Broadcasters have long considered the LPFM service as their enemy. The NAB, in particular, has fought LPFM as a mortal threat as a source of both competition and interference. But let’s put the matter in perspective.
As is well known by now, the FCC at last has finalized its plan to address the backlog of about 6,500 FM translator applications that still linger from a March 2003 filing window and to open a new filing opportunity for Low Power FM (“LPFM”) stations.
The FCC’s task was both prodded and complicated by the Local Community Radio Act of 2010 (the “LCRA”), which required that it balance translator grants against the need for preserving filing opportunities for new LPFMs. In resolving the choice between the two media, the five commissioners made it clear that the FCC overwhelmingly favors LPFM as holding a promise to expand locally originated service to narrow constituencies.
Broadcasters have long considered the LPFM service as their enemy. The NAB, in particular, has fought LPFM as a mortal threat as a source of both competition and interference. But let’s put the matter in perspective. Contrary to established wisdom, development of the LPFM service just might prove to benefit a wide variety of radio licensees. Broadcaster fears of lax technical oversight of LPFM and the consequent potential for creating pockets of interference may prove to be justified. Yet, broadcasters just might welcome the relief that LPFM can provide to satisfy public and Congressional pressure to devote commercially impractical levels of service to niche markets. Indeed, many radio licensees may come to openly support LPFM entrants in recognition of the local orientation they are chartered to create, the creation of a much-needed training ground for radio professionals, and the positive publicity that such support is apt to generate.
A Reversed Provision
Broadcasters should be relieved that, citing spectrum efficiency, the FCC has reversed the prior provision of its LPFM rules that would have licensed ten-watt stations in the interstices among other facilities and which, broadcasters contended, would have caused preclusion well beyond their negligible service areas. The FCC further rebuffed (for now, at least) calls for 250 Watt LPFM stations that would have signaled a first step toward regional, rather than strictly neighborhood, service and that might have posed a meaningful challenge to local full-service stations.
To better encourage LPFMs to focus on needs of their listeners, the FCC has adjusted the selection criteria it will apply using its point system. Thus, it added a new point for applicants proposing a publicly-accessible local main studio staffed at least 20 hours per week. The importance of this factor will be enhanced by awarding a further point for applicants qualifying both for the new main studio point and the existing localism point (which continues to require nearby headquarters or board residences). Even so, the FCC rejected proposals to award a further point for greater amounts of local programming than the eight hours currently required to obtain the existing point for local origination.
Broadcasters also can take a certain degree of comfort in the awarding of a new comparative point to LPFM applicants that have no attributable interest in any other broadcast station. That new entrant credit, together with the point for local program origination, may serve to promote a genuine commitment to serving unmet needs while discouraging chain operation that could meaningfully encroach upon full-service broadcasters’ programming.
Thus in many if not most respects, these revisions to the LPFM rules may prove beneficial to radio. Now let’s consider some of the other specific rule changes.
Prompted in part by the debate over whether FM translator carriage of AM primary stations will prove the salvation of the AM band or will only accelerate public perceptions of its inferiority, broadcasters understandably take greater interest in local translators than in the fate of LPFMs. Here, the FCC faced two problems – how to clear up the backlog of applications that remain from the 2003 window, while discouraging speculative future filings.
The Commission’s concern with speculation stemmed from its concern that most of the 2003 window applications had been filed by a handful of parties, that a significant number of previously-granted translator permits had never been built, and that many of the grants to mass-filers had been sold to others. Yet, as many had observed, it’s rather late in the game to change the rules and penalize entrepreneurs who had fully complied with all then-applicable requirements and merely had seized upon fully legal opportunities. Indeed it seems disingenuous for the FCC to profess shock at the number of filings it had received in response to a long-delayed, wide-open window which it did nothing to limit. And it seems rather unfair to further punish those who have already endured a decade of delay rather than focus on taking steps to deter speculation in future windows.
Rather than apply a holding period that would require a permit holder to build and operate its facility for, say, four years before being able to sell it, or limit sale prices to the recovery of actual expenses, the FCC decided to impose two market caps. The first is a national limit of 70 applications in a single filing window, only 50 of which can be in 156 specified larger radio markets. The second is a regional limit of three filings per market.
