Assuming that you have obtained the proper clearances with the international broadcaster, let's discuss the concerns about this issue and our interpretation of the rules on this subject. Remember, this is not legal advice. If you wish legal advice, please contact an attorney. Your attorney is welcome to contact REC to consult before reaching a determination.
The main issue at hand here is the wording of §73.879 of the rules that simply states:
An LPFM licensee may not retransmit, either terrestrially or via satellite, the signal of a full-power broadcast station.
International broadcasters such as the VOA, NHK, etc. may have shortwave transmitters and in some cases, mediumwave (AM) transmitters in various parts of the world, so it is understandable that some may consider these broadcasters a "full-power broadcast station".
The question about retransmission of full-power stations by LPFM stations first came up in the original Notice of Proposed Rulemaking for MM Docket 99-25 prior to the creation of the LPFM service. In paragraph 68, the FCC addresses local programming and that is where the FCC proposes the prohibition of LPFM stations "operating as a translator":
68. Local Programming. We seek comment on whether to impose a minimum local origination requirement on any of the three proposed classes of LPFM service, as proposed by some commenters.87 Listeners benefit from local programming, since it often reflects needs, interests, circumstances, or perspectives that may be unique to that community, and many LPFM supporters would have the Commission's rules actively promote locally-oriented programming by, for instance, limiting the amount of network programming. However, based on our expectation of the nature of the licensees that will populate LPFM, supported by the comments received by those expressing an interest in acquiring their own stations, we expect that a significant amount of programming will be locally produced as a matter of course. Moreover, and importantly, programming does not have to be locally-produced to have interest or value to the listeners in any particular locale. Accordingly, we are inclined to give low power (and microradio) licensees the same discretion as full-power licensees to determine what mix of local and nonlocal programming will best serve the community. However, in order to promote new broadcast voices, we propose that an LPFM station not be permitted to operate as a translator, retransmitting the programming of a full-power station. We seek comment on these positions. (emphasis added)
In the Report and Order that created LPFM, the FCC noted that the prohibition of LPFM stations acting as translators received significant support and the FCC decided in Paragraph 172:
172. We do, however, agree with commenters that LPFM stations should not be used for retransmitting, either terrestrially or via satellite, the programming of full-power stations. This would significantly undercut a fundamental basis for the establishment of this service. This prohibition against LPFM stations operating as translators also promotes locally originated programming by eliminating a significant avenue for obtaining non-locally originated programming.
With that, the FCC has established that an LPFM station can not act as a translator. This is in contrast to the rules for LPTV (Low Power Television) which does permit stations to behave like translators. Now with that said, we can establish that the intent of the rule was that an LPFM station can not be used in the same manner as a translator. So now, we need to determine which "full power stations" the FCC is referring to. §74.1231(a) of the rules specifies the scope of the FM translator service:
74.1231(a) FM translators provide a means whereby the signals of AM or FM broadcast stations may be retransmitted to areas in which direct reception of such AM or FM broadcast stations is unsatisfactory due to distance or intervening terrain barriers, and a means for AM Class D stations to continue operating at night.
We have now established that the translator service is intended for the rebroadcast of AM and FM full-power broadcast stations. Because of intention by the FCC to not establish the LPFM service to operate as translators (as proposed in the NPRM and decided in the R&O above), we can establish that the FCC was intending to prevent LPFM stations from rebroadcasting AM and FM full-power broadcast stations.
So with that said, wouldn't a shortwave station, whether being foreign (NHK, BBC, etc.) or domestic (VOA, WBCQ, WWCR, etc.) be considered a "full-power" broadcast station since these stations (in the case of domestic) are required to broadcast a minimum of 50 kW when operating analog? The FCC has already determined shortwave broadcast stations are not full-power broadcast stations for the purposes of cross-ownership (there is one LPFM station (KWSV-LP) that is legally being operated by the licensee of an international [shortwave] broadcast station). With that said, we still do not consider an international broadcaster as a "full-power broadcaster" for the purposes of §73.879.
With that said, we would express some concern about rebroadcasting a station that is located along an international border that requires authorization under Section 325(c) of the Communications Act which states:
325(c)Broadcast to foreign countries for rebroadcast to United States; permit
No person shall be permitted to locate, use, or maintain a radio broadcast studio or other place or apparatus from which or whereby sound waves are converted into electrical energy, or mechanical or physical reproduction of sound waves produced, and caused to be transmitted or delivered to a radio station in a foreign country for the purpose of being broadcast from any radio station there having a power output of sufficient intensity and/or being so located geographically that its emissions may be received consistently in the United States, without first obtaining a permit from the Commission upon proper application therefor.
These are broadcast stations (mainly located in Mexico) that have studio facilities in the United States. The 325(c) authorization allows the entity wishing to provide programming to the foreign broadcast station on an ongoing basis from a physical location within the US. An example would be radio stations like XETRA-FM ("91-X") in Tijuana which has a studio in San Diego. Foreign stations are expected to maintain the facilities that are consistent with the international agreements. This law was established to address the "border blaster" stations of the 1940s~1970s. It is REC's interpretation of the rule that since these stations have a form of authorization to serve United States territory and compete with domestic AM and FM broadcast stations, it would not be appropriate for an LPFM station to rebroadcast such a station.
For LPFM stations on the Pledge List, rebroadcasting an international programming provider will not count towards your minimum 8 hours a day of local programming.
Of course, if you want to rebroadcast an international broadcaster, you must also seek clearance from that broadcaster. Here are a few links for more information on gaining clearances to rebroadcast these services:
BBC: (Available in the USA through Public Radio International/PRI)
RFI (France)
Voice Of America (VOA)
