REC Networks Report on LCRA Section 5 Compliance with Auction 99 and 100 Cross-Service FM Translators

Recently, the question has arisen whether or not the Federal Communications Commission may have violated Section 5 of the Local Community Radio Act of 2010 (LCRA) as passed by Congress and signed in early 2011 by President Obama.[1]  The following is what Section 5 of the LCRA reads:

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 FM translator stations, FM booster stations, and low-power FM stations;

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

(3) FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations.

In the LPFM Third Further Notice of Proposed Rulemaking that was seeking comments regarding the Commission’s interpretation of the LCRA.  In that rulemaking they proposed to establish a broad principle that Section 5(1) requires the Commission to adopt licensing procedures that ensure some minimum number of licensing opportunities for both LPFM and translator services across the nation; Read together with Section 5(2), Section 5(1) requires the Commission to provide licensing opportunities for both services in as many local communities as possible; and the primary focus under Section 5(1) must be to ensure that translator licensing procedures do not foreclose or unduly limit future LPFM licensing, because the more flexible translator licensing standards will make it much easier to license new translator stations in spectrum-limited markets than new LPFM stations.  In the Fourth Report and Order, the FCC adopted that interpretation.

In order to measure spectrum availability for new LPFM stations, the FCC developed “grids” which were 30 minute latitude by 30 minute longitude in size and divided in one minute increments.  The FCC would then check all 100 channels to determine whether LPFM would be available at that point on the grid.  If it was, it became a designated channel/point.  Using “water files”, the grids were designed where areas entirely over water or foreign territory were excluded from channel points.  In addition, at the request of REC, some grids were reduced to 20 by 20 minutes because of the lack of population in the outer zone.

In the same program that calculated the channel/points, it also quantified the potential number of LPFM stations using a specific algorithm.  The number of potential LPFM stations as well as the number of already licensed LPFM stations were added up for each market.  A “channel floor” was developed as a minimum threshold of LPFM opportunities (including existing stations) to determine the handling of translator applications.  The translator applications were the ungranted applications from the 2003 “Great Translator Invasion” (Auction 83) filing window which have been pending for several years. 

Under the FCC’s original plan, the FCC proposed to dismiss all translator applications where they would have been in or near the grid in situations where the number of LPFM opportunities did not exceed the channel floor and to grant the ones where there were plenty of LPFM opportunities.  Based on comments, this method was changed to designations of “Spectrum Limited” (where the number of LPFM opportunities does not exceed the channel floor) and “Spectrum Available” (where the number of LPFM opportunities does exceed the channel floor).  In Spectrum Limited markets, translator applications had to submit an anti-preclusion study which demonstrated that their proposed facility would not preclude an identified channel/point from being used for a future LPFM station.  FM translators were given a lot of flexibility to find new sites and/or channels to address any overlap.

AM Revitalization and the LCRA

We now fast forward a few years alter and despite reminders by REC to the FCC that the LCRA is still in effect, the FCC created rules to expand the use of cross-service FM translators (FM translators rebroadcasting AM broadcast stations). 

In 2016, the FCC opened two filing opportunities which spanned about 9 months.  This allowed existing FM translators (mainly those applied for in 2003) to be moved up to 250 miles for the sole purpose of serving an AM station.  In 2017 and 2018 the FCC opened up two filing windows for new cross-service FM translators with mutually exclusive applications going to auction. 

In none of these proceedings, did any anti-preclusion study get conducted by the FCC.

We are still undecided on whether Section 5 applies to the FM translators moved in the 2016 “250-mile move” window.

Unfortunately, because Congress uses different and conflicting language (there’s some of that in other places in the LCRA), the vernacular that is used is up for debate.  One of the key phrases in Section 5 states “when licensing new FM translator stations [...] and low power FM stations.”.  While some of the Auction 83 translators that were moved in the 2016 opportunity were already licensed and on the air at their old location, this raises the question of whether those stations that were granted by not yet built/licensed would be subject to the “new” language in Section 5. 

It is REC’s interpretation that the existing applications that were handled in the 2016 major move window were either already licensed at the time of the enactment of the LCRA or that they have already been subjected to one anti-preclusion study possibility (even if they have changed markets to go from one grid to another).

The question lies on what Congress considers as “licensing”, the initial application or the post construction license to cover application.  The facilities involved in the 2016 window fell into six different scenarios:

• FM translators originally applied for prior to Auction 83 and were already licensed at the time of the enactment of the LCRA and now moving to a site within 39km of the grid.
• FM translators applied for during the Auction 83 window, declared singleton early on, granted and eventually built and covered prior to the enactment of the LCRA and is now moving to a site within 39km of the grid.
• FM translators applied for during the Auction 83 window, held up during the 99-25 translator cap proceedings, was outside of the grid during the 2012 proceeding, eventually licensed outside of the grid and is now moving to a site within 39km of the grid.
• FM translators applied for during the Auction 83 window, held up during the 99-25 translator cap proceedings, was within 39km of a grid during the 2012 proceeding, passed a preclusion study and granted and then eventually constructed and licensed and is now moving to a site within 39km of the same or another grid.
• FM translators applied for during the Auction 83 window, held up during the 99-25 translator cap proceeding, was outside of the grid during the 2012 proceeding, was never built and is now filing to move to a location within 39km of the grid.
• FM translators applied for during the Auction 83 window, held up during the 99-25 translator cap proceedings, was within 39km of a grid during the 2012 proceeding, successfully made an anti-preclusion study and was granted a construction permit, never built and is now moving to a site within 39km of the same or another grid.

