The FCC’s Media Bureau this week issued a Public Notice announcing the rules for filing applications for new Low Power FM stations during a filing window that will open on November 1 and close on November 8, 2023 at 6 PM EST.  As part of that announcement of the rules for the preparation and processing of applications to be submitted in the filing window, the Media Bureau stated that a freeze on the filing of applications for changes in the facilities of FM translators and existing LPFM stations would go into effect on September 1, 2023.  Thus, if you are planning any technical changes to any FM translator, or any change in an existing LPFM, file before midnight EST on August 31, 2023 to avoid processing delays.  The freeze will be in effect at least until the end of the LPFM filing window on November 8, 2023. 

The freeze is meant to provide a stable database so that applicants in the LPFM window can accurately determine where there are available channels, and where there are stations or applications that need to be protected from interference.  The Public Notice emphasizes that LPFM applications must protect all existing FM stations, all FM translators and LPFMs, and all translator and LPFM applications filed and accepted by the FCC by the end of August before the freeze goes into effect.

Parties interested in filing applications for new LPFM stations need to carefully review the Public Notice. The notice reminds potential applicants that only local nonprofit educational organizations, tribal groups, and state and local governments providing a public safety service are permitted to file.  Applicants will need to prove their eligibility by providing evidence that they meet the FCC’s criteria for each of these categories of permissible LPFM licensees.  This includes, for nonprofit educational organizations, a showing of how the LPFM will be used to advance an educational mission.  All applicants must submit documentation establishing their legal status at the time of filing the application. 

Applications will be filed electronically through the FCC’s LMS system for the first time.  Applicants must protect existing FM services including granted construction permits, any full-power applications filed before the Public Notice, all existing FM translators and LPFM stations and any modification application filed by FM translator or LPFM stations filed before the freeze date that is accepted for filing.  If the LPFM application does not provide this protection, the application will be dismissed with no chance to correct the application. While the FCC provides a “channel finder” program on its website that helps to provide information as to FM channels that may be available for LPFM use in a particular area, it reminds applicants that, even if the channel finder says that an application in a particular area is available, the program is not always accurate and it is each applicant’s burden to make sure that they comply with the interference rules.  Applicants must also show that they have “reasonable assurance” of transmitter site availability (see our articles here and here for more on reasonable assurance).  Again, if there is no reasonable assurance at the time of the application, the application will be dismissed without an opportunity to correct the defect. 

LPFMs will again be able to ask for waivers of second-adjacent channel interference to full-power stations by showing that their proposal, while not fully spaced to a second-adjacent channel station, will not in reality cause any interference to the station to which they are short-spaced.  These are often showings that the interfering contour from the LPFM station does not cover any populated area where there would be listeners to the short-spaced station. Engineering statements to support these waiver requests must be filed with the application. The Public Notice reminds applicants that, if there is a short-spacing and no waiver is requested, and no engineering showing to support the waiver is attached, the application will be dismissed with no chance to correct the defect. 

The Public Notice sets out many other requirements for LPFM applicants and details the comparative criteria that will be used to decide which application should be granted if there are multiple applications that, for technical reasons, cannot all be granted.  Review the FCC rules for deciding between these mutually exclusive applicants as all claims for the credits (including promises to originate 8 hours of local programming per day, to have a local main studio open to the public at least 20 hours per week, and showings that the applicant and its principals are new entrants into broadcasting) used to make these evaluations must be set out in detail in the application to be considered. 

The Public Notice sets out these criteria, and many other details about the process for filing for the new stations and should be read carefully by any potential applicant, and reviewed by the applicant’s attorney, engineer, and other advisors.  Full-power broadcasters also need to be watching the developments in this filing window, looking for situations where LPFM applicants may be proposing sites that could cause interference to existing stations or otherwise raise issues for their operations.  The window is coming in early November – so be prepared.