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FCC Clarifies Rules for LPFM

May 2012

On March 19, 2012, the Federal Communications Commission (FCC) released a Fourth Report and Order and Third Order on Reconsideration (4th R&O), which attempts to resolve issues related to processing the thousands of remaining FM translator applications pending since the 2003 window with an eye toward preserving licensing opportunities for low power FM (LPFM) stations.  On the same day, the Commission also released a Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on Reconsideration (5th R&O), which eliminates the third-adjacent channel spacing restrictions between LPFM and full-power stations and modifies the interference protection standards that apply to LPFM stations.

In the 4th R&O, the FCC found that the Local Community Radio Act of 2010 (LCRA) requires the agency to ensure that some minimum number of FM translator and LPFM licenses are available throughout the nation when licensing new FM translator and LPFM stations and to take into account existing and future licenses in both services.  The Commission also concluded that the LCRA requires that translator and LPFM licenses be available in as many local communities as possible, and that the primary focus of the agency must be to ensure that translator licensing procedures do not foreclose or unduly limit future LPFM licensing. 

Consistent with the goal of identifying and preserving LPFM licensing opportunities where few or no LPFM stations currently operate, the FCC adopted a market-specific translator application dismissal process based on a spectrum availability analysis that identifies markets as either “spectrum available” or “spectrum limited.”  The agency adopted the channel floors it had proposed in its Third Further Notice of Proposed Rulemaking, which range from eight potential LPFM channels in the top 20 markets to five potential LPFM channels below the top 100 markets.

Citing a concern over speculative licensing conduct by the remaining FM translator applicants, the FCC adopted a national cap of 50 applications and a market-based cap of one application per applicant per market for the 156 markets identified in the 4th R&O.  Applicants will need to identify applications for continued processing consistent with these limits.  Any remaining applications in “spectrum available” markets will be processed.  Contrary to the FCC's original proposal, all translator applications will not be automatically dismissed in “spectrum limited” markets.  However, applicants in these markets will have to demonstrate that they would not preclude any LPFM channel/point combinations.  Further, any translator applicant proposing facilities outside the 31x31 grid in one of the Top 50 “spectrum-limited” markets will also have to make a showing either that: (i) no LPFM station could be licensed at the proposed transmitter site or; (ii) if an LPFM station could be licensed at the site, an additional channel remains available for a future LPFM station at the same site.  Further, the Commission in the 4th R&O modified its rules to permit pending FM translator applications that are granted to be used to rebroadcast the signals of AM stations.

In the 5th R&O, the FCC eliminated its third-adjacent channel spacing requirements, maintained the spacing requirements currently in place to protect radio reading services in accordance with the LCRA and set forth other LPFM interference protection and remediation requirements.  The LCRA also grants the FCC authority to waive the second-adjacent channel spacing requirements and, among other questions, the Commission requests comment on the factors it should take into account and the showings it should require when considering requests for waiver of these requirements.  The FCC also proposes changes to its rules to promote the LPFM service's localism and diversity goals, to reduce the potential for licensing abuses and to clarify certain rules.  It seeks comment on issues related to classes of service, removal of intermediate frequency channel minimum distance separation requirements, eligibility and ownership, selection among mutually exclusive applicants and mandatory time sharing.