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RM-11786: REC Impact to LPFM Statement

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A Petition for Rulemaking  has been filed by Aztec Capital Partners, Inc.  Aztec is the licensee of WHAT-AM, Philadelphia and is the permittee of a translator W221DS, which was moved to the northwest during the 2016 AM Revitalization "250-mile" move window of 2016.  This translator has been faced with numerous informal objections by Clear Communications (not iHeart), licensee of WVLT, Vineland, NJ, a class A FM station located to the southeast of Philadelphia towards Cape May, NJ. In their objection, Clear states that the proposed translator would prevent listeners in the Philadelphia area (within the 1 mV/m 60dBu contour of the proposed translator) from hearing WVLT.  §74.1203 of the FCC rules addresses interference by translators towards full-service FM stations and §74.1204 addresses separation between FM translators with other facilities including full-service FM and LPFM. 

In their petition, Aztec recalls in the 1990 translator Report and Order that the FCC affirmed a single complaint of interference from an FM translator to any listener of any full-service station (regardless of signal strength) could remove that translator from the air under §74.1203(a)(3) with the FCC further claiming that "the provision will be used very rarely". 

In what Aztec describes as a "full-circle" perversion of the FCC's 1990 intentions, distant full service stations are increasingly filing complaints far outside their communities of license and service areas against FM translators that are "enabling the reception of local AM and local diverse HD sub-channels" thus resulting in out-of-market stations driving FM translators carrying local radio stations off the air using the 1990 rules. 

Citing that the translator rules have not been updated since 1990 and thus pre-dates the use of translators to rebroadcast AM stations as well as the birth of HD radio, Aztec is requesting a revision of the rules.  

Specifically, Aztec is requesting the following changes in the rules (amended text is highlighted):

§ 74.1203 Interference.
(a) An authorized FM translator or booster station will not be permitted to continue to operate if it causes any actual interference to:

* * * * *

(3) The direct reception by the public of the off-the-air signals, FOR FILL-IN AREA TRANSLATORS AS DEFINED IN SECTION 74.1201(H) & (J) WITH THE PROTECTED SERVICE CONTOUR AND OTHER AREA TRANSLATORS DEFINED IN 74.1201(I) AT ANY LOCATION, of any authorized broadcast station including TV Channel 6 stations, Class D (secondary) noncommercial educational FM stations, and previously authorized and operating FM translators and FM booster stations. Interference will be considered to occur whenever reception of a regularly used signal is impaired by the signals radiated by the FM translator or booster station, regardless of the quality of such reception, the strength of the signal so used, or the channel on which the protected signal is transmitted.

and

§ 74.1204 Protection of FM broadcast, FM Translator and LP100 stations.

* * * * *

(f) An application for an OTHER AREA FM translator station AS DEFINED IN SECTION 74.1201(I) will not be accepted for filing even though the proposed operation would not involve overlap of field strength contours with any other station, as set forth in paragraph (a) of this section, if the predicted 1 mV/m field strength contour of the FM translator station will overlap a populated area already receiving a regularly used, off-the-air signal of any authorized co-channel, first, second or third adjacent channel broadcast station, including Class D (secondary) noncommercial educational FM stations and grant of the authorization will result in interference to the reception of such signal.

NOTE: §74.1201(i) defines "out of area" as any location that is outside the primary service contour of the primary station.  This definition is normally used in the application of the rule that prohibits a commercial FM translator that operates "out of area" to be commonly owned by the primary (full-power) commercial FM station.

Aztec further goes to state that their petition is consistent with the Local Community Radio Act (LCRA) citing Section 5 which states that both translators and LPFM stations remain "equal in status" and that the FCC shall insure that the licensing of LPFM and translators are based on the needs of the local community.  Aztec further notes the differences between the rules for LPFM vs. FM translators, specifically §73.809(a) which does not consider legal interference to subsequently authorized full-service facilities by LPFMs unless there is interference inside the city grade contour or community of license.  

REC plans to participate in this proceeding and therefore at this time, we must leave our position on this proposal confidential until we file public comments with the FCC.

