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At today's FCC open meeting, the Commission adopted a Notice of Proposed Rule Making ("NPRM") to begin the process of implementing the Local Community Radio Act of 2010, passed by Congress last year, and to chart a path to the licensing of new LPFM stations.  (See our earlier posting here regarding the Local Community Radio Act of 2010.)  While today's item does not attempt to address all of the issues raised by the Act, it starts the implementation process and seeks to develop processing policies for FM translator applications, resume the licensing of pending translator applications, and establish a framework for licensing new LPFM stations.  

One of the most significant aspect of the NPRM is the Commission's tentative conclusion that the earlier "ten application limit" that it previously imposed on pending FM translator applications would not further the statutory mandate of licensing new LPFM stations, as the limit does not take geographic or market differences into consideration and the remaining translator applications would still block new LPFMs in numerous markets, according to the Media Bureau's analysis.  In today's item, the Commission proposes to eliminate the earlier ten application limit and consider other alternatives for potentially dismissing previously filed translator applications in order to ensure that new LPFM applications can be granted.  Specifically, the FCC seeks comment on several options, including:  1.) Dismissing all pending FM translator applications and make plans for a new joint window for both LPFM and FM translators; 2.) Not dismissing any FM translator applications, but rather establish a priority for future LPFM applications; and 3.) Adopting a market-specific translator application dismissal processing policy to clear out pending FM translator applications in certain markets. 

The NPRM also raises questions regarding how the Commission should assess the needs of the local community -- which the Act instructs it to consider when making licensing decisions between LPFM and translators.  These questions go to the fundamental nature of each class of station and the type of service they can, and/or must, provide to the public consistent with their respective licensing rules.  In addition, the NPRM seeks input on how to interpret the Act's requirement that translators and LPFMs are to be afforded "equal status".  Here, the Commission starts with the question of whether the Act's mandate that it treat LPFM and translator "stations" co-equal allows it to give priority to later-filed LPFM "applications" over pending FM translator "applications".  Reading the NPRM it is clear that the broadly worded Act was big on goals and short on specificity, as today's item now seeks to put the rubber to the road and figure out how to balance the two services, and how exactly to process applications from the two services while ensuring opportunities for new LPFM stations on the one hand, and yet treating FM translators on a "co-equal basis" on the other hand.  

The Commission also seeks comment on processing policies to deter the potential for speculative abuses among translator applicants, and comment on the use of FM translators to rebroadcast the signals of AM stations.  Both the NPRM and several of the Commissioners support the use of FM translators to rebroadcast AM stations, however, the current policy only authorizes such rebroadcasts on FM translators that had licenses or permits as of May 1, 2009.  The FCC asks whether it should extend that policy to permit AM rebroadcasts on FM translator applications that were on file as of May 1, 2009.  The FCC is moving quickly on this proceeding, and Comments will be due 30 days after publication in the Federal Register, with Reply Comments due 45 days after publication.  

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Last month, the FCC released a Public Notice requesting further comments on the proposal to increase the power of HD radio operations.  We have written about that proceeding a number of times, including posts here and here.  The increased power for the digital radio signals has been sought by many broadcasters who believe that current HD radio power levels do not  produce strong enough digital signals to penetrate buildings and fully serve radio markets.  On the other hand, other broadcasters fear that the increased power for the digital signals will create interference to existing analog stations operating on adjacent channels.  Today, the FCC set the dates for the filing of these additional comments - comments are due on July 6, with replies due on July 17. 

While comments have already been filed on the proposal to increase digital power, the FCC has raised a number of specific issues on which it wants comments, especially in light of the studies sponsored by NPR in cooperation with a number of other broadcasters, which seek to do a comprehensive review of the interference potential of higher powered digital operations.  NPR is shooting to have that report to the FCC in September.  The specific questions raised in the new FCC notice are:

• Whether the FCC should wait to decide on the power increase proposal until after the NPR study is done
• Whether current operations by radio stations operating in HD, and the various tests that have already been run, demonstrate the need for higher power operation on a permanent or provisional basis
• Whether new standards of interference to adjacent channel stations should be adopted, and if the interference should also protect LPFM stations
• Whether there should be specific procedures adopted to resolve any interference issues that do arise. 