Even then, two conditions will have to be met for multiple filings in any market. First, there can be no 60 dBu contour overlap among the filings nor with the 60 dBu contour of an applicant’s existing translator authorizations. Second, each application must demonstrate that its grant would not preclude a future LPFM application within the same population grid. The preclusion showing must follow a detailed methodology which the Commission had outlined in its previous March 2012 LPFM report in which a variant of the current rules had been proposed.
In arriving at the new standard, the Commission largely dismissed concerns of parties with multiple pending applications within a single large market, who had pointed out that small translator service contours required many such facilities to achieve meaningful market- wide coverage. It also seems significant that the LCRA said nothing of market-based restrictions, but spoke only in terms of communities. Even so, the Commission claimed that it would be administratively impractical to apply its limits on a per-community basis (even though it would seem easier to identify the community already specified in an application than to figure out to which radio market it might belong).
To implement the new rules, the Commission is requiring parties affected by either cap to declare which applications they wish to pursue. At the same time, all commonlyowned multiple applications within a market are to be amended to demonstrate compliance with the overlap and preclusion conditions. Unless dismissed or grantable through a voluntary settlement, applications that remain viable but mutually-exclusive will go to auction.
Admittedly, not all the changes to the LPFM rules bode well for broadcasters. Chief among these are new standards for waivers of the second- and third-adjacent channel spacing requirements. While these are designed to protect established facilities, they will facilitate locating LPFMs in urban areas.
Second-adjacent channel waivers are to be permitted only upon a showing that no actual interference would occur. This can be done by documenting an absence of population in affected areas, or through terrain-sensitive propagation models, lowering power, directionalizing or using different polarization. Upon a complaint of actual interference to a second adjacent channel, an LPFM will have to shut down until it can show that the interference is either eliminated or due to factors other than its emissions.
Although the LCRA eliminated third-adjacent spacing requirements, third-adjacent channel interference protection remains. The applicable procedure will depend upon whether an LPFM would have been short-spaced under the prior separations. LPFMs that would have been shortspaced will have to cease operation until they can remedy interference to the reception of any regularly-received third-adjacent channel full-service station, regardless of signal quality. LPFMs that would have been fully-spaced will be able to continue to operate during a reasonable opportunity to resolve complaints, and even during a proceeding to consider a formal complaint. Alternatively, the LPFM may seek modification of its authorization, including relocating near the third-adjacent channel station.
The new rules enable LPFMs to extend their service through translators, but only somewhat. Up to two translators are to be permitted, but their 60 dBu contours must overlap that of the LPFM, they must receive their input signals directly over the air, they must be within 20 miles of the LPFM’s transmitter or city reference coordinates (10 miles in the top 50 markets), and they must synchronously transmit the LPFM’s primary analog or HD-1 digital signal.
To move ahead with LPFM, the FCC plans to open a filing window in October 2013. Presumably by then it will have resolved all pending FM translator applications, since they will be entitled to protection against the new LPFMs.
To meet its goal, the FCC staff will need to process LPFM filings at a far more rapid pace than it took to resolve the last window for full-service noncommercial educational applicants. They, too, were subject to a lottery system based on comparative points, but the FCC took many years for the seemingly simple process of aggregating them into mutuallyexclusive groups, providing settlement windows, and then comparing the arithmetic sums of their respective points and on that basis declaring “winners.” One indication of a greater commitment is a harsh new time-sharing procedure to be imposed on LPFM applicants that remain comparatively equal but refuse to settle. (How would you want to be able to operate only from 2:00 am to 9:59 am daily?)
In any event, despite the delays and remaining challenges, broadcasters hopefully will tend to view the new LPFM regimen more as an opportunity than a threat.
Peter Gutmann is a partner in the Washington, DC office of the law firm of Womble Carlyle Sandridge & Rice, LLP. He specializes in broadcast regulation and transactions. His email is: firstname.lastname@example.org
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