LPFM v. FM Translator: The FCC Moves to End the Stalemate

With Third Further Notice of Proposed Rulemaking, FCC looks to implement Local Community Radio Act, open LPFM window, and complete processing of long-pending translator applications

It looks like the long-running stand-off between FM translator applicants and low power FM (LPFM) applicants may finally be heading toward some resolution. And from initial indications, it looks like the LPFMers are likely to get the first crack at available spectrum, based on a just-adopted Third Further Notice of Proposed Rulemaking (3rd FNPRM). (As of this writing, the full text of the 3rd FNPRM hasn’t been released; the Commission has issued a public notice describing it.)

The FCC’s action is, of course, an upshot of the enactment of the Local Community Radio Act (LCRA). The LCRA was Congress’s effort to help sort out the translator/LPFM problem which has been festering for years. 

The 3rd FNPRM invites comments on ways to increase the available opportunities for LPFM applications.  In particular, the proposed new rules would favor LPFM over FM translators in the top 150 markets by ensuring some LPFM spectrum availability before any new translators are authorized. Score one for LPFM. But on the translator side, the Commission is proposing not to re-impose its on-again-off-again limit of 10 translator applications per party -- at least not in areas where translator applications survive the new rules. (The Commission imposed a 10-application limit back in March, 2008, only to suspend it a month later.) Additionally, the freeze on the processing of translator applications would be lifted in “smaller markets and rural communities”, i.e., in places where there’s space for both new LPFMs and new translators.

To determine where translators might be allowed, the 3rd FNPRM contemplates an LPFM channel “floor” in the top 150 markets: unless a certain number of channels are available for LPFM in any specific market, no new FM translator applications would be accepted in that market, and any pending translator applications for that market would be dismissed.  Comments are invited on various important details, presumably including how the floor number might be determined, how a “market” should be defined, and whether existing LPFM stations – or only channel availability for new stations – will be counted in determining whether the floor test has been met.

The Commission intends to open a window for new LPFM applications once the availability of spectrum has been established through the market-floor process. That could be the final window for either LPFMs or FM translators if, as anticipated, applications filed during the window completely exhaust the available spectrum.  The filing window won’t likely open until comments and reply comments in response to the 3rd FNPRM have been submitted and the Commission has released a report and order adopting new rules. 

While that process would ordinarily be expected to take a year or more, Chairman Genachowski expressed hope that the LPFM window could be opened in the summer of 2012.  That schedule is optimistic in any event – even more so in view of the fact that, in addition to the various questions posed in the 3rd FNPRM, the Commission will also have to resolve, in a separate proceeding, a number of other issues necessary for the implementation of provisions of the LCRA. And let’s not forget about the possibility of appeals that might interfere with (or at least discourage) the immediate implementation of any new rules that might be adopted within the next year or so.

Other to-be-resolved questions include: how the Commission plans to address the issue of second-adjacent channel protection for full-power stations, and the related issue of how LPFM applicants may use signal contour plotting (as opposed to fixed mileage separations) to demonstrate that they won’t cause interference. Once such issues have been ironed out, we should all have a better fix on precisely how many channels may be open for filing in the LPFM window (and, thus, about how many applications might be expected).

Processing of long-pending FM translator applications is expected to resume in rural areas and larger communities where the LPFM channel floor is met – but, again, that won’t happen in larger communities until the conclusion of the just-started rulemaking, at the earliest, and it will be tricky even in rural communities while open questions remain about how much spectrum will be reserved for LPFM.

The NPRM also includes proposed limitations on the sale of FM translator licenses. The FCC apparently believes that many FM translator applications were filed by speculators whose primary objective is to sell rather than to operate stations. Whether the FCC will require construction and operation for a minimum period of time or simply restrict sales as it does for LPFM stations remains to be seen. The Commission presumably hopes that it can discourage many such speculators into simply walking away from their applications.

The NPRM would also open up more translators for potential use by AM radio stations.  The present rule allows the rebroadcast of an AM station on an FM translator only if the translator’s underlying permit (or license) was issued prior to May 1, 2009. The Commission invites comment on whether to eliminate that restriction and allow AM stations to use any translator for which an application was filed in the 2003 window, no matter when granted. 

Since there remain a significant number of pending translator applications which might still be granted, the elimination of that restriction would obviously expand the universe of translators available to AM primary stations. Of course, since it’s reasonably certain that many FM translator applications will be dismissed to preserve room for LPFM stations in the top 150 markets, that expansion might be limited to very rural areas. And, since no new translator window is expected until after the next LPFM window – and, as noted, it’s entirely possible that there will be no further new windows for either LPFM or translators if the next LPFM window sucks up all the spectrum – it is extremely unlikely that AM licensees will have an opportunity to file for new translators of their own.

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