REC Advisory Letter #10: Third advisory of future LPFM filing window, major change opportunity and filing freeze.

Third advisory (9/12/2022)

On September 12, 2022, REC Networks had announced that they will start accepting show of interest requests from organizations wishing to participate in the next LPFM filing window.  Even though the FCC has announced previously that following the NCE window there would likely be an LPFM filing window, the FCC has not announced any dates.  We continue to anticiapte a 2023 filing window for LPFM.  Those who are interested in having REC assist them in the next LPFM filing window should visit our Show of Interest website: https://lpfm.app.  More information, including terms and conditions of REC service offerings are available at that website. 

Second advisory (8/18/2022)

REC Networks has been fielding a considerable number of inquiries regarding the next filing window for new LPFM stations.  This updated Advisory Letter will address the current status of the next LPFM window.  As previously mentioned, the FCC did state in the past, the LPFM window is expected to follow when processing of the 2021 Noncommercial Educational (NCE) filing window has calmed down.  The FCC Audio Division staff is very limited and in addition to LPFM, they also work on all other radio broadcast services (AM, full-power FM, FM translators and FM boosters).  Since the close of the NCE window in November 2021, they have performed four Threshold Fair Distribution Analyses to resolve 63 groups (including sub-groups) of mutually exclusive (MX) applications.  They also made two decisions based on Tribal Priority. The FCC also settled 5 disputed MX groups determined in the Fair Distribution Process.  These decisions are handled entirely by the Media Bureau and do not require full Commission involvement.  

For MX groups where Fair Distribution Analysis is not used, the FCC uses the point system.  The comparison of the applications using the point system is considered a "hearing" under FCC rules so therefore, the Media Bureau must prepare all of the information and then it must be circulated to the four FCC Commissioners for an up-vote.  Point hearings are a little more complex as additional research is needed to verify that all documents are in order and that claims of population and land area are correct.  They are also more vulnerable to objections.  So far, the FCC has already conducted one point system hearing consisting of 27 MX groups.  After the 2007 NCE Filing Window, the point hearing decisions normally came out about one to two months apart from each other and the number of MX groups evalulated varied between 24 and 59.

Currently, there remains 5 MX Groups that may be eligible for Fair Distribution, one of which is Tribal Priority and 65 MX groups (including sub groups) that will require a point hearing.  Our general take on this is that it is very likely, especially given holidays and other Audio Division priorities, which competes for staff time, we will likely see two more point hearings this year.  Depending on how many groups they want to take on in these hearings, two hearings may be able to sweep up the remaining pending groups.  However, it may be possible that an additional hearing may be needed in early 2023.  

It is also important to note that at this time, we are still awaiting an outcome on MB Docket 03-185, also known as the "Franken-FM" proceeding.  A part of that proceeding deals with the protection that FM facilities (full-power, LPFM and FM translator stations) must provide to TV Channel 6 stations now that the entire country, including low power TV stations have transitioned to digital.  REC Networks and National Public Radio are both supporting an elimination of these protections on Channels 203~220 (88.5~91.9) but retaining them on Channels 201 and 202 (88.1 & 88.3) due to the adjacent channel relationship with the Channel 6 spectrum from 82~88 MHz.  If the FCC does provide this relief that we are asking for, this will open some additional opportunities for new LPFM stations in certain parts of the country where full-service and low-power TV channel 6 stations currently operate.  Over the next couple of months, REC plans to engage in ex parte communications with Media Bureau and Commissioner staff in regards to this and to express our concern about the timing of this rule change on the timing of the next LPFM window.  Because of the larger benefit that opening a new LPFM window will provide, we do not want to see 03-185 delay the LPFM window.

At this time, can definitely rule out an LPFM window in 2022.  In order to assure that as much work is completed on the NCE window, including resolving objections to tentative selectees in point hearing groups, we are still pushing for an LPFM window in the early second quarter of 2023, with a first notice hopefully coming out in the first quarter.  

Again, other unexpected activities, such as an FM allotment auction, may get in the way.  The FCC was going to hold Auction 106 for FM allotments and revoked AM construction permits on April 28, 2020, but that auction was postponed due to COVID and performed as Auction 109 on July 27, 2021.  The previous Audio Division service auctions were Auctions 99 and 100 for AM Revitalization FM translators in 2018 and 2019 respectively, and the last full-power FM auction, Auction 98, was held in 2015.  Since the last FM auction was held only a year ago, it is unlikely that another one would get in the way between now and an LFPM window, but we must always prepare for it.

