REC Advisory Letter #10: Sixth advisory of 2023 Third Generation LPFM filing window and major change opportunity
Sixth advisory (8/8/2023)
This revision to the Advisory Letter is to outline a conversation that REC had with FCC Audio Division staff on August 7, 2023.
Clarification on required protections to pending applications
§73.807, subparagraphs (a)(1) and (c)(1) of the Rules stated that LPFM stations are only required to protect applications for existing FM, FM Translator and LPFM stations that were filed prior to the release of the Public Notice announcing the dates of an LPFM filing window. On June 22, 2023, a Public Notice was released to announce the dates of the LPFM filing window, however that notice did not include any additional instructions. On July 31, 2023, the Division released a subsequent public notice that announced the procedures for filing in the window. In the July notice, the FCC included information on how LPFM applications must protect pending applications. The method announced by the Division were not consistent with the existing rule. This created some significant confusion.
Despite the wording of the existing rule, the FCC will require protections to be as follows:
- In respect to full-service (full-power) FM facilities, LPFM window applicants must protect any applications that were filed prior to July 31, 2023. We note that while LPFM stations are not required to protect full-service applications filed on or after July 31, 2023, they may receive interference from those applications and there is no recourse for LPFM stations due to the secondary nature of the LPFM service.
- In respect to FM translator and existing LPFM facilities, LPFM window applicants must protect any applications that were filed prior to September 1, 2023. A filing freeze will start on September 1, 2023 that will prevent any modification applications being filed by any FM tranlator or LPFM station.
For the first time in LPFM, a filing freeze will be used to keep the spectrum "static" to assure that LPFM applicants will know exactly what the spectrum will look like when they file in the window. We did not have those assurances under the current rule that was practiced in the 2000/2001 LPFM Window Series or the 2013 Window. With the significant increase of the FM Translator service since the rule being written in 2000 had prompted the FCC to take this measure. In the long run, the use of the filing freeze is a better option as it makes the overall outcome of an LPFM window application much more predictable.
In this update to the Advisory Letter, we have also applied
strikeout text from previous revisions of this Advisory Letter which no longer apply.
Fifth advisory (7/31/2023)
On July 31 2023, the Federal Communications Commission had announced through Public Notice some additional policies related to the upcoming filing window for new LPFM stations. This Advisory Letter also serves as an update regarding LPFM proposals for the 20 reserved band channels from 88.1~91.9 (Channels 201~220).
Reserved band applications
On July 20, 2023, the FCC issued a Report and Order in MB Docket 03-185 regarding TV Channel 6. In that order, the FCC determined that the 13 low power TV (LPTV) stations that have been engaged in so-called FM6 operations (TV stations that generate an analog carrier for FM radio on 87.75 MHz) may continue to engage in that operation without the need for special temporary authority (STA). Other than one Channel 6 station that was unable to file at the time the Notice of Proposed Rulemaking was adopted, the FCC will not authorize any additional LPTV stations to engage in FM6 operation. This is good news for LPFM because with no expectation of the ability to operate FM6, it will not result in LPTV broadcasters changing to Channel 6 in order to engage in FM6 operation. This will help assure that where there is LPFM availability in the reserved band will not experience a sudden loss as a result of speculation. LPTV stations are still free to move to Channel 6 for all-digital TV operation.
The FCC took no actions on the reserved band FM to Channel 6 protection rules (§73.825 for LPFM). This means that there will be no change in the rules. Keep in mind that at the request of REC, the FCC did change §73.825 rules and policies in 2020 to allow LPFM proposals in areas that are short-spaced to Channel 6 if they either obtain a letter of concurrence from the affected Channel 6 broadcast station (low or full power) or a contour study, consistent with the translator rule §74.1205 can demonstrate that there is no prohibited overlap. In the latter case, the Channel 6 station must be notified of the application.
