(By John Garziglia) The portion of the FCC’s new FM translator rules which allows an existing FM translator, upon a showing of interference, to apply to modify its facility to any channel in the same band, will be effective on August 13, 2019. On that date, the FCC will no longer restrict minor modifications of existing FM translator facilities to just adjacent or I.F. channels.
The August 13, 2019 effective date for FM translator modifications to any channel is one part of the FCC’s FM translator rule and procedure changes. This effective date is set as a result of a “Correction” to a June 14, 2019 Federal Register publication of the FCC’s May 9, 2019 FM Translator Interference Report and Order. In an article titled “FM Translator Rule Changes. It’s Complicated,” the full extent of the FM translator rule changes were previously addressed.
Effective August 13, FM translators will be able to move to any same-band channel as a minor change upon a showing of interference to or from any other broadcast station, rather than being limited to 1st, 2nd, 3rd, and I.F. channels. For FM translators in non-frequency-congested areas, this any-channel rule change will offer opportunities for both interference complaint remediation and potential facility improvements if current service is limited by interference. The FCC’s Audio Division staff has informally advised that any FM translator modification application taking advantage of this new rule filed prior to August 13 will be subject to dismissal.
Existing stations will need to be on guard in watching for FM translator frequency changes under this new any-channel rule. An FM translator landing on a co-channel or adjacent channel to an existing station could cause new interference where none now exists.
The bifurcated effective dates of the new FM translator interference rules could cause some issues. For instance, since the new Section 74.1204(f) pre-grant objection rules will not be effective until OMB approval, if OMB approval is not received by August 13, presumably any FM translator channel modification filed then will be expected to make a showing of interference specified by the current Section 74.1204(f).
Additionally, while the Audio Division warns against filing FM translator applications based on the new rules prior to the August 13 effective date, it is not entirely clear that an earlier-filed application will not be accorded priority over one that is later-filed if the FCC does not dismiss the earlier-filed application prior to August 13. There are also several new FM translator applications with waiver requests seeking changes to non-adjacent channels whose fate remains unknown.
For now, existing FM translator facilities that are in interference situations may want to explore whether there is any better situated channel, and if so, to file on August 13 so as not be foreclosed from the less congested channel by a later-filed FM translator modification application.
At the same time, existing stations including full-service, LPFMs and FM translators should be diligent in reviewing FM translator modification applications filed on and subsequent to August 13. The FCC’s new any-channel FM translator modification rule could enable problematic, interference-causing, FM translator facilities to be granted on a co- or adjacent-channel unless a timely objection is filed.
Not yet effective are the significant procedural changes to the FCC’s FM translator rules that require a certain number of interference complainants, the submission of engineering showings, and limitations on most complaints beyond the complaining station’s 45 dBμ contour. These additional rule changes require Office of Management and Budget approval and will become effective on the date announced in a subsequent Federal Register publication.
Soon, however, possibly even prior to August 13, the remainder of the FCC’s new FM translator interference rules will become effective. Assuming that no petitions for reconsideration are filed, the proceeding to adopt new FM translator interference rules initiated by petitions for rulemaking filed by Aztec Capital Partners, Inc. and the National Association of Broadcasters will be done. Both FM translators and full-service broadcasters will live (and die) with the new rules for years to come.
John Garziglia is a communications attorney at Womble Bond Dickinson and can be reached at (202) 857-4455 or John.Garziglia@wbd-us.com