Federal Communications Commission	DA 18-869


DA 18-869
August 22, 2018

SETTLEMENT PERIOD ANNOUNCED FOR CERTAIN FM TRANSLATOR MUTUALLY EXCLUSIVE APPLICATIONS 
Technical Amendments and Settlement Agreements Due by September 5, 2018


1. In this Public Notice, the Media Bureau identifies all remaining proposals for new FM translators filed in the March 10-17, 2003, filing window that are mutually exclusive with other proposals submitted in the filing window, and announces a limited period for those applicants to enter into settlement agreements or otherwise resolve their mutual exclusivities by means of engineering solutions. See 47 CFR § 73.5002(c)–(e).
  This limited settlement period will begin upon release of this Public Notice and end at 6:00 PM on September 5, 2018 (settlement period). Parties seeking to resolve mutual exclusivities must file a technical resolution amendment or a joint request for approval of their settlement agreement before 6:00 PM on September 5, 2018, and otherwise comply with the terms of this public notice.
2. MX Tech Box Proposals.  Attachment A to this Public Notice lists all pending mutually exclusive (MX) FM translator engineering proposals filed in the 2003 FM translator filing window. 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).  Certain technical proposals listed on Attachment A to this Public Notice were erroneously listed in the Bureau’s Consolidated Database System (CDBS) as having been dismissed in response to requests for dismissal that were filed outside of any announced settlement window, and, as such, those proposals and other MX proposals were not included in Auction 83, the recently-completed auction which resolved mutual exclusivity for other MX FM translator proposals filed during the 2003 window.  See Auction of FM Translator Construction Permits Closes; Winning Bidders Announced for Auction 83, Public Notice, DA 18-679 (MB/WTB June 29, 2018); Auction of FM Translator Construction Permits Scheduled for June 21, 2018; Notice and Filing Requirements, Minimum Opening Bids, Upfront Payments and Other Procedures for Auction 83, Public Notice, 33 FCC Rcd 2292 (MB/WTB 2018).  Those engineering proposals have now been restored to pending status in CDBS, with the exception of one proposal the dismissal of which is now a final action.  See Broadcast Actions, Public Notice, Report No. 48481 (MB May 4, 2015) (public notice of dismissal of proposal by Micro Communications, Inc., for an FM translator at Manti, Utah, File No. BNPFT-20030314ANE (Fac. Id. 143568)).
  These listed applications are subject to the Commission’s competitive bidding procedures. See 47 U.S.C. § 309(j); 47 CFR § 73.5000(a); see generally Implementation of Section 309(j) of the Communications Act – Competitive Bidding for Commercial Broadcast and Instructional Television Fixed Service 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 recon., Memorandum Opinion and Order, 14 FCC Rcd 12541 (1999). 

  Any Form 349 Tech Box proposals that are mutually exclusive after processing settlements or engineering proposals submitted during this settlement period will be resolved in a future auction.
3. Prohibition on Certain Communications.  The prohibition on certain communications set forth in Sections 1.2105(c) and 73.5002(d) and (e) of the Commission’s rules became effective for all applicants filing in the Auction 83 window on the March 17, 2003, deadline for the filing of FCC Forms 175. See 47 CFR §§ 1.2105(c), 73.5002(d), (e).  
  The Commission’s rules provide for a limited opportunity to settle, or otherwise resolve mutual exclusivities, as specified by public notice. See id. § 73.5002(d).  See also Broadcast First Reconsideration Order, 14 FCC Rcd 12451 (extending settlement opportunities to MX engineering proposals in secondary broadcast services). 
  Once this settlement period ends, the prohibition on certain communications will again take effect for such applicants and such mutually exclusive engineering proposals.  
4. Technical Resolution Amendments.  Applicants resolving their mutual exclusivities by means of technical resolution amendments, must contact James Bradshaw at James.Bradshaw@fcc.gov no later than September 4, 2018, to make arrangements for electronic filing of an amended FCC Form 349 Section III-A Tech Box in CDBS.  Technical resolution amendments may be non-universal, but the amendment must resolve all mutual exclusivities between the engineering proposal and all other engineering proposals in the MX group. See 47 CFR § 73.5002(e).
  A technical resolution amendment must be a “minor” change, as defined by the rules, See id. § 74.1233(a).
 to the engineering proposal specified in the original Form 349 application, and must not create new mutual exclusivities or application conflicts.  A technical resolution amendment that creates new application conflicts or that proposes a major change will be returned.  The staff will request complete FCC Form 349 applications for technically acceptable proposals that resolve all mutual exclusivities with other listed proposals. See infra note 14.
  
