REC proposed Viable Time Share agreements for LPFM
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In the Notice of Proposed Rulemaking MB Docket 19-3 which is proposing many changes to the application process for LPFM and full-power noncommercial educational (NCE) stations, the FCC is proposing to allow LPFM applicants negotiate time sharing agreements that result in the aggregation of points prior to the time when the 90-day window opens for such negotiations and agreements. In order to backstop any kind of potential gamesmanship, the FCC is examining the possibility of where in the event that a station does not build, the time is not automatically reapportioned to the surviving station(s) but instead, a "mini-window" would be held to allow a new entrant to apply for the time.
This change was as a result of the Philadelphia/Germantown, PA time share group from the 2013 window that ended up going to court. In that case, the winning group included three applicants, all broadcasting from a co-located facility of which, two only specified 10 hours of operation per week, the FCC minimum along with another non-colocated group to aggregate 20 points. It beat out another proposal that had two independent organizations who aggregated 10 points.
In a similar situation, in the largest MX group from the previous window, from Los Angeles, a group of 5 applicants filed a time share agreement. In this group, there were 5 boilerplate applications, 1 application received a large majority of the hours and the other 4 were assigned 12 hours per week each thus aggregating 25 points. Of the applications, 1 was proposed for a residential location where site assurance was more likely and the other four were placed on leased tower facilities including one deep inside Sepulveda Pass where viable coverage would have not been possible. This group was unsuccessful in getting the original channel as they were beaten out by another time share group that involved stations over a much wider geography.
REC disagrees with the FCC's approach on preventing collusion. First of all, in the case of Germantown, since there was a single facility that three organizations shared, it was easy to construct and license three facilities in one shot. Therefore, the concept that one or more of the applicants in a "stacked" group would not build is a weak argument. In addition, if the applicant in a stacked group is one of the 10 or 12 hour (per week) is the one who's permit or license is expired, who is going to spend a minimum of $10K for equipment in order to build a station that will only be allowed to broadcast from 2~4AM on weekdays?
The FCC has really missed the mark on this one. It is REC's position that the root cause of what happened in Germantown and what sparked controversy was the rule that permits time share proponents to propose a minimum of 10 hours per week, especially when those 10-hour groups are conveniently co-located. While, there are three distinct organizations operating their stations in Germantown, there is still a single dominant station and that station does carry the listings for the other two Germantown stations yet they do not carry the listings of their other time share partner. While this is not a bad thing per se, it does show a very close connection between the three Germantown organizations which further fuels the controversy. Let's make it clear though that what Germantown did in the 2013 window was legal and unlike the "Dublab" group in Los Angeles that we spoke about, the Germantown proposal did include a second completely independent player.
REC feels there is a much better way to handle this
First of all, Section 73.850 of the rules requires LPFM stations to operate at least 36 hours per week, consisting of 5 hours of operation per day on 6 days of the week and gives relief to stations licensed to educational institutions from running on Saturdays, Sundays and during vacation periods. This is consistent with the full-power rules. We do also note, that the current intention of this rule is geared to assure that a frequency is actually used and is not being “held” by a station that is only broadcasting a very short time per week thus denying those who may want to use the frequency for a longer period of time. Therefore, it is more designed around the majority of stations that are licensed to operate unlimited hours as opposed to time sharing. There are additional rules that state that if a station operates less than 12 hours per day (despite being licensed for unlimited operation), they may be subject to challenging applications to use the time the existing station is not broadcasting. With this rule, the FCC is demonstrating that an LPFM station broadcasting at least 36 hours per week can be viable. Why shouldn’t time share stations be subject to the same rule?
For MB Docket 19-3, REC is counter-proposing the FCC’s proposed policy on time share settlements and aggregation in a manner that increases applicant diversity and reduces the chances of point-stacking.
REC’s Viable Time Share Agreement would require that all new time-share agreements, including those of existing LPFM stations with two or three members must meet the following requirements:
- Each time share proponent must propose a minimum of 36 hours per week.
- Each time share proponent must propose to operate a minimum of 5 contiguous hours per day on at least 5 days per week between the hours of 6AM and 12 Midnight. (They may run a "split shift" as long as at least 5 hours are contiguous, such as 6AM~11AM, 10PM~Midnight.)
- Time scheduled between 12 Midnight and 6AM would satisfy the 36-hour minimum requirement but would not satisfy the 5-hour/5-day requirement.
- No agreement may have vacant time between 6AM and 12 Midnight, Monday through Sunday [Saturday?, Friday?]
- Co-location of time share proponents is prohibited. Each time share proponent must operate their own independent transmitter and antenna. (500 meter minimum spacing)
By design, no time share agreement under these rules above would ever exceed three proponents thus meaning a maximum score of 15 points aggregated. In the event of a tie, the FCC would aggregate the documented local community presence dates among all of the applicants in a time share proposal. The group that represents the longest aggregated community presence would be declared the winner.
Using "mini-windows" to reapportion the time and encourage new entrants
If in the event that any member of a Viable Time Share Agreement group has their license deleted or cancelled for any reason, their facility protection is not automatically removed, and the abandoned time will not available for reapportionment to the surviving station(s). Instead, the time will be held and will be subject to a “mini-window” where the FCC will permit applications for that time from new entrants. There is no time limit on how long after an original construction permit is granted that a mini-window can be used to award the time to a new entrant.
Under REC’s Mini-Window proposal:
- The abandoned facility remains as an “active” record in the Commission’s databases at its maximum authorized facility and therefore is protected from application activity by translators and by LPFM stations not in the time share group. This protection remains until the close of the mini-window at which time, the maximum authorized facilities of the application(s) will go into effect.
- Mini-window applicants must propose a facility that is mutually exclusive to at least one of the surviving time-share stations.
- Mini-window applicants must propose a facility that meets minimum distance separations under Sections 73.807 and 73.825 (TV channel 6).
- If the abandoned facility was Section 73.807/73.825 short-spaced to any subsequently authorized FM translator or Channel 6 TV station, then the proposed facility must not decrease those short-spacings. (The application of this point in respect to full-service FM stations would require an interpretation of the Local Community Radio Act).
- If multiple applications are received that are mutually exclusive with other mini-window applicants but meet all of the other requirements above, then a “winner take all” approach is used to determine the selectee. The proponent with the highest score will be considered. In the event of a tie, the documented local presence date would be used as the tie breaker.
- If multiple applications are received that are not mutually exclusive with other mini-window applications but are still mutually exclusive with at least one of the surviving station(s), we are asking that the Commission look at them as individual singletons. (We do not feel the FCC will accept this specific point as it would create two members of a time share group operating simultaneously despite being spaced at least 24 km on co-channel).
With this, REC proposes to make three changes to existing rules:
- Remove the exception to §73.870 that permits a move of more than 5.6 km in cases where the station is co-locating with a time-share partner. Under are proposed rules, all future time-share agreements will prohibit co-location.
- Remove the requirement that involuntary time share is non-renewable. This is not compatible with the Viable Time Share concept as subsequent licenses issued in mini-windows would be renewable.
- Make a one hour shift on future involuntary time share schedules to 3AM~11AM, 11AM~7PM, 7PM~3AM so they are complaint with the 5 hour/5 day rule.
REC feels that this proposal will encourage a diversity in applicants, assure that each time share proponent gets a viable schedule thus better justifying their investment in radio, reduce the chances of collusion and point-stacking and open viable opportunities for new entrants in between filing windows.
Spectrum for LPFM, especially in urban and many suburban areas will be much scarcer than in the previous window, therefore the chances of time share groups will be considerable. This is why we feel this method of doing time share in LPFM would be in the public interest.