The Commission struggles to play the hand that Congress dealt it in the Local Community Radio Act
In this our third post in the last week on the subject of recent developments in the regulation of the low power FM (LPFM) service, we look at a number of rule changes proposed by the Commission in connection with its effort to clean up various aspects of that service. That effort, of course, was inspired (and in some respects mandated) by the Local Community Radio Act (LCRA). The proposals in question are contained in the “further notice of proposed rulemaking” (NPRM) portion of the Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O). They encompass a wide range of LPFM-related topics, many involving considerable complexity.
We’ll try to hit the high points and make as much sense out of it all as possible, but anyone with a serious interest in the FCC’s LPFM proposals – or in LPFM generally – should be sure to read the full NPRM. Be forewarned, though: the NPRM is not light reading. Keep your NoDoz® handy.
The proposals entail two broad categories of regulations: first, issues arising from the interrelationships between LPFM stations and other stations operating in the FM band; second, issues relating to the process of initially licensing LPFM stations.
LPFMs vs. Other FM Band Users
Second-Adjacent Channel Separation Waivers
First out of the box is a proposed approach to requests by LPFM stations for waiver of otherwise applicable minimum second-adjacent channel separations. In the LCRA Congress expressly authorized the FCC to waive those spacing requirements in some circumstances. What circumstances? Congress thought second-adjacent waivers should be permitted as long as the LPFM applicant establishes that its proposal “will not result in interference to any authorized radio service”. That showing can be made “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models”.
Of course, the Commission has had its own second adjacent waiver policy in place since 2007. But that policy (which involves a “balanc[ing]” of various interests) is a bit more loosey-goosey than what Congress seems to have had in mind. Congress’s approach requires first and foremost that the LPFM “will not result” in interference, regardless of whether the extent of possible interference might be said to be offset by any possible gains in service. So the Commission tentatively figures that its 2007 approach is history (although it still invites comments on that tentative conclusion).
How would an LPFM applicant demonstrate that its proposal would not “result in interference”? The Commission suggests that the undesired/desired signal strength ratio approach (used, for example, in assessing some translator applications) might be the way to go. It also suggests that LPFMs might be permitted to use directional antennas to protect second-adjacent stations.
The Commission also offers some other factors it might be inclined to consider in connection with second-adjacent waiver requests. For example, should LPFM applicants be required to show that no fully-spaced channels are available? Is it relevant that the LPFM proposal would eliminate or reduce interference received by the LPFM? How about looking at whether the proposal would result in “superior spacing” to other FM operations (full-service, translator, booster) on co-channel and first-adjacent channels? The FCC appears to be wide-open for further suggestions here.
With respect to handling complaints about interference caused by an LPFM station with a second-adjacent spacing waiver, the LCRA lays out a clear process to be followed. In the NPRM the FCC acknowledges that Congressionally-mandated process and proposes to incorporate it into the rules. But in doing so, the Commission solicits comments on some practical questions the LCRA doesn’t address – like how to define a “bona fide complaint”, and how the LPFM station accused of interference might demonstrate that it’s not the source of the complained-of interference.
Third-Adjacent Channel Interference
As previously reported, the Commission has – at Congress’s behest – deleted most (but not all) of the minimum separation requirements for third-adjacent channel LPFM operations. But that doesn’t mean that LPFM interference to third-adjacent stations is a thing of the past. To the contrary, it merely means that a threshold protective measure designed to prevent such interference has been removed. In ordering the deletion of the separations, Congress provided that LPFM stations would still be subject to interference limits. But in so doing, Congress managed to introduce an astonishing level of complexity which the Commission is now attempting to sort out.
Because of the language of the LCRA, the Commission finds itself required to establish two separate and distinct “LPFM interference protection and remediation regimes”. The first applies to LPFM stations that would have been short-spaced if the Commission had retained the minimum separation limits for third-adjacent operations; the second applies to LPFM stations that would not have been so short-spaced.
(Irony alert: Yes, it turns out that, even though the third-adjacent separation limits have been technically deleted from the rules, they will still be retained in the rules – but “solely for purposes of reference” to permit the Commission to determine which protection/remediation “regime” is to be implemented when third-adjacent interference rears its ugly head.)
Remediation Process for Section 7(1) Stations -For LPFM stations that would be short-spaced to third adjacent operations under the old spacings – what the Commission refers to as “Section 7(1) Stations” – the drill would track the process used for translators. Any actual interference from a Section 7(1) Station to the “direct reception by the public of the off-the-air signals of any authorized broadcast station” would be prohibited, regardless of where or when the interference occurs. If such interference were to crop up, it would have to be eliminated or the LPFM would have to cease operation.
While the translator rules don’t say so in so many words, in order to warrant the Commission’s attention an interference complaint must be “bona fide”. In the FCC’s view, that means that the complainant must be “disinterested”, i.e., not having any “legal stake” in the matter.
Since the LCRA specifically instructs the Commission to use the translator interference remediation process (currently codified in Section 74.1203), it’s doubtful that the FCC has much room to change that process at all relative to LPFMs. Still, the Commission asks whether any changes might be possible and, if so, what they might be.
