Posted on August 23, 2008 by David Oxenford

What to Do With TV Channels 5 and 6 - Proposals to Turn Them Over to Radio Services

The Digital Television conversion has allowed the FCC to reclaim significant portions of the TV spectrum for wireless and public safety uses - television channels above 51 will no longer be used for broadcast TV at the end of the analog to digital transition.  But, as part of the FCC's Diversity proceeding (see our post here), a proposal dealing with the other end of the TV spectrum is being considered - whether to remove Channels 5 and 6 from the television band and instead use these channels for FM radio.  These channels are adjacent to the lower end of the FM band.  Because of this adjacency, the existence of TV Channel 6 in a market can limit the use of the lowest end of the FM band (used for Noncommercial Educational stations) to avoid interference to the TV station.  Similarly, Channel 6's audio can be heard on many FM radio receivers, a fact that has recently been used by some LPTV operators to use their stations to deliver an audio service that can be received by FM radios (see our post on this subject).  In comments filed in the Diversity proceeding, parties have taken positions all across the spectrum - from television operators who have opposed using the channel for anything but television, to those suggesting that the channels be entirely cleared of television users and turned into a digital radio service.  Proposals also suggest using the band for LPFM operations, and even for clearing the AM band by assigning AM operators to this band to commence new digital operations.

In comments that our firm submitted on behalf of a group of noncommercial FM radio licensees who also rebroadcast their signals on a number of FM translator stations, we suggested that Channel 6 could provide a home for LPFM operations, instead of trying to squeeze those stations into the existing FM band.  There are currently proposals to squeeze more LPFM stations into the FM band by supplanting some FM translators (see our summary of some of those proposals here).  In these comments in the Diversity proceeding, we pointed out that, as there are currently radios on the market that receive 87.9, 87.7 and even 87.5, using these three channels for LPFM service would provide an immediate home to these stations, and far more opportunity for than LPFM would have in the already congested FM band.  These opportunities would exist even in most of the largest radio markets in the country, except in the handful of markets where a Channel 6 television station will continue to operate after the digital transition.  By adopting this proposal, the service that would be provided by FM translators would not be threatened. 

Another set of comments submitted by a group which includes a number of consulting engineers went even further, suggesting that all of Channels 5 and 6 be turned over to a radio service, that the service be operated in a digital mode, and that AM stations and LPFMs all be moved to these new channels.  The proposal is quite detailed, submitting a table of allotments for the relocation of the AM stations.  The proposal also sets out alternative channels for all current full-power television stations on Channels 5 and 6 where they could be moved to clear these two channels for radio operations.

On the other hand, a number of groups have opposed use of these channels for radio.  The opposition includes those stations who already are operating their digital stations on these channels, and organizations including the NAB and MSTV who represent broadcast television stations.  These groups argue that these two channels need to be retained as television channels not only for use by the television stations that have digital operations there, but also for new stations that can be allotted after the end of the digital transition, as well as for LPTV stations that are already operating there and ones that could be built in the future. 

Thus, the Commission will be faced with a choice between using these channels for more radio or more television.  So far, no party has argued that there is no need for this additional service given the multiple services that each TV and FM radio station can provide when operating digitally, nor have questions been raised as to what the addition of new channels (either radio or TV) will do for revenues of existing stations already facing unprecedented competition from other forms of new media.  Of course, the competition will come digitally in any event through other means of wireless delivery, so more competition is inevitable whether or not these channels are used for new broadcast services.  The use of these channels for more broadcasting will only hasten the inevitable increase in competition that broadcasters will face.   At the same time, the addition of all these channels will show, once again, that the incredible competition that exists to broadcasters and demonstrate that government regulation is not necessary to ensure that local service will be provided as, if the marketplace demands it, it will be provided (see our post here). 

Reply Comments on these important issues are due on August 29.
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Posted on March 10, 2008 by David Oxenford

Deadline for FM Translator Applicants To Select 10 Applications to Continue to Prosecute

In November, the FCC adopted an Order limiting to 10 the number of FM translators from the 2003 translator filing window that a single applicant could pursue.  This Order was adopted by the Commission at the urging of LPFM advocates who believed that the large number of FM translator applications filed in 2003 foreclosed some opportunities for new low power FM stations (see our description of the Order here).  Last week, the FCC released a Public Notice telling translator applicants to choose which 10 applications that they will continue to prosecute.  Applicants have until April 3 to make that choice and notify the Commission of their choice.  If no choice is made by that date, the FCC will continue to process the first 10 applications that were on file, dismissing any remaining applications by that applicant.

