FCC to vote on proposing to change LPFM administrative rules and other policies
Lessons learned from the 2023 LPFM Filing Window, the Electron Benders case and some general cleaning up are the topics of this omnibus NPRM, currently in draft.
The Federal Communications Commission has released a circulation draft for a Notice of Proposed Rulemaking (NPRM) on behalf of the Media Bureau that will be voted on by the Commission at the December Open Meeting scheduled for December 11, 2024 regarding proposed rule changes to the broadcast services including some changes to the administrative rules related to the Low Power FM (LPFM) broadcast service.
The circulation draft is normally released three weeks prior to the meeting which provides the current version of the item that would be considered on the meeting agenda. The information in a circulation draft can change between now and the time that it is voted on. In addition, the affected bureau would have editorial privilege to make non substantive changes after the item is adopted.
This NPRM is intended to update various rules in Parts 1, 73 and 74 to “better reflect current application processing requirements, clarify and harmonize provisions, and remove references to outdated procedures and legacy filing systems.” These types of proceedings do take place at periodic times to address various issues that may have come up during the processing of applications or other issues that the Bureau may consider as improvements. None of these proposed changes were as a result of a Petition for Rulemaking filed by the public at large.
Proposed changes to LPFM rules
The proposed LPFM changes mainly stem from incidents that took place in the 2023 Third Generation LPFM Filing Window as well as an incident that took place on a minor modification for which the wording of the codified rule was challenged.
The 2023 LPFM window was plagued with several missteps and other issues such as confusion over the protection of pending applications filed after the announcement of a filing window, the technical issue that was discovered that exposed unfiled applications prior to the window close and various inconsistencies between how the 2023 window was handled as compared to how the Second Generation LPFM filing window was handled in 2013. Not all of these issues are being addressed in this draft NPRM.
Same day filed minor modifications
The current LPFM rule, §73.870(c) states that for minor modifications, applications will be accepted in the order that they were tendered and the rule affords a “cut off” protection for subsequently filed applications. This rule is different than their full-service and FM translator counterparts which state that if more than one conflicting application is filed the same day by different parties, both applications would be considered mutually exclusive and neither would be processed. Instead, the parties are encouraged to reach a technical or administrative solution. The original LPFM Report and Order from 2000 does not specifically address why §73.870(c) was written differently for LPFM.
This rule was challenged in an REC supported pleading on behalf of the advocacy in the case of Electron Benders, licensee of KOKT-LP, Tulsa, Oklahoma. In Electron Benders, a minor modification was filed for a change to a channel that was recently made vacant as the result of the cancellation of another LPFM station license. Several hours later on the same day, a conflicting application was filed. The conflicting applicant then filed an Informal Objection against the Electron Benders application over a site assurance issue. The site assurance issue had no merit as even though the Schedule 318 form does require site assurance information on the application, the Commission has never, through rulemaking, changed the site assurance policy to extend it to minor modifications. Site assurance only applies to noncommercial (non-auction) original construction permit applications and not to their amendments.
During the arguments, Electron Benders stated that their application was filed first as evidenced by the lower file number and the forensic information in the FCC’s License Management System (LMS) that showed the application being tendered first. Electron Benders acknowledged the differences between the LPFM processing rule and the full-service/translator rules noting that because both conflicting applications were for LPFM stations, there is no conflict in the rules and that the codified LPFM rule should prevail.
The Media Bureau disagreed. In an interlocutory decision, the Bureau stated that despite how the rule is worded, it is accepted that the processing policy for LPFM is consistent with those used for full-service and FM translator services and took no action on either application, declaring both applications as mutually exclusive.
In the NPRM, the Commission proposes to amend §73.870(c) to make the wording of the LPFM rule consistent with those that exist for full-service FM and FM translators. The current “same day” rule dates back to before electronic filing of applications and does not reflect the advances in the filing systems. Even though the previous CDBS filing system would not release application data until the next day, the current system will make filed minor modification applications immediately visible through the system’s public view features. This also exposes the application to third-party systems such as REC Networks’ Enhanced License Management System (eLMS), which is used to display application details on REC operated websites FCCdata.org and FCC.today.
Codification of the term “authorized station” in §73.807
In various parts of §73.807, the rule that specifies the required distances between LPFM stations and other FM facilities, the rule states that LPFM stations must protect “authorized stations”. The term “authorized station” is not defined in the rules. The Commission interprets an “authorized station” as including both licensed stations and/or granted construction permits for FM, LPFM and FM translator stations. The Commission seeks comment on that interpretation.
