Statement of REC Networks: Informal objections filed by Prometheus, et. al. against pending FM translator applications

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Elkhart, Indiana – May 17, 2018

What happened?

Last night, a consortium representing Prometheus Radio Project, Common Frequency and Center for International Media Action (from herein, referred to as “Prometheus, et al.”) has filed nearly one thousand informal objections against virtually every pending FM translator original construction permit and modification application including short-form applications that have not been accepted for filing. 

Let’s first discuss the issues that Prometheus et al has raised in the objection.   

Prometheus et al is challenging all of these applications based on Section 5 of the Local Community Radio Act (LCRA).  Section 5 of the LCRA reads:

The Federal Communications Commission, when licensing new FM translator stations, FM booster stations, and low-power FM stations, shall ensure that--
(1) licenses are available to FM translator stations, FM booster stations, and low-power FM stations;
(2) such decisions are made based on the needs of the local community; and
(3) FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations.

Prometheus el al's position

In relation to Section 5(1), Prometheus et al raises the translator cap that was implemented in 2012, a theory that the decision on Matoon waivers (the ability to make “major” moves on FM translators to serve AM stations prior to the recent windows) was based on taking Section 5 into consideration.  They further claim that by 2014, LCRA compliance was forgotten resulting in “[a]n all-you-can eat buffet of spectrum-grabbing” that occurred “without moderation” and “no mention of the LCRA Section 5 anywhere”.  Prometheus et al states that Prometheus “timely” filed a Petition to Reconsideration on April 10, 2017 to “alert” the FCC of the “harmful results and LCRA violations from the (new) cross-service translator windows”.

Under Prometheus et al’s logic, “when processing any LPFM or translator up to the licensing stage, spectrum for future translator or LPFM must be demonstrated.”, that FM translator and LPFM usage of spectrum should approach “50-50” usage and that in metro areas, if spectrum is skewed higher towards translator usage, the FCC “must cancel the pending applications within a specific metropolitan area unless compliance is met under the law or alternatively adapt LPFM rules to allow titration of LPFM broadcast power permitting ERP and HAAT upgrade (citing REC’s LP-250 RM-11749 petition for rulemaking).

REC agrees with many of Prometheus et al's positions

It is REC’s position that Prometheus et al does raise some interesting issues that require consideration. 

The 2012 translator cap involved the limitation of pending FM translator applications from the 2003 Auction 83 window that were located in a “grid” around a metro market.  Translator applicants wishing to use a particular channel at the time had to make a showing that the channel could not be used for a new LPFM station.  Translators were permitted to change channels in the application process in order to comply with this directive.  This was to address an unexpectedly high number of translator applications that were filed in the 2003 window.  This massive abuse did cause put future LPFM opportunities in jeopardy at the time.  The use of the caps and the grids assured that there was room for the 2013 LPFM window. Approximately 2,787 applications were filed and approximately 1,431 of those applications have been fully licensed.

Section 5 of the LCRA states that when licensing new FM translators, new FM boosters and new LPFM stations that licenses must be available to translators, boosters and LPFM stations; decisions are based on needs of the local community and that translators, boosters and LPFM must remain equal in status.  The FCC did accomplish this through imposing the cap and grids in 2012 for translators and followed up with the 2013 LPFM window. 

The 2016 “250 mile move” windows were for existing FM translators including both those that were obtained in the 2003 Auction 83 window and those that were obtained beforehand (that were not subject to the caps and grids).  Since no new translators were authorized in those (2016) windows, Section 5 does not apply. 

In comments in the original AM Revitalization proceeding, REC did remind the FCC that the LCRA was still in effect and that even with the outcome of the (2013) LPFM window, translators still favor LPFM in numbers.  REC did suggest bringing back the grids and that FM translators filed during (what became the 2017/2018) new FM translator windows that translator applicants make an anti-preclusion study.   It is important to realize that Prometheus Radio Project did not file comments in MB Docket 13-249.  Prometheus did make several ex parte presentations with Commissioner’s staff that expressed support for AM broadcasters, particularly women, minority and single-station owners and argued that eligibility for the cross-service filing window be restricted to Class C and D AM stations only, a position also held by REC.

When the FCC did reach the determination that the service contour of a cross-service FM translator can not exceed the 2 mV/m contour of the AM station without an outer limit (40 miles was proposed by the FCC), Prometheus did file a Petition for Reconsideration.  The FCC currently has an Order on Reconsideration in circulation for the AM Revitalization proceeding.  It is REC’s belief that Order is based on the Petition filed by Prometheus. (REC also filed a timely Petition for Reconsideration on the original Report and Order in order to get translators for LPFM stations included in the window citing LCRA Section 5 “community need” clause.)