The Commission is expecting to then continue to process the remaining applications, opening a settlement window after the dismissal process is complete so that the remaining applicants can sort out possible engineering solutions or other settlements that would resolve conflicts between remaining mutually exclusive applications.  However, there are a number of Petitions for Reconsideration that were filed against the Order establishing the 10 application limit (including one filed by our firm on behalf of a number of clients).  We'll see if the Commission takes any action on the Reconsideration petitions (and an accompanying Petition for Stay of the selection deadline) or if the Commission marches on and continues to process these applications.  For now, applicants should be ready to make their selections on or before April 3.

Note that the FCC requires hard copies of the dismissal letters, rather than some sort of electronic filing.  So be sure to allow time for the delivery of such selections.  Also note that the Public Notice does not define "applicant."  Is an applicant a company or individual, or do all of the FCC's attribution rules apply to this limit?  No guidance whatsoever is provided by the FCC's Public Notice.  Perhaps these issues will also be addressed by the FCC at some point prior to the deadline.
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Posted on November 27, 2007 by David Oxenford

FCC Meeting Adopts Rules Favoring LPFM, Restricting Translator Applications, and Possibly Impeding Full Service FM Station Upgrades

In an unusually contentious FCC meeting, the FCC adopted rules that promote Low Power FM ("LPFM") stations seemingly to the detriment of FM translators and improvements in the facilities of full-power FM stations.  While no formal text of the decision has yet been released, the Commission did release a Public Notice summarizing its action.  However, given the lack of detail contained in the Notice as to some of the decisions - including capping at 10 the number of translator applications from the 2003 FM translator window that one entity can continue to process and the adoption of an interim policy that would preclude the processing of full-power FM applications that created interference that could not be resolved to an existing LPFM station - it appears that the Press Release was written before these final details were determined.  And given that the two Republican Commissioners dissented from aspects of this order supported by their Chairman (and also dissented on certain cable items considered later in the meeting), one wonders about the process that resulted in the Republican chairman of the FCC voting with the two Democratic Commissioners on an item that in many respects favors LPFM stations to the detriment of existing broadcast operators.

In any event, specific decisions mentioned in today's meeting include:

  • Treating changes in the Board of Directors of an LPFM station as minor ownership changes that  can be quickly approved by the FCC
  • Allowing the sale of LPFM stations from one non-profit entity to another
  • Tightening rules requiring local programming on these stations
  • Maintaining requirements that LPFM stations must be locally owned, and limiting groups to ownership of only one station
  • Limiting applicants in the 2003 FM translator window to processing only 10 pending applications each, and requiring that they decide which 10 applications to prosecute before any settlement window opens (the two Republican Commissioners favored allowing applicants to continue to process up to 50 applications)
  • Adopting an interim policy requiring that full-power FM stations that are improving their facilities in such a way that their improvement would interfere with an LPFM station to work with the LPFM to find a way to eliminate or minimize the interference.  If no resolution could be found, the full-power station's application would not be processed (which we have expressed concerns about before)
  • Urging that Congress repeal the ban on the FCC making any changes that would eliminate protections for full power stations from third-adjacent channel interference from LPFMs

In a Further Notice of Proposed Rulemaking, the Commission will apparently go further to aide LPFM applicants.  The Further Notice will ask for comments on:

  • Potentially giving LPFM stations a status superior to that of FM translators
  • Looking at the relationship between LPFM and full power stations to see what permanent rules can be adopted to avoid having changes in full power stations preclude the continued operation of a LPFM facility - including the possibility that full power operators would have to pay the costs of relocating LPFM stations to different channels or transmitter site locations
  • Revising the LPFM rules to use contour protection interference techniques, rather than the strict mileage separations currently required.

The new rules, and the new proposals could have a significant effect on broadcasters.  Applicants who had a significant number of applications still pending in the 2003 window will likely have most of their applications dismissed (losing their investments in time and money in preparing those applications in 2003).  The dismissal of many of these applications may impede service to the public as some of these translators would likely replace translators that may be bumped by new noncommercial stations proposed in the recent noncommercial FM filing window.  And AM licensees who were hoping that some of these translators could be granted to provide them with FM translators on which their signals could be broadcast may not have such as many opportunities.

For full power stations, many of the simplified city-of-license change procedures that were only recently adopted to allow easier improvements for FM stations may now be complicated again, as LPFM stations will have to be protected.  These LPFM stations, which were licensed as secondary facilities, may now be precluding new service by full-power primary stations. 

As stated above, the full text of the decision has not been released - this summary is from statements made at the FCC meeting and from the Press Release that is lacking in many essential details.  Broadcasters should be alert for that order to determine exactly how these new rules, and the potential for even more changes in the future, may affect their current or planned operations.
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