Prior-filed application protections
The current rules in §73.807 provide protections to authorized stations and vacant FM allotments stating that protection is only required to those that were “filed prior to the release of the public notice announcing an LPFM window period”.
In the 2013 filing window, a single public notice was released that provided both the filing period and the filing procedures. In 2023, things were handled a bit different. On June 22, the Bureau released a public notice that simply announced the dates of the upcoming window. Then on July 31, the Bureau issued a second public notice that announced the filing procedures as well as a filing freeze on secondary service applications such as LPFM and FM translators.
The splitting of the notices caused confusion as it resulted in application preparers, including REC starting the preparation of applications for window applicants and not protecting any subsequent applications filed after the June 22 notice. The issue was not noticed until after the July 31 public notice which outlined a protection process that was completely inconsistent with §73,807 and with how it was handled in the 2013 window. REC had made a written inquiry to staff to address our concerns with this process change without some form of due process and public comment. In communications with the Bureau, REC agreed in the long run, the process that was being applied for the 2023 window was favorable because it involved a filing freeze, which LPFM did not have in the 2013 window. REC also cited the fact that because of the massive increase in the number of FM translators since the 2013 window and the fact that the filing freeze applied to FM translators, the filing freeze was favored.
In the NPRM, the FCC proposes to change the wording in §73.807 to state that protection policies will be outlined in a public notice that outlines the filing process as opposed to a public notice that only announces the upcoming window dates.
Rules that impact LPFM and other services
The signature rule
§73.3513 of the FCC Rules outlines who may sign an application. In the context of the private sector, such as nonprofit organizations, the application may be signed by an officer of the organization.
Both the 2021 NCE and 2023 LPFM filing window included many different situations where the application was not signed by an officer, but instead was signed by a different employee or a third-party consultant. Applications for original construction permits that violated the “signature rule” would be dismissed with no opportunity to cure.
The FCC is seeking comment on whether the ability to sign an application should be extended to include “duly authorized employees”. This is consistent with the signature rules regarding public sector entities such as city government and public education where a “duly authorized employee” may sign an application.
Local public notice requirement
§73.3580 currently requires that on applications for original construction permits that proper public notice is provided. This type of public notice is usually done online through the applicant organization’s website or through the purchase of advertising on a local website such as one operated by a newspaper. For existing stations, acceptance for filing is publicized in the daily “Applications” public notice. The current rule does not state that other FCC and Bureau releases such as the points and threshold fair distribution public notices used for mutually exclusive groups as well as any subsequent actions where a tentative selectee is declared is also construed as “accepted for filing” and thus subject to the local public notice requirement. The NPRM seeks to clarify this in the rules.
Informal Objections
Currently, §73.3587 states that any person may file an Informal Objection, service is not required and that pleading cycles do not apply. A pleading cycle, which applies to Petitions to Deny is a set time structure for which oppositions and replies to the objection are filed.
The FCC is proposing to amend the rule to place a pleading cycle on Informal Objections where oppositions are due within 30 days of the Informal Objection being filed and replies to the opposition can be filed within 20 days after the opposition was due or 20 days after the opposition was filed, whichever occurs later. These time periods are more liberal than those for Petitions for Deny that require an opposition within 10 days and replies 5 days later.
The FCC is also proposing that service be required on all pleading filings related to an informal objection. The FCC states that this is consistent with other radio services at the agency. The FCC states that a service requirement would help make the process more efficient since staff is currently emailing the subjects of Informal Objections when there is no notice that service is being made. The FCC is also proposing to clarify that service may be done via email in lieu of postal mail.
Other changes
In addition to those changes, the FCC is proposing to eliminate a requirement in the AM broadcast rules that require any modification to increase power to be at least a 20% increase in their nominal power. They also propose to remove the 90-day Special Temporary Authority (STA) restriction necessitated by technical or equipment problems in favor of the more traditional 6-month STA.
The FCC also proposes non substantive such as removing references to the former CDBS filing system in favor of LMS; revising form names to reflect the nomenclature used by LMS which every form is “Form 2100” but has different schedules; normalize the language that is used to refer to the FM and TV tables of allotments; remove the 10 cap on NCE applications from the 2021 window as obsolete language (an application cap can be discussed in rulemaking as we get closer to an NCE window); remove obsolete language regarding post-incentive auction view and MVPD (cable and satellite provider) notification requirements and combine two rules that relate to Petitions to Deny into a single rule section.
Once adopted by the FCC, comments in MB Docket 24-626 will be due 30 days after the proposed rule is published in the Federal Register. Reply comments are due 15 days after that.