FM Translator rules have not kept up with the times

FM translator stations, which are used solely to rebroadcast the signal of another AM or FM radio station are an important part of the broadcasting ecosystem. Created in 1970, FM translators have been used to extend noncommercial educational (NCE) FM stations into areas where full FM service would not be viable. Both NCE and commercial broadcast stations can use "fill-in" translators to rebroadcast their signal on a different channel in order to reach an area within their designated service contour that the main signal cannot be heard due to terrain or other obstructions. NCE FM stations were eventually given permission to use satellite and other methods to send programming to translators under certain conditions. By the year 2003, there were over 3,800 licensed FM translator stations.

With the enactment of federal legislation that mandated spectrum auctions for commercial purposes, the FCC completely reworked the policies for the licensing of new commercial and NCE stations (both full-service and translator) and in 2003, opened a general filing window for new FM translators in the non-reserved band (92.1~107.9 MHz) with hopes that many of these applications could be settled through auction. What happened next, was anticipated by the FCC. The 2003 "Auction 83" filing window garnered over 13,000 applications, of which 4,219 were filed by Radio Assist Ministries and Edgewater Broadcasting, both commonly controlled by the same person. In total, 15 different applicants accounted for more than half of the applications filed in the window. Upon receiving authorizations on their applications, Radio Assist and Edgewater would then turn around and sell the unbuilt construction permits to others. When REC stopped counting at the time, they had already racked up over $4 million in revenue from flipped construction permits. The FCC anti-trafficking rules that were in place at the time excluded unbuilt FM translator authorizations and it still does to this day.

Even in times when the FCC does not have auction authority due to lapses in Congress, the FCC can still open a window for noncommercial educational FM translators in the reserved band (88~92 MHz) as these do not require an auction. We need this translator reform before the FCC even thinks about opening such a filing window.

With future technological developments such as HD Radio and the FCC eventually allowing FM translators to be used to rebroadcast AM stations, the value of an FM translator had skyrocketed. In some markets, translator authorizations were selling in the 6 figures.

Following the 2003 window, which we called The Great Translator Invasion, many opportunities for new diverse community based Low Power FM (LPFM) stations were eliminated and caused the FCC to raise concern about the integrity of the licensing process. The window also inspired some of the language in the Local Community Radio Act of 2010, signed by President Obama in 2011 and as a result of the behavior during the 2003 window and the passage of the LCRA, the FCC put some interim handling processes in place nine years after the filing window, but they never made any permanent policy regarding FM translators in future filing windows.

Now that the FCC did conduct a filing window for LPFM stations in 2023, it would seem logical that the next opportunity for secondary stations will be for new FM translator stations.

REC's FM Translator Reform petition

On August 30, 2022, REC Networks had filed a Petition for Rulemaking with the Federal Communications Commission.

Add FM Translators to anti-trafficking rules

To address the issue of unbuilt construction permits being sold for a profit, we propose to include FM translators into the existing FCC rules that require that assignment applications involving unbuilt construction permits be limited to the legitimate and prudent expenses incurred by the assignor for the preparation and prosecution of the application and related expenses. This includes expenses involved in the assignment application.

Applicants will need to include an itemized schedule of expenses to justify the amount of the consideration.

For more information, see paragraphs 9 through 13 in the Petition for Rulemaking

Cap on translator applications filed in the window

To prevent mass filings, REC proposes that in the non-reserved band (92.1~107.9), a national application cap of 70 applications with no more than 50 applications being filed within the top-150 media markets.

For the reserved band (88.1~91.9), REC proposes a national cap of 18 applications with no more than 13 applications being filed in the top-150 media markets.

REC rejected proposing a "per-market" application cap due to the other protections already being put in place in this petition.

For more information, see paragraphs 29 through 31 in the Petition for Rulemaking

Closing the NCE Loophole

To assure that applicants who bypassed filing fees by filing as noncommercial educational (NCE) operate those translators noncommercially, we propose to include a condition on all NCE translator grants (in either the reserved or non-reserved band) that within the first four years of license operation, requires that if the FM translator's primary station is changed, that it can only be changed to another NCE broadcast station.

The only exception to the condition is if the primary station is not changed, but that station modifies their license to change from noncommercial to commercial, that change by the primary station will not violate the condition.

For more information, see paragraphs 14 through 19 in the Petition for Rulemaking

Assuring future LPFM opportunities in core market areas.

