[Federal Register Volume 76, Number 146 (Friday, July 29, 2011)]
[Proposed Rules]
[Pages 45491-45499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19171]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 74
[MM Docket No. 99-25; MB Docket No. 07-172, RM-11338; FCC 11-105]
Creation of a Low Power Radio Service; Amendment of Service and
Eligibility Rules for FM Broadcast Translator Stations
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission considers how the recently
enacted Local Community Radio Act (``LCRA'') will impact future LPFM
and translator station licensing. Section 5 of the Act requires the
Commission to ensure that: Licenses are available for both LPFM and
translator stations; licensing decisions are based on community needs;
and translator and LPFM stations remain equal in status. The item
tentatively finds that a previously adopted cap on translator
applications is inconsistent with the LCRA's directives. It considers
three alternate processing schemes, and tentatively concludes that a
market-specific processing policy would most faithfully implement
section 5's directives. The item sets forth proposed LPFM channel
floors for the top 150 markets, and proposes to dismiss all translator
applications in markets where the number of available LPFM channels is
below the channel floor. The item also considers whether the Commission
should take additional steps to prevent the trafficking of translator
construction permits, and whether translators from Auction No. 83
should be allowed to
[[Page 45492]]
rebroadcast the signals of AM stations at night.
DATES: Comments must be filed on or before August 29, 2011, and reply
comments must be filed on or before September 12, 2011.
ADDRESSES: You may submit comments, identified by MM Docket No. 99-25
and MB Docket No. 07-172, by any of the following methods:
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
Mail: Commission's Secretary, Office of the Secretary,
Federal Communications Commission, 445 12th St., SW., Room TW-A325,
Washington, DC 20554.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, or phone: 202-418-0530 or TTY: 202-418-0432).
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the supplementary
information section of this document.
FOR FURTHER INFORMATION CONTACT: Peter Doyle, (202) 418-2789.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Further Notice of Proposed Rulemaking, MM Docket No. 99-25; MB Docket
No. 07-172, RM-11338, adopted and released on July 12, 2011. The full
text of this document is available for inspection and copying during
normal business hours in the FCC Reference Center (Room CY-A257), 445
12th Street, SW., Washington, DC 20554. The full text may also be
downloaded at: http://www.fcc.gov.
Comment Period and Procedures
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415 and 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8 a.m. to 7 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Summary of Proposed Rulemaking
1. In this Third Further Notice of Proposed Rule Making (``Third
Further Notice''), the Commission seeks comment on the impact of the
enactment of the LCRA on the procedures previously adopted to process
the approximately 6,500 applications which remain pending from the 2003
FM translator window. The goals of this proceeding are to develop FM
translator application processing policies that faithfully implement
LCRA directives, to resume promptly the licensing of the remaining
translator applications consistent with those directives, and to chart
a path forward to the licensing of new LPFM stations in accordance with
the framework established by the LCRA.
2. Under the Commission's rules, LPFM and FM translator
applications may be filed only during ``windows'' announced by the
Commission. Translator applications have priority over later-filed LPFM
applications. The last LPFM filing window was in 2001. The translator
applications at issue here have been pending since 2003, when they were
filed in response to an FM non-reserved band translator-only window,
Auction No. 83. This window generated over 13,000 applications. In
2005, the Commission froze processing of the applications due to
concerns that they would limit LPFM licensing opportunities. In doing
so, the Commission noted the need to address a basic question set forth
in a 2004 Notice of Inquiry in the broadcast localism proceeding:
``Recognizing that both LPFM stations and translators provide valuable
service, what licensing rule changes should the Commission adopt to
resolve competing demands by stations in these two services for the
same limited spectrum?''
3. On December 11, 2007, the Commission released a Third Report and
Order and Second Further Notice of Proposed Rulemaking (``Third Report
and Order'' or ``Second Further Notice'') in MM Docket No. 99-25. The
Commission considered whether Auction No. 83 filing activity had
adversely impacted its goal to provide to both LPFM and translator
applicants reasonable access to limited FM spectrum in a manner which
promotes the ``fair, efficient, and equitable distribution of radio
service,'' and concluded that processing all of the then-pending 7,000
translator applications would frustrate the development of the LPFM
service. To address this concern, the Third Report and Order
established a going-forward limit of ten pending short-form FM
translator applications per applicant from Auction No. 83, and directed
the Media Bureau (``Bureau'') to resume processing the applications of
those applicants in compliance with this numerical cap. The Commission
found that this limit would not have an adverse impact on more than 80
percent of those applicants and would appropriately balance the
equitable interests of the remaining 20 percent against important LPFM
licensing goals and policies.