New LPFM form available in LMS
For the upcoming window, applications will be filed in LMS. To access the form, log into LMS with your organization's FRN and password. On the Applications tab (the default tab that shows when you first log in), click on the blue "File an Application" drop down and then click on "New Low Power FM Station Construction Permit Application". Please note that as of this advisory, there is an issue on the form that involves applicants that do not qualify for the Established Local Presence point (organizations that have only been locally established since November 9, 2021 or later). FCC Staff has been notified and has acknowledged the issue. We are following this specific issue in LPFM Advisory Letter #18 and will update the status of this issue in that letter.
FCC Channel Finder
The FCC Channel Finder has been updated. The new tool is redesigned from what we had in 2013. Using the "Basic" option, the tool shows only the channels that may be available while the "Detailed" option shows all 100 channels and the stations that prevent the channel from being used. While this tool can be used to determine available channels, REC warns about depending on the tool for channels that require a second-adjacent channel waiver. Second-adjacent waivers require a technical study that shows a lack of interference. The FCC has specific requirements for these studies. Please use REC Networks or a consultant of your choice for applications requiring these waivers.
NOTE: Do not use the "Vacant Channels" search at Radio-Locator.com to determine LPFM channels. This tool is for consumer devices and does not follow the §73.807 rules.
Major Modification of Existing LPFM Stations
Normally, the FCC only allows existing LPFM stations to make the following minor modifications at any time:
- Channel changes that involve a frequency change of +/- 0.2, 0.4, 0.6, 10.6 or 10.8 MHz; or upon a technical showing of reduced interference, to any channel.
- A move of transmitter site of up to 11.2 kilometers, or longer if it can be demonstrated that there is 60 dBu service contour overlap between the current and proposed LPFM facility, or longer if the station is proposing to co-locate with a time share partner.
Any other change must be done as a major change. For this upcoming window, the FCC will not accommodate major changes, per se. Instead, LPFM stations needing to make a major change should apply for a new station at the new location/channel. In that application, the certification questions and attached exhibits must clearly state that the applicant is already the licensee of an LPFM station and that prior to the LPFM station engaging in program test operations at the new location, they must divest their current LPFM station, either through cancellation of the license or assignment of the license. These LPFM applicants will compete at the same level of new construction permit applicants (which is no different than if we had major changes in this window).
As this type of modification requires a change in facility ID number, LPFM stations that were clients of REC will have their spend recognized with the change in facility ID number. A new myLPFM account will have to be created for the new station. REC client LPFM stations that are granted this "major like" modification should contact REC to assure that our relationship is linked to the new facility ID number.
Organizations with 2021 NCE Window pending applications or pleadings
An organization that has either a pending new station construction permit application from the 2021 NCE-FM Filing Window where no decision has been made or a dismissed NCE-FM application where a Petition for Reconsideration or Application for Review is still pending may still participate in the 2023 LPFM Filing Window.
Organizations in this situation must include an exhibit that acknowledges the other application, lists the information about that application, such as file number and community of license.
The divestiture statement must also include language that authorizes the Media Bureau to dismiss the pending NCE FM application in the event that the LPFM application is granted and if the NCE application is granted first, the applicant authorizes the Media Bureau to dismiss the LPFM application.
In the "Legal Certificiations" section of the LMS application, make sure the yes/no answers are properly filled out.
Snapshot Date for Establishing Points and Comparing Applications
The snapshot date for this window is November 8, 2023, the last day of the window. For the Established Community Presence point, an applicant is qualified if their organization has been active within 20 miles from the transmitter site (10 miles for Markets 1~50) continiously from November 8, 2021 to November 8, 2023.
Fourth advisory (6/24/2023)
On September 22, 2023, the Federal Communications Commission had announced through Public Notice that the filing window for new LPFM stations will be from 12:01AM EDT, November 1, 2023 through 6PM EDT, November 8, 2023.
