FCC upholds 19-193 decision.. including “Complex 250” : "Simple 250" not impacted.

In an Order on Reconsideration, the FCC has upheld all of the decisions made in their 2020 Report and Order in MB Docket 19-193.  The 19-193 decision made several changes to the LPFM rules, including:

• Codifying the use of FM Boosters by LPFM stations.
• Extended the distance considered as a “minor change” from 5.6 kilometers to 11.2 kilometers (or further if a contour study shows 60 dBu overlap between the current and proposed facilities).
• Permitted the use of directional antennas by LPFM stations for any purpose, but requiring proofs of performance unless the antenna was being used for specific purposes such as government operated public safety stations, second-adjacent channel waivers and international agreements.
• Permitted LPFM stations located in a 125 kilometer “strip zone” towards the Mexico border to use directional antennas to increase their power higher than 50 watts in all directions away from the border.
• Permits LPFM proposals in the reserved band (88.1~91.9) that are short-spaced to Channel 6 TV stations under §73.825 of the rules to use a contour overlap study, similar to those used by FM Translators to show protection with notification to the affected Channel 6 station as well as the ability to waive Channel 6 protection rules with consent of the affected Channel 6 TV station.
• Codified a requirement that LPFM stations file silent notifications if they are off the air for at least 10 consecutive days and special temporary authority if they plan to be off for at least 30 days.

The 2020 Report and Order rejected:

• LP-250, as proposed by REC in RM-11749 (reintroduction of FCC LP250 proposal with a “backstop” for “foothill effect” LPFM stations) and RM-11810 (LP250 using a hybrid protection method consisting of both minimum distance separation and contour protection), citing that these proposals were “too complex” and did not conform with the Local Community Radio Act.
• Efforts to eliminate the requirement that LPFM stations use transmitters that are specifically certified.
• Proposal to allow LPFM stations to drop the “-LP” from their legal call sign if there are no conflicting stations using the same call letters.

One Petition for Reconsideration was filed by Foundation for a Beautiful Life, former permittee of DKQEK-LP, Cupertino, CA, which challenged the FCC’s policy of making rule changes retroactive to all applications pending at the time of the actual change as long as the application did not have any previous decisions made on it.  FBL was seeking to have previously dismissed and subsequently appealed construction permit and license applications be reconsidered using the new rules.  The FCC denied reconsideration on procedural grounds (as they did not participate in the rulemaking proceeding) and alternatively denied it on the grounds that the policy does not violate the Administrative Procedures Act.  The Commission also rejected accusations that the policy was put in place to specifically single out FBL.

The other Petition for Reconsideration was filed by Todd Urick and several LPFM stakeholders seeking an appeal on the rejection of LP250, the certified transmitter requirement and proofs of performance.  Like with the FBL petition, the FCC rejected claims that the FCC’s handling of LP250 did not violate the Administrative Procedures Act.  The other issues were denied because there was an insufficient record to support it. 

In a last-minute effort to clarify the record on the certified transmitter issue, REC wrote an ex parte letter to Commissioners and staff to clarify that some newer broadcast transmitters that meet Supplier Declaration of Conformity requirements (those used by other broadcast services) should be considered on a case-by-case basis while addressing the issue with cheap imported transmitters sold to consumers on major e-commerce websites. In response, the Commission states that the existing waiver process could be considered if a compelling reason can be given, but provides no additional leeway over the existing “high hurdle” policy.

Just prior to the release of the public draft of this Order on Reconsideration, the FCC put on Public Notice, the REC “Simple 250” Petition for Rulemaking and assigned it RM-11909.  The Simple 250 concept was presented to the FCC by REC during the last two weeks prior to 2020 adoption of MB Docket 19-193.  As it was presented too late into the proceeding, the Commission rejected it but kept the door open for it to be reproposed.  In late May, 2020, REC filed the Simple 250 petition. 

Simple 250 addresses the two main concerns the FCC had about the previous LP-250 proposals including complexity and LCRA compliance.  Simple 250 simply adds LP-250 as an “overlay” class of service with a distance separation table of higher values.  If adopted, Simple 250 will permit a majority of LPFM stations, mainly those in rural and suburban areas to upgrade from a 5.6 to a 7.1 kilometer service contour either on their own channel or through a channel change.  Simple 250 requires applicants to recertify their second adjacent channel waiver protections and fully respects the 20-kilometer buffer zone, originally put in place in 2000, when LPFM was first created.

The FCC is accepting comments on RM-11909 until June 21.