4. On January 4, 2011, President Obama signed the LCRA into law.
Among other things, the LCRA expands LPFM licensing opportunities by
repealing the requirement that LPFM stations operate a minimum distance
from nearby stations operating on ``third-adjacent'' channels. Section
5 of the LCRA requires the Commission, when licensing FM translator, FM
booster and LPFM stations, to ensure that: licenses are available to FM
translator stations, FM booster stations, and low-power FM stations;
that licensing decisions are made based on the needs of the local
community; and that FM translator stations, FM booster stations, and
low-power FM stations
[[Page 45493]]
remain equal in status and secondary to existing and modified FM
stations.
A. Issues Relating to Section 5 of the LCRA
5. Section 5(1)--Ensuring that licenses are available. In its
broadest terms, section 5(1) is clear: it mandates that the Commission
adopt licensing procedures that ensure some minimum number of licensing
opportunities for each service throughout the nation. Read together
with section 5(2), we also interpret section 5(1) to require the
Commission to provide, to the extent possible, licensing opportunities
for both services in as many local communities as possible. Prior to
the enactment of the LCRA, several commenters raised concerns directly
related to this section 5(1) mandate. They argued that the nationwide
cap, which does not operate based on spectrum availability in specific
areas, would not ensure future LPFM opportunities in certain larger
spectrum-limited markets. These commenters contended that translator
applicants would attempt to retain their most valuable applications
which propose service to densely populated areas. Due to the very large
number of pending applications in these markets, they predict that a
cap-based dismissal process would result in the dismissal of some--but
not all--applications proposing facilities on channels and at locations
otherwise available for LPFM licensing. Thus, they claim, the
anticipated dismissals would not, in fact, ``free up'' spectrum for new
LPFM stations at or near the locations specified in the dismissed
translator applications because ``blocking'' translator applications
would remain. The Media Bureau has carefully reviewed the Common
Frequency study. It has found that the methodology is reasonable. Using
similar assumptions, the Bureau has undertaken limited analyses of a
number of other large markets. It also found that ``blocking''
translator applications would likely remain following the completion of
the cap dismissal process due to the very high number of pending
applications and/or discrete applicants in these markets. These
findings raise significant concerns about whether the ten-application
cap would be a certain and effective processing policy for preserving
LPFM licensing opportunities in many larger markets. We seek comment on
this issue.
6. Following the enactment of the LCRA, the Bureau undertook a
nationwide LPFM spectrum availability analysis. The Bureau studied all
top 150 radio markets, as defined by Arbitron, and smaller markets
where more than four translator applications are pending. The results
of that analysis are presented in Appendix A of the Third Further
Notice. The total number of identified channels (``LPFM Channels'')
currently available for LPFM use is listed in the ``Channel'' column.
7. The Bureau analysis establishes that no or limited useful
spectrum for future LPFM stations is likely to remain in numerous
specific radio markets unless the translator dismissal procedures
reliably result in the dismissal of all ``blocking'' translator
applications. For example, no channels would be available for LPFM
licensing in 13 of the top 30 markets and only one or two channels
would be available in six others if ``blocking'' translator
applications remain. Based on the record developed in the proceeding,
we tentatively conclude that the ten-application cap is inconsistent
with section 5(1) because it would not ``ensure'' that licenses will be
available in spectrum-congested markets for future LPFM licensing.
Moreover, the Bureau has determined, using the same spectrum
availability methodology, that LPFM licensing opportunities would be
increased in certain spectrum-limited markets if LPFM applicants were
not required to protect pending translator applications. For example,
in Phoenix, the number of available channels available for LPFM
licensing would increase from three to five. In Houston the number of
available channels would increase from one to two. The Bureau's
analysis also establishes that market size, alone, is a poor proxy for
LPFM spectrum availability. For example, there appears to be ample
spectrum for new LPFM stations in Sacramento (Market 27) and
none in Stamford-Norwalk (Market 147). In particular, the
proximity of smaller markets to larger ones in the nation's most
populous areas appears to impact spectrum availability significantly.
