In 2011, licensees of FM translators who wanted to move those translators to areas where there was a need for their service thought that the FCC had done a great thing by authorizing the use of the “Mattoon” waiver (see our article here). The Mattoon waiver allowed the processing of an FCC application to move the location of a translator as a minor change (meaning that it could be filed at any time, rather than having to wait for a window for the filing of major changes and new translator applications – the last of which opened in 2003) if the current and proposed interfering and protected contours of the stations overlapped. Without the waiver, the rules deem a minor change to occur only when the protected 60 dbu contour of the station from the proposed and exiting sites overlap, allowing much smaller moves. But, as we have written before, the FCC now seems to be backing off the use of these waivers, and two recent decisions raise the question of whether the policy is doomed (as the Commission proposed in its AM improvement proposals, which we summarized here).

The use of the waiver in many cases eliminated the need for multiple “hops” of translators to get them from existing locations to the sites at which a broadcaster wanted to use them to provide service. These hops would move the translator from the locations at which it was licensed to a new site, only to file another application as soon as the initial move was granted to move the translator yet again to get them to the location where a broadcaster wanted to use them to provide service. In some cases, multiple intermediate hops were necessary to move the translator to the site at which its use was ultimately desired. The Mattoon waiver allowed many site moves to be accomplished through a single application rather than requiring multiple hops, each of which cost the broadcaster time and money in filing multiple applications and in actually building the translator at multiple sites, and also saved the FCC the time and effort to process each of the applications necessary to approve these intermediate stops for the translator. 

In one of the recent decisions, the FCC affirmed an earlier staff decision (which we wrote in our discussion of the AM improvement proceeding) that the Mattoon waiver policy can be used only when a translator will rebroadcast an AM station. A broadcaster that I represented argued that the same public interest benefits of decreasing the processing costs for both the applicant and the Commission are recognized through the use of the Mattoon waiver whether the translator is to rebroadcast an AM or if it will rebroadcast the signal of an FM station. It was also argued that this had been the policy of the FCC as, for a time, the FCC staff had routinely granted Mattoon waivers for the movement of translators that would rebroadcast FM stations, citing about 20 such approvals that had been granted and become final. The FCC rejected those arguments, finding that the past grants of waivers for translators for FM stations were improper staff actions that should not have been made, and that there was no public interest reason to waive the processing rules for all applicants – that the need for FM translators for AM stations was a special justification for the use of the waiver policy.

In another recent case, the FCC further restricted the use of the Mattoon waiver policy even where the rebroadcast would be of an AM station if the applicant had made even one intermediate “hop” before filing the application for the Mattoon waiver. When the Mattoon waiver was first adopted, the Commission cited a number of conditions for such waivers, one of those requirements being that the applicant did not have a history of “filing serial minor modification applications.” Basically, what the Commission was saying was that, if an applicant had done a number of “hops,” that was an abuse of the FCC’s processes (on the theory that the applications for each of the hops was abusive as the applicant had no real intent to operate and serve the public at any of the intermediate points in a move). In the recent case, the FCC staff found that even a single intermediate hop before the filing of an application for the Mattoon waiver was abusive and disqualified the applicant from using the Mattoon waiver. Putting aside whether that policy makes sense (is it really abusive to use the only processes available to an applicant to move a translator station to a place where its service is desired?), the recent decision finding that even one intermediate hop is an abuse further restricts the ability of applicants to rely on this policy.

We have also written about the FCC recent actions conditioning the operations of translator whose site moves were granted as a result of a Mattoon waiver – requiring that for a four year period the translator be limited to rebroadcasting the specific AM station that was named in the application. For some applicants, that condition has been a concern – as who knows what will happen with any AM station in the next four years? Taken together, all of these actions and the express proposal in the AM improvement proceeding suggesting that the Mattoon waiver policy may no longer be necessary indicate that the days of this policy may be numbered. While broadcasters and the NAB both opposed the end of the Mattoon waiver in the AM revitalization proceeding (and in fact suggested that instead that the Mattoon waiver be adopted as a formal rule as it made processing easier for all parties and was consistent with the way that the FCC defines minor changes for full-power stations), the Commission seems to be moving in the opposite direction. 

Until rules are adopted in the AM revitalization proceeding, there is still time to file informal comments in that proceeding on the Mattoon waiver policy if it might affect your operations. As translators have become such an important part of the broadcast landscape since they now are allowed to retransmit not only FM signals, but also those of AM stations and HD-2 channels, it would seem that many broadcasters would be interested in their use, and in providing the necessary flexibility to use them where they are most needed. Watch as that proceeding comes out with some policy decisions, hopefully early next year, to see what happens to this processing policy.