FCC To Uphold 19-193 Rule Changes at June Open Meeting By Denying 2 Reconsideration Petitions

The FCC has released a circulation draft of an Order on Reconsideration in MB Docket 19-193 to address two Petitions for Reconsideration that were filed following the FCC’s decision in last year's  LPFM Technical NPRM.  This item will be on the agenda for the FCC's June Open Meeting, but will likely be voted on just prior to the meeting.

One of the petitions was filed by Foundation For A Beautiful Life, former permittee of DKQEK-LP, Cupertino, CA.  FBL was seeking reconsideration of a policy decision where pending applications at the time when the new rules were enacted would be subject to those new rules.  However, if the application already had a letter decision and was being appealed through either a Petition for Reconsideration or Application for Review, the new rules would not be retroactive.  The FCC’s application of this policy is similar to the policy put in place for MB Docket 18-119, the translator interference remediation rule change. 

Also: See the full document history of DKQEK-LP

FBL claimed that the FCC was singling them out and being discriminatory because they would have been the only one to benefit either with or without the exclusion of the policy towards previous letter decisions.  FBL had recognized that REC stated that at the time of the writing of our Opposition, there were no other pending applications that would benefit from the rules (thus them thinking they were the only one).  We note though that the reason they wanted the rule to apply to them was because of the extension of the minor move from 5.6 to 11.2 km and the changes to the directional antenna rules.  In REC’s opposition, we stated that FBL could have been able to request a waiver of the 5.6 km rule, especially since waivers were commonly granted (the large number of waivers was one of the reasons REC asked for a rule change in RM-11810) and they chose not to prosecute the waiver request in a timely manner.  We also stated that their argument surrounding directional antennas had no merit because the specific rule changes in 19-193 did not change any of the rules related to using directional antennas solely for achieving a second-adjacent waiver.  This rule was originally enacted in 2012 in the Sixth Report and Order in MM Docket 99-25. 

The FCC denied FBL’s petition and upheld their policy.

The second petition was filed by Todd Urick and several others to seek reconsideration on the FCC’s decisions regarding LP-250, the use of contours to protect translators, transmitter certification and proofs of performance on directional antennas not being used for second adjacent channel waivers, public safety or international agreements.

The FCC did not find any violations of the Administrative Procedures Act nor the Local Community Radio Act in their original action that “tentatively rejected” LP-250.  At the time, the Commission stated that the proposal by REC in RM-11810 would create new complexities to the service (by introducing more contour study requirements) and that our proposal to use the LP-10 minimum spacing distances along with contours (in what we called the “§73.815 Regime”) could run afoul of the LCRA as it would result in the penetration of the 20 km “buffer zone” that has been in place since day one of the LPFM service.

While REC continues to take the position that LPFM has matured and that a majority of 2013 window applications were filed with assistance from paid professionals, there is room to add new “complexity” to the service in order to achieve the most flexibility.  As noted by the FCC, REC elected not to file for reconsideration in this proceeding but instead filed a new Petition for Rulemaking to propose a compromise plan first presented to staff about a week prior to the Commission’s decision on 19-193, which the FCC originally dismissed as being introduced to far into the proceeding to be continued and left the door open for us to file a new Petition for Rulemaking, which we did and it was introduced by Public Notice last Friday as RM-11909.  This is the “Simple250” plan that REC is currently promoting. 

Also: See information on REC's Simple250 proposal, RM-11909

The Commission also rejected Urick’s arguments related to certified transmitters stating that because of the simplistic nature of LPFM and the more likelihood of less inexperienced operators of stations as well as the issue of uncertified equipment being marketed on retail “marketplace” websites, there needs to continue to be some controls.  REC opposed Urick in part, mainly over the marketplace issue but offered a proposal where a certified transmitter requirement could be waived if the LPFM station’s technical operation was supervised by a designated chief operator that holds a minimal Society of Broadcast Engineers certification such as CBT or CBRE. 

The Commission also rejected Urick’s arguments related to proof of performance requirements on directional antennas stating that very few directional antennas would fall in the category of requiring a proof.  In 19-193, the FCC exempted directional antennas used for second adjacent channel waivers, public safety and international agreements from the proof requirement.  REC did negotiate with the FCC in last minute ex parte communications to assure that proofs did not apply to international agreements (such as the 125 km Mexico “strip zone”).   Proof of performances will be required on all remaining reasons for directional antennas including those that are used by LPFMs operating on 88.1~91.9 to protect TV channel 6 stations as well as directional antennas used for any other purpose not listed.  It is important to remember that even if a directional antenna is used, the LPFM station still needs to protect all distance separations to full-service stations, FM translators, LPFM stations and foreign stations.

The FCC did not change any rules as a result of Urick’s Petition for Reconsideration.

The FCC did make one non-substantive rule change in Part 74 that was missed in the original 19-193 change.  This change has no impact on the LPFM service.

The FCC did positively announce in this Order that there will be an LPFM window following the NCE window this November. 

The FCC needed to dispose of these two Petitions for Reconsideration to clear the way for the next LPFM window.

REC still predicts the LPFM window to take place in mid-2022.