The comment period is over.. now what?
Now that the comment and reply comment period are over, the FCC has a lot of work cut out for them.
Over these next few months, the FCC is going to continue reviewing the comments received throughout April and the reply comments received in May. While there is no set timeline on when the FCC must issue the Sixth Report and Order with the final rules from the various LPFM proposals discussed in the Fifth Notice of Proposed Rulemaking (that we just finished commenting on), the FCC's Audio Division consider getting these final rules out "a major priority".
The FCC is also getting ready to accept oppositions to four Petitions for Reconsideration filed against the FCC's market cap decisions for FM translators. In the Fourth Report and Order, the FCC established a policy that called for caps in the current pool of pending translator applications filed in 2003. Specifically, the FCC called for a cap of 50 pending applications nationwide and a cap of one application within the boundaries of Arbitron metro markets 1 through 150 as well as other markets where there are still 4 or more applications pending. REC supports the retention of the 50-cap however we support limited waivers to the one-to-a-market rule as it will otherwise deny rural areas which happen to be in Arbitron counties the diversity of local and regional voices.
Once the reconsiderations are decided upon, the Commission will work on cap compliance. Currently, there are 14 applicants that do not comply with the nationwide 50-cap. This number would decrease if the one-to-a-market policy is not changed and then applied to these applicants. Once the FCC finishes up the cap compliance process, we will see a significant drop in the number of pending translators. This drop may open up some new LPFM opportunities. Keep in mind that while REC has been presuming which translators may get dismissed as a result of the non-preclusion policies set forth in the Fourth Report and Order, we have no way to predict which translator applications will be retained by applicants after cap compliance is completed and REC will continue to protect these translators until a decision is made. The FCC's tentative timetable calls for cap compliance to be worked on this summer.
In the fall after translator applicants determine which translator applications they want to keep, the FCC will move on to singleton applications in non-spectrum limited markets.
Once the Audio Division gets approval from the Office of Management and Budget (OMB), the Audio Division will start accepting non-preclusion studies for FM translator applications in and near spectrum limited markets. In this window, all FM translator applicants with sites that are within 39km from the boundary of a 30x30 (or 20x20 in some markets) grid as well as applicants from anywhere within the top-50 markets must submit this non-preclusion statement. In the non-preclusion statement, translator operators must show that their translator application would protect the declared LPFM protected channel/points within the grid on co-channel and first-adjacent channels. This would be done by applying the 73.807 minimum spacing for LPFM to translators at a protected channel point and measuring to the translator. If the distance between the channel/point and the translator is less than the 73.807 minimum spacings for that translator's service contour size, then the translator application precludes LPFM opportunities and will not be allowed. For translators in top-50 markets, even if they are not in or near the grid, they must also make a showing that at their translator site that either if there translator was not there that there would still be no LPFM opportunities or if their translator was there, there would be still be LPFM opportunities available at this site. REC estimates that 1,094 translator applications in their current form are precluding protected LPFM channel/points and that only 4 applications would fall under the Top-50 preclusion rule. We also need to note that these numbers may be reduced as a result of cap compliance.
This winter, the FCC will start the settlement process for mutually exclusive (MX) applications within the non-spectrum limited markets. During this time, translator applicants in these non-spectrum limited markets with competing applications and work out settlement agreements. If settlements can not be worked out and there is a mix of commercial and non-commercial applicants in the group, the non-commercial applicants will be dismissed per auction procedures. Also, after the dust settles on the non-preclusion studies, the FCC will determine the singleton applications that remain in the spectrum limited markets and start granting those applications.
After the holidays, the FCC will work on the MX applications within the spectrum limited markets and then any remaining singeton applicants in the spring.
Finally, in the spring or summer of 2013, the FCC will conduct Auction 83 for MX application groups consisting of commercial applications for non-commercial MX groups, a comparative review of applications (points and coverage areas) and make tentative selections.
In the days following the recent FCC public forum where this timetable was announced, there was a lot of discussion about the tentative filing window date for LPFM. During the Q&A session of the forum, the Audio Bureau announced that the filing window for LPFM will likely take place in the spring or summer of 2013 with the spring being "very optimistic". There were also concerns because an ally organization asked for some time between the final rules and the filing window. REC feels that a reasonable amount of time between the final rules and the filing window are needed. This is not just for the sake of potential applicants who advocacy groups are representing but it is also for the sake of those who provide software and services to the industry, such as REC. We are optimistic that final rules will be released in the fall of this year and we may likely see a Petition for Reconsideration around the second adjacent waiver process depending on how the FCC approaches it. Even if we have pending reconsideration on a portion of the R&O, we can proceed on the rest of the R&O and start mobilizing organizations to look into getting organizational approvals and preparing applications (as advocates, we should be encouraging this prior to the final rules, especially if the applicant already qualifies under the items not likely to meet controversy, an LP-100 not needing a second adjacent waiver even if short spaced on IF channels).
When you look at the schedule that the Audio Division has ahead of them, you can understand why they are projecting a spring or summer 2013 filing window for LPFM and based on what exactly is going to be done during this tight schedule, you could see why having the filing window sometime in 2012 (especially before the election) would completely short change LPFM of opportunities, especially in the urban areas and would go completely against the spirit of the LCRA which calls for a fair distribution of LPFM and translators based on community need.
The FCC's Audio Division is a tiny group with a huge job. Please be patient with them as they are doing the best they can. For now, let's prepare ourselves for the big days next year and there's a lot we can do, even right now.
It's time to move forward.
Michi Eyre
Founder, REC Networks
