Advice for LPFM stations considering upgrading to full-service NCE

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Full service non-commercial educational (NCE) stations that operate in the "reserved band" (88.1 to 91.9) enjoy a level of primary service and increased power levels.  With the Notice of Proposed Rulemaking that is coming out for MB Docket 19-3, it can be speculated but not confirmed that there may be a filing window for new NCE reserved band FM stations sometime after the FCC issues a Report and Order on the docket. Our guess is early 2020.  To help prepare LPFM stations that are in rural and other non-urbanized areas where new spectrum is likely to be available, REC provides the following information.

More power and primary status

Two of the major reasons why an LPFM organization would want to obtain a full-service license.  Depending on the location, full-service stations could operate with as little as 100 watts (at 30m HAAT) and as much as 100,000 watts (at 600m HAAT).  NCE stations are primary in nature. This means they can displace translators and in some rare cases, other LPFM stations (there are very few LPFM stations in the reserved band however, LPFM stations on 92.1 could also be impacted). NCE-FM stations that are constructed can be sold for a value exceeding the depreciated fair market value of the equipment (the requirement for LPFM).  NCE licensees can own an unlimited number of stations and FM translators.  With some exceptions, any translators must be able to receive the primary station over the air or relayed through another translator.  Under an exception, a translator in the reserved band may rebroadcast a commonly-owned NCE FM station operating in the reserved band through means other than over the air (this is the so-called "satellator" rule).

With full-service comes full responsibility

Full service stations are expected to follow various broadcast rules that do not apply to LPFM stations.  Some of these rules include:

  • The requirement to maintain and update the online Public Inspection File - Those who have used REC's Voluntary Public Inspection File system already have an idea of how this works.
  • The station must maintain a local or toll free phone number within the community of license and it must be staffed during normal business hours. - The FCC recently lifted the main studio requirement, but they continue to require that station staff can be reasonably reached by members of the public.
  • The station must designate a "chief operator" whom is responsible for the station operating within tolerances of the rules.
  • Full-service stations are required to file ownership reports once every two years and following certain other application activity.
  • The station must install Emergency Alert System equipment capable of encoding and decoding.  (LPFM is decode-only)
  • Specific requirements and reporting related to Equal Employment Opportunity (EEO).

Community of License coverage

In the LPFM world, the location designated as your community of license was merely a placeholder.  As a secondary service, LPFM stations were not required by §307(b) of the Communications Act to provide service to a specific community.  In the full-service rules, the community of license must be designated.  That community must be one that is eligible for allotment purposes.  An eligible community is one that includes various indicia of an actual community as opposed to a speck on the map.  Such indicia can include a local police/fire department, city hall, post office or businesses that identify with that community name.  Communities of license should be listed in the U.S. Census Bureau's Gazetteer.  Communities that are listed as "census designated places" (CDP) are otherwise eligible.  If the community currently does not have any licensed services (FM, NCE FM or AM), then a full demonstration of that community's eligibility to be a community of license must be demonstrated.

There are further complications for stations where the predicted 60 dBu protected service contour reaches at least 50 percent of the population within an area designated by the US Census Bureau as an "urbanized area" (UA).  In cases where stations are proposed in urbanized areas, it may be required to show how the proposed community of license is distinctly separated and independent of the communities that make up the urbanized area.  This is a very tricky part of the rules and will definitely require some research.

Divestiture: you can't own both

If an existing LPFM station applies during the NCE window, they must disclose that they are an LPFM licensee on the application for the original construction permit.  If the permit is granted, it will include a condition that requires that the organization divest of their LPFM station before they can commence program tests on the full power station.  This means that before the NCE station goes on the air, the LPFM station would need to be assigned to a different qualifying organization or the license for the LPFM station is surrendered to the FCC.  The FCC will not make any exceptions.

