Audio Division Tightens FM Translator Mattoon Waiver Criteria

Three years ago, the FCC first began granting waivers for the relocation of certain FM translators so they could be used with AM stations. Called Mattoon waivers, the FCC adopted four criteria for granting such FM translator moves, waiving its major change rules to help AM stations.

The first of the four criteria was designed to prevent the applicant from getting a waiver if it had “a history of filing serial minor modification applications.” Prior to the Mattoon waiver, it was not uncommon for FM translator stations to move a translator over long distances by filing a series of minor modification applications, constructing and operating the station briefly at each stop along the way, then filing a new minor mod application. The FCC ultimately concluded that practice defeated its minor modification rule, so it blocked so-called “serial hoppers” from getting a Mattoon waiver. Serial hopping was largely defined in a substantial case where the FCC punished a multiple hopping FM translator licensee by taking away a few licenses. From that decision, “a history of filing serial minor modification applications” was pretty clearly defined as several moves over an extended period. Or so we thought.

The somewhat open question that bugged many an FM translator licensee or permittee was whether only two moves of a translator would be too many, and disqualify an applicant from qualifying for a Mattoon waiver. That honestly didn’t seem likely. Well, we now have the answer to that question from a new FCC decision, but it is not the one many were hoping for.

Let’s review the FCC’s decision and logic. Prior to seeking a Mattoon waiver, the applicant in the case before the FCC had filed for, received and built out a minor change application to relocate the translator 8 kilometers from its original location. From that new location, the applicant then sought a Mattoon waiver to relocate to within the appropriate contour of an AM station. Seems innocent enough, huh?

Not so fast. The FCC questioned the earlier move, and the applicant claimed it was unrelated to the second move, but gave no other explanation for it. The FCC’s engineers called foul, finding that the previous transmitter location of 8 kilometers “was designed to place the Station so that its 40 dBu contour overlapped the 60 dBu contour of the newly proposed facility in order to satisfy the Mattoon criterion of mutual exclusivity. But the Audio Division didn’t stop there. Instead, it characterized the applicant’s actions as an abuse of process, and then found that the applicant could not meet the first Mattoon criterion – absence of a history of filing serial minor modification applications. Ouch.

The last time we checked, “serial” means occurring in a series, not simultaneously. Webster doesn’t go so far as to say that two constitutes a series, and from all prior FCC decisions, that certainly wasn’t made clear. Then there is the definition of “history”. Some definitions of “history” make no reference to time at all. Others use the word “systematic”. For the FCC’s take, one might surmise that “history” is anything in the past – anything at all.

But we digress. The easiest conclusion from this decision is that even two translator moves makes an applicant a serial hopper, and ineligible for a Mattoon waiver. That might be a good general rule, but the Audio Division did leave a very small crack in the door, suggesting that if there was some other legitimate reason for the long distance move — such as the unavailability of existing translators in the proposed area — it might have reached a different conclusion. We can think of perhaps other factors that might also fit through that small crack, such as a greater length of time at the first location or interference that forced the first relocation. Maybe.

The FCC’s decision is a hard lesson to learn, and not really fair, since it appears to have completely ignored the public benefit of revitalizing at least one AM station that could have used the translator to provide a usable audible signal for reception to the public. We’ve all learned a “buyer beware” lesson here – acquiring a translator to help your AM station must be done with extraordinary caution and a hyper-analysis of the Mattoon criteria as it applies to the FM translator at issue. In any acquisition, prudence counsels to add a closing condition that the translator move has to be approved before money exchanges hands.

This decision comes on the heels of last month’s decision denying a nearly-2-year-old application seeking a waiver of the FCC’s major modification rule for an FM translator relocating to within the 0.025 mV/m interference contour of an AM station. The so called “Tell City Waiver” application was summarily dismissed by the FCC, AM revitalization be damned.

Perhaps the Audio Division’s denial mindset when it comes to AM stations is tied to a coming liberalization of such rules in the context of the FCC’s AM Revitalization NPRM, though we don’t have any hints in that direction. A stated goal of Commissioner Pai to have an order in that proceeding by Halloween seems to have evaporated, with no such item even on circulation at the FCC.

We note that when the FCC dismissed the Tell City Waiver application last month, Commissioner Pai issued a statement lamenting the Audio Division’s reluctance to provide immediate relief to AM broadcasters. He also called again for the FCC to provide immediate relief and open an FM translator window only for AM stations. The wait continues.