FM Translators and LPFM

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For an industry that some say is about to be made obsolete because of its digital competition, there are still many people who want a piece of the FM spectrum.   We’ve written much about the contest between LPFM and translator proponents seeking their piece of FM spectrum – a contest that we should see resolved by the FCC in the very near future. One topic that we have not written much about is "pirate radio," stations that operate illegally – without FCC authority.  This week, the FCC issued several orders, fining individuals up to $25,000 for operating pirate radio stations in various places around the country (see decisions here and here, and two other fines of $20,000 or more noted below).  Pirate radio has been and remains a big problem for many broadcasters and, despite the fines in cases like this, pirates seem to continue to crop up – especially in urban markets.

The pirate radio problem has always been with broadcasters.  In the past there was both the romance of the outlaw radio operator and concerns over the snake oil salesmen who were broadcasting from stations in Mexico, and there was a famous religious broadcaster who lost a battle with the FCC over the Fairness Doctrine in connection with a real radio station and then resumed operations from a boat off the coast of New Jersey.  But in the last 20 years pirates have been much more localized, low power operators, trying to reach audiences largely in urban areas. Despite a series of court decisions rejecting any First Amendment claim of pirates, and denying any claim that these low-power, local stations did not implicate the FCC’s power over interstate commerce regulation, pirates have never gone away.  In many ways, the FCC introduced the concept of Low Power FM stations in the 1990s as a way to provide an outlet for those who might otherwise be inclined to operate an unlicensed station.  In fact, one of the big arguments at the time of the initiation of LPFM was whether former pirate radio operators should be allowed to apply for LPFM stations.Continue Reading Pirates, Pirates Everywhere – Fines Up to $25,000 for Unlicensed Radio Stations

The FCC this week ordered an FM translator in Detroit to shut down as it caused interference to the reception of a full-power FM station from Toledo.  The translator had been rebroadcasting the HD2 signal of another area station, in effect introducing a new analog station in the Detroit area, to bring back a smooth jazz format that had left the city a few years ago.  But the translator caused interference to the reception of the Toledo station in areas where the Toledo station was regularly used and, in the eyes of the FCC, the translator’s operator was able to provide no relief to the complaining listeners.  Thus, it was ordered off the air.  Translators are required to shut down if they create interference to the regularly used signal of a full-power station, even outside of that station’s protected contour.  This happens somewhat regularly, so that part of the FCC decision is not particularly unique.  What is unique was that the FCC rejected attempts to resolve the interference by giving the complaining listeners mobile phones capable of picking up the Toledo station’s programming through a mobile "app" on the phone. The case also chastised the translator licensee for posting the names of the complaining listeners on its website.

As we wrote in a recent post, Section 74.1203 of the FCC rules requires that a translator cease operations if it interferes with the regularly used signal of a full-power FM station.  Objectors need to show that there are specific listeners who regularly listen to a full-power station, and that the translator creates interference to the reception of that signal in areas where these listeners had heard the station before the translator started to operate.  In the past, to get rid of these objections, translator operators have purchased the listeners who complain filters for their radios, or even new radios or other devices to overcome the interference objections.  In this case, the translator licensee went further when such traditional methods did not resolve the interference.  The translator operator bought the objectors mobile phones with an iHeartRadio mobile app that could receive the primary station (a Clear Channel station).  The FCC rejected that solution, finding that a non-broadcast solution to broadcast interference imperiled broadcast service – "a free over-the-air system that is and must remain a vital source of news, information and programming for all Americans" (emphasis in the original).  Thus, the translator was required to sign off unless and until it could resolve all interference claims.  Given that the Toledo station had only provided objections from those who complained about interference inside of the station’s protected contour, the FCC said that it would anticipate that many more objections would be submitted if it accepted the mobile app solution, and that it was likely that it would have to look at all sorts of different solutions to those future objections.  The Commission ordered the translator station off the air, and suggested that it might be difficult for it to restart operations on its current channel, which was co-channel with the Toledo station.Continue Reading FM Translator for HD-2 Signal Shut Down By FCC After Interference Complaints – Can’t Remedy Complaint By Giving Phones With Internet App to Complaining Listeners

