FCC adopts Notice of Proposed Rulemaking MB Docket 19-3 affecting LPFM and full-service NCE

On Thursday, February 14, the Federal Communications Commission has adopted a Notice of Proposed Rulemaking in MB Docket 19-3 which proposes changes to various non-controversial administrative rules, most of them would not apply until NCE full-service and LPFM has another filing window.  The proposed changes include:

• Removing the requirement of specific wording on NCE governing documents in order to claim preference points for localism and diversity.
• Establish uniform divestiture pledge policies for future NCE applications.
• Expanding tie-breaker criteria and revise procedures for mandatory time-sharing in the NCE full service.
• Clarify and modify the NCE "holding period" rules.
• Prohibit an LPFM application that was dismissed due to a board member with a "pirate past" to be amended to remove the offending board member.
• Permit LPFM time sharing agreements prior to tentative selectee designations (opposed by REC).
• Establish procedures for remaining tentative selectees following dismissal of accepted point aggregation time share agreements.
• Reclassify gradual NCE and LPFM board member changes (during the initial application process) as minor.
• Require certification (and possibly a documentation requirement) of site assurance at the time of filing the initial application (NCE and LPFM).
• Streamline tolling procedures and notification requirements.
• REC's proposal to extend the LPFM construction period from 18 to 36 months on all applications. including modifications.
• REC's proposal to replace the prohibition on assigning unbuilt LPFM construction permits with an 18 month holding period to discourage trafficking while permitting the saving of failing stations.
• REC's proposal to eliminate the 3 year holding period after an LPFM station is constructed to assign the station to a different qualified organization. 
• REC's proposal to make a LPFM "holding period" similar to NCE (in the first 4 years of licensed operations, LPFM applications granted under the point system can only be assigned to organizations that would qualify under the same or higher number of points and must have a community presence date older than the youngest organization in the MX group.

The FCC's proposal also calls for the potential of a "mini-window" where in the event that a time shared station's permit or license is cancelled, the time is reserved another filing window will be established in order for another new entrant to apply for the time. 

Because of the current rules allowing a 10 hour minimum for time share proponents and the methods of how time share proposals in Los Angeles and Philadelphia took advantage of the 10 hour rule in order to add groups to "stack" points against opposing time share proposals, REC opposes the FCC's proposal to permit time share agreements prior to the tentative selectee designations. REC supports a more fair system and with the potential of "mini-windows" to deal with vacancies created in time share groups, REC is promoting a concept that would require each time share proposal include operating hours that are "viable".  In an ex parte presentation to FCC Staff on February 1, REC proposed its alternative Viable Time Sharing plan which requires for future time sharing agreements:

• A minimum of 36 hours per time share proponent,
• A minimum of 5 contiguous hours per week, 5 days per week between the hours of 6AM to 12 midnight, and
• A prohibition on co-located facilities. 

By design, such a proposal would create no more than 3 proponents per time share group.  Ties would be broken by aggregation of each proponent's local presence dates.

During the Commission meeting, recently appointed Commissioner Geoffrey Starks stated that he is intrigued by hyper-local service an opportunities that LPFM stations provide across the country, Commissioner Brendan Carr called this proposal a "good-government item that won't generate many headlines", Commissioner O'Rielly didn't speak about the proposal itself other than to express support for any initiative that helps combat pirate radio and Chairman Ajit Pai stated the proposed rules would provide greater clarity to broadcast applicants and thus make the process easier for them.

The most supportive statement came from Commissioner Jessica Rosenworcel who had told the story about her recent visit to KOCZ-LP in Opelousas, LA, the birthplace of zydeco, a music genre that is a fusion of blues and two-step, heavy on accordion and washboard.  She stated that even in a day of expanding audio opportunity, there is still something special about a voice on the air.  She would further indirectly acknowledge REC's proposed items in this NPRM.  With the departure of Mingon Clyburn from the Commission, LPFM still has a good ally in Jessica Rosenworcel and REC looks forward to working with her and her staff in the future to advance community radio and the LPFM service.  

We do note that this NPRM does not include any of the technical changes that REC has proposed such as 250-watt LPFM stations and "mature" engineering processes to establish stations as well as provide more flexibility in the event of displacement by full-service stations and "equal in status" FM translators.  Based on our discussions with staff, we anticipate the FCC may move forward on technical issues later this year.  REC asks our constituency to be patient.  We have our foot in the door and staff is working with us. 

Once the NPRM is published in the Federal Register, the FCC will release deadlines for comments and reply comments. 

The NPRM can be viewed at the following URL:
https://docs.fcc.gov/public/attachments/FCC-19-9A1.pdf

REC's ex parte presentation proposing the Viable Time Sharing Plan can be viewed at the following URL:
https://www.fcc.gov/ecfs/filing/10201678416226

While it is normal practice for the FCC to issue an NPRM before a filing window, we do not currently have any word on when a filing window will take place for either full-service NCE or for LPFM.  It is our speculation that following the outcome of this NPRM, that there will eventually be a window for new reserved band (88.1~91.9) NCE FM stations.  REC speculates this window can take place around early 2020 (the previous window was in 2007).  REC also speculates that a technical NPRM for LPFM may be possible before the end of 2019.  Unlike the current NPRM, we anticipate a considerable amount of resistance from the NAB and other organizations related to some of the items that could appear on the docket.  REC's door is always open for the NAB and others to discuss and perhaps work out differences.   In the event that the FCC amends the rules to allow for 250-watt LPFM stations, we want existing stations to have the first opportunity to upgrade before new stations are added.  REC speculates that an LPFM window may not take place until at least 2022 or 2023, but we will definitely take it sooner!