Request Filed with the FCC to Stay Effective Date of New Liberalized Rules on the Location of FM Translators for AM Stations

Prometheus Radio Project, an advocacy group which has been active in lobbying for the interests of LPFM applicants and licensees, has asked that the FCC stay the April 10 effective date of the new rules liberalizing the location in which FM translators serving AM stations can locate (see its petition here). We wrote about those new rules here and here. Prometheus alleges that the liberalization in the rules will restrict the areas in which LPFM stations can locate their transmitter sites if the sites from which they currently operate become unusable. Their allegation is that the moves by these translators will “box in” LPFM stations at their current site. Based on this alleged harm, Prometheus asks for a stay of the effective date of the new rule while they appeal its adoption.

The petition does not say how this phenomena of “boxing in” LPFM stations will occur simply because translators can be located at distances greater than currently authorized. The new rules do not authorize new FM translators, and (contrary to some broadcast trade press reports published today) they do not give broadcasters another opportunity to move translators great distances from their current locations. All they do is change the rules so that, instead of limiting FM translators to the areas where their 1 mv/m contour does not extend beyond the lesser of the AM station’s 2 mv/m contour or a circle 25 miles from the AM station, the translator can operate in any area where its contour does not extend the 1 mv/m beyond the greater of the 2 mv/m contour or 25 mile circle. The new rules do not increase the permitted power of translators or in any other way significantly change their preclusive effect. In short, who is to say whether a translator will impose greater restrictions on LPFMs from their current locations or from locations authorized under the new rules?

To get a stay, an advocate must show that there will be irreparable harm from the proposal, that the harm cannot be rectified by money damages, that there is a likelihood that the proponent of the stay will be successful on appeal of the decision that it is seeking to stay, and that a stay is in the public interest. While we wonder if these tests can be met – especially proving the irreparable harm and the likelihood of success on the merits – even if a stay is not imposed, AM stations taking advantage of the new rule will have to understand that there is this petition pending, posing at least the theoretical possibility that any construction permit granted in reliance on the new rules could be overturned if the appeal is successful, and weigh with their counsel the likelihood of this risk arising when constructing new translators in reliance on these rules.