In Monday’s Federal Register, publication is scheduled for the FCC’s Notice of Proposed Rulemaking on reimbursing LPTV stations, TV translators and FM radio stations (both full-power and FM translator stations) for costs they incur because of the TV incentive auction and the resulting repacking of the TV spectrum. The publication in the Federal Register means that comments on the FCC proposals are due September 26, and reply comments on October 26.

The FCC’s Notice of Proposed Rulemaking proposes reimbursing the costs of LPTV stations and TV translators (including Digital Replacement Translators) for moving to new channels. These channel moves were required either because of the contraction of the TV band after the auction (requiring that TV channels above 37 be cleared of TV users so that the upper channels can be repurposed for wireless users) or because these secondary stations operate on channels on which full power stations were relocated as the FCC shuffled channels to fit all remaining full-power and Class A stations into the smaller TV band. Radio stations operations may be disrupted by the repacking principally when those stations operate on a tower used by TV stations. Radio stations either may have to relocate their antennas, either permanently or temporarily, to another tower (or elsewhere on the existing tower) to accommodate the installation of a new TV antenna or other work on the TV stations on the tower. What does the FCC propose?

TV translators and LPTV stations are eligible for reimbursement if they filed for a construction permit in the recent displacement window (see our posts here, here and here about that window). The statute authorizing the reimbursement also requires that the station must have been operating (meaning that it was licensed) on April 13, 2017. The statute also required that the station had been licensed and transmitting during 9 of the 12 months prior to that date. The Commission asks for comments on what it meant to be “transmitting” during that period, suggesting that it meant that the station actually was on the air for the minimum number of hours required by the rules during 9 months of that year prior to April 13, 2017.

For FM, the calculus is a little harder. While some FMs may be permanently displaced by the mounting of new TV antennas on the towers where they currently operate, others might only have to relocate temporarily while tower crews work on the tower installing new TV equipment. For stations that have to move permanently, or have to relocate their equipment at their existing sites, all of their costs would be reimbursed. For stations that have to move only temporarily, the FCC proposes a more graduated payment scheme recognizing that some service disruption would not be unheard of in normal operations to accommodate repairs, replacements and maintenance of stations on a station’s tower, and the government should not have to pay for this kind of normal service disruption. So if a station needs to go off the air for less than 24 hours, or only during the hours of 10 PM to 6 AM, there would be no payment. If the station would be off-air for 24 hours to 10 days, half the costs of temporary facilities would be reimbursed. For 11 to 30 days, 75% would be reimbursable. For more than 30 days, the full reasonable costs of an interim facility would be reimbursable.

For neither LPTV/TV Translators nor FM stations will any reimbursement be paid for loss of revenues caused by the technical changes under the FCC’s proposal. And only the actual costs of equipment and services to accommodate the technical changes required would be reimbursed. The costs must also be reasonable under the proposal – the FCC making clear that it would require the re-use of existing equipment to the extent possible – so costs of a shiny new transmitter would not be reimbursed if current equipment can accomplish what needs to be done.

There are other questions asked about the reimbursement process, including trying to determine exactly how much money allocated by Congress can be used for this reimbursement. The paperwork that parties seeking reimbursement need to file is also the subject of proposals in the NPRM. While most LPTV, FM and translator operators would have preferred that their operations not be disrupted by the incentive auction, the burden is at least somewhat cushioned because a good part of their costs of dealing with the disruption may now be reimbursed. If your operations will be affected by the repack, read the FCC proposals carefully to see how they may impact your ability to share in the reimbursement – and consider filing comments in this FCC proceeding.