An interpretation of the LCRA could suggest that in the first four scenarios, Section 5 would not apply since the move does not involve a “new license” as the station is licensed already and is just seeking a move.  On the last two scenarios, is is very possible that Section 5 could apply since the station was not “licensed” (in the context of completed construction) and therefore would have to make a showing of lack of preclusion.  This includes facilities that already had a preclusion study done on their previously granted facility.

REC is not prepared at this time to identify the 2016 window facilities in the last two scenarios that could be subject to anti-preclusion studies.  We may conduct this study in the future.

Section 5 definitely applies to the Auction 99 and Auction 100 applications

The 2017 and 2018 translator applications however are new applications.  There is no question that these applications are subject to Section 5. 

REC’s 2018 Translator LCRA Study

The REC 2018 Translator LCRA Study uses the same grid concept that the FCC used in 2012.  We have also maintained the 2012 channel floor standard:

Markets 1~20	8 LPFM channels
Markets 21~50	7 LPFM channels
Markets 51~100	6 LPFM channels
Markets 101~150	5 LPFM channels

REC has designed a new program to determine channel points and to measure the potential number of LPFM stations that could be added to the area inside the market grid.  To determine the actual channel points, REC used a very similar process to what the FCC used.

REC then developed a new algorithm to quantify the potential number of LPFM stations that are available.  As a part of our algorithm, REC used the following rules:

• Searching priority started at the center point on the grid and worked outward using Pythagorean Theorem to determine the next closest channel/point locations on the grid.  This was done over using actual distance to the center point in order to encourage services more widespread in the grid (since the point between two degrees of latitude is normally shorter than 2 degrees of longitude.
• For each channel point, we evaluate the population based on 2010 Census Block centroids in areas within 30 seconds of the grid.  If the surrounding population is under 100, then the channel/point is no longer considered for a sample LPFM station.
• In order for a channel point to be used, it must be surrounded by 8 channel points that have also been determined whether they can get LPFM on the same channel. (northwest, north, northeast, east, southeast, south, southwest, west and southeast).
• No channel will be assigned if it does not meet the minimum spacing to another potential LPFM point.  There must be a minimum of 24 km on co-channel and 14 km on first-adjacent channel.
• No channel will be assigned less than 5 km from another recommended channel (even if it is a previously handled grid).  This prevents “bunching” of stations.
• Our goal is to make this quantification based on the most likely viable LPFM locations.  This is why we have put in place the population requirement and the 5km separation rule.  REC has also found that the ability to authorize and build an LPFM that is second-adjacent channel short-spaced is far more likely if the weakest second-adjacent channel station has a field strength of 80 dBu F[50, 50] or more.  For this report, we have taken the standard distances for the 80 dBu contour for each domestic full-service and translator service class.  We have created a “donut zone” which is the area between 80 dBu and the edge of the contour at 60, 57 or 54 dBu depending on service class.
• If a channel/point meets all of that criteria, then it is eligible to be measured as a quantified potential channel for LPFM. 
• If a valid channel/point does not meet any of the above criteria, it remains a channel/point which in spectrum limited markets requires to be protected.

If, based on the total count of existing LPFM stations[2] and the potential new LPFM opportunities, the overall total count does not exceed the designated channel floor, the market is considered “spectrum limited”.  All other markets where the number of LPFM opportunities exceed the channel floor is considered “spectrum available”. 

It is important for the LPFM community to recognize that FM translators were first authorized in 1970 and LPFM was first authorized in 2000.  Despite the massive translator growth in the grid since the inception of use application involving HD Radio and AM stations as well as the rise of various ministries, translators must be recognized for their longer history.  In addition, it’s also important to point out that Section 5 of the LCRA only states that licenses “must be available” for both FM translators and for LPFM.  It does not mandate a 50/50 split.  Our study has shown though that prior to the Auction 99 and 100 (A99/A100) applications being factored in actual LPFM stations inside the grid outnumbered FM translators in the Miami, Seattle, Portland, OR and Sacramento grids as well as the grids for 7 smaller markets.

