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On the interference to full-power stations, the FCC decision will be one of how to interpret the Local Community Radio Act (which we summarized here). The LCRA allowed LPFM applicants to ignore spacing requirements to full-power FM stations, and imposed significant interference remediation obligations on LPFM operators if their operations caused interference to full-power FM stations. The order to be discussed at the November 30 meeting should discuss how the LCRA obligations will be interpreted, including issues as to the circumstances in which a second-adjacent channel waiver of the LPFM spacing obligations toward full-power stations will be granted, and in what circumstances an LPFM station that starts operations will have to cease such operations in the event of interference to a full-power station's regular listeners. See our summary of these issues here.

Proposals on LPFM power levels are also on the table. The Commission has authorized but never licensed LPFM stations operating at 10 watts, and has now proposed to do away with this class of station that some think will create more interference than new broadcast service. At the other end of the scale, the Commission has proposed creating a new class of LPFM station operating at 250 watts outside of major markets. We would expect that these issues and more will be considered at the upcoming meeting.

As FM translators have become more important to broadcasters as a way to reach more people with programming previously available only on AM stations and FM HD channels, the fate of the translator applications is very important. Full-power FM operators are also concerned about the prospect of increased interference from low power stations. And the LPFM advocates want these issues settled, so the long-delayed filing window for new LPFM stations can finally open next year. The November 30 meeting will be a very important one for all of these groups.

The FCC asks for comments on a number of proposals to revise the LPFM service rules.  Some of the more significant changes proposed by the Commission include:

• The FCC proposes to do away with the Class of 10 watt LPFM stations. While the FCC’s rules provide for such stations, the Commission has never opened a filing window for these stations. As their power and coverage would be so limited and this class of station has never been authorized, the FCC proposes its abolition.
• At the same time, the FCC suggests that it might authorize LPFM stations to operate with as much as 250 watts effective radiated power in more rural areas. The FCC seeks comments on whether this higher power should be permitted and, if so, in what areas. The FCC suggests that the 250 watt power limit should be adopted only in areas outside of the Top 100 markets
• The FCC also proposes to remove all restrictions on IF interference for LPFM stations operating with less than 100 watts of power. This mirrors the rules for FM translators and Class D stations.

On LPFM eligibility issues, the FCC proposes:

• A clarification of the requirement that LPFMs be operated by local organizations, by making clear that this is a continuing obligation, not just one that applies when a station is first constructed
• A proposal to expand the criteria of entities eligible for LPFM licenses to include Native American Nations
• A proposal to allow LPFM operators to operate FM translators to expand their service – asking where such translators should be allowed and how much they can extend the service of an LPFM station
• A proposal that Native Nations be allowed to operate multiple LPFM stations to provide broader coverage over reservations and other native territories

The Commission also suggested changes in the procedure for awarding new LPFM stations. These changes would amend the "points" given for certain criteria – points that are added up to determine which mutually exclusive application should be granted. The Commission also proposed amendments to its share-time obligations for applicants who remain tied after a point system analysis.

All-in all, this will be a very important proceeding for FM broadcasters seeking to protect the integrity of the FM spectrum.  Especially in spectrum-congested metropolitan areas, allowing second-adjacent channel short-spacings between full-power and low power FM stations has the opportunity to make spectrum congestion more acute, and radio reception more prone to interference.  And, as we wrote last week, the potential for an LPFM operator to have to cease operations because of such interference could be disastrous to a nonprofit organization that raises funds to operate a station that has to shut down.  In crafting its rules, the FCC will need to be careful to restraint the exuberance of potential LPFM applicants who may want to push any relaxation of interference rules to their limits.  File your comments on these important issues by the May 7 deadline. 

In reviewing the statutory language, the FCC interpreted the LCRA to set up two different classes of LPFM stations, each subject to slightly different requirements as to the interference protections they must afford to full-power stations. LPFM stations that operate at locations that meet the third-adjacent channel spacings to full-power stations that previously were required by the FCC's rules are proposed to be subject to one set of rules – rules for resolving interference complaints similar to those that are currently in effect – while stations that operate at sites at distances from full-power stations less than previously required, must follow another far more stringent interference resolution standard, the standard that is applied to FM translators.

For LPFM stations that are located at distances below those that were previously required by the rule, the LCRA requires that LPFM stations be subject to the provisions of Section 74.1203 of the rules – the rules that govern FM translators and their potential for interference to full-power stations. The rule requires that these stations remedy all complaints of interference to full-power stations regardless of where these complaints come from – whether inside or outside of the protected contour of the full-power station, and whether to a fixed or mobile receiver. 