In the fourth quarter of 2022, REC Networks will be undergoing IT work to support a future LPFM filing window through the redevelopment of availability checks and other supporting systems.  It is our hope that by December, 2022, we will have a "show of interest" system set up where users can check for potential yes/no availability and then make a show of interest to REC Networks to have us handle the application at the time that it is done.

REC does advise all prospective LPFM licensees to assure that your organization is already registered with the Secretary of State in any state as a nonprofit corporation and to insure that all annual reports and any annual fees that the state may require are paid up.  The FCC will not license an organization that is dissolved, lapsed or delinquent.  In most cases, the state will reinstate inactive corporations retroactive to when they went delinquent.  The FCC will not license LPFM stations to individuals, partnerships, for-profit LLCs or for-profit corporations.  For unincorporated associations that can clearly demonstrate that their association was active at the time of the window may apply, but it is a complex process that, in addition to REC services, also requires the intervention of an attorney licensed to practice in your state in order to testify to the specific unincorporated assocation laws in your state.

Once again, it is our hope that the LPFM window will take place in the second quarter of 2023, but it may happen sooner or later.  Following the LPFM window, REC will be pushing for a filing window for new FM Translators in the reserved band (88.1~91.9 MHz).  There has not been a window for these stations in over 20 years.  It is also likely the FCC may also hold a translator window for noncommercial and commercial applicants in the non-reserved band (92.1~107.9 MHz).  REC is currently developing a plan to assure integrity in the licensing system by preventing speculation by applicants in the trafficking of construction permits like what took place following the 2003 "Great Translator Invasion" filing window. 

Once more information is available on the next LPFM window, we will issue a third revision to Advisory Letter #10.  We advise all parties interested in participating in the  next LPFM window to stay tuned to REC Networks at recnet.com as well as on our Facebook page https://facebook.com/recnet.  

First advisory (5/29/2021)

In this Advisory Letter, we provide notice that the Federal Communications Commission is definitely planning to schedule a filing window for new LPFM construction permits and major changes to current facilities.  This comes as a result of statements made in an Order on Reconsideration, which as of May 27, 2021 was on a circulation draft and therefore will be voted on by the full Commission on or just before their next scheduled open meeting on June 17, 2021.  We note that this document deals with two reconsideration petitions filed in MB Docket 19-193, but as the Commission had noted in the document and Acting Chairperson Janet Rosenworcel had mentioned elsewhere, the resolution of these two Petitions for Reconsideration will pave the way to the next LPFM window.

The next LPFM window will take place sometime after the FCC holds the full-service noncommercial educational FM filing window, scheduled for November, 2021.  More information about that window can be found in REC Advisory Letter #2.  We currently do not have a date for that filing window.  We will announce that in a subsequent Advisory Letter.

Upcoming filing freeze affecting secondary facilities

Prior to the opening of the LPFM filing window, the FCC may declare a spectrum freeze to assure that the spectrum remains static so new and major modified stations could be planned.  Normally, this will mean that during the freeze that no applications to modify existing LPFM stations nor FM translators will be accepted.  Applications such as license to cover a previously granted construction permit as well as administrative applications involving no modification of the physical facility will also be accepted.  Existing LPFM stations should plan their modifications prior to this freeze (which is normally 30 or more days prior to the open of the window).  The freeze will be lifted the day after the filing window closes.  Primary (full-power) FM stations would not normally be subject to a freeze for LPFM activity and will be allowed to file during the freeze and the window, however, stations that do so will not be protected from LPFM applications filed during the window.

What can be filed prior to and during a filing freeze and during the window

FCC rules currently define a minor change as a move that is less than 11.2 kilometers or upon a contour study a move beyond 11.2 km when a contour study shows that the 60 dBu service contour of the current LPFM facility overlaps the 60 dBu contour of the proposed facility.  A minor change is also defined as a change in channel where the proposed channel is 1, 2, 3, 53 or 54 channels separated (+/- 0.2, 0.4, 0.6, 10.6 or 10.8 MHz). A minor change can be done to any channel if a contour study can demonstrate that the arriving interfering contours on the proposed channel are weaker than those on the current channel (thus a reduction in interference).  Any modified facility must continue to meet the distance separation requirements outlined in §73.807 of the rules and any station proposed for 88.1~91.9 must also meet §73.825 requirements to Channel 6 low power and full power TV stations.

During the filing window, an LPFM station may file for a move of over 11.2 km (where there is no overlap), even if that move is hundreds of miles away.  During the filing window, an LPFM station may request a “non-adjacent” (not 1, 2, 3, 53 or 54) channel without the need for a technical showing of reduced interference.  Again, all §73.807 and §73.825 distance separation requirements must be met.  No minor changes may be filed however license applications to cover granted construction permits and administrative applications not involving the modification of the physical facility may be filed.

