An application for an LPFM station in Iowa has been dismissed after the FCC denied the applicant’s attempts to file waivers to fix deficiencies regarding short-spacing and minimum power rules.
The Catholic organization Holy Mother Mary sought to broadcast on 98.7 FM in Cascade, which is located in eastern Iowa between Cedar Rapids and Dubuque.
The organization aimed to use the station to air programming primarily provided by the EWTN network, according to its application.
Its 2023 LPFM application was originally dismissed by the FCC due to its failure to meet a co-channel vacant allotment spacing requirement with a Class A FM allocation in Asbury.
Holy Mother Mary successfully petitioned the commission in July to reconsider its ruling. The organization argued it should not be barred from filing an amendment to its application because the commission’s rules apply to “applications and facilities” and not “vacant allotments.”
The Media Bureau said in a reconsideration letter that the organization was allowed to amend its application within 30 days to resolve the short-spacing defect but the resolution could not involve moving beyond three channels from its originally applied frequency of 98.7 FM.
For Holy Mother Mary, this did not resolve its predicament, as none of the adjacent frequencies could support a 50-watt LPFM operation without introducing short-spacing to existing stations.
As a result, later in July, the organization proposed multiple waivers of the LPFM rules to the commission. It first asked to broadcast on 98.3 FM with a reduced 25-watt ERP, below the FCC’s minimum LPFM power requirements and as a result requiring a waiver of its rules. The application would still be short-spaced to 98.1 KHAK(FM) in Cedar Rapids in such a scenario and it also asked for an additional waiver of the LPFM spacing requirements. The organization claimed the reduced signal would still allow it to provide the first local service to the community of Cascade as a reason in favor of its waiver requests.
The organization, in its waiver requests, also questioned the “statutory underpinning” behind the FCC’s minimum power limit requirement for LPFM stations, which were established in 2000. It cited the the Administrative Procedure Act, used in the July Loper Bright Supreme Court decision, to support its contention.
Alternatively, Holy Mother Mary asked for a waiver from the Media Bureau to allow what would constitute a major change amendment to relocate its application to a non-adjacent frequency. The organization used the commission’s decision in the Diocese of Portland, Maine case in 2014 as precedent of allowing a filing to be corrected in order to receive a waiver due to a technical deficiency.
Albert Adam David, who has been prolific in filing informal objections to LPFM applications, placed another against the Holy Mother Mary waivers. He argued the Diocese of Portland case does not support its waiver requests because the commission had announced it would require accurate technical information to be provided with all new LPFM applications on filing going forward. He also contended the commission has rejected waivers based on first local service to a community, including in the Riverton Radio Project ruling in Maryland.
Holy Mother Mary and David exchanged objections and replies, with the organization saying the Riverton decision related to a waiver of a different rule, while David contended it is relevant to the issue of whether a first local service justifies waiver requests.
The commission determined that Holy Mother Mary failed to meet the burden for waiver requests. It said a major change, such as moving to a non-adjacent channel, is prohibited to all pending new LPFM applications and is a rule to which “all new LPFM applicants are subject.”
(Read the commission’s decision.)
The Bureau also similarly rejected the organization’s request to waive both the minimum power and spacing rules. It said its reliance on the Diocese of Portland case was misplaced, as the case dealt with typographical errors in geographic coordinates. Holy Mother Mary’s issue was not a typo, according to the commission. The FCC reiterated that, as a result of the Portland case, all LPFM applicants were advised going forward to provide accurate technical information or “to risk dismissal.”
The Media Bureau also said in its ruling that proposed coverage of Cascade, “while laudable,” is not a special circumstance warranting a waiver. “(T)here is no community coverage requirement for LPFM licensees nor any rule or policy that prioritizes first local service to a community by an LPFM station over its adherence to the basic LPFM power and spacing rule,” the commission stated.
It also found no merit to the organization’s request to support its request for waiver for being short spaced to KHAK.
Finally, it found no merit to Holy Mother Mary’s contention that the commission lacked statutory authority for the LPFM minimum power limits. It said the limit “was not appealed or challenged upon adoption and has been in effect for decades” and that the Administrative Procedure Act allows the commission the authority to “determine the power which each station shall use.”
The FCC ultimately dismissed Holy Mother Mary’s LPFM application without further opportunity for an amendment.
