On July 12, 2011, the Federal Communications Commission (FCC or Commission) adopted a Third Further Notice of Proposed Rule Making (NPRM) seeking comment on several proposals to implement the Local Community Radio Act (LCRA) by opening a window filing opportunity for new Low Power FM (LPFM) stations and resolving the 6,500 remaining FM translator applications from the 2003 window (Auction 83). In addition, the FCC proposes to allow AM stations to use new FM translator stations and seeks comments on its proposal to prevent trafficking in translators. Until the proceeding is completed, the Commission has suspended the processing of the pending translator applications and imposed a freeze on the filing of translator move-in applications.

These proposals are summarized below. Comments are due 30 days and Reply Comments are due 45 days after publication in the Federal Register.

Implementation of LCRA

  1. Ensuring that Licenses are Available

LCRA requires the FCC to (i) ensure that licenses are available for both LPFM stations and FM translator stations; (ii) make licensing decisions for LPFM and FM translator stations based on local community needs; and (iii) maintain equal status for LPFM and FM translator stations. The FCC seeks comments on its proposals to implement each of these standards.

The FCC conducted studies in the larger markets to measure LPFM spectrum availability based on the elimination of the third adjacent spacing requirement. The FCC determined that in most of the markets opportunities are very limited. Thus, it found, in order to make spectrum available it will be necessary to dismiss all of the pending Auction 83 translator applications in certain markets. In exchange, the FCC lifted the limit of 10 applications per applicant so that additional opportunities could be offered where spectrum is more plentiful.

The FCC was influenced by the large number of translators currently operating in the larger markets compared to the paucity of LPFM stations. The NPRM includes a listing of the top 150 markets with a recommendation to either dismiss or process the pending translator applications in each market, based on projected LPFM spectrum availability. The FCC seeks comment on other alternative spectrum availability assessments and its interpretation of the LCRA provision. 

  1. Assessing the "needs of the local community"

The FCC noted the innate tension in the LCRA mandate to base licensing decisions on the "needs of the local community." It observes that translator licensing is not based on community needs because applicants are not selected on that basis and stations are not required to serve a community. On the other hand, LPFM stations are granted to local groups and are intended to serve local needs of the community. As such, the FCC notes, the provision of local community service weighs in favor of LPFM licensing and it seeks comment on how to deal with that disparity.

The FCC also seeks comment as to other interpretations of the LCRA provision and its impact on licensing procedures for pending translator applications.

  1.  "Equal in Status"

Section 5(3) of LCRA requires that translator and LPFM stations "remain equal in status and secondary to existing and modified full-service FM stations." The FCC seeks comment on how this mandate should influence its treatment of pending FM translator applications when those applications have been cut off from later-filed LPFM applications since 2003.

  1. Adopt a Market-Specific Translator Application Dismissal/Processing Policy

The FCC tentatively concludes that the best way to implement the LCRA is to adopt a market-specific approach, based on spectrum availability, in deciding whether to dismiss or process pending Auction 83 applications. The FCC contemplates that this approach would allow it to immediately process applications in those markets where sufficient spectrum remains for new LPFM stations. Conversely, the FCC would dismiss the pending translator applications in those markets with insufficient spectrum remaining for new LPFM. The FCC seeks comment on its proposed mechanism for identifying so-called spectrum-limited markets - a tiered "LPFM Channel Floor" based on market size.

In addition, in those markets in which the pending translator applications can be processed, the FCC proposes to restrict settlements where amendments to adjacent channels and/or different transmitter locations would reduce the number of LPFM channels available in that market.

  1. Freeze on Certain Modification Applications and Move-In Applications

The Media Bureau is directed to suspend the processing of any translator modification applications that propose a transmitter site within any market that has fewer LPFM channels available than the LPFM Channel Floor proposed in the NPRM. If the LPFM Channel Floor proposal is adopted, those applications would be dismissed. This processing freeze will not be applied to translator modification applications that seek to move the station's transmitter site from one location to another within the same spectrum-limited market .

The FCC also placed an immediate freeze on the filing of translator move-in modification applications. Except for in-market moves, any move-in application filed after July 12, 2011 (the adoption date of the NPRM) will be dismissed. This freeze will remain in place until the conclusion of the upcoming LPFM filing window.

Restriction of the Use of FM Translators to Rebroadcast the Signals of AM Stations

Currently, the FCC limits the right of FM translators to rebroadcast the signal of AM stations to those translators licensed prior to May 1, 2009. The FCC now asks for comments on extending the right to rebroadcast the signal of an AM station to those translators with applications on file by May 1, 2009, which includes pending Auction 83 applications.

Prevention of Trafficking in Translator Construction Permits and Licenses

The FCC concludes that its current rules are insufficient to deter speculative licensing conduct. It seeks comment on adopting processing policies designed to deter speculators among the remaining translator applicants.