FCC Launches Rulemaking to Implement Low Power Protection Act

On March 30^th, the FCC launched a proposed rulemaking to implement the Low Power Protection Act (LPPA) which became effective on January 5, 2023.  The Act provides a means by which existing low power television stations can qualify for and apply for Class-A station status.  Congress required the FCC to initiate a rulemaking to implement the LPPA within 90 days of its adoption.

Aside from one very important limiting distinction, the LPPA and the FCC’s proposed rules to implement it mimic the terms, scope and implementation of the Class A Protection Act in 2000.  Unlike that Act, which enabled low power television stations anywhere to qualify for and seek Class A protection, the LPPA limits qualified stations to those located in television markets of fewer than 95,000 television households.  The FCC concludes that this limitation reflects Congress’ intention to convey the benefits of primary Class A status under the LPPA to small market LPTV stations that reach a relatively small number of potential viewers.  The FCC proposes to use Neilsen’s DMAs for the markets, but has asked for comment on other market size definition systems/measures that could be used.  Using Neilsen’s most recent DMA TV household figures, only stations in approximately markets 178-210 would qualify, most of which are in rural areas.

As with the 2000 Act, a station can only qualify if it was operating for at least 18 hours per day and originating at least three hours of locally produced programming per week for each of the 90 days preceding the LPPA effective date.  The 90-day period is October 7, 2022 – January 5, 2023.  Applicants will have to supply both a certification and documentation to prove the station met the requirements during the 2000 Act implementation.  The FCC proposes that documentation would include electricity bills, program logs, EAS logs and agreements to air programming.

In connection with the qualifying criteria to air at least three hours of locally originated programming each week, the FCC suggests the submission of copies of any agreements to purchase and air such programming and/or identify the producer of any programming it claims is locally produced, the location where the programming was produced, and records of advertisements aired during locally produced programming showing that the programming was in fact aired.  The FCC invites comment on other forms of documentation that might be acceptable.  Once a station applies for Class A status, the LPPA requires that stations begin airing qualified children’s television core programming and maintaining an online public file.

In the end, the market size limitation and the qualifying on-air activities during the 90-day period prior to LPPA effectiveness will be the two main limiting criteria for low power television stations to seek Class A status.  Once adopted, the FCC will set dates for applications to be filed, which will be for a period of one-year from the effective date of the new rules.