Rant from Riverton: My thoughts on the LPFM NPRM

The FCC has finally made public, the draft of the "technical NPRM" that I had been hearing about.  The NPRM (notice of proposed rulemaking) will be considered at the FCC's August 1, 2019 open meeting. 

What we may be getting so far

Most of the items were proposed by REC in RM-11810 and MB Docket 17-105 comments.  These include:

• Allowing a move of over 5.6 kilometers (3.5 miles) with a contour study showing that there is a contour overlap between the old and new locations.  This is consistent with translators.
• Allow the use of "composite" directional antennas.  This means that the use of directional patterns that are not on the FCC's list of standard patterns.  This allows the use of the directional characteristics of side mounted antennas with published patterns such as the Nicom BKG-77/88 and Shively 6812.  This also allows "skewed" configurations where two similar antennas are pointed in different directions in order to make a specific pattern as determined by software or a proof of performance provided by the antenna manufacturer as well as custom made directional antennas.
• Allow the use of directional antennas in order to meet international agreements.  The major beneficiary of this change will be LPFM stations located within 125 kilometers of Mexico (along what we call the "strip zone").  These stations are currently limited to 50 watts.  Under the proposal, these stations can use directional antennas to only place 50 watts in the direction of Mexico while providing up to 100 watts elsewhere.
• Codifies the use of boosters without the need for a waiver request.  Boosters would count as a "translator" under the cross-ownership rule.  Very few LPFM stations would find benefit with a booster.  Boosters are only to improve reception within a station's service contour that is otherwise blocked by terrain.  All of the LPFM boosters so far have been in California and Washington state.  

Big win on Channel 6!

Probably the biggest surprise in this NPRM (and possibly the biggest subject of controversy) is something that NPR has been asking for since 2008, the elimination of all requirements that FM broadcast stations (full-service, LPFM and translators) operating on 88.1 to 91.9 provide protection to TV channel 6 broadcast stations (both full and low power).  In RM-11810, I only asked for relief for LPFM stations having to over-protect TV stations when only a handful of stations were actually operating at the parameters used to develop the protections many years ago.  This is one of those rare cases where you ask for a little and you get a lot.  Under the FCC's plan, all protection requirements will sunset on June 13, 2021.  In the interim period, LPFM stations would be able to use a study, similar to the one used by translators to demonstrate protection to TV channel 6 (what REC originally asked for).  

Now obviously, I support all of these changes that the FCC specifically proposed, especially the channel 6 surprise.  

Where the FCC punted

Now, there are a few things, the FCC initially decided to take a pass on.  These include the following items:

• LP-250
• The "hybrid" concept of using a combination of using LP-10 distance separation and contours to increase LPFM opportunities
• Failure to discuss LPFM protections to FM translators and other LPFM stations

Let's look at each of these a bit further:

LP-250

Let me talk first about LP-250.  On this one, I can understand the FCC's reluctance but their reasoning for rejecting LP-250 without any consideration is inaccurate.  The FCC claimed that since they rejected the LP-250 concept in 2013, there has been no additional information to demonstrate that the FCC was incorrect in their 2013 decision and that there was no new information since then to justify reexamining the issue even to the point of referencing the original 1999 FCC petition of providing 1,000 watt LPFM stations.  

Prior to the 2012 LPFM NPRM, the Amherst Alliance along with the Catholic Radio Association advocated for LP-250 but in a manner where operation would be limited to areas outside of "Standard Metropolitan Statistical Areas" and "Micropolitan Stadnard Metropolitan Statistical Areas".  These are US Census Bureau metrics that were created in the 1950s and have been obsolete since 2000 as they were replaced by other methods.  This would have seriously limited the availability the areas where LP-250 stations would be available.  The reason for this approach by Amherst was to promote an agenda of maintaining the 10-watt LPFM service, which REC, in probably the only time we have ever agreed with the New Jersey Broadcasters Association, held the position that 10-watt LPFM stations are non-viable due to noise floor.  Instead, REC supported the creation of a 50-watt LPFM service to replace the 10-watt as an option for deep urban areas.  REC supported the creation of LP-250 wherever it could fit but only as an upgrade following a filing window to permit new LP-100 stations in order to gauge LPFM demand and to permit the upgrades to 250 where 100 did not permit.  During this time, REC Networks, along with Prometheus Radio Project and Common Frequency had an established track record (and still does) of actually supporting LPFM stations and the service.  Amherst on the other hand was considered as a rogue/fringe group that really did not represent the LPFM service in the manner that REC, Prometheus and Common Frequency did.  Because REC/PRP/CF took a totally different approach than Amherst/CRA on this issue, the FCC took this as disagreement within the LPFM community and therefore would not consider LP-250, which is misguided since Amherst had never taken any active role in the ongoing support and advocacy for LPFM stations (that involved actually interacting with stations).   Not to completely downplay the contributions that Amherst Alliance made to LPFM, their principals, the late Nicklaus Leggett and Don Schellhardt were the ones who wrote the petition for rulemaking that became RM-9208, which along with Rodger Skinner's RM-9242 became the bedrock for the entire LPFM 99-25 proceeding in 1999.

