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Media Bureau Opens Limited FM Translator Application Settlement Period

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Released: April 30, 2014


Federal Communications Commission
445 12th St., S.W.

News Media Information 202 / 418-0500


Washington, D.C. 20554

TTY: 1-888-835-5322

DA 14-581

April 30, 2014

FM Translator Auction 83 Mutually Exclusive Applications Subject to Auction

Media Bureau Announces Immediate Opening of Settlement Period

Settlement Agreements and Primary Station Specification Amendments

Due by June 30, 2014

Today, the Media Bureau announces a two-month period beginning with the release of this Public
Notice and ending June 30, 2014 (the “Settlement Period”), for Auction 83 applicants with proposals in the
mutually exclusive (“MX”) groups identified in Attachment A to enter into settlement agreements and/or
otherwise resolve their mutual exclusivities by means of engineering solutions.1


On February 6, 2003, the Media Bureau and the Wireless Telecommunications
Bureau released a public notice announcing a March 10-14, 2003, FM translator auction filing window for
non-reserved band (Channels 221 to 300) applications for new FM translator stations and major
modifications to authorized FM translator facilities.2 By this Public Notice, the Media Bureau provides, as
Attachment A, a list of all pending window filed applications that it has identified as mutually exclusive
with other applications submitted in the filing window, and that have not been included in the previous
settlement Public Notice.3 Accordingly, these applications are subject to the Commission’s competitive
bidding procedures.4 If an applicant believes that a Form 349 Tech Box proposal has been erroneously

1 See Creation of a Low Power Radio Service, Fourth Report and Order and Third Order on Reconsideration, 27 FCC
Rcd 3364, 3386-87 (2012) (“LPFM Fourth Report and Order”).
2 See FM Translator Auction Filing Window and Application Freeze, Public Notice, 18 FCC Rcd 1565 (MB/WTB
2003) (“Auction 83 Filing Window Public Notice”). The window was subsequently extended to March 17, 2003. FM
Translator Auction Filing Window and Application Freeze Extended to March 17, 2003
, Public Notice, 18 FCC Rcd
3275 (MB/WTB 2003). Applicants were required to file FCC Form 175, Application to Participate in an FCC
Auction, and certain sections of FCC Form 349, Application for Authority to Construct or Make Changes in an FM
Translator or FM Booster Station, which permitted the staff to determine mutual exclusivities between applicants.
3 See FM Translator Auction 83 Mutually Exclusive Applications Subject to Auction, Public Notice, 28 FCC Rcd 9716
(MB 2013) (“Auction 83 Settlement Public Notice #1”).
4 See 47 U.S.C. § 309(j); 47 C.F.R. § 73.5000(a); see generally Implementation of Section 309(j) of the
Communications Act -- Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service

omitted from Attachment A, i.e., the Tech Box proposal is in conflict with at least one application listed in
Attachment A, or, the Tech Box proposal is in conflict with another Tech Box proposal and is not listed in
either Attachment A to this public notice or in the Auction 83 Settlement Public Notice #1, it should contact
immediately the staff listed at the end of this Public Notice.

Prohibited Communications.

The prohibition on certain communications set forth in
Sections 1.2105(c) and 73.5002(d) of the Commission’s rules became effective upon the filing of FCC
Form 175 and applies to all broadcast service auctions.5 However, in certain circumstances, the
Commission’s rules provide for a limited opportunity to settle, or otherwise resolve mutual exclusivities,
following the filing of the FCC Form 175 applications.6 Specifically, pursuant to Section 73.5002(d)(3) of
the rules,7 the MX group applicants listed in Attachment A are permitted to resolve their mutual
exclusivities by means of engineering solutions or settlements during the Settlement Period. However,
once this Settlement Period is closed, the prohibition on certain communications will again take effect for
such applicants.

Settlement Agreements

. Applicants resolving their mutual exclusivities by settlement must ensure
that their settlement agreements comply with the provisions of Section 311(c) of the Communications Act
of 1934, as amended (“the Act”), and the pertinent requirements of Section 73.3525 of the Commission’s
rules, including, inter alia, reimbursement restrictions.8 In the interest of expediting new FM translator
service to the public, the Commission will accept both universal – in which all applicants in the particular
MX group participate – and non-universal settlements. Universal settlements, however, are encouraged.
Non-universal settlement proposals must eliminate all mutual exclusivities between at least one application
and all other applications in the MX group.9 Parties to the settlement agreement must submit a joint request
for approval of settlement, a copy of the settlement agreement, the affidavits required by Section
73.3525(a) of the rules, and any necessary amendment(s) to their FCC Form 349 Section III-A Tech
Box(es) prior to the close of the Settlement Period.10 The staff will request complete FCC Form 349
applications from the surviving applicant(s) upon approval of the settlement agreement. 11

