New LPFM Rules Adopted as Anticipated

On April 16, 2020, we wrote about new rules governing applications for and the operation of Low Power FM (LPFM") radio stations that were scheduled for adoption by the Federal Communications Commission (FCC") at its monthly meeting on April 23. The new rules were indeed adopted, although by written vote of the Commissioners the day before the meeting. The Report and Order is now available on the FCC's website.

The Report and Order as actually adopted varies only a little from the earlier published draft. The most significant change is an expansion of the types of LPFM stations that may propose a directional antenna without submitting documentation proving that the antenna performs as predicted and was properly installed. Under the previous rules, only Travelers Information Service LPFM stations operated by public safety entities and LPFM stations that needed directional antennas to satisfy requirements to protect second-adjacent channel full power stations were exempt from proof of performance requirements. Under the new rules, LPFM stations near the Canadian and Mexican borders will also be exempt if they propose directional antennas to comply with treaty requirements by keeping interfering signals from crossing the international border.

All three exempt types of station are subject to specific rules that require them to eliminate any interference that they cause in practice and may not rely on meeting simple mileage separations from other stations. Stations not in those three classes sometimes do rely on mileage separations, so they will have to prove the performance of any directional antennas they propose.

The new rules make it clear that documentation must include not only field measurements of the actual antenna pattern, usually performed at the factory, but also certifications from a field engineer that the antenna was installed properly and from a surveyor that the antenna is aimed in the correct direction.

Beyond the directional antenna issue, the FCC adhered to its previously announced intent not to consider at this time modifying LPFM protection of TV Channel 6 stations or permitting LPFM power increases above 100 watts. It did include a few significant words (in footnotes, as is so often the case with government documents).

[Footnote 81] The Commission has required all secondary radio stations (LPFM, FM Translator, and Class D FM stations) proposing operations on FM reserved band channels 201 through 220 to protect full-service television and previously existing secondary service stations operating on TV6....We agree with NPR and remind LPTV stations operating on TV6 of their obligations to protect full service NCE stations (CommLawBlog.com added the underlining).

Then, responding to efforts by REC Networks to find a compromise that would allow more limited power increases about 100 watts, the FCC said: REC's most recent attempt to address some of these concerns was filed too late for consideration at this time." But here comes a footnote again, opening the door to another try:

[Footnote 107] [1] Our decision not to act on REC's latest proposal does not preclude REC or any other party from filing a separate petition for rulemaking seeking consideration of such issues in a future proceeding.

We anticipate a fair amount of activity by LPFM stations taking advantage of the ability to move up to 11.2 km rather than 5.6 km. It remains to be seen how many stations will be willing to invest in the cost of a directional antenna.

And since the door has been explicitly left open, the risk of betting on another shot at increasing the 100-watt power limit would be low.