19-193: FCC releases Report and Order for LPFM; "Simple 250" rejected, but with the door cracked open
On Wednesday, April 22, 2020 prior to the FCC open meeting, the Commission has voted to adopt the Report and Order in MB Docket 19-193 with some modifications asked for by REC, ABC and NAB in ex parte presentations.
At a glance
- Stations within 125 km of Mexico will be permitted to request operation using a directional antenna that will permit full available power in all directions except those that are within 125 km of the border.
- LPFM stations can specify a directional antenna for any reason with a requirement of a proof of performance and verification of the installation by a surveyor once constructed.
- Proof of performance and installation verification not required if the directional antenna is used solely for one of the following reasons: (1) public safety agency, (2) second adjacent channel waiver or (3) international agreement (such as the 125km Mexico strip zone).
- LPFM stations can be moved up to 11.2 km as a minor move. Moves further than 11.2 km can be done with a contour study showing overlap of current and proposed service contours,
- Boosters are available without a waiver request. Boosters will be counted like translators (up to 2 translators or boosters per LPFM station).
- LPFM proposals on 88.1~91.9 that are short-spaced to channel 6 stations can request a waiver based on a contour study similar to translators (notificaiton to the channel 6 station required) or they can obtain a letter of concurrence from the impacted channel 6 station.
- Time share LPFM stations with a common transmitter site can share a single EAS decoder. Both stations will be equally responsible for violations.
- LPFM stations going silent must file a silent notification after 10 days and request an STA if silent for more than 30 days. (Many stations do this but it was never in the rules.)
- LPFM transmitters must be FCC certified with an FCC ID# label. FCC rejects calls to allow "type accepted" or "type verified" equipment in the LPFM service.
- FCC rejects "translator relief" (using contours instead of distance separation to use a channel and protect a short-spaced translator.)
- FCC rejects REC's last LP-250 proposal ("Simple 250") but leaves an opportunity to propose separately.
- FCC rejects request originally made by LPFM.AG (then adopted by REC) to allow LPFM stations to drop the "-LP" from their call signs where there is no conflicting call in another service.
Directional antennas was a major item of contention throughout this entire proceeding. REC originally asked for flexibility for LPFM stations to use DAs in connection with proposals at the time that would permit contour protection to be used for power increases (LP-250) and for protection of FM translators. In the draft R&O that was released three weeks ago, the Commission rejected the REC LP-250 revised proposal (LP-100 distance separation with the interfering contour backstop) and what REC called "translator relief" (using contours instead of distance separation to protect short-spaced FM translators while still using distance separation to full service facilities). REC also asked for directional antennas in order to be used in respect to international agreements, including in the "strip zone" within 125 kilometers of the Mexican border where currently, LPFM stations are limited to 50 watts ERP non-directional.
Because of the proposed increased use of directional antennas, the FCC proposed to require granted LPFM facilities with directional antennas, at the time of licensing the completed construction, to provide a proof of performance from the antenna manufacturer attesting to the type of pattern that the antenna would put out and also a certification from a surveyor that the antenna was properly installed. The wording of the draft R&O called for such proofs even in cases of second adjacent channel and international compliance.
In an aggressive round of ex parte presentations that lasted until about a week before the adoption of the R&O, REC opposed the requirement of the proofs and verification and stated that with the Commission taking LP-250 and translator relief off the table, the need for DAs were limited to specific purposes like public safety stations, second adjacent channel waivers, international agreements and waiver requests for stations in the reserved band (88.1~91.9) to use contours to protect TV channel 6 low-power and full-service stations. REC argued that there was no other reason to use DAs and asked for DAs to be limited to those four purposes without the need for proofs or verification.
In the Commission's decision, they accepted the arguments that were made by REC that for international agreements, there is a remediation policy for interference through international channels. Remediation for second-adjacent channel waivers is already addressed in the rules and codified in the Local Community Radio Act (LCRA). With that, the FCC will not require proof of performance nor surveyor verification when a DA is used for public safety agencies, second-adjacent channel waivers (both status quo) and now also for international agreements including the Mexico strip zone. The FCC will permit LPFM stations to operate directional antennas if they so desire however if a directional antenna is not being used for one of the three purposes mentioned, a proof of performance and a surveyor's verification will be required. This includes LPFM stations seeking waivers to protect channel 6 TV stations. The FCC will permit the use of either “off the shelf” or “composite” directional antennas.