Section 5 of the Local Community Radio Act of 2010 (LCRA) requires that opportunities for new licenses must be available for both LPFM stations and FM translator stations. To assure that after an FM translator filing window that LPFM opportunities remain, we propose to reinstate the general concept of the grid and channel point methodology used by the FCC in 2012 to enforce the LCRA.

Under the channel point concept, we look at the area that is in a 31 x 31 minute (of latitude/longitude) grid around the core city of each of the 150 markets to identify LPFM opportunities. Based on a scoring formula, if a core market area is considered "spectrum limited", then FM translator applications cannot specify specific channels or locations that would preclude future LPFM opportunities. In core market area is considered "spectrum available", then no additional protections are required.

REC proposes to change the method originally used by the FCC to determine if a market is "spectrum limited" or "spectrum available" by using a simplified method that assigns all existing LPFM stations and potential LPFM opportunities. For LPFM opportunities, channel points chosen are based on their viability to maintain an LPFM audience and scoring will be based on the probability that an LPFM can be built there based on second-adjacent channel protections. FM translators in the grid area will be scored based on their general footprint of preclusion with special consideration given to FM translators used to rebroadcast AM stations. Core market areas where there is a disparity of LPFM presence and potential will be considered "spectrum limited" while areas with more LPFM presence and potential than FM translators will be considered as "spectrum available".

For more information, see paragraphs 20 through 28, 34 through 56 as well as appendices B and C in the Petition for Rulemaking

An interactive system showing the grids and channel points as well as the considered translator and LPFM facilities as well as the LPFM opportunities can be found at https://recnet.com/channel-points

Modernizing the NCE Fill-in Translator.

To address the changes in use for fill-in FM translators as a result of their usage for rebroadcasting AM stations and simulcasts of digital-only HD radio multicast streams, REC proposes to change the definition of a fill-in translator for noncommercial educational stations. This will also assure fairness and diversity in the event of mutual exclusivity since in the reserved band (88.1~91.9 MHz), fill-in FM translators are given priority over all other applications filed.

In the reserved band, REC proposes that in order for an application (new station or major change) to qualify as a fill-in station, the primary station that the translator is proposed to rebroadcast must provide either the first or second educational service within the service contour of the proposed translator. This method is somewhat consistent with the priority given to full-service NCE FM stations that are proposed to provide first or second educational service. Only those translators would be able to operate at power and heights that exceed those allowed for non fill-in translator stations.

This proposal does not impact any existing fill-in translator unless they make a major change in the filing window to specify operation in the reserved band.

This proposal also does not apply to new FM translators in the non-reserved band (92.1~107.9), where mutual exclusivty is normally settled by auction.

For more information, see paragraphs 63 through 82 in the Petition for Rulemaking

The first reserved band (88.1~91.9) translator filing window this century

REC proposes that the next filing window for new FM translators be for the reserved band (88.1~91.9 MHz), that has not had a filing opportunity since the 1990s.

For more information, see paragraphs 83 through 88 in the Petition for Rulemaking

Revision of translator and booster rules for LPFM licensees

In a review of the LPFM translator/booster cross-ownership rule (§73.860(b)), we propose to:

Uphold the current cross-ownership numerical limits of two translator and/or booster stations,
remove the requirement that a commonly-owned FM translator's service contour overlaps that of the primary station,
uphold the requirement that LPFM-owned translators not be used for HD simulcast,
allow for terrestrial feeding of FM translators that qualify as fill-in stations,
eliminate the Part 73 language that non fill-in FM translators must receive their primary station over the air and to clarify that an LPFM translator can receive their signal from another translator as long as proposed distance requirements are met,
modify the siting rules for LPFM owned FM translators from 10 or 20 miles from the LPFM station to 25 miles to the organization's headquarters, campus or 75% of the board members, consistent with the rules for mutually exclusive applications to be considered an established local applicant,
eliminate the 10 and 20 mile rules for LPFM boosters as these stations are already restricted to remain within the LPFM service contour and
eliminate the Part 73 rule that states that a LPFM booster must remain within the service contour of the LPFM station as that is redundant with the rule in Part 74.

For more information, see paragraphs 89 through 118 in the Petition for Rulemaking

As of June 26, 2023, this petition has been assigned RM-11952. Comments may be filed in the FCC's Electronic Comment Filing System.