Interference From Lilliputian FMs Gets Senate Thumbs Up

Posted on November 20, 2009 by Lee Petro

Bill to remove third adjacent LPFM protection moves ahead

On November 19 the Senate Commerce Committee approved S. 592 (“the Local Community Radio Act of 2009”), a bill that would repeal the LPFM third adjacent channel protection requirement contained in Section 73.807 of the Commission’s rules.  The bill is now teed up for consideration by the full Senate. Meanwhile, over on the House side, a corresponding bill (H.R. 1147, going by the same catchy moniker) already made it out of Committee in mid-October. We wrote about both the House and the Senate bills when they first floated to the surface some months ago.  As a result of the Committees’ recent actions, Congressional approval of the proposed legislation is just a couple of votes from reality. And, with no sign of objection from the White House, the smart money figures that this will become the law of the land sooner rather than later.

While the bills (which are, with minor exceptions, identical) focus on the LPFM service, full-power FM stations should be sure to take a close look at the full impact of this likely-soon-to-be law. 

As we have reported previously, the Commission modified its rules in 2007 to relax considerably the extent to which LPFM stations have to protect second adjacent full service stations. That rule change was upheld in 2008 by the U.S. Court of Appeals for the D.C. Circuit. So second adjacent protection has already been seriously weakened. The Local Community Radio Act would toss third adjacent protection from LPFMs out the window – leaving full service stations fully guarded against only co- and first-adjacent LPFM interference, with only partial protection from second adjacent. (And it would not be too much of a stretch to imagine that, with Congressional elimination of third adjacent protection and the Court’s blessing of the reduction in second adjacent protection, the Commission might try to eliminate all protection from second adjacent LPFMs.)

While the Local Community Radio Act seems geared primarily toward the paring back of protection, it ironically would create a new species of protection which could give the Commission enforcement headaches galore. The Act mandates that third adjacent protection from LPFM interference is to be retained with respect to full-service noncommercial educational FM’s “that broadcast radio reading services via a subcarrier frequency”. That’s swell, except that SCA operation is largely unregulated and unmonitored by the Commission. In other words, the FCC currently has no way of knowing, from one day to the next, which stations happen to be using one or both SCAs for radio reading services. Since providing such a service will, under the new Act, afford a full service NCE station some greater measure of interference protection, it would not be surprising to see an upsurge in such services in the foreseeable future. It will be most interesting to see whether – and if so, how – the Commission will react to this particular piece of legislative handiwork.

The Local Community Radio Act promises to have continuing effect on the FM industry for some time to come. We will keep you updated on further developments as they arise.

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Send In The Clones!

Posted on March 19, 2009 by Lee Petro

Senate bill for third-adjacent protection relief for LPFMs mimics House version

Late last month we reported on a bill introduced in the House that would eliminate the third-adjacent channel protections which full power FMs have enjoyed vis-à-vis LPFM stations since 2000.  The House bill (H.R. 1147) now has a little friend over on the Senate side: on March 12, 2009, Senators Cantwell, McCain, Leahy, Durbin, Feingold, and Schumer introduced their own bill (S. 592) that would do the very same thing. 

It wouldn’t be a stretch to call these two bills “companion pieces” . . . or even identical twins. Other than minor changes in the “Findings” portion of the Senate bill, there is no difference in the way both bills would implement the changes in the interference protection standards. Just like the House version – indeed, using the same language as the House – the Senate bill would repeal the 2000 law imposing the third-adjacent channel protection (except when radio reading services are involved) and would require the Commission to consider the needs of the local community in determining whether to license LPFM or FM translator stations. 

Interestingly, the Senate’s version of the bill eliminates a pejorative reference to the consolidation of the media industry which the House had thrown in. The House alluded to testimony that there had been “too much consolidation” in some local radio markets and that consolidation had created pernicious “strong financial incentives for companies to reduce local programming”. The Senate bill retains the reference to “too much consolidation”, but drops the suggestion that consolidation is to blame for any reduction in local programming. The Senate version also corrects the House’s math with respect to the number of LPFM stations that were processed with the third-adjacent channel protections in place (the House said the number was 800; the Senate says 500).

