FCC ADMITS ERROR FOR GRANTING MATOON WAIVER TO FM STATION

Rarely does the FCC admit an error, and when they do, it is often in fine print.  The last footnote of an October 31, 2013 decision by the FCC is where the latest error admission can be found.

That decision considered the petition for reconsideration of a request for waiver of the FCC’s major change rule to allow the relocation of an FM translator so that the translator could rebroadcast the signal of a licensed FM station.  The FCC had earlier denied the request and dismissed the application, because the proposal did not meet the 4^th criterion for a Mattoon Waiver.

First, a little background on Mattoon Waivers.  In late-2011, the FCC granted a waiver of its minor modification rules to permit a “single-step” relocation of an FM translator for use as a fill-in translator by an AM station. The FM translator community of license was Mattoon, Illinois, and the waiver is now known as the “Mattoon waiver.” Here’s how Mattoon waivers work. Under Section 74.1233(a) of the FCC’s rules, the 60 dBu contour of the existing and proposed FM translator facilities must overlap to be considered a minor change. If they do not, then the modification sought is “major” and can only be sought during a filing window. Often, facility relocations of an FM translator to allow use by an AM station require greater distance moves than the minor modification rules permit. To avoid making several incremental moves at substantial cost or waiting for a filing window to open, applicants seek a waiver of the major change rule to allow the facility relocation in one step or application. Waiver requests face a high hurdle and require specific showings to warrant a grant. For Mattoon waivers, the FCC has defined the criteria it will consider in acting on the waiver request. A Mattoon Wavier applicant must show that: (1) it does not have a history of filing “serial” FM translator minor modification “multiple hop” applications; (2) the proposed facility is mutually exclusive to its licensed facility; (3) the proposed move does not implicate LPFM spectrum scarcity concerns; and (4) while not alone dispositive, the translator will rebroadcast an AM station as an AM fill-in translator.

Now back to the FCC decision.  On reconsideration, the applicant argued that even though its translator was going to rebroadcast the signal of an FM station, instead of the required AM station under the Mattoon Waiver 4^th criteria, it nevertheless should be granted as being in the public interest.  The applicant cited to the FCC’s grant of an earlier application granted by the FCC similar to its own, where the translator was to rebroadcast the signal of an FM station, and the applicant cited to the Mattoon decision in its request.  The FCC nevertheless declined to grant the petition for reconsideration, stating in a footnote that because the grant of the earlier application had occurred by public notice and did not discuss the waiver request, it was not binding precedent.  It then went the extra step, stating “we conclude that our grant of that application was in error.  However, that grant is final and cannot be rescinded.”  And with that, the FCC denied the petition for reconsideration because the proposed translator would have rebroadcast an FM, not an AM station.

Here’s what this decision tells us.  First, the FCC has now made it abundantly clear that Mattoon Waivers will only be granted if the FM translator is going to serve an AM station, and are therefore limited to the FCC’s efforts to revitalize the AM band (side note – in the AM Revitalization NPRM, the FCC has asked whether it should continue its Mattoon Waiver policy after it holds an FM translator filing window exclusive to AM stations). 

Second, this is only the latest in a series of decisions over the last few years where the FCC has pointed out that what applicants include in an application does not necessarily form the basis of the FCC’s decision on that application unless they write a decision that so declares.  So don’t put all of your chips on what you view as the FCC’s “reasoning” for granting an application unless they have rendered a decision that clearly relies upon that reasoning. Third, the FCC admits errors in fine print, so always read the fine print.  There, wasn’t that fun?