Sometimes, even though you have FCC authority for your operations, you can still run into issues that can cause you to have that authority pulled out from under your operations. In three cases decided this week, the FCC’s Audio Division interpreted a number of its procedural rules – in two cases leading to the cancellation of FM translator licenses and the silencing of operating translator stations. In one case, the FCC decided that a licensed and operating FM translator had been licensed in error, as it actually created interference to an existing full-power FM station in a populated area, even though the translator application had initially claimed that it would not. In the second case, a translator was forced to cease operations because of interference from a new full-power station. When it did not resume operations within a one-year period, the FCC found that its license was automatically forfeited because of the year’s silence – even though the station had resumed operations in the construction period specified in a construction permit authorizing the translator to operate on a new frequency. These cases make clear how important the FCC’s procedural rules can be – actually leading to what are effectively life or death decisions for the license of a broadcast station.
In the first case, a translator licensee had a construction permit application granted to move to a new transmitter site. After the permit was granted, the licensee of a full-power station filed a Petition for Reconsideration of the grant, arguing that the translator would in fact create interference in populated areas served by its station. Despite the protest, the permittee constructed the translator at the new site, started operations and filed a license to cover the new construction – which was granted by the FCC. In reviewing the evidence filed by the petitioner, the FCC determined that there would in fact be interference caused to the full-power station in inhabited areas, contrary to what had been claimed in the translator's CP application. Based on that finding, the FCC revoked the license and underlying CP for the translator. The FCC made clear that a permittee who constructs a station when there is an objection to the underlying CP does so at its own risk. Where, as here, the underlying objection is found to have merit, the mere fact that the permittee had the right to build the station does not give him any grounds to argue that the station should be permitted to continue to operate – rejecting claims by the translator operator that, as there were no complaints of real interference caused by its operation, it should be permitted to continue to operate. Where the translator had prohibited contour overlap with the protected full-power station, and where it was shown that the area in which that overlap occurred was populated (shown by a USGS Topographic map that showed structures in the area), the operation was not permitted to continue.
In a case involving a full-power station released that same day, the FCC made exactly the same point – finding that a station was permitted to keep operating at the site specified in a construction permit, and that a petition against the covering license was not appropriate, even though there was a petition for reconsideration filed against the underlying construction permit application. The Commission made clear that a CP is effective when granted, and parties are free to act on that CP, and construct a stations - but they do so at their own risk of having the authority pulled out from underneath them if the challenge to the grant of the CP is found to have merit.
In fact, in some cases, a licensee may need to construct a station, even if an appeal of its authority to do so is under review. In the third case that the FCC released on the same day, a translator operator was forced to suspend operations when a full-power station signed on the air with new upgraded facilities, and the translator interfered with that full-power station. The translator licensee sought FCC permission to move to a new frequency, and was granted a CP to do so. Even though the construction permit for the new frequency gave the translator operator three years to construct its new facilities on the new frequency, its authority to remain silent reminded the operator that, under Section 312(g) of the Communications Act, a station cannot be silent for more than a year without the license being automatically canceled (we previously wrote about this section of the rules here). Here, when another full-power station filed a petition for reconsideration of the CP for the new frequency, the translator operator delayed construction of the translator on the new frequency, not putting it back on the air until about 18 months after it had signed off the air – 6 months after the one year drop-dead deadline imposed by the statute. Once it was put back on, the station objecting to the operation of the translator on the new channel filed a pleading with the FCC, asking that the FCC find that operation of the translator was no longer permissible as the station had been off the air for more than a year.
In reviewing the objection, the Commission found that the translator operator had authority to turn on the translator on the new frequency, even though that authority was subject to appeal. Thus, its failure to construct and operate within the one year window was found to be a voluntary business decision to not take the risk of constructing the new facilities and having to abandon them if the reconsideration was granted. While the FCC has authority to reinstate a license if it believes that there is a public interest justification for doing so, the Commission determined that this was not a case in which the reinstatement authority would be used. In the FCC's opinion, this "voluntary" choice to not construct in the face of a request to reconsider the CP grant did not provide the kind of justification for the Commission to find that the public interest justified the waiver of the one-year drop-dead deadline. Therefore, the FCC canceled the license of the translator and ordered it to cease operations.
This case is interesting for other reasons. First, it takes a very hard line on the one-year limit on stations remaining silent. In other contexts, like a "tolling factor" that permits the extension of the the three-year term of a construction permit for a new or a modified station, the FCC recognizes that the appeal of the grant of the construction permit justifies an extension of time in which to complete construction, as it is not fair to force a permittee to construct a station when its investment may be for naught if its authority is found to have been wrongly issued. Why an extension of a CP based on an appeal of an authorization's grant is in the public interest, and an extension of the one-year deadline specified in Section 312(g)(which Congress explicitly allows the FCC to waive) is not, was not explained by the decision.
The case is also interesting in that the FCC recognized that it will grant a translator a waiver to move to a non-adjacent channel if its operations are displaced by a new full-power station or a modification of an existing station. The rules clearly provide for adjacent channel moves when a translator is displaced, but here the FCC explicitly recognizes that a move to non-adjacent channel can also be granted.
These cases all make clear that permittees and licensees need to be very careful in monitoring their construction deadlines, and in evaluating the risks associated with such moves. One miscalculation, and your authority to operate can be forfeited.