5-13-13
It seems an age ago when the FCC opened an application window for FM Translators. In the waning days of 2002 I began working with a number of Public and College Noncommercial FM Stations to help them file applications for FM translators in their fringe areas. In many places NCE FM stations don't reach out as well as their commercial brethren, due to crowded spectrum in the reserved band, and because many are low power, some as small as 10 Watts. I realized that few of the New Jersey and Philadelphia noncommercial stations reached the "Jersey Shore." Reaching the vacation spot for their regular listeners would be a great boon to them, but in general they had limited budgets, constrained by donations and grants.
If several translators could be multiplexed onto one tower, then these stations could afford to have an affordable presence on the shore for their listeners on vacation. Since tower rent dominates the cost of running a translator, it made sense to put them all in one place and pay tower rent only once. I filed applications at several locations around New Jersey, at each location I filed for several available frequencies with the idea of repeating several different public or college stations in the region from a single antenna. I chose each of these locations because I could drive to the translator site within a few hours to service them. Servicing five translators and a multiplexer at one location was not much more difficult than servicing one. This was my modest goal.
For this I was called a "translator whore" and vilified on the broadcast bulletin boards. My applications were pursued by Petitions to Deny from commercial broadcasters who saw FM translators as polluting the band. In the initial flurry of FCC activity I received three construction permits, one of which I promptly built and repeats a nearby small Non Commercial FM station, and the other two were encumbered by multiple petitions to deny from commercial broadcasters. I could not build them because the construction permits could be rescinded if the FCC agreed with the petitioners. When the Low Power FM fever struck, and the FCC froze processing the thousands of FM translator applications that were pending.
Fast forward nine years.
One of these FM Translator construction permits was challenged because I had no "assurance of site availability". Various petitions, oppositions, petitions for reconsideration and other actions in an extended legal dance where the FCC changed its position three times -the FCC finally rescinded the construction permit for W250BA this March.
I researched whether it would be worth asking for reconsideration. I went back to the original Auction proceeding and found, to my great surprise, the FCC Staff had been enforcing requirements on me and other applicants which the full Commission had specifically abandoned - saying "adjudicating... assurance of site availability... would waste the resources of the Commission and of the parties and would serve only to delay service to the public".
For the last nine years the Commission Staff had been wasting its and my resources adjudicating this issue, and delaying my ability to build W250BA. I have now filed an Application for Review by the full Commission. See: https://licensing.fcc.gov/cdbs/CDBS_Attachment/getattachment.jsp?appn=101553700&qnum=5000©num=1&exhcnum=1
In response to the full Commission's Order in the Auction proceeding, the FCC Staff took the checkbox off the form, but wrote the instructions for Form 301 and 349 (construction permit applications) to erroneously state that the requirements were still in place for site assurance; there was just no longer a question.
Problems for an FM Translator applicant brings glee in some circles. However, misinterpreting the FCC Order causes a much wider problem because the error effects all broadcast station auction applications. There may have been dozens of cases mistakenly argued on assurance of site availability, such as the FM Auction cases of Able Radio Corporation case in Tonopah, AZ and Christopher Falletti at Phillipsburg, KS.
Assurance of site availability issue is not the only non-regulation I discovered. In this same Order the Commission removed financial qualification from the auction application processing table as well.
Instructions for the FCC forms 349 and 301 insist that site assurance and financial qualifications of applicants remain an issue. People who don't like an application have filed petitions against auction applicants using these non-regulations, hoping that the applicant's legal costs will cause them to give up, or perhaps that because most applicants only respond to the points raised in the petitions, that the FCC Staff may dismiss the application.
When the Federal Communications Commission deregulates something, it should actually be deregulated and not made into a shadow requirement with vague and changing parameters. I should have researched the underlying Order earlier and seen that I was merely chasing shadows. That no one else saw it in all this time at least makes me feel less foolish.
Edward (Ted) Schober is a Consulting Engineer at Radiotechniques Engineering in New Jersey and can be reached at ted@radiotechniques.com
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