The NPRM sets out a good summary of the standards that apply to translator interference complaints – the standards that are suggested to apply to complaints of third-adjacent channel interference from LPFMs located at less than the former required spacings. These requirements include the following:

• The complaint must come from a disinterested person, e,g, not an employee of the station that is claiming that it is receiving interference
• The complaint must set out the name and address of the complaining party, and include a statement that the complaining party is a listener of the station
• The complaining party must be willing to cooperate with the station that he or she claims is creating interference to see if that interference can be resolved

If a bona fide complaint meeting these criteria is filed, and the LPFM station cannot show that it is not causing interference, the FCC will notify the station that it should go off the air until the interference can be resolved. 

For LPFMs that are at the full spacings to full-power stations, the provisions of the LCRA are much more ambiguous. The FCC asked the following questions about the rules that should be applied to govern complaints of interference from such stations. These questions include:

• The LCRA requires that an LPFM “address” any complaints of interference. The FCC asks what that means – what must an LPFM do to “address” a complaint?
• Does the use of “address” rather than “resolve” mean that such stations should continue to apply the current interference standard applicable to LPFM stations in Section 73.810? This section requires resolution of complaints only within the protected contour of the full-power station, and setting up a process of testing between a full-power station and the LPFM if the number of complaints exceeds 30 or 1% of the households within 1 kilometer of the LPFM station’s contour.
• Should the Commission establish very specific processes and procedures for the public to submit complaints about interference?

The LCRA also requires that LPFM stations periodically announce on the air that they might cause interference. The Commission asked for comments as to how often such announcements must be made, and whether they need to be made both by LPFM stations that are at full third-adjacent channel spacings and those taking advantage of the abolition of the third-adjacent channel requirements

The LCRA also allows the Commission to grant second-adjacent channel waivers. However, much stricter standards apply to these waivers. The Commission reads the statute to require that the FCC notify an LPFM operator of a complaint of interference within one business day of its receipt, and the LPFM must immediately cease operations until it can either resolve the interference or prove that it is not the source of the interference. The FCC asks for comments on what would constitute a bona fide complaint that would trigger the obligation to cease operations, and how these procedures should be implemented.

The FCC asks for comments on when second-adjacent channel waivers should be granted.

• Should they be granted only where necessary to preserve an LPFM from being bumped off the air by a new or improved full-power station?
• Should the LPFM applicant be able to prove that no interference will exist by relying on the translator standards that allow translators to show that any interference that would occur would happen only at locations where no people live (e.g. where it would be predicted to occur high in the air near the station antenna, or in some other uninhabited location)?
• Should an LPFM be able to use a directional antenna to minimize interference to justify such a waiver?

The Commission notes that, under its current second adjacent channel waiver policy, it balances the interference that may be caused from a waiver against the benefit to be gained (which is the protection of an LPFM service, as these waivers have only been applied to existing stations). It tentatively determines that the statute does not allow such balancing for second-adjacent channel waivers. It tentatively determines that, if there is any interference, the LPFM must cease operations no matter what public interest benefits there may be.

Under the interpretations of the LCRA proposed to be adopted by the FCC in this proceeding, LPFM advocates may have more opportunities to apply for stations with fewer interference considerations than previously required.  However, this may not necessarily be a good thing, as there will also be more opportunities for LPFM stations to start broadcasting and then be forced to cease operations if interference is caused to a full-power station.  For translators that operate under similar standards, being forced to cease operations, while costly, may not be that big of a deal, as the translator is but a piece of a bigger operation - the bulk of the income of the licensee coming from the full-power station that is being rebroadcast.  But for an LPFM, where there is no supporting primary station, being forced to cease operations due to interference can be devastating - and could cause the loss of donations and grants made to the licensee for the nonprofit operation of these stations.  Thus, the Commission should be careful in liberalizing the interference considerations too much, as too lenient rules may result in too many nonprofit companies paying the ultimate price for a too aggressive approach to LPFM siting.

In beginning its analysis, the FCC first needed to interpret the LCRA to determine what Congress intended as to the priorities to be assigned to translators and LPFM stations. The LCRA calls for both translators and LPFM stations to be made available in the various communities across the country. In determining where to process the pending translator applications, the FCC decided that it must take into account not only the pending translator applications, but also existing translators in various markets, to assess whether both services were available in particular communities. By determining that translators were already available in most markets, the FCC decided that, in many markets where new translator applications blocked the availability of spectrum for new LPFM stations, such applications would have to be dismissed to make channels available for LPFM.