For directional antennas, REC dodged a huge NAB-inspired bullet that would have threatened our ability to resolve second adjacent with DAs. REC does note that using DAs in broadcasting is much different than using DAs in other applications such as amateur radio. Since FM broadcasting assigns power based on effective radiated power that leaves the antenna and not transmitter power output, the use of DA will hold no major performance advantage. If a gain antenna is used in broadcasting, then the transmitter power output would be adjusted to produce the authorized ERP at the antenna based on antenna gain, feedline and other insertion loss.
Mexico strip zone
Currently, LPFM stations within 125 km of the border are limited to 50 watts ERP, non-directional. In 2017, REC filed a test application on a Tucson area LPFM station to request 100 watts in all directions other than Mexico and use the directional characteristics of their existing Nicom BKG-77 antenna to demonstrate that in directions that are within 125 km of Mexico, the antenna will radiate less than 50 watts. The FCC dismissed the application. As a result, in the Media Modernization processing, REC asked for LPFM stations to be allowed to operate more than 50 watts in the strip zone if a directional antenna can be used to limit radiation in directions that are less than 125 km to Mexico to just 50 watts.
The FCC has agreed to add language to permit LPFM stations in San DIego, Tucson, El Paso, Browsville and other communities within 125 km of Mexico to operate at their fullest power while continuing to radiate less than 50 watts in the direction of Mexico.
Currently, LPFM stations may be moved up to 5.6 kilometers as a minor move. In the past, the FCC has entertained moves of more than 5.6 kilometers with a compelling argument for a waiver. The FCC has historically rejected moves of longer distances where overlap of 60 dBu contours of the current and proposed facility could be demonstrated.
With the rule revision, LPFM stations would be allowed to move up to 11.2 kilometers as a minor move. A move of more than 11.2 kilometers may be considered a minor if the application is accompanied by a contour study that shows that there is overlap of the 60 dBu contours of the current and proposed site. This change will eliminate the need for LPFM stations to ask for waivers. REC originally only asked for moves over 5.6 km to be allowed with a contour study, but the FCC went one step further by not requiring contour studies of moves between 5.6~11.2 kilometers.
FM booster stations are used by broadcast stations to “fill in” areas of limited coverage that are inside the station’s protected service contour. A booster can’t be used to extend coverage past the service contour of the primary station. Prior to 2012, LPFM stations were not permitted to own any other broadcast facility. In 2012, the FCC permitted LPFM stations to be able to own up to 2 FM translators (4 for tribal entities). In 2015, REC filed an application with the FCC requesting a waiver of the rules to allow an LPFM station to construct a booster to fill in a major gap in coverage. In 2017, the FCC approved the application for the first LPFM booster to KWSV-LP, Simi Valley, CA. In our argument at the time, we stated that FM boosters were no different than translators other than they were on the same frequency. Since the KWSV grant, the Commission has granted REC requested LPFM boosters for stations in Laguna Beach, Yucaipa and two for Malibu, California.
With the rule revision, the FCC will codify the ability for LPFM stations to own booster stations counting the boosters towards their limit of 2 translator stations. Boosters in the LPFM service are limited to 20 watts ERP (20% of 100 watts) and must propose a service contour that is fully inside the service contour of the host LPFM station. Unlike translators, the booster can use alternate delivery methods such as internet, fiber or microwave to feed programming. We note that there will be very limited applications of boosters for LPFM stations. The stations that have been granted boosters have unusual service contours and/or terrain that warrant their use. We note that in some cases, the booster must be engineered in a way that would involve some very complex engineering and expensive synchronization equipment. LPFM stations seeking to operate a booster should contact REC or a consulting engineer with experience in boosters.
