Franken FMs – The FCC Asks if It Should Continue to Allow Channel 6 LPTV Stations to Operate as FM Broadcasters

The audio from analog channel 6 TV stations can be heard on the FM dial at 87.7 – which is below the lowest official point on the standard FM band in the US (which ends at 88.1) but is nevertheless tunable on most FM radios. Over the last decade, many LPTV stations on channel 6, in markets where they had no other viable business model, turned to providing FM service through these stations. The FCC has for years inquired if these operations, often referred to as Franken FMs, should be permitted (see our articles here and here) but has never moved to stop it. Now, with the 2021 deadline for the conversion of LPTV stations to digital operation, LPTV operators have asked the FCC to bless the post-conversion operation of an analog audio signal embedded in the digital Channel 6 LPTV station transmissions so that these FM broadcast can continue, following up on a proceeding begun in 2014 (see our article here). This week, the FCC issued a Public Notice asking for additional comments as to whether these Franken FM operations should be allowed to continue, and if so what rules should govern them.

The release of this Public Notice came as somewhat of a surprise, as a similar question had recently been asked in an FCC proceeding looking primarily at LPFM rule changes, but also addressing issues about the relation of TV channel 6 to FM broadcasters (see our article here on that proceeding). In this week’s Public Notice, the FCC suggests that the LPFM proceeding is asking only whether the elimination of protections between channel 6 TV stations and noncommercial radio stations in the reserved band, as proposed in that proceeding, is compatible with the continued operation of these Franken FMs after the digital conversion deadline. It is the proceeding in which these additional comments are now being requested that will address how these stations will be regulated on a permanent basis in the future. To determine that future, this week’s Public Notice poses many specific questions about the continued operation of these Franken FMs.

Among the questions asked by this Public Notice are the following:

  • Is the operation of separate audio and video programming authorized by the current LPTV rules?
  • Can the FCC authorize the provision of this analog audio service as an “ancillary and supplementary service” to the digital operations of these Channel 6 LPTV stations?
  • If the FCC can authorize this analog audio service, should it be limited to current Channel 6 LPTV stations that are providing such a service, or can any Channel 6 LPTV offer the service?
  • Do these Channel 6 audio operations cause interference to FM stations operating in the actual FM band? If so, how should such interference be regulated?
  • Is the continued operation of these analog signals consistent with the FCC’s goal of converting all TV operations to digital?
  • If allowed, should these FM operations be transferrable – or would the rights to broadcast an analog FM signal terminate upon the sale of a Channel 6 LPTV station?
  • Should FM operational rules apply to these LPTV stations?
  • Should the LPTV licensee be subject to a yearly fee of 5% of annual gross revenues, payable to the FCC for this service if it is treated as an ancillary and supplementary service?

Comments will be due 30 days after this Public Notice is published in the Federal Register. Reply comments will be due 45 days after Federal Register publication. If you are interested in these Franken FM services, file your comments in this proceeding when the filing dates are announced.

Courtesy Broadcast Law Blog