Pursuant to §73.807 of the FCC Rules, authorized FM and FM translator stations, applications for new and existing FM and FM translator stations filed prior to the release of the this Public Notice, authorized LPFM stations, LPFM station applications that were timely-filed within a previous window, vacant FM allotments and foreign FM allotments must be protected. (See sixth revision above for an update)
We do not expect any actions by the FCC to codify rules as a result of any activity in MB Docket 03-185 prior to the opening of the window. As such, LPFM applications will be required to protect full-service TV, low-power TV and TV translator stations operating on RF Channel 6 pursuant to §73.825 of the Rules. There were changes in the rules and policies regarding Channel 6 in 2019 which allows short-spaced LPFM applicants to seek concurrence from the affected Channel 6 station to waive the minimum distance separation requirements or a contour study, pursuant to §74.1205 (the FM translator Channel 6 rule) can be used to demonstrate a lack of intereference. If the latter is used, the affected Channel 6 station(s) must be notified. The Channel 6 rule only applies to LPFM stations proposing operation on Channels 201 through 220 (88.1 to 91.9 MHz).
We do warn that while LPFM stations will not be required to protect any full-service FM applications filed on or after July 31, 2023, those applications will continue to be accepted and may result in interference if/when those facilities are authorized and constructed.
We are not sure yet whether the FCC will announce a filing freeze for FM translator applications prior to the opening of the window. Full-service FM stations will be able to file prior to and during the window period.
Applications will be filed in LMS.
Once we have more information, we will release an update to this Advisory Letter. For more information about the LPFM service, please view the wide array of information available at the REC Networks website. If you want to check for potential LPFM availability and to have REC handle an LPFM application, please visit https://lpfm.app.
Existing LPFM licensees can use this filing window for major changes to their facility. A major change is one where the location of the station is moved more than 11.2 km away and there is no 60 dBu contour overlap between the current and proposed facility. It is also used for a channel change of more than 1, 2, 3, 53 or 54 channels (0.2, 0.4, 0.6, 10.6 or 10.8 MHz) and a showing of reduced interference cannot be made. Major change applications will be treated the same as applications for new stations and will compete in the point system in the event of mutual exclusivity. If the major change applicant is unsuccessful in the filing window, their already-authorized facility will remain.
Third advisory (9/12/2022)
On September 12, 2022, REC Networks had announced that they will start accepting show of interest requests from organizations wishing to participate in the next LPFM filing window. Even though the FCC has announced previously that following the NCE window there would likely be an LPFM filing window, the FCC has not announced any dates. We continue to anticiapte a 2023 filing window for LPFM. Those who are interested in having REC assist them in the next LPFM filing window should visit our Show of Interest website: https://lpfm.app. More information, including terms and conditions of REC service offerings are available at that website.
Second advisory (8/18/2022)
REC Networks has been fielding a considerable number of inquiries regarding the next filing window for new LPFM stations. This updated Advisory Letter will address the current status of the next LPFM window. As previously mentioned, the FCC did state in the past, the LPFM window is expected to follow when processing of the 2021 Noncommercial Educational (NCE) filing window has calmed down. The FCC Audio Division staff is very limited and in addition to LPFM, they also work on all other radio broadcast services (AM, full-power FM, FM translators and FM boosters). Since the close of the NCE window in November 2021, they have performed four Threshold Fair Distribution Analyses to resolve 63 groups (including sub-groups) of mutually exclusive (MX) applications. They also made two decisions based on Tribal Priority. The FCC also settled 5 disputed MX groups determined in the Fair Distribution Process. These decisions are handled entirely by the Media Bureau and do not require full Commission involvement.
For MX groups where Fair Distribution Analysis is not used, the FCC uses the point system. The comparison of the applications using the point system is considered a "hearing" under FCC rules so therefore, the Media Bureau must prepare all of the information and then it must be circulated to the four FCC Commissioners for an up-vote. Point hearings are a little more complex as additional research is needed to verify that all documents are in order and that claims of population and land area are correct. They are also more vulnerable to objections. So far, the FCC has already conducted one point system hearing consisting of 27 MX groups. After the 2007 NCE Filing Window, the point hearing decisions normally came out about one to two months apart from each other and the number of MX groups evalulated varied between 24 and 59.
