LPFM Filing Window Update (May 10, 2023)
Good morning from Riverton.
The last time we did a full update on this, it was in September 2022. Time for a further update.
I frequently get the question, "when will the LPFM window be?". I cannot give a date yet, but there has been progress to getting us closer to the FCC issuing a public notice to advise of an LPFM filing window.
In the past, going back to former Chairman Ajit Pai, the culture in the FCC has been that once the 2021 non-commercial educational (NCE) FM filing window was completed, then the FCC would open a window for LPFM applications.
After the window closes, the FCC then breaks out the singleton applications (those with no conflicts with any other applications filed in the window) and processes them. The remaining applicants are then broken into groups (called "MX Groups") based on what other applications they conflict with.
Using the claims made on the application, the FCC analyzes and reaches a conclusion for each MX Group. They will publish that finding on an Order and declare the lead applicant(s) as "tentative selectee". This creates a public notice period where those who want to object to the FCC's findings in the MX Group to speak up. If there are no objections and the applicant otherwise qualifies, then applications are granted. Petitions to Reconsider the grant can be filed up to 30 days of public notice of the FCC action (the grant), thus starting a similar process over again.
There are many reasons why Informal Objections or Petitions to Deny are filed. This includes that incorrect claims are made (for example in NCE, a miscalculation of population or land area) or that for some reason, the tentative selectee is not eligible to be a licensee (such as not being an active nonprofit corporation), etc. These proceedings may involve responsive pleadings (Oppositions and Replies) and then overall analysis of the case by FCC attorneys in the Media Bureau.
Once a decision is reached in the case, the response can come from either the Media Bureau or has to come through a decision by the (currently) four FCC Commissioners. For NCE, disputes that only impact an applicant's Fair Distribution or Tribal Priority status can be handled by the Media Bureau. Any decision that impacts the points system (which includes all LPFM decisions) must be handled by the full Commission. In those cases, the Media Bureau makes their analysis on each group and then recommends decisions for the Commissioners. The recommendations are then circulated to the Commissioners. The item may be placed on the FCC's monthly Open Meeting agenda as a Restricted Adjudicatory Proceeding. The item will be acted on either during the Open Meeting or just prior to the meeting (where the item will be removed from the agenda). Restricted Adjudicatory Proceedings are not just limited to point decisions.
What does all of this have to do with an LPFM filing window?
The NCE window started with 231 MX Groups and grew to 240 through bifurcation (application activity resulting in an MX group splitting). Of those 240 MX groups, there are still 18 of those groups where objections were made. Late last year and early this year, that number was higher, but since those disputes only dealt with Fair Distribution or other issues, they did not need intervention by the full Commission and were settled through the Media Bureau. Of the 18 outstanding MX Groups, 17 of them involve the point system, thus requiring full Commission involvement.
The FCC has stated in the past, that once the NCE window is completed, then an LPFM window can be considered. A filing window is not completed once the window closes. The filing window period is only the launch pad for a slew of Media Bureau processes that take place after the close of the window. (LPFM uses similar post window processes).
We believe that there will be one more Order that will come out of the full Commission. We believe that this order will also consider the one MX Group that is Fair Distribution as the objection filed regards the same applicant that is the subject to objections in some point system MX Groups. When that Order is ready to go out, it may show on the Open Meeting agenda as a Restricted Adjudicatory Proceeding.
We do note that there is a Restricted Adjudicatory Proceeding on the May, 2023 Open Meeting agenda. We do not believe that this one relates to the point system decisions, but on a different Media Bureau matter. I would expect to see a Restricted Adjudicatory Proceeding item show up on a near-future agenda, such as June, July or August with this point decision.
As there will be a 30-day reconsideration period after the actions taken in the "last" point decision order, I would expect the Media Bureau to wait that 30 days to measure the volume of Petitions for Reconsideration to be filed to determine the workload of the attorneys. It's also important to remember that the same attorneys who work these MX Groups are also working on radio renewals (and yes, there are a few of those still outstanding) and other Informal Objections filed in radio associated with modification and assignment applications.
With that said, my perspective is that once about 45 days passes from when the "final" point decision Order is adopted by the Commission and published, then the Media Bureau may be more free-and-clear to start the processes to announce a filing window for LPFM and impose a filing freeze for LPFM and FM translator applications.
One thing that may help in the timing of the LPFM window is the fact that the FCC's statutory authority to conduct spectrum auctions has lapsed over an issue regarding spectrum in the 3 GHz band. This means that the FCC cannot hold any auction for the one hundred or so commercial FM vacant allotments. Since the next filing event can't be an FM auction, this frees up Staff, both on the engineering and the legal side of the house for other activities, such as an LPFM window.
There are two possible things that can further delay an LPFM window.
The FCC uses a system called LMS, or License Management System. Since this system was introduced to radio in 2019, replacing the older Consolidated Data Base System (CDBS), this system has faced many issues. In addition, there has never been an LPFM filing window conducted in LMS. While the data structure of LMS and the overall forms for LMS can already support the data collected to support an LPFM window, there may be some additional systems issues that need to be worked out. We do note that the NCE window functionality in LMS did perform fairly well, so we can only hope that the LPFM window functionality is already in and will be ready to go.
The other delay potential is MB Docket 03-185. This is the docket that is addressing issues regarding Low Power TV (LPTV) stations and is being used to address the "Franken FM" issue (Channel 6 LPTV stations running FM carriers to provide radio services on 87.75 MHz). 03-185 has been extended to also examine the current rule that FM stations on 88.1~91.9 MHz (also known as the "reserved band") must provide a level of protection to Channel 6 TV stations (both full and low power). If the FCC decides to remove some or all of these protection requirements, this could free up some potentially available channels for new LPFM stations. REC's position has been that the pendency of the FM to TV 6 protection proceeding should not delay the window. The availability in the reserved band is minimal, compared to the rest of the FM band. Even if those reserved band channels are not available at the time of the window, they may be available in the future for channel changes. It has been nearly ten years since the last LPFM window. It's time to move forward.
Overall, based on the current record, related events and a general feel for the mood of the Media Bureau, I feel that we are at a time when we feel that a future LPFM window is eminent. I just can't say when, other than probably no sooner that the fourth quarter of this year.
For now, REC will resume our processing of those who made "show of interest" in a new LPFM station to REC Networks.
Those who wish to check to see if LPFM may be available in your area and wish to have REC handle your nonprofit organization's LPFM application in the next LPFM filing window can visit lpfm.app, read up on the service there and then perform a channel search to check for availability. If there are potential channels, fill out the form that is presented at that time.
We're almost there!