Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. In re Application of ) ) All Pending Translator Applications ) File No. ) Facility ID For Pending Construction Permits for ) Refer to Appendix A New, Modification, or Minor Changes ) To FM Translator Stations ) ) INFORMAL OBJECTION Center for International Media Action, Common Frequency, Inc, and Prometheus Radio Project (“Petitioners”) hereby submit this Informal Objection to the A ppendix A-Identified pending FM translator applications (“Applicants”). As entities desiring to provide new noncommercial service to the public at the earliest possible date, Petitioners broadly claims standing as a party of interest.1 In 2011 Congress passed the Local Community Radio Act (“LCRA” or “the Act”).2 LCRA Section 5 stipulates that the FCC shall ensure spectrum for Low Power FM radio. In 2012 the FCC derived measures to comply with the Act. Although placed into effect then, since 2014 enforcement for new translators has been absent. Petitioners contend Applicants do not include supporting evidence to fulfill spectrum vetting requirements within the Act. It is believed that all FM translator service applicants must comply with this law. Petitioners contend these applications currently do not present evidence of compliance. An analysis below of the LCRA provides interpretation of the law to elucidate the parameters for 1 See Office of Communications of the United Church of Christ v. FCC (1966), 359 F.2d 994 (D.C. Cir.). 2 H.R. 6533 — 111th Congress: Local Community Radio Act of 2010.” www.GovTrack.us. 2010. May 12, 2018 <https://www.govtrack.us/congress/bills/111/hr6533> 1 adherence. Petitioners believe that if the qualifications cannot be met, the applications must be dismissed. I. THE LCRA ENSURES FM SPECTRUM FOR LOW-POWER FM STATIONS; TRANSLATOR APPLICATIONS MUST COMPLY WITH THIS. Within the LCRA is language for “[e]nsuring availability of spectrum for low-power FM stations.” Section 5 of the Act is listed below in entirety:: Sec 5.Ensuring availability of spectrum for low-power FM stations The Federal Communications Commission, when licensing new FM translator stations, FM booster stations, and low-power FM stations, shall ensure that— (1) licenses are available to FM translator stations, FM booster stations, and low-power FM stations; (2) such decisions are made based on the needs of the local community; and (3) FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified full-service FM stations. Prior to 2014, the Commission elicited measures for accounting for the LCRA. Since then, Commission has announced no formal processing regime to comply with the law, presumably defaulting to applicants to comply with the mandate. The law is emphatic of its application: (1) The intent from the title is interpreted from plain-word meaning: F M spectrum availability is ensured for low power FM stations. (2) The scrutiny of LCRA comes into consideration during t he licensing process (“when licensing”) of new FM translators, booster stations, and low power FM stations . “When licensing” refers to scrutiny of proposal prior to granting the license, which could be (1) during short form processing, (2) during long form processing, (3) during minor or filing window-change modification, and (4) prior to 2 granting the license (i.e. when the construction permit has been granted but the license to cover has not been granted). Pending applications are listed within Appendix A, but construction permits are excluded since Informal Objections cannot be filed against granted construction permits. The following analyzes the requirements of each part of Section 5. II. SECTION 5(1): LICENSING AVAILABILITY Section 5(1) ensures licenses for FM translator and low power FMs stations are available. After the enactment of the Act in 2011, the FCC set a course to align application processing to this mandate. In early 2013 within the LPFM Sixth Report and Order , the Commission developed conditions for translators for ensure spectrum balancing: We agree with the condition advocated by the Joint Petitioners and REC that the proposed translator station cannot preclude approval of a future LPFM application in the grid for that market, under the processing policy delineated in Section II.B of the Fourth Report and Order, or at the proposed out of grid transmitter site. To satisfy this condition, applicants must submit an LPFM preclusion study demonstrating that grant of the proposed translator station will not preclude approval of a future LPFM application. As we explained in the Fourth Report and Order, one of our broad principles for implementation of the LCRA is that our primary focus under Section 5(1) must be to ensure that translator licensing procedures do not foreclose or unduly limit future LPFM licensing, because the more flexible translator licensing standards will make it much easier to license new translator stations in the future. This condition is consistent with that broad principle.3 In fact, the prior L PFM Fourth Further Notice v erified it was within the FCC’s purview to limit translator applications to meet the terms of the LCRA: “...we conclude that adoption of the 3 Para 59. Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations , Fifth Order on Reconsideration and Sixth Report and Order, 27 FCC Rcd 15402 (2012) (“ Sixth Report and Orde r”). 3 caps to safeguard the integrity of our licensing processes is consistent with Section 5’s requirement to ensure that licenses are available to both LPFM and translator services.”4 The decision regarding M attoon also aligned translators with large distance moves to comply with the LCRA.5 With regard to the LPFM filing window,6 the conservative spacing considerations within Section 73.807 i mplicitly conserved ample spectrum for future translator licensing, offering built-in compliance to the LCRA. A pedantic derivation of this fact need not be supplied here due to complexity. It is more eloquently demonstrated by the fact there have been a bevy of translator applications extending into major markets surpassing LPFM spectrum usage since the LPFM filing window in 2013.7 Figure 1 demonstrates a simplified circle-radius equivalent of translator coverage vs. LPFM coverage in select regions. Translators by far trump spectrum usage in comparison to to LPFM8 (see next page). 4 Para 55. Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations , Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3364 (2012) (“ Fourth Report and Order” ). 5 “..the proposed move does not implicate the concerns raised by the Commission in the recent Third Further Notice in the low-power FM (“LPFM”) docket.” See J ohn F. Garziglia, Letter ( “Mattoon”) , 26 FCC Rcd 12686 (MB 2011). 6 Public Notice. M edia Bureau Announces Availability of the Revised FCC Form 318 and the Filing Procedures for October 15 - October 29, 2013 Low Power FM Filing Window. D A-13-1385. Jun. 17, 2013. 7 LPFM spacing in Section 73.807 provides for very conservative spacing to the effect that many channels are not available for LPFM applicants that are available to translator applicants. This effectively created a cache of channel reserved for translator applicants unavailable to LPFM applicants during the last LPFM filing window, implicitly enforcing LCRA Section 5(1). 8 As of this writing there are 2,362 licensed LPFM stations; 9,057 licensed translators; and 5,699 pending translator applications 4 Figure 1A: Simplified LPFM (60 dBu) Spectrum Usage Coverage Northeast (Above) Figure 1B: Simplified Translator (60 dBu) Spectrum Usage Coverage Northeast (Above) 5 Figure 1C: Simplified LPFM (60 dBu) Spectrum Usage Coverage CO-UT (Above) Figure 1D: Simplified Translator (60 dBu) Spectrum Usage Coverage CO-UT (Above) 6 Figure 1E: Simplified LPFM (60 dBu) Spectrum Usage Coverage South (Above) Figure 1F: Simplified Translator (60 dBu) Spectrum Usage Coverage South (Above) 7 By 2014, LCRA compliance was forgotten. An all-you-can eat buffet of spectrum-grabbing occurred without moderation, including two filing windows to allow translators to move anywhere within 250 miles,9 and two cross service translator windows for new translators10 with no mention of the LCRA Section 5 anywhere. The FCC provided extensive guidance and requirements11 for pending Auction No. 83 translator applicants to demonstrate compliance with the LCRA prior to the 2013 LPFM filing window using such means as ownership caps and LPFM non-preclusion studies to assure ongoing spectrum availability in top markets. Translator applicants who failed to demonstrate compliance were dismissed. The FCC was alerted to potential harmful results and LCRA violations from the (new) AM cross-service translator windows by a timely filing prior to the first such window and has not responded as of this writing.12 The FCC has not formally revised filing forms to comport with LCRA Section 5.13 In light of these mixed messages, confusion from translator applicants is understandable, however these parties are not absolved of responsibility to uphold the LCRA. Translator applicants as far back as November 2013 are at risk of LCRA violation. This is not a 9 Public Notice. Media Bureau Announces Filing Dates and Procedures For AM Station Filing Window for FM Translator Modifications. DA 1491. (December 23, 2015). 10 Public Notices: F iling Instructions For Cross-Service Fm Translator Auction Filing Window For Am Broadcasters To Be Open July 26 – August 2, 2017 DA 17-533 (June 6, 2017). Filing Instructions For Second Cross-Service Fm Translator Auction Filing Window For Am Broadcasters (AUCTION 100) DA 17-1168 (December 4, 2017). 11 Refer to C reation of a Low Power Radio Service. F ifth Order on Reconsideration and Sixth Report and Order, 27 FCC Rcd 15402 (2012).