Remediation Process for non-Section 7(1) Stations – All LPFM stations that don’t qualify as “Section 7(1) Stations” would be treated as “Section 7(3) Stations”, which would enjoy a considerably more lenient process for dealing with interference. Where Section 7(1) Stations would have to either eliminate interference or turn themselves off regardless of where that interference might occur, Section 7(3) Stations would merely have to “address interference complaints within the protected contour” of the interfered-with third-adjacent station. (The LCRA also calls for the FCC to “encourage” Section 7(3) Stations to “address” any other complaints regardless of the locus of the interference.)
Of course, the statutory term “address” is not particularly specific. While it seems clear that “addressing interference complaints” does not require “eliminating” interference, “addressing” has still got to involve some action on the part of the LPFM station. But what exactly must an LPFM station do to “address” an interference complaint? The Commission’s not sure, so it has invited comment on that fundamental question, as well as other more practical issues (e.g., should complaints have to be filed with the Audio Division; should the complainant be required to provide contact information).
The LCRA does specify that newly-constructed Section 7(3) Stations must be required to broadcast, periodically during the first year following construction, announcements alerting listeners to the potential for interference. The announcements must instruct listeners to contact the LPFM station to report interference. (According to the LCRA, the LPFM station must in turn notify the FCC and any affected stations about any complaints within 48 hours of the time they roll in.) The Commission is dutifully proposing to follow through with that, but it has a number of questions about the details – should the text of the announcements be specified by the Commission, when and how often should they be aired, etc. Oh, and the Commission is also thinking that it might impose the announcement requirement on newly-built Section 7(1) Stations, even though the LCRA does not expressly authorize such a requirement.
Translator Input Complaint Procedure
The LCRA requires the Commission to modify its rules to “address the potential for predicted interference to FM translator input signals on third-adjacent channels”. This is a significant change, since the Commission’s current policy is to require remediation of actual interference. That is, under the FCC's existing policy, questions of third-adjacent interference from an LPFM station to a translator’s input signal would be dealt with only if such interference actually arises; no consideration to the potential for such problems is given at the initial licensing stage.
Obviously, Congress’s approach – requiring the FCC to “address the potential” for such interference – means a change in the FCC’s SOP on this front. Rather than wait for an already authorized station to cause interference, the Commission will have to consider the possibility of interference before authorizing construction in the first place.
Accordingly, the Commission is proposing that any application for a new or modified LPFM station will be barred from using a transmitter site within a “potential interference area” of any FM translator station that receives the off-air signal of a third-adjacent channel FM station. Applications proposing such a site would be dismissed.
The term “potential interference area” would, for purposes of this policy, be defined as
any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator.
Applications specifying transmitter sites within “potential interference areas” could still be filed, as long as they include an exhibit demonstrating that no interference to off-air reception will be caused. Applicants could make that demonstration by showing that the ratio of the proposed LPFM signal to the FM signal would be below 34 dB at all locations. Alternately, they could use an equation set out in Section 2.7 of “Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)”, which is a go-to resource when it comes to the technical aspects of LPFM.
I.F. Separation Requirements
The Commission is proposing to remove the requirement that LPFM stations operating with less than 100 watts protect full-service station on their intermediate (I.F.) frequencies. This change would bring LPFM into regulatory parity with FM translator stations and Class D FM stations, which are already exempt from I.F. when operating with less the 100 watts ERP.
LPFM Licensing Processes
Anyone who may be thinking about filing an application in the next LPFM window should pay particular attention Paragraphs 47-66 of the 5th R&O. There the Commission proposes a considerable number of changes to the some important aspects of the application and selection process. The proposals include:
Elimination of the LP10 class of service (i.e., LPFM stations with maximum power of 10 watts ERP at 30 meters HAAT), but creation of a new higher power class to operate with up to 250 watts ERP at 30 meters HAAT in certain smaller communities, rural areas, or “non-core” locations (i.e., outside population centers) in larger markets;
Clarifying that American Indian Tribes and Alaskan Native Villages (Native Nations) are both (a) eligible to apply for LPFM stations and (b) entitled to a point in the point system selection process. The NPRM also seeks comment on whether Native Nations should be permitted to exemptions from the multiple ownership and cross-ownership rules so that they might in some circumstances own more than one LPFM station and full-service stations at the same time;
Permitting cross-ownership of LPFM stations and one or more FM translator stations;
Jiggering with the process for selecting from among mutually exclusive applicants in various ways designed to further emphasize and enhance the “local” nature of LPFM licensees and the service they’re likely to provide;
Alternative ways of dealing with tie-breaker and time-share situations.
Again, the 5th R&O is dense with material and should be studied carefully by anyone concerned about LPFM service – or about FM service generally. That includes any potential applicant for an LPFM station as well as any existing full-service licensee who might suffer interference from new or modified LPFM operations nearby. While the Commission obviously has a lot of ideas of its own here, the agency appears to be wide-open to any alternative suggestions that interested parties might want to lob in.
The LCRA clearly establishes that LPFM as a service enjoys substantial Congressional support – which means that it will have to be reckoned with. The 5th R&O’s NPRM reflects an important opportunity to define how the LPFM service is to be integrated into the panoply of other FM services going forward. For that reason it warrants the serious attention of anyone using, or thinking of using, the FM band.
The NPRM of the 5th R&O has been separately published in the Federal Register which, as we all know by now, sets the deadlines for comments and reply comments. If you want to file comments on any of the FCC’s proposals, you have until May 7, 2012. Reply comments are due by May 21. Since the proposals include some “information collection” requirements, you can also tell the FCC what you think about those, thanks to the Paperwork Reduction Act – comments in that vein are due by June 5.