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Translate This (Again)! Final Framework for LPFM/FM Translator Resolution Adopted

Commission adjusts FM translator application caps as process to clear FM translator backlog looms; LPFM window tentatively set to open in October, 2013

It looks like the long-running tug-of-war for spectrum between low-power FM (LPFM) advocates, on the one hand, and FM translator advocates, on the other, may be close to wrapping up, at least as far as the FCC is concerned. With a “Fifth Order on Reconsideration and Sixth Report and Order” (we’ll just refer to it as the 6th R&O), the Commission has tied up some loose ends remaining from last March’s “Fourth Report and Order and Third Order on Reconsideration” (4th R&O) and adopted new rules and policies governing LPFM applicants.

With these changes, the Commission is positioned to move forward on two related fronts. First, it should be able to clear the logjam of 6,000 or so translator applications remaining from the 2003 FM translator window. And second, it can establish a timeline for the first LPFM window filing opportunity in more than a decade.

Anyone new to the LPFM/FM translator imbroglio – or anyone who may not recall the monumental effort the Commission made earlier this year to solve that seemingly insoluble conundrum – may want to take a quick look at our coverage of that effort. You can find some relevant posts from last April, here, here and here. Having dealt with all that heavy regulatory lifting, the Commission was able to make the 6th R&O relatively straightforward and limited in scope (although it still weighs in at a hefty 83 pages, not counting appendices and Commissioners’ statements). In it, the Commission fine-tunes its approach to the translator backlog and sets the stage for a window for new LPFM applications tentatively set to open on October 15, 2013.

Here are the highlights:

Clearing the translator backlog

First things first. Before the Commission can open an LPFM window, the remaining 6,000 or so translator applications filed back in 2003 have got to be cleared out. To hasten that, the FCC has revised the cap limits (i.e., the number of translator applications any single applicant can continue to prosecute) and settled on a process to deal with those applications that survive the cap-limit culling.

Application caps – Originally, the Commission had settled on a 50-application cap. But now that has been relaxed somewhat, in some limited circumstances. In the 6th R&O, the Commission has revised the cap upward to 70 applications nationally, with a limit of 50 in the largest U.S. markets. 

Additionally, translator applicants are now faced with a cap of three applications in the 156 largest markets – as opposed to the one-per-market cap announced last March. However, the relaxed per-market cap is subject to a number of considerations. For example, submarkets in the largest cities will be considered separate markets for purposes of applying the three-application local limit. No 60 dBu overlap will be permitted with another commonly-owned application. (And with respect to demonstrations of no-overlap, the Commission will not accept alternate contour prediction – e.g., Longley-Rice – showings.) Additionally, applicants will need to submit studies showing that their proposed translators will not preclude LPFMs in either the market “grid” or at the translator’s proposed site.

Thinning the herd – With those new caps (and related limitations) in place, here’s how the Commission plans to deal with the translator backlog.

The first step will be a public notice requiring compliance with the new national and local caps. As early as January 2013, applicants will be told to elect their top-70 (and top-50 in major markets) applications by a date certain. Applicants with more than three applications in the larger markets will be ordered to make similar elections. Thousands of FM translator applications should be eliminated from the database, thereby – the theory goes – making room for LPFM stations.

Next, or simultaneously, the FCC will begin processing “singleton” translator applications in non-“spectrum limited” markets (those where opportunities theoretically remain for new LPFM stations. Check out our post from last April for more details on “spectrum limited” markets.). Applicants in this category will be invited to file “long form” applications to supplement the abbreviated Forms 349 they filed in the 2003 translator window. 

At the same time, applicants in “spectrum limited” markets will be afforded an opportunity to file long-form applications which include, where possible, showings that the grant of their applications will not preclude opportunities for future LPFM stations. 

The FCC will then open a settlement window allowing technical settlements or limited buy-outs (for expenses only) among mutually-exclusive applicants for non-“spectrum limited” markets.

