LPFM: Changes in policies and rules since the 2013 filing window
The last LPFM filing window was in 2013, nearly 10 years ago. This was a window that included applicants who were encouraged to partake in the changes made to the service as a result of the Local Community Radio Act of 2010. The LCRA's lifting of the third-adjacent channel protection requirement opened up many opportunities, especially in suburban and urban areas. The window resulted in many success stories and some drama.
In the years following the window, there were some regulatory and other actions taken by the FCC to address lessons learned, statutory clarifications and the evolution of Commission processes and systems. This is a rundown of the various things that have changed in the past ten years that will affect those organizations wishing to file in the 2023 window and for those who plan to assist those applicants.
Application filing system
In 2013, applications in the LPFM filing window were filed in the FCC's Centralized Database System (CDBS). The CDBS system presented an electronic version of the FCC Form 318 in a way where it looked like the paper form. Information was entered on a limited number of screens and then filed through the system.
In 2019, the FCC changed the filing system for all FM broadcast applications involving engineering to the License Management System (LMS). LMS turned the old Form 318 format into a multi-screen "flow" experience where each page was its own section. Several years before, the FCC started to use LMS for radio through the filing of renewal applications. Since then, other application types were eventually added. Currently, only AM broadcast applications involving engineering are still managed by CDBS and must be done through a "paper" submission to the FCC.
LMS has also replaced the former Call Sign Reservation system. Therefore, once a construction permit is granted, the grantee will request their call sign using LMS. There will not be a need to contact the Call Sign Desk.
Public Notices
The Communications Act requires that for certain broadcast application types, a public notice must be made. The law to require public notices was part of a package of broadcaster transparency reforms that were passed by Congress in the wake of the payola and rigged quiz show scandals of the 1950s. For new station applicants, this meant that the applicant would need to take out advertising in a newspaper of general circulation for the broadcast area, which would later prove to be a very burdensome, and expensive proposition in light of the consolidaton of the newspaper industry, fewer newspapers being published and the declines in circulation. When LPFM was first created in 2000, it was the FCC's intention to keep LPFM as "simple" as possible by not requiring as many reports as would otherwise be required by full-service licensees. This included the requirement to keep a public file and the requirement to file ownership reports.
During that time, the FCC also overlooked the Public Notice requirement and never created a rule requiring these notices by new LPFM stations. Therefore, in the original 2000/2001 First Generation Window Series and the 2013 Second Generation Filing Window, LPFM applicants did not have to take out ads in the newspaper.
In 2020, the FCC overhauled the Public Notice rules by eliminating the newspaper advertising requirement and replacing it with an online and over-the-air notice requirement. Applicants for new stations, assignment of license and major modifications could satisfy their Public Notice requirements by placing the public notice on the website of the station, the station's licensee organization, the parent of the licensee organization or through a "publicly accessible" website such as a newspaper site, the local Chamber of Commerce website or the website of the State Broadcaster Association. At that time, the FCC did clarify that LPFM stations would be subject to the Public Notice requirement as mandated in statute.
Therefore, in the 2023 Window for the first time, applicants for new LPFM stations will need to provide online public notices through the methods mentioned.
Directional antennas
Normally, LPFM stations use nondirectional antennas. Directional antennas were only allowed to be used by public safety agencies. In 2012, the FCC allowed directional antennas for the purpose of facilitating a waiver of the second-adjacent channel separation requirement. LPFM stations were still required to protect all other stations like they were nondirectional and likewise, FM translators were required to protect these directional LPFM stations like if they had a nondirectional antenna.
In 2020, the rules were changed to permit directional antennas in any situation. LPFM stations were still required to meet all distance separation requirements as if they were a nondirectional station. There was an exception made for the protection by certain LPFM stations to TV stations on Channel 6, which will discuss later. Under the new directional antenna rules, the requirements of a full-service station, such as proof of performance and then later, the option computer modeling; as well as certification statements from the antenna installer and a surveyor prior to the station going on the air was required. The proof of performance and other requirements were not necessary if the directional antenna was being used for the previously approved reasons of public safety or a second adjacent waiver. It was also made not required if the directional antenna was done as a result of an international agreement, which we will discuss in a bit. It was required for all other reasons, including for the protection of Channel 6.
