The author is with law firm Fletcher, Heald and Hildreth, on whose blogthis article originally appeared.
The window for Class A and B AM stations (and certain Class C and D AM stations) to apply for new cross-service FM translators will open at 12:01 a.m. Eastern Time on Thursday, Jan. 25, and close at 5:59 p.m. Eastern Time (not at 11:59 p.m.) on Jan. 31. This will be the last of the “AM Revitalization” filing windows.
Also between today, Jan. 18, 2018, and the close of the filing window on Jan. 31, no FM translator minor change applications, LPFM minor change applications, or FM booster construction permit applications may be filed. The Media Bureau will dismiss any such applications submitted during this temporary freeze.
Details regarding the FM translator filing window can be found in a lengthy Public Notice released Dec. 4 (DA 17-1168). The FM translator filing window is in essence an FCC auction. Indeed, it has been designated as “FCC Auction 100.” That means, as explained below, most of the FCC’s auction rules will apply to the process.
Here’s a brief summary of the FCC’s requirements and restrictions relevant to this filing window.
Eligibility and Scope
The only AM stations that may apply for a new FM translator during the upcoming window are those that were not listed as a primary station in any FM translator application filed during: 1) 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); or 2) the 2017 window that was open to any Class C and D AM station that had not filed a modification window application. Eligible applicants may propose only one cross-service FM translator for each primary AM station to be rebroadcast. But an AM station that acquired one or more FM translators other than through the 2016 modification windows or the 2017 new application window may file in this window.
An FM translator acquired through this window will be married forever to the AM station specified as the primary station in in the applicant’s FCC Form 349 Tech Box – not just for four years as is the case of a translator relocated pursuant to a 2016 modification window application or a Mattoon waiver. A new FM translator acquired through this upcoming window (or, for that matter, the 2017 window) may only be assigned to another party in conjunction with the simultaneous assignment to the same party of the commonly-owned primary AM station that the translator rebroadcasts.
If the licensee of an eligible AM station is planning to assign the station in the near future, the FM translator application may be filed either by the current licensee or the proposed assignee. But if the assignee will be the actual applicant for the new FM translator, the assignment application also must be filed prior to the close of the filing window on Jan. 31.
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. Accordingly, an application specifying a channel in the reserved portion of the FM band (i.e., 88.1 MHz to 91.9 MHz) will be dismissed.
i. 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.
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 translator applications 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.
ii. Ownership Disclosures. An applicant must fully disclose information on the real party or parties-in-interest (including both direct and indirect ownership interests of 10% or more) as well as the applicant’s ownership structure in its FCC Form 175.
Red Light Status. An applicant is required to answer 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 Jan. 31, 2018, 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 formerly delinquent may file an application – provided that it has remedied all defaults and cured all outstanding non-tax delinquencies prior to the Jan. 31 filing deadline. 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 at least 50% higher than other applicants.
Noncommercial Educational Status Election. The FCC will reject an application identifying the proposed cross-service FM translator as a noncommercial educational station if that application winds up being mutually exclusive with an application for a commercial translator. Accordingly, the Commission cautions each applicant to consider carefully whether to file as an NCE applicant. An NCE election cannot be reversed after the Jan. 31 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.
iii. Application Processing
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 MX FM translator proposals. Mutual exclusivity among FM translator proposals may be resolved through settlement and/or “minor changes” in technical amendments. The Commission will announce a “settlement window” during which the prohibited communications rule will be suspended for the purpose of resolving MX 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 MX FM translator proposals.
If a group of MX 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. If it the AM primary station specified is a commercial station, an $805 FCC filing fee also must be paid.
The FCC auction process can be complex, and the answers to questions are not necessarily intuitive. We are ready to guide you through Auction 100.