8. We recognize certain limitations in the data used by the Bureau
in its analysis and note, in particular, a number of unknowns. These
include site suitability and availability, population levels near
studied locations, and demand for LPFM licenses at these locations.
Future full service station licensing and settlement activity among the
remaining translator applicants also could impact spectrum
availability. Given these limitations, the ``Channel'' and ``Total
Stations'' availability determinations likely overstate, and in some
cases may substantially overstate, the number of potential bona fide
licenses that will be available to future LPFM applicants in each
market. Nevertheless, we believe the results shown in Appendix A
provide a useful measure of LPFM spectrum availability. We seek comment
on the Bureau study, the validity of its methodology and its relevance
in informing our translator dismissal policy. We also seek comment on
other measures of LPFM spectrum availability and welcome the submission
of alternate spectrum availability assessments, both nationally and in
particular markets.
9. Given the tentative conclusion that the ten-application cap
processing policy is inconsistent with the statutory mandate to ensure
some minimum number of LPFM licensing opportunities in as many local
communities as possible, the Third Further Notice considers how best to
process the remaining translator applications in a manner that is
consistent with the LCRA. The Commission could apply several different
standards to establish compliance with an ``available'' licenses
threshold for each service consistent with section 5(1). Specifically,
we seek comment on whether we should take into account existing
translator and LPFM licenses in making a ``licenses are available''
finding. In this regard, we note that the word ``new'' appears in the
first clause of section 5 but not in subparagraph 1, suggesting that we
should consider the availability of both new and existing stations.
Alternatively, section 5(1) could be interpreted merely as a going-
forward standard, limited to ensuring a future balance between new
translator and new LPFM licenses. Under this interpretation, the
presence of a licensed translator or LPFM station would not enter into
a licensing decision under section 5(1). We seek comment on these and
other possible interpretations of section 5(1) and their impact on our
treatment of the pending translator applications.
10. The issue whether to take existing licenses into account may be
particularly significant in light of the present disparity between the
two services. Currently, 1921 translators are licensed at locations
within the top 200 Arbitron-rated markets. In contrast, 290 LPFM
stations operate in the top 200 markets. The Commission has licensed
approximately 2,700 translator stations from the 2003 window and
approximately 860 LPFM stations from the 2000-01 windows. Thus, taking
into account existing translators and LPFM stations, or even just those
licensed for the first time during the past decade, would militate in
favor of the dismissal of translator applications, at least in markets
where there is little or no
[[Page 45494]]
remaining spectrum for future LPFM stations or where substantially
fewer licensing opportunities remain. Does an interpretation that could
have that effect conflict with the section 5(3) requirement that
translator and LPFM stations remain ``equal in status''? We seek
comment on these issues.
11. Finally, it appears that it will be significantly easier to
ensure that licenses will be available for future translator stations
than for LPFM stations. As previously noted, licensing asymmetries
between the translator and LPFM services make it unlikely that LPFM
licensing will preclude translator licensing opportunities, even in
spectrum-limited markets. The translator protection rule, Sec.
74.1204, which is substantially more flexible than the minimum spacing
requirements governing the LPFM service, facilitates the filing of
technically acceptable applications in a window. It also facilitates
the resolution of technical conflicts among competing applications,
thereby permitting numerous grants from individual mutually exclusive
groups under the translator auction settlement procedures. We
tentatively conclude that these considerations establish that the
Commission's primary focus in effectuating section 5(1) must be to
ensure translator licensing procedures do not foreclose or unduly limit
future LPFM licensing. We seek comment on this conclusion.
12. Section 5(2)--Assessing the ``needs of the local community.''
The section 5(2) directive to base translator and LPFM licensing
decisions on the ``needs of the local community'' could be interpreted
to concern solely the needs of communities for additional LPFM service
on the theory that translators cannot be expected to provide meaningful
local service, at least in larger markets. We seek comment on whether,
based on a consideration of section 5 in its entirety, the obligation
to make licensing decisions based on the ``needs of the local
community'' reflects a Congressional finding that both translators and
LPFM stations can be expected to serve community needs. We note that
the Commission similarly concluded in 2007 that each of these services
can provide important programming to their local communities.
