New LPFM, NCE and Public Notice rules take effect October 30, 2020 as changes have received OMB approval.

In Thursday’s edition of the Federal Register, the Federal Communications Commission has announced that it has received approval from the Office of Management and Budget (OMB) on various rule changes involving information collection and/or changes to forms.  This approval paves the way for the filing window for new noncommercial educational stations expected some time in 2021 and the next window for new Low Power FM (LPFM) stations, anticipated in 2022. 

Public Notice Rules – MB Docket 17-264

The FCC has amended §73.3580 and related rules regarding public notices as well as amended §73.801 to confirm that the public notice rules also apply to LPFM stations.

With the changes, the traditional methods of doing public notices in the newspaper have been replaced by the use of websites instead.  This will mean for the next NCE and LPFM filing windows, applicants will only need to place a public notice (using text specified in the rule) on their organization’s website.  If they do not have a website, then the notice can be placed on a publicly accessible website such as a city government, local newspaper website, so-called “community bulletin board” websites or with the state’s broadcaster association’s website. 

For renewals, the change means that the “pre file” announcements have been taken officially off the books (the FCC has waived them since the outbreak of COVID-19).  “Post-file” announcements will now be broadcast at least once per week for a period of 4 weeks but at least 6 announcements must be carried in total.  Two announcements can’t be made on the same day.  Station announcements must be made between 7 AM and 11 PM local time, Monday through Friday.  The first announcement must be made within 5 days of the application appearing as accepted for filing in the FCC’s “Broadcast Applications” (CDBS) or “Applications” (LMS) public notices.

For LPFM renewals, the new renewal announcement text is the following:

On [date], [organization’s name that appears on the license], licensee of [call sign], [station frequency], [community of license], has filed an application with the FCC for renewal of license.  Members of the public wishing to view this application or obtain information about how to file comments or petitions can visit www.fcc.gov/stationsearch, and search in the list of [call sign]’s filed applications.   (Remember to include the -LP as part of your call sign.)

Directional Antennas - §73.816

The new directional antenna rules for LPFM will be in effect on October 30.  The new rules will permit LPFM stations to specify a directional antenna for any reason.  Despite having a directional antenna, an LPFM station must continue to protect other FM facilities (full-service, LPFM and translators) using distance separation.  LPFM stations in the reserved band (88.1~91.9) may use their directional antenna to demonstrate a lack of contour overlap with a Channel 6 TV station.   The new rules now fully permit LPFM stations near the Mexican border to operate their maximum power in directions away from the border while still honoring the international agreement which limits LPFM stations within 125 km of Mexico to 50 watts ERP. 

LPFM stations proposing and granted the use of directional antennas for reasons other than traveler’s information stations, second adjacent channel waivers and international agreements, must submit, with the license to cover application, a proof of performance for the antenna design and certification from a surveyor or similar person that the antenna was constructed as specified on the permit.

Silent Stations - §73.850

While it is general practice for LPFM stations to notify the FCC when their station goes silent, it is not always done and there has been no rule to support it.  The FCC has closed up this loophole by requiring that LPFM stations follow the same rules that other broadcast stations have been subject to.

LPFM stations that are off the air for a period exceeding 10 days must file a silent notification with the FCC.  LPFM stations anticipating downtime for at least 30 days must file a request for special temporary authority (STA) with the FCC to remain silent.  An extension request will need to be filed about 6 months after grant of the original silent STA.  Stations not transmitting signals for at least 365 consecutive days may be subject to license cancellation pursuant to §312(g) of the Communications Act.

LPFM Station Moves - §73.870

Under the rule changes, LPFM stations can now be moved up to 11.2 kilometers (about 7 miles) away without a waiver request.  Moves further than 11.2 km can only be done if the request is accompanied by a contour study showing 60 dBu overlap between the existing facility and the proposed facility.  Of course, the new location must meet distance separation requirements for the channel mentioned.  Existing FCC rules apply if the new site requires a non-adjacent channel, thus requiring a reduced interference study.

