denied the objection.

But the Media Bureau did find that Delmarva was remiss in its failure to pay the required application filing fees. It assessed the licensee a penalty charge equal to 25% of the filing fee for license of W224DK for a total of $17.50.