REC policy opinion statement: What constitutes "community need" under Section 5 of the LCRA

In Section 5(2) of the Local Community Radio Act of 2010, Congress ordered the FCC, when licensing new FM translator stations, FM booster stations, and low-power FM stations, they shall ensure that such decisions ade made based on the needs of the local community.

Following the enactment of the LCRA and prior to the 2013 LPFM filing window, the FCC interpreted the law to assure that in "spectrum limited" markets, that opportunities for future LPFM stations could not be precluded by FM translator applications.  Since the LPFM window, we have seen a filing window for new FM translators for conditional carriage of AM primary stations.  Currently, we are dealing with the controversy over geo-targeted FM boosters and the eventual possibility that following the next LPFM window, that there may be another general filing window for new FM translator stations.  REC's overall position on the scheduling of filing windows is that following the next LPFM window, the next translator window should be strictly for the reserved band (88.1~91.9) and then followed by a general FM translator window for the non-reserved band (92.1~107.9).  

Because of the very restricted nature of the Auction 99 and 100 (AM Revitalization) translator filing windows and because of an identified community need to help out AM stations, REC did not oppose the Auction 99 and 100 FM translator filing windows on LCRA grounds.  REC is actively opposing the establishment of geo-targeted FM boosters on LCRA grounds if such booster stations do not actually introduce service into an area that is currently precluded from the primary station due to terrain or other factors.  Also, as we consider the reality that there will eventually be another general filing window for translators within the next decade, we must take into consideration the implications of that window under Section 5 of the LCRA and the future assignments of community-based LPFM stations (in the fourth generation) following any new general translator window. 

This derives the question of "what constitutes community need?"  This Policy Statement reflects only opinion and direction by REC on advocacy regarding the use of FM broadcast spectrum for secondary use.

Low Power FM (LPFM)

• REC considers any LPFM station operated by an educational institution or organization, which are limited to one station as community need.
• REC considers any LPFM station operated by a college or university, which may hold full-service licenses, but is also the licensee of an LPFM station that is operated by the students of the institution to be a community need.
• REC considers any LPFM station operated by a tribal entity, which are limited to two stations as community need.
• REC considers a single LPFM station operated by a local, county or district government entity for the purpose of public safety to be a community need.
• REC considers any additional LPFM stations operated by a local, county or district governmental entity for the purpose of public safety to only be a community need if the operation of such stations do not preclude on any private sector LPFM opportunities.
• REC considers any LPFM stations operated by a state government for the purposes of public safety, such as for travelers information stations to only be a community need if the operation of such stations do not preclude on any private sector LPFM opportunities.

FM Translators

General policy

In general, REC does consider FM translators as a part of the broadcast ecosystem that provides a form of extended service under various conditions such as the provision of FM services into areas that would otherwise not receive them due to intervening terrain or a community size that does not warrant the establishment of a full-service FM station.  In areas where full-service FM stations are readily avaialble, community need would favor LPFM stations over FM translators and that in those areas, especially in urban core areas, the community need of a new LPFM station far outweighs the community need of a new FM translator.  

AM Translators

With that said, REC also recognizes the plight of AM broadcast stations, especially lower-powered Class C stations and Class D stations which have substantially low power or no service at night, especially in cases where the licensee has no FM holdings in the same area and also especially if the station is a single-owner (as opposed to a group owner) and is controlled by a minority or women-owned business.  A single FM translator that is commonly-owned by an AM licensee, especially a Class C or D station can be seen as a community need, even in an urban area, if the FM translator is used to provide service to all or a substantial portion of the AM station's community of license and only if such stations does not preclude the only opportunity for a new community-based LPFM station in that area.  While REC's long time position has always been that AM revitalization is best handled through either an expansion of the FM band or through the use of an HD subchannel by a commonly-owned FM station, there are still times when a properly situated "AM translator" could meet our criteria for community need.  

Noncommercial FM translators and "satellators" 

 Non-commercial FM translators do not serve a community need if the primary station that they carry originates from a location that is located in a different state and is more than 200 miles from the primary station.  Non-commercial FM translators that rebroadcast a programming service that is already available throughout a significant portion the service contour of the translator by a full-service FM station or another FM translator (using a different primary station) does not meet our criteria for community need. Translators are capable of providing a regional or statewide service that would meet minimal localism needs, but when programming is coming from several states away, it is not capable of meeting the needs of localism in any form. Due to the very restrictive nature of the service, FM translators that rebroadcast the primary analog stream of an LPFM station would be considered as meeting community need, regardless of ownership of the translator.

Analog rebroadcast of HD audio streams

FM translators which rebroadcast the HD subchannels of a full-service FM station, especially when the programming on the HD subchannel is not under direct control of the full-service FM licensee would normally not meet our criteria for community need.  In these cases, the FM translator simply acts as a "crutch" as a direct result of the consumer electronics industry, the broadcast industry, Xperi and its predecessors to properly market HD Radio to consumers and to provide equipment for FM stations in a reasonable manner to construct and operate the service.  While Xperi has made some favorable concessions for noncommercial broadcasters, the equipment remains cost prohibitive for many stations.  REC sees HD Radio as the best method of expanding the number of choices and voices available on the air, however, the experience requires action on the part of the stations and consumers to embrace the technology.  

FM Booster Stations

FM booster stations are normally very tightly engineered FM transmitters that operate on the same channel as their primary station and are intended to fill in gaps in coverage due to intervening terrain and other factors.  Booster stations are normally placed in order to serve "dead zone" areas and in a way that prevents self interference to its primary station.  Community need is met where it can be shown that within the service area of the FM booster, that at least 40 percent of the population of that area does not receive a minimum 54 dB field strength signal from the primary station based on terrain-based propagation models with a receive antenna at 2 meters above ground level.  

FM boosters that are placed in areas where at least 40 percent of the listeners receive at least an actual 54 dB field strength of the primary station, especially where the booster is intended to provide geo-targeted "advertising" represents more of a "station want" than a community need.  

Excessive use of FM boosters can preclude the operation of other secondary services including LPFM and FM translators, especially since FM boosters are not required to protect other secondary services on co-channel.  

Conclusion

As we move forward, we need to continue to remind the FCC that Section 5 applies to all new secondary FM facilities.  This includes activities related to an upcoming LPFM window, subsequent FM translator windows and the ongoing licensing of new FM booster stations.  LCRA Section 5 did not die after the previous LPFM window.  It is still very alive and well and must be properly enforced going forward.