So, as we can see, REC and Prometheus et al are very close in agreement on the underlying issue which is that the LCRA is still in effect and that in implementing the 2017 and 2018 cross-service windows, the LCRA may have been violated.

Well intended, poorly executed

Where we have a serious conflict with Prometheus et al, was the execution of the nearly one thousand informal objections that were filed against applications, including those that were not even accepted for filing.  In their objection, Prometheus et al offers a table of translator applications that would cause a §73.807 short spacing thus preventing the LPFM station from moving closer to the translator and allowing the translator to come in as close to the LPFM station’s protected contour as possible.  Instead of filing against the translator proposals that would cause these LPFM short spacing, they decided to arbitrarily file against any translator application with a pulse, including modification applications:

  • Applications like the modification for K212AN for the Albuquerque Board of Education where a small twist of the beam from the same site resulted in an IO.
  • Applications like the two modifications for EMF in Southern California on 91.9 which would not be available for LPFM because of the TV Channel 6 rule that Prometheus has not addressed.

Overall, it’s important to realize that many of the applications that Prometheus et al filed against are not anywhere within 50+ miles of a LPFM station on co- or first-adjacent channels.

Also, if the LCRA was such an issue when the Commission first announced that there will be windows for new cross-service translators (MB 13-249, First Report and Order), why didn’t Prometheus file a timely Petition for Reconsideration at that time?  (they only filed for reconsideration in the Further (second) Report and Order.)

What Prometheus et al did is the FCC equivalent of forming a human chain by putting the brakes on the entire application process.  This brings the candor of Prometheus into question and could do damage to “Prometheus 2” (the “Prometheus” name being used by the Georgetown Law Center to fight the FCC on ownership rules).  This also brings the candor of Common Frequency into question.  Unlike Prometheus, Common Frequency is also a broadcast licensee and renewals will be starting soon.  This mass informal objection with no nexus other than the fact that these are translator applications.  This is in contrast to the REC informal objection filed against 245 applications filed by Cesar Guel that had multiple questionable similarities. 

Community Radio is more than just non-commercial stations including LPFM stations.  There are many “mom and pop” operators, especially those AM Class C stations in rural areas with tiny 2 mV/m contours that do serve their communities with local news, sports and personalities.  REC has been working closely with rural AM stations, especially in the deep south.  These are not iHeart or Cumulus.  These are stations that have been in the family for generations and with the increase in electronic devices, switching power supplies and increased interference from Cuba and IBOC, these stations are in serious trouble, even during the daytime.  Many of these stations are well distant of LPFMs on the same or adjacent channels.  What gives Prometheus et al the right to hold the livelihood of these stations hostage to promote a valid agenda using a very improper method.

REC felt that “community need” was met in the Auction 99 and 100 windows by limiting participation to AM stations that did not participate in the 2016 opportunities, be limited to one new translator and that Class C and D AM stations were allowed a head start.  By not filing a Petition for Reconsideration on the LCRA issue, Prometheus had accepted the outcome of the First Report and Order.  REC did.

REC calls on Prometheus et al to first withdraw this frivolous Informal Objection.  If they can determine that some pending applications could result in interference to listeners within the translator’s 60 dBu contour, then they should work with those impacted LPFM stations and file an individual Petition to Deny or Informal Objection.  In addition, Prometheus et al needs to participate in MB Docket 18-119 regarding translator interference and provide listener data and fight the 54 dBu outer limit that was proposed by the FCC. 

It is REC’s position that this Informal Objection filing was careless, negligent and puts several community radio initiatives, including LP-250, alternate spectrum, flexible spacing and the timing of future LPFM filing windows into serious jeopardy.

Prometheus et al, please do the right thing and gracefully withdraw this IO.

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About REC Networks:  REC is a leading policy voice supporting a citizen’s ability to access radio spectrum.  The advocacy side of REC was responsible for the writing of RM-11749, the 250-watt LPFM proposal.  Other REC advocacy initiatives include alternate spectrum for community radio expansion in areas where FM spectrum is not available, driving changes to the FCC rules to allow more flexibility for LPFM stations while remaining compliant with the Local Community Radio Act. REC serves all six segments of LPFM including cause-based organizations, public sector agencies, micro radio stations, community media organizations, secular educational organizations and faith-based organizations. REC also provides consulting and filing services for LPFM stations, FM translators (including FM translators related to smaller AM broadcast stations) and full-service FM stations.  More information at our website http://recnet.com.

Media contact:
Michelle Bradley
202 621-2355 opt 4