With essentially identical measures pending before both Houses, the skids may now be greased for prompt Congressional action. Whether that will actually happen depends on the political process, and who knows how, or when, that will happen? Still, it is clear that, given the right push, Congress could move swiftly to lift the third-adjacent channel protections. Stay tuned.

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Third-Adjacent Protection From LPFM's On The Chopping Block

Posted on February 27, 2009 by Lee Petro

House proposal would boost Lilliputians’ status in FM hierarchy

This week a bill (H.R. 1147) was introduced in the House that may lead to a wave of new Low Power FM stations – possibly as many as 3,000. The bill would statutorily eliminate the third-adjacent channel protection to full-power FM stations. It has garnered the support of 22 Congressman (from both sides of the aisle) thus far.

In addition to adding one more back (or maybe it’s one more forth) to the long-running back-and-forth struggle over third adjacent protections, the bill – if ultimately passed – is also likely to fan the FCC’s ardor for “localism”.

The issue of third-adjacent protection has been around since the LPFM service’s creation in 2000. As originally conceived by the FCC, LPFM stations were not subject to any third-adjacent protection vis-à-vis their full-service siblings. But because of concern that a gazillion LPFM stations peppered across the landscape would cause erosive interference to existing full-power stations, Congress promptly stepped in and overruled the Commission by amending the Communications Act to insure that third-adjacent protections would be retained. Still, acknowledging some doubt as to the extent that such interference really does pose any threat, Congress directed that the FCC study the issue further.

That in turn led to the 2003 Mitre Report, prepared for the Commission by the Mitre Corporation (at a cost of more than $2,000,000). Mitre concluded that third-adjacent interference should not be much of a problem. (Mitre’s conclusions have been questioned by some, including most notably the NAB.)

Buoyed by the Mitre Report, in 2004 the FCC asked Congress to re-amend the Act to delete the third-adjacent provision which had been added in 2000, but it remains on the books to date. As reported in our December, 2007, Memo to Clients in late 2007 the FCC adopted interim processing rules that would permit LPFM stations to seek waivers of the second-adjacent channel protections. (A rulemaking to make such procedures permanent is still pending.) The 2007 action also boosted the status of the LPFM service in a number of respects.

The bill dropped into the hopper this week would further elevate the status of LPFM stations.  Interestingly, though, the bill identifies one broadcast service which will still trump LPFM. The bill provides that third-adjacent protections must be maintained for full-service noncommercial FM stations which provide radio reading services (RRS) on their SCA’s. But if third-adjacent interference is such a problem that RRS need statutory protection, why should such interference be permitted for everybody else? (The RRS carve-out gives rise to other conceptual problems as well: what if a commercial station puts an RRS on its SCA – shouldn’t it be entitled to protection? And is this carve-out constitutionally permissible, since it appears to impose different regulatory standards based on the content of one’s transmissions?)

Perhaps more significantly, the bill would also bolster the Commission’s quixotic efforts to promote “localism” in broadcasting generally. The bill is critical of broadcasters, suggesting that there has been “too much [media] consolidation” and that, as a result, “there have been strong financial incentives . . . to reduce local programming.” The bill calls for a “renewal of commitment to localism”. The bill also suggests that increasing the number of LPFM stations will increase minority and female ownership in broadcasting and will enhance communications during “local or national emergencies”. 

The Commission (whether under Acting Chairman Copps or under his permanent successor) is likely to read that Congressional language as a direction to charge full speed ahead with the localism proposals which largely languished over the last year. While the Commission’s continued obsession with the DTV transition is likely to distract it from “localism” for another couple of months, we can anticipate a return of the “localism” juggernaut before too long.

If the bill passes and third-adjacent protections (except for NCE stations with RSS on their SCAs) are eliminated, and if the FCC then were to pick up where it left off back in 2007 and adopt final rules eliminating the second-adjacent channel protections, full-power FM stations will be protected only from co-channel and first-adjacent interference (whether the source is LPFM, FM Translator or FM Booster operations). Given the NAB’s opposition to LPFM in the past, this should shape up to be a good fight. Stay tuned.
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