FCC 2016

Dozens of companies have upgraded FMs from analog to digital and tied new multicast channels with FM translators to broadcast the list of available formats on the air in scores of markets. The Federal Communications Commission has yet to adopt a formal rule saying HD2 or HD3 stations can be relayed on translators, but in a new decision the Media Bureau reiterates its interim policy of allowing the practice to continue.

“We confirm that, generally, a licensee may use its additional digital bit rate capacity as it wishes, and is permitted to use FM translators to rebroadcast digital signals,” Audio Division chief Peter Doyle wrote in a decision, rejecting a North Carolina broadcasters’ challenge to the practice used by a cross-town operator. “The Commission has rejected arguments that rebroadcasting digital sub-channels over FM translators impermissibly creates ‘new FM stations’ in the subject market,” Doyle said.

The decade-old policy has been ad hoc since the Commission concluded in 2007 that a more complete record was needed before it adopted formal regulations on how HD sub-channels should be treated. Because those HD2 or HD3 signals serve “substantially the same area” as the main channel, the FCC has tentatively concluded the sub-channels meet the technical requirement that the translator fill-in programming of the FM they’re tied to.

But Doyle does say that broadcasters must continue to provide details on coverage areas when they seek to rebroadcast the same sub-channel on more than one translator in a market to ensure that the plan complies with the FCC’s translator rules governing such things as the signal delivery and a technical need.

While the latest ruling may have some companies that have invested millions of dollars in digital equipment and securing translators breathing a sigh of relief, communications attorney David Oxenford said it doesn’t settle the matter for good. “This implies that the Commission could, at some point, change its current practice and adopt limits on the use of translators to rebroadcast HD sub-channels,” he wrote in a blog post, adding, “We have no reason to believe that any change in policy is imminent.”

The case that prompted the Media Bureau decision came to the FCC from the Raleigh-Durham, NC market, where Curtis Media Group has sought to relay HD sub-channels on the Cary, NC-licensed translator W228CZ at 93.5 FM and two Rolesville, NC translators: W251CA at 98.1 FM and W254AS at 98.7 FM. The move had FCC approval, but Triangle Access Broadcasting—the operator of low-power variety “Oak 93.5” WRLY-LP in Raleigh-Durham—filed a petition for reconsideration arguing in part that when FM spectrum is scarce the public interest isn’t served when identical programming is served on three signals. Triangle said Curtis was attempting to “create at least one de facto FM station via a network of translators.” But Curtis said that wasn’t the case, arguing relaying HD sub-channels doesn’t improperly “switch” the primary station being aired on the translator. The FCC sided with Curtis, and the sub-channels are again cleared to air on the translators.