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Highlights from the Sixth Report and Order
On November 30, 2012, the FCC released long-awaited new rules for low power radio stations. Overall, the Sxith Report and Order is a great victory for community radio, with more flexible rules about where stations can be located and stronger preference given to local, community-driven stations. Many of these new rules were the result of tenacious advocacy from Prometheus and our supporters.
In this summary, we explain some of the new rules most important for community radio stations. However, we don't cover every issue discussed in the 120-page order. For more details, you can read the full text of the FCC's decision on the FCC site or download the pdf from Prometheus.
This was the biggest issue for community radio in the new rules. (For a refresher on what second adjacent waivers are and why they matter, check out our youtube video.)
The Local Community Radio Act permits low power stations to be licensed on the third adjacent frequency (that is, three clicks away on the radio dial) from an existing full power station at the same location. This reverses earlier restrictions, allowing low power stations in many more areas than ever before. But the law prevents the FCC from loosening restrictions for low power radio licensing on the same frequency (called the co-channel), the first adjacent frequency, or the second adjacent frequency. Stations on these channels must always be a certain distance away from full power stations. However, the Local Community Radio Act also authorized the FCC to waive the rules for stations on the second adjacent frequency, as long as they won’t cause interference to other stations.
So the big question has been who can get these waivers, and under what circumstances.
Broadcast lobbyists at NPR and the National Association of Broadcasters have argued that the waivers should be allowed only in exceptional circumstances, and they proposed all kinds of conditions for low power stations should have to meet. Yet FM translators (repeater stations) are regularly licensed on the second adjacent frequency without problems, even though they have looser power and height regulations. Prometheus argued that low power applicants should have a level playing field with other radio services. We proposed that low power stations should be eligible for second adjacent frequency waivers by following the same rules as FM translators.
We won! Just as Prometheus fought for, the FCC adopted translator rules as the basis for second adjacent channel waivers. This means that a low power applicant is eligible for a waiver as long as they can prove that their proposed station won’t cause interference to neighboring stations. The FCC has a process for demonstrating non-interference that is already used in translator applications, so many engineers will know how to create the exhibit that will be required with low power applications.
Like translators, low power stations will also be able to use directional antennas. Low power stations can also turn their power down as low as 50 watts.
This decision is a huge victory for community radio. The FCC rebuked big broadcasters for their lack of evidence in claiming that low power stations would harm the FM dial. Widely available second adjacent waivers will double or triple the number of low power stations nationwide, bringing neighborhood radio to urban areas for the first time in decades.
What applicants who require second adjacent channel waivers will need to do
To show that your station won’t cause interference, applicants will need to prove one of two things. First, you can show that even though your proposed station does not meet the “minimum distance” restrictions, the area of potential interference around the proposed station won’t overlap with the signal of an existing station. This is a simple thing to prove, but most stations won’t be in this situation. The second option is to show that although your station may create a zone of potential interference with a neighboring station, the area of overlap is unpopulated. This may be because the area around your station is in a field, over water, or on a mountain. Or it may because your station will use a special antenna setup that confines the zone of potential interference to an area above the population. This last scenario is what will allow many more low power stations in dense urban areas.
You can do a preliminary check for channel availability using our Zip Code Check, or you can do a more advanced search at our open source tool RFree. If you need a second adjacent waiver, you will likely need to hire an engineer to help you complete your application. You can look for engineers by signing up at Radio Spark and searching under Resources.
