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Schellhardt: A ‘Super Window’ Is the Way to Go

Why I think a simultaneous LPFM/translator competition best reflects the intent of Congress

The author is a legislative and regulatory attorney. He also is president of the Amherst Alliance, a media reform advocacy group; in this article he writes only for himself.

iStockphoto/Rafa Irusta

Recently Congress and President Obama enacted the Local Community Radio Act, or LCRA. The new law wisely repealed previous statutory limits on adjacent-channel spacing of low-power FM stations, opening up new frequencies for such stations. It also set the stage for the FCC’s latest exercise in managing spectrum scarcity.

In theory, the LCRA should make room for thousands of new LPFM stations. In practice, however, the FCC must first decide how to deal with the many thousands of translator applications filed in Auction No. 83 (aka “The Great Translator Invasion,” or GTI).

Not enough frequencies

The number of translator applications in Auction 83 was far beyond any precedent, although a handful of “evangelical” broadcasting chains accounted for many of them, filing literally thousands of applications apiece. Having various concerns, the commission has kept GTI applications “pending” for more than seven years.

One post-LCRA debate concerns whether the Great Translator Invasion applications should be processed before new LPFM applications are even considered.

If they are, the translators will preempt all or virtually all of the remaining spectrum in many of the nation’s metropolitan areas, leaving few if any frequencies to host LPFMs. Various filings in FCC Docket 99-25 by the organization Common Frequency document that “capping” translator applications at 10 per entity would not prevent devastation of LPFM opportunities in many metropolitan areas. A Feb. 1 filing reports that even applying a cap of three applications per entity plus a cap of one application per entity per service area would still leave more than 85 percent of metropolitan frequencies preempted.

This would occur at a time when existing translators already outnumber existing LPFMs by an order of magnitude. A huge imbalance in favor of translators would become even more massive.

Shown are portions of maps published by the Audio Division of the FCC Media Bureau in 2006. They show licensed LPFM station coverage, top, and licensed FM translator station coverage for the same geographical area of the Northwest.
Conversely, if LPFM applications are processed before GTI applications, thousands of aspiring LPFM broadcasters would be likely to apply. The frequencies left for GTI applicants could be minimal, at least in metropolitan areas.

In short, there aren’t enough metropolitan frequencies left to go around. If either group is processed before the other one, the latecomer will be left with the metaphorical crumbs.

Simultaneous consideration

In recent filings in 99-25, Prometheus Radio Project, the nation’s largest LPFM advocacy group, has called for processing LPFMs first. Major translator chains, joined by 21 commercial radio broadcasters, have called for processing GTI applicants first, with minor concessions to LPFMs.

Basically, each interest group would assign the crumbs to the other side.

In January, Nick Leggett and I, speaking as co-authors of the 1997 petition for rulemaking that triggered FCC action on LPFM in 1998, filed written comments proposing a “super window” for simultaneous consideration of LPFM and GTI applications. We apparently startled everyone.

We had concluded that simultaneous consideration, with “pre-screening” of translators by applying numerical caps, is the best way to interpret Section 5 of the LCRA.

Section 5 is somewhat murky but includes a Section 5 (1) directive that the FCC “shall ensure that … licenses are available” for new (presumably, post-enactment) LPFMs, translators and boosters.

Surely, this availability will not be “ensured” if GTI applicants are allowed to preempt virtually all urban spectrum before newcomers are even considered.

Section 5 (2) adds that “licensing decisions” for new stations shall be “made based on the needs of the local community.” We interpret this directive to mean that local communities must be “ensured” a range of choices — which will not happen if either GTI applications or new LPFMs have preempted so much spectrum that the other alternative is effectively barred from competing.

Thus, we proposed direct, simultaneous competition. (In February we modified the proposal to remove commercial translators from the “super window,” acknowledging that statutory law requires commercial translators to be auctioned in a separate proceeding.)

Some “GTI Firsters” have criticized our proposal, arguing that (a) many GTI applicants “played by the rules” and should not be penalized retroactively and/or that (b) “first-come, first-served is the essence of fair play.” Some “LPFM Firsters” have countered that (a) it can hardly be “fair play” to increase the huge numerical advantage that translators have over LPFMs and/or that (b) nationwide networks of satellators are a distortion, long overdue for correction, of the original concept of what translators should be.

What the New Law Says Here is the text of Section 5 of the recently enacted Local Community Radio Act (Public Law 111-371). Bracketed text is added for emphasis.

SEC. 5. Ensuring Availability of Spectrum for Low-Power FM Stations

The Federal Communications Commission, when licensing new FM translator stations, FM booster stations and low-power FM stations, shall ensure that:

(1) licenses are available to [new] FM translator stations, [new] FM booster stations, and [new] low-power FM stations;

(2) such decisions are made based on the needs of the local community; and

(3) [new] FM translator stations, [new] FM booster stations, and [new] low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations. Under our proposal, neither side suffers total defeat nor gains total victory. While we believe our proposal comes closer than others to reflecting the intent of Congress, we also hope it will encourage, in the future, more statesmanlike proposals for allocating scarce spectrum.

Targeted displacement protection

Another petition is worth noting in this discussion.

The FCC, using its own authority rather than responding to a statute, has been allowing full-power stations, which it accords primary service status, to displace secondary service stations, such as LPFMs and translators.

LCRA Section 5 (3) transfers some of this system — but only some — from discretionary regulations to statutory law that the commission cannot change. Now, “when licensing new FM translators, FM boosters and low-power FM stations,” the FCC “shall ensure” that these stations will “remain secondary to existing or modified full-power stations.”

Those adjectives are crucial. New (post-enactment) LPFMs, translators and boosters must “remain secondary to” — subject to possible displacement by — “existing or modified” (pre-enactment) full-power stations.

Must existing LPFMs, translators and boosters also remain subject to displacement? Section 5 doesn’t say. Do new full-power stations have the power to displace new translators, boosters and LPFMs? Section 5 doesn’t say.

By codifying only part of the current system, Congress implicitly invites the FCC to take a second look at the rest of it.

In February, the Amherst Alliance filed a petition for rulemaking, asking the FCC to establish an opportunity for targeted displacement protection in cases where the LCRA does not preclude it.

Other issues remain. Will the FCC decide that new “satellators” cannot be translators? Will the FCC alter the eligibility requirements for new LPFMs? Will the FCC act on low-power AM, and/or higher power ceilings for Part 15 AM stations, in pending Docket RM-11287? Can new technologies create more radio spectrum to share? These are questions to be discussed further.

The author co-wrote the petition for rulemaking that triggered the FCC’s deliberations on creating a low-power FM radio service. Comment on this or any article to [email protected].