Latent Conflict Concerning Upgrading LPFM From 100 to 250 Watts

Reply comments concerning rulemaking, MB Docket Nos. 19-193, 17-105, "Amendments of Parts 73 and 74 to Improve the LPFM Radio Service Technical Rules" just concluded November 4, 2019.  What is seen as a positive development, the FCC has provided a rulemaking to fix some of the small technical rules concerning Low Power broadcasting.  Common Frequency applauds the Commission offering this opportunity.  However, there is some lingering malaise concerning the state of LPFM which hangs over LP operators and advocates.  First, there is a feeling of helplessness that the Commission disregards its obligations associated with the Local Community Radio Act, which has lead to a give-away of spectrum in places that should have been reserved for LPFM service under the law.  Places like Pittsburgh, Pennsylvania and Oklahoma City, Oklahoma has seen seen all of its secondary service spectrum allotted to translator service when a part was supposed to be reserved for LPFM use.  Second, concerning this latest rulemaking, the impetus for this proceeding was Rec Network's Petition for Rulemaking RM-11810 and RM-11749 which proposed a power upgrade for LPFM service.  The avoided subject matter is that these issues are intertwined with the current political environment.  A Republican Commission is traditionally more subservient to the concerns of business lobbyists versus public interest measures.  This has created an impasse on the subject of a 250 watt upgrade for LPFM (or "LP-250").

Within the rulemaking docket, the FCC delves into reasons why it prefers not to take up the topic of LP-250 within Footnote 15.  The FCC's rationale for not pursuing LP-250 could be debunked within four points:


Point 1: Fallacy concerning simplicity of rules over efficacy of LPFM coverage.


Such changes would alter the simplicity of LPFM licensing, and REC provides insufficient support for adding such complexities to the LPFM licensing process.


This assumption is based upon a facile interpretation of minimum spacing methodology. The Commission originally chose a distance-spacing regime over contour-based engineering regime to allow LPFM applicants to execute their own applications without an engineer. First, it is widely viewed by LPFM engineering consultants that many LPFM applicants do not execute their own engineering anymore due to the complexity of second-adjacent waivers (U/D and custom antennas), translator input channel checks, environmental radiation calculation (co-location), reading service check, co-location requirements, TOWAIR, etc. Second, ask any broadcast engineering consultant, and they would gladly muse that it is much easier to find a workable broadcast location for a translator than an LPFM. The inflexibility of LPFM spacing methodology, and unsuitability of co-locating at market-center or regional consolidated broadcast sites (short spacing to site, too far away, HAAT too large, etc) often leads engineers to request that the LPFM licensee’s volunteers knock on doors at private residences to find possible backyard tower sites. From there it is an uphill battle dealing with municipalities, HOAs, and neighbors to allow towers in residential areas. The process is roughly fifty times more nerve wracking than providing engineering services for a translator client, where contour methodology provides flexibility and wattages that allow simple and effective engineering strategies from available, rimshot, and shoe-horned/directional-antenna sites.

The Commission’s LPFM simplicity statement in modern context effectively insinuates “An LPFM operator would rather live with unsustainable coverage 365 days a year than pay an engineer $500 to submit an LPFM application that is more complex than just obeying minimum spacing.” No LPFM operator would opt for this application simplicity regime over a radio channel that actually works. LPFM licensees would gladly accept the complexity of contour engineering if more efficient and effective signal solution could be found. The trade-off concerning the simplicity of the distance-spacing regime frequently pushes LPFM applicants into inflexible, burdonous, expensive, and ad hoc or temporary solutions that often provide results much poorer than the options translators have at their disposal.      


Point 2: Previous proceedings did not rule-out LP-250


...the Commission has previously declined to authorize LPFM stations with powers exceeding 100 watts, and REC does not present evidence that those decisions were incorrect, nor does it cite to changes since those decisions warranting a different result. 


The Commission cites two references to support this statement. The first reference, the LPFM Sixth Report and Order, specifically contemplates LP-250, but the Order did not reject LP-250. The FCC recognized that LPFM commenters “cite benefits including improved LPFM station viability through better access to underwriting, more consistent signal coverage throughout the community served by the LPFM station, and the ability to serve areas of low population density and/or more distant communities.” However, full power broadcasters objected to the addition of LP-250. Because of this contention, the FCC wrote in conclusion that it believed “the issue of increasing the maximum facilities for LPFM stations requires further study.” To us, this is interpreted that the Commission shall release an official further rulemaking notice requesting input on the matter at a later date, as confirmed by the Audio Division staff at that time in ex parte communication. This never materialized. In the second reference, the Commission makes reference to denial of a 1000 watt LPFM service. This reference is misrepresentative of the issue at hand. A 1000 watts proposal is much different than a 250 watt service. The 250 watt service proposed for LPFM is less in total coverage than translator 250 watts service. It is thus well within the confines of coverage of a currently-licensed secondary service signal.


