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FCC Adopts Compromise on Translator Interference

But don’t expect an end to the legal fights that one expert calls “contentious and expensive”

interferenceThe Federal Communications Commission says changes it adopted to FM translator interference rules in May will balance the interests of full-service FMs and translators.

Those services increasingly have been at loggerheads. A drastic jump in the numbers of translators over three decades — from 1,850 in 1990 to approximately 8,048 in 2019 — was followed by an uptick in interference complaints from existing full-service FM stations.

The commission does not compile data on how many interference cases have been brought to its attention or caused translators to go silent. One observer familiar with the process estimates there are at least 40 such complaints being handled at the FCC, and some have waited as long as 18 months for a resolution.

The new rules are intended to make it easier for translator operators to change frequencies in interference situations; strengthen complaint requirements; set an outer signal strength limit on actionable complaints; and expedite the translator complaint resolution process.

[REC Networks: LPFM Is Not a Threat to Full-Service Radio]

Translators will still be required to leave the air until interference complaints with full-time stations can be resolved. But the FCC did reduce the impact that a single listener can have. Previously, one complaint, at any distance from the desired radio station, could result in an FM translator having to cease operations. That’s something that irked translator operators and raised concerns that claims against translators were being used to “game” the system.

Under the revised rules, the minimum number of complaints to support an interference claim ranges from 25 for a station with over 2 million people in its protected contour, down to six complaints for a station with fewer than 200,000 people in the contour.

“Most important[ly], we want to receive fewer meritless complaints, and make those we do get easier to resolve,” FCC Chairman Ajit Pai said in a statement.

The commission believes that the minimums will prevent translators from having to reduce power or suspend operations based on claims supported by just one or two complaints and reduce disputes over whether claims have been substantiated.

Translators remain secondary services that can be displaced by new or modified full-power FM signals that move into their service areas, according to the FCC. “The actions taken herein are designed to protect translator stations from specious interference complaints while preserving their fundamental characteristic as a secondary service,” the commission stated.

The FCC also declined to modify its rules to distinguish between co-channel, first-, second- and third-adjacent channels for the purposes of translator interference.

The commissioners were unanimous in voting for the changes, and the National Association of Broadcasters supported the outcome.

In a statement, NAB Executive Vice President of Communications Dennis Wharton said, “The FCC deserves credit for endorsing a common-sense compromise for reviewing FM radio listener complaints alleging interference from FM translators. FM translators have been enormously helpful extending the reach of AM radio stations. We’re pleased the FCC continues to embrace ideas that foster the revitalization of AM radio.”

CHANGING FREQUENCY

David Oxenford, communications attorney with Wilkinson Barker Knauer LLP, wrote on his Broadcast Law Blog that one component of the changes will be a critical tool for translators — the one that allows them to slide to any available FM channel to alleviate interference with an existing FM station.   

“In the past, channel moves have been limited to moves to adjacent channels that would be considered a minor change by the FCC. In many markets, this will provide the translator operator more opportunities to continue to operate its translator, if it does in fact create areas of new interference,” Oxenford wrote.

“Of course, in some spectrum-limited markets, there may not be an alternative channel on which a new translator can be authorized.”

The FCC says it will accept a simple engineering statement of mitigation of interference at the requested frequency and deem it sufficient as a threshold standard to permit the translator applicant to request a channel change as a minor modification.

FORMULAIC APPROACH?

Scott Flick, a partner with Pillsbury Winthrop Shaw Pittman LLP, has some concern about the minimum listener complaint requirements.

“This means that FM translator interference proceedings are going to be less the result of independent listener comments and more like petition drives, possibly facilitated social media movements where a broadcaster distributes a template to listeners for complaints and then solicits the right number of complaints from the right areas,” Flick said.

“I’m afraid that what we will see instead is a formulaic approach to establishing interference that will reward those stations that are the best at driving the submission.”

Flick, who handles commission-related business for media-sector clients in Washington, said the rulemaking procedure “offered intrigue” because the issue had broadcasters on both sides.

“The split told us a lot about which broadcasters see FM translators as a major vehicle for content distribution versus those who are more concerned about the adverse impact FM translators may have on their full-power stations. It was fairly easy for these two contingents to find common ground on the FCC’s proposal to allow FM translators to easily change frequency where necessary to prevent interference, as that was a win-win for both groups,” Flick said.

[FCC Will Try to Ease Translator Interference Situation]

FM translators are an increasingly important resource for broadcasters. The FCC’s AM revitalization initiative has resulted in hundreds of new FM translators starting up, Pai said. 

“AM broadcasters around the country have told me that the chance to get FM translators has allowed them to improve their programming, expand their listenership and stabilize their financial position,” Pai said. Further, translators now play a role in digital broadcast strategies because they can be fed by HD Radio subchannels.

But comments filed by several large broadcast companies during the proceeding reflect the delicate nature of the proceeding for some.

Cumulus told the FCC it could provide a “unique perspective concerning issues in this proceeding,” given that at the time of its filing in 2018, it operated 25 licensed translators and held construction permits for 53 additional translator stations.

Cumulus urged the commission to allow FM translators to move to any available channel as a minor change, including channels in the reserved band. It supported a 54 dBu contour and asked the FCC to raise the minimum number of listener complaints to support an interference claim be raised to six.  

Meanwhile, a joint filing in 2018 by iHeartMedia, Beasley Media Group, Cox Media and Urban One, all of whom operate both full-service and FM translator stations, asked the FCC to “act consistent with the secondary service nature of FM translators” but cautioned against the establishment of a 54 dBu contour limit for the remediation of FM translator interference complaints.

“The evidence supplied in the record does not support a contour limit any greater than the desired station’s 42 dBu contour,” the joint commenters wrote.

