24-626: REC files comments with the FCC on LPFM administrative issues
Opposed change to file processing rule in light of "Delete Delete Delete", opposed changes to "signature rule" and defended the use of informal objections to maintain service integrity.
REC Networks has filed comments in MB Docket 24-626, which was proposed late last year to address various issues that arose in the recent LPFM filing window and in some higher profile application cases.
In preparation for this docket, REC had conducted a constituent survey. For a 60 day period in December and January, REC had stated its initial positions on each matter and then asked for comments from the general public through both specific questions and an opportunity for respondents to make “free flow” comments on the subject.
Some of the items in this docket are related to unannounced policy changes made by the Media Bureau prior to the opening of the 2023 Third Generation LPFM Filing Window, which took many by surprise as these policy changes did not correspond with the underlying rules. This docket would align the procedures actually followed in this window to the codified rules.
Processing of conflicting minor modification applications filed the same day
Under the current rules [§73.870(e)], minor modifications to LPFM stations are handled in the order that they were received. This has been the rule since the creation of the LPFM service in 2000. This rule is in contrast to the rules that apply to full-service broadcast stations and other secondary services such as FM translators. In those rules, any additional applications received on the same day are considered as “simultaneously filed” and if there are conflicts, the applications will be declared mutually exclusive and applicants would need to reach a technical settlement or solution.
While there have been cases in the past where two conflicting minor modifications involving an LPFM station, these cases involved “cross-service” issues, such as a LPFM and a FM translator filing on the same day for conflicting facilities. On May 28, 2021, KOKT-LP filed a minor modification application through REC to make a non-adjacent channel change. Within hours, another station, KPIM-LP filed a conflicting application to change channels. Through a series of pleadings, KOKT-LP defended that the current rule for LPFM states that the first application tendered would have priority and that the KPIM-LP application should be dismissed. On December 22, 2023, The Audio Division disagreed stating that despite the wording of §73.870(e), normal Bureau handling of all broadcast applications applies in all cases, including between two LPFM stations. Both modification applications remain pending until this day until a technical solution can be reached. This would be impossible based on the lack of alternate spectrum and due to the LPFM engineering rules.
In the recent In re: Delete Delete Delete proceeding, REC had called for changes to the application processing rules to bring all broadcast services in-line with the LPFM rule citing the technical developments that have taken place since the original broadcast rule that was written in the days when applications were filed on paper. REC had stated that due to instantaneous nature of the display of applications filed in LMS, it is very possible for an applicant to “torpedo” another application by filing a conflicting application.
In 24-626, REC has opposed the proposed changes to §73.870(e) citing that due to technological change, the prior rule is obsolete, does not reflect the current state of the art and under the new LMS environment, opens applications up for gamesmanship. REC further insinuated that for the purpose of government efficiency, the Commission should hold off on this change and review REC’s proposal in Delete Delete Delete instead.
Prior-filed application protections
Under the current rules, in conjunction with a filing window, §73.807 requires that LPFM applications need to only protect those applications and facilities that were filed prior to the public notice by the Media Bureau that announces the dates for the upcoming filing window. While other secondary (LPFM and FM translator) applications could still be filed, they would not be afforded protections from applications filed during the window. This policy was followed in 2013.
In 2023, the Commission took a different approach. In June, the Audio Division issued a very short public notice announcing the window dates. Per the rules, this should have been the “cut off” date for subsequent applications. However, one month later, the Audio Division would release another public notice that announced all of the filing procedures for the window and imposed a filing freeze on LPFM and FM translator modifications that would start about one month later. The 2023 approach was very different than the 2013 approach, but more importantly, these policy changes were not announced in advance. As a result, some applicants had already started the engineering on their applications assuming that the June notice would cut off protections to any subsequently filed applications per the current rules.
The FCC is proposing rule changes that would align with the methods used in preparation for the 2023 filing window.
