The Federal Communications Commission (“FCC”) has released a draft of a Report and Order  scheduled for a vote on April 23, looking toward making several changes in the rules governing Low Power FM (“LPFM”) radio stations.  We wrote an article last year when the rules were proposed.  Not all the requests for rule changes will be granted; for example, the FCC will not allow LPFM stations to increase power from the present 100-watt limit to 250 watts.  However, LPFM stations will be permitted to use directional antennas, to move greater distances without waiting for an application filing window, and to own boosters and translators.  The FCC will decline to announce any new application filing window for new stations and major changes in existing stations for either the LPFM or the full power noncommercial educational (“NCE”) FM service, but it suggests in a footnote that when windows do open, primary stations (i.e. NCE-FM) should be given the earlier opportunity to apply.

Background.  LPFM stations operate with facilities similar to those of FM translators, although LPFM stations originate programming, while translators repeat the signals of other stations.  There are three basic differences in applicable engineering regulations: LPFM stations are limited to 100 watts effective radiate power (“ERP”); translators may apply for up to 250 watts. LPFM stations must maintain fixed mileage separations from other stations on the same and adjacent frequencies; translators may operate wherever they can show that they will not cause prohibited interference. Finally, LPFM stations must use nondirectional antennas, while translators may use directional antennas to protect other stations and maximize their service area.

The LPFM rules are simpler and were intentionally written that way to facilitate applications by relatively unsophisticated entities without the need to incur the cost of retaining a professional engineer.  However, the result has been that many LPFM stations receive interference in fact, if not in theory, from FM translators and full power FM stations; and they are constrained from using some tools they would like to use to address interference problems.

Directional Antennas.  Assuming that the Report and Order is not modified between now and April 23, the FCC will allow LPFM stations to propose directional antennas, both off-the-shelf models and models with custom-designed signal patterns. Directional antenna proposals will be subject to the same requirements that full power FM stations face, including requiring a proof of performance after manufacture to show that the antenna performs the way it was designed, and likely certification that the installation was correctly made in the field. Proofs of performance are normally done by the manufacturer, but installation certifications require local professional help.  Professional engineering assistance will also almost always be required to prepare an application to use a directional antenna.  While the FCC acknowledges the cost of professional assistance, directional antennas will be entirely voluntary; so LPFM stations that lack financial resources will remain free to retain nondirectional antennas and be subject to simple application and installation requirements.

Even with directional antennas, the FCC will continue to require LPFM stations to maintain fixed mileage separations from co-channel and adjacent-channel stations, while translators may rely on interference studies based on signal contour overlap.  The FCC will entertain waiver requests by LPFM stations, based on a showing that they will not cause interference to any other station despite failing the mileage separation test.

Minor Changes.  LPFM facilities change applications are classified as “major” and “minor.”  How these categories are defined is important, because major change applications may be filed only during relatively infrequent filing time windows, while minor changes may be filed at any time.  The FCC will relax the definition of “minor change” to make it easier for LPFM stations to modify their facilities at any time.  Minor change site moves are currently limited to 5.6 km, with fairly strict enforcement.  That limit will be relaxed to 11.2 km. Moreover, moves over a greater distance will be permitted if the applicant can show that its existing and proposed 60 dBu signal contours will overlap.  All site change applications will continue to require compliance with fixed mileage separation requirements or a persuasive waiver request.

Applications to move to a different frequency are minor changes only if they will reduce interference.  The FCC will clarify that an LPFM station move to any channel, not just an adjacent channel, will be deemed a minor change, so long as interference is reduced.  Only interference caused to other stations needs to be reduced. The fact that the LPFM applicant’s station may itself receive increased interference will not be disqualifying.

Ownership of Repeaters.   The FCC will not change the rule that no person or entity may have an interest in more than one LPFM station nationwide, except under extremely limited circumstances.  It will, however, allow a single LPFM station to improve its service with either a booster (which operates on the same frequency) or a translator (which operates on a different frequency).  The licensee of an LPFM station will be allowed to own and operate either two boosters, two translators, or one of each.

The 60 dBu signal contour of a booster must be confined to within the 60 dBu of the parent station.  For a translator, the 60 dBu contours must overlap.  Thus translators may extend a parent station’s service area, while boosters only fill gaps in the parent station’s service area.

