The FCC on Tuesday released a Public Notice announcing a settlement window for mutually exclusive applicants in the Special Displacement Window (about which we wrote here and here) where LPTV stations and TV translators displaced by the incentive auction (either because they operated on channels above 37 that will no longer be used for television in the compacted TV band, or because some full-power or Class A TV station that had to move to accommodate the smaller TV band was put onto a channel that interferes with their current operations). When two or more applicants filed in the displacement window for channels that cannot co-exist without causing each other destructive interference, they are considered to be mutually exclusive, and are covered by this window. Appendix A of the public notice lists displacement applications that are mutually exclusive.
The public notice advises that parties with mutually exclusive applications may resolve their mutual exclusivity by an engineering amendment to resolve the mutual exclusivity or through a legal settlement filed between October 30, 2018 and 11:59 pm EST on January 10, 2019. Absent settlement, the mutually exclusive displacement applications will go to auction after the close of the settlement period.
Legal settlements need to be submitted for FCC approval, showing that they comply with FCC rules on such settlements. These include evidence that any payments being made do not exceed an applicant’s to legitimate and prudent expenses in pursuing the application – in other words, no big payoffs to walk away from an application.
Unilateral engineering settlements must be defined as a “minor change” under FCC rules (ruling out most channel changes). The Commission does provide some opportunity for application changes that would not normally be considered minor. The FCC urges parties who work out legal and engineering settlements to, wherever possible, resolve their mutual exclusivity through minor engineering amendments, as defined by the FCC rules. However, applicants that are unable to resolve their mutual exclusivity through a minor engineering amendment may, as part of their legal or engineering settlement, amend their application(s) to propose a new available channel. The new channel proposal may not create a new mutual exclusivity or conflict with any other application previously-filed in the Special Displacement Window.
So, if you have a displacement application on the FCC’s Public Notice, to avoid an auction, see what you can work out by the January 10 deadline.