19-3 may be "writing on the wall" for a window but there's much more work to do

Today, the FCC unceremoniously adopted the Report and Order in MB Docket 19-3.  This proceeding has made some changes to the way that mutually exclusive (MX) or competing applications filed in future full-service noncommercial educational (NCE) and Low Power FM (LPFM) stations will be handled.  The changes related to this include relaxation of required information on governance documents for NCE applicants, some harmonization of the NCE time share process with LPFM, additional priority for NCE applicants that filed in 2007 or 2010 but lost out on points and for the next LPFM window, additional protections to prevent gamesmanship through “point stacking”.  The order also indirectly addressed the Cesar Guel mass filing issue through requiring certification and a contact to demonstrate site assurance, make it harder for applicants with a “pirate past” from being able to “change the past” to circumvent Section 2 of the Local Community Radio Act (LCRA) and put in provisions to address the issue of “failing stations” that we saw following the 2013 LPFM window. The FCC also streamlined the tolling (extension) process by automatically tolling permit expiration dates under certain circumstances for which the FCC is the gatekeeper of.  Finally, the order also extended the construction period for new and modified LPFM stations from 18 to 36 months including an automatic extension to all pending applications. 

Now with all of that, you may think we are ready for the next filing windows, especially since 19-3 was pretty much writing on the wall for a filing window.  Not quite yet.  The Media Bureau at the FCC has a few things they need to work through before we can get to windows.  For some of these issues, we will want to wait for them before we have another window.  Let’s look at each of these items.

MB Docket 17-264 – December, 2019 ~ October, 2020?
In the early 60s following the “payola” scandal in radio and the “rigged quiz show” scandal in television, Congress passed a set of laws that addressed these issues as well as place new requirements for broadcasters to be more “transparent”.  Over the past nearly 60 years since this law was passed, many of the provisions were legislated out. 

One provision that has survived is a requirement that broadcast stations make public notice upon filing certain application types.  Congress left it up to the FCC to determine the medium and frequency of messages.  The regulation that implements this law is §73.3580 which calls for the placement of multiple public notice messages in the local newspaper.  This is the same rule where you find the requirements for the messages that stations must announce during the license renewal period.  When the FCC created LPFM in 2000, it never included a reference to §73.3580 and the FCC has ignored this issue where it comes to LPFM even though it is in statute, until this year when the Audio Division informally informed the LPFM community that they need to follow the statute and run the renewal announcements.

When the FCC implemented this rule in the 1960s, the newspaper was still the official journal of the community and the most authoritative means of mass communications.  Almost everyone read the paper and while they were flipping through the paper, they would run across the legal announcements where the broadcasters would place their public notices.  A lot has changed in the newspaper industry with large corporate owners and declining readership due to other forms of mass communications (mainly, the internet) resulting in local papers either shutting down or merging into larger publications.   As a result, we have fewer newspapers but with larger circulations.  When a newspaper has a larger circulation, it can command higher prices for advertising.  Broadcasters had already come to the realization that these ads are expensive and no longer effective and as a result, the FCC is looking at changing the public notice rules to replace newspaper advertising with on-air announcements and the use of websites. 

The use of websites (including sites dedicated to broadcast public notices as proposed by REC) will greatly reduce the costs of advertising and thus would reduce a barrier for new entrant NCE and LPFM applicants.  Without the rule changes proposed in 17-264, we would many NCE (and now LPFM) applicants being bitten for over $1,000 for in some markets for advertising for something that a majority of Americans won’t even take notice of. 

Because of the significant cost savings to new entrants, we must wait until we have a Report and Order on MB Docket 17-264 before we can even think about filing windows. Reply comments were due on December 2, 2019.  If this goes about the same schedule as 19-3 did, we should have a Report and Order in about October, 2020. 

FM Auction 106 – April, 2020 ~ July, 2020?
The FCC is getting ready to auction off over 100 new commercial FM construction permits.  Some of these permits were never won in previous auctions or they were won and the winners ended up not building them.  While we have a general idea where these new stations will be and on what channel, we still need to take into consideration that the auction itself as well as post auction activity will consume scarce Media Bureau resources.  While this is a commercial auction, some modifications on channels 221, 222 and 223 (92.1, 92.3 and 92.5) and on intermediate frequency channels (10.6 & 10.8 MHz) may impact future channel availability in the 88.1~91.9 MHz reserved band.  The auctions themselves are fairly quick and take about 3 months to complete.  Even after that, there still may be some subsequent application activity.  In the previous FM auction, Auction 98 in July, 2015, 102 of 131 construction permits were auctioned off. 

While the Auction will have a minor impact on NCE and even LPFM availability (since LPFMs are already required to protect these unbuilt auction allotments), it will have an impact on resources.  Therefore, we need to be patient and understanding with staff on this one.

LMS Problems – September, 2019 ~ ??
Let’s face it.  LMS for FM radio is broken.  Since its launch, the system has had growing pains and it is uncertain if there is even functionality built for original construction permits since there is no facility in LMS to accept an application for a new Class D station in Alaska.  The Media Bureau says that they have been working on these problems and hopefully soon they will be fixed.  Until these issues are fixed or under some control, it is unlikely that the FCC is going to want to open the filing system for potentially thousands of new NCE and LPFM applications.

