FCC uses terrain data in NCE-FM channel reservations


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In November 2003, the Commission opened a window for noncommercial entities to reserve for noncommercial use vacant FM allotments that had previously been set aside for auction. Because newly allotted FM channels in the commercial band are subject to auction, and because noncommercial channels (and applicants) are not expected to be involved in auction proceedings, the Commission had to come up with a way by which commercial channels might, in some limited circumstances, be reserved for noncommercial use and thereby be removed from the auction process.

To that end, the Commission adopted standards by which parties could petition the FCC to convert commercial FM allotments for noncommercial use so long as certain threshold qualifications were met. Communities out of the reach of existing NCE stations were preferred.

Two petitioners submitted proposals that appeared to qualify under the reservation process. However, both proposals were dismissed by the Commission's staff because the petitioners used engineering studies showing the actual terrain within the proposed service areas to determine the population that would receive first and second local service. The use of actual terrain in determining population typically increases the population. However, historically the Commission has declined to rely on terrain data in its FM channel allotment process, in any context, because such data tend to be derived from a specific assumed transmitter site, and in most FM allotment proceedings the successful applicant does not have a final transmitter site in mind at the allotment stage.

On recent reconsideration, however, the staff reinstated the proposals. In so doing the staff created a limited exception applicable to noncommercial FM reservation petitions. Petitioners proposing to reserve FM allotments for noncommercial use will be able to use actual terrain data to show compliance with the first and second local service requirement, as long as they certify that they have reasonable assurance of the transmitter site specified in the petition, and they have received FAA approval for the proposed construction. Finally, the petitioner will need to submit an application that meets the requisite level of first and second local service.

The overall impact of this ruling is unclear. It is at least conceivable now that Longley-Rice or other terrain data models could be extended to commercial proposals as well, in which case parties seeking to add or modify channels could choose hypothetical sites to support an otherwise-defective allocation proposal.

Buy an FM translator now

AM daytime stations might want to consider purchasing an FM translator or translator CP in their markets now. The NAB-sponsored proposal to allow AM stations to use FM translators to serve their communities at night is likely to be adopted. However, even if new rules are adopted in a year or two, trying to apply for a new translator is likely to be frustrating. After an AM-friendly window is opened, thousands of new applications are likely to be filed, many of which will be mutually exclusive with each other. The Commission still hasn't processed any of the thousands of mutually exclusive translator applications filed in the March 2003 window. The prospect for speedy processing of thousands more are dim at best. But AM broadcasters willing to take a risk might want to locate and purchase an existing translator CP now. A constructed translator would be ready for use the day the new rules become effective. There would be no waiting for the FCC to process the application. During the wait for the new rules, the signal of a noncommercial station could be rebroadcast. If the rules never materialize, the facility would at least have some resale value.


Dateline

Dec. 1 is the deadline for radio stations in the following states to file their 2006 biennial ownership reports: Colorado, Minnesota, Montana, North Dakota and South Dakota.

Dec. 1 is the deadline for radio stations in the following states to place their 2006 EEO reports in their public files and post them on their websites: Alabama, Colorado, Connecticut, Georgia, Massachusetts, Maine, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont.


Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald & Hildreth, Arlington, VA. E-mail martin@fhhlaw.com.



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