If an application is being written to use a directional antenna for the purpose of public safety or a second-adjacent channel waiver, write the application as nondirectional and then specify in the exhibit, the directional characteristics. This will help prevent the proof of performance conditions going on the construction permit and it will also show as a nondirectional facility in systems such as V-Soft and ComStudy, which could prevent FM translators from being placed right along your directional contour.
International agreements
In 2020, the FCC codified the aspects of the agreements between the United States with Mexico and Canada in the LPFM rules.
Since LPFM stations are considered as nondirectional, the FCC has always placed a 50-watt power limit to any LPFM station within 125 kilometers of the Mexican border (the strip zone). As a result of a petition filed by REC, the FCC changed the rules to allow an LPFM station to operate up to 100 watts ERP in the strip zone as long as they use a directional antenna where the ERP along the radials that are within 125 kilometers of the border remained at 50 watts or less.
If using a directional antenna for an international agreement, write the application as directional and include the field values. Make it clear in the application that the purpose of the directional antenna is for an international agreement and that it is not subject to proof of performance requirements. If the construction permit is issued with the proof requirements, you will need to contact FCC staff to remove the condition. Unlike LPFM directional antennas for public safety and second-adjacent waivers, LPFM directional antennas for international agreements are protected to the actual directional contours in respect to FM translators.
Protection to Channel 6 TV broadcast stations
In 2013, applications for new LPFM stations in the "reserved band" (88.1 through 91.9 MHz) were required to provide specific distance protections to full-power and low-power television stations operating on RF Channel 6, regardless whether the TV facility was broadcasting in analog or digital. While full-power stations had already completed their conversion to digital television, the sunset of analog low-power TV facilities would not take place until several years later. During this transition, there were many LPTV stations still operating on Channel 6. With the move to digital, Channel 6 is a less desirable channel and more stations, full power and low power have abandoned the channel. There are currently 9 full-service and about 70 LPTV stations remaining on Channel 6. Of the LPTV stations, 13 of them are operating in a hybrid of digital video and analog audio (also known as "Franken-FM") to operate like a radio station on 87.7.
Since the window, REC Networks made arguments to the FCC that stated that the current distance separation requirements between LPFM and LPTV stations are extremely overprotective and are not reflective with a large majority of LPTV stations out there. In a surprise move, the FCC originally proposed to eliminate all FM to Channel 6 protection requirements for not just LPFM, but also full-service and FM translators.
The proposal to eliminate the Channel 6 requirements was quashed due to a very strong objection by The Walt Disney Company, which is the licensee of WPVI in Philadelphia, the only remaining major network affiliate operating on Channel 6.
Since 2013, the FCC has made rules and policy changes regarding LPFM to Channel 6. LPFM applicants who can get a letter of consent from the affected TV station(s), can request a waiver of the Channel 6 distance spacing requirements. The FCC also instituted a policy where a waiver of §73.825 can be made if a technical showing demonstrates that there will be no interference between the proposed LPFM station and the Channel 6 facility. The technical showing is a contour study following a similar process to the FM translator to Channel 6 rule, §74.1205. LPFM applicants can use either a directional or nondirectional antenna to make the showing. If a directional antenna is used, then the proof of performance and other "non-exempted" LPFM directional antenna conditions apply. If the contour method is used, the LPFM applicant must send notification to the affected TV station(s) to advise of the application.
The FCC is currently considering the elimination or reduction of the FM to Channel 6 protections in MB Docket 03-185. Both REC and NPR stated that with digital television, there should be no reason why the protections should be necessary, at least on 88.5 to 91.9 (and 88.3 from a LPFM context). The Channel 6 FM rule was originally established in 1985 and at the time, the FCC established it to address interference issues to television receivers manufactured in the 1960s and 1970s that still had old fashioned mechanical tuners. We are not expecting any changes in the Channel 6 rule prior to the opening of the window.
Unlicensed Operation (Pirate Radio)
Both the original Radio Broadcast Preservation Act as well as the subsequent Local Community Radio Act had statutory language that prohibited anyone who had engaged in unlicensed operation of a radio station from being a party to the license for an LPFM station.