5. 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, 47 U.S.C. § 311(c).
 and the pertinent requirements of Section 73.3525 of the Commission’s rules, including, inter alia, reimbursement restrictions. 47 CFR § 73.3525.
  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 engineering proposal and all other engineering proposals in the MX group. See id. § 73.5002(e).
  Prior to the close of this settlement period, 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, Section 73.3525(a) requires that any such affidavit set forth:
(a) The reasons why such an agreement is in the public interest;
(b) A statement that its application was not filed for the purpose of reaching or carrying out a settlement agreement;
(c) A certification that neither the applicant nor its principals has received any money or other consideration in excess of the legitimate and prudent expenses of the applicant;
(d) The exact nature and amount of any consideration paid or promised;
(e) An itemized accounting of the expenses for which it seeks reimbursement; and
(f) The terms of any oral agreement relating to the dismissal or withdrawal of its application.
 and any necessary amendment(s) to their FCC Form 349 Section III-A Tech Box(es).  The staff will ultimately request complete FCC Form 349 applications from the surviving applicant(s) upon approval of the settlement agreement. When submitting the complete FCC Form 349, surviving applicants must simultaneously submit the required Form 349 application filing fee and Form 159, Remittance Advice.  See Schedule of Charges at 47 CFR § 1.1104.  Method and forms of payment are addressed in 47 CFR §§ 1.1111, 1.1112.  See also the Media Services Application Fee Filing Guide and the FCC Form 349 instructions. 

6. An applicant that seeks to unilaterally dismiss its engineering proposal that removes the mutual exclusivity without having entered a settlement agreement with another applicant nevertheless must submit an affidavit as to whether or not consideration has been promised to or received by such applicant in connection with its dismissal request. See 47 CFR § 73.3525(c). 

7. Filing Procedures for Settlement Agreements.  Parties filing a joint request for approval of a settlement agreement or a request for unilateral dismissal of an engineering proposal must file an original and two copies, plus one additional copy for each applicant that is a party to the settlement, on or before 6:00 pm on September 5, 2018, with the Commission's Office of Secretary. See 47 CFR § 0.401.
  Filings must be addressed to the Office of the Secretary, Federal Communications Commission, and can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail.  All hand-delivered or messenger-delivered filings must be delivered to the FCC Headquarters at 445 12th Street, S.W., Room TW-A325, Washington, DC 20554.  The filing hours are 8:00 a.m. to 7:00 p.m.  All hand deliveries must be held together with rubber bands or fasteners.  Any envelope or box must be disposed of before entering the building.  Commercial overnight mail (other than U.S. Postal Service Express Mail or Priority Mail) must be sent to the Federal Communications Commission at 9050 Junction Drive, Annapolis Junction, MD  20701.  U.S. Postal Service first-class, Express or Priority mail must be addressed to 445 12th Street S.W., Room TW-A325, Washington, DC 20554.
8. In addition, such parties should deliver a courtesy copy to James Bradshaw, Audio Division, Media Bureau, Federal Communications Commission, 445 12th Street, S.W., Room 2-A267, Washington, DC 20554.
9. All listed FCC Form 349 submissions are available for review in CDBS Public Access.  For assistance with electronic review and filing, call the Audio Division Help Desk at (202) 418-2662.	
10. Contact Information.  For additional information, contact Rob Gates, Larry Hannif-Ali, Jim Bradshaw, or Lisa Scanlan of the Audio Division, Media Bureau at (202) 418-2700.
11. For information on the FCC Form 175 or application of the competitive bidding rules, including the prohibition on certain communications, contact Lynne Milne in the Auctions and Spectrum Access Division of the Wireless Telecommunications Bureau at (202) 418-0660.  

This Public Notice contains the following Attachment:

Attachment A:  FM Translator Mutually Exclusive Applications Subject to Auction

–FCC–


3