Rant from Riverton: Why can't LPFM have nice things?

No. It’s not because of the NAB or NPR.  It’s because of the LCRA.

Greetings from a very hot weekend.  The heat index right now is 109. It’s Saturday. The Yankees are up 9-nil over the Rockies at the end of 4 innings.  It’s just too hot to do much else.  Welcome to the Riverton summer from Hell. 

These past two months have been busy here at REC.  We have the two LPFM specific rulemaking proceedings, 19-3 (the administrative NPRM) and the currently in draft 19-193 (the technical NPRM).  We also have the amateur radio 8-meter petition, which is still in comments as well as the NCE excluded rural communities petition for rulemaking that the FCC has yet to docket. Throw in there the 2019 EAS periodic test, 2018’s lowsy EAS participation results and the broadcast renewal cycle.  Let’s also throw in the recent bombshell with the public notice rule clarification and the ongoing issue of translator interference.  This year, I have made two road trips to DC with a third one scheduled for the end of the month.   The efforts that REC has put into LPFM this year, is especially important today as it is also the 35th anniversary of the entity.

As a part of my efforts to try to improve LPFM, one of my focuses has been on the issue of the relationship between LPFM and translators and specifically the disparity between the LPFM rules that involve distance separation to translators and the translator rules which provide much more flexibility by allowing the use of contours towards LPFM stations and with no second-adjacent channel protection requirement.  In RM-11810 and comments in MB Docket 17-105, I had addressed this disparity.  I had proposed that LPFM stations should have the option where if a new or modified LPFM station creates a new short-spacing or reduces an existing short-spacing, the applicant can use a contour overlap model towards that translator and if the LPFM uses this method, they would be subject to the same rules as translators for remediation of interference towards that translator.  In my comments, petition and in ex parte presentations with Commission staff (including staff of the Commissioners), I do use an Local Community Radio Act (LCRA) argument that the wording of the LCRA does not require distance separation towards translators as long as some kind of protection is prescribed.  The LCRA does require distance separation towards “full-service FM” stations and the previous Radio Broadcast Protection Act, distance separation was required in all cases as specific services were not called out as they were in the LCRA.

While I accept the FCC’s decision to not move on the REC petition to do the “hybrid” protection plan which would have lowered the minimum distance separation to the former LP-10 level in respect to full-service facilities and use contours to allow for up to 250-watt facilities, I do feel that the Commission was wrong for not allowing a contour overlap alternative for short-spaced FM translator (and short-spaced LPFM) opportunities.  My main argument in that case was Sections 2 and 3 of the LCRA.  Section 2 prescribes protections for co-, first- and second-adjacent channels and Section 3 maintains the use of distance separation, but only in the case of protecting full-service stations.  Short spacing LPFMs and using contours should have absolutely no LCRA controversy whatsoever.  Again, this is just the “simplicity culture” of the original 2000-era LPFM service.

This week in ex parte meetings with not just Audio Division but also Commissioner staff, there was a substantial amount of hesitancy to even consider anything that involves making any kind of decision that would reinterpret the LCRA.  In my opinion, the FCC got it wrong the first time by not seeing the language change to give us more flexibility.  But in all fairness, this was from prior to the 2013 LPFM filing window where a significant number of applications were filed using “hired help”, especially in light of the second-adjacent channel waiver thus prompting Chairman Pai to mirror REC’s description of today’s LPFM as a “mature service”. The ability to use contours to other secondary facilities with an equivalent interference remediation method only made sense and there’s no longer anything in statute that could prevent it.  The impression I got was that the FCC was sick and tired and dealing with everyone’s LCRA arguments and apparently that dilutes the argument of those that came through the proper channel, rulemaking.

