Posted on October 18, 2009 by David Oxenford

House Committee Passes Bill to Allow for More LPFM Stations - With Some Protections for Existing Broadcasters

Last Thursday, the possibility of more Low Power FM (LPFM) stations came a step closer, as a subcommittee of the House of Representatives Energy and Commerce Committee passed a bill (the text of which is here) which would remove existing Congressional restrictions on the FCC adopting rules to ignore potential interference from new LPFM stations to full power FMs operating on third-adjacent channels.  With this committee approval coming at the same time as the Senate Judiciary Committee's approval of a bill that would authorize a sound recording performance royalty on radio broadcasters' over-the-air programming, this was not a good day legislatively for traditional broadcasters.  But it certainly could have been worse, as the LPFM bill does contain new provisions that would serve to extend some protection to existing broadcasters from interference from new LPFM stations.  Perhaps because of these new protections, the committee action was unanimous.

 The new protections built into the bill include the following:

  • Protection for third-adjacent channel full-power FM stations providing reading services for the blind
  • Providing protection for FM translator input signals from interference from new LPFM stations
  • For a year after a new LPFM goes on the air, it must broadcast notices that any listener who experiences interference to another FM station or FM translator from this new LPFM should report that interference to the LPFM station.  In the event that interference is reported:
    • The LPFM must notify the FCC and the third-adjacent channel station that is getting interference
    • The LPFM station must address the interference that arises
    • The FCC is charged with looking for ways to assist the LPFM in remediating interference, including allowing co-location of the LPFM at the same tower site as the FM station or FM translator to which interference is being caused
    • The FCC will investigate allegations of interference from an FM broadcaster or FM translator, no matter how far that interference is from the station, and even if the interference is to mobile reception

The bill does not say, however, what happens if the interference is not remediated.  Under current FCC rules for the FM translator service, a new translator must sign off if interference to existing stations cannot be resolved.  The bill does not specify that remedy for LPFM.  This issue remains to be resolved if the bill eventually passes Congress.

The bill also provides that the FCC "when licensing FM translators and low-power FM stations" shall ensure that licenses shall be available to both translators and LPFM stations, but that such decisions shall be made based on the "needs of the local community."  The FCC is already struggling with the proper balance between FM translators and LPFM stations.  As we've written before, the FCC has been trying to decide what to do with the number of FM translators that were filed in the last translator window.  And, now that FM translators for AM stations have been authorized, there is even more demand for the use of such translators, which LPFM advocates contend limit their ability to establish new changes.  Plus, plans have been offered to use parts of TV Channel 6 for use by LPFM stations to lessen their conflict with translators,  but thus far the FCC has not moved on these proposals.  

Given the findings in the bill about the local benefits of LPFM, one wonders if Congress is trying to stack the deck in favor of LPFM in this analysis that the FCC is supposed to conduct.  FM translators need to be aware of this threat, and lobby Congress and the FCC to make sure that their opportunities are preserved, as well as those of LPFM stations.
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Posted on June 22, 2009 by David Oxenford

LPFM - When a Secondary Service Becomes Primary

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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Posted on June 16, 2009 by David Oxenford

FCC Seeks More Comments on Possible HD Radio Power Increase - Should LPFM Be Protected?

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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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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Posted on October 14, 2007 by David Oxenford

Another Indication that LPFM Could Get More Protections

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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Posted on September 28, 2007 by David Oxenford

LPFM Slowing Processing of Full Power FM Stations

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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