Channel 6 protection
Currently, full-service FM stations in the reserved band (88.1~91.9) are required to afford protection to 10 full-service channel 6 TV stations across the country. Secondary services, such as LPFM, Class D and FM translators must also protect about 100 low-power TV (LPTV) stations. Currently, full-service FM and FM translators use methods that involve a contour study to demonstrate a lack of interference. LPFM stations use a “flat rate” distance separation chart regardless of the power of the full-service or LPTV station. REC originally argued that LPFM stations were “overprotecting” many LPTV stations that were only running a fraction of the power that the distance separation rules were based on. REC recommended that the Commission allow LPFM stations to use a contour model, similar to FM translators to demonstrate a lack of protection.
The FCC originally proposed to eliminate all channel 6 protection requirements by reserved band FM stations of all types. This was met with late, but strong opposition by ABC, licensee of WPVI, Channel 6 in Philadelphia. Other TV stations and eventually the NAB supported keeping some kind of restriction. Instead, the FCC decided that it would defer the channel 6 discussion until after July 13, 2021, the date that analog LPTV stations must convert to digital or shut down. The FCC also cites a different proceeding, MB Docket 03-185, which REC is involved with, that deals with LPTV stations on channel 6 that are operating audio services similar to FM radio. These are also referred to by some as “franken FM” stations.
For LPFM, the FCC did permit LPFM stations proposing operation in the reserved band but short-spaced under the very overprotective §73.825 rules to either (1) make a contour study to demonstrate a lack of interference using the same formula that FM translators use or (2) seek concurrence from the affected channel 6 TV station. If such a study is made, the FCC will waive §73.825 of the rules. ABC asked for, and REC eventually supported, a simple request that any LPFM station seeking to operate in the reserved band and seeking a waiver of §73.825 to send a notification to the TV station licensee at the time of the request. While REC originally supported limiting the notification to the Broadcast Applications public notice, after reconsideration, we agreed that a simple notification would not do any harm, especially given the very limited opportunities for LPFM in the reserved band. If the proposed waiver involves a directional antenna, a proof of performance and surveyor verification will be required at the time of licensing the built facility.
Radio reading services
LPFM stations are required to protect full-service FM stations that are carrying radio reading services for persons with disabilities including on third-adjacent channels. This is statutorily required by Section 4 of the LCRA. The FCC has maintained a list that has been in use since 2000 with all of the stations known to carry reading services. In the past, the FCC has dismissed LPFM applications based on that list. REC noted in previous proceedings that the list the FCC was depending on was getting very old and should be revised.
The FCC has stated that they will not use any list of radio reading services in the processing of LPFM applications. Instead, impacted stations carrying radio reading services could file an objection or petition to deny against the grant of a particular application where the full-service station can demonstrate that the LPFM station is second or third adjacent channel short spaced to a station carrying a reading service.
Emergency Alert System
The FCC started a wide open dialogue in this proceeding in respect to EAS compliance. Many parties, including REC expressed concerns ranging from equipment certification requirements, the high cost of equipment and software upgrades and the requirement that each station must have their own EAS, including those in a time share where there is a shared audio chain.
The FCC will permit LPFM stations that are time shared at a co-located facility to use a single EAS for both stations. Both stations equally share responsibility and liability for compliance.
Notification of silent periods
When the FCC created LPFM in 2000, they tried to keep it simple. As part of the simplification, they decided to use distance separation instead of contours, originally only allowed nondirectional antennas, made a simplified environmental safety worksheet and did not require stations to file ownership reports nor maintain a public file. The FCC would even make it easier by not including statutory provisions that require public notices (that is next month’s agenda item) and the requirement for LPFM stations to advise the FCC if they not transmit signals for at least 10 days. REC is aware of some LPFM stations that have been silent for several years without reporting to the FCC (as if they did, the licenses would be cancelled if the station did not resume broadcasting within 365 days).
At REC’s request, the FCC has modified §73.850 (operating schedule) to include language that requires an LPFM station that plans to stay off the air for at least 10 days to file a silent notification and if off the air for at least 30 days, a special temporary authority. Upon resumption of operations, the LPFM station will need to file a form to advise the station is back on the air. REC sees this as a way of correcting a 20-year oversight.