13. We also seek comment on whether and how to compare the two
services in assessing local community needs. Significant differences
exist in translator and LPFM eligibility, licensing and service rules,
differences that can dramatically affect the ability of these stations
to serve the needs of their communities. Translators may not, except in
certain narrow circumstances, originate programming. A translator is
not required to place a certain strength signal over its community of
license or comply with minimum operating schedule requirements. A
translator licensee is not required to broadcast programs that provide
significant treatment of community issues or maintain issues/program
lists. Licensing rules for new translator stations neither limit
eligibility to nor favor local applicants.
14. The Commission has traditionally assessed the comparative
``needs of a community'' for radio service as part of its obligation to
``provide a fair, efficient, and equitable distribution of radio
service. * * *'' For example, the Commission established last year a
Tribal Priority to advance section 307(b) goals ``by enabling Indian
Tribal governments to provide radio service tailored to the needs and
interests of their local communities. * * *'' Under long-standing and
well established case law, translators are accorded no weight in
assessing local service levels in FM allotment proceedings. The
Commission, in the analogous context of low-power television and
television translator licensing, has stated that the application of
section 307(b) principles would be ``inappropriate'' because such cases
would not ``present a meaningful section 307(b) issue.''
15. The main rationales for the exclusion of translators from
section 307(b) assessments are their status as secondary stations and,
as a related matter, their potential preemption by full-service
stations. LPFM stations also face potential displacement from full
service stations. In sharp contrast to the translator service, however,
the LPFM service was specifically created to fill a perceived gap in
the way that full-power stations meet community needs--``to foster a
program service responsive to the needs and interests of small
community groups, particularly specialized community needs that have
not been well served by commercial broadcast stations.'' Thus, under
the Commission's rules, LPFM stations may originate programming; those
that pledge to do so receive a licensing preference. LPFM stations must
be locally owned. No party may hold an attributable interest in an LPFM
station and another broadcast station. This restriction ensures that
each licensed LPFM station necessarily expands ownership diversity in
its community of license. The LPFM licensing rules promote share-time
settlements between or among competing local applicants, further
encouraging ownership diversity where spectrum is limited. For these
reasons, the Commission has concluded that LPFM eligibility, selection
and service rules ``will ensure that LPFM licensees will meet the needs
and interests of their communities.''
16. We seek comment on whether the Commission should take
cognizance of the differing eligibility, licensing, and service rules
for the translator and LPFM services in assessing the ``needs of a
community'' for additional radio service. If so, how heavily should
this directive weigh in favor of future LPFM licensing? What specific
translator application procedures should the Commission adopt to give
effect to section 5(2)? We also seek comment on alternate
interpretations of section 5(2) and their impact on licensing
procedures for the pending translator applications.
17. Section 5(3)--``Equal in Status.'' Section 5(3) requires that
translator and LPFM stations ``remain equal in status and secondary to
existing and modified full-service FM stations.'' We invite comment on
whether and how this requirement impacts our treatment of the pending
FM translator applications. In particular, we invite comment on whether
section 5(3) limits the Commission's authority to waive its cut-off
rules in order to give priority to a later-filed LPFM application over
a pending FM translator application. Section 5(3) refers specifically
to ``stations,'' not to ``applications.'' If section 5(3) is
interpreted to apply only to stations, the Commission would be able to
defer action on any pending FM translator applications that it
determines must make way for LPFM licensing opportunities and then
process those applications later.
18. On the other hand, a number of factors argue in favor of
interpreting section 5(3) to prohibit cut-off rule waivers in this
context. Under current Commission rules, stations in these two services
are ``co-equal'' in this licensing context in one principal way.
Specifically, under the Commission's so-called ``cut-off'' rules, a
prior filed application in one service ``cuts off'' a subsequently-
filed application in the other service. This exact issue, characterized
as ``LPFM-FM Protection Priorities'' in the Third Report and Order, has
been a central point of dispute between LPFM and translator proponents
since the imposition of the translator processing freeze in 2005.
