WASHINGTON, D.C.—The FCC has issued a Notice of Proposed Rulemaking seeking comments on the rules it is proposing for the implementation of the Low Power Protection Act (LPPA), which was signed into law by President Biden in January.
U.S. Senators Roy Blunt (Mo.) and Ron Wyden (Ore.) introduced the Low Power Protection Act to strengthen spectrum rights for certain low power television (LPTV) stations. It requires the FCC to open a new filing window during which qualifying LPTV stations could apply for and receive Class A status that would protect LPTV stations from being bumped off-air by harmful interference.
The law was praised by the NAB and the Advanced Television Broadcasting Alliance, but had been criticized by the LPTV Broadcasters Association for putting excessive limits on the number of LPTV stations who could apply for Class A status.
In the Notice, the FCC noted that the LPPA sets forth eligibility criteria for stations seeking Class A and provides that the Commission “may approve” an application submitted by an LPTV station if the station meets certain eligibility criteria. Those include:
- During the 90-day period preceding the date of enactment of the LPPA (i.e., between October 7, 2022 and January 5, 2023), the station satisfied the same requirements applicable to stations that qualified for Class A status under the CBPA, “including the requirements…with respect to locally produced programming;”
- The station satisfies the requirements of 47 CFR § 73.6001(b)-(d) or any successor regulation;
- The station demonstrates that it will not cause any interference as described in the CBPA;
- During that same 90-day period, the station complied with the Commission’s requirements for LPTV stations; and
- As of January 5, 2023, the station operated in a Designated Market Area with not more than 95,000 television households;
- Finally, the LPPA requires that a station accorded Class A status must (1) be subject to the same license terms and renewal standards as a license for a full power television broadcast station (except as otherwise expressly provided in the LPPA) and (2) remain in compliance with paragraph (c)(2)(B) of the statute during the term of the license.
In an analysis of the FCC filing, the general council of the LPTV Broadcasters Association noted that the FCC made a number of eligibility proposals for stations seeking to obtain Class A status:
- Between October 7, 2022 and January 5, 2023, which is the “Eligibility Period”, the station (1) operated a minimum of 18 hours per day; (2) aired an average of 3 hours per week of locally-produced programming; and (3) was otherwise in compliance with the LPTV rules, explained Davina Sashkin, partner at Wilinson, Barker, Knauer, LLP in an email the LPTV Broadcasters Association sent to its members.
- Station causes no interference.
- Station operates in a DMA of 95,000 households or fewer.
- TV translator stations would not be eligible because they cannot satisfy the “locally produced programming” criteria, based on an assumption that translators generally only rebroadcast programing that originates outside their primary station’s noise-limited contour
- Also ineligible: analog LPTV stations and LPTV stations which were silent for any of the Eligibility Period
- Deviation from strict eligibility criteria will only be permitted for compelling circumstances (such as natural disaster).
- The applying station’s transmission facilities must have been located within the qualifying DMA on January 5, 2023.
- Qualifying DMAs would be determined using Nielsen’s monthly Local TV Report, she concluded.
Sashkin also noted that the applicant must certify that the three statutory criteria were met during the Eligibility Period; the applicant must submit documentation to substantiate its operating status and programming during the Eligibility Period; the applicant must demonstrate compliance with (a) existing digital Class A interference and LPTV protection rules, rather than obsolete analog rules referenced in the LPPA, (b) the proposed protection rules for digital full-power TV, and (c) land-mobile protection requirements; stations may only apply for existing, licensed facilities, not permitted facilities; local public notice will be required.
The FCC also proposed some ongoing Licensing/Eligibility requirements, she noted. Those include a proposal to require stations that convert to Class A to continue to satisfy eligibility requirements forever, including staying in a DMA of not more than 95,000 households.
Beyond that, the FCC was seeking comment in a number of areas, Saskin explained in an email to LPTV Broadcasters Association members.
According to Saskin these include:
- Whether applying stations must comply with full-power rules applicable to Class A stations, beginning from the submission date of the application to convert to Class A, Sashkin wrote.
- Whether applying stations must comply with all other Class A rules beginning from submission of application to convert to Class A.
- What sort of documentation should be used to substantiate the operating and programming during the Eligibility Period?
- Whether the approach proposed to allow only rare deviation from the strict eligibility criteria is appropriate.
- What is the meaning of the word “operates” vis-a vis the DMA?
- Whether the FCC should adopt the Nielsen Local TV Report to determine DMAs, or an alternative system.
- The FCC also seeks comment on the LPTV Broadcasters Association’s proposal to use Metropolitan Statistical Areas (MSAs) and Rural Service Areas (RSAs) instead of DMAs.
- Ongoing licensing/eligibility:
- Whether the FCC should require converted Class A stations to adhere to full power station rules going forward.
- Whether converted Class A stations be required to continue compliance with the original eligibility requirements.
- Whether the converted Class A station be required to remain in a DMA under 95,000 households, and what happens if the DMA changes (rather than the station moving)?
The full FCC filing is available here.