For the first time, the FCC will allow low power stations to own translators. This new flexibility will allow some stations to increase their coverage area dramatically. However, existing translators can cost tens or hundreds of thousands of dollars, so few low power stations will be able to buy them when first starting out. There are a few limitations:
- you may own no more than one low power station and up to two translators
- the 60 dBu contours of the low power station and the translators must overlap
- the translator must receive the signal from the low power station off air (as opposed to via satellite or Internet link) and from the station directly, not via another translator
- translators must be within ten miles of the low power station (20 miles outside the top 50 urban markets)
- the FM translator must rebroadcast the primary analog signal of the low power station in real time
Although Tribal Nations were arguably already eligible to apply for low power licenses, this eligibility was made explicit in the new rules. In this context, a Tribal applicant is a Tribe or an entity that is 51% or more controlled by a Tribe. For a Tribal applicant, a proposed station will meet the localism requirement as long as its Tribal lands are within the service area of the station, even if the transmitting antenna is not itself on Tribal land. Tribal Nations are also permitted to own up to two low power stations and up to four translator stations.
Under the old rules, a school that controls a radio station that is not run by students (such as a university that hosts a public station) may also apply for a student-run low power station, even though in most cases existing broadcasters are ineligible for low power radio. However, this was allowed only if there were no competing applications in the same area. Thanks to advocacy from Common Frequency and REC Networks, the FCC will no longer put student-run stations at a disadvantage. Applications for student-run stations will be treated the same as any other application, even if the school hosting the station also controls another radio station.
Because there will be many more low power applications than available channels, not all applications can be granted. Those that conflict are considered “mutually exclusive,” meaning that only one can be granted. When the FCC determines that a group of applications are mutually exclusive, the agency uses a point system to select a winner from that group. With the new rules, the FCC has revised the point system, offering a one point for each criterion.
The new point system
- Established community presence. This criterion is largely unchanged from earlier rules. To get this point, stations must have a documented existence of at least two years in the community. One change is that applicants in rural areas (those outside the top 50 markets) must be based within 20 miles of their proposed transmitter site, while urban applicants still must be within 10 miles. Either your organization’s headquarters or 75% of your board members’ residences must be local to meet this criterion.
- Local program origination. This criterion remains the same from earlier rules. Stations who get this point must pledge to originate at least eight hours of local programming each day. The FCC more clearly defines local programming.
- Staffed main studio. Proposed by Prometheus and several of our allies, this point goes to applicants who pledge to maintain a publicly accessible studio in their community. The studio must be staffed at least 20 hours per week between the hours between 7am and 10 p.m. Staff may be paid or volunteer, and staffing may alternate between individuals. Applicants must list the proposed main studio address in their applications, as well as the local telephone number for the main studio.
- Localism+studio bonus point. Applicants who pledge both the local program origination and staffed main studio points (#2 and #3 above) earn a bonus point.
- Tribal applicant serving Tribal Lands. This criterion prioritizes a Tribal applicant whose transmitter is on Tribal lands.
- Diversity of ownership. Because the FCC now allows multiple ownership of low power stations in certain cases (e.g. Tribal applicants, schools with student-run and non-student run stations), this point increases the preference for those who do not have multiple stations. This criterion awards a point to any entity which has does not control another broadcast license.
Points that were eliminated and proposals that weren’t adopted
12 hours/day operating hours. Under the old rules, the FCC awarded one point to stations which operate at least 12 hours per day. Prometheus has argued that this is no longer a meaningful way to distinguish good stations, since modern automation systems can now keep even one-person stations on the air 24 hours a day. The FCC agreed and eliminated this point.
Consortia. The FCC had proposed to award points for organizations filing as consortia (for example, three organizations filing one application together would be awarded three points). Although this would help local coalitions, the proposal was also open to abuse from organizations who would find “paper partners” to claim extra points with no additional benefit to the community. Prometheus and nearly all other commenters opposed the proposal because of the potential for abuse, and the FCC did not adopt it.
Although the FCC did not adopt the Prometheus proposal to require all new low power stations to originate local programming, the FCC did clarify the definition of local programming. Since local programming is not a requirement for low power stations, this definition applies only to the local program origination selection criterion, which applicants can voluntarily pledge to receive a preference point on their application.
Any nonlocal programming, whether delivered by satellite, over the Internet or other means, does not qualify as locally originated programming. Neither does repetitious automated programming; once a program has been broadcast twice it no longer counts as locally originated. This is true even if they program has been tweaked or reorganized.
