displacement applications

In a flurry of actions in the last week, the FCC has acted to assist LPTV stations and TV translators displaced by the TV incentive auction.   It also adopted rules to assist FM stations (including FM translators and Low Power FM stations) that were adversely affected by tower work caused by the incentive auction on the towers they share with TV stations. At the FCC meeting last week, the FCC issued its Report and Order agreeing to reimburse LPTV and TV translator stations for the expenses that they incur in changing channels to accommodate the shrinking of the TV band and the repacking of primary TV stations, as long as those expenses were not reimbursed by other parties (certain wireless carriers have reportedly reimbursed some of these stations for moving quickly to vacate their old channels). FM stations will also be reimbursed for their expenses incurred by tower work by TV stations involved in the repacking that displaced the FM station’s operations. The FCC did not adopt proposals for only partial reimbursement of expenses dependent on the length of displacement (see our article here for more on what those proposals were) – good news for FMs affected by these changes.

The FCC subsequently released a catalog of the types of expenses that would be reimbursed, with estimates for the expected range of those expenses. While displaced stations can seek reimbursement for other expenses that were incurred as a direct result of the incentive auction (excluding any reimbursement for lost sales or employee time), and for expenses that proved to be greater than the FCC’s expectations, the station seeking such reimbursement will need to prove that the expenditures were reasonable and justified. As noted in the Public Notice accompanying the catalog of reimbursable expenses, the FCC will be, at a later date, announcing when eligible stations can start filing for reimbursement. So if you are expecting reimbursement, watch for that notice.
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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?
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The FCC last week released a Public Notice describing the process for the filing of applications for replacement channels for LPTV stations and TV translators that are displaced by the incentive auction.  As the repacking of the TV band following the incentive auction will require LPTV and TV translator stations now operating on channels above 37 to move to a new channel below that channel, and as others will be displaced by full-power stations being moved from high channels to channels below 37 (or simply being rearranged on their channels to make room for some of the stations being repacked into the smaller TV band), this displacement window will be necessary for these LPTV/TV translator stations to continue to operate. The Public Notice sets out that the FCC will open a displacement window after full-power stations that were repacked as a result of the incentive auction have had their own windows when they can request alternative channels or increased facilities, as set out in the FCC’s auction Closing Notice (see that notice here).  The FCC estimates that the LPTV/TV Translator window will likely be announced 7 or 8 months after last month’s Closing Notice in the auction – meaning that it is likely to be announced at the end of this year.  As the announcement of the window will give LPTV and translator stations 60 days to prepare applications, and the window itself will last 30 days, it looks like we are looking at displacement applications being due late in the first quarter of 2018.

In addition to displaced LPTV stations and displaced TV translators, full-power TV stations that lost coverage areas because of the repacking will be able to file in this displacement window for a new class of translators.  In fact, these new translators will receive a preference over displacement applications for LPTV stations and TV translators if both happen to file for the same channel.  The FCC will, however, provide mutually exclusive applicants filed during the window an opportunity to move to a different channel to resolve any conflict.
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Late last week, the FCC advanced a number of proposals on how it will deal with LPTV stations and TV translators after the incentive auction and the repacking of the TV spectrum into whatever channels are left after part of the TV band is repurposed for wireless uses.  The Notice of Proposed Rulemaking raises a number of issues, including the potential for delaying the mandatory digital transition for LPTV stations and translators that continue to operate in analog.  The FCC also suggested a post-auction window for LPTV and translator stations to file for displacement channels if there current operations are no longer possible after the repacking of the TV band.  It also addressed the potential for LPTVs on Channel 6 being able to transmit, post-digital transition, an analog audio channel so that “Franken FMs” (“radio stations” received on FM radio receivers on 87.7 that really are the audio portion of the LPTV’s programming), can continue. 

Comments on these proposals will be due 30 days after publication of the Notice in the Federal Register, with reply comments 15 days thereafter.  Presumably, as the incentive auction is fast approaching, as is the current deadline for mandatory September 1, 2015 digital conversion of these stations (which we wrote about here when the deadline was adopted), the FCC will act quickly on the proposals that have been made.  So just what are the proposals on which the FCC is asking for comment?
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The FCC has just imposed a freeze on the filing of displacement applications for LPTV and TV translator stations, as well as displacement applications for Class A TV stations.  A displacement application is one that is filed to preserve a secondary station’s operations when a full-power station makes changes in its technical facilities that