IN THE CONTOUR

The FCC’s move establishes an outer 45 dBu contour limit for the complaining full-service FM station within which interference complaints will be considered actionable.

“After review of the data provided in the record, we conclude that setting a complaint limit at the 45 dBu contour best balances full-service, secondary service and listener interests by providing a contour limit that encompasses the bulk of full-service core listenership while limiting complaints at the margins of listenable coverage,” the FCC said.

The commission staff considered recommendations from commenters that ranged from the 34 to the 60 dBu contours.

The FCC left open the door for complaints beyond the 45 dBu contour but the burden of proof in those cases will be much higher, according to the report and order. “We will consider requests for waiver of the 45 dBu contour limit where the requestor demonstrates the existence of a sizable community of listeners outside the 45 dBu contour limit. We recognize that in certain circumstances a radio station may serve a community outside its 45 dBu contour with programming that by its nature attracts ‘determined listeners’ — listeners who may tolerate poor reception (or purchase a higher quality antenna) to receive the desired station,” the FCC wrote.

[Chicago Translator Concerns]

Some translator owners have complained of being targeted by distant full-service FM broadcasters through interference concerns.

For example, Aztec Capital Partners filed a petition in 2017 seeking a “rebalancing of the equities in the FM translator rules” with the goal of “protecting local listeners of fill-in area FM translators.” Aztec wanted to rebroadcast programming from WHAT(AM) on a fill-in translator in the Philadelphia metro at 92.1 MHz. However, it said, a complaint by Clear Communications alleged potential interference with the latter’s full-power Class A FM, WVLT, on the same frequency in southern New Jersey, about 50 miles away. Aztec Capital Partners eventually chose to rebroadcast its Spanish Hits AM on a different FM translator it acquired in north Philadelphia, thus resolving the WVLT objection, according to a person familiar with the case.

Melodie Virtue, a principal with Garvey Schubert Barer, said the contour rule change will not end interference complaints.

[Don’t Kill My FM Translator!]

“I do think it will serve as more of a bright-line test to figure out what the goal line is for people dealing with complaints, whether they are full-power licensees, translator applicants or FCC staff dealing with these contentious expensive fights, which, by the way, are likely to still be contentious and expensive.”

Virtue, a communications attorney who specializes in FCC filings and applications, said one potential pothole for FM translators might be the need to protect the 45 dBu contour of the complaining station in areas outside the translator’s 60 dBu contour at the application stage.  

“In addition, the fact that the FCC set a waiver standard of a minimum of 20 complaints outside of a complaining station’s 45 dBu contour also gives the complaining station another way to defeat the new rule. I’ll be curious to see how easy or hard those waivers are to get,” she said.

The FCC wrote in its report and order: “We are persuaded by comments advocating a high burden of proof of listenership outside the 45 dBu contour that such requests must include at least 20 complaints from listeners outside the 45 dBu contour of the desired station in lieu of — or, optionally, in addition to — the required number of complaints within the 45 dBu contour.”

RESOLUTION TIMELINE

The FCC has set 90 days as the timeline for translator stations to resolve interference claims. However, it acknowledges that each case of interference is unique, so it said it would allow the Media Bureau to deviate slightly from that.

“Because each complaint is fact-specific, we direct the bureau to provide an explanation to the parties if it issues shorter or longer deadlines appropriate to the claim,” the FCC wrote. “We anticipate that 90 days, as suggested by NAB, will be an appropriate final remediation timeline for most situations.”

Commissioner Michael O’Rielly expressed gratification for the remediation deadline changes, which he said will make the process more predictable.

“While we expect many interference complaints will be resolved through relatively simple remedies, including the option to change channels by filing for minor modifications, some will require a more extensive process,” he said in a statement. “For those that are more complex, we preserve the bureau’s authority to extend the timeline at their discretion with an accompanying explanation documented in their correspondence with the parties.”

NOT ENOUGH DIFFERENCE?

Not everyone believes the FCC has struck a fair balance.

Mark Lipp, a communications attorney at Fletcher, Heald & Hildreth, told Radio World in an email that he believes the FCC has favored full-service stations with its changes: “That is to be expected, but by doing so, they harm the AM stations that have now become dependent on these translators. Perhaps the FCC could have created one standard for translators rebroadcasting FM stations and another standard for AMs that are the primary stations.”

Lipp, who has clients on both sides of the interference issue, said he believes the FCC also favored full-service FMs when it adopted the 45 dBu contour.

“I think the 45 dBu contour will cause too many translators to be forced to modify their facilities, change channels (if possible) or go silent. A better solution would have been the 54 dBu as proposed by the FCC in the NPRM,” Lipp wrote in the email.

He doubts that the revised rules will expedite the complaint resolution process. “I don’t think it will make enough difference. Currently, contested proceedings are taking 18 months to get resolved.”

FOUND IN TRANSLATION

The FCC said its amendment of Part 74 of the rules regarding FM translator interference will:

  • Provide added flexibility by allowing FM translator stations to change frequency to any available same-band channel as a minor change in response to interference issues
  • Establish a minimum number of listener complaints, proportionate to the population the complaining station serves, that a station would need to submit with any claim of interference
  • Standardize and codify the required contents of each listener complaint as well as additional information that a complaining station must submit with the minimum number of listener complaints
  • Establish interference resolution procedures that reduce the involvement of complaining listeners with remediation efforts
  • Implement an alternative process for demonstrating that interference has been resolved using technical methods mutually agreed upon by the complaining station and translator station
  • Establish an outer 45 dBu contour limit for the complaining station within which interference complaints will be considered actionable
  • Establish a minimum number of additional listener complaints that must be included in any waiver seeking to establish a claim of interference outside the complaining station’s 45 dBu contour
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