Currently, there remains 5 MX Groups that may be eligible for Fair Distribution, one of which is Tribal Priority and 65 MX groups (including sub groups) that will require a point hearing. Our general take on this is that it is very likely, especially given holidays and other Audio Division priorities, which competes for staff time, we will likely see two more point hearings this year. Depending on how many groups they want to take on in these hearings, two hearings may be able to sweep up the remaining pending groups. However, it may be possible that an additional hearing may be needed in early 2023.
It is also important to note that at this time, we are still awaiting an outcome on MB Docket 03-185, also known as the "Franken-FM" proceeding. A part of that proceeding deals with the protection that FM facilities (full-power, LPFM and FM translator stations) must provide to TV Channel 6 stations now that the entire country, including low power TV stations have transitioned to digital. REC Networks and National Public Radio are both supporting an elimination of these protections on Channels 203~220 (88.5~91.9) but retaining them on Channels 201 and 202 (88.1 & 88.3) due to the adjacent channel relationship with the Channel 6 spectrum from 82~88 MHz. If the FCC does provide this relief that we are asking for, this will open some additional opportunities for new LPFM stations in certain parts of the country where full-service and low-power TV channel 6 stations currently operate. Over the next couple of months, REC plans to engage in ex parte communications with Media Bureau and Commissioner staff in regards to this and to express our concern about the timing of this rule change on the timing of the next LPFM window. Because of the larger benefit that opening a new LPFM window will provide, we do not want to see 03-185 delay the LPFM window. At this time, can definitely rule out an LPFM window in 2022. In order to assure that as much work is completed on the NCE window, including resolving objections to tentative selectees in point hearing groups, we are still pushing for an LPFM window in the early second quarter of 2023, with a first notice hopefully coming out in the first quarter. Again, other unexpected activities, such as an FM allotment auction, may get in the way. The FCC was going to hold Auction 106 for FM allotments and revoked AM construction permits on April 28, 2020, but that auction was postponed due to COVID and performed as Auction 109 on July 27, 2021. The previous Audio Division service auctions were Auctions 99 and 100 for AM Revitalization FM translators in 2018 and 2019 respectively, and the last full-power FM auction, Auction 98, was held in 2015. Since the last FM auction was held only a year ago, it is unlikely that another one would get in the way between now and an LFPM window, but we must always prepare for it.
In the fourth quarter of 2022, REC Networks will be undergoing IT work to support a future LPFM filing window through the redevelopment of availability checks and other supporting systems. It is our hope that by December, 2022, we will have a "show of interest" system set up where users can check for potential yes/no availability and then make a show of interest to REC Networks to have us handle the application at the time that it is done.
REC does advise all prospective LPFM licensees to assure that your organization is already registered with the Secretary of State in any state as a nonprofit corporation and to insure that all annual reports and any annual fees that the state may require are paid up. The FCC will not license an organization that is dissolved, lapsed or delinquent. In most cases, the state will reinstate inactive corporations retroactive to when they went delinquent. The FCC will not license LPFM stations to individuals, partnerships, for-profit LLCs or for-profit corporations. For unincorporated associations that can clearly demonstrate that their association was active at the time of the window may apply, but it is a complex process that, in addition to REC services, also requires the intervention of an attorney licensed to practice in your state in order to testify to the specific unincorporated assocation laws in your state.
Once again, it is our hope that the LPFM window will take place in the second quarter of 2023, but it may happen sooner or later. Following the LPFM window, REC will be pushing for a filing window for new FM Translators in the reserved band (88.1~91.9 MHz). There has not been a window for these stations in over 20 years. It is also likely the FCC may also hold a translator window for noncommercial and commercial applicants in the non-reserved band (92.1~107.9 MHz). REC is currently developing a plan to assure integrity in the licensing system by preventing speculation by applicants in the trafficking of construction permits like what took place following the 2003 "Great Translator Invasion" filing window.