Based on that analysis, FCC decided to adopt the “service floors” for LPFM stations, guaranteeing that there were a minimum number of available channels for LPFM stations in each market. These channels floors were adopted as proposed in the FCC's July rulemaking in this matter, setting requirements for the number of LPFM channels needed in a market in a range from 5 to 8, depending on the size of the market. This floor was based not on the number of translators already available in the market, but instead based on the average number of noncommercial stations in particular market sizes, which the Commission seemed to believe set some sort of standard as to how many LPFMs would be needed in that market.  Based on a complicated analysis of LPFM channel availability, where translator applications preclude opportunities to meet the LPFM service floors, they are to be dismissed.

In its Notice of Proposed Rulemaking in this proceeding, released last July, the FCC had proposed to divide markets into ones where all translators would be processed, and ones where all would be dismissed, based on whether there were a sufficient number of channels that could be used by LPFM applicants to meet the LPFM service floor. The FCC had made this go,no-go decision based on the availability for LPFMs of channels in a market determined from a grid 31 geographical seconds by 31 geographical seconds in size, overlaid onto the market. The Commission surveyed the points on the grid to determine the availability for LPFM service on each FM channel somewhere on the grid.  In reviewing the comments filed in this proceeding, the FCC backed away from the determination that markets would be all or nothing for translator applicants.

Instead, the FCC adopted a much more complicated process, determining that some markets which had been “process-all markets”, where all of the 2003 translator applications would be processed, overstated the opportunity for LPFM use, particularly where these markets were densely populated in their core areas. Thus, the Commission determined that it would overlay yet another smaller 21 by 21 grid over the larger grid that it had initially used. If, in any particular market, 75% of the population of the market was contained in that smaller grid, the smaller grid would be used to evaluate whether there was sufficient opportunity for LPFMs to meet the service floor in that more densely populated central urban core area.  Appendix A of the FCC's order sets forth the analysis of the 31 by 31 grid, and Appendix B sets forth the analysis of the markets requiring the more detailed 21 by 21 analysis because of their densely populated urban core.

However, in all markets, what had been “dismiss-all markets” are in fact no longer markets in which all translators will necessarily be dismissed. Instead of "dismiss all" markets, the FCC now refers to markets with insufficient spectrum to allow for the enough LPFM stations to meet the service floor if all translator applications are processed,  as "spectrum-limited markets."  In these spectrum limited markets, if a translator applicant can show that it proposes to operate on a channel where LPFM stations could not operate because of limitations imposed by nearby full-power stations, then the translator application will not be dismissed. This is possible as LPFM interference is based on mileage spacings to full-power stations, while translators can be located closer to a full-power station on the same channel, or on an adjacent channel, where the translator applicant can show that there will be no actual interference to that full-power station. However, in making the showing that the translator grant is possible because it will not block any viable LPFM opportunities, the translator applicant must assume that any LPFM applicant will be able to obtain a waiver of interference to full-power stations operating on second-adjacent channels (more explanation about this second-adjacent channel interference in Part 2 of our report on the LPFM orders, to be posted soon). 

Even these modifications to the process-all and dismiss-all market definitions do not end the FCC’s examination of the impact of translators on LPFM opportunities. The FCC was concerned that there was little opportunity for LPFM stations in the largest of markets because of existing spectrum use in those markets. But, it found that, in these largest of radio markets, there was an opportunity for LPFMs to serve population centers that existed beyond the 31 by 31 grid areas. Thus, any translator applicant proposing to serve areas in these markets, even if the area is beyond the 31 by 31 grid, must demonstrate that its proposed translator will not preclude an LPFM opportunity at the site of its proposed translator. If the translator application would preclude such use, the applicant can show that there is another channel available at the site for LPFM use. If it cannot make either showing, the translator application will be dismissed.   

Obviously, this presents a very complex methodology for translator applicants to use to determine whether or not their pending applications can continue to be processed. This complex methodology will seemingly create some degree of confusion as to which translators can be processed and which will be dismissed, and it will require substantial effort by the FCC to evaluate the showings made by translator applicants. Even though this process is not clear-cut, the FCC has imposed yet another complexity onto the system, by adopting caps on the number of pending translator applications that can continue to be processed, both on a national and on a local basis.