Availability of channels

As we had mentioned before, the reserved band is the 20 channels between 88.1 and 91.9.  In this spectrum, no commercial stations are allowed.  Unlike LPFM where distance separation tables are used to space stations apart, the reserved band rules use contours to space stations apart.  Currently in the FM translator rules and in the premise of the LPFM rules, the proposed (LPFM or translator) station's interfering contour is not allowed to overlap the protected service contour of the undesired station but the protected contour of the LPFM/translator can come inside the interfering contour of the undesired station (the desired station can "consent" to the interference from the undesired incumbent station).  The rules are different in the NCE world.  Not only is the desired station prohibited from interfering with the undesired station, but also the undesired station is also prohibited from interfering/overlapping with the desired station.  The protection must go both ways.  The protections to full-service stations in the commercial band are done by distance separation tables based on service classes.  There are specific procedures for dealing with TV Channel 6 stations.  

Unlike LPFM, NCE stations must protect other stations on third-adjacent channels as well as IF channels (10.6 and 10.8 MHz up).  Of course, co-channel, first and second adjacent channel protections must also be provided.  In the full-service world, there is no such thing as a "second adjacent channel waiver".  In REC's opinion, this is not necessarily because of technical reasons, but it is more around the "fair distribution of license" provision of §307(b) of the Communications Act.  NCE stations are not required to protect and can displace FM translators and LPFM stations.  In the reserved band, an LPFM station is subject to displacement if the new full-service station's 70 dBu city grade contour overlaps the interfering contour of the LPFM or if the interfering contour of the LPFM crosses into the community of license of the proposed full-service station.

There are specific procedures for stations along the Canadian and Mexican borders that we will not get into detail about here.

Directional antennas

Sometimes, it may be necessary to operate a directional antenna in order to achieve maximum coverage while protecting other stations.  The rules are very different for full-service than they are for FM translators.  In full-service, stations must be able to achieve a minimum amount of service in all directions.  No application will be accepted where the maximum to minimum ratio exceeds 15 dB.  In addition, directional antennas must be designed so the difference in attenuation does not exceed 2 dB per 10 degrees.  For example, for a 1 kW station, there must be a minimum of 32 watts in all directions.  This means that certain antenna types, such as the popular antennas from Kathrein-Scala that are commonly used for FM translators can't be used in the full-service (unless they are skewed and designed in a manner that meets the various requirements).  It is also important to remember that if you propose a directional antenna, your construction permit will include conditions that before program testing can begin, the antenna installation will need to be inspected and signed off by a board certified surveyor to assure that the antenna is  constructed at the right height and pointed in the right direction.  Also,a proof of performance will be required for any custom/composite antenna.  This can usually be obtained by the antenna manufacturer.  

Mutual Exclusivity

Like with LPFM, there is a process where during a filing window, multiple applications are received that not grantable without causing a conflict.  Once the FCC declares the groups as mutually exclusive, they will have a process for reaching settlement agreements.  During such agreements, changes will need to be minor (first, second or third adjacent channel with some contour overlap between old and new).  If the conflict can't be settled, it will then go to a point system:

  • 2 year local presence.  3 points - The NCE qualification differs from the LPFM one where the bylaws require that such localism be maintained and that documentation, such as the bylaws of the organization must be submitted to support that showing. (MB Docket 19-3 proposes to remove the documentation requirement.)  A local applicant is one that is physically headquartered, has a campus or at least 75% of the board members within 25 miles of the reference coordinates for the community of license to be served.
  • Local diversity of ownership. 2 points for applicants with no other attributable interests in any other broadcast station or construction permit whose principal community contour overlaps that of the proposed station and the organization's bylaws require that such diversity be maintained.  The points can still be claimed by LPFM licensees as the grant is conditioned on the divestiture of the LPFM station. (MB Docket 19-3 proposes to eliminate the documentation requirement to show that organizational bylaws require that  organizations must be engaged in such diversity.)
  • State-wide network. For organizations that can't meet the diversity points, entities with a large number of school campuses can claim state-wide network points in lieu of diversity.
  • Technical parameters. 1 point if the applicant covers 10% more population than it's next highest competitor, 2 points if it exceeds 25%.
  • Tie-breaker is based on the number of authorizations (including non fill-in translators) at the time of filing the application.  Then, if still a tie, then by the applicant with the fewest pending new and major change applications at the time of filing.
  • If there is still a tie, then time sharing may be mandated.

