NAB, REC Oppose Prometheus Stay Request; Petition Expected Monday

Prometheus hasn't filed a petition for reconsideration of the rule removing the 40-mile limit on translator location – “a glaring procedural defect,” NAB said. “There must be a pending petition for reconsideration before good cause can be shown to stay the rule."

Prometheus will file a petition for reconsideration Monday, its attorney, Georgetown Institute for Legal Representation Senior Counselor Andrew Schwartzman, told us. That is also the effective date for the translator siting rule. “A brief delay” while the impacts of the FCC action are determined “is not such a terrible thing,” Schwartzman said. REC Networks also filed in opposition.

FCC elimination of the 40-mile distance limit is a large deviation from what the commission proposed in the notice and comment period, said Schwartzman. The FCC hadn’t previously “raised the possibility that it would eliminate any distance limitation,” said the petition. Numerous commenters in the proceeding raised the possibility of eliminating the 40-mile limit, NAB said in a footnote in its opposition filing. The agency did provide “proper notice,” NAB said.

By removing the limit altogether, the FCC vastly increased the siting options for FM translators, said Drew Simsaw, a graduate fellow at the Institute for Public Representation who's also representing Prometheus. Broadcast attorneys have written blog posts (see 1704060068) and articles (see 1704050065) criticizing the Prometheus request as an attempt to confer higher protections on low-power FM than other services enjoy. Schwartzman said the stay is intended to provide time to assess the potential problems with the rule. There are "indications there could be a flood of these applications," Schwartzman said. Full-power radio station lawyers believe relatively few AM stations will be in a position to take advantage of the looser rules.

​Since the rule potentially will allow AM stations to greatly expand their reach, it could “dilute” their value as community information sources, by making them less local, Schwartzman said. AM stations are struggling, and many need the economic boost a wider listening area could provide to stay alive, said Fletcher Heald radio attorney Frank Montero. The Prometheus stay request and petition are unlikely to succeed, because FCC Chairman Ajit Pai has long been a booster for FM translators and helping AM stations, Montero said. By choosing to help AM stations in a way that could limit relocation possibilities for LPFM stations, the FCC is providing "a small boost" to commercial radio stations "at great expense" to LPFM, Schwartzman said. LPFM stations need to relocate more frequently than other radio services because they're often less permanent installations, Schwartzman said.

The premise of Prometheus’ argument is “too speculative to justify a stay,” said NAB. “Notwithstanding their vigorous claims of ‘immediate and irreparable harm’ the fact remains that the Commission’s action may have zero impact on LPFM stations.”

​LPFM advocate REC Networks conceded translators “hugging up” against LPFM contours is an issue of concern, but also opposed the Prometheus stay request, in its opposition filing. “The decision of the FCC to extend the fill-in contour requirements provides relief to many community and minority-owned AM stations, especially rural Class C and DAM stations.” Prometheus “had opportunities to address their opposition to the expansion of the fill-in contour though filing comments in 13-249" as well as the opportunity "to file a Petition for Reconsideration in the First Report and Order,” said REC. “PRP's motion is untimely.”