Petitions for Reconsideration Filed Regarding New FCC Rules for FM Translators





The FCC released new rules for FM translator interference remediation within a report and order on May 9, 2019.  This is from a culmination of the broadcast industry, public interest advocates, and members of the public sparring over differences in opinion over protection of full service FM stations and Low Power FM stations in relation to newly-licensed FM translators.  

FM translators are secondary service stations (meaning, they are secondary in status to full power stations, or, they must yield to other stations if creating any type of interference).  Translators service was created in 1970 for supplemental coverage of signals impeded by terrain.  Loopholes allowed for religious broadcasters to create extended networks with them in the late 80's to 00's.  With the implementation of HD radio, commercial broadcasters created new small stations with them (the FCC allows HD-2/HD-3 digital signals to be the audio input of translators, thus acting as a loophole to create another full radio station within a market).  In the 10's the FCC allowed AM stations to utilize translators to rebroadcast on FM.  In the last two years, due to poor foresight, the FM band is reaching capacity that was never intended.  With this has been an influx of contention between various FM stakeholders.

Much has been written in the trade magazines regarding the difference of opinion of broadcasters concerning the proposed rulemaking opened by the Commission last year to streamline arguments between station owners and newly-permitted FM translators.  Sections 74.1203(a) and 74.1204(f) of the FCC rules provide a framework for resolving complaints of actual and potential interference (i.e., 75.1203(a) is utilized in cases of actual interference when a new translator goes on the air, and 74.1204(f) is used when a translator is granted a permit, where an engineer can demonstrate on-paper that listeners of a specific station will receive interference if the translator in question goes on the air).  The old rules required the complainant to demonstrate: (1) the name and specific address of each listener that is experiencing interference, (2) some demonstration that the address of each purported listener falls within the 60 dBu contour of the proposed translator station, (3) some evidence, such as a declaration from each of the claimed listeners, that the person listens to the full-service station at the specified location; and (4) evidence that grant of the authorization will result in interference to the reception of the "desired" station at that location.

The rules did not prescribe any minimal signal strength regarding the complainant's station, nor was there any hard-and-fast number of listeners the complainant needed to show that experienced interference.  Translator applicants, permittees, and licensees desired a higher bar for being challenged by full power and LPFM stations (i.e., a station with a really fringe signal could contest a translator with perceivably a couple listeners).  While this ostensibly sounds sensible, translators do not need to abide by incoming interference like other stations must.  This has opened a loophole to cram FM translators in places that do not work to provide interference-free coverage, or cover-up hyperlocal urban LPFM stations with homogeneous commercial radio automation.  Furthermore, disappearing are the days a commuter could listen to the same station into its fringe listening area.  A whole patchwork of frequencies drifting in and out will supplant such coverage, with some broadcasters fretting a mess will be made.  Lets face it, radio's stronghold is vehicle listening, and for uses pertaining to localism (public and community radio, LPFM, and locally owned/independent commercial stations).

To briefly state, the new rules (1) allow translators to jump to any same-band radio channel if successfully contested (noncommercial band = 88.1 - 91.9 FM, commercial band 92.1 - 107.9 FM), (2) provide for a minimal signal strength cutoff that the complaining station can contest up to (i.e. a really fringe area of listen cannot be contested unless there are many listeners there), (3) provides for a minimal level of listeners that are needed to enter a contest against a translator, and (4) other small details.  This is all intended to provide a more systematic framework within contests to expedite the processing of complaints with the FCC.

While the FCC attempts to strike a balance, there are small important details here glossed over by the Commission, especially in relation to Low Power FM service, and the rights of the individual listener.  LPFM stations have been extensively prone to encroachment of listening area due to the superior rights afforded to translator coverage.  This has created an uneven playing field for coverage between translator and LPFM. 

Five parties have filed Petitions for Reconsiderations concerning the new rules released within the Report and Order.  LPFM Coalition, which is anchored by nonprofits Common Frequency and Prometheus Radio Project, filed Reconsideration in July regarding the rules, drawing attention to the following:

  • The rules arguably are not harmonized with the Local Community Radio Act Section 5(3) concerning equal service requirements between LPFM and translator
  • The rules clash in implementation concerning the Administrative Procedure Act.  The proposed rules aim provide new rules to adjudicate contests that occurred in the past under the old rules.
  • The rule does not allow multiple listeners from one complex to make complaints concerning the same case.
  • The rule does not allow for LPFM protections under the Local Community Radio Act as to it does not protect future LPFM spectrum.
  • The rule is internally inconsistent as the interference showings must utilize the contour rules associated with 47 CFR Section 73.313, which specifically requires that calculations be made “without regard to interference.” (i.e., the interference complaints directly relate to actual interference, but Section 73.313 refers to a theoretical calculation).

Brad Johnson of LPFM KGIG-LP files Reconsideration from an LPFM prospective that the rules contravene FCC decision regarding Ashbacker (Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945)), the "precedent that requires the FCC to give all potential mutually exclusive applicants the ability to have an equal opportunity to file for a new frequency."  The argument is that allowing translators the ability to change to any open channel precludes the ability for a new applicant to compete for that channel.  Johnson cites the case of a waiver request for W218CR, Central City, Kentucky, where that translator applicant requests to jump to a non-mutually-exclusive radio channel.  The FCC denies the request citing Ashbacker.  The channel jumps that the FCC is permitting via the rulemaking appear along the same lines to contravene Ashbacker.  

Skywaves Communications LLC files Reconsideration citing technical discrepancies in the new rules such as "The Report and Order did not specify f(50,50) or f(50,10) with respect to the 45 dBu contour and the interfering contours" and "The revised rule requires an FCC contour-based U/D study for each and every complaint. This is appropriate for complaints outside the protected contour, but it fails within."  The latter issue is an oversight within the Commission's proposed rules as the Commission was mainly focused on co-channel interference.

Petitioners Charles M. Anderson and V-Tech Communications also file grievances concerning particular matters. 

LPFM Coalition did file a Motion for Stay with the Commission to prevent the new rules from going into effect on August 13, 2019.  That date has come and gone without response from the Commission.

Further Reading:  LPFM Coalition Reply to NAB's Opposition to Reconsideration, and Reply to Oppositions, Press Release.