Moreover, the Commission and parties to this proceeding have used
substantially identical language to explain their conflicting policy
positions. For example, the Commission
[[Page 45495]]
noted in 2007 that ``[t]he Third Report and Order does not reach a
conclusion on the `co-equal' status between LPFM stations and FM
translator stations. Under the Rules for these services, a first-filed
LPFM or FM translator application must be protected by all subsequently
filed LPFM and FM translator applications.'' Given that the cut-off
rules are a principal characteristic of the two services' co-equal
status and that ``stations'' and ``applications'' were used
interchangeably in the Commission proceeding before the LCRA was
adopted, it seems reasonable to assume that Congress intended the same
meaning when it used the term ``station'' in the LCRA. If so
interpreted, the Commission would lack authority to adopt a processing
policy which includes the dismissal of prior-filed translator
applications in conflict with subsequently filed LPFM applications.
Alternatively, does section 5(3) merely require that the Commission not
favor either service in developing translator and LPFM new station
licensing rules? If this alternative interpretation is adopted, what
criteria are relevant in assessing whether such rules maintain a ``co-
equal'' status between the services, especially when the current
technical licensing rules, which provide substantially greater
opportunities for future translator licensing in many markets, are
taken into account? We seek comment on these alternative
interpretations of section 5(3) and their impact on the processing of
the pending translator applications.
B. Proposed FM Translator Application Processing Plan
19. Given our tentative conclusion that the ten-application cap is
not a viable means of balancing the competing goals of introducing new
FM translator service and preserving LPFM spectrum availability, we
must consider alternative options in light of section 5's requirements
and the data in the record, including Appendix A data.
(1) Open a Joint FM Translator/LPFM Application Window
20. Although not raised by any party to this proceeding, one option
is to dismiss all pending FM translator applications from the 2003
window and make plans for a joint window for both LPFM and FM
translator applications. In theory, such an option could advance the
three section 5 mandates. However, we foresee overwhelming practical
and legal difficulties in attempting to implement such a novel
licensing process. If the translator and LPFM services were each
limited to commercial operations, then section 309(j) of the Act would
appear to require the use of efficient competitive bidding procedures.
However, both commercial and NCE translator applications can be filed
in a non-reserved FM band filing window. Accordingly, we would need to
devise an alternate method for selecting among ``mixed'' groups of
competing NCE and commercial applications.
21. The Commission has developed, not without difficulty, only one
methodology to resolve such conflicts. This comparative scheme, which
applies to the Auction 83 translator filings, requires the dismissal of
NCE applications which remain in conflict with a commercial proposal.
This methodology, which would resolve all commercial translator/LPFM
conflicts in favor of the translator application, is clearly
inconsistent with the cross-service balancing principle inherent in the
section 5 directives. The fact that translator and LPFM stations can
provide fundamentally different types of radio service adds additional
complexities to the task of crafting a comparative standard. Thus, not
only would it be extremely difficult to develop such a selection method
that fits within section 5's framework as to both services, but any
method chosen would likely be subject to extensive, time-consuming
challenges. Accordingly, we tentatively conclude that we should not
pursue this option with respect to the next window or subsequent
windows. Instead, we propose to focus on processing the pending FM
translator applications in an alternate manner that is consistent with
the LCRA. We seek comment on this tentative conclusion.
(2) Establish a Priority for Future LPFM Applications
22. Some parties have urged the Commission not to dismiss any
translator applications immediately, and to defer consideration of all
translator applications until after the next LPFM window. Only those
translator applications in conflict with LPFM filings would ultimately
be dismissed under this approach. However, for the reasons stated
above, we may implement this approach only if we conclude that section
5(3) does not bar the Commission from waiving Sec. 73.807(d). We seek
comment on the lawfulness of this licensing procedure. This approach
also would necessarily delay further the processing of translator
applications, filed in the 2003 window and now frozen for six years,
until after the close of the next LPFM window. It is also possible that
this approach would increase the disparity between the number of LPFM
and translator licenses in larger markets where spectrum exists for
both services and where the number of pending translator applications
is likely to substantially outnumber LPFM licensing opportunities. We
seek comment on whether such a licensing outcome is consistent with
sections 5(1) and (2). We also request that commenters who favor this
approach address its impact on the timing of future translator and LPFM
licensing.
