In a single letter decision published in the FCC Daily Digest, Albert Shuldiner, Chief of the Audio Division of the Media Bureau has dismissed or denied all 994 of the Informal Objections filed against various types of FM translator applications including short forms, new application long forms and modifications.
In his letter, Shuldiner stated that the objections were "overbroad" and included applications that did not constitute applications for "new FM translator stations" under the language of Section 5 of the LCRA and that the moving of translators in the 2016 "250-mile" filing opportunity would not fall under Section 5 of the Local Community Radio Act (LCRA).
Section 5 of the LCRA calls for LPFM stations, FM translators and FM boosters to remain secondary services and equal in status. It also calls for there to be spectrum for new licenses available for both LPFM and FM translator services and that new licenses are to be distributed based on needs of the community.
The FCC rules require that Informal Objections like Petitions to Deny must allege properly supported specific facts that, if true, would establish a substantial and material question of the fact that the grant of the application would be inconsistent with the public interest. The FCC had determined that this was not done in all but 10 of the objections filed and in those 10 cases where a "cursory examination" over the lack of future LPFM availability was conducted, that the examination was "not sufficient to establish a substantial and material question of fact."
In a separate ground for the decision, the FCC rejects that the "equal in status" clause of the LCRA implies that the Commission must ensure that all remaining spectrum in all markets is equally apportioned among LPFM, FM translators and FM boosters. The FCC also notes that when compared with the 2003 Auction 83 "Great Translator Invasion" window where over 15,000 applications were filed, the 2017 Auction 99 and 2018 Auction 100 windows were limited to a controlled group of AM stations which was narrowed down from a larger list of AM stations that did not participate in the 2016 "250 mile" move opportunity and that these windows would "have had a vastly smaller preclusive impact on LPFM licensing".
The FCC has also concluded that "equal in status" does not require identical signal engineering and interference remediation rules. If anything, the interference remediation rules for LPFM in §73.809 are much less stringent than the FM translator rules, a point noted by the FCC.
Like with any other decision, Prometheus et al has 30 days to file a Petition for Reconsideration.
The FCC has already started to grant applications that were being held up as a result of this objection.
From an REC perspective, we do wish to note that at the time of the original rulemaking on AM Revitalization (MB Docket 13-249), Prometheus Radio Project actually continued to have a paid staff and during this proceeding, their policy director was Sanjay Jolly. It is important to remember that following the comments in the rulemaking process, Sanjay Jolly made an ex parte appearance on December 11, 2013 before Audio Division staff as well as staff of Commissioners Clyburn and Rosenworcel, on December 23, 2013 before staff for (then) Chairman Wheeler and (then) Commissioner Pai and on August 4, 2014 before staff of Commissioner O'Rielly. In those meetings, they requested that the Commission delay the translator filing window until after the LPFM applications have been resolved and they "expressed support for AM broadcasters - particularly women, minority and single-station owners - and argued that eligibility for the AM-only translator window be restricted to Class C and D stations only.". These were similar talking points that REC had and in the past, we had worked with Prometheus policy staff to assure that our policy messages were consistent or very close realizing the differences between the REC and Prometheus entities and their overall goals in spectrum reform and access to the airwaves.
We do note that following the First Report and Order in the AM Revitalization proceeding, neither Prometheus nor REC Networks filed a Petition for Reconsideration in the proceeding. While we can't speak for Prometheus, we can say that at the time of this decision in October, 2015, we had already seen the outcome of the LPFM filing window including many of the MX groups playing out. We also at the time took into consideration the number of applications that were filed during the Auction 83 window and compared it to the number of new applications that would be filed in an AM Revitalization window series with the full knowledge that the window not would be a "free for all" like Auction 83 was but instead was restricted to AM licensees and giving Class C and D stations a head start and that the window for new FM translators would be further reduced by those AM stations participating in the 2016 "250 mile" move opportunity where minor change rules were waived for channel changes and for major moves up to 250 miles as long as the translator was going to be moved to rebroadcast an AM station and be committed to that AM station for at least 4 years. In addition, we must also point out that all translators in what would become known as the Auction 99 and 100 windows were permanently related to the AM station. At the time of this Report and Order, given the conditions at the time, what we had faced in the past and the various restrictions the FCC placed on the new translators for this window, REC did not feel that it was necessary at that time to file a Petition for Reconsideration despite our comments that reminded the FCC that the LCRA was still in effect.
It is still REC's position that the Commission may have violated the LCRA during the Auction 99 and Auction 100 windows as well as the handling of some translator applications filed during the 2016 "250 mile move" window where the facility had not filed their original license to cover prior to filing their move application. REC did evaluate and define "spectrum limited" markets based on 2016 market and spectrum conditions, identified approximately 45 spectrum markets and identified 72 translator facilities filed for in Auctions 99 and 100 would have precluded LPFM channel points identified by REC in a 2018 study.
REC continues to remind the entire LPFM constituency that LPFM stations do have cut-off protection from subsequently filed translator applications and that LPFMs are considered an "authorized broadcast station" in the eyes of various FM translator interference rules in §74.1203 and §74.1204 and that LPFM stations that are experiencing interference should take advantage of the exsting rules in an attempt to resolve the predicted or actual interference from a new or modified translator.
REC feels now that it is time to move on and let's finish Auctions 83 and 100, start processing translator applications, address the issues raised in 18-119 (translator complaint process improvements) and 18-184 (FM class C4 & §73.215 changes) as well as work forward with allowing LPFM stations to grow tih LP-250 and work our way to the next LPFM filing window. Once most of these translator applications are in place, it will be the "top of the second" and LPFM will be back at the plate.