REC has come out in support of these changes with modifications. We find that because of the significant increase in the number of translators, especially in more urban areas as a result of the AM Revitalization efforts, a filing freeze was absolutely necessary. REC stated that the filing freeze should begin on the date of the window announcement as to avoid translator licenses “jockeying for position” or intentionally filing modifications to prevent LPFMs from covering their fringe areas. REC did observe this alleged activity leading up to the 2023 window.
The signature rule
The current rules require for corporations, which most LPFM applicants are, that the signatory at the bottom of the application must be an officer of the corporation. The FCC also accepts those who are directors. The person who’s name is at the bottom of the application is the one legally responsible for the accuracy of the statements made on the application.
In both the 2021 NCE and 2023 LPFM filing windows, there were a considerable number of applications filed that did not have an officer as the signatory. This resulted in Informal Objections being followed by service watchdogs. REC did not file any objections based solely on a signature rule violation. Applications from filing windows that are dismissed for signature rule violations are fatal and cannot be cured. In response, the FCC has proposed that the signature rule be modified to allow for any “duly authorized employee” of the organization to sign the applications.
REC has come out opposing this proposed rule change. We point out that in the 2023 LPFM window, three-quarters of the applications that were dismissed solely on signature violations had a technical consultant as the signatory and not someone who is otherwise “duly employed” with the organization. In fact, our survey found that many LPFM organizations do not have “employees”.
Knowing that there is a learning curve to the FCC filing process and honest mistakes do happen, we proposed something different. Instead, we propose that the rule remains as it is but in the event that a non-officer/director signs the application, the application should still be dismissed, but that there also be a vehicle to permit the application to be reinstated nunc pro tunc (legal Latin literally meaning “like it never happened”) and that in the amended application, the applicant must provide a notarized statement from an officer of the corporation attesting that the application is truly authorized by the organization and that the signatory was authorized to file on behalf of the organization.
REC has also asked the Commission to codify the waiver that was granted to WQNA-LP in which a duly authorized employee signed the application solely because the President of the organization was visually impaired.
Public notice of applications accepted for filing
When an application for a new station is accepted for filing, this triggers a statutorily required public notice process as outlined in §73.3580 of the rules. The current wording of §73.3580 suggests that the only vehicle for stating that an application is accepted for filing is the daily “Applications” public notice. In fact, whenever an application that is mutually exclusive is declared a tentative selectee, those applications are also accepted for filing but they appear on their own public notice announcing the Commission’s determination and do not appear on the daily “Applications” public notice as being accepted for filing. The FCC wants to amend §73.3580 to include other FCC public notices that announce which applications have been accepted for filing.
REC has come out in support of this change. We also have asked the FCC to update the software in LMS to directly show when an application is accepted for filing, similar to the functionality that was provided in its predecessor, CDBS.
Informal Objections
The FCC application process is based on “self certifications”. This means that the applicant will answer a series of “yes/no” questions to certify that they meet qualifications. In many, but not all cases, no additional supporting documentation is required. In those cases where it is, those documents are historically not verified by Audio Division staff, such as measurements from the transmitter site to the proposed main studio to support a point claim or distance measurements to meet the localism qualification for LPFM.
In 2013, REC had filed hundreds of Informal Objections to call out various violations on filing window applications, mainly those with connections to well-known “bad actors”. This would eventually lead to other “watchdogs” filing objections for various violations. Some other LPFM advocacies have labeled these people as being “anti-LPFM”. We support the use of the Informal Objection in order to maintain the integrity of the LPFM service. We do not consider the other watchdogs as anti-LPFM, but instead, as pro integrity. The rules need to be fair for everyone. We consider the Informal Objection to be the “checks and balances” of the application process. The FCC is considering some changes to Informal Objections
Requirement to provide “service” on the applicant
The rules permit Informal Objections to be filed by “any person” at any time up until the FCC makes a decision on the application. Unlike Petitions to Deny, Informal Objections do not require any specific notification (service) to the applicant. However many objectors, such as REC, will normally send a courtesy email to the applicant. Information on objections filed can be found in the daily FCC “Applications” public notice as well as being posted on REC’s fcc.today. The need for this more simplistic approach is due to the historic connection that broadcasting has with the general public in the community it is licensed to serve.