(3) Adopt a Market-Specific Translator Application Dismissal Processing
Policy
23. Given the competing goals and constraints described above, we
tentatively conclude that a market-specific, spectrum availability-
based translator application dismissal policy would most faithfully
implement section 5. This approach would ensure LPFM licensing
opportunities in spectrum-limited markets while also ensuring the
immediate licensing of translator stations in communities in which
ample spectrum remains for both services, including many major markets.
It is axiomatic that community groups and niche audiences are more
plentiful in larger, more densely populated markets and, therefore,
that there is a need for greater numbers of LPFM stations in such
markets. Moreover, we think that it is important that our translator
processing policy, to the extent possible, ensure that there is
sufficient spectrum to establish a robust, dynamic and permanent LPFM
service in larger markets. In this regard, we believe that the NCE FM
service, the radio service most similar to the LPFM service, provides
one measure of the relative needs of communities for LPFM service and a
point of reference for setting LPFM licensing availability goals. Both
economics and Commission requirements support the notion that if a
radio station exists, it is meeting the needs of its listeners.
Establishing an LPFM service floor which would limit the scale of
potential LPFM licensing levels to a small fraction of the number of
licensed NCE FM stations in a market would appear to be inconsistent
with section 5(2)'s requirement to consider local community needs for
LPFM service in licensing new FM translators, especially when the
limited ability of LPFM station signals to reach audiences is taken
into account.
24. We seek comment on the following ``LPFM Channel Floors'' which
are intended to address these concerns and satisfy these licensing
goals. We also seek comment on whether a market-tier approach is a
[[Page 45496]]
reasonable means for effectuating both section 5(1) and 5(2)
directives. In proposing these channel floors, we are principally
guided by the number of top 150-market NCE FM full power stations, the
service that is most comparable to the LPFM service. In most cases, the
number of NCE FM stations exceeds, frequently by a wide margin, the
proposed market-specific LPFM channel floors. We note that the number
of licensed FM translator stations and pending translator applications
are each significantly greater than these proposed floors in most
markets. In proposing these floors, we recognize that we have no
assurance that these identified channels will result in LPFM station
licensing. The identified channels are, to some extent, theoretical
markers. The Commission will not know until the LPFM window whether
interested applicants exist at the locations where LPFM channels are
available. Moreover, these channels are at risk every day from full
power FM station modification filings. Finally, we are mindful of the
fact that the next LPFM window may provide the last best opportunity to
create a vital and sustainable community radio service in major
metropolitan areas. Given the very limited licensing opportunities that
the Bureau has identified in a number of major markets and the far more
restrictive technical rules for LPFM station licensing, we tentatively
conclude that these floors are essential to the development of the LPFM
service in spectrum-limited markets, as intended by the LCRA. We seek
comment on this tentative conclusion.
Markets 1-20: 8 LPFM Channels
Markets 21-50: 7 LPFM Channels
Markets 51-100: 6 LPFM Channels
Markets 101-150 and, in addition, smaller markets where
more than 4 translator applications are pending: 5 LPFM Channels
25. To ensure that licenses are available in all markets, we
propose to dismiss all pending applications for new FM translators in
markets in which the number of available LPFM channels, as set forth in
the Bureau study, are below these channel floors. In calculating
``available'' LPFM channels, we have included both the identified
vacant channels and those channels currently licensed to LPFM stations
which are authorized to operate at locations within the thirty-minute
latitude by thirty-minute longitude grid for each studied market. We
propose to process all pending applications for new translators in
markets in which the number of available LPFM channels meets or exceeds
the applicable LPFM channel floor.