The FCC today made it easier to move an FM translator from one location to another, but at the same time adopted new policies that seemingly restrict how far a translator can be moved.  Today’s decision  uses a waiver process to relax the rules so as to permit a move of a translator a greater distance in a single application, but the decision also labels multi-hop moves as an abuse of the Commission’s processes.  As translators have become more important to broadcasters as a way to bring AM and HD-2 signals to a wider audience, this decision will have an immediate and significant impact on many broadcasters, once it becomes clear exactly what are the parameters set by the Commission.

Under Section 74.1233(a) of the FCC rules, a minor change for an FM translator requires that the facilities proposed in an application have a 60 dbu contour that overlaps with the translator’s current licensed 60 dbu.  In effect, this is saying that part of the protected service area of the proposed new facility must overlap with the current protected service area served by the station from its licensed facility.  As major change applications can only be filed during designated translator windows (and there has been no FM translator major change window since 2003), to make any move in a translator, it must be a minor change.  The decision today allows, through a waiver of the rules, a minor change application to be used if the licensed facilities preclude construction of the new facilities, i.e. if the interfering contour of the licensed facilities of the translator overlap with the protected contour specified by the application for new facilities.  A the interfering contour goes much further than the protected contour, this allows the FCC to approve in a single application a move of a greater distance than would be allowed under a strict reading of the rule.  However, there were significant conditions imposed on the application of this new waiver policy that may preclude longer moves that have been common in the last few years. Continue Reading New Policy on FM Translator Moves – Bigger Moves Permitted In One Hop, But Multiple Hops are an Abuse of FCC Processes

August 29 will be the deadline for initial comments on the FCC’s proceeding to set the relationship between applications for new LPFM stations and those for FM translators, a date set forth in a Federal Register publication of the FCC’s Notice of Proposed Rulemaking on this topic.  We wrote about the FCC’s NPRM here.  But…

In recent years, FM translators have become more and more important to broadcasters, as they are being used to rebroadcast AM stations and HD-2 channels, giving the programming broadcast on these over-the-air signals new outlets in many markets.  However, there have been some bumps in the road to the introduction of these new outlets.  These bumps have arisen both from attempts to move these translators significant distances without observing all the obligations of FCC rules and policies, and in connection with translator stations that have started operations only to find that there were interference complaints from a broadcaster on an adjacent channel in some nearby market. So, while translator stations have provided many opportunities to broadcasters, those looking at translators to rebroadcast one of their signals should be aware of these potential pitfalls that have arisen in a few cases.

Perhaps the worst case involved an translator licensee in Florida, who was attempting to move translators from the Florida Keys into the Miami area.  Under current rules, an FM translator licensee can only move a translator from one location to another if the current coverage of the translator overlaps with the proposed coverage area of that station, unless the applicant waits for an infrequent translator window (the last was held in 2003) where the application can file a "major change" and would be subject to competing applications, .  Because of this requirement, it sometimes it takes multiple "hops" to move a translator from one location to another where someone might want to use it to rebroadcast an AM station or an HD-2 signal.  At each hop, the translator licensee must build the station, get it licensed, and then file to move to the next location until it is ultimately located at its desired location.  Each hop can take months to process by the FCC, to build and operate.  The recent case shows the problems that can arise in connection with these hops if an applicant attempts to cut corners.Continue Reading The Bumpy Road of Using FM Translators to Rebroadcast AM Stations or HD-2 Channels

The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting.  At the same time, the task force issued its 475 page report – which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action.  The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate.  Those suggestions, too, were few in the report as finally issued.  What were the big headlines for broadcasters?  The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC’s localism proceeding be terminated – though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster’s public file, be kept online so that it would be more easily accessible to the public and to researchers.  Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming.  And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report. 