Assignments and Transfers - §73.865

Assignments (transferring a station to a different nonprofit organization) for LPFM stations will be making some substantial changes. 

Until this rule change, the consideration that the “buyer” of an LPFM station can give to the “seller” of an LPFM station was limited to the depreciated fair market value of the equipment.  With this rule change, consideration is limited to the legitimate and prudent expenses of the assignor or transferor. This includes costs reasonably incurred in obtaining and constructing the station (e.g. expenses in preparing an application, in obtaining and installing broadcast equipment that will be assigned or transferred) but cannot include various costs incurred such as rent, salaries, utilities, music licensing fees, etc. 

Granted original construction permits may be assigned may be assigned after 18 months of the grant.  Under this rule, the original grantee can, for the first 18 months to attempt to build the station and if their organization is unable to do it, they can assign the license to a different organization. 

LPFM stations that had original construction permits, formerly in MX groups that were decided based on a comparative (point) review will have a 4 year holding period for which, if the station wishes to assign to another organization, that other organization must have been able to qualify for the same or more points if they had filed in the previous filing window.  If both organizations have a similar score, the new organization must have a “locally established date” that is older than the one of the LPFM licensee wishing to assign the authorization.   It is our understanding that this may not impact 2013 window licensees.  Consistent with the 2007 NCE window, we are anticipating that these provisions will be placed as conditions on the license.

Board changes that involve a sudden change to at least 50% of the members or gradual changes that take place over time but then exceed 50% may now be reported to the FCC, using Form 316, after the fact.  The FCC needs to be informed within 30 days of the triggering board event. 

Mutual Exclusivity/Time Sharing - §73.872

For the next LPFM window, the number of applicants in a time share agreement will be limited to three.  Applicants may also enter into a time share agreement and aggregate their points without having to wait for the MX remediation window.  The rules now call for a “do over” window in the event that a tentatively accepted time-share agreement has been dismissed, thus opening a second 90 day window for MX group members to reach an agreement.

NCE MX Changes

For the upcoming 2021 filing window for new NCE full-service stations, the following changes to the comparative review process will be made:

• To claim the “local applicant” points, applicants are no longer required to have a “localism provision” in their governance documents.  They will still have to document that they have been local for the past two years.
• To claim the “diversity” points, applicants are no longer required to have a “diversity provision” in their governance documents.  (NOTE: For the purposes of the FCC, “diversity” refers to only owning one station in the same local area thus making the ownership in the area more diverse.)  Applicants that claim the diversity points and are subject to a comparative review will be prohibited from obtaining another station where there is 60 dBu overlap for a four-year period.
• Divestiture policies for pledging to divest another NCE station will be the same as those where the applicant is proposing to divest an LPFM station.  This will come into play where the applicant is already licensed with a station, propose a new station in the window and that station has contour overlap with the current station.  In order for that applicant to be able to claim the diversity points, they must disclose the other station and then their construction permit is conditioned that prior to program test (turning on the transmitter), the grantee of the construction permit must have divested themselves of the other station (either through assignment to another qualified nonprofit or surrender of the other license to the FCC).  A similar policy is done for NCE applicants who are LPFM licensees who are able to apply for an NCE station and comply with the LPFM ownership rules (by divesting their LPFM station prior to program test).
• A third “tie-breaker” scenario has been added that will give priority to applicants who participated in the 2007 NCE filing window, have been consistently active and had their original application dismissed on points during a comparative review. 
• NCE tied applicants unable to reach a time share agreement have a mandatory time share policy.  This time share policy has been fine-tuned to more closely mirror the policy for LPFM stations.
• On applications that are granted through a comparative review using §307(b) priority (first or second educational service to a particular area), minor changes are now permitted in the first 4 years.  A minor change can drop first or second service population in on area also long as it is offset with first or second service population in another location.

Our systems will be updated over the next few days in order to accommodate all of these rule changes. 

If you have questions, please contact REC.