The FCC determined that one applicant can only continue to prosecute 50 applications on a nationwide basis. In local markets, applicants are limited to prosecuting one application in any spectrum-limited market. These caps were not adopted to protect opportunities for LPFM stations, but instead to deter speculation in construction permits for new translators. The FCC felt that some applicants were not filing for translators for purposes of building those stations, but instead for purposes of selling the permits they received. While there might be other more effective ways of combating such speculation by directly targeting those applicants who don’t truly plan on building out the translators for which they are applying (e.g. limits on the profits from resale or outright bans on resale of construction permits), the Commission felt that additional public comment would be needed before such processes could be adopted.  As the Commission was in a rush to wrap up the proceeding, they adopted this more indirect policy of combating perceived speculation.

Apparently, applicants will have to elect which of their applications to continue to process before any evaluation will be made of which will be allowed to be processed under the LPFM protection criteria set out above. Thus, applicants picking 50 applications to prosecute may well end up prosecuting less than 50 applications if the FCC does not accept their showings of protection to LPFM opportunities in spectrum-limited markets, and those picking one application in a market may well end up with none if their pick is one that the FCC later determines is one that does not protect LPFM opportunities.

After the determinations are made as to which applications to process by those who are subject to the cap, and whether or not applications are limited by LPFM opportunities, the FCC will open a settlement window so that the remaining applications that are mutually exclusive can attempt to work out their differences. After the settlement window, any remaining mutually exclusive applications will go to an auction.

Many of the new translators already granted and sold by the alleged speculators went to AM broadcasters, who were recently granted permission by the FCC to use FM translators to rebroadcast their stations. The limits on application processing by current translator applicants may well cut off the ready supply of additional translators to be used by AM licensees. Even though there may not be a supply of new translators to be used by AMs because of these limits on processing, the FCC did amend its rules to allow the use of new translators by AMs. Under the rules adopted almost three years ago allowing the use of FM translators by AM operators, only those translators already in existence could be used to rebroadcast AM stations. Now, any translator, whenever it is granted, can be used to rebroadcast AM stations.

We will write about the FCC’s decisions as to changes in the operating rules for LPFM stations in a subsequent article. These rules described here, setting out the processing of translator applications so as to protect LPFM opportunities, leave open many questions, and may yet be subject to appeal. So the last chapter in this long story may not have yet been written.

[In the interests of full disclosure, note that I have represented translator applicants in this proceeding]

FM translator applications, for the most part, are filed by broadcasters (commercial or noncommercial), experienced in the business, who look for channels that are most likely to really "work" once they are put into operation.  Experienced translator applicants don't usually set up operations on channels that are closely spaced to popular local FM stations, even if the translator would meet the interference protections, as the applicants know that they stand a good chance of being forced to cease operations because of complaints from listeners to that local station.  When such complaints do occur, most translator applicants understand their responsibility to demonstrate either that they are not the cause of the claimed interference, or to remedy that interference or cease operations.  And, as the translator is an adjunct to another business, if the translator must be shut down, the operator still has their full-power operations to sustain the company.  The loss is essentially a cost of doing business.

LPFM applicants, in contrast, are by definition not affiliated with other broadcast stations.  They are non-profit groups seeking to establish their first station to serve a particular small community or neighborhood.  In filing applications, they are often relying on online application search tools that purport to demonstrate where a new station could "fit", or through some other simplified method of determining channels where applications can be filed. There may not be the more sophisticated analysis that many broadcasters go through to make sure that, even though there is no overlap of interfering contours, there is little chance for real interference.  When they build their station, and their expected listeners can't hear the station, or if they are creating interference to a full-power station, issue arise and can become contentious.  As LPFM stations are the only broadcast business of the nonprofit owners who put them on the air, having to cease operations because of interference would be a devastating blow, and in many cases can be one that is hard to comprehend by someone new to the business.  While these issues have been limited in number in the past, that is at least partially as there have been relatively few LPFM applications.  If there are truly thousands of new LPFM applications, these sorts of problems may well be widespread, which will no doubt cause issues for LPFM operators, the FCC and full-power broadcasters who want to protect their coverage areas.

The decision to come out next month also will resolve many other issues, including the following:

• The markets in which translator applications from the 2003 FM translator window will be processed, and the ones in which they will be dismissed to make room for LPFM applications 
• Whether there will be limits on the number of 2003 translator applications that one applicant can continue to process
• Whether translators granted in this window can be used to rebroadcast AM stations.

