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.