Statement of REC Networks: Prometheus, et al files Petition for Reconsideration on FM translator Informal Objection
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In their Petition for Reconsideration, Prometheus, et al does make some very compelling arguments as to why the FCC may have violated Section 5 of the Local Community Radio Act where it came to Auctions 99 and 100 as well as the ungranted applications from Auction 83. Despite that, this does not change REC's original position that opposed the Informal Objections filed against nearly 1,000 FM translator applications in mid-May. REC continues to maintain the position that if this was such an issue, it should have been fought before the Auction 99 and 100 windows. Specifically, through reconsideration of the original AM Revitalization Report and Order.
Prometheus is correct that in no place during the entire (AM Revitalization) proceeding was the LCRA mentioned. This is despite comments made during the rulemaking proceeding by REC and others to remind the FCC that the LCRA is still in effect.
Some of the argument Prometheus depends on John F. Garziglia (26 FCC Rcd 12685) otherwise known as the Mattoon waiver case. In the Mattoon letter decision, there was concerns raised by the Commission based on issues raised in the Third Further Notice of Proposed Rulemaking in the LPFM proceeding as it related to implementation of Section 5(1) of the LCRA. We note that the Mattoon decision was made after the Third NPRM but prior to the Fourth Report and Order. This means at the time of Mattoon, the FCC had not made a decision on the interpretation of Section 5. In the Fourth R&O, the FCC interpreted Section 5(1) of the LCRA to ensure that "some minimum of FM translators and LPFM licenses are available" and that it should take into consideration existing (LPFM and FM Translator) licenses. The Commission also interpreted Section 5(1), as well as 5(2) to state that translator and translator licenses be available in as many local communities as possible, according to their needs.
In 2013 during the LPFM window, there were no restrictions on the number of LPFM licenses made available in any one metro area and in addition, clearances were made through the anti-preclusion process to make as many LPFM opportunities available. Therefore, community need for LPFM was demonstrated in 2013. Translators had their "community need" opportunity in Auctions 99 and 100. Yes, translators had two windows (to LPFM's one) because of the fact that smaller Class C and D stations, the types of AM stations that needed the most "revitalization" were given a head start in Auction 99 and then any AM licensee that did not participate in the 2016 250-mile move window or Auction 99 could participate in Auction100. As the number of new translators were limited only by the number of AM stations that did not participate in the 2016 250-mile move window, we had a general idea of what the upper limit is. While REC can't speak for the Prometheus Radio Project as it was organized during the period of the AM Revitalization proceeding, REC was satisfied that the participation in the window would be limited and therefore would meet a community need. If Prometheus or Common Frequency thought at that time that there was still a huge issue here, they could have filed a Petition for Reconsideration within 30 days of the original Report and Order in the AM Revitalization proceeding.
We note though that much of Prometheus, et al's argument in this case is not necessarily about the availability of new LPFM stations but it is focused on existing LPFM stations being "boxed in" by FM translators and the disparity between the two different protection methods these services use. While it is possible to change the rules/policy in the middle of game (we saw it in 2003 with the Radio Broadcast Protection Act "St. Patty's Day Massacre" LPFM dismissals, we also saw it with the caps and channel points in the early 2010s), many of these translator applications are already at the "end" of the application game. In other words, they have already been granted. There was a golden opportunity to escalate the decided AM Revitalization policy. That opportunity fizzled a few years ago and the status quo has prevailed.
Prometheus, in their "Request for Relief" does mention several items that may be reasonable in a way that does not displace the investment made by the Auction 99 & 100 translator applicants:
- An updated LCRA interpretation be established, consistent with LCRA and former FCC precedent, including precendental studies of effects of the presently-applied translators, and future translators, which take into account, population density.
- Permit LPFM stations to use contour-to-contour methods to demonstrate lack of interference in respect to translators.
- Permit LPFM stations to increase HAAT and/or ERP to accomplish spectrum balancing where impermissible imbalance exists.
REC does subscribe to the Commission's interpretation of the LCRA that it does not mandate a 50/50 split between services. We do note that in many metropolitan markets, with the exception of places like Portland, Oregon, there is a disparity in the number of FM translators and LPFM stations which highly favors translators. We must also consider that FM translators also pre-date LPFM by 30 years (however, the number of translators in service in 2003 was far lower than the number of translators granted through Auction 83). REC does feel that the LCRA needs to be reinterpreted and that actual language is implemented as written. This is the basis for the arguments that REC is making in RM-11810. In that Petition for Rulemaking, REC is asking for LPFMs to be permitted to use a contour overlap protection method in lieu of distance separation towards FM translators (consistent with what Prometheus is also suggesting). We are proposing an increase of service contour from 5.6 km to 7.1 km thus the equivilent of 250 watts at 30 meters HAAT. We are also proposing that contours can be optionally used to protect full-service stations as long as a statutory shorter minimum distance separation is acheived.
With that said, REC still can not support anything being held over the Auction 99 and 100 translators, especially those that were granted following the FCC"s denal of the Informal Objection as well as those Auction 100 translator applications that have resolved their mutual exclusitivity or will go to auction. REC feels the better solution is to come through the "front door" by "revitalizing LPFM" with the §73.815 protection method proposed by REC in RM-11810.
REC acknowledges that LPFM stations historically have been on the receiving end of a raw deal, but at the same time, so have small Class C and D AM stations, especially those owned by women, minorities, the LGBT and especially those that are standalone (where the owner does not also have a full-service FM station). Some of those stations are just as much community radio as the LPFM in Portland. At the same time, LPFM has matured as a broadcast service in the way it is provisioned and delivered. It's time to take the training wheels off of LPFM and make the service more engineered like the other "big boy/big girl" services, including FM translators. The answer is in RM-11810. Unless Prometheus plans to take this to the DC Circuit, we suggest this Petition for Reconsideration be withdrawn.
Like before, REC agrees that the FCC violated the LCRA, but we do not support the filing of this Petition or any efforts that can impede the existing filing process. This would have been more approporiate as a Motion for a Declaratory Ruling.
For more information on RM-11810, REC's solution for the issues that face LPFM, please visit http://LP250.com and follow the instructions there to file comments to the FCC. Comments are due on July 19, 2018.
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About REC Networks: REC is a leading policy voice supporting a citizen’s ability to access radio spectrum. The advocacy side of REC was responsible for the writing of RM-11749, the 250-watt LPFM proposal and RM-11810, the LPFM improvement petition. Other REC advocacy initiatives include alternate spectrum for community radio expansion in areas where FM spectrum is not available, driving changes to the FCC rules to allow more flexibility for LPFM stations while remaining compliant with the Local Community Radio Act. REC serves all six segments of LPFM including cause-based organizations, public sector agencies, micro radio stations, community media organizations, secular educational organizations and faith-based organizations. REC also provides consulting and filing services for LPFM stations, FM translators (including FM translators related to smaller AM broadcast stations) and full-service FM stations. REC operates several radiocommunications related websites and REC-FM, the official audio stream of REC Networks in conjunction with the Riverton Radio Project. More information about REC is at our website http://recnet.com.