23-126: REC recommends minor changes to the FCC's plans to authorize more Class A LPTV stations

On January 5, 2023, President Biden signed the Low Power Protection Act.  This new legislation mandates the FCC to give Low Power TV (LPTV) stations, which are normally considered a secondary service, the ability to seek a "Class A" status, which affords them primary status using their existing low power facilities.  The last time this was done was in 1999 when Congress passed the Community Broadcasters Protection Act (CBPA), which was to assure that qualified LPTV stations at the time were able to seek protections from displacement as a result of the transition to digital television. 

In the new legislation, Congress mandated that the FCC open a filing window to allow existing LPTV stations to be able to request Class A primary status.  To upgrade to Class A, the law requires that LPTV stations in the 90 day period preceding the enactment of the law (10/7/22~1/5/23):

• Must have broadcasted for at least 18 hours per day.
• Must have provided at least three hours per week of local programming that originates from inside of the market and
• Been located in a Nielsen Designated Market Area (DMA) that has less than 95,000 TV households. 

The market requirements mean that only LPTV stations in markets ranked #178 (Elmira, New York) through #210 (Glendive, Montana) are eligible.  

The FCC Notice of Proposed Rulemaking was procedural to collect comments to implement a new regulation and policy regarding the handling of Class A conversion applications. 

A majority of the policies proposed by the FCC closely mirror those that were used back in 2000 with the implementation of the CBPA, which was at a time when most low power television was still analog and only had one "stream" of programming.  

In Comments, REC pointed out that with the advent of digital television and the eventual rollout of ATSC-3, the nature of television broadcasting has substantially changed since the CBPA and that regulations need to take that into consideration.  REC pointed out that TV stations can now broadcast multiple video channels, audio-only services, video-only services and some Channel 6 TV stations are broadcasting FM6 analog FM carriers on 87.75 MHz and acting like radio broadcast stations, sometimes known as "Franken FM". 

REC recommended to the FCC that stations should be required to meet the three hour weekly local programming requirement with all of the required on one stream instead of being able to aggregate programming on different streams to make three hours and that the local program requirement should be satisfied through meeting the requirement on just one stream thus not requiring a station to provide three hours of local programming on each stream.  REC further stated that the local programming must be full video programming with related audio as opposed to audio-only services or video-only services (such as community bulletin boards or weather information).  In addition, we oppose the use of program repeats to qualify as local programming.  These requirement would mean that only LPTV stations that make an investment in their local community and provide real local programming as opposed to all network programming or automated billboards would be eligible for the coveted Class A upgrade.  

REC further recommends that Class A candidates must supply substantial information in order to demonstrate their qualifications for Class A status including documentation to show that they did broadcast for at least 18 hours per day and that they carried at least three hours of local programming per week.  Our position on the local programming is that applicants be required to disclose for the entire 90 day period, the programming they are claiming to be local including the program name, the air date, time and length of the program, the location where the program was produced and a description of the program done in a manner similar to how programs may be listed in public file issues lists or children's television programming reports.  

Early on, one of the biggest concerns expressed by some in the LPTV industry was the market sizes and definitions.  While the law does permit the FCC to look for an alternative to Nielsen data for determining markets, the FCC proposes to use the Nielsen DMAs.  REC supports the use of the well-established Nielsen DMAs for this purpose.   Another contentious issue was a proposal by the FCC that if the population in the DMA increases to over 95,000 TV households or Nielsen realigns the DMA boundaries and the station is now in a DMA over 95,000 persons that they would lose their Class A status.  REC disagreed with the FCC's position on this issue stating that the law specifically states that they were to use the DMA designations in effect at the time that the law was enacted (January 5, 2023) and that if a station's DMA parameters change where they no longer meet the 95,000 threshold, then they should be allowed to keep their Class A status.  REC also stated that Class A stations should be permitted to modify their facility to a different location and keep their Class A status as long as the noise limited contour of the proposed facility overlaps the noise limited contour of the facility that was granted Class A status by at least 50 percent.  

This proposal has no real impact on the LPFM service and has minor impacts to the western hemisphere initiative to establish a long term expansion of the FM broadcast band to include the spectrum of TV channels 5 and 6; proposed in the United States by REC Networks as WIDE-FM.  However, these Class A stations will have increased reporting requirements including public file issues lists, children's television programming reports and ownership reports, thus increasing their accountability to their community and giving us a slightly more granular look into the diversity of broadacst ownership.

In their own comments, the National Association of Broadcasters also endorses the use of Nielsen DMAs, supports a certification of on-air hours and local programming in a manner that is more liberal than REC's proposal and the NAB aligns in part with REC's position on the status of Class A stations in the event that the parameters of their DMA are changed by Nielsen.  

Reply Comments in MB Docket 23-126 are due on June 13, 2023.