If the Commission was to seriously look at LP-250, there would definitely be some contention, especially from the groups we expect to hear from such as the NAB.  As an advocate, I need to pick my battles and if I do pick them, how to time them.  LP-250 is still a battle worth fighting.  When I advocated for LP-250, I was considering it mainly as an upgrade path instead of an original service.  At this point, we as an LPFM community, need to collect more case histories of how the LP-100 is not allowing LPFM stations to even serve their communities.  I would recommend LPFM stations make these cases in comments. I will be working with Media Bureau and Commissioner staff, not to push LP-250 for this upcoming NPRM (as this would delay implementation), but instead, to use the information collected in comments as well as bring back fresh in the record, the testimony in RM-11749 and to bring back into play, the distance separation model LP-250 that was originally proposed by the FCC in 2012 and resurfaced in 2015 in RM-11749.  The FCC can adopt a Report and Order on the items we have in 19-193 today and get those implemented and then turn around and adopt a Further Notice of Proposed Rulemaking (FNPRM) in order to consider other issues at a later time in another round of comments.  I would propose that LP-250 go into the FNPRM so we can consider this issue without delaying implementation. 

Contour Overlap

Getting the FCC to take into consideration that they could, by statute, reduce minimum distance separations to LP-10 levels towards full-service stations was going to be a very tall order was definitely in my mindset, but it was worth a try.  This concept would have called for LPFM stations to use the shorter "LP-10" tables instead of the "LP-100" tables.  This was working off of language in Section 3(b) of the Local Community Radio Act (LCRA) that states that the FCC can't reduce minimum distance separations in respect to full-service stations to those in effect on the date of the enactment of the LCRA.  The premise of my argument was that "LP-10" was still on the books at the time President Obama signed the LCRA.  In 2013, the Commission even stated in 2012 that the LCRA does not address operating power (saying it in a context to justify 250-watt LPFM). 

OK, I get it.  It was a tall order.  But it does overshadow the issue that is facing LPFM stations right now. 

There is currently a disparity between the way that LPFM stations and FM translator stations are authorized.  LPFM stations use distance separation where FM translators use contour overlap.  The Commission's mindset is that LPFM stations cannot afford engineers and consultants (like REC) to conduct contour overlap studies.  This is despite the statistics that showed that a considerable number of applications were filed in the 2013 window with "hired help".  The FCC's 2000 way of thinking, while well intended, is misguided to reality, especially since the "LPFM friendly" folks who handle these kinds of filings such as REC and Prometheus usually charge only 3-figures to LPFMs for filing assistance.  We don't charge the "big engineer" prices and that's because we are part of the [LPFM] community and we take good care of our own.  

The FCC appears to have put the issue of using contour overlap and directional antennas in respect to FM translators (and other LPFM stations) up in the air in the NPRM.  The LCRA, in section 3(b)(1) states that distance separation must be used between LPFM stations and "full-service FM stations".  Further down in section 5(3), the LCRA distinguishes between LPFM, FM translators, FM boosters and full-service FM stations, specifically making full-service FM stations something not mutually exclusive with FM translators.  In other words, the wording of the LCRA does not see a full-service FM station and a FM translator as the same thing, thus giving a different level of protection to full-service FM stations than it does for translators.  

With that, Section 2 of the LCRA states that the FCC must "provide" protections on co-channel, first-adjacent and second-adjacent stations.  In that case, no specific radio services are mentioned.  However, there is nothing in the LCRA which mandates the style of protection that the FCC must give to FM translators from LPFM stations, unlike section 3(a), which mandates a style of protection to full-service stations.  