Once more information is available on the next LPFM window, we will issue a third revision to Advisory Letter #10. We advise all parties interested in participating in the next LPFM window to stay tuned to REC Networks at recnet.com as well as on our Facebook page https://facebook.com/recnet.
First advisory (5/29/2021)
In this Advisory Letter, we provide notice that the Federal Communications Commission is definitely planning to schedule a filing window for new LPFM construction permits and major changes to current facilities. This comes as a result of statements made in an Order on Reconsideration, which as of May 27, 2021 was on a circulation draft and therefore will be voted on by the full Commission on or just before their next scheduled open meeting on June 17, 2021. We note that this document deals with two reconsideration petitions filed in MB Docket 19-193, but as the Commission had noted in the document and Acting Chairperson Janet Rosenworcel had mentioned elsewhere, the resolution of these two Petitions for Reconsideration will pave the way to the next LPFM window.
The next LPFM window will take place sometime after the FCC holds the full-service noncommercial educational FM filing window, scheduled for November, 2021. More information about that window can be found in REC Advisory Letter #2. We currently do not have a date for that filing window. We will announce that in a subsequent Advisory Letter.
Upcoming filing freeze affecting secondary facilities
Prior to the opening of the LPFM filing window, the FCC may declare a spectrum freeze to assure that the spectrum remains static so new and major modified stations could be planned. Normally, this will mean that during the freeze that no applications to modify existing LPFM stations nor FM translators will be accepted. Applications such as license to cover a previously granted construction permit as well as administrative applications involving no modification of the physical facility will also be accepted. Existing LPFM stations should plan their modifications prior to this freeze (which is normally 30 or more days prior to the open of the window). The freeze will be lifted the day after the filing window closes. Primary (full-power) FM stations would not normally be subject to a freeze for LPFM activity and will be allowed to file during the freeze and the window, however, stations that do so will not be protected from LPFM applications filed during the window.
More information about the filing freeze that will run from September 1~November 8, 2023 can be found in REC Advisory Letter #19.
What can be filed prior to and during a filing freeze and during the window
FCC rules currently define a minor change as a move that is less than 11.2 kilometers or upon a contour study a move beyond 11.2 km when a contour study shows that the 60 dBu service contour of the current LPFM facility overlaps the 60 dBu contour of the proposed facility. As mentioned above, the FCC is not specifically accepting major modifications in this window. Instead, applicants should file for a new LPFM station and include documentation that acknowledges the current LPFM station and pledges to divest that LFPM station prior to being allowed to turn on the transmitter at the new location. A minor change is also defined as a change in channel where the proposed channel is 1, 2, 3, 53 or 54 channels separated (+/- 0.2, 0.4, 0.6, 10.6 or 10.8 MHz). A minor change can be done to any channel if a contour study can demonstrate that the arriving interfering contours on the proposed channel are weaker than those on the current channel (thus a reduction in interference). Any modified facility must continue to meet the distance separation requirements outlined in §73.807 of the rules and any station proposed for 88.1~91.9 must also meet §73.825 requirements to Channel 6 low power and full power TV stations.
During the filing window, an LPFM station may file for a move of over 11.2 km (where there is no overlap), even if that move is hundreds of miles away. During the filing window, an LPFM station may request a “non-adjacent” (not 1, 2, 3, 53 or 54) channel without the need for a technical showing of reduced interference. Again, all §73.807 and §73.825 distance separation requirements must be met. No minor changes may be filed however license applications to cover granted construction permits and administrative applications not involving the modification of the physical facility may be filed.
Major change applications are subject to competing applications and the point system.
Major change applications will be filed like new stations but with a divestiture pledge. See above.