OMB Approval of Schedules 318 and 340
Whenever the FCC makes a change to a government form, such as the 318 which is used by LPFM applicants and the 340 used by NCE stations; the change will have to be approved by the Office of Management and Budget (OMB).  This is the same process that determines those silly “Paperwork Reduction Act” time estimates for answering each question.  These forms will have to change because of the changes in the site-assurance rules in 19-3.  Once OMB approves the form, the form can go online.

TV Repack – Now ~ July, 2020
While this has minimal impact on availability for new NCE stations (as there are only 10 primary full-service TV stations on Channel 6), the TV repack could utilize resources from across the Media Bureau and not just in the Video Division.  The last areas to transition over will do so in the middle of this upcoming summer.

Prior to the NCE filing window, we want the FCC to take into consideration the type of waiver we are requesting in this rulemaking.  Specifically, we want to allow smaller towns with no local stations that are blocked from a new smaller NCE station because of stations located in urbanized areas to be allowed to waive second and/or third adjacent channels even if there is a very small amount of population in the overlap interference zone.  This is the reverse of what is known as a Raleigh waiver.  REC will encourage groups in these areas to file applications even if there is no guarantee that they will be granted.

NCE FILING WINDOW and subsequent processing – Estimated January, 2021 ~ August, 2021
With the changes in 19-3, it would only make sense to have a filing window.  Because of the overall timing of events and in order to give advance notice of any potential application freeze that would take place prior to a filing window, REC estimates that the NCE filing window will be around the beginning of 2021.  In this window, applicants mainly from suburban and rural areas will be able to apply for new NCE FM stations in the “reserved band” between 88.1 to 91.9 MHz.  Again, this date is purely speculative.

Once the NCE filing window is over, then we have a few other issues to work out before we can have an LPFM window:

MB Docket 19-193 – July, 2019 ~ April, 2020
In this docket, the FCC has proposed to make various technical changes, many of which were proposed by REC.  Most of the changes adopted in the Notice of Proposed Rulemaking will benefit existing LPFM stations such as minor moves and the use of directional antennas near Mexico in order to increase power.  The FCC is also using this docket to propose the complete elimination of requirements for FM stations to protect TV channel 6 stations to coincide with the Analog TV Sunset which is scheduled to take place on July 21, 2021.  As a result, we feel the FCC will be under a lot of pressure to get this one out in time for the sunset. While LP-250, translator relief and LPFM short-spacing were tentatively rejected, we will be asking for those items to be in a Further Notice of Proposed Rulemaking in order to prevent the delay of an LPFM window.   Based on the outcome of this proceeding, it may go into reconsideration. 

MB Docket 03-185 – January, 2020 ~ June, 2020
On December 4, 2019, the FCC has reopened this proceeding to “refresh” the record on the ability for analog channel 6 low power TV stations to continue to operate “ancillary” analog audio services around 87.7 MHz in order to be heard on FM radios in an effort to keep the continuity of these services after the analog sunset.  This issue is important to LPFM as it could impose “second adjacent” channel protections (that REC will object to) for stations on 88.1.  We hope though that this proceeding does not delay the analog sunset date.  REC will oppose an extension of the analog sunset or in the alternative, we must insist on the protections to analog TV 6 stations be lifted as of the July 21, 2021 sunset date even if these stations are still analog. 

LPTV analog sunset and subsequent NCE filing activity – July, 13 2021 ~ October, 2021
This is a date that was established as part of the channel repack proceeding on which all remaining low power TV stations on all channels must switch from analog to digital television. Assuming that the FCC upholds the elimination of the Channel 6 protection requirements in MB Docket 19-193 as of the analog sunset date, we should see an uptick of applications filed by existing full-service NCE stations in order to make changes such as increase power, directional patterns or change from vertical only to circularly polarized antennas.  Since we have asked for the NCE window to take place before the analog sunset, new local stations will have priority in areas where they can meet the channel 6 requirements to full-service stations (not LPTV) will have priority. 

Once all of these things are done, we can finally have it.

After the dust settles from the analog sunset and its NCE after-effects, we can now finally have another LPFM filing window.  Since we have endorsed the NCE window to come before the LPFM window, new NCE applicants will have their “dibs” on their channels and secondary LPFM applicants in the reserved band (88.1~91.9) will not have to worry about a subsequent primary NCE window knocking them off their channel. 

Again, these dates are all pure speculation but when you look at the big picture of what’s going on the second floor at The Portals, you can understand why we can’t have the window tomorrow.  The FCC will be reluctant to discuss filing window timelines with the public until they are ready to announce it thus to protect the sanctity of the spectrum for an application freeze associated with the upcoming filing window.

Prospective LPFM applicants should now start on the process of getting your organization’s non-profit corporate status (if you don’t have it already) and start getting active in your community.  Organizations that have local presence for more than 2 years prior to the filing date will have a points advantage in the event of mutual exclusivity. 

REC will definitely provide services for new applicants when the NCE and LPFM windows take place.  We will have more information about this after the holidays.

It is going to be some busy times ahead!