(by John Garziglia) Indiana Representative André Carson, whose Congressional district includes the Indianapolis radio market, recently wrote a letter to FCC Chairman Pai, seeking information on an FM translator interference complaint proceeding that has the potential to remove a popular Indianapolis radio station from the air. Chairman Pai responded with a letter of his own back to Representative Carson.
Representative Carson is highly concerned that a distant 6 kilowatt equivalent FM radio station 80 miles from Indianapolis is seeking to deny FM service to local Indianapolis radio listeners. Representative Carson writes that the FM translator carrying “The Fan” is a “centerpiece in my District broadcasting professional and amateur sports including the Indianapolis Colts, Indiana Pacers and high school football” (If only all Senators and Congressmen could be equally supportive of local radio stations!).
Representative Carson is concerned that the FCC too quickly is giving credence to a mere handful of alleged radio listeners far outside the service area of the distant FM station with the result that local Indianapolis FM radio service from “The Fan” will be denied to an exponentially greater number of local radio listeners. Representative Carson writes that he “would like to ensure that this matter is resolved without any disruption of service to my constituents who rely on [The Fan] for their sports, weather and news content”.
Chairman Pai, in his response letter, did not indicate how the FCC would insure the continuation of service from the FM translator rebroadcasting “The Fan”.
Many years ago, the FCC adopted rules in the 1990 FM Translator Report and Order prohibiting FM translators from expanding primary stations’ service areas. The FCC referred, in particular, to what the NAB called the “Flagstaff situation”. In the Flagstaff situation, FM translators carrying out-of-market signals were imported into Flagstaff dominating the ratings, and drove a local Flagstaff station off the air.
Today, however, in a full-circle perversion of the FCC’s intentions to bolster local service, FM stations are using the same 1990 FM translator rules in seeking to extend their signals into distant markets. Distant FM stations are filing interference complaints against newly-instituted FM translators carrying local AM stations and HD sub-channels. These distant out-of-market interference complaints are threatening to deny local radio service to potentially tens of thousands of local radio listeners.
The 1990 FM Translator Report and Order was adopted at a time when FM translators only rebroadcast other analog FM signals as primary stations. FM translators then provided FM service to listeners who were unable to receive satisfactory FM signals due to distance and intervening terrain obstructions.
Today, however, FM translators carry AM primary stations as revitalization lifelines, and HD sub-channel primary stations with diverse programming. Each of these new services is a “fill-in area” FM translator serving local listeners.
Chairman Pai and the FCC should heed the Congressman’s warning about not moving too quickly to remove radio service from potentially tens of thousands of local radio listeners based upon a small handful of complainants trying to receive a distant signal. It is an inequity for a distant station to shut down local radio service.
Local radio listeners to fill-in area FM translators need to be protected from distant station interference claims. No change needs to be made in the secondary status of FM translators. Rather, a substantial number of local FM translator radio listeners in a primary station’s service area should be favored against the loss of their radio service precipitated by an out-of-market radio station claiming several distant radio listeners in a variation of the “Flagstaff situation”.
The removal of local service from potentially tens of thousands of local listeners based upon the complaints of but several listeners well outside the service area of a distant station is contrary to the “fair, efficient, and equitable distribution” of spectrum provisions of the Communications Act. Radio stations are authorized by the FCC under Section 307(b) to serve a community of license and a discrete service area encompassed by the station’s licensed protected contour. Removing local fill-in area FM translator service based upon purported interference to distant FM station listeners well outside a protected service area unfairly, inefficiently and inequitably extends the distant station’s weak signal to vast areas, and disfavors the substantial numbers of local radio listeners to the fill-in FM translator.
Further, the decision to shut down a radio station denying radio service to thousands of local listeners is too important to be decided at the FCC staff level as is now FCC practice. Rather, proceedings in which distant radio stations are seeking to extend their service areas at the expense of local radio listeners should be decided only by the FCC Chairman and the full Commission, and only then taking into consideration all of the equities of the situation.
Now before the FCC’s staff are many FM translator interference proceedings in which a distant station presented interference complainants only to have the complainants turn out to be connected to the distant station through friends, family or employees. Such non-bona fide complainants raise significant questions as to the FCC’s processes.
Under current FCC staff procedures, unverified complaints are taken as truth, complainants can refuse to truthfully answer as to their relationships with the complaining station, informal email exchanges take place between the FCC’s staff and the complaining station, and it is suspected that many complainants are shills for the complaining station.
Now, a radio station owner or manager is encouraged to troll for complaining individuals to enable that radio station to extend its signal out to the “Owner’s Contour” – that last gasp of radio signal coming through the FM hash. The FCC’s FM translator interference rules were adopted decades ago to keep FM translators that carry distant stations from harming local service. They are now being used instead to harm local service at the behest of distant stations.
Local radio service to local radio listeners should not be lost due to a distant station owner attempting to extend his or her signal to that last gasp of the “Owner’s Contour”. It is time for a re-think of the FCC’s FM translator interference rules and policies.
The equities now favor the local service provided by FM translators carrying AM and HD sub-channel primary stations. There has been a fundamental shift in the nature of fill-in area FM translators to which FCC policy and rules have not adjusted. Fill-in area FM translators are now vital to many communities and listeners. Local radio service provided by an FM translator should not be removed from the air by the FCC unless there is a significant public interest reason to do so, and the public would be significantly served by such a loss of service.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455. or [email protected]