If an LPFM station is modified as a major change during the filing window and there are conflicting applications (such as new construction permits) filed where the multiple applications can’t be simultaneously granted, the facility (either a major change to an existing LPFM or an original construction permit application by a new applicant) will be considered mutually exclusive and will follow the FCC’s selection process outlined in §73.872 of the rules which includes the use of the point system. If a major change application ends up not being the tentative selectee, then the existing LPFM license will remain in force. If granted, the existing LPFM station will remain authorized to broadcast until program testing begins on the new station. LPFM stations are unable to simultaneously both the current station and the recently authorized changed facility. Existing LPFM stations making major moves in the LPFM filing window must continue to meet the localism requirements, which for educational LPFMs would be either the headquarters or a campus within 20 miles of the transmitting antenna (10 miles in markets 1~50 or at least 75% of the organization’s board members reside within 20 miles of the transmitting antenna (10 miles in markets 1~50).
The LPFM point system
LPFM applications, including major change applications filed during the filing window will be subject to the Commission's point system for mutually exclusive applications. Points are given based on the following:
- Local presence (1 point) – applicant has been established for at least two years prior to filing and either the organization or 75% of the board members are located within 20 miles of the proposed antenna site (10 miles for major media markets 1 through 50).
- Main studio pledge (1 point) – applicant pledges that if the permit is won on points, they will maintain a publicly accessible main studio that is open at least 20 hours per week.
- Local programming pledge (1 point) – applicant pledges that if the permit is won on points, they will carry at least 8 hours per day of programming that originated from within 20 miles of the transmitting antenna (10 miles for major media markets 1 through 50).
- Bonus point (1 point) – A bonus point is given for applicants who can make both the main studio and local programming pledges.
- Diversity in ownership (1 point) – a point can be claimed if the LPFM station is the applicant’s only media holding. A major change LPFM applicant will be able to claim this point because even though the applicant already has a media holding already (the LPFM station), that station will be moved and they will not be able to operate both facilities simultaneously.
- Tribal priority (1 point) – a point can be claimed if the applicant is a tribal enterprise and that the proposed station is located on tribal land.
Major change applicants will be permitted to aggregate points with new entrant applicants to allow for voluntary time sharing and if a major change applicant prevails in a FCC review of the points (such as when no agreement can be made), the LPFM would be subject to the main studio and local programming pledges (if they claimed those points) and may be prohibited from assigning their license to another organization for a period of 4 years following the grant of the license covering the construction permit. Major change applicants may be subject to involuntary time sharing, where if a voluntary agreement is not reached in the future, could result in a non-renewable license.
REC's services, system support and handling of the LPFM filing window
REC Networks is currently accepting intake for prospective LPFM broadcasters.
Representatives of qualifying nonprofit educational organizations and institutions can visit https://lpfm.app to read about the service, check for availability and submit a show of interest for REC to handle their application.
Representatives of public sector entities such as public safety agencies, public colleges and universities and Tribal entities should contact REC Networks at 202 621-2355 for assistance.
Additional information for new entrants
REC reminds new entrants who wish to file in the LPFM filing window, that prior to filing, their organization must be registered with a state Corporation Commission or similar government entity as a non-profit corporation. The FCC will not license LPFM stations to individuals, partnerships, for-profit private corporations, for-profit stock corporations, LLCs or any other for-profit entity type. The organization must be an existing educational organization with an educational purpose and construction permits will only be granted to organizations that can make a satisfactory showing that the proposed radio station will advance the organization’s educational program. The organization is not required to be a §501(c) non-profit charity.
For new entrants, please note that this REC Advisory Letter series mainly addresses updated information of interest to existing LPFM stations and does not normally address issues directly affecting new entrant applicants. Information for new LPFM applicants can be found on the REC website at this URL:
- First advisory: May 29, 2021
- Second advisory: August 18, 2022
- Third advisory: September 12, 2022.
- Fourth advisory: June 24, 2023
- Fifth advisory: July 31, 2023
- Sixth advisory: August 8, 2023