If a NCE permit and subsequent license is granted based on the point system, the permit and license will carry a condition that for the first 4 years of licensed operation, any transfers or assignments of the permit/license must be to an organization that would have scored the same or greater number of points than the current license/permit holder if the new organization was to file in the window.

Checking availability of channels

Because of the protection requirements, new NCE stations are not available in most urban areas.  As a convenience, REC has built a Preliminary NCE Channel Search Tool.  This tool is good for long term planning to see the potential for NCE at your new transmitter site.  You can use the NCE Search Tool at:

https://recnet.com/nce-search

It is also important to realize that because of the higher powers, you may not be able to put your antenna at the location where your LPFM station is currently at.  This is because these higher powered stations may require additional antenna bays.  There are also issues in regards to radio frequency radiation exposure.  For full service, the evaluation will be much more than just the simple "20 foot rule" we have with LPFM.  With the higher power, you must also take into consideration "blanketing interference" (interference with other stations to listeners that are within an immediate vicinity of the transmitter).

Building a relationship with REC

As we don't know when the filing window will be for NCE, you can start working with REC now for preliminary information and we can start building up information on your proposed station.  Until there is more certainty of a filing window, then we can discuss specifics and collect fees.  Please e-mail us at lpfm at recnet dot com or call 1-844-732-5736 to start your station on the path to an upgrade.  

Thank you for reading and considering REC!

Updated February 6, 2019

Questions and Answers

Has the FCC actually announced that there will be a reserved band filing window?

No, and I need to stress this.  When the FCC is offiicially planning a filing window, there will be a public notice which may also include a filing freeze prior to the opening of the window.  Until then, it is entirely speculation.  Stations looking to upgrade must always be prepared for an opportunity.  When the FCC starts various activities such as notices of proposed rulemaking (NPRM), this is usually writing on the wall that filing windows may be coming up, especially when the subject matter of the NPRM is establishing new rules for the next generation of applicants in a future filing window.  When asked directly about a filing window following Commission action on the NPRM, REC was advised that the FCC "has not reached that point".  There has been a long desire within the Media Bureau for at least another NCE window and we feel this NPRM was what got this action going.  REC's position is that the FCC should complete this NPRM process, then perform a filing window for NCE, then adopt a technical NPRM for LPFM (e.g. 250-watt stations and other technical changes), then an opportunity for existing LPFM stations to modify to the new rules and then a filing window for new LPFM stations. 

At this time, we must allow the process to run its course and be patient.  At the same time, we can't assume the expectation of an NCE window until something comes out in writing from the FCC (even if it is through Pai's blog, which is not legally binding).  My staff interactions will be increased this year and there will be more ex parte presentations (we had one already) to promote the items on MB Docket 19-3 and address the ones that are of controversy, such as the Commission's endorsement of collusion in LPFM time share agreement negotiation. 

Why can't an LPFM station just upgrade on their own channel, especially if there are no reserved band channels available?

LPFM is a secondary service, in other words, they are guests on the dial.  Same with FM translators.  Full-service NCE stations, on the other hand, are primary stations. In other words, not guests, but permanent residents.  Primary services are subject to Section 307(b) of the Communications Act which states:

In considering applications for licenses, and modifications and renewals thereof, when and insofar as there is demand for the same, the Commission shall make such distribution of licenses, frequencies, hours of operation, and of power among the several states and communities as to provide a fair, efficient, and equitable distribution of radio service to each of the same.