26. We also seek comment on whether we should impose restrictions
on the translator settlement process in the ``process all'' markets to
ensure that engineering solutions to resolve application conflicts do
not reduce the number of channels available for LPFM stations in these
markets. Restricting applicants from amending their applications to
specify adjacent channels and/or different transmitter locations may be
necessary to safeguard the available LPFM channels identified in
Appendix A. As set forth therein, the Bureau's channel availability
analysis incorporates the proposed channels and locations of pending
translator applications. The translator settlement process, however,
allows mutually exclusive applicants to settle by amending their
applications to propose first-, second- and third-adjacent channels and
different transmitter locations. If unchecked, that process could
significantly impact spectrum availability for future LPFM stations,
precluding LPFM licensing opportunities on channels identified as
available in the Bureau's analysis. To ensure our ability to carry out
the statutory mandate through the LPFM channel floor proposal or
whatever approach we ultimately adopt, we propose to restrict
applicants from amending applications to specify adjacent channels and/
or different transmitter locations. We seek comment on this processing
policy and alternative approaches that would advance section 5 goals.
27. We tentatively conclude that a three-pronged licensing process
would promote section 5 goals. Under this approach, immediately
following the resolution of the matters at issue in this Third Further
Notice the Commission would resume the processing of those translator
applications where there remains sufficient spectrum for LPFM based on
the channel floors proposed above, i.e., only at locations at which
translator licensing will not undermine the section 5(1) directive to
ensure future LPFM licensing opportunities. Following the adoption of
rules implementing the other provisions of the LCRA, the Commission
would open an LPFM-only window. Thereafter, following the substantial
completion of LPFM application processing, the Commission would open a
translator-only window. Under this approach, the Commission could
immediately resume the processing of the thousands of translator
applications which propose service in markets where ample spectrum
remains for both services. Thus, it appears that this approach, if
adopted, would provide the most expeditious path to expanded translator
and LPFM station licensing and would permit the opening of an LPFM
window by the summer of 2012. In this regard, we request that any
commenter who proposes an alternative licensing approach to explain how
such approach would better implement section 5 and to address the
timing, resource and legal issues that any such approach would pose.
28. The foregoing section 5 analysis, LPFM spectrum availability
analysis, and proposed translator application processing plan rely
heavily on Arbitron market definitions. In this regard we note that the
DC Circuit has upheld the Commission's broad authority to define
``community'' differently in different contexts. We believe that
Arbitron market-based assessments as used herein are reasonable for
purposes of implementing section 5 of the LCRA. A more granular
approach would appear to be extremely burdensome and unworkable. Given
the fact that the demand for LPFM licenses at particular locations and
the availability of transmitter sites near such locations are
unknowable prior to the opening of a window, a market-based analysis
would appear to provide a reasonable ``global'' assessment of LPFM
spectrum availability in particular areas. We seek comment on this
issue and alternative definitions to implement the section 5
directives. In particular, we seek comment on whether defining the
section 5(2) term ``local community'' in terms of markets is reasonable
and whether it is appropriate to use the same definition for LPFM and
translator purposes.
29. Finally, we find that certain temporary restrictions on the
modification of translator stations authorized out of the Auction No.
83 filings are necessary to preserve LPFM licensing opportunities in
identified spectrum-limited markets. We are concerned that translator
modifications during the pendency of the rulemaking could undermine the
statutory mandate to ensure future LPFM licensing opportunities in
these markets. Accordingly, we direct the Bureau to suspend the
processing of any translator modification application that proposes a
transmitter site for the first time within any market which has fewer
LPFM channels available than the proposed channel floor. We propose to
dismiss any such application should the Commission adopt the market by
market licensing approach proposed in this Third Further Notice. We
seek comment on this proposal. We also impose an immediate freeze on
the filing of
[[Page 45497]]
translator ``move-in'' modification applications and direct the Bureau
to dismiss any such application filed after the adoption of this Third
Further Notice. This freeze shall continue until the close of the
upcoming LPFM filing window. This processing freeze will not apply to
any translator modification application which proposes to move its
transmitter site from one location to another within the same spectrum-
limited market.
C. Prevention of Trafficking in Translator Station Construction Permits
and Licenses
30. Having tentatively concluded that the Commission must process
the remaining translator applications differently, we must consider
whether a market-specific spectrum-based dismissal policy is sufficient
to safeguard the integrity of the translator licensing process. The
Third Report and Order raised concerns about the integrity of our
translator licensing procedures. We focused on the skewed applicant
filing behavior in Auction No. 83. Based on our analysis of the then-
pending applications, we found that 80 percent of the 861 filers held
ten or fewer proposals. In contrast, the top 15 filers held one-half of
the 13,377 applications. We also noted that several applicants had
engaged in the active marketing and sale of hundreds of translator
construction permits, including efforts by RAM to assign more than one-
half of the 1,046 construction permits it had been awarded from the
2003 window filings. The Commission concluded ``that our assumption
that our competitive bidding procedures would deter speculative filings
has proven to be unfounded in the Auction No. 83 context.'' The ten-
application cap was intended, in part, to address these concerns.