The FCC has proposed that those filing Informal Objections must serve a copy of that objection to the applicant. They further cite rules in the Wireless Telecommunications Bureau (WTB) for their services (think two-way radios for police, fire and businesses) to provide service on such objections.
REC has come out in opposition of this requirement. Unlike the services in WTB that the Commission is depending on, broadcasting has specific statutory and regulatory obligations to provide a direct service to a specific community of license and is subject to certain public interest requirements that do not apply in other radio services. This includes direct interaction with listeners and other members of the general public. If a member of the public files a very compelling argument as to why a certain applicant should not be licensed or why their license should not be renewed, that complaint should not be perceived as dismissed, solely because they did not know that they had to provide service. Adding this requirement would substantially jeopardize public involvement in the use of the broadcast spectrum that belongs to the public.
Instead, REC recommends a different approach. LMS has the capability to originate email messages. We see it every time an application is granted. The LMS software should be modified to have the system generate an email to the applicant whenever a pleading, such as an Informal Objection is filed in LMS. This method of notification would serve the original purpose and would not jeopardize non-industry general public involvement in the application process.
Use of email for the service of informal objections
The FCC is proposing the official ability for the use of email, instead of using postal mail, courier services or process servers for the service of pleadings in Informal Objection cases. While REC opposes the service requirement on Informal Objections, we have come out in support of the concept of using email for the service of pleadings. We have asked that this process be extended to also include formal Petitions to Deny as well as rulemaking proceedings involving the TV and FM Table of Allotments.
Time limits on responsive pleadings in Informal Objection cases
A “responsive pleading” is a filing that is made after the initial Informal Objection or Petition to Deny. This can include Oppositions that are filed by the original applicant and Replies that are filed by the objector/petitioner. While for Petitions to Deny, there is a strict “pleading cycle” that outlines the dates when all responsive pleadings are required by, such a pleading cycle does not exist for Informal Objections.
The FCC is proposing that for Informal Objections, that any Opposition must be filed within 30 days after the objection is filed. A Reply will need to be filed within 20 days after the Opposition was filed or 20 days after Oppositions were due, whichever is later. Under the proposal, the FCC would only accept one Opposition and one Reply.
Unlike with Petitions to Deny, this proposal does not impose a time limit on when the initial Informal Objection is filed in respect to when the underlying application was accepted for filing. Informal Objections could still be filed at any time up to the FCC action on the application.
While we have come out in support of this proposal, we have raised the issue for the need to file supplements outside of the proposed pleading cycle in the event of certain triggering events, such as an amendment to the application, an action taken by or towards another applicant in an MX Group or information that was newly discovered that was not available during the pleading cycle. We have also stated that our support for this item is conditioned on being only for responsive pleadings and not for the filing of the original Informal Objection.
Other Commission proposals
Without getting into too many details, REC has come out in support of the other non-controversial items proposed in this NPRM, including:
Replacing references to CDBS with references to LMS.
Updating the form names in the rules.
Change regulatory language clarifying the name of the Tables of TV and FM Allotments.
Eliminating the 2021 policy for a cap of 10 applications in the NCE window, which is customarily done when the filing window processing is near competion.
Eliminate restrictions on AM power increases.
Post-incentive auction view and MVPD notification requirements.
Remove the 90-day restriction on STAs for technical or equipment problems (making it 6 months, like all other STAs).
Remove obsolete application processing language.
Redesignate renewal application Petition to Deny rule.
A copy of REC’s comments in this proceeding can be downloaded here.
Comments in MB Docket 24-626 are due on Wednesday, April 23, 2025 with Reply Comments due on Thursday, May 8, 2025. Also, as a reminder; Reply Comments in the Delete Delete Delete proceeding (GN Docket 25-133) are due on Monday, April 28, 2025.