First, the applicant did not have a history of submitting serial minor change applications that resulted in the previously mentioned facility hopping. As the Commission noted in the grant of the waiver, some licensees had been hopping translators 100 miles or more in distance. Not only does the long term hopping of a translator accomplish what is technically prohibited under the Commission's Rules, it also implicitly creates problems with the 1945 Ashbacker case. That case essentially requires competing applicants in the same situation to be given the same chance when applying for the same license. Because a major change application would have to be filed under a window, which is in essence a freeze, other applicants could reasonably argue their Ashbacker rights have been frustrated.
Next, the Commission noted that the proposed facility was mutually exclusive with the licensed facility. This condition is one that can be applied to changes in full power station allotments. If a proposed allocation is mutually exclusive with a currently authorized one, then a competing applicant is not denied any opportunities since they would ne be available in the first place due to the licensed allocation.
Translators and LPFM
Under the Third Further Notice for the LPFM service, the Commission noted that many of the pending translator applications by virtue of their existence preclude LPFM opportunities in many locations. To prevent further erosion of LPFM opportunities, a threshold floor for LPFM service based on market size was created. The Commission noted in this instance that the relocation of the translator did not cause issues with this concept.
Finally, the proposed facility would be utilized as an AM fill-in translator, the single application would conserve Commission resources, and the applicant could avoid substantial delay and expense in providing this valuable service to the residents of its community. These factors, in addition to the previous three, were deemed sufficient to meet the public interest threshold, and the requested waiver was granted. Since that original waiver grant, numerous similar requests have been met with favorable treatment by the Commission.
The ire of the Commission toward multiple licensees seems to have been raised over additional flagrant violations by those licensees. First, it was well known that many facilities for which license applications had been filed were never in fact constructed. It is important to remember that the Commission has the assumption that all information submitted to it is factual, thus issues with candor really cause them to get unglued for obvious reasons.
Secondly, many proposed facilities did not meet any sense of site assurance or availability. Initially after the ending of most site location map requirements, an applicant could probably skate through an unregistered tower easily, since the Staff was not likely to dig out the USGS topographic map and verify your location. Now that multiple satellite imagery websites are available, it is quite simple for the Staff to check on your proposed location. Logic would dictate that no site assurance was granted for the shoulder of a highway or an Interstate rest area.
Although the translator rules have not changed in essence over the past year, some key policy changes have. The discussed waiver makes it easier for translators to be used for AM facilities, but the Third Noticemakes it more difficult in certain cases to move a translator into urban markets. Because the wheels tend to grind slowly in Washington, the six-month processing freeze imposed in 2005 is still in effect. The signals coming out of the Commission, however, seem to indicate that we should see some movement in this arena in the near future. This future could possibly even be reached this spring.
Ruck is a senior engineer with D.L. Markley and Associates, Peoria, IL.