Many of these questions have been addressed to one degree or another in previous comments.  Other than the question of whether to defer any decision in the proceeding until after the NPR study has been completed, the one new issue raised in the FCC's request for comments is whether LPFM stations should be protected from potential interference from any HD radio operation.  LPFM, which was originally established as a secondary service where stations could be dropped in where they would fit and preempted if there was interference from a full-power station, are receiving more and more protections from incursions from other stations.  Here, again, the FCC is asking if these supposedly secondary services should be protected from uses from primary stations.

Interested parties should file their comments on the dates set out above.

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Just over a week ago, the FCC decided to freeze the dismissal of FM translator applications of applicants who had more than 10 applications still pending at the FCC.  As we have written, the FCC had ordered all applicants in the 2003 FM Translator filing window to dismiss all but 10 of their remaining applications.  The Commission took this action in response to the request of advocates of Low Power FM (LPFM) stations, who argued that the numerous pending translators blocked too many opportunities for new LPFM stations.  While translator applicants opposed the Commission's action, and filed Petitions for Reconsideration of that decision and a request for stay of the deadline for selecting the applications for dismissal, the deadline for selection of the applications to be dismissed came and went.  Only after that deadline did the Commission issue a Public Notice announcing that it would not process the dismissal requests until it resolved the pending Reconsideration petitions. 

While the dismissals of applications by parties with more than 10 applications have been frozen, the processing of applications filed by other applicants will be allowed to go forward. So, presumably, unless these applications are mutually exclusive with some of the frozen applications, we will see some new translator applications processed and granted, and perhaps even settlement windows opened in cases where there are mutually exclusive applications by parties with less than 10 applications pending.  For all other applicants, either applications by those with more than 10 pending applications or applications which are mutually exclusive with such applications, they will remain pending until the Reconsideration requests are resolved.  So we should, at long last, see at least some new FM translator applications processed and granted in the near future.

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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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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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At last Tuesday's FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters - and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result - why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That's while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.

In recent weeks, a new FM station has surfaced in New York City - one which is not really an FM station at all, but instead a TV channel 6 operation being programmed like a radio station to emphasize the audio that can be picked up on FM radio dials.  Any FM station in New York would have easily cost many tens of millions of dollars to buy - so instead a new radio outlet was created by taking this low power television station, previously targeted to a narrow ethnic audience, to reach a much broader radio audience in the City.  A unique solution to the search for a spot on the crowded radio dial - and one that will not disappear in 2009 at the end of the digital conversion, as LPTV stations currently have no mandatory digital transition deadline. 

As a longer term solution, why not just take all of channel 6 and use it for FM operations?  That proposal was one that was advanced by consulting engineer Jack Mullaney in Comments recently filed in the digital television proceeding.  In his comments, Mullaney advocates the use of channel 6 (which has not been used by the FCC for digital operations of television stations to avoid interference to noncommercial FM stations, except in a few isolated cases where no alternative digital channel was available, ) for FM operations after the digital television transition has been complete.  As set out in Mullaney's comments, this could increase the FM band by 30 channels (there currently are 100 FM channels), which could create enough spectrum to allow for channels set aside for specific uses like LPFM, without having to worry about interference to full power stations.  Or channels could be set aside just for FM translators.  A section of the band could even be reserved for "pirate" radio - allowing anyone to start a radio station without an FCC license, provided that they stay on-channel and observe specific power limitations.

These innovative solutions to the current perceived scarcity of FM channels would be more advantageous than the Commission's current attempt to repeal the laws of physics by cramming LPFM stations into the existing band without displacing or otherwise interfering with other authorized users - a seemingly impossible proposition.  The proposal has been made - how will the FCC react to Mr. Mullaney's suggestion?

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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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During a panel at the NAB Radio Show, FCC Audio Services Division Chief Peter Doyle was asked a question about the processing of FM applications filed under the new simplified process for upgrades in their technical facilities and for changes in their cities of license (see our post here for details about that process).  The question dealt with rumors that the processing of certain FM applications were being delayed if the proposed upgrade would cause interference problems to any LPFM stations which would threaten their existence.  We have written about our concerns that such a policy was possible, here.  According to the response yesterday, these delays are indeed taking place - meaning that LPFM stations that are supposed to be secondary services which yield to new or improved full-service stations are now blocking improvements in the facilities of these full-power stations.