Both boosters and translators require applications before they may be operated.  Applications for new boosters may be filed at any time.  Applications for new translators may be filed only during an FCC-announced application window, although previously authorized translators may be purchased at any time (again, subject to FCC approval).

Power Increase.  As noted above, the FCC will decline to authorize LPFM stations to increase ERP from 100 watts to a maximum of 250 watts.  It believes that authorizing the increase would be contrary to a restriction in the Local Community Radio Act of 2010 (“LCRA”) against creating new station classes, unless mileage separate requirements were increased accordingly.  An increase in mileage separate requirements would introduce complexities into the application process that the FCC is not prepared to address at this time.

Radio Reading Services.  LPFM applicants may normally ignore interference to third-adjacent channel stations, except if a third-adjacent station operates a radio reading service (“RRS”), usually for sightless listeners, on an analog FM subcarrier.  It is not easy to identify which stations have RRS.  The FCC published a list in 2000, which is now 20 years old somewhat out of date.  Some private organizations have prepared station lists, but the FCC does not vouch for their accuracy.  LPFM applicants will continue to have to certify in their applications that they will not cause third-adjacent interference to any RRS station.  It will be up to each LPFM applicant to find out whether stations have RRS (such as by asking stations or checking websites), but FCC will not say what efforts will be sufficient.  The FCC will not itself verify the validity of the certification but will hold LPFM applicants responsible for any inaccuracy.

Emergency Alert System (“EAS”).  LPFM stations are required to participate in EAS, but they have lesser requirements than full power FM stations.  LPFM stations must have EAS receivers, log incoming tests originated by other stations, and broadcast Presidential emergency messages. Unlike full power stations, they do not have to install EAS encoders or to originate their own tests.

EAS equipment is expensive, and some LPFM stations would rather not participate at all. The FCC believes that it is important for LPFM listeners to know when an emergency arises, so it will reject requests for relief and will leave the present requirements in effect.  LPFM decoders must be properly certified by the FCC; homemade versions will not be allowed.

One piece of relief will be granted, in that two or more LPFM stations that share time on a frequency and share common transmission facilities may also share a common EAS receiver.  Sharing must be pursuant to a written agreement, in which each station acknowledges that although one of the stations may acquire and monitor EAS equipment, each station will be independently legally responsible for compliance, and each may be separately fined by the FCC for violations.

LPFM Transmitters.  The Report and Order will clarify that all transmitters used by LPFM stations must be certified specifically for Rule Part 74 LPFM use.  Approval under other equipment authorization procedures, such as verification or a Declaration of Conformity by a manufacturer, or certification for a transmitter to be used by a full power station under Part 73, are not sufficient.  Certification specifically for Part 74 LPFM use is mandatory.

Silent Stations.  The Report and Order will also clarify that LPFM stations are subject to the same requirements as full power stations if they do not meet minimum operating hour requirements.  If an LPFM station is silent, or it fails to meet the 5-hour-a-day minimum, for 10 consecutive days, it must notify the FCC.  On the 30th day, it must file an electronic application for special temporary authority to remain silent or to operate with reduced hours. If a station is silent for 365 consecutive days, its license will expire automatically, by operation of a statute which the FCC waives only under extreme and rare circumstances where the station is in no way at fault.

Protection of Channel 6 TV Stations.  Section 73.525 of the FCC’s Rules requires FM stations to provide certain interference protection to Channel 6 TV stations.  TV Channel 6 occupies the band 82-88 MHz, immediately below the FM radio band.  The rule was adopted when all TV was analog and is probably obsolete in the digital world.  However, there are still some analog LPTV stations operating on Channel 6.  The FCC is considering the fate of the protection rule in a separate proceeding and has decided not to address the issue in this LPFM proceeding.

Pending Proceedings.  Pending licensing proceedings, including those involving petitions or complaints, in which no Media Bureau decision has yet been issued, will be decided under the new rules.  If any Bureau decision has been issued, the case will continue to be decided under the old rules, even if a Petition for Reconsideration or Application for Review is pending.

Remember that the document available now is only a draft of the Report and Order.  Lobbying will be permitted until April 16, and the FCC may make changes before it votes on April 23.

We would be happy to answer questions for clients concerning the anticipated new rules.