This decision may mark the end of a very long process though, depending on the decision made, it may also just lead to further appeals and possibly further delays (see our coverage here, here and here, from 2008, when the FCC last thought that they had resolved the issue of what to do with the 2003 FM translators, and legal appeals followed).  Watch for this decision in the coming weeks.

A second observation is that all of the conclusions reached in this study are not necessarily objective proposals, made in a vacuum.  Instead, they reflect the perceptions and possible prejudices and political objectives of its authors and editors.  There have been trade press reports that the report was subject to a lengthy editing process in the Chairman's office.  Thus, there are conclusions that one might expect given positions that have been taken publicly by the various players at the FCC.  For instance, there is a ringing endorsement of the importance of broadband. With the emphasis that the report puts on disclosure of community service programming and other matters by broadcasters needing to be done online, one can almost sense that the FCC feels that for something to be "real" or "meaningful", it must be done online.

The conclusions about LPFM seem similarly to be drawn from inherent perceptions, not from statistical analysis.  The study, in its initial analysis of the state of LPFM, states that any detailed information on the performance of LPFM stations generally is difficult to come by.  At best, they cite a few anecdotal reports of how such stations are serving their communities.  Yet, the report reaches the conclusion that the Commission, in implementing the Local Community Radio Act, should interpret that act to ensure that LPFM stations have access to urban audiences, without any assessment of conflicting positions that others may have on that issue.

But, if perceptions color the results, broadcasters can actually feel somewhat comforted in that some of their message is being heard at the FCC.  The report does find that the public trustee model of regulating broadcasters is "broken."  That model of course mandates that the broadcaster, in exchange for its use of the public spectrum, must broadcast programming that serves the public interest.  The report looks at the last 30 years of broadcast regulation, and finds that no broadcast station has lost its license for not serving the public interest.  It also questions the use of quarterly program issues lists as providing the basis of reviewing the service provided by broadcasters, as these lists are not filed with the FCC, are not uniformly kept, and are not regularly reviewed by anyone but the broadcaster.  

However, even though the report finds the public trustee model to be broken, it does not suggest a raft of new detailed regulations for broadcasters to follow (although Commissioner Copps, in his statement on the report, seems to suggest that the study should have suggested that kind of regulatory scheme).  Instead, the report seems to suggest that, if the public has more information about the performance of broadcasters, it should be able to better judge the performance of those broadcasters.  Thus, the report suggests the on-line public file.  It acknowledges that the Enhanced Disclosure forms that were adopted three years ago for TV stations, but never implemented, were excessive in their requests for information.  The report suggests that, instead, broadcasters provide a simpler, more streamlined on-line report as to their public interest programming (of course, no form is supplied, so how simple such a form would be is impossible to ascertain).  Moreover, the report suggests that the Localism proceeding, which many broadcasters had feared because of its very specific prescriptions as to how every station should operate, be terminated by the FCC - stating that many of the proposals in that proceeding were unduly burdensome. 

The report also suggests that more sponsorship information be provided by broadcasters as to the source of material contained in their news reports.  The concept of the video news release (which we have written about here) seemed to weigh on the report's writers.  They suggest that disclosure of where content in news programs originated be made not only on the air, but also online.

The Fairness Doctrine also was addressed by the report.  The authors find that the Doctrine inhibited the production of news, and was therefore properly found unconstitutional by the FCC in the late 1980s.  The report suggests that the FCC rule setting out the Doctrine be specifically repealed.  At the public meeting, Mr. Waldman suggested that this would mean that all shards of the Doctrine would be removed - perhaps at long last ending the specter of the Zapple Doctrine that we have written about from time to time during political seasons.

In discussing noncommercial programming, the report suggests, in response to a proposal from the National Religious Broadcasters Association, that the prohibition in FCC policies against noncommercial stations fundraising for other local nonprofit organizations be repealed or modified.  Waldman suggested that it made no sense that a noncommercial religious station could not do a fundraiser for some local soup kitchen, when the FCC has regularly waived that rule for fundraisers for distant disasters (see our posts on Haiti and Japan relief, where we raise that question).

There are many other nuggets buried in this report that we will no doubt discover as we read it in depth. While the report was simply a study, it was a study done with the cooperation of much of the FCC staff.  So ideas and opinions expressed in the study may give broadcasters a good barometer of the attitudes of some at the Commission.  So we will slog through the remainder of the report to see what we can find.  Watch for more articles on the findings and implications of the report in coming days.