Doyle explained that, at the moment, there is no policy of denying the full-service station's application - but these applications are being put on hold if they would impede an LPFM's ability to continue to operate in order to study options as to how the LPFM service might be preserved through a technical change or through agreements to accept interference.  While no final determination has been reached as to what will happen to the applications if there is no available resolution to the LPFM interference issue, he pointed to the pending rulemaking (pending for almost two years) that would give LPFM's higher status, and in effect allow them to preclude new or improved full-service operations.  There was some indication that these actions were being taken pursuant to the potential policies set out in that Notice of Proposed Rulemaking - even though these policies were simply proposals advanced for public comment and have not yet been adopted by the full Commission.

 

This seems to be a troubling case of the Commission adopting rules and policies before formal rulemaking proceedings are completed.  In some cases, ad hoc policy changes may benefit broadcasters, but in cases like this, they may harm them and effectively impede the full implementation of a Commission decision that was long in the making.  And this change is in a policy that was fundamental when the FCC first authorized LPFM - that low power FM stations that serve limited areas, and which have great potential for preclusive effects on large stations serving much larger populations, would be secondary to the greater service provided by the full-power stations.  While the Commission can always change that policy, it would seem that they should do so in a reasoned rulemaking process, analyzing all of the pros and cons in the change in policy, through a resolution of a rulemaking proceeding like that which they started two years ago.  Obviously, we have to see how the application process plays out (and it indeed may just be an attempt to help the LPFM stations in a benign fashion that will not affect the upgrades of the full service stations) but if these processing policies do indeed result in denial or permanent limbo for some full-service station applications, this certainly would look like the prejudgment of an important issue without an analysis of all of the legitimately-raised counterarguments that have been submitted to the Commission in its rulemaking proceeding. 

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At today’s Future of Music Policy Summit in Washington, DC, there has been much talk about issues of interest to broadcasters, including the performance right in sound recordings for terrestrial radio, multiple ownership, and many other issues. The Future of Music Coalition, whose website is here, is dedicated to bringing the voice of musicians and the public to Congress and other decision-makers in Washington. Thus, the Coalition is involved in music issues before Congress and the Copyright Office, as well as before the FCC and other agencies on issues including multiple ownership, net neutrality, and similar matters. Members of the Coalition have been involved in the Low Power FM debate. At the panel session titled "The Hill Was Alive with the Sound of Music," dealing with legislative matters affecting music that are pending or which may arise before Congress, only one issue was perceived as being likely to be considered and potentially resolved by this Congress, before the Presidential election.  That was the issue of LPFM, where bills have been introduced in Congress to eliminate the restrictions that prohibited LPFM stations from causing third-adjacent channel interference to other stations.

The panel included staffers from both the House of Representatives and the Senate, who both indicated that, while there were many other issues of importance to those in the music industry that might be considered this year, LPFM was the one issue that had a chance of actually being adopted this year, given bipartisan support for pending bills.   The pending legislation, The Local Community Radio Act of 2007, has been introduced in both the House and the Senate.  This legislation would lift restrictions on interference to third adjacent channel stations - restrictions which were adopted by Congress about 7 years ago.  We wrote about this legislation, here.

We will see whether Congress takes any action on LPFM, has the FCC already begun to do so?  In our July comment on this issue, we also wrote about complaints from LPFM advocates that facilities changes in FM stations were forcing LPFM stations off the air.  Of course, LPFM stations were supposed to have been authorized as secondary services that could be forced off the air when they created interference to full-service stations.  We've now heard from some DC attorneys that client's full-power FM applications are being held up while their impact on LPFM stations is being reviewed by the FCC.  While this is not a policy of the FCC, and these holds may well be innocuous, broadcasters planning facility changes should consider the potential of an issue when in their engineering planning and review process.  Just one more thing for a broadcaster to worry about....