Major change applications are subject to competing applications and the point system.

If an LPFM station is modified as a major change during the filing window and there are conflicting applications (such as new construction permits) filed where the multiple applications can’t be simultaneously granted, the facility (either a major change to an existing LPFM or an original construction permit application by a new applicant) will be considered mutually exclusive and will follow the FCC’s selection process outlined in §73.872 of the rules which includes the use of the point system.  If a major change application ends up not being the tentative selectee, then the existing LPFM license will remain in force. If granted, the existing LPFM station will remain authorized to broadcast until program testing begins on the new station.  LPFM stations are unable to simultaneously both the current station and the recently authorized changed facility.

Existing LPFM stations making major moves in the LPFM filing window must continue to meet the localism requirements, which for educational LPFMs would be either the headquarters or a campus within 20 miles of the transmitting antenna (10 miles in markets 1~50 or at least 75% of the organization’s board members reside within 20 miles of the transmitting antenna (10 miles in markets 1~50).

The LPFM point system

LPFM applications, including major change applications filed during the filing window will be subject to the Commission's point system for mutually exclusive applications.  Points are given based on the following:

• Local presence (1 point) – applicant has been established for at least two years prior to filing and either the organization or 75% of the board members are located within 20 miles of the proposed antenna site (10 miles for major media markets 1 through 50).
• Main studio pledge (1 point) – applicant pledges that if the permit is won on points, they will maintain a publicly accessible main studio that is open at least 20 hours per week.
• Local programming pledge (1 point) – applicant pledges that if the permit is won on points, they will carry at least 8 hours per day of programming that originated from within 20 miles of the transmitting antenna (10 miles for major media markets 1 through 50).
• Bonus point (1 point) – A bonus point is given for applicants who can make both the main studio and local programming pledges.
• Diversity in ownership (1 point) – a point can be claimed if the LPFM station is the applicant’s only media holding.  A major change LPFM applicant will be able to claim this point because even though the applicant already has a media holding already (the LPFM station), that station will be moved and they will not be able to operate both facilities simultaneously.
• Tribal priority (1 point) – a point can be claimed if the applicant is a tribal enterprise and that the proposed station is located on tribal land.

Major change applicants will be permitted to aggregate points with new entrant applicants to allow for voluntary time sharing and if a major change applicant prevails in a FCC review of the points (such as when no agreement can be made), the LPFM would be subject to the main studio and local programming pledges (if they claimed those points) and may be prohibited from assigning their license to another organization for a period of 4 years following the grant of the license covering the construction permit.  Major change applicants may be subject to involuntary time sharing, where if a voluntary agreement is not reached in the future, could result in a non-renewable license.

REC's services, system support and handling of the LPFM filing window

In June, 2021, REC will start our system changes to support the LPFM window.  For now, prospective new applicants can use REC’s PREMIS system in order to check basic LPFM availability information at their proposed station location.  Channel numbers will not be provided. 

By the end of 2022, REC will announce our service offering to support major changes and original construction permits including the publication of a transparent rate table.

REC currently has no dates or even any estimate from FCC staff regarding the timing of this window, but we do not feel this window will take place until at least early 2023.

Any announcements regarding this window will be first posted on the REC Networks Facebook page.  Please make sure to like that page in order to receive up to the minute updates before they are posted on the website.

As of May 29, 2021, REC is not ready to accept shows of interest either from existing LPFM stations seeking a major change nor from prospective new entrants.  We will continue to post information, update our frequently asked questions list and service information as well as develop systems to support the window.  As of August 18, 2022, we still are not accepting show of interests yet as we do not anticipate a window this year.  We plan to open up show of interest in the 4th quarter of 2022.

Additional information for new entrants

REC reminds new entrants who wish to file in the LPFM filing window, that prior to filing, their organization must be registered with a state Corporation Commission or similar government entity as a non-profit corporation.  The FCC will not license LPFM stations to individuals, partnerships, for-profit private corporations, for-profit stock corporations, LLCs or any other for-profit entity type.  The organization must be an existing educational organization with an educational purpose and construction permits will only be granted to organizations that can make a satisfactory showing that the proposed radio station will advance the organization’s educational program.  The organization is not required to be a §501(c) non-profit charity. 

For new entrants, please note that this REC Advisory Letter series mainly addresses updated information of interest to existing LPFM stations and does not normally address issues directly affecting new entrant applicants.  Information for new LPFM applicants can be found on the REC website at this URL:
https://recnet.com/lpfm

Document History

• First advisory: May 29, 2021
• Second advisory: August 18, 2022
• Third advisory: September 12, 2022.