WYPH-LP prevails over full-service bully in Connecticut second-adjacent conflict
The FCC has reinstated the operations of WYPH-LP, Manchester, CT after over a year of non-operation and denied the second-adjacent channel complaint of Red Wolf Broadcasting Corporation.
In 2016, WYPH-LP applied for a construction permit to modify their already licensed facility. In that application, they based their second-adjacent channel request on a 4-bay Nicom antenna. REC Networks handled that exhibit on behalf of New River Community Church, now licensee of WYPH-LP.
In 2017, WYPH-LP covered that construction permit, but instead of using the 4-bay Nicom antenna as suggested in the construction permit application, they used a 2-bay Shively antenna.
What followed was a volley of objections and responsive pleadings. In their testimony, Red Wolf accused WYPH-LP of using an “illegal antenna” and provided listener complaints of interference to Red Wolf’s WDRC-FM, Hartford, CT by the WYPH-LP operation.
As a result of the complaints, WYPH-LP was ordered shut down by the Audio Division staff until joint “on off” testing can be performed to determine whether WYPH-LP was the cause of the interference to WDRC-FM.
According to the Audio Division’s findings, it was determined that Red Wolf was not cooperative in the interference testing as ordered by the Division and as a result, the Division accepted the test results requested unilaterally by WYPH-LP and conducted by a broadcast engineer who had no connections with either WYPH-LP or Red Wolf.
Red Wolf also claimed that because WYPH-LP has been off the air for over 365 days, the license should be forfeited under Section 312(g) of the Communications Act. The Division acknowledged that WYPH-LP has been off the air for more than 365 days. Because WYPH-LP made a concerted effort to cooperate with the Division’s requests for joint testing, including numerous outreaches to Red Wolf to conduct testing, the Division has determined that they have the discretion to “reinstate” the WYPH-LP license under the statutory language that the Commission may extend or reinstate a station license if it prevails in an administrative or judicial appeal.
With that, WYPH-LP is allowed to return to the air. Even with their return to the air, Red Wolf can file another complaint, but they may not use locations that were previously shown to not cause interference to WDRC-FM.
Red Wolf is also the permittee of Auction 100 FM Translator W273DS, Meriden, CT, which is on the same channel as WYPH-LP and has specified a directional pattern that fully protects WYPH-LP pursuant to the FM Translator rules. If Red Wolf was successful in getting the license for WYPH-LP cancelled, Red Wolf would have been able to change the directional pattern of W273DS in a way allow the translator to extend into Hartford, CT. On May 13, 2021, the FCC accepted for filing a license to cover application for the translator. The application was met with an Informal Objection, filed by Catholica Springfield Dot Com, licensee of WZCS-LP, Springfield, MA, claiming interference. The W273DS license application remains pending as of July 22, 2021.
REC congratulates and welcomes WYPH-LP back on the air!
There are a few takeaways from this proceeding:
LPFM construction permits do not specify a particular antenna make and model. When a second-adjacent waiver is requested, the applicant needs to demonstrate how a certain antenna can prevent interference from reaching occupied areas. While REC does not officially endorse this, if an LPFM station uses an antenna different than what they used in the exhibit demonstration, they leave themselves wide open for a second-adjacent complaint like this. It is important to realize that even if the station was built with the antenna used in the exhibit, they can still receive complaints. It would just be harder for the complaining station to make their case.
Even though LPFM construction permits do not specify specific antenna makes and models, under the new directional antenna rules that were enacted in the 2020 LPFM Technical Order, applications specifying directional antennas used for purposes other than traveler’s information stations or for the sole purpose of achieving a second-adjacent waiver, must include the amount of power (field value) an antenna will radiate in 36 different directions. This will appear on a construction permit and LPFM stations are expected to construct such a directional antenna if authorized.
If you get a second-adjacent channel complaint and are forced off the air by the FCC, make sure that you cooperate fully with the Audio Division’s instructions and make every effort, even if the complaining station is uncooperative as was this case. WYPH-LP’s cooperation in this case saved their license from statutory cancellation. The interference resolution process can be found in §73.807(e)(2).
This ruling further shows that in this day and age, second-adjacent channel interference does not exist, especially at LPFM power levels. In this specific case, its hard to believe that there was any real interference. Instead, this was a complaint being made on behalf of a co-channel translator (which is commonly-owned by the second-adjacent channel station) in an effort to “bully” the LPFM off the air in order to make their urban FM Translator more profitable by rebroadcasting a station that can already be received in the market as opposed to a diverse independent voice provided by the LPFM.
It remains REC’s position that the term “interference” is not defined in the Local Community Radio Act of 2010 and that in the past, the FCC has, in other radio services, defined lack of interference to allow for small amounts of population that would be impacted. For example, a full-service reserved band (88.1~91.9) FM station that is near a TV Channel 6 station may have up to 3,000 persons inside area where there is contour overlap between the two stations. In our Petition for Rulemaking, RM-11846, we cited several rules and other situations where a lack of interference can be shown even where there is impacted population. RM-11846 was REC’s petition to permit new full-service NCE stations in rural communities without their own local transmission service to waive second and third adjacent channel contour requirements if it can be demonstrated that the population impacted by overlap is less than 0.2% of the impacted station’s service contour or 3,000 persons, whichever is less.
It is REC’s position that the FCC is permitted, by statute, to define “interference” in respect to the “any radio service” language in the LCRA to include a de minimis impacted population. Likewise, it is REC’s position that such definition can be extended to FM translators and full-service stations in the matter of second and third adjacent channel contour overlap.