The reason for this bad taste in the mouths of staff became evident this past Thursday in a case of a Petition to Deny that was filed against a new FM translator that was filed in Auction 100, the last cross-service (AM revitalization) translator window in 2018.   While a part of the Petition to Deny addressed iHeart Media’s (IHM) bankruptcy, the main argument was that the application did not include an anti-preclusion study because the proposed translator would take away one of two potential channels for new LPFM stations in the Modesto area.  At the heart of the argument was Section 5 of the LCRA.  Section 5 states that channels are available to LPFM and FM translators, such decisions are made based on the needs of the local community and that LPFM and FM translators remain equal in status and secondary to full-service FM stations.   The Petition to Deny was itself denied and the translator application as granted.  When I was talking to staff this week, I didn’t know this decision was coming.  The IHM attorney correctly pointed out the decision made in the big Prometheus, et al decision (FCC denying the large number of Informal Objections filed) that it is the FCC and not the individual applicants that need to assure that LCRA requirements are met.

There are a lot of misconceptions about Section 5 of the LCRA.  The biggest one, and we saw it played out in the Modesto case is this misnomer that the LCRA requires that there be an equal number of LPFMs as there are FM translators within a given market.  This is the way that some are reading the clause about “needs of the local community”.  It’s important to remember that not just only LPFM and potential LPFM listeners comprise the “local community”, but it is also those, especially minorities, those who follow faith and those in rural areas who depend on the programming from AM radio stations.  Those listeners are part of the community too.  I do feel that there are some who confuse Section 5 of the LCRA with Section 307(b) of the Communications Act which mandates the “fair, efficient and equitable distribution of radio service”.  (The FCC does not apply the same §307(b) interpretation to secondary services that they do to primary services.)

After the LCRA was signed by President Obama in 2011, the Commission went to work on the implementation of the Act.  It is important to remember that the LCRA came in the wake of the Great Translator Invasion of 2003, a window that well-intended, was bastardized by two organizations in Twin Falls, Idaho which in itself would file thousands of applications and in turn sell the unbuilt construction permits for millions.  In the mid and late 00s, there were many ideas put into place to deal with the large number of translators.  Some, including REC, wanted to see “sub-secondary” status for translators that were not carrying local programming and there were application caps eventually put in place that would only allow applicants to keep a specific number of applications going and dismissing the remaining ones.  I do feel that the “equal in status” language exists because of the calls for subsecondary status for “distant translators”.

In the proceedings that followed the LCRA, the Commission needed to draw a line in the sand that would define “community need”.  Community need could only be accomplished if there were some opportunities for new LPFM stations (knowing the last opportunity was 12 years before).  In order to do that, the FCC first defined the core of each of the top 150 markets by designating a 30 minute by 30 minute (in latitude and longitude) square area.  In the proceeding, the FCC set up a guideline for the number of potential LPFM stations in a particular market.  The “channel floor” would vary by market.  Markets with opportunities that meet or exceed the channel floor were considered “spectrum available” while those that could not meet the channel floor were considered “spectrum limited”.  In order to clear space, the FCC made all pending 2003 translator applications for original construction permits go through an anti-preclusion study.  There were different guidelines for spectrum limited vs. spectrum available markets.  This policy would pave the way for new LPFM applications in the 2013 window.  2,771 applications were filed in the 2013 LPFM window.   The anti-preclusion study was determined through the rulemaking process, the proper process for advancing new policy.

After the LPFM rules were determined, we saw the work on AM Revitalization beginning.  What would eventually come out was 4 different “windows”.  The first two windows were for existing FM translators to be moved up to 250 miles in order to be used on an AM station while the second two windows were auction windows for the establishment of new cross-service FM translators.  In each window set, the first window was for Class C and D AM stations and the second window was for all AM station classes.   In the 250 mile move window, grantees were required to keep the translator’s primary station as the AM station originally proposed for a period of four years.  In the second window set, the translators applied for are permanently “married” to those AM stations.  There is no four-year hold.  Those translators must specify the specific AM station as the primary for the life of that facility.    Because the translator window was limited to just the less than 5,000 AM stations out there (remember, we still had the 2003 window fresh in our minds), both REC and Prometheus (at that time, before they downsized) agreed that the controls on the number of applications to one per AM station and no outside filings is meeting community need, especially for Class C and D AM stations (which had a head-start in both window sets) which are in many ways, “community” stations, especially those in underserved rural areas. Therefore, neither entity filed a Petition for Reconsideration.  Remember, listeners of AM broadcast stations are also members of the “community” the LCRA was meant to protect.

