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When the Low Power FM service was first authorized, it was as a "secondary service," though a recent court decision shows how that secondary status is becoming less and less a reality.  A secondary service is traditionally one that can be allotted where there are no other uses for a particular frequency, and which is subject to being bumped off the spectrum should there be another demand for that spectrum by a "primary" user.  LPFM stations were originally supposed to provide service to areas between full-power FM radio stations, and to be bumped off the air if there was a new FM station authorized or a change in the frequency or power of an existing station.  A decision of the Court of Appeals released earlier this month , upholding an FCC order giving more protections to LPFM stations, puts this secondary service into question.

The Court decision upheld the Commission's decision, about which we wrote here, determining that waivers of second adjacent channel interference limitations between LPFM and full power stations should be permitted to help preserve LPFM service.  In addition, the Court upheld the FCC's process in adopting a new "interim" policy which provides that, where an LPFM is providing 8 hours a day of local programming and would be knocked off the air by an upgrade or city of license change of a full-power station, the LPFM station could apply for a waiver of its secondary status, and there would be a rebuttable presumption in favor of such a waiver.  If the waiver is granted, the LPFM station would be preserved, and the application of the full-power station dismissed.  Thus, effectively, LPFM would no longer be secondary, but instead will have assumed a primary, protected status.

Should broadcasters expect that all of their upgrades will be blocked by LPFM stations?  Perhaps, but maybe not as the Court's decision makes clear that the issue isn't fully resolved. The Commission's interim policy did not make the waiver of the secondary status automatic when requested by an LPFM station faced with an upgrade of a full-power station that would knock it off the air.  While there might be a presumption in favor of the waiver of secondary status, that presumption can be rebutted.  While the Commission did not say how the presumption could be rebutted, perhaps the full power station could show the far greater service that the upgrade would provide if it were not precluded by the preservation of the LPFM station.  The Commission did say that full power stations that needed upgrades to fully serve their community of license would be allowed.  But what about upgrades that served other new areas that did not receive significant service, or would simply cover significant areas that would get a new service from the upgrade?  Is it really in the public interest to preserve a station that was applied for as a secondary service, and which might provide service to a couple of thousand people when its preservation could preclude an upgrade that could provide new service to ten or twenty or one hundred times that many people?  The Commission did make clear how questions like these would be resolved, or what other issues could be raised to rebut the presumption in favor of the waiver of secondary status, so we will see how these cases are decided.  And no matter how these cases are decided, any such decision could again be appealed to the Courts.  The option for a full power station to appeal the grant of the waiver of secondary service was clearly left open by the Court's decision.

We might also see a glimpse of how the FCC will deal with LPFM issues this week, as the Commission will be addressing the question of whether to permanently authorize FM translators for AM stations.  LPFM advocates have argued that the use of FM translators for AM stations will cut down on the number of open channels on which to put LPFM stations.  Broadcasters, on the other hand, have contended that the existing service provided by AM stations would be strengthened by allowing FM translators, particularly those that fill in holes in directional antenna patterns or ones which allow a daytime AM to serve its community at night.  Will the promise of a new service outweigh these claims of the strengthening of an existing service. We will see later this week as this issue is addressed, and we'll have to stay tuned as other LPFM issues are addressed in coming months.

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Federal Register publication of the Further Notice of Proposed Rulemaking on Low Power FM (LPFM) stations and their relationship to FM translators and upgrades of full-power FM stations occurred today.  This sets the comment dates in that proceeding - with comments due April 7, and replies on April 21.  This proceeding looks at technical issues of whether LPFM stations (which were originally authorized as secondary stations, subject to being knocked off the air if they caused interference to full-power stations (including new stations or increases in the facilities of existing stations), should be protected against interference from such new FM facilities.  Also, the proceeding looks at whether LPFM should get a preference over FM translators, perhaps even being able to bump existing FM translators off the air to make way for new LPFM stations.  We wrote more about this proceeding, here.  FM station and FM translator licensees should be sure to file comments with the FCC on how this proceeding could affect their operations.

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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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[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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Last week, FCC Chairman Kevin Martin was quoted in several trade press reports as having told the House Small Business Committee that his office was working on an item to be circulated among the other commissioners that would ensure low power FM ("LPFM") stations "would have reasonable access to limited radio spectrum."  So what does this mean?  As we wrote recently, the FCC seems to be delaying the processing of some applications for modifications of full-power FM stations because those applications would create interference which would knock an LPFM station off the air.  The FCC is currently looking for ways to preserve the LPFM.  We've expressed concerns that this action could be a precursor to the resolution of a pending rulemaking proceeding which asks whether the protection of LPFM stations by new full power stations or ones seeking upgrades should be mandatory.  Could the Chairman's statements provide an indication of where that proceeding is going?  If so, it would be bad news for full-power FM stations.

The adoption of such an order would also raise questions of how the FCC will deal with conflicts between LPFM stations and translators.  The same proceeding that asked whether LPFM stations should be protected from increases in power by full-power stations also asked whether LPFM should have a preference over FM translators, even suggesting that a new LPFM could knock an FM translator off the air.  Given the broad investment across the country in translators and the unique service that they provide in both rural and more urban areas, often importing unique noncommercial channels, would the additional localism provided by LPFM justify the change in FCC policy?  We may well see how the FCC balances these competing interests in the near future. 

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In the last week, several new LPFM issues have arisen – one a Congressional push to authorize more of these stations by ignoring third adjacent channel interference to full power stations, and another involving complaints to the FCC about LPFM stations being forced to change channels or cease operation because of interference from changes made by full power stations. The latter issue has apparently arisen in the context of stations taking advantage of the FCC’s rules which made it easier to effectuate changes in the cities of license of FM stations (see our summary of the rule changes here), causing more movement of such stations. Both of these issues could present issues for FM broadcasters. 

The Congressional action was initiated by the introduction of legislation in both the House and the Senate that would eliminate third adjacent channel protections that full power stations have from LPFMs. Those protections have been the subject of controversy since the FCC authorized the LPFM service.  LPFM advocates have contended that the interference protections are unnecessary, as most FM receivers should be able to distinguish between stations on third adjacent channels. The NAB contends that the protections are needed as there are still many radios that would be affected by that interference. Full power stations, except for those authorized at short-spacings prior to 1964, are protected from third adjacent channel interference from each other. Competing engineering studies have been done, the FCC has not acted on this question (and in fact Congress had prohibited such action years ago).  But now, some feel that the time for some liberalization of the rules is in order.

At the same time, LPFM advocates have been complaining to the FCC about FM upgrades or facility changes that have caused LPFM stations to have to cease operations or look for alternative channels as they would cause interference to the new facilities of some FM stations.  An article on these complaints, including a mention of Congressional and FCC meetings on the subject, can be found here.  One interesting claim is that some of the LPFM operators were not aware that they were operating a secondary service - or that this meant that the station could be bumped by changes made by a full power station.

FM broadcasters who waited years for last Fall's FCC decision liberalizing changes in cities of license and other technical changes, would be very concerned were some or all of these modifications rolled back because of LPFM interference.  Thus, broadcasters should stay on top of this issue to make sure that the ability for eased facility changes are not rolled back.

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