Prometheus Radio, along with other independent media advocacy organizations, urged the FCC on September 15, 2005, to extend a freeze on pending FM translator applications.
To read the entire motion, please visit FCC motion regarding extending application freeze - 9/15/2005

 
MOTION TO EXTEND FREEZE ON PENDING FM TRANSLATOR APPLICATIONS

Prometheus Radio Project, Future of Music Coalition, Free Press, Media Alliance, Office of
Communication of the United Church of Christ, Inc., Common Cause, Center for Digital Democracy,
Benton Foundation, Reclaim the Media, and US PIRG (“Movants”) request that the Commission
extend, with minor modifications, the freeze put in place on March 17, 2005, as part of the Further
Notice of Proposed Rulemaking in MM Docket No. 99-25. See In re Creation of a Low Power FM
Service, Second Order on Reconsideration and Further Notice of Proposed Rulemaking, 20 FCCRcd
6763, 6778 (2005) (FNPRM). In addition, parties urge the Commission to act on the Emergency
Petition for Freeze on Pending FM Translator Applications (filed March 9, 2005)(Emergency
Translator Petition), which would expand the scope of the existing freeze to include “all applications,
whether for construction permits, licenses, or applications for transfer associated with the translator
window opened on March 10th, 2003. Id. at 1.

BACKGROUND
On March 9, 2005, Prometheus Radio Project, et al. filed the Emergency Translator Petition.
As explained therein, Petitioners had accumulated evidence demonstrating that three companies under
the control of the same individuals had filed construction permits with the intent to traffic in the naked
construction permits in violation of Sections 309(j)(3)(C) and 309(j)(4)(E) of the Communications
Act. Although the bulk of the filing concerned the actions of the named parties, Petitioners also
observed that several other companies had likewise filed bulk applications for 500 or more translator
construction permits. In light of the evidence, Petitioners argued that the precautions taken by the
Commission to enforce the anti-trafficking requirements of 309(j)(4)(E) had proven inadequate. In
addition to requesting the Commission act on the specific allegations of abuse, Petitioners asked the
Commission to freeze all applications associated with the window (whether filed by the named parties
or filed by others) investigate whether such trafficking in construction permits was widespread.
Depending upon the outcome of the investigation, Petitioners suggested the Commission must
determine what new rules to adopt to prevent trafficking in accordance with Section 309(j)(4)(E) and
whether to dismiss pending applications and open a new window using the new rules.
The Commission has not yet acted on the Emergency Translator Petition. Instead, on March
17, the Commission issued the FNPRM. In the FNPRM, the Commission asked “whether and, if so,
under what conditions LPFM applications should be treated as having ‘primary’ status to prior-filed
FM translator applications and authorized FM translator stations.” Id. at 6778. As an interim
measure, the Commission sua sponte imposed a 6-month freeze on granting new station construction
permits while the Commission “consider[s] these important questions.” The freeze became effective
upon release of the FNPRM, and will therefore expire on September 17, 2005.
Although the Commission released the FNPRM on March 17, it did not appear in the Federal
Register until July 7. Subsequently, the Commission extended the deadline for comments to August
22, with replies due September 21. As a result, the Commission will not even have finished the
official comment cycle, let alone considered the record and proper policy, when the freeze expires.
The Commission did not mention the Emergency Translator Petition in the FNPRM or act
on it in any way. Rather, the Commission based its decision on comments generated in the Localism
NOI and on the basis of a public forum on LPFM held February 8, 2005. FNPRM, 20 FCCRcd at
6766, 6778. Accordingly, the motion for a freeze on all applications, not merely on grant of new
construction permits, remains pending before the Commission.

ARGUMENT
The Commission should immediately grant the requested freeze on all applications associated
with the March 2003 Translator Window as requested in the Emergency Translator Petition for the
reasons granted therein. In particular, the Commission should freeze both the grant of any new
construction permits and of any transfer applications. Every transfer application granted potentially
represents a violation of Sections 309(j)(3)(C) and 309(j)(4)(E), providing an unjust enrichment to
private parties at the expense of the public.
Even if the Commission does not chose to act on the Emergency Translator Petition at this
time, the Commission should extend the freeze on grant of construction permits that it imposed sua
sponte in the FNPRM. The Commission imposed the freeze so that it could consider the proper
policy on whether to grant LPFM applicants primacy over previously filed translator applications or
previously granted translator applications. As a result in the delay in publication and subsequent
extensions granted by the Commission, the freeze will now expire before completion of the comment
cycle. The reasons for granting the initial freeze continue to apply, and the Commission should
therefore extend the freeze until it completes its determinations in the rulemaking proceeding.
Movants recognize that the March 2003 Translator window was the first since the
Commission froze translator applications and major modifications in 1998 to consider how to
implement Congress’ directive to resolve license conflicts via competitive auction. Movants have no
intent to cause undue hardship on applicants in the 2003 Translator Window that applied in good faith
for translators or major amendments needed to cover their pre-existing service area.
Accordingly, Movants suggest that the Commission modify the freeze as follows. The freeze
will not apply to applications filed by any entity that filed ten or fewer applications. The Commission,
however, would freeze all transfer applications. This would allow those who filed applications to fill
gaps in their coverage area to construct translators while preventing either significant expansion of
pre-existing coverage areas or trafficking in construction permits. The freeze should remain in place,
however, until the Commission resolves the issue of whether LPFM applicants should have primacy
over translator applicants or granted translator licenses.

CONCLUSION
WHEREFORE, the Commission should either grant the Emergency Translator Petition and
impose a freeze on all translator applications and transfer requests associated with the March 2003
Translator Window, or should extend and modify the freeze on translator applications imposed in
the FNPRM.

To read the entire motion, please visit FCC motion regarding extending application freeze - 9/15/2005