By Gregg Skall
MBA FCC Counsel
The FCC has finalized its rules to implement the Local Community Radio Act of 2010 (the “LCRA”), which requires balancing the competing needs of the FM Translator and Low Power FM (“LPFM”) services. Specifically, the FCC has adopted procedures to manage the backlog of translator applications that remain from its March 2003 filing window and has modified the criteria to be used to resolve mutual exclusivity among new LPFM applications, for which it plans to open a filing window in October 2013.
The FCC has modified its proposed limit upon the number of translator applications that it will process from a single applicant. It affirmed the need for limits due to concern over the extreme numbers of applications from just a few bulk-filers in the prior window, the significant percentage of granted permits that were never built, and attempts to assign authorizations just before a prior cap was to have taken effect. These indications led the Commission to conclude that many filings had been speculative and to seek more refined means to avoid abusive behavior in the future. To discourage trafficking in translator permits, the FCC rejected suggestions of imposing holding periods or limitations upon sale prices and instead established two new standards – a national limit of 70 filings in a given translator window, of which only 50 could be in 156 specified Arbitron Metro markets, plus a concurrent regional limit of three filings per market.
In response to petitioners who pointed out the insufficiency of translators’ small coverage radii to cover a market, the FCC expanded its former proposal of only one application per market to three. Even so, the FCC will impose two conditions upon applicants seeking more than a single facility in one of the 156 designated markets. First, there can be no 60 dBu contour overlap among the applications nor with the 60 Bu contour of an applicant’s existing translator authorizations. Second, each application must demonstrate that grant of the proposed translator will not preclude a future LPFM application. Acceptable showings must follow the methodology detailed in the Commission’s prior March 2012 LPFM Fourth Report and Order.
The Commission will require applicants having more than the maximum number of national or regional pending applications to specify those they wish to prosecute and to submit amendments demonstrating compliance with the national and regional caps and with the contour overlap and LPFM preclusion conditions. A future public notice will set a deadline for these requirements.
LPFM Rules and Procedures
Second-Adjacent Channel Separation Waivers – In order to facilitate locating LPFMs in urban areas, the FCC has established standards for waiving its second-adjacent channel spacing requirements. A waiver applicant would have to show that it would cause no actual interference to authorized stations. Showings may rely upon terrain-sensitive propagation models or an absence of any population in affected areas. To avoid causing interference, applicants may use directional antennas, lower power and different polarizations. Should actual interference occur, the FCC will notify the LPFM within one day of receiving a complaint from a disinterested listener (identified by name, address and location). The LPFM then must immediately cease operation and remain silent until it can show that interference either was eliminated or was due to factors other than its emissions. The Commission notes that the LCRA does not permit waivers of co-channel or first-adjacent channel spacing requirements.
Third-Adjacent Channel Interference – Having previously eliminated third-adjacent channel protection requirements for LPFM, the FCC now has adopted separate complaint and remediation procedures for each of two classes of LPFM stations. LPFMs that would have been short-spaced under the prior third-adjacent channel separation distances are subject to the same regime as FM translators and boosters. Specifically, upon notice by the FCC, operation must cease until any interference to a regularly-received third-adjacent channel signal, regardless of quality, has been remedied (unless the complainant refuses cooperation).
LPFMs that would have been fully-spaced under the prior separation distances are subject to more lenient procedures. During the first year of operation, periodic announcements must invite listeners of a third-adjacent channel station to report interference. Properly detailed complaints must be forwarded to the affected full-power or translator station and to the FCC. The LPFM then has a “reasonable opportunity” to resolve the complaints but may continue to operate. If the number of unresolved complaints within the affected station’s protected contour exceeds certain thresholds, then tests must be performed to verify that the LPFM is the cause of interference, and the affected station may request the FCC to initiate a proceeding to consider modification or cancellation of the LPFM authorization. The LPFM may stay the proceeding by voluntarily ceasing operation and filing a modification application. Co-location with a third-adjacent channel station to alleviate interference will be considered a minor change. As mandated by the LCRA, more stringent interference protections apply to stations in New Jersey.