When the FCC considers the primary users of the FM spectrum, historically in the commercial portion of the band (92.1 to 107.9) and just recently in the reserved band (88.1 to 91.9), the FCC must take into consideration various factors related to whether an assignment of a channel to a particular community of license is a "fair, efficient and equitable" distribution of radio service.  Without this fair distribution, you will have more situations where rural communities are being denied radio service because of spectrum usage within the urbanized area.  To be fair, this is happening today (it's happening here in Riverton).  One of the primary ways that the FCC spreads out allocations in the commercial band is to impose specific distance separations to co-channel, first-adjacent, second-adjacent and third-adjacent channels and to assure that protections are equal to all stations (e.g. all interfering contours do not overlap protected contours).  

The FCC also segregates the spectrum between non-commercial and commercial use.  In fact, the very first broadcasting-related order by the newly formed Federal Communications Commission in 1934 put the wheels in motion for segregated noncommercial educational spectrum:

ORDER No. 1  - The Commission shall study the proposal that Congress by statute allocate fixed percentages of radio broadcasting facilities to particular types or kinds of non-profit radio programs or to persons identified with particular types or kinds of non-profit activities, and shall report to Congress, not later than February 1, 1935, its recommendations together with the reasons for the same.  (1 FCC 25).

Traditionally, the reserved band has used the contour overlap method to assure 307(b) compliance, but the commercial band had always used a method of first assigning "allotments" and then assigning stations.  Until the past two decades, the FM channels assigned to particular communities were published in FCC rules as the "FM Table of Allotments".  The table still lives in §73.202 but now only shows vacant allotments.

It is also important to point out that in the commercial band, all primary facilities must provide a level of service to the community of license for that allotment.  Therefore, any primary station (commercial or non-commercial) must be able to place a 70 dBu protected contour (sometimes called the "primary community contour" or the "city grade contour") over a significant portion of the limits of the community of license.  This is a method to assure that the allotment for a particular community is focused on that community.  In the reserved band, the 60 dBu protected contour must be able to reach at least 50% of the population in the limits of the community of license.

There are two ways a commercial channel can have a NCE station on it.  First, is if a allotment was first granted as a commercial channel and then a NCE organization decides to operate on it.  From an allocation standpoint, the channel allocation is still commercial and the NCE can, in the future, sell the station to another entity to operate commercially on that channel.  The other method is to file a petition for rulemaking with the FCC to allocate a new allotment to a particular community and have that allotment reserved for NCE use.  Using this method, it must be shown that such an allotment is necessary because:

  • No reserved channel can be used without causing prohibited interference to TV channel 6 stations or foreign broadcast stations, or
  • The applicant is technically precluded from using the reserved band by existing stations or previously filed applications and the proposed station would provide first or second NCE service to 2,000 or more persons who constitute 10% of the population of the proposed allocation's 60 dBu service contour.  [§73.202(a)(1)]

In this case, the proposed allotment would still be required to meet the distance separation requirements of §73.207 like any commercial allotment.

Therefore, since the LPFM operation was never vetted through the entire allotments process and is most likely not able to meet the distance separation requirements (especially if the LPFM is on a second adjacent waiver), the ability to seek an allotment for your channel as a full-service allotment would be very unlikely, unless you are in a rural area adjacent to urban and suburban areas where reserved band spectrum is not available but your area is devoid of NCE service.  Even where that is the case, you run the risk of losing your station because even though you go through the process of alloting the channel for reserved NCE use, it does not guarantee that you will get the channel or any priority.  Several years after the allotment is made, the FCC will open a window for NCE allotments in the commercial band and any qualified organization can apply.  The rules for MX in this spectrum do vary from those in the reserved band and you run a strong risk of another applicant being awarded the channel and thus displacing the LPFM station.

Since the possibility of primary status in the LPFM service is unlikely (as it would require an act of Congress and would require a ton of new regulations in order to apply §307(b) to the service), we must stick with the current reserved band NCE service in place.