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 January 17, 2008 by David Oxenford

Comment Date on the Relationship of Low Power FM Stations to FM Full Power Stations and Translators Set

[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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Posted on December 18, 2007 by David Oxenford

FCC Adopts Localism Report and Starts Rulemaking to Consider Adopting New Public Interest Obligations for Broadcasters

The FCC today adopted a Report on its Localism proceeding, accessing the evidence that it gathered in its three year long investigation of whether broadcasters were adequately serving the interests of their local communities.  We wrote long ago about some of the specific issues that the FCC was reviewing in this proceeding - everything from the public interest programming of broadcasters to their music selection process to their response to local emergencies.  Among the report's conclusions were findings that not all broadcasters were adequately assessing the needs of their communities or serving the public interest through coverage of local news and other local events.  Because of these perceived weaknesses in broadcaster performance, the FCC adopted a Notice of Proposed Rulemaking, much as we expected in our post here, tentatively concluding that re-regulation of the broadcast industry was necessary, bringing back some form of ascertainment and some specific quantifiable requirements for public interest programming. 

As in the case of the Multiple Ownership order adopted today (summarized here), the full text of the FCC Report and the Notice of Proposed Rulemaking has not been released.  Instead, only a short Public Notice, and the statements of the Commissioners at the meeting, are available to determine what was done.  From these notices, it appears that three tentative conclusions were reached.  They are, as follows:

  • More Low Power TV stations should be able to get Class A status, meaning that they are no longer a secondary service that can be "bumped" by a new full power television station or by changes to the facilities of a full-power station
  • Each licensee should be required to establish a community advisory board made up of specific groups of community leaders, with whom the station would meet on a regular basis to assess the needs of the community
  • The FCC's license renewal standards should contain specific quantitative requirements for public service programming

While these may sound like noble decisions, there are many details and much history that the Commission needs to address before these proposals become final FCC rules.

The proposal for the establishment of a community advisory board would mark a return to the "ascertainment" process - a process that resulted in much litigation in the 1970s and early 1980s before it was done away with in 1984.  That process required that each broadcast licensee meet with specific, identifiable groups of community leaders every six months to assess the needs of the community so that those needs could be addressed in public service programs.  When the process was abolished in 1984, the Commission noted that it had produced much litigation over whether the mandatory details of the process were observed by licensees, but it never resulted in any significant sanction for a broadcaster.  It is curious that now, 24 years later, the FCC seems to think that the same type of process will produce a different result.

Similarly, the quantitative public interest requirements that mandated specific amounts of news and public affairs programs to avoid special scrutiny of a license renewal application, were also done away with in 1984.  These rules were abolished in the belief that marketplace competition would insure that each station served the community in its own way to avoid becoming irrelevant and being replaced by a marketplace competitor.  Now, the FCC is thinking of reimposing requirements on broadcasters, though it is thus far unclear what those requirements would be.  There was some discussion at the FCC meeting that the requirements would include a mandatory amount of local programming, though whether that would be further broken down to require specific amounts of news and public affairs programming seemed to be open to comment.

 At the meeting and at the Press Conference following the meeting, there was also discussion of other issues that would be addressed in the Notice of Proposed Rulemaking.  These apparently include some requirement for broadcasters to report on their music selection process.  Though not outlawing national playlists (if such things exist), the FCC seemed intent on seeing how radio broadcasters select the music that they play, and on possibly mandating that some local music be played on each radio station.  Issues of payola may also be considered in the Notice.  The FCC was also concerned about the responsiveness of broadcasters to local emergencies.  To address that perceived concern, the FCC seems to be proposing to require main studios in the station's community of license and to require that these studios be manned whenever a station is in operation.  A decade ago, when the rules required manned main studios during all hours of operations were abolished, many stations started round-the-clock operations, freed from the cost of having to man the studio during the "graveyard shift" during overnight hours.  Would new rules bringing back the requirements that stations be manned during all hours actually result in less programming being aired?  That may be one issue that the FCC is forced to address as this proceeding continues.

This proceeding will seemingly hit hardest at smaller, local stations. While some broadcast critics seem to think that these proposals can easily be addressed by broadcasters, often their focus is on big market, big media stations.  Small "Mom and Pop" stations are often ignored in the calculus used to weigh such regulatory proposals.  Often Mom and Pop barely have the staff to keep the station in operation, much less to deal with paperwork and processes that don't contribute to meeting payroll or the over-the-air product.  Hopefully, once the Commission provides the specifics of its proposals and the deadlines for comment on these proceedings, stations of all kinds will make clear to the Commission the impact that these proposals will have on their 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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