The Federal Communications Commission, in an attempt to increase diversity in broadcast ownership, has approved a new low power FM (LPFM) radio service that will go into effect in the near future. However, nearing the end of the 106th Congress in late 2000 legislators passed a bill that curtails the number of LPFM stations to be allocated.

    The FCC’s action came after repeated requests from community organizations and "pirate" radio operators seeking to engage in legitimate alternative broadcasting for their local communities. The Commission had issued a Notice of Proposed Rulemaking (NPRM) in 1999 to examine this issue. Notice of Proposed Rulemaking in the Matter of Creation of a Low Power FM Radio Service, 14 FCC Rcd. 2741 (1999). This NPRM was discussed in The First Amendment and the Media - 2000 at page 75.

    The Commission adopted rules for the new LPFM service in two orders issued in 2000, starting with a Report and Order. Report and Order in the Matter of Creation of a Low Power FM Radio Service, 19 C.R. 597 (rel. Jan. 27, 2000). It then slightly revised the originally promulgated rules through a Memorandum Opinion and Order released later in the year. Creation of a Low Power FM Radio Service, Memorandum Opinion and Order on Reconsideration, MM Docket No. 99-25, FCC 00-349 (rel. Sept. 28, 2000).

    The result of this proceeding was the creation of two classes of LPFM service: LP100 stations and LP10 stations. The NPRM had proposed a third class of stations, LP1000, which would operate at 1,000 watts effective radiated power (ERP). However, it was determined that the addition of this service would create too much interference within the FM portion of the radio spectrum.

    LP100 stations received the most enthusiastic support during the comment period, with most commenters believing that LP100 stations would provide a reasonable coverage area while remaining small enough to focus on local needs. These stations will operate at 100 watts ERP with a maximum tower height of 30 meters height above average terrain (HAAT). The minimum power at which these stations may operate is 50 watts ERP. LP100 stations are expected to have a maximum coverage area of approximately seven miles in diameter, meaning they could potentially serve hundreds or thousands of listeners depending on population density.

    LP10 stations will operate with an ERP of 10 watts and maximum tower height of 30 meters HAAT. They must operate with a minimum ERP of one watt. It is expected that LP10 stations will have a maximum coverage area of two to four miles in diameter.

    LPFM stations will be noncommercial and educational in nature. Licensees must comply with Section 397(6) of the Communications Act of 1934 (47 U.S.C. Sec. 397(6)), which requires that such stations be owned by a public agency, private nonprofit organization, or municipality.

    A number of rules are designed to encourage new entrants as broadcasters. Cross ownership prohibitions restrict any entity from becoming an LPFM licensee if that entity already owns another broadcast entity or any other media outlet subject to the Commission’s ownership rules. Other restrictions ensure that licensees are local to the communities they serve, and place limits on national ownership.

    Because LPFM service is intended to benefit the local community, licensees will be required to be community based. For the first two years that the LPFM service is in existence, all LPFM applicants must be located within 10 miles of the station they seek to operate. The FCC deemed this requirement particularly important due to the strong local roots necessary for noncommercial educational broadcasting.

    National ownership limits will be increased in stages. In the first two years, only one LPFM station may be owned by any given entity. In year three, one entity may own up to five LPFM stations nationally. After three years, one entity may own up to 10 LPFM stations nationally. There is one exception: Schools with multiple campuses or high schools owned by a common school board will be allowed to apply for multiple LPFM stations, one for each campus, if there are no competing applications.

    LPFM licensees will be required to meet basic character qualifications applying to other broadcast licensees. Second, and more specifically, an applicant who previously broadcast illegally will be eligible for an LPFM license if the applicant (1) voluntarily ceased engaging in unlicensed operation prior to Feb. 26, 1999; or (2) ceased unlicensed operation within 24 hours of being told to do so by the FCC.

    The Commission held that preventing certain unlicensed broadcasters from being eligible for LPFM licenses does not violate the First Amendment because this disqualification is based solely upon the compliance of these persons with statutory and regulatory requirements, not with the content of their speech.

    A number of technical rules were passed to protect the integrity of the FM band while allowing the maximum number of LPFM stations to share that portion of the spectrum with other stations.