Licenses, First Report and Order, 13 FCC Rcd 15920 (1998) (“Broadcast First Report and Order”), on recon.,
Memorandum Opinion and Order, 14 FCC Rcd 8724 (1999) (“Broadcast First Reconsideration Order”), on further
Memorandum Opinion and Order, 14 FCC Rcd 12541 (1999).
5 See 47 C.F.R. § § 1.2105(c), 73.5002(d).
6 See Broadcast First Report and Order, 13 FCC Rcd at 15927, 15980-81; Broadcast First Reconsideration Order, 14
FCC Rcd at 8753-8759 (extending limited settlement opportunities to mutually exclusive auction applications in the
broadcast secondary services). See also Reexamination of the Comparative Standards for Noncommercial
Educational Applicants,
Second Report and Order, 18 FCC Rcd 6691 (2003) (“NCE Second Report and Order”).
7 47 C.F.R. § 73.5002(d)(3).
8 See 47 U.S.C. § 311(c); 47 C.F.R. § 73.3525.
9 See 47 C.F.R. § 73.5002(e).
10 See 47 C.F.R. § 73.3525(a); see also “Filing Procedures,” infra.
11 When submitting the complete FCC Form 349, surviving applicants must simultaneously submit the required Form
349 application filing fee and a Form 159, Remittance Advice. See Schedule of Charges at 47 C.F.R. § 1.1104.
Method and forms of payment are addressed in 47 C.F.R. §§ 1.1111, 1.1112. See also the Media Services Application
Fee Filing Guide and the FCC Form 349 instructions. The general exemptions to charges are specified in 47 C.F.R. §
1.1116. Governmental entities are exempt from this fee requirement. Also exempt are applicants for noncommercial

Technical Resolution Amendments

. Applicants resolving their mutual exclusivities by means of
technical resolution amendments, described supra, may do so by submitting an amended FCC Form 349
Section I, the Section III-A Tech Box, and the Section III Preparer’s Certification (October 2009 version).
Technical resolution amendments may be non-universal but the amendment must resolve all mutual
exclusivities between the application and all other applications in the pertinent MX application group.12 A
technical resolution amendment must be a “minor” change, as defined by the rules,13 to the engineering
proposal specified in its original Form 175 application and must not create new mutual exclusivity or
application conflicts. Amendments that propose major changes compared to the original tech box proposal
will be dismissed. The staff will request complete FCC Form 349 applications for technically acceptable

Potential Dismissal of Certain NCE FM Translator Applications.

Both commercial and
noncommercial educational (“NCE”) applications were submitted in the 2003 Auction 83 filing window.15
To better serve the public interest and to avoid the harsh result of dismissal based on subsequently adopted
processing rules,16 the Commission allowed certain applicants in prior broadcast auctions to amend their
station designations from “NCE” to “commercial.”17 To afford the similarly situated Auction 83 FM
translator applicants an opportunity to participate in the upcoming auction, the Media Bureau waived the
prohibition against major amendments to Form 175 filings and allowed NCE FM translator applicants to
de-select their earlier “noncommercial educational” status election.18 Attachment B identifies the
commercial/NCE status of each Attachment A applicant as specified on its Form 175 as of the close of the
April 8-April 17 de-selection filing window.

educational FM translator facilities, as defined in 47 C.F.R. § 74.1201(c). When filing a fee-exempt application, an
applicant must complete Section I, item 3 of Form 349 and provide an explanation.
12 See 47 C.F.R. § 73.5002(e).
13 See 47 C.F.R. § 74.1233(a).
14 See supra note 11.
15 Auction 83 Filing Window Public Notice, 18 FCC Rcd at 1565 n.1 (a window for proposals in the non-reserved
band provides a filing opportunity for both NCE and commercial FM translator applicants. See 47 C.F.R. §
74.1202(b) (specifying that noncommercial FM translators may be authorized to operate on Channels 201-300)).
16 Under the rules adopted in the NCE Second Report and Order, an auction applicant’s attempt to change its self-
identification from NCE to commercial is considered a major amendment, which is prohibited after the Form 175
filing deadline. See 47 C.F.R. § 1.2105(b)(2). Moreover, any application for an NCE station that remains mutually
exclusive with any application for a commercial station, after any settlement opportunities expire, is returned as
unacceptable for filing. See 47 C.F.R. § 73.5002(b).
17 See American Family Association, et al., DA 04-3037, Letter, 19 FCC Rcd 18681 (MB/WTB 2004) (Auction 37);
Supplemental Notice Concerning Status of FCC Form 175 Applications to Participate in Auction 37, Public Notice,
19 FCC Rcd 18696 (MB/WTB 2004); Christian Broadcasting, Inc., Letter, 24 FCC Rcd 2212 (MB/WTB 2009)
(providing a 30-day period to amend certain Auction 84 applications); Window Opened to October 30, 2009, to Permit
Amendment of Applications for Noncommercial Educational Stations in Pending, Closed Mixed Groups
, Public
Notice, 24 FCC Rcd 12188 (MB 2009) (Closed Broadcast Auction 88).
18 See Media Bureau Announces April 8-April 17 Filing Window to Permit Amendment of Auction 83 Noncommercial
Educational FM Translator Applications
, DA 13-587, Public Notice, 28 FCC Rcd 4132 (MB 2013) (“De-selection

