Posted on March 24, 2008 by David Oxenford

NCE Applications Must Protect Channel 6 TV Stations Until the End of the Digital Television Transition

Channel 6 of the television band is immediately adjacent to the lower end of the FM band.  Noncommercial FM radio stations, located at the lower end of the FM band (88.1 FM to 91.9), have the potential to interfere with television stations on that channel.  Thus, FCC rules require that noncommercial FM stations protect Channel 6 stations that are in their area, often limiting their power unless they can work out interference agreements with the local TV station.  As the FCC has tried to vacate Channel 6 as part of the digital transition, some noncommercial FM applicants, including some who filed during the recent filing window for new Noncommercial FM stations, have filed applications seeking construction permits at power levels that ignore the Channel 6 station, on the theory that, by the time the noncommercial station is on the air, the TV station will have vacated Channel 6.  In a decision issued on Friday, the Commission rejected one such application, finding that the acceptance of the application premised on an event that has not yet occurred would be unfair to potential applicants who were waiting to file applications until the television stations actually changed channels.

The decision, in a footnote, noted another problematic issue raised by these applications.  As only some applicants filed their applications in the recent NCE window premised on the disappearance of the Channel 6 TV stations, those that had not take that tact would be at a comparative disadvantage in assessing their applications under the NCE selection criteria.  As the comparative position of NCE applicants was supposed to have been frozen at the time the window applications were filed, those relying on a future event would seem to get an unfair advantage.  Thus, it appears that, in time, similar actions will be taken with respect to other similarly situated applicants, clearing up a source of concern or consternation for many who filed during that window.

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Posted on January 24, 2008 by David Oxenford

Correction - Comment Date Not Set on LPFM/Broadcaster Relationship

Last week, we published a note that the FCC had published the new rules on Low Power FM (LPFM) stations in the Federal Register, starting the comment period on the issues raised in the Further Notice of Proposed Rulemaking in that proceeding - principally addressing the relationship between LPFM stations and FM translators and improvements in full power FM stations.  But we were wrong about the comment date.  In an unusual action, the Federal Register publication only contained that portion of the FCC's order actually adopting new rules on ownership and transferability of LPFM stations, limiting the number of FM translator applications that one entity can process from the 2003 filing window, and announcing interim processing rules with respect to situations where interference to an LPFM station would be caused by upgrades to FM stations.  The section of the document which constitutes the Further Notice of Proposed Rulemaking were omitted from the Federal Register publication, even though it had been acted on simultaneously with the new rules that are going into effect, and even though the language dealing with the Further Notice was released together with the new rules, in a single document back in early December.

So the comment date on the relationship between LPFM stations, FM translators and the upgrades of full-power stations remain to be set - watch for the date to be set soon. 

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Posted on January 17, 2008 by David Oxenford

Comment Date on the Relationship of Low Power FM Stations to FM Full Power Stations and Translators Set

[Correction 1/24/2008- we have published a correction to this entry, here, noting that the Federal Register publication described below contained only half of the FCC's order in its LPFM proceeding, omitting the portion seeking public comment.  That section of the order will apparently be published in the Federal Register at a later date - so the February 19 comment date set out below is incorrect.  Everyone has more time to prepare their comments.  The actual filing date will be set in the future.]

The FCC Order establishing new rules for Low Power FM (LPFM) Stations was published in the Federal Register on January 17.  This sets the date of February 19 for the filing of comments on the question of the relationship between LPFM stations and both FM translators and full-power FM stations.  These comments will address two issues, (1) whether LPFM stations should remain secondary stations, subject to being knocked off the air by new full-power FM stations and (2) whether LPFM stations should get some sort of priority over some or all FM translator stations.

LPFM stations have been "secondary" stations, meaning that they could be knocked off the air when a new FM station came on the air, or when improvements to the facilities of an existing FM station were constructed, if the new full-power FM facilities would be caused interference from the existing LPFM station.  As we wrote here, at its November meeting, the FCC decided that it needed more information to determine whether LPFM stations should continue to be secondary to new or improved FM stations.   While not reaching a final determination on that issue, the FCC adopted temporary processing policies which essentially force the full-power stations to deal with LPFM operators in cases where such interference arises - potentially blocking improvements in the facilities of a number of FM stations. 

On the translator issue, the FCC is asking whether LPFM stations should get some sort of preference over FM translator stations - perhaps allowing a new LPFM station to knock some or all translators off the air.  The Commission asks whether LPFM stations better serve the public interest than do FM translators in some or all circumstances.  For instance, the Commission has suggested that only a certain number of FM translators per main station should be protected, or some other criteria should be used, to determine which translators should be given protection from LPFM interference.

These are important issues that broadcasters should consider carefully as it could affect the ability of many stations to expand their service (or for translator operators to continue to serve areas that they currently serve).  Parties affected by these proposals should file comments on or before the February 19 deadline.
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