Certified LPFM transmitters
Some had requested that the FCC permit the use of transmitters that were not lab certified with an FCC ID label on them but claim to be “type accepted” or “type verified”. This change would have permitted the use of “hand me down” equipment from broadcast stations. Such equipment that may not be “set and forget” like the modern certified transmitters. As REC noted, dropping the certification requirement would permit foreign-made uncertified equipment geared towards consumers to be used in the LPFM service. Because the FCC and the Federal Trade Commission are not properly enforcing rules related to the marketing of uncertified equipment on major marketplace websites like Amazon and eBay, REC opposed the elimination of the certification requirement for FM transmitters.
The FCC agreed with REC and sustained the certification requirement for LPFM transmitters.
The FCC rejected a proposal originally requested by LPFM Advocacy Group and adopted by REC in RM-11810 to allow LPFM stations with call signs that are not shared in other services to be permitted to drop the “-LP” suffix in their legal ID. The FCC cited that the “-LP” is needed for “official Commission purposes”.
With the FM translator filing activity over the past few years as a result of AM Revitalization, LPFM stations have been seeing many cases of encroaching FM translator stations. Since there is a disparity in spacing rules between LPFMs and translators (LPFM uses distance separation while translators use contours), it has caused many LPFM stations to be “boxed in”. In the past, REC made the argument that the relationship between LPFM stations and FM translators was not within the purview of the LCRA thus meaning that there was no statutory requirement that LPFM stations must use distance separation to protect translators but could use contours instead. Others claimed that under Section 5 of the LCRA, LPFMs and translators were “equal in status” and should have “equal” protections.
Citing the so-called complexity of using contours, the FCC rejected the concept of translator relief. LPFM stations must use distance separation to protect translators.
REC is evaluating this situation and will determine the next course of action to take. We also invite the LPFM Coalition and other advocates, if they wish to advance this issue in reconsideration, REC will support it.
Fourth NPRM - LP-250 was originally proposed by the FCC in 2012. In comments, The Amherst Alliance and the Catholic Radio Association both supported a 250-watt LPFM service but specifically requested that such a service be “red lined” to census designated areas that have been obsolete for decades. REC, Prometheus Radio Project and Common Frequency jointly supported the ability to add LP-250 “wherever it can fit”. The FCC rejected LP-250 in 2013 because they claimed that LPFM organizations could not agree, thus suggesting that Amherst is an LPFM organization. In future proceedings, REC would eventually argue that despite Amherst founders Nick Leggett and Don Schellhardt being the authors of RM-9208, one of the two rulemaking proceedings that created LPFM, Amherst was not deeply involved in the licensed LPFM service and should not be regarded as authoritative voices in the LPFM service like REC, Prometheus and Common Frequency were. Instead, Amherst was trying to promote 10-watt “pirate” style microradio broadcasting. In 2013, in a decision that was a rare instance when REC and the New Jersey Broadcasters Association actually agreed, the FCC eliminated the 10-watt LPFM service having never assigning a station.
RM-11749 - LP-250 would come back to discussion eventually in RM-11749 where REC proposed something similar to what the FCC proposed in 2012 but due to the various cases on the west coast where LPFM stations were being placed in the foothills of mountain ranges thus giving the stations wide coverage with higher powers and based on a very high profile case in Southern California, REC developed the concept of “foothill effect” and proposed that an outer interfering contour be put in place for LPFM stations with wider lobes. In those situations, the LPFM station’s interfering contour can’t overlap the protected contour of the protected station. REC proposed the use of directional antennas and variable power levels to allow for protection. Due to statue, protections to full-service stations must meet at the minimum, the LP-100 minimum distance separations. This is exactly what the FCC proposed in 2012. Doing LP-250 with LP-100 numbers would mean that a 20-kilometer buffer zone that the FCC put in for each full-service station in design of the minimum distance separations, would be penetrated.