“Generally speaking, locally originated programming –whether locally created content (e.g., live call-in shows or news programs), or locally curated content (e.g., a music program reflecting non-random song choices) –must involve a certain level of local production (i.e., creation of new content, in order for the programming to be considered locally originated).”
This means that random song choices (i.e., playing music on random off your mp3 player) also don’t count as local origination. A jazz program, playing non-local music but involving a local volunteer commenting on the selections, would certainly count, whether it is live or prerecorded.
In the event of a tie between applicants with an equal number of points (see the point system above), the FCC gives the tied applicants the chance to propose a voluntary settlement. If all the mutually exclusive groups create an agreement together, it's a universal settlement. If only some groups work out a deal, it's a partial settlement.
One possible settlement is a timeshare agreement, in which two or more applicants agree to divide the programming week so that more than one station can share the same frequency. The FCC did not change the rules for voluntary timeshare agreements, which are still permitted. If two or more groups propose a timeshare agreement to the FCC, their points are combined and the tie will be broken. If no one proposes a tiebreaking voluntary settlement, the FCC will impose an involuntary timeshare.
Under the old rules, if tied applicants could not reach an agreement, the FCC would give the tied groups successive non-renewable licensing terms, meaning that each group would get to run a radio station for a year or two before handing off the license to the next one, for a combined eight-year term. Successive licensing was an unworkable situation, as no one wanted to invest in building a radio station that would soon be off the air forever.
Under the new rules, if no other settlement has broken a tie among applicants, the FCC will impose a concurrent timeshare rather than a successive one. However, dividing the programming week among many groups would give none of them enough airtime to serve their listeners. So the FCC will offer the three longest established applicants (i.e., the three oldest) the opportunity to participate in a timeshare. The FCC will assign time slots to the groups based on their confidentially-submitted preferences.
In practice, we think involuntary timeshares will be rare, since most groups will want to create a voluntary settlement to break a tie before the FCC gets involved.
In addition to timeshares, applicants may propose a "technical settlement," in which one or more members of the competing group moves to a different available frequency. A technical settlement must result in at least one singleton, meaning an applicant with no competitors. In other words, you cannot propose a technical settlement which simply splits a group of competing applicants into two groups of competing applicants. Under the new rules, applicants may move to any available frequency, waiving the normal rules around changing frequencies during the settlement period. This should be very helpful in resolving conflicts between applicants in crowded areas.
Currently low power stations must operate at least 36 hours per week, with at least five hours on air per day for at least six days each week. Under the new rules, low power stations that do not operate at least 12 hours per day each day of the year must share their time with another station. However, the FCC has also provided a "ramp up" period, allowing stations to build up their operational capacity during the first three years on the air.
Until recently, the FCC rules referenced two classes of low power radio service: LP100 (100 watt low power stations) and LP10 (ten watt stations). However, the FCC has never licensed an LP10 station, so all existing stations are LP100. In the new rules, the FCC eliminated the LP10 class, stating that LP10 is an inefficient use of the radio spectrum. However, in extremely dense urban areas such as New York City, ten watt stations may be able to reach larger populations than some rural LP100 stations.
REC Networks proposed that the FCC create an LP50 class, and Prometheus and Common Frequency supported this proposal in our comments. An LP50 class would have allowed for more stations in urban areas with little room for LP100 stations. However, the FCC declined to adopt the proposal.
The FCC initially proposed to create an LP250 class in rural areas, permitting stations to raise their power to 250 watts. However, this proposal was not adopted, stating that 250 watt stations required further study. The good news is that the FCC seems very willing to consider this issue in the future. Although NPR and the National Association of Broadcasters argued that 250 watt stations would be illegal under the Local Community Radio Act, the FCC found these arguments "unpersuasive." We plan to continue the fight for LP250 to help stations to reach more of their local community.