I just learned that there is a "Table of Allotments" petition filed with the FCC which could impact our LPFM station. What can be done?
First, a quick explanation about the FM Table of Allotments. For full-service commercial FM frequencies (92.1~107.9), the FCC uses a method of assigning "allotments" to specific communities. This is part of the FCC's mandate that licenses are fairly distributed among communities. In order to amend the Table to assign a particular channel (and station class) to a particular community, the proponent must file a Petition for Rulemaking with the FCC as well as a construction permit application. The fee involved is in the four-figures. The proposed allotment must specify a set of reference coordinates for the community involved and must place a 70 dBu contour (based on distance only) over a significant portion of the community being requested. The proposed allotment must meet all required distance separation requirements (co-channel, first, second and third adjacent as well as intermediate frequency) to all other primary facilities. Allotments that propose to place a 70 dBu contour over at least 50% of an area that is designated by the US Census Bureau as an urbanized area have further requirements to demonstrate that the community does not have any connections with the larger urbanized area. Once the FCC determines that the proposal is acceptable, the FCC will issue a Notice of Proposed Rulemaking to collect comments as well as counterproposals for allotments in other communities if it can be shown that such a counterproposal would be a preferred allotment under the FCC's Fair Disribution policies. After the comment period, the FCC will then issue an order to amend the Table to add that allotment to that community. This does not mean that the person who filed the Petition for Rulemaking will get the station. Instead, it will mean that the allotment will be considered vacant and will be available for bidding in a future FM auction.
Since LPFM is a secondary service, requests for new allotments are not required to take existing LPFM stations into consideration. This could mean that a request for a new allotment (sometimes referred to as a "drop-in") may directly impact an LPFM station that has been operating for years.
A new drop-in allotment does not mean instant doom for an LPFM station causing the LPFM stationt to go off the air or have to find another channel the day that the allotment is approved by the FCC, but it does serve as a warning that displacement will eventually take place. It is important to remember that this is only an allotment and there is still the auction process. The FCC normally has one or two FM auctions per year, so nothing will take place before then. Even once the winner of the auction is declared, they still have to file a construction permit application to propose the actual technical facility. Once that application is granted, they will have three years to build the station.
What happens in the meantine? Once a new allotment is proposed, even if it has not been approved yet through an Order, it will appear in the FCC database as an FM station operating from the reference coordinates in the original Petition. LPFM stations are required to protect allotments. If the allotment creates a new short-spacing with an LPFM station, this means (at the time when the allotment is requested), that the LPFM station can continue to operate, but any future minor modifications must protect the allotment. Thus meaning that you can move further away from the allotment, but you can't move any closer (since distances are rounded to the nearest kilometer, a minor move to a location slightly closer to the allotment may still be possible).
What should an LPFM station do? If you have an absolutely great channel to change to, you can go ahead and file for a minor modification to change channels. Because the allotment is considered as "interference", you may be able to request a change to any available channel (one that meets the LPFM distance separation requirements) stating that you are being displaced by the allotment. Once that application is granted, you will have up to three years to do the channel change. If the other channels available are not that great, but would be a place to set up shop, you can consider holding off, however, since secondary spectrum is on a first come-first served basis, this is risky as another LPFM or a translator may request that channel. Either way, you must have a game plan to get ready for a possible displacement.
Sometimes, allotments can change. Once the allotment is awarded through auction, there is a possibility that the grantee may decide to move the station to yet another community. In some cases, this may reduce or eliminate the risk for interference or displacement.
Can we fight the allotment? Fighting the allotment may not work. Simply put, LPFM is secondary. We are only "guests" on the dial and we must give way when spectrum is needed for a full-service FM facility. Filing opposing comments to the allotment or even to the character of the petitioner will get you nowhere. It is important to remember too that it is not always the petitioner who will get the construction permit grant. If there is a challenge for the allotment, it will be settled through competitive bidding and a different entity may outbid the petitioner. The petitioner gets no specific preference in the auction for requesting the allotment.
Do not encourage your listeners to oppose the allotment in comments. Table of Allotments proceedings are considered "restricted ex parte" proceedings. This means that any comments that are received in the proceeding must be formal comments. This means that the commenter must follow specific rules, including serving a copy of their comments upon the petitioner and noting in their comments that their pleading has been served upon the petitioner. This also means that the comments must be filed during the designated comment period. Any comments that are received outside of the pleading cycle (the dates for comments and reply comments) and/or otherwise do not meet the attributes of a formal comment filing (such as a letter from a listener) will be considered an unauthorized ex parte presentation and will be disregarded by the FCC, and could expose the commenter to potential sanctions (while the sanctions are unlikely). If the LPFM station wishes to make comments, they should do so following the formal processes. This could include attaching "petitions" or letters from listeners. As long as this filing follows the rules for restricted proceedings, it will be included in the record and considered. But again, since LPFM is secondary, the chances of getting an allotment denied are a substantial longshot. The only method that could work is if you can show that the community being requested is not truly a community for allotment purposes. There are specific criteria which can include the community being listed in the Census (even as a Census Designated Place), the community name is one that no one directly attributes themselves to (are there any businesses that have the community name in their business name?). At one time, the FCC did not charge a fee for allotment proceedings and REC was very successful in quashing frivilous allotments. Since there is a 4-figure fee now, petitioners are much more careful here. Contact REC and we can do some checking. Since REC is not a law practice, we cannot file comments or other similar pleadings on behalf of LPFM stations, however based on the situation, we may decide to independently file opposing comments against an allotment on behalf of the Advocacy (REC Networks).
What will happen after the new full-service station is built? When that happens and you are still on the same (or first-adjacent) channel, your station may experience substantial interference, or it may be possible that your station may only experience slight interference that is tolerable. Forced displacement of an LPFM station is addressed in §73.809 of the rules and normally happens if:
- The interfering contour of the LPFM station overlaps the acutal 70 dBu contour of the full-service FM station.
- The interfering contour of the LPFM station overlaps any point of the corporate limits of the designated community of license (even if there is no 70 dBu overlap).
- Any location within the community of license that is expected to be in the 60 dBu service contour of the LPFM station.
Keep in mind, this §73.809 criteria is not just for drop-in allotments for commercial stations but also applies to full-service stations that decide to move to a different location or upgrade their facilities. It will also apply in cases of new noncommercial educational FM stations on 88.1~91.9. This is why monitorong the application activity in fcc.today and periodically checking the Encroachment Report in myLPFM are both very important. Also, any request for an LPFM station to be displaced must be initiated by the full-service station. The FCC will not automatically displace an LPFM station. §73.809 does go through the process. It is also important to remember, do not expect or demand that the full-service station fund or otherwise provide any assistance in moving the LPFM station to a displacement channel and/or location. They are not required to. Please do not bully the full-power station. They have the right of way here since LPFM is secondary.
If you think your organization's station is in an encorachment situation, please contact REC Networks for assistance.