RM-11810 – Responding to the actions by Prometheus Radio Project filing informal objections on hundreds of pending FM translator applications, REC felt it would be a better approach to handle those issues through rulemaking. RM-11810 was built under the theme that LPFM has become mature and that more applications are handled by hired hands at reasonable rates. In addition to the translator relief proposal the FCC rejected above, REC also proposed a major twist to LP-250. Going on the 2012 Commission’s lead that the 20 kilometer buffer zone can be penetrated and going on language that stated that minimum distance separations can’t be reduced to less than those in effect on the date of the enactment of the LCRA (January, 2011). At that time, the numbers for LP-10 protection were still on the books. REC proposed what would eventually be called the “§73.815 Regime”. For protections to full-service stations, LPFM stations would have to maintain a statutory minimum distance separation, based on the LP-10 distance separation tables but then can use contours to protect all the way up to 250 watts ERP. This type of “hybrid” protection is remotely similar to §73.215 which applies to full-service FM stations. Protections to FM translators would be done purely on contours. To address interference issues, REC proposed to the use of the same interference remediation that applies to translators for LPFM stations electing to use protections under the §73.815 regime as opposed to the status-quo rules in §73.807.
NPRM – In the 19-193 Notice of Proposed Rulemaking, the FCC rejected the “§73.815 Regime” concept stating that it was too complex and would contravene the LCRA. In response, REC continued to defend the use of contours and the fact that LPFM was mature and that the ability to do contours is very much in reach to LPFM applicants. In response to the LCRA concerns (based on past comments by NAB), REC changed the minimum distance separation to LP-100 distances but kept the interfering contour protection requirement in as a “backstop”. REC also proposed translator style interference remediation for a LP-250 station.
Draft R&O – In the draft of the Report and Order for 19-193, the FCC continued to reject LP-250 stating that LPFM stations would be better off getting FM translators. The FCC, for the first time, also brought up that the past proposals that would penetrate the 20-kilometer buffer zone was a point of contention. This sent the message that they read Section 3(a) of the LCRA to not only mean the numeric distances but also the formula used to reach those distances (i.e. preserving the full 20-kilometer buffer zone). In response, REC engaged the Commission staff in ex parte presentations to propose a “Simple 250” plan which called for a second class of service that was completely identical to LP-100, except that the minimum distance separations in all cases were increased to compensate for an LP-250 station’s larger interfering contour. “Simple 250” does not require any contour studies, just longer distances for bigger power. REC performed new studies that showed that while LP-250 done in this manner would cause some stations originally told they could upgrade that they would be no longer to upgrade, a very large majority of LPFM stations, especially in rural areas and metro markets 75 and down would be able to take the longer distances and upgrade to the simple LP-250 plan.
R&O – The FCC recognizes the “Simple 250” proposal but has rejected it at this time because it was offered way too late in the proceeding. This does not mean that LP-250 is dead. Not by a longshot. REC’s original intention was to make any LP-250 proposal come forward as a Further Notice of Proposed Rulemaking thus affording supporters and opponents of LP-250 a “full set of downs” in the form of a comment and reply comment period. We never expected LP-250 to be given a final decision in this round of the proceeding. Instead, we wanted it to be a proposed rulemaking item, just like it was in 2012.
So, what are our next options? We can take this one of two ways, either through a Petition for Reconsideration or by filing a new petition for rulemaking, having it go through the 30-day comment period if an RM number is assigned and then if the Commission wishes to bring it forward to a Notice of Proposed Rulemaking, it will be afforded full consideration. The FCC specifically stated that their decision not to act on REC’s latest proposal does not preclude REC or any other party from filing a separate petition for rulemaking seeking consideration of such issues in a future proceeding. While some critics may see that as false hope, I continue to feel there is a light at the end of the tunnel and the FCC, in true Tom Bodett form is sort-of offering to leave the light on for us.
REC, our allies and the LPFM community need to regroup on next strategies. The bottom line is the FCC wants simple. No “silly” or outlandish requests. The FCC seems to have a slightly better appetite for “Simple 250”. We also have an election coming up so we do not know what kind of Commission we will have one year from now. For now, we need to take a breather and regroup. We will leave the functionality of check.lp250.com up and running so LPFM stations that could be upgraded on the “Simple 250” method will know who they are. We will soon be back to collect new stories and testimonials from stations to show the FCC and our detractors how LPFM stations are facing various performance issues and that LP-250 may be the more spectrum efficient solution to meet their needs.
Again, this is not the end. Its just the next chapter. Stay strong.