In end-of-term flurry, Congress passes new version of Local Community Radio Act.
With the clock ticking down on this session, and with a newly-elected majority standing in the wings ready to take over come January, the lame duck Congress has managed to pass a new version of the “Local Community Radio Act”. Like its predecessors – H.R. 1147 and S.592 – the latest iteration (H.R. 6533) eliminates third-adjacent separation requirements between (1) low power FM stations and (2) full service FM stations, translators and boosters. Unlike its predecessors, both of which stalled out and sat around for months without final Congressional approval, H.R. 6533 sailed through both Houses in a mere two days: it was introduced on December 16 and finally approved on December 18. Now it’s on to the White House, where the presidential John Hancock is pretty much a given.
It’s not entirely clear what magic language managed to open the door to passage. For the most part, H.R. 6533 is identical to the earlier versions. But H.R. 6533 does include a new section which straddles the question of first- and second-adjacent separations, albeit somewhat awkwardly.
The bill first prohibits the FCC from reducing first- and second-adjacent separations. That’s the good news for full service licensees.
But it then authorizes the Commission to grant waivers of the second-adjacent spacings when the LPFM applicant can establish that its proposed operation won’t cause interference. (Rolling up its legislative sleeves and getting its legislative fingernails dirty, Congress goes so far as to specifically permit the use of “terrain-sensitive propagation models” and other interference prediction methods for such showings.) That’s the bad news for full service licensees.
But it then provides that any LPFM station operating pursuant to such a waiver must suspend operation “immediately upon notification by the [FCC] that it is causing interference” to a full service station, “without regard to the location of the station receiving interference”. . . and it has to stay off the air until the interference is eliminated or the LPFM guy can demonstrate that the interference isn’t its fault. That’s the good news for full service licensees.
And more good news – the Commission is required to issue such notification “upon receipt of a complaint of interference”. The bill does not appear to require any “proof” of interference – just a complaint.
Full service FM licensees in densely-populated states also get something of a break. (In this context, a state is densely populated if it has total population of more than 3,000,000 and a population density of more than 1,000 people per square mile.) In such situations, H.R. 6533 requires the FCC to apply the interference remediation requirements currently applicable to translators and boosters to complaints of interference from new LPFMs on third-adjacent, second-adjacent, first-adjacent and co-channels. (The existing translator/booster remediation process is set out in Section 74.1203 of the Commission’s rules.) Under the new law, it matters not whether the complaints occur inside or outside the protected contours of the interfered-with station. However, interference arising outside the relevant distance specified in Section 73.807(a)(1) will not require remediation.
In another interesting addition to the earlier bills, H.R. 6533 includes a sentence providing that
FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations.
There was never really much doubt about that, but presumably that sentence may serve to discourage attempts to elevate LPFM stations over translators and boosters in the overall hierarchy of secondary FM services.
The new law requires the FCC to undertake an “economic study on the impact that low-power FM stations will have on full-service commercial FM stations” and to report its findings back to Congress in a year. That little chore will not, however, affect the licensing of new LPFM stations in the meantime, however, according to a new subsection.
The LPFM industry and its cheerleaders have been lobbying hard for this legislation for years, and they are likely to be pleased that it has finally negotiated the Congressional maze. Whether the new remediation provisions of H.R. 6533 will disappoint them remains to be seen.
But a big, if unheralded, winner here is the radio reading services (RRS) industry. The act expressly provides that existing distance separations – including, presumably, third adjacent separations – will still apply to all full-service FM, FM translator and FM booster stations that provide RRS by analog subcarrier. That provides a significant incentive for full-service licensees, in particular, to make room on their SCAs for RRS. Of course, the downside of this is likely to be increased reporting requirements to the Commission. Presently, licensees aren’t required to let the FCC know what they’re transmitting on their subcarriers. If the content of their SCAs will now affect the level of protection to which they’re entitled – as H.R. 6533 clearly provides – the Commission will presumably have to develop some mechanism for keeping track of SCA content going forward.
While the Act has now been passed by both Houses of Congress, it won’t be implemented until the President signs it and then the FCC takes the necessary steps to turn legislative language into regulatory action. But at this point, any uncertainty is limited to when, not whether: protection from third-adjacent LPFMs is, for most purposes, a thing of the past. And with the passage of the bill, we may also look for movement on the FM translator front. Recall that there remain several thousand translator applications still pending from the 2003 window. To some degree they have been caught in the on-going tug-of-war between LPFM and translator interests which has stalled out most LPFM and translator activity for years. The new act will likely provide the Commission with incentive to resolve the years-long impasse in the relatively short term. Stay tuned for further developments.