An applicant is required to identify the primary station for each proposed translator in the FCC
Form 349, Section III-A Tech Box.19 Pursuant to the FM translator rules,20 specification of an NCE
primary station in the Tech Box defines an FM translator station as NCE and therefore renders an
application proposing such facilities as ineligible to participate in Auction 83.21 However, as stated in the
De-selection PN, Auction 83 FM translator applicants that had previously designated an NCE filing status
(in the 2003 Auction 83 filing window) and specified a corresponding NCE primary station in their Tech
Box, would be afforded an opportunity prior to auction to amend their NCE filing status and their primary
station designation on their respective Auction 83 Tech Box. The Commission previously provided an
opportunity, between April 8 and April 17, 2014, to deselect their NCE filing status. Applicants may use
the Settlement Period to modify primary station designations.

An applicant must specify both
commercial filing status and a commercial primary station in order to participate in Auction 83.

In accordance with Section 73.5002(b) of the rules, an NCE FM translator application that
remains in conflict with a commercial FM translator application after the close of the settlement window
will be returned as unacceptable for filing, and the remaining applications for commercial FM translator
stations will be processed in accordance with competitive bidding procedures.22 For these purposes, any
applicant that either proposes to rebroadcast the signal of an NCE primary station, or that selected “NCE”
status on their original Form 175 and did not timely file a de-selection amendment, will be considered
noncommercial educational. The Commission will proceed to auction with any remaining mutually
exclusive commercial proposals that are not resolved by the parties.

Filing Procedures.

Joint requests for approval of settlement agreement must be filed in original
and two copies, plus one additional copy for each applicant that is a party to the settlement, on or before
June 30, 2014
, with the Commission's Secretary, Marlene Dortch, Office of the Secretary, Federal
Communications Commission, 445 Twelfth Street, S.W., Room TW-A325, Washington, DC 20554. In
addition, it is requested that a courtesy copy of all such filings be delivered to James Bradshaw, Audio
Division, Media Bureau, Federal Communications Commission, 445 Twelfth Street, S.W., Room 2-B450,
Washington, DC 20554.
Applicants filing a technical resolution amendment must submit an amended FCC Form 349
Section I, the Section III-A Tech Box, and the Section III Preparer’s Certification (October 2009 version)
electronically through the Media Bureau’s Consolidated Database System (CDBS) online electronic forms
filing system. Applicants amending their specified primary station must file an amended FCC Form 349
Section I and the Section III-A Tech Box electronically through CDBS. A surviving NCE FM translator
applicant in a settlement agreement, or an NCE FM translator applicant that proposes to resolve its mutual
exclusivities through a technical resolution amendment, must also file electronically FCC Form 349.23 In

19 FCC Form 349, Section III-A Tech Box, Item 2.
20 See 47 C.F.R. § 74.1201(c) (defining a “noncommercial FM translator” as an FM broadcast translator station which
rebroadcasts the signals of a noncommercial educational AM or FM radio broadcast station).
21 See 47 U.S.C. § 309(j)(2)(C); 47 C.F.R. § 73.5000(b) (applications for NCE broadcast stations, as described in 47
U.S.C. § 397(6), on non-reserved channels are not subject to competitive bidding procedures).
22 47 C.F.R. § 73.5002(b).
23 These non-mutually exclusive NCE FM translator applicants do not need to fill out Form 349 Section IV-NCE
Point System Factors.

accordance with Section 1.1116(c) of the Commission’s rules, these Form 349 applications are exempt
from application filing fees.
Any applicant interested in filing a technical resolution amendment, and/or an amendment to
change primary station must contact James Bradshaw at no later than May 30,
2014, to make arrangements for electronic filing of an amended Tech Box proposal in CDBS before
the June 30, 2014 deadline.

For additional information, contact James Bradshaw, Rob Gates, Larry Hannif-Ali, or Lisa Scanlan
of the Audio Division at (202) 418-2700.

This Public Notice contains the following Attachments:

Attachment A:

FM Translator Mutually Exclusive Applications Subject to Auction

Attachment B:

Auction 83 Applicants’ NCE or Commercial Status Selection, as of the Close of the April
8-April 17 De-Selection Filing Window

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