I feel that the actions that have been taken outside of the rulemaking process through Informal Objections in an attempt to revitalize some use of an anti-preclusion study claiming that certain broadcast applications violated the LCRA (and thus seeking reconsideration of the original decision to not use anti-preclusion studies), including many modification applications that were filed for facilities that existed prior to the 2003 Great Translator Invasion window has diminished our ability to properly use the LCRA through proper channels. 

It is important to also realize that LCRA Section 5 only addresses new licenses, not existing stations.  In 2018, REC did conduct a study where we first defined “spectrum limited” and “spectrum available” markets using similar criteria to that used in 2012 and had determined that out of the thousands of applications filed in the Auction 99 (2017) and 100 (2018) windows, only about 79 would have failed a preclusion study in spectrum limited areas.   We also note that if were to use the misconception that there should be an even split between LPFMs and translators for another LPFM window in the future, areas like Miami, Seattle, Portland OR, Sacramento and Stockton would be in situations where there are more LPFM stations in the grid than translators thus meaning if something can be scrounged up, especially with the potential for channels in the reserved band, LPFM would be precluded because there’s already too many LPFM stations in the market.  Fortunately, no anti-preclusion rule was proposed in MB Docket 19-193, the latest technical NPRM. 

We’ve all been hung up on this anti-preclusion study for Section 5 enforcement.  I see the anti-preclusion study that was conducted prior to the LPFM window as a way of addressing the aftermath of 2003 window which started with 15,000 applications and resulting in many getting caught up in the application cap proceedings and thus hung up in limbo for years.  The 2013 LPFM window was the by-product of the anti-preclusion study requirement resulting in over 2,000 LPFM applications being filed and afterwards, the 2017 and 2018 translator windows had a controlled maximum outcome as participation was limited to only AM stations that did not make a “250-mile” move in the 2016 windows.  Any future LPFM window would pick up whatever spectrum remains and this is where we are at today. 

Despite the best efforts by others to use the LCRA to demonstrate that the FCC made some kind of mistake when they conducted the 2016, 2017 and 2018 translator windows, we still have the disparity between how an LPFM protects a translator vs. how a translator protects LPFM.  REC has proposed a method that can be done and is consistent with other aspects of the technical NPRM, would allow applicants who want to take the “easy road”, they can still use distance separation and for those who want to take the “mature service” route, the contour option is open along with an interference resolution process on the same level as translators. 

In the current round of discussions with FCC staff, REC is trying to open up opportunities for new LPFM stations and provide more relief for existing stations facing encroachment by offering channels that in some cases are being overprotected for translators ten-fold. The past encounters that the FCC has had with the LCRA has completely burned them out and they need a break.

When the comment period does open, I am asking everyone to please support REC’s efforts to enact this rule for LPFM relief and flexibility by filing comments in support of a contour option for protecting translators and other LPFM stations.  Don’t support it (or not support it) because it is an REC effort, support it because it is in the best interest of LPFM.

This is not intended to be an individual attack against anyone or any organization.  This is just an observation of my recent interactions in efforts to give LPFM the relief it needs.  It just means that we, as LPFM stakeholders must work extra hard to tell the Commissioners and the Media Bureau that this is an important issue that can be done in accordance with the letter of the LCRA.

Also, while the recent Petition for Reconsideration made by the LPFM Coalition in MB Docket 18-119 does use the LCRA in their argument, this petition was properly filed in a rulemaking proceeding and does make several legal arguments, both LCRA related and not and those arguments demand consideration.  REC has already filed comments in support of their petition.

This is a busy time right now from a regulatory perspective and hopefully, we will be soon rewarded with a third generation of LPFM stations.  We need to put the mistakes of the past behind us and start respecting the Commission processes in an effort to effectuate change. I can see it being done already.  Let’s keep this going!  Keep up the good work!

Oh yeah.. it was a great game.  Yanks won 11-5.  Myself, I still bleed Dodger blue, but I really don’t want to see another Dodger-Yankee World Series.

Good evening from a very hot and muggy Riverton!

Michelle Bradley's personal blog not necessarily the opinion of REC Networks.