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.