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What to Expect When You’re Expecting an LPFM

Permits and construction considerations are paramount

There’s no doubt about it: Low-power FM stations are becoming a significant part of the radio landscape.

According to FCC statistics, by the end of March, 1,025 LPFM stations were licensed, 145 facility modifications had been issued, 1,406 construction permits were in effect for as-yet unbuilt stations and 423 applications for new stations remained pending. It seems apt to welcome LPFM into the media mix.

iStockphoto/stevecoleimages This is the first of a series of four articles in which we’ll take a look at LPFM procedures, requirements and prospects. In future installments, we’ll consider operational issues and long-term opportunities.

I’d love to be able to start with an outline of how to apply for a new LPFM station, but that would be cruel. LPFM applications are only accepted during FCC filing windows. The last FCC LPFM filing window closed in November 2013. No one can predict when, or even if, the next one might open.

So in this first segment, let’s discuss some of the considerations regarding the construction of an LPFM station, once the FCC issues the initial construction permit.

Needless to say, the station needs to be built with the basic parameters authorized in the FCC construction permit — channel, location, height, power. But what if changes are needed? Fortunately, the FCC affords some limited leeway. For example, the antenna may be mounted up to two meters higher or four meters lower at the same geographic coordinates without a change in the construction permit.

Most other technical changes require a modified construction permit. Any technical change must fall within the FCC’s definition of a “minor change.” An LPFM station minor change includes moves within 5.6 km of the specified site and to adjacent and I.F. channels. And of course, you need to observe the required distance separations from all authorized or pending FM facilities, including FM translators.

But don’t wait too long. LPFM construction permits are valid for only 18 months — half the construction time period of full-power services.

Are extensions possible? In shortening the LPTV construction period in 2007, the commission sought to balance its concern over sitting on valuable spectrum against its recognition that inexperienced LPFM permittees could face legitimate delays, especially given the noncommercial, community-based nature of the service.

Thus the commission decided to afford LPFM permittees one 18-month extension to the original construction permit time period to construct upon a showing of good cause, which generally requires circumstances beyond an applicant’s reasonable control. At the same time, the FCC cautioned that any additional extensions (that is, beyond a total of 36 months to construct) would be subject to the same extremely limited circumstances as full-power permits — delays caused by natural disasters, certain legal proceedings or international coordination issues.

What if some of the original board members have lost interest, moved away or perhaps even died? That’s OK, but a change in more than 50 percent of the original members requires FCC consent.

Keep in mind that the basis for any comparative “points” used to choose a winner among mutually exclusive applicants must be preserved. Among these is the point awarded for being local, which requires that either a headquarters office be located, or 75 percent of board members reside, within 20 miles of the transmitter site (10 miles within the top 50 urban markets).

So, unless a local headquarters was claimed as the basis for a localism credit, replacement board members need to qualify as “local.” And, since to qualify for an LPFM, no member can have any attributable interest in another broadcast station, it is essential that any new members comply with that restriction.

What if the applicant itself has changed plans — can an LPFM permit be sold or even given to another party? That one’s easy to answer: No.

LPFM stations are not required to have main studios. However, a comparative point is awarded to applicants that agree to have one. If you certified in the construction permit application an intention to have a main studio, then it must be reachable by phone, staffed at least 20 hours per week between 7 a.m. and 10 p.m., and located within 20 miles of the transmitter site (10 miles in the top 50 urban markets). The construction permit application required that the main studio address be specified. Should the original studio location become undesirable or unavailable, it may be possible to move to another location that meets the distance qualification, with assent of the FCC.

Your LPFM programming can come from any legal source (that is, any source for which you have the rights). However, if you claimed the comparative point given to those who pledge to originate at least eight hours of programming per day, then you need to abide by that.

Once construction is completed, LPFM stations may begin equipment tests upon notification to the FCC secretary. The purpose of equipment tests is to assure compliance with the terms of the construction permit and applicable FCC rules and engineering practices, and to make any adjustments that may be needed. Once proper operation is verified, you can begin program tests, which essentially permit regular operation and programming. However, you must file a license application within 10 days. The license application requires a certification that the facility was constructed as authorized in the underlying construction permit, plus disclosure of any permitted variances. In addition, compliance must be demonstrated with any special operating conditions listed in the construction permit.

Once operation begins, the possibility arises of interference complaints. An LPFM station is required to protect full-power FMs within their communities of license and their 70 dBu contours. This protection applies to applications filed at any time by both commercial and noncommercial full-power stations. Special rules, well beyond the scope of this article, apply to third-adjacent channel interference and in some instances mandate that announcements be aired to invite listeners with reception difficulties to contact the LPFM station.

Next time we’ll look at some operational issues, so stay tuned!

Peter Gutmann is attorney with Womble Carlyle Sandridge & Rice LLP. He can be reached at [email protected].