An order deciding on the steps the FCC will take to revitalize AM radio is currently being actively considered by the Commissioners. As we wrote earlier this week, the biggest argument about the proposal that is circulating is reportedly whether or not that order will provide for a window for filing for new FM translators specifically to be used for the rebroadcast of AM stations. As we wrote, the FCC Chairman has indicated his opposition to that proposal – and the reasons for that opposition were made clearer in the press conference following yesterday’s open FCC meeting. While AM radio was not on the agenda of the meeting, the Chairman was nevertheless asked about his opposition to the AM-only translator window. His response? He said something along the lines of – Everybody has the right to ask for free spectrum, but it’s not the general policy of this agency to give it away. It seems to me that this cannot be the full reason for his opposition, as the process for awarding FM translators generally results in spectrum being given away for free – and Congress in fact set up the system that way, reserving an auction only as a last resort in the award of FM translators. An AM-only window for FM translators is no more a give-away of free spectrum than is any other translator filing window.

Applications for new FM translators are filed during pre-announced auction filing windows. If, during one of those windows, mutually exclusive applications are filed (applications that, for technical reasons conflict with each other), these applications are not immediately thrown into an auction as would be the case when there are mutually exclusive applications for full-power FM or TV channels. Instead, pursuant to the Congressional authorization for the auctions used to award spectrum to commercial broadcasters, an auction is used for secondary services like FM translators, and for AM stations where there are no pre-allocated channels, only where the applicants cannot themselves first find a solution for their mutual exclusivity. Thus, once applications are filed, the FCC announces a window during which applicants can work together to coordinate modifications to their proposed facilities to attempt to come up with engineering solutions so that both applications can be granted, or to work out other permitted settlements. As a result of the 2003 FM translator window, the FCC has already granted thousands of new FM translators – and none of these applications were granted as the result of an auction (see our articles here, here and here about the grant of these translators). All were either singletons (meaning they were not technically mutually exclusive with any other application) or they were granted after engineering amendments or other settlements resolved their mutual exclusivity. All of the thousands of new FM translators granted after the 2003 window were “free spectrum,” no different than any applications that would be granted following any AM-only translator filing window.

Even in an AM window, it is not clear that all of the spectrum would in fact be free. If there are mutually exclusive applications for the same translator channel in a market, and that mutual exclusivity cannot be resolved in any other way, it is likely that the mutually exclusive applicants would end up in an auction. In some major markets where existing FM stations, FM translators and LPFM stations use up much of the FM spectrum, and where there are many AM stations that will likely want a new FM translator, it is likely that there will be such situations where demand exceeds supply and where there will be mutually exclusive applications. Even if the FCC does give preference to certain AM stations (e.g. there have been proposals to give daytime-only AM stations a preference in getting FM translators), in certain markets there still may be situations where the preferences leave more AM stations than translator opportunities – meaning that any mutual exclusivity will likely have to be resolved through an auction.

So FM translators awarded though an AM-only window will no more be “free spectrum” than is any other FM translator awarded through any other window. Certainly, in the rapid give and take of a press conference, the Chairman’s comments may not have reflected all of the concerns that he has about an AM-only window for FM translators – but the idea that it is an AM-only FM translator window would be some kind of unusual give-away of “free spectrum” simply does not withstand review.