Point 3: LP-250 is not in conflict with the Local Community Radio Act.


We also are not convinced that REC’s proposed use of a contour analysis method, which the Petition refers to as the “Section 73.815 Regime”, is compatible with an LCRA prohibition on reducing minimum distance separations between LPFM and full-service stations. Petition at 1, 14-19; See LCRA, section 3(b)(1). REC attempts to comply with that requirement by using a spacing table in effect when the LCRA was adopted, but the smaller separations in that table were intended for 10-watt (LP10) stations whereas REC seeks to apply it to 100-watt (LP100) stations. We do not accept REC’s premise that such a result is permissible.


While the Commission may not accept REC’s specific proposal regarding prescribed tables, the Commission has previously assessed the opposite sentiment concerning LP-250 in relation to the minimum spacing restrictions stipulated within the Local Community Radio Act (“LCRA”) within the LPFM rulemaking, specifically when citing LP-250:


We note, however, that the LCRA does not contain any language limiting the power levels at which LPFM stations may be licensed. We also find unpersuasive NAB’s and NPR’s reliance on certain statements in the legislative history. These statements merely describe the rules governing LPFM service at the time Congress was considering the LCRA (Paragraph 206 of the FCC's LPFM Sixth Report and Order).


Furthermore, the FCC only makes reference that it disagrees with REC’s RM-11810 proposal to use LP-10 spacing (“REC attempts to comply with that requirement by using a spacing table in effect when the LCRA was adopted, but the smaller separations in that table were intended for 10-watt”), and does not comment on REC’s RM-11749 LP-250 proposal which does not advocate the same regime as RM-11810. The Commission may disagree a specific REC proposal, but the FCC is not precluded from pursuing LP250 as a result of language within LCRA. Moreover, the Commision does not address RM-11749, and does not appear interested in soliciting other proposals.


Point 4: The reference to LCRA Section 5(3), as cited, is not really pertinent in precluding any LP-250 proposal.


Finally, we do not revisit the Commission’s prior conclusions about LCRA language describing LPFM stations and FM translator stations as “equal in status.” See LCRA § 5. See Petition at 1-2, 12, 15, 20, 26; see, e.g., Prometheus Comments at 2; LVPR Comments at 1; LPFM-AG Comments at 3-4. The Commission has understood this language as limited in scope, simply requiring priority neither to new LPFM stations nor to new FM translators when making spectrum available for initial licensing. See Sixth R&O, 27 FCC Rcd at 15422, para. 59. In this way, applications in one service will not foreclose or unduly preclude opportunities to file applications in the other. Id. As the Commission has stated, however, nothing in the LCRA’s “equal in status” language requires licensed LPFM and FM translator stations to operate under identical rules. Id. at 15426, n.139. REC and commenters in the present proceeding contend that the statutory language is subject to interpretation and would support broader actions to bring about further “equality” between LPFM and FM translators but provide no evidence that the Commission’s stated understanding of the “equal in status” language differs from Congressional intent or is unreasonable. E.g., Petition at 10-14; LPFM-AG Comments at 3.


In the above the Commission is referencing LCRA Section 5(3) (“equal in status”). Even if 5(3) did not directly support LP-250, that does not logically preclude the possibility of a LP-250 service. But beyond that, LP-250 may not be a Section 5(3) issue, but is relevant to Section 5(1) and 5(2) issues. Within a recent Petition for Reconsideration submitted concerning a new translator construction permit grant for K298DG Modesto, California, a petitioner supplies incontrovertible filing statistics to demonstrate a failure of Section 5 structural limitations within previous AMR translator filing windows. Contravention of Section 5(2) presents a foreclosure 14 on future LPFM filing, which is difficult to undo because future LPFM channel availability is depleted. The Commission has stated “the LCRA necessarily requires the Commission to make choices between licensing new LPFM and translator stations in some cases, given that the two services compete for the same limited spectrum. Making such choices based on the overall spectrum available to each service does not ‘favor’ one service over the other.” An 15 easily-accessible rulemaking to defray some of the Section 5(2) violation may be to opt for LP-250 service solution.


