With presidential signature, the real work begins; Don’t look for any new LPFMs soon

The Local Community Radio Act of 2010 has been signed into law. Fresh from his Christmas get-away to Hawaii, President Obama got right back to business by inking the Act and, presto, thousands of new LPFM stations blossomed across the country overnight. 

Well, not exactly.

While the legislation was signed on January 4, there’s still a long way to go before anyone will be able to tell exactly how much the Act is going to help LPFMs. Despite Chairman Genachowski’s commitment to take “swift action to open the dial to new low-power radio stations”, the fact is that it’s going to take a lot of effort to graft the changes contained in the new law onto the existing regulatory framework.   Additionally, there are major league practical factors that will have to be dealt with – not the least of which is a mass of thousands of translator applications that have been cut off and pending for seven years already.

Let’s look at some of the more obvious problems.

First, the full Commission still has to act on various petitions for reconsideration relative to its 2007 overhaul of the LPFM rules. Those petitions have been gathering dust since early 2008. While the Media Bureau reportedly prepared a draft order for the full Commission’s consideration some time ago, that draft has also been gathering dust – possibly because everyone was waiting to see whether Congress would act. 

Now that Congress has acted, the Commission will have to go back to the drawing boards, reviewing all of its LPFM-related rules and pending proceedings and working to conform those rules/proceedings to the changes imposed by the new Act. That will entail, at a minimum, preparation of a new order (or possibly a revision of the reported draft) disposing of the 2008 recons. It’s a reasonable guess that this will be among the Commission’s highest priorities.

While it’s at it, the Commission will also have to initiate a separate rulemaking to get the ball rolling on the rule changes mandated by Congress. Sure, Congress may have spelled out in considerable detail the rule revisions it wants to see, but those rules don’t just change themselves. Rather, a notice of proposed rulemaking must be drafted and issued, opportunity for comments and reply comments must be provided, a report and order must be prepared, etc. 

Even with maximum prodding (and maximum cooperation) from the full Commission, it would be ambitious to expect the Commission to wrap up all of this much before the end of 2011 – and that’s not counting the time (probably in the 12-18 month range, minimum) it would likely take to resolve any appeals that might get filed along the way.

Let’s say that the Commission does get all its homework done by the end of 2011 (and, to make things easy, let’s also say that no appeals get filed). The next step toward authorizing new LPFM service would be the opening of a filing window. Even if the Commission wants to move super-fast, it would still have to give all LPFM wannabes enough time to prepare for such a window . . . which means that a springtime, 2012, timeframe would probably be the earliest such a window might open. Factor in processing time, construction time, etc., and you’re probably not going to be hearing any new LPFM stations actually taking to the airwaves until early 2013, at the earliest.

And we haven’t even focused on the pending translator applications yet.

The disposition of those translator apps looms large. Back in its 2007 LPFM overhaul, the Commission figured that one way to thin the herd of pending applications would be to impose a ten-application cap. That meant that any applicant with more than ten pending applications would have to select which ten it wanted to preserve; the rest would then be dismissed. But barely a month after the cap process was set in motion, it screeched to a halt. Since a number of folks sought reconsideration of the imposition of the cap, the Commission concluded that it should hold off on the culling process until the recon petitions had been disposed of. Those petitions are the same ones described above (the ones that the FCC still hasn’t gotten to, but probably will now) – in other words, the mass of pending applications remains as it has for the last three-four years.

And that mass is not likely to go anywhere until the Commission disposes of the recon petitions. Once that happens, the winnowing of the pending applications could go forward (using one or more available devices, including caps, or settlements, or engineering amendments, etc.). That, in turn, would facilitate the final processing and disposition of the remaining translator applications, which would facilitate the preparation of LPFM applications once the LPFM window opens.

But what about the fact that grant of the pending translator applications would severely limit the spectrum available for new LPFMs? The LPFM folks may object that it would be inappropriate to grant a boatload of new translator applications because of that potential preclusive effect. The trouble there is that (as we have previously noted) the new Act expressly states that translators and LPFMs are “equal in status”. That would seem to prohibit the Commission from holding up grant of pending and cut-off translator applications just because of possible LPFM preclusion, since any such hold-up would suggest that LPFMs are somehow higher on the spectrum pecking order than translators – and Congress has unequivocally nixed that notion. Of course, if Lo-Po folks attempt to challenge any effort by the Commission to move the translator applications through the processing mill, that would only further complicate, and prolong, the ultimate resolution of an already prolonged, and complicated, morass.

The bottom line here is that the Commission and the Bureau have their work cut out for them, with no quick and easy solutions in sight. Any high hopes that the new Act might automatically and instantaneously clear things up would be unrealistic, to say the least. But the Act does provide much-needed impetus to get the Commission moving . . . and that’s something. Check back here for updates.