Selection Criteria – While confirming its basic method of using a point system to select among mutually-exclusive LPFM applications, the Commission adjusted its criteria for awarding points.
• Localism – The FCC clarified that the existing point given for local community presence requires maintenance of that status, rather than qualification only at the time of filing. It rejected proposals to extend the definition of “local” from ten to 20 miles in rural areas, or to require past presence of four, rather than two, years to qualify for the localism point. It further declined to award an extra point for proposals to originate greater amounts of local programming than the eight daily hours currently required to obtain the additional point for local origination.
• Main Studio – A new point will be awarded for maintaining a publicly-accessible main studio that will be staffed for at least 20 hours per week between 7 a.m. and 10 p.m. Staff need be neither paid nor managerial. To qualify, a studio must be within 10 miles of the transmitter site in the top 50 markets and within 20 miles elsewhere. To further enhance the value of these commitments, a third point will be awarded to applicants qualifying for both the localism and main studio points.
• New Entrants – A new point will also be awarded to applicants having no attributable interest in any other broadcast station.
• Tribal Nations – Another new point will be awarded to applications controlled by Tribal Nations proposing to locate their transmitter sites on Tribal lands. The Commission rejected proposals to create a dispositive preference for Tribal applicants.
Time-Sharing – The Commission adjusted its mandatory time-sharing requirement, imposed when applicants remain comparatively equal after applying all the points and tie-breaking criteria and in the absence of a voluntary time-sharing settlement. Under the new approach, the Commission will assign an equal number of hours per week to the tied applicants. Two tied applicants would be required to operate either between 3:00 am – 2:59 pm or 3:00 pm to 2:59 am. Three would operate in time slots of 2:00 am – 9:59 am, 10:00 am – 5:59 pm and 6:00 pm – 1:59 am. Where more than three applicants are tied, the Commission will eliminate all but the three having the longest continuous periods of establishment in their community. Actual time slots would be assigned by giving preference to the request of the oldest local applicant.
Operating Schedule – The Commission will require LPFM stations to operate at least 12 hours per day every day of the week – the same schedule currently imposed on full-service noncommercial educational stations. LPFM stations that do not achieve this level of service after three years will be required to share the use of its frequency with the first qualified new applicant to file.
Classes of Service – Citing spectrum efficiency, the FCC has eliminated the class of 10-watt LPFM stations, which it initially envisioned as filling the interstices between standard 100-watt stations but in fact never authorized. The Commission further rejected requests to create an interim class of 50-watt stations, as well as calls from the LPFM community to raise maximum power from 100 to 250 watts. Even so, the FCC noted that the LCRA does not contain language restricting LPFM power and so it suggested that further study of a new 250-watt LPFM class might be warranted.
Removal of Intermediate Frequency Separation Requirement – The Commission will no longer require LPFM stations operating with 100 watts or less to protect full-service stations operating on IF beat frequencies (channels 10.5 or 10.7 mHz distant from the LPFM). It notes that this change will achieve parity with FM translators that already are exempt from this requirement.
Cross-Ownership – In order to enable LPFM stations to expand their coverage while maintaining their local orientation, the FCC will permit LPFM licensees to own up to two FM translators, subject to four conditions: (1) the 60 dBu contours of the LPFM and translator must overlap, (2) the translator must receive its input signal directly over the air and not via another translator, (3) the translator site must be within 20 miles of the LPFM’s transmitter or city reference coordinates (10 miles within the top 50 markets), and (4) the translator must synchronously broadcast the primary analog or HD-1 digital signal of the LPFM.
Filing Window – The FCC plans a single LPFM filing window to open on a target date of October 15, 2013. The delay is intended to afford potential applicants adequate time for preparation – and to enable the Commission to resolve the FM translator application backlog, as all previously granted translator authorizations will be entitled to protection from LPFM filings.
All five commissioners issued statements of strong support for this action, citing the enhanced opportunities for programming diversity and local community service that they hail as the role of the LPFM service.