The FCC has already afforded a "second method" alternative for LPFM stations to get someone like REC or Prometheus to do a contour study for doing moves over 5.6 km, asking for more than 50 watts near Mexico or running on a reserved-band channel near a Channel 6 station.  In all of those cases, the FCC offers a "no-engineer option" (i.e.  moves under 5.6 km, 50 watts near Mexico and staying a particular distance away from Channel 6).  There is no reason why the FCC can't offer a similar contour study option for LPFMs wanting to short-space §73.807 towards FM translators and other LPFM stations.  This does not violate the LCRA.

As we go into this two week opportunity to potentially influence revisions to the NPRM and to educate Commissioners on LPFM issues, my first priority is going to be discussing the translator disparity and forward a proposal that would require that LPFM stations propose facilities that meet the minimum distance separations to FM translators and LPFM stations as the "no-engineer" method, however, be allowed to propose a facility that would be short-spaced to an FM translator or LPFM station if a contour study shows no prohibited overlap using existing FM translator methods.  Any LPFM station that creates such a relationship would then be subject to additional interference rules similar to those recently adopted for FM translators in respect to the short-spaced station.  Therefore, even if the short-spacing works "on paper", there is recourse for the FM translator or other-LPFM station in the event of predicted or actual interference.  

Timing of filing windows

There has been some talk that the LPFM window should happen before the NCE window (as a result of MB Docket 19-3).  I disagree with first opening the LPFM window for the following reasons:

• The sunset of Channel 6 protections will definitely open up channels in the reserved band for new LPFM stations.  This may be the only new places for channels that we will gain for the next window.  Doing the window before the sunset will further reduce the remaining opportunities because of the areas that would be excluded because they can't meet the contour overlap requirements in effect during the window.  Yes, it may be possible that the FCC could accept applications before the sunset and then hold the grants of those applications in abeyance until after the sunset date.
• Since the NCE window will be for primary services, they only need to protect primary TV stations.  There are only 9 primary Channel 6 stations nationwide. Those 9 stations will have to be protected before the sunset but the protections go away afterwards.  Again, the FCC can hold noncompliant applications in abeyance until after the sunset.  
• If the NCE window is conducted prior to the LPFM window, this means that primary NCE stations would have first chance on the post-sunset channel selection where there is space available (remember, NCE stations currently have to protect co-, first-, second- and third-adjacent channels as well as intermediate frequency, I have a petition for rulemaking/declaratory ruling to allow some rural applicants to waive second- or third- adjacent channels).  If LPFM was allowed to go first, the LPFM station filing in the reserved band (88.1~91.9) would be subject to displacement from activity in what would be the subsequent NCE filing window.  This will mean that either (1) the station may have to change channel resulting in additional expenses for a retuned antenna, (2) unexpected incoming interference or (3) displacement to the point of license/permit cancellation. 

It would be in everyone's best interest to conduct the NCE window in mid-2020 (holding applications not meeting §73.525 an abeyance until sunset) and then in mid-June, 2021 (after the sunset), conduct the LPFM window.   This will cause the least frustrations all the way around.

Having your say in what happens

Being the petitioner, I do have an added responsibility to support the issues raised in my petitions.  That should be expected of me.  This means that I may make contact with decision-making and influencing staff at the FCC. This includes the Commissioners, their advisory staff and staff in the Audio Division.  This is a process that has specific policy and protocol.  While anyone can do this (not just the petitioner), unless you are well versed in the Commission's ex parte policies and the Sunshine Act, I strongly suggest you wait until the comment period.  When you make contact with staff, there is a specific reporting procedure you have to go through and during the "sunshine" period (about a week before the FCC open meeting), there is a full prohibition on presentations.  If you have a strong issue on something technical that the FCC did not bring up but may be feasible from a technical, regulatory and statutory standpoint, please get it to me.  If it is significant, I can add it to my upcoming ex parte presentations.  Otherwise, please bring it up when the comment period opens.  

I also invite the other advocacies (PRP, CF, NFCB, LPFM/C, LPFM-AG, CCB, etc.) to participate in the process.  During this ex parte period (as well as after comments close), please let the advocacies speak for you.  We all have different ideas on handle things, but I think we can all agree, that we are trying to do what is best for the service in all six segments. 

Thank You for your previous comments and I look forward to your comments when the period opens up for this proceeding.  Please stay tuned to REC's website and social media channels for updates.  Let's make this happen!