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.