REC Statement: 2023 LPFM Window Public Notices

Good day from Riverton. 

Earlier today, I had a very constructive conversation with FCC Audio Division staff regarding the issues that I had raised regarding the content of the second public notice that was released on July 31, 2023.   As previously mentioned, I had publicly voiced my concern regarding the release of both that notice and the previous one released on June 22, 2023 that announced the dates of the filing window.  The main issue is premised around the rules that were codified back in 2000 and that the method the Audio Division used this time ran counter to that codified rule.  Specifically, the rule in question is §73.807, subparagraphs (a)(1) and (c)(1), and specifically the phrases "applications for new and existing FM stations filed prior to release of the public notice announcing an LPFM window period" and "FM translator applications filed prior to the release of the Public Notice announcing the LPFM window period". 

In the First Generation LPFM Window Series (2000/2001) and in the Second Generation LPFM Filing Window (2013), the public notice announcing the dates of the window did properly apply this protection; however, the Third Generation LPFM Filing Window (2023) did not.  

The intention of the June 22 Public Notice by the Audio Division was more intended to provide an "early notice" of the upcoming window.  However, at that time, the FCC was not yet prepared to announce the filing procedures, mainly because the LMS filing system was not ready to accept LPFM applications to be set up for the window.  I have walked away from today's meeting feeling that the leadership in the Audio Division (which the Division Chief has changed since the last window) did not realize that this provision in the rules existed.  About a week or two before the July 31 Public Notice, the FCC contractors did finally bring the LMS form online for new LPFM stations and on July 31, the FCC also released their renewed LPFM Channel Finder.  

In the previous windows, even though LPFM stations did not have to protect those applications that were filed after the public notice was released, those applications could still be filed and while in some cases, both facilities could co-exist, it is still very likely that a window application could still clash with a pre-window application creating an interference situation.   For the 2023 window, the Public Notice states that window applications must protect any applications for full-service stations filed prior to the July 31 Public Notice.  This is somewhat consistent with the wording of the rule (but is one month too late). For FM translators, the notice states that LPFM applications must protect translator and LPFM applications prior to the public notice (similar to full-service), but then clarifies that LPFM window applications must also protect FM translator and LPFM modifications filed between the July 31 Public Notice and the upcoming filing freeze on September 1.

The rule in question has been on the books since the original LPFM Report and Order in 2000 and has not been changed since.  However, since 2000, we have seen a massive growth in FM translators with Auctions 83 (the Great Translator Invasion) and 99/100 (AM Revitalization).  Times have obviously changed, however, the rules have not kept up with that.  Upon reflection, this rule should have been reexamined by Staff back in 2019 with MB Docket 19-3, but for now, that is water under the bridge.    While the Audio Division has not seen a massive spike in FM translator applications since the June 22 Public Notice, we have taken notice of some activity that may quash the ambitions of some potential LPFM applicants.  

It is important to realize that for the 2023 LPFM Window, we have been given a filing freeze, and not just a 30-day filing freeze,but instead, a filing freeze for 60 days.  This means that from September 1 through the window, no modification applications can be filed by FM translator or LPFM stations.  I want to point out that LPFM has never been given the luxury of a filing freeze, until now.   Honestly, to me, the filing freeze is a huge favor from Staff.  

While there may be ways to escalate this issue even further prior to the filing window, we have to look at the much bigger picture.  If we were to insist on a rulemaking proceeding to change the codified rules, this could delay the window by about a year or two.  REC is definitely aware of the mobilization efforts that are taking place to reach the grassoots communities, especially communities of color and other oppressed communities to get their own voices on the air.  We feel that such a delay would thwart those efforts.  Other legal challenges would still delay or possibly even jeopardize the window.  Again, we must weigh the issues and let what's best in the public interest prevail.

Therefore, the modification in the protection ground rules are, in summary (and as compared with the 2013 window):

In this whole thing, our main trigger issue was the fact that the FCC kept us in the dark for a month because when a policy or procedure is not outlined on a public notice, we are in the dark on how to handle something and if there was a question, we should be able to rely on the codified rule.  In this case, the codified rule that would be followed ended up not being the path the FCC took.  To pursue this from a legal standpoint any further prior to the opening of the window, would put the overall window in jeopardy or at least subject to a major delay and we must acknowledge those who are right now working in the field, visiting nonprofits, attending festivals and other events and encouraging them to file in November.  When I proposed LP-250, I made it very clear that I did not want to delay any future filing window and in this case I will say that again.  

I reminded staff that MB Dockets 19-3 and 19-193 from a couple of years ago included items that were "lessons learned" from the 2013 Second Generation LPFM Filing Window.  I have encouraged the Bureau that some time after the window, we regroup and determine the "lessons learned" from the 2023 window.  This issue with the Public Notices is one of the big ones.  

Overall, while we do not have the 4 month "cut-off" like we did in 2000/2001 and 2013, we still have a 3 month cut-off in respect to full-service and a 2 month cut-off for secondary which is further enforced with a filing freeze.  The filing freeze protections far outweigh anything that LPFM has been given in the past under the cut-off policy used in the past LPFM windows.  

REC will not be pursuing this specific issue any further prior to the filing window.  If you request a waiver or handling based on the original 4 month cut off rule, that's on you.  We ask that others please let this window run and let's discuss the issues that came up before and during the window, after the window is done.  

LPFM.app is displaying real time (as of previous business day) availability information.  myLPFM and our manual searches are doing the same.  We may plan another availability map set to come out after the September 1 cut off.  We will be updating Advisory Letters to reflect these clarifications. 

So, for the 2023 Filing Window:

• Applications must protect authorized full-service FM facilities, vacant allotments and must also protect FM applications filed prior to July 31, 2023.  Full-service FM modification applications will be permitted between September 1~November 8, 2023.
• Applications must protect authorized FM Translator and LPFM facilities and must also protect Translator/LPFM applications filed prior to September 1, 2023.  FM Translator and LPFM modification applications will NOT be permitted between September 1~November 8, 2023.

Thanks again for everyone's understanding on this issue and thank you to the Audio Division staff for taking the time to work with me on this issue.

Michelle Bradley, CBT
Founder
REC Networks

August 7, 2023