The author is with the law firm Fletcher, Heald and Hildreth, on whose blog this article originally appeared.
The long-awaited filing window for certain Class C and D AM stations to apply for new FM translators will open at 12:01 a.m. EDT on July 26, 2017, and will close at 5:59 p.m. EDT (not at 11:59 p.m.) on August 2, 2017.
A second window for eligible Class A and B AM stations (and for eligible Class C and D stations that for some reason do not file in the window just announced) will open at a later date.
The FM translator filing window is in essence an FCC auction. Indeed, it has been designated as “FCC Auction 99.” That means most of the FCC’s auction rules will apply to the process.
On June 6, 2017, the FCC released a detailed Public Notice announcing filing instructions for the “Cross-Service FM Translator Auction Filing Window for AM Broadcasters.” (AU Docket No. 17-143, DA 17-533). The commission also announced that between July 19th and the close of the filing window on August 2nd, there will be a temporary freeze on the acceptance of any FM translator minor change applications, Low Power FM minor change applications, and FM booster construction permit applications. The Media Bureau will dismiss any applications filed during the freeze.
Here’s a brief summary of the June 6th Public Notice, as well as other requirements and restrictions relevant to this filing window.
ELIGIBILITY AND SCOPE
Only Class C and D AM stations that (1) did not apply for a cross-service FM translator during the 2016 modification windows (i.e., the windows that allowed an applicant to move an FM translator up to 250 miles in order to be used to rebroadcast an AM station) and (2) were not listed as the primary station in an application filed during the 2016 modification windows are eligible to submit cross-service FM translator applications during this filing window. Eligible applicants may propose only one cross-service FM translator for each primary AM station to be rebroadcast. A Class C or D station that acquired one or more FM translators other than through the 2016 modification windows may file in this window. But the 60 dBu contour of the new translator must not overlap 50% or more of the 60 dBu contour of another translator rebroadcasting the same AM station.
Any FM translator acquired in the filing window may only rebroadcast the AM station identified as its primary station on the applicant’s FCC Form 349 Tech Box. Authorizations for new cross-service FM translators may only be reassigned in conjunction with the commonly-owned primary AM station that it rebroadcasts. In other words, an FM translator acquired through this window will be married forever to the AM station specified in the application, not just for four years as is the case for a translator relocated pursuant to a 2016 modification window application or a Mattoon waiver.
An applicant may designate any available non-reserved FM channel (i.e., 92.1 MHz to 107.9 MHz) for its proposed cross-service FM translator. An applicant, however, may not propose a channel in the reserved portion of the FM band (i.e., 88.1 MHz to 91.9 MHz).
CROSS-SERVICE FM TRANSLATOR APPLICATION FILING INSTRUCTIONS
In order to apply for a new cross-service FM translator, eligible applicants must file a separate FCC Form 349 Tech Box for each proposed facility, and a single FCC Form 175 for each eligible applicant.
FCC Form 349 Tech Box
Applicants are required to complete only Section I, Section III-A’s Tech Box, and the Section VI Certification of the FCC Form 349. Engineering information provided in the FCC Form 349 Tech Box will be used to determine which applications filed during the window are mutually exclusive.
Short-Form Auction Application (FCC Form 175)
Only one FCC Form 175 may be filed for each eligible applicant – regardless of the number of cross-service FM translators that a particular applicant files. The FCC Forms 175 filed during this window are subject to the following requirements and restrictions:
Authorized Bidders. An applicant must designate at least one authorized bidder, and no more than three authorized bidders, in its FCC Form 175. The same individual may not be listed as an authorized bidder in more than one FCC Form 175 by any applicant.
Disclosure of Agreements. An applicant must disclose any partnerships, joint ventures, consortia, or agreements or understandings of any kind relating to the applied-for cross-service FM translator in its FCC Form 175. An applicant must certify under penalty of perjury the accuracy and completeness of such disclosures, and that the applicant and any party that controls or is controlled by the applicant has not entered into and will not enter into any joint bidding arrangement with any other auction applicants – subject to the exceptions provided in Section 1.2105(a) of the Commission’s Rules.
Ownership Disclosures. An applicant must fully disclose information on the real party or parties-in-interest as well as the applicant’s ownership structure in its FCC Form 175.
New Entrant Bidding Credit. In this filing window, an applicant’s attributable interests and maximum new entrant bidding credit eligibility are determined as of August 2, 2017. Events occurring after the August 2nd filing deadline that would diminish or extinguish an applicant’s bidding credit, such as purchase of another station, must be reported to the Commission.
Red Light Status, An applicant is required to certify under penalty of perjury in its FCC Form 175 whether it is a current or a former defaulter or is currently or formerly delinquent on any debts related to FCC construction permits or licenses, or non-tax debts owed to any federal agency. If as of August 2nd, an applicant is flagged as having a “Red Light” in the FCC’s Red Light Display System for an unpaid debt (e.g., past due Regulatory Fees), its application will be dismissed. An applicant that is a former defaulter or delinquent that has remedied all such defaults and cured all of the outstanding non-tax delinquencies prior to the August 2nd filing deadline mayfile an application for a cross-service FM translator. If it winds up that the applicant will have to go through an actual auction to secure the construction permit it has applied for, the applicant will need to make an upfront payment of at least 50% higher than other applicants.
Noncommercial Educational Status Election. An application identifying a proposed cross-service FM translator as a noncommercial educational (“NCE”) station that winds up being mutually exclusive with any application filed during the window for a commercial station will be rejected by the Commission. Accordingly, the Commission cautions each applicant to consider carefully whether to file as an NCE applicant. The NCE election cannot be reversed after the August 2nd filing deadline.
Prohibition on Communications by Auction Applicants
The stringent prohibitions on certain communications found in the FCC’s auction rules apply to the cross-service FM translator filing windows. Among other restrictions, applicants are prohibited from cooperating, collaborating, or communicating with other applicants regarding bids or bidding strategies, or discussing or negotiating settlement agreements until a special settlement window – discussed below – opens.
Mutually and Non-Mutually Exclusive Applications.
The Media Bureau will review all FCC Form 349 filings to determine which FM translator proposals are mutually exclusive, and will release a public notice listing the groups of FM translator proposals found to be mutually exclusive with one another.
Mutual exclusivity among FM translator proposals may be resolved through settlement and/or “minor change” technical amendments. The Commission will announce a “settlement window” during which the prohibited communications rule will be suspended for the purpose of resolving mutual exclusivity conflicts. Settlement discussions between conflicting applicants may not begin until the settlement window opens. Technical amendments to resolve mutual exclusivity – and all other application amendments – may not be filed until the release of the public notice listing the FM translator proposals that are mutually exclusive. If a group of mutually exclusive applicants cannot resolve their conflict through settlement negotiations and/or technical amendments, the matter will be resolved through the FCC’s competitive bidding procedures at a later date.
An AM station whose FM translator proposal is not mutually exclusive with any other proposal filed during the window will be directed to submit a complete FCC Form 349, and pay the FCC’s $805 filing fee.
FCC Form 175 Amendments.
Following the August 2nd filing deadline, applicants for cross-service FM translators may make only minor modifications to their FCC Form 175 auction applications. Permissible minor modifications include: (1) deletion or addition of up to three authorized bidders; (2) revisions to an applicant’s contact information; and (3) changes to an applicant’s selected bidding option (telephone or electronic).
The FCC auction process can be complex, and the answers to questions are not necessarily intuitive. We are ready to guide you through Auction 99.