It could be seen that the Commission’s reasoning within the points presented above do not supply an adequate rationale for denying LP-250 within this docket. There is substantial reasoning in support of the Commission extending the solicitation of comments from the public concerning such a service:

(A) The LPFM Report and Order stated that LP-250 “required further study.” That infers 16 that the Commission’s intention was to open a proceeding to solicit various LP-250 proposals for all stakeholders to contemplate.

(B) RM-11749 garnered substantial input -- over 500 commenters. This demonstrates considerable public interest in this matter.

(C) LPFM has local public service stipulations far above full power FM, AM, and translators. Preservation of LPFM coverage is a keystone within broadcast localism, and the last vestige of Communications Act-stipulated Section 307(b) transmission service. LPFM serves the public interest in aspects that other services do not. LPFM services...

(1) were created foster a program service responsive to the needs and interests of small community groups, particularly specialized needs.

(2) require the licensees to be local.

(3) have community presence.

(4) require a locality pledge.

(5) have strict ownership restrictions.

(6) have sharetime rules.

(7) expand ownership diversity.

(8) if granted via LPFM points, is the only service requiring a local studio -- the only service required to uphold Section 307(b) transmission service.

(9) have limited coverage.

(10) have limited resource constraints (fundraising from enough population to make station viable, volunteering, business underwriting)

(11) have non-commercial educational missions. (12) are “uniquely positioned” (as in, translators do not have these qualities for this specific area of use), to “meet local needs” in areas of “higher population density”, i.e., city centers

(D) LPFM operators have expressed service deficiencies that impede sustainability and curtail listener reception within their 60 dBu contours. For other audio broadcast services -- FM, AM, and translator -- the Commission has offered coverage relief: The FCC has offered a rulemaking for Class C4 service to improve upon Class A commercial radio service, has recognized the technical operating difficulties concerning AM radio service, offering a Revitalization Docket dedicated to assistance including four translator filing windows for AM licensees (including a 250-miles cross-service translator relocation, and new translators), has approved usage of Mattoon Waivers for moving AM cross-service translators, expedited Docket 18-119 that liberated carte blanche same-band translator channel changes and greater protection from interference challenges to AM cross-service translators, and recently released MB Docket No 20 19-311 concerning AM digital broadcasting. There is no reason why the Commission should not extend at least half that effort for assisting LPFM service, considering LPFM...


(1) with preference of urban coverage, has had difficulties in penetrating walls (several comments on this docket)

(2) has difficulties overcoming HD interference within their 60 dBu (e.g., KGIG-LP re: KNCI, KZHP-LP re: KFBK)

(3) has difficulty overcoming full power rimshot or grandfathered high-power interference an (KFFP-LP, KMCQ-LP, see Reply to Petition for Reconsideration regarding K298DG Modesto, California)

(4) has difficulty against fil-in translators extending a 60 dBu Longley-Rice signal into their 60 dBu (e.g., KBQS-LP, KUTZ-LP prior to changing channels, KIEV-LP).

(5) geographic anomalies or water bodies elevating the HAAT to restrict wattage that is not robust enough (e.g., KHUH-LP, KCPK-LP)

(6) has limited availability of broadcast sites at lower elevations that require co-location at higher elevation broadcast sites with single-digit wattage (which cannot fend-off any incoming interference (e.g. KISN-LP 2 watts, KOWS-LP 3 watts)

(7) can be susceptible to tropospheric ducting (e.g. KZNQ-LP)

(8) can sometimes not have channels directly available within the target coverage community due to minimum spacing issues, and is forced to broadcast from the side of the community with poor coverage back into the community (e.g.KOCF-LP, KGIG-LP, KOLP-LP [R.I.P])

(9) has difficulty covering spread-out rural communities, where the LPFM station can be the only locally-manned broadcast outlet to provide public information regarding local emergencies.


Given the above, we are compelled to ask the Commission:

(A) There does not seem conclusive reasoning to not consider a LP-250 service. What is impeding the previously-dictated “further study” regarding the issue?

(B) The Commission has vastly assisted in relief concerning AM broadcasters failing coverage. Shouldn’t commensurate effort be extended to ameliorating LPFM coverage issues?

(C) There is certainly a demand for relief concerning LPFM interference/under-power concerns within the station’s 60 dBu contour of many LPFM stations.  Many commenters from the LPFM community have had complaints regarding interference with local LPFM signals.

(D) There is no “increased interference to full power station protected contour area” argument to limit LP-250. LP-250 would simply be limited by the same contour rules already abided-to and sanctioned by full power stations and NAB. We are not clear on the Commission’s argument regarding this.