    LPFM stations must protect against interference to certain full power FM stations, FM translators, and FM boosters. The Commission created minimum distance separation requirements for LPFM stations, with the distance based upon whether the LPFM station is an LP100 or LP10 station, whether the station being protected is a full power FM station, an FM translator, or an FM booster station, and whether that station is located on the same channel as the LPFM station, on a first adjacent channel, or a second adjacent channel. The Commission decided not to protect third adjacent channel stations (except those providing reading services for the blind) against interference from LPFM stations.

    Full power FM stations will not be required to protect against interference to LPFM stations, nor will LP100 stations be required to protect against interference to LP10 stations. LPFM stations cannot cause any interference to noncommercial educational FM stations within the full power station’s community of license, if that community lies entirely within the station’s 60 dBU contour.

    The Commission, in the Memorandum Opinion and Order, created a complaint process designed to expedite the resolution of interference complaints. This process will be utilized only in instances where an LPFM station is alleged to cause interference to a full power station’s 60 dBU contour when that station is located on a third adjacent channel and the full power station is located not more than one kilometer from the LPFM transmitter. If an interference problem (triggered by listener affidavits) is not resolved, the full power station may ask the Commission to initiate a proceeding to determine whether to modify or cancel the LPFM authorization. At this time, the LPFM station may file a displacement application in which it seeks to move to another available channel.

    LPFM stations will be given some leeway in how they choose to operate. They will be allowed to use directional antennas to reduce interference caused to other stations. All equipment must be type-certified, but no particular type of equipment must be used. Stations will be allowed to engage in either mono or stereo broadcasting, and will also be allowed to engage in unattended operation.

    LPFM licenses will be awarded for an eight-year term. Stations must operate at least 36 hours per week; this must consist of operation at least five hours per day, six days per week. The only exception to this weekly minimum is for educational institutions, which do not have to operate on Saturday or Sunday.

    The Commission also detailed the filing procedures for LPFM applications. A window filing process will be used. Applications may be filed at any time within the five-day filing window (there will be multiple filing windows, one for each geographic region of the country). It is believed that electronic filing will be available in time for the first LP100 filing window, though electronic filing would be permissive, not mandatory. In the event that mutually exclusive applications are filed on the same day, the Commission will enforce a point system to determine the licensee. Points will be awarded based on established community presence, proposed number of hours of operation, and amount of locally produced programming.

The FCC announced its LPFM filing windows in a separate Public Notice:

Filing Window # 1 -- May 2000

States: Alaska, California, District of Columbia, Georgia, Indiana, Louisiana, Maine, Mariana Islands, Maryland, Oklahoma, Rhode Island, Utah.

Filing Window # 2 -- August 2000

States: Connecticut, Illinois, Kansas, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, Puerto Rico, Virginia, Wyoming

Filing Window # 3 -- November 2000

States: American Samoa, Colorado, Delaware, Hawaii, Idaho, Missouri, New York, Ohio, South Carolina, South Dakota, Wisconsin

Filing Window # 4 -- February 2001

States: Arizona, Florida, Iowa, New Jersey, North Dakota, Oregon, Tennessee, Texas, U.S. Virgin Islands, Vermont, West Virginia

Filing Window # 5 -- May 2001

States: Alabama, Arkansas, Guam, Kentucky, Massachusetts, Montana, Nebraska, New Mexico, North Carolina, Pennsylvania, Washington.

    But on Dec. 15, 2000, Congress passed (as part of a multi-agency appropriations act) the Radio Broadcasting Preservation Act of 2000. This "anti-LPFM" legislation reinstates the third-adjacent channel protections considered and rejected by the FCC. This action means that approximately 75 percent of the low power stations envisioned will no longer be available for use; most of these stations are concentrated in urban markets. The interference protection standards may be changed only if Congress so authorizes.

    The FCC must also hire an independent third party to conduct a technical test in nine markets and to solicit public comment on the test, which must then be presented to Congress. Finally, also contrary to the FCC’s wishes, any individual who has engaged in unlicensed broadcasting is ineligible to receive a low power radio license. The FCC has made plans to go ahead with future filing windows, though it has severely cut back on the number of stations available for use.