While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC’s recommendations, and some observations about the recommendations, the process, and the reactions that it received.  One of the most important things to remember is that this was simply a study.   As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action.  Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with.  Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals.  That may take some time, if there is action on these suggestions at all.   There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC’s review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.Continue Reading Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

As part of the Local Community Radio Act which, among other things, repealed restrictions against protecting full-power FM stations from third-adjacent channel interference from LPFM stations, Congress required that the FCC conduct a study of the economic impact that such stations will have on full-power FM stations.  The FCC began the process of conducting that study, asking for public comment on a series of questions designed to look at that impact.  Comments are due on June 24, 2011, with reply comments to be filed by July 25.  The Commission asks for comments in two general areas, asking what impact LPFM will have on full-power stations’ revenues and on their audience share, but tentatively decided that it would not look at any economic impact that interference from LPFM would have on full-power stations.

What led the FCC to this tentative conclusion?  The FCC said that the Act did not specifically require any study of the economic impact of interference and, since the principal purpose of the Act was to set out how the FCC should deal with interference remediation, Congress had already addressed all that needed to be considered about any potential interference.  This view was bolstered by the inclusion in previous legislation of a specific directive to study interference, which led to the report from the MITRE  Corporation.  That report concluded that there would be no substantial interference from LPFM to full-power stations, which opened the door to the passage of the Act.  Thus, the Commission reached the tentative conclusion that no additional study of the economic impact of LPFM was necessary, but they seek comment on that tentative conclusion.  We expect that there will be such comments.Continue Reading FCC to Study Economic Effect of LPFM on Full-Power FM – But Not the Economic Impact of Any Interference that May Be Caused

The Local Community Radio Act has been pending in Congress, ready to be approved for many months, but held up by the Senate.  This weekend, as the Congressional term was drawing to a close, both the House and the Senate approved a bill modifying the interference standards for Low Power FM radio stations, opening the possibility that more channels will be available for LPFM use when the next window for filing new LPFM applications opens. However, this bill is substantially modified from the LPFM bill that was just passed by the House of Representatives earlier this year (see our summary of the House version of the bill). The NAB has been working with the LPFM advocates to adopt a bill with substantially more protections for full-power stations, while still allowing LPFMs to locate on channels third adjacent to full power stations. The bill passed by Congress and soon to be signed by the President makes substantial changes to the original House version, and seemingly provides many such protections. Specifically, the final legislation is different from the old bill in many ways including:

  • It does away with all the introductory language in the original House bill that contained many Congressional findings about the value of LPFM stations, language that could have been used to justify FCC actions in the future that would be unfavorable to the interests of full-power stations. 
  • It specifically forbids the FCC from amending the distance requirements between LPFM and full-power stations for first and second adjacent channel operations.  It does allow for waivers of these separations, but requires LPFMs to cease operations if complaints of interference to a full-power station are received.
  • It makes clear that LPFM stations are secondary to full power stations, both as they currently exist and as they may be modified in the future. 
  • The law specifically requires that the FCC treat LPFM and FM translators and FM boosters as being equal in status, and secondary to full-power stations (both existing and modified full-power stations) – thus seemingly ending some of the LPFM proposals that would allow LPFM stations to preempt existing FM translators.
  • For LPFMs that are located at less than the full distance from a full-power station set out by the LPFM rules, even on a third adjacent channel, the LPFM must provide the same protections that translators give to other stations under Section 74.1203, which includes the requirement that a new secondary station (like a translator or LPFM) cease operations if it interferes with the reception of any regularly used FM signal (even if the signal is outside of the existing station’s primary service contour)
  • The bill adds a provision to protect stations in certain densely populated states (principally if not exclusively New Jersey) by imposing the translator interference rules on LPFM stations (seemingly the same provision as provided for stations in other states when the LPFM is operated at less than the current spacings. 

This bill does contain some provisions that are not entirely clear, and in some cases, provisions that seem a bit contradictory. These issues will no doubt be sorted out by the FCC, and potentially by Congress itself, in the future. Continue Reading Bill Changing LPFM Spacings But Protecting FM Stations Passes Congress – After NAB Assures More Protections to Broadcasters