Impacts to LPFM

This proposal would limit the ability of a LPFM station to seek remediation for predicted or actual interference by a new FM translator, especially in cases where terrain would result in a translator's signal being heard well in excess of their predicted contours to interfere with an LPFM station under §74.1203.  While §74.1203 does not mention LPFM stations (since its revision pre-dates LPFM), REC's position is that LPFM falls under the phrase "any authorized broadcast station" in subparagraph (a)(3).  While the application of §74.1203(a)(3) is being tested by an LPFM station in one case, REC is not aware of any actions taken against translators to support LPFM under §74.1203(a)(3).  

Likewise, this proposal would not add any protections to the few LPFM stations that currently operate FM translators.  Many of those translators are operating to extend the service area of an LPFM station, which the FCC recognized in 2012 as necessary to address communities with unusual geography and similar situations.  

This proposal would provide additional protections to FM translators carrying local AM stations or the "HD" stream of a local FM station under the "fill-in" rule as opposed to a translator carrying a signal from a FM station that does not place a full-service contour over the translator's service-contour.  

The operators of AM and "HD-2" translators will be afforded a slight additional amount of flexibility to place a translator that might otherwise be blocked by the licensee of a distant co-channel full-service FM station.  

This proposal does not call for the licensing of new FM translators but it will increase the channel choices for new translators in the next FM translator filing window as that window will be limited to AM station licensees seeking translators, all of those translators would be subject to the additional protections proposed. 

This proposal does not change the method of how FM translators are required to protect LPFM stations.  FM translators are required to protect LPFM by assuring that their predicted interfering contours (40 dBu for co-channel and 54 dBu for first-adjacent channel) does not overlap the 60 dBu protected contour of the LPFM station.  FM translators are not required to protect LPFM stations on second or third-adjacent channels as well as on intermediate frequencies.  

This proposal also does not change the definition of a "minor move" for FM translators.  Under the minor move rules, a translator is only permitted to make a site move where the translator's proposed 60 dBu service contour has any overlap with their current 60 dBu contour.  Channel changes are limited to +/- 1, 2, 3, 53 or 54 channels.  Channel changes to other channels are permitted only if there is a "triggering" full-power application activity resulting in displacement. (We do note that the FCC is giving a limited opportunity for FM translators that were moved in the 250-mile move window of 2016 to make another "major" move as long as the translator continues to specify the original AM station they moved for and the new location remains within 250 miles of the pre-2016 authorized location of the translator).

This proposal also does not extend the service area of "fill-in" translators as like in the recent action by the FCC in MM Docket 13-249 which extended the fill-in area for FM translators carrying AM stations to including the entire 2 mV/m daytime AM contour without a 40-mile outer limit. Prometheus Radio Project has filed a Petition for Reconsideration that addresses solely the fill-in areas that are more than 40 miles from the primary AM station. 

It is REC's conclusion that this petition would only have a slightly moderate adverse affect to LPFM to the extent that it would allow a translator to use a channel that would be otherwise not be available due to a nearby full-service FM station complaining but could also be in some rare cases where a translator can be "wedged in" between a full-service FM station and an LPFM station that is spaced under §73.807(a) which also includes an additional 20 km buffer zone which extends the theoretical protected contour of full-service FM station classes and the translator utilizes a directional antenna to maximize service between the two (LPFM and full-service) contours.  

This proposal will have a major adverse effect to LPFM stations wishing to operate FM translators that are either licensed to the LPFM entity where there is slight contour overlap between the primary (LPFM) station and the translator or FM translators licensed to unrelated entities where the service contour of the translator does not overlap the service contour of the primary LPFM station (but the translator can still receive the LPFM station over the air) by not affording LPFM translators the same protections despite the fact that the LPFM may be also directing programming tailored for the translator's service area and could in some cases be the only local radio service for the station served by the LPFM translator. 

Overall for most LPFM stations that are not also heard on translators, this proposal does not make matters any much worse than they are in relation to the concentration of FM translators being placed in urban and suburban areas alongside the protected contours of LPFM stations.  It also does not make any direct changes to the LPFM service and does not necessarily place FM translators in a position where they are primary to LPFM stations.  LPFM remains protected in respect to full power stations under §73.209(c) of the rules for LPFM changes and by §73.809 in respect to full-power station changes.   

Again, this is only an analysis looking at the potential impacts to LPFM and does not constitute a full position by REC.  REC plans to participate in this proceeding.  Other parties wishing to participate should first read the entire Petition for Rulemaking and then make their own comments by accessing the FCC's Electric Comment Filing System and filing comments in proceeding RM-11786.  Comments are due by May 18, 2017.