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The FCC late today released its long-awaited Notice of Proposed Rulemaking proposing to allow FM translators to rebroadcast the signal of AM stations - and potentially to originate programming during those nighttime hours when a daytime-only AM station is not permitted to operate.  The proposal is to permit AM stations to operate FM translators in an area that is the lesser of a circle 25 miles from their transmitter site or within their 2 mv/m daytime service contour.  In proposing the changes in its rules, the Commission raised a number of questions on which it seeks public comment.   These include the following:

• Is allowing the rebroadcast of AM stations on FM translators in the public interest?  What would its impact be on other stations including AM and FM stations, as well as LPFM stations?
• How many translators should each AM station be permitted?
• Should daytime-only AM stations be allowed to originate programming on an FM translator during hours when they have no programming to rebroadcast?
• Should the FCC permit AM stations to begin operating translators all at once - or should the use of these translators be phased in - perhaps permitting daytimers or stations with minimal nighttime power to operate translators first for some transitional period.
• Should there be a restriction on an AM station's use of an FM translator if the AM is co-owned with an FM station in the same market?
• Can an AM station "broker" time on a translator to provide the type of service proposed in this proceeding?

In addition to these operational issues, the FCC poses a few technical issues about these operations.  These include:

• Should any extension beyond the 2 mv/m contour be permitted?  If so, how much and in what circumstances?
• How should the 2 mv/m contour be calculated - using standard FCC predictions, or allowing the measurement of the actual reach of that signal?
• Should the 25 mile zone be extended to 35 miles in Zone II (essentially the less populated areas of the country)?

Comments on the Notice will be due 60 days after publication in the Federal Register, with replies due 30 days later.

The Notice summarizes the preliminary comments filed in the proceeding, noting that LPFM supporters opposed the proposal as it would create a new competitor for the use of the FM spectrum.  Some concern was apparently also voiced by public radio operators, who felt that other FM interference issues, and issues concerning the use of translators generally, should be resolved before this proceeding is concluded.  So, even though the FCC has tentatively proposed the adoption of these rules, there will be opposition, and broadcasters will need to make a good case for these proposals to ultimately be adopted.

AM station operators should carefully consider the issues raised by the FCC in this proceeding, to make sure that they permit uses that will really assist them in their operations.  For instance, some AM operators of stations with significant directional patterns have looked at FM translators as a means to fill in the nulls in their patterns.  But if the signal of the translator cannot extend the 2 mv/m contour of the AM station, this proposal may not provide a remedy to the problems of these directional stations. 

It is also important to note that the proposals do not suggest any sort of preference for AM operators in obtaining FM translators, or any sort of guarantee that FM translators will be available for use by all AM operators.  Thus, this proposal should not be viewed as a panacea for all AM stations, as there may be areas where there are simply no translators available for use by AM stations.

Nevertheless, the proposal does offer some potential assistance to operators of AM stations.  Thus, broadcasters interested in the potential that these translators offer should prepare comments addressing the issues raised by the FCC, and urging the adoption of proposals that would advance their interests, and that of the listening public.

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Despite rules that generally prohibit the assignment or transfer of a low power FM (LPFM) authorization, the FCC today granted a waiver of its rules and allowed Shenandoah County (Virginia) Public Schools (SCPS) to assign an unbuilt LPFM construction permit to Christian Leadership Ministries (CLM).  This action comes on the heels of a Congressional push to authorize more LPFM stations and may signal a loosening of restrictions pertaining to LPFM stations generally.  In today's decision, the FCC stated that the assignment would "advance the goal of maximizing spectrum use for the LPFM service," since CLM committed to complete construction and commence on-air operation.  Furthermore, the $1000 consideration paid by CLM was less than the costs incurred by SCPS for the engineering consultant who prepared its initial application, so the parties could certify that SCPS would not profit from this transaction.  Based on these factors, and the fact that the buyer was otherwise to qualified to hold an LPFM license under applicable FCC rules as it was a nonprofit and local entity, the FCC granted the waiver and approved the transaction.

The Commission mentioned in a footnote that "[n]o LPFM filing window is currently scheduled to take place."   One can only wonder whether allowing assignments of unbuilt LPFM permits may be a backdoor means of placating those who are clamoring for more LPFM stations until such time as the FCC opens another window.

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