In 2013, there were situations where it was discovered that some applications included a party that had previously engaged in pirate activities. In those cases where the application was dismissed for that reason, the applicant was able to seek reinstatement by filing for reconsideration and removing the offending person from the board of the applicant's organization.
In 2020, the FCC closed this loophole with an amendment to §73.854 of the rules. Under the revised rule, if the application includes someone who has a pirate past, the application would be dismissed and there would be no opportunity to reinstate the application under the Commission's nunc pro tunc (like it never happened) policy. Therefore, for the next filing window, all board members need to be vetted to assure that no member has had a Notice of Violation or other action (including state actions) related to unauthorized operation, pursuant to Section 301 of the Act.
Site Assurance
The FCC has had a long-standing policy that for applications for new noncommercial FM stations (both full-service and LPFM) that reasonable assurance has been reached with the owner of the transmitting site or their authorized agent that if a construction permit is granted, that the applicant would be able to build there.
In response to several situations that happened during the 2013 window, the FCC updated Form Schedule 318 to require the entry of the name and telephone number of the person who provided site assurance to the applicant, if the site owner is not the applicant itself. Therefore, this information must be included with 2023 window applications.
Amendments to window applications
In 2019, the FCC made a change to the definition of a minor amendment to a window application which not only allows any subsequent changes in board members of less than 50% of what was originally filed, but also will allow a board change of more than 50% if the change took place over a period of less than six months and there is no evidence of a takeover or a significant impact on the organization's mission. The FCC also clarified that any change in a governmental applicant will be considered minor.
In 2020, the FCC changed the distance for what is considered a minor change. At the request of REC, the FCC extended the maximum distance of a minor move from 5.6 to 11.2 kilometers. A move farther than 11.2 kilometers will be allowed if a contour study shows that there is an overlap of the 60 dBu contours of the currently proposed and the newly proposed facility on the application.
Time sharing
Due to the demand for new LPFM stations, especially in very large cities, we had seen some very large groups of mutually exclusive applications. In Los Angeles, one group had 32 applicants seeking the same channel. This resulted in some time share agreements being proposed with up to 8 different organizations sharing the same channel.
In 2020, the FCC changed the time-sharing rules by limiting the number of time share proponents in a time share agreement to only three applicants. If there is a tie, then the group with the most locally established organizations (by date of establishment) will win the group.
The FCC also put into place a process where in the event that a tentatively accepted time share agreement is dismissed, a new 90-day period will be set up for all remaining tentative selectees within the group to reach a new voluntary time share agreement or universal settlement.
No changes were made to the involuntary time-sharing rule.
Construction period
In the 2013 window, the FCC granted LPFM construction permits for a period of 18 months. Upon a showing of need, the FCC would extend the length of those permits to 36 months.
In a 2019 rule change, the FCC extended the construction period to 36 months with no routine extension beyond the 36-month period.
Tolling of construction permits
Tolling is normally done to extend the validity of construction permits for various reasons such as major disasters and for administrative reasons. Normally, the grantee of the construction permit had to request the tolling.
In 2019, the FCC modified its tolling policy to where tolling for reasons that are identified by the Commission can be extended by FCC staff without the applicant originally requesting it. Such examples would include a condition regarding the commencement of operations and the FCC has a direct licensing role in the satisfaction of this condition, grants subject to an administrative or judicial review and grants that are still pending international coordination.
Assignment of granted construction permits
In 2019, the FCC adopted the REC proposal to eliminate the prohibition and three-year holding period on the assignment and transfer of LPFM construction permits and licenses. REC had proposed that a granted unbuilt construction permit should not be assignable for the first 18 months of the permit, but be grantable afterwards. This gives "failing stations" a second chance under a different owner to build in the three-year construction period.
If the unbuilt construction permit or built license was subject to the point system due to mutual exclusivity, there will be a restriction on the permit or license where during any remaining construction period and within the first 4 years of the license (exclusive of silence), the proposed assignee of the permit or license must have been able to score the same number or more points than the original grantee and if they have the same number of points and for applicants originally chosen based on the involuntary time share process must have a locally established date that is the same or is earlier than that of the assignor.
More information about all of these changes can be found in the various resources at the REC Networks website.
REC wishes the best of luck to everyone in the window.
