In a case that has been watched by many AM licensees and debated at a number of broadcast conferences in the last few years, the FCC on Friday denied the “Tell City waiver,” by which the licensee of an AM station in Indiana sought to buy an FM translator in Colorado and move it to Indiana, on a non-adjacent channel, and use it to rebroadcast their AM station. This sought to expand the “Mattoon waiver” (about which we have written many times including articles here and here) which effectively changed the definition of a “minor change” for an FM translator that could be approved in a single application, without waiting for any sort of translator filing window.
The current rules define a minor change as one where the translator’s 1 mv/m service contour at both the current and proposed sites overlap. The Mattoon waiver treated applications as minor changes where the service contours did not overlap – as long as the interfering contour of the translator at one site overlapped with the protected contour of the station at the other site – essentially meaning that a translator could not exist at both the current and proposed sites without prohibited interference. The Tell City waiver would have eliminated even that connection between the present and proposed sites for the translator – allowing essentially a move of any FM translator from one place to another, and from one frequency to another, regardless of whether the new location had any connection with the original site. That attempt to stretch the definition of a minor change led the Commission’s Media Bureau to deny the request.
The proponents of the Tell City waiver argued that the flexibility to move translators that would be afforded by the grant of the waiver would help to support struggling AM stations. The proponents also tried to limit the impact of the proposal by suggesting that it not be allowed in markets where LPFM opportunities were limited. But these arguments did not carry the day.
Instead, the FCC said that the proposals would contravene the “Ashbacker” doctrine – the precedent that requires the FCC to give all potential mutually exclusive applicants to have an equal opportunity to file for a new frequency. Stations can be moved to locations where no other party could use the frequency to which the station is moving where the existing operation of a station would preclude the use of the frequency in the new location – as no one else could apply for that frequency because of the existing station. But in areas where a proposed operation did not conflict with any existing station – in effect where a new station could be allotted – the Commission will not reserve it for one party to the exclusion of all others. Here, the existing translator in Colorado clearly would not preclude the proposed use in Indiana, and the Indiana operation could preclude other new uses of the proposed Indiana frequency, so the Commission felt that Ashbacker prohibited the proposal as those who might want to use the frequency in the new location would be foreclosed.
Moreover, the FCC said that this kind of sweeping change in the translator rules would be better be done by rulemaking – and the current proceeding to help revitalize the AM band (which includes a proposal to open a one-time only window for FM translators solely for AM licensees – which at least one Commissioner hoped to announce later this year) was a more appropriate way to address the need for FM translators for AM stations. So, in short, the proposal was denied, and AM licensees looking for an FM translator, who can’t find a local translator for sale, will just have to be patient until the AM revitalization rulemaking comes to some sort of resolution – hopefully at some point in the near future.