Singleton applicants in “spectrum limited” markets which can demonstrate no preclusion of LPFM opportunities will then be processed and granted. A settlement window will then be opened to allow the sorting out of non-preclusive applicants in “spectrum limited” markets.

Any remaining singletons will then be processed and granted. 

After these steps are completed, some groups of mutually-exclusive translator applications are still likely to remain. The FCC will conduct an auction among remaining applicants for commercial translator licenses; remaining non-commercial (NCE) translator applications will be chosen under the Commission’s noncommercial comparative points system. In hybrid groups of NCE and commercial MX applications, it’s likely the NCE applicants will be afforded an opportunity to amend to specify commercial operations, thereby avoiding dismissal.

Timing – As noted, we can expect to see, probably within a matter of weeks, the public notice requiring translator applicants to elect which of their applications they will continue to prosecute. Since all translator applicants have long been on notice that they would be having to make some such election (even if the precise application has been somewhat up in the air until now), don’t be surprised if the Commission provides only very limited time within which to make those elections.

But the follow-up processes of settlements, singleton processing, resolution of MX groups, etc. could take considerably longer. 

How long? According to the Commission, “to maximize LPFM filing opportunities it is critical for the Media Bureau to complete substantially all of its processing of the pending FM translator applications prior to the opening of the LPFM window.” So you might figure that no LPFM window will be opened until the translator backlog has been cleared. Perhaps, but as noted above, the Commission has tentatively set October 15, 2013 as the target date for the next LPFM window. That suggests that the Commission thinks it can wrap up the translator backlog in the next nine months. We wish them luck with that. (Perhaps recognizing the potential for delay along the way, in the 6th R&O the Commission authorizes the Media Bureau to “adjust” the October, 2013 date “in the event that future developments affect window timing”.)

The next LPFM window

When the LPFM window does open, LPFM applicants will be subject to a number of new rules and policies. They include:

  • New second-adjacent channel short-spacing waiver criteria for LPFM applicants vis-à-vis FM, FM translator and LPFM stations. The new criteria will permit use of the undesired/desired signal strength ratio methodology to evaluate potential interference. (Up to now, such methodology has been available only to translator applicants.). The criteria will also permit the use of directional antennas, alternate antenna polarization and lower ERP in waiver requests.
  • Interference complaint procedures for third-adjacent channel LPFMs vis-à-vis FM, FM translator, or FM booster stations. (Third-adjacent channel spacing requirements for LPFM applications were repealed by Congress in 2010, but actual interference is still a cognizable issue under the rules.)
  • Modified selection criteria for mutually-exclusive LPFM applicants. The new criteria will make available additional comparative “points” to those proposing to establish local studios and for applications by Native Americans to serve their tribal lands.
  • Expanded ownership limits which will permit, subject to certain restrictions, ownership of up to two FM translators by an LPFM station.
  • Elimination of the plan adopted in 2000 to license LP10 (10 Watt) LPFM stations.
  • Elimination of IF protection requirements applicable to LPFM.

What you see is what you get. 

So the FCC has finally resolved a proceeding that had its origins in the 2003 FM translator window. As to LPFM/full-power interference issues and the imposition of FM translator application caps, the FCC (with significant input from Congress) has spoken. Some mass filers will lose the bulk of their remaining translator applications, as will applicants who concentrated in just a few markets, but the adjustments to the caps may help some. LPFMs will have new spectrum rights vis-à-vis full-power FM and other FM services, new opportunities to own translators, and new limitations on the facilities they can hold. It’s safe to say that nobody is likely to be 100% happy with 100% of the Commission’s resolution of the LPFM/FM translator conundrum. But a decade of uncertainty is over, unless either the FCC re-thinks things or a court of appeals (at the request of one or another disgruntled party) finds some flaw in the Commission’s actions – neither of which possibilities is likely, in this writer’s view. If all goes as planned, the FCC’s new rules will become effective 30 days after their publication in the Federal Register (except for some aspects that will require prior OMB approval). Check back with us for updates on that situation.

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