You may remember a few years ago, the FCC cracked down on “serial modifications” of FM translators to move them from rural to more urban areas (see, for instance, the cases about which we wrote here and here), considering such moves an abuse of process. In a decision released earlier this week, it looks like the FCC’s Audio Division may be backing away from that policy. In that decision, the FCC approved an application for a move of a translator into Chicago as the 4th hop from the translator’s original site in rural Illinois.
In the old decisions, the FCC had looked at instances where operators tried to move translators to big markets through multiple minor change applications – accomplishing through these “hops” what they normally could not do except during a major change window for translator applications – something that has not happened for since 2003. These old decisions deemed it an abuse of process to accomplish through multiple steps what an applicant could not do through a single application, especially when the applicant evidenced no intent to serve the public at any of these interim locations. In these cases, the applicant had often constructed on a temporary basis at a hop location, only to take the translator off the air after just a few days of operation (often dismantling the tower too). The decision this week looked at a slightly different situation and found that the multiple hops into Chicago were permissible – and set out criteria for determining whether such hops were permissible or not.
The criteria that will be reviewed in determining whether or not a series of hops will be considered an abuse of process include the following, none of which is by itself determinative:
- Whether temporary construction was involved – if a site was constructed with a temporary tower and dismantled soon after construction, it would be more likely to be seen as an abuse, while a permanent installation on an existing tower would tend to indicate a legitimate operation.
- The duration of operations – if the translator operates for only a few days at a site, it would be more likely to be seen as an abuse – sustained long-term use would tend to indicate the opposite.
- Reason for the move – if the translator is moved because of damage to the tower on which it is operating or to resolve interference, a move that might otherwise seem to be troublesome could be approved.
- A review of the pattern of changes – if the changes are clearly an attempt to move from a rural area to a more urban one, that would indicate that it was an abuse – but that would not necessarily be determinative.
In this case, the FCC found that, as the licensee had operated at two of the interim sites for more than a year, and constructed all three interim sites on existing towers from which the translator operated on a constant basis (rather than for just a few days or for just a few hours per day), the serial moves were not an abuse of the FCC’s processes and granted the move into Chicago. This decision presents opportunities for translator operators going forward. If you have a translator and want to move it to a nearby bigger city, carefully review this decision to see what might be possible.