The new 2018 study uses the 2017 Nielsen Audio market rankings which does reflect the population shifts in the markets thus resulting in ranking changes; It also shows the split of the Mid-Hudson Valley, NY market; and we introduce Macon, GA, Myrtle Beach, SC, Savannah, GA and Ann Arbor, MI as top-150 markets.[3]

The new “Spectrum Limited” markets

Based on the number of existing LPFM stations and the opportunities for new LPFM stations in each of the top-150 media market grids, REC has identified 44 “spectrum limited” markets:

• New York, NY (1)[4]
• Los Angeles, CA (2)
• Chicago, IL (3)
• San Francisco, CA (4)
• Washington, DC (7)
• Atlanta, GA (8)
• Philadelphia, PA (9)
• Boston, MA (10)
• Detroit, MI (13)
• Puerto Rico (16)
• San Diego, CA (17)
• Nassau-Sullfolk-Long Island, NY (20)
• Baltimore, MD (21)
• Riverside-San Bernardino, CA (25)
• San Antonio, TX (26)
• Pittsburgh, PA (28)
• Salt Lake City-Ogden-Provo, UT (29)
• Cleveland, OH (34)
• San Jose, CA (37)
• Middlesex-Somerset-Union, NJ (42)
• Providence-Warwick-Pawtucket, RI (44)
• West Palm Beach-Boca Raton, FL (48)
• Monmouth-Ocean, NJ (54)
• Louisville, KY (55)
• Buffalo-Niagara Falls, NY (58)
• Dayton, OH (64)
• Fresno, CA (67)
• Allentown-Bethlehem, PA (71)
• Wilkes Barre-Scranton, PA (77)
• Wilmington, DE (80)
• Harrisburg-Lebanon-Carlisle, PA (82)
• Akron, OH (83)
• Monterey-Salinas-Santa Cruz (85)
• Portland, ME (96)
• Reno, NV (97)
• Fort Collins-Greeley, CO (108)
• Victor Valley, CA (114)
• Lancaster, PA (116)
• Morristown, NJ (121)
• Bridgeport, CT (126)
• Youngstown-Warren, OH (131)
• Reading, PA (133)
• Canton, OH (139)
• Ann Arbor, MI (150)

REC’s findings

Within those markets, REC has identified 72 FM translator facilities filed during the windows for new A99/A100 stations that involve overlap with an LPFM channel point and therefore are precluding future LPFM opportunities in spectrum limited markets.  In those 72 cases, it is REC’s position that any action taken or to be taken by the FCC on these facilities (as proposed/authorized) would be a violation of Section 5 of the Local Community Radio Act of 2010.  It is REC’s position that these 72 translator facilities be given an opportunity to modify their facilities (waiving the minor change requirements) to a facility that would not result in the preclusion of future LPFM opportunities.

In this study, REC has also identified 327 A99/A100 translator facilities in spectrum available markets that overlap LPFM channel points.  Consistent with past policy, REC is not calling for the modification of those facilities however those facilities should be given a “free-pass” to make a major channel change or other modification if such a modification will remove the preclusion. 

The results of the study have further shown that even if we add protections for A99/A100 facilities and remove those channel points, it has resulted in the loss of 57 LPFM opportunities nationwide.  The study further shows that in only four markets (Des Moines IA, Syracuse NY, York PA and Lansing MI) would the combined number of LPFM stations and LPFM opportunities drop below the designated channel floor and downgrading the markets from spectrum available to spectrum limited.  If we considered these four markets as spectrum limited, there would be 14 A99/A100 facilities that would be precluding LPFM channel/points.

Conclusions

Even prior to the Auction 99 and Auction 100 FM translator filing windows, there will limited opportunities, especially in the center of the major market grids.  How much the 250-mile moves of 2016 may have limited those possibilities were not in the scope of this specific study and we may revisit that later.

Our goal was to look at applications that would definitely fall under Section 5 of the LCRA to determine whether the FCC has violated federal law by not making licenses available for both FM translators and LPFM stations.

REC and the Commission have recognized that FM translators do have a distinct advantage where it comes to the placement of FM translators vs. the placement of LPFM stations.  The changes necessary to place LPFM stations on the same level as translators would require an act of Congress through an amendment to the LCRA.  Because LPFM spacing can not be easily changed, we need to assure that every channel point opportunity within designated spectrum limited markets are preserved for LPFM stations because even though the LCRA does not call for a 50/50 split between LPFM and translators, it does call for licenses “being available” and these spectrum limited markets continue to demonstrate a disparity of licenses “being available” for LPFM stations.  For that reason, we must continue to preserve the channel points where LPFM is possible in a future filing window.

It is REC’s position that during the Auction 99 and Auction 100 filing windows, there are 72 FM translator facilities that have been granted or awaiting action on proposals that preclude LPFM opportunities on one or more channel/point in a “spectrum limited” market.  In these cases, it is REC’s position that the FCC did violate Section 5 of the LCRA and REC does support any efforts by the Commission to require remediation of those channel points and return them to a protected status for a future LPFM window. 

REC continues to call upon Prometheus et al, to withdraw their Informal Objection against nearly 1,000 new and modification applications and focus instead on the 72 facilities that are truly precluding LPFM in spectrum limited markets. 

But most importantly, we call on the FCC to reach a determination that they did violate the Local Community Radio Act during the Auction 99 and 100 windows and develop a plan to remediate at the minimum, the 72 facilities that have encroached LPFM channel/points in spectrum limited markets.

Resources

Listing of Auction 99 and 100 facilities that overlap LPFM channel/points - Highlighted facilities are overlapping channel/points in spectrum limited grids and may be in violation with Section 5 of the LCRA.

Listing of the Top 150 markets and their determinations of spectrum status

Interactive Channel Point Mapping Tool - Shows locations of LPFM Channel/Points.