31. We tentatively conclude that our proposed translator
application processing policy would not be sufficient to deter
speculative licensing conduct because we face essentially identical
licensing concerns with the remaining translator filings. RAM alone
holds 1,563 of the remaining 6,475 applications. Each of the top 20
applicants continues to hold more than 20 applications and,
cumulatively, more than one-half of all applications. In contrast, the
vast majority of applicants continue to hold only a few applications.
For example, 501 of the 646 (78%) remaining applicants hold five or
fewer applications. Similar filing imbalances occur in particular
markets and regions. One applicant holds 25 of the 27 translator
applications proposing locations within 20 kilometers of Houston's
center city coordinates and 75 applications in Texas. Two applicants
hold 66 of the 74 applications proposing service to the New York City
market.
32. A number of factors may create an environment which promotes
the acquisition of translator authorizations solely for the purpose of
selling them. It is likely that a substantial portion of the remaining
grants will be made pursuant to our settlement, that is, non-auction,
procedures. Translator construction permits may be sold on a ``for
profit'' basis. Permittees are not required to construct or operate
newly authorized facilities. Absent translator licensing rule changes,
it appears that limiting the number of permits that any applicant
receives from the processing of the remaining applications is the only
effective tool to deter speculative activity. We tentatively conclude
that nothing in the LCRA limits the Commission's ability to address the
potential for licensing abuses by any applicant in Auction No. 83. We
seek comment on this issue. We also seek comment on processing policies
to deter the potential for speculative abuses among the remaining
translator applicants. For example, we seek comment on whether to
establish an application cap for the applications that would remain
pending in non-spectrum limited markets and unrated markets. Would a
cap of 50 or 75 applications in a window force high filers to
concentrate on those proposals and markets where they have bona fide
service aspirations? In addition or alternatively, should applicants be
limited to one or a few applications in any particular market? A
limitation of this sort could limit substantially the opportunity to
warehouse and traffic in translator authorizations while promoting
diversity goals. We also seek comment on alternative approaches to
protect against abuses in the translator licensing process.
D. Restrictions on the Use of FM Translators to Rebroadcast the Signals
of AM Stations
33. In 2009, the Commission authorized the use of FM translators
with licenses or permits in effect as of May 1, 2009, to rebroadcast
the signal of a local AM station. The limitation of cross-service
translator usage to already-authorized FM translators was adopted with
the intention of preserving opportunities for future LPFM licensing.
Two parties filed petitions for partial reconsideration of this aspect
of the 2009 Translator Order. Both petitions argue that the limitation
of cross-service translators to already-authorized translators does not
serve the public interest and is unfair to both AM stations and FM
translator applicants. These petitions remain pending in MB Docket No.
07-172.
34. As a result of the likely significant impact of the LCRA on the
processing of the translator applications, we believe it is also
appropriate to consider whether to remove this limit on cross-service
translators with respect to the pending FM translator applications.
Notwithstanding our decision to defer other LCRA implementation issues,
we conclude that it is appropriate to address this issue now. The
authorization of AM rebroadcasting in 2009, long after the filing of
the pending applications, created an enormous new demand for FM
translators, leading to numerous application modification waiver
requests and other filings. We believe that resolving this issue before
processing of the pending translator applications will align FM
translator licensing outcomes more closely with demand by enabling
applicants to take the rebroadcasting option into account in the
translator settlement and licensing processes, thereby advancing the
goals of section 5(2). Elimination of the date limitation at least with
respect to the pending translator applications would appear consistent
with the other actions which the Commission must take to ensure LPFM
licensing opportunities, the same goal that the going-forward AM/FM
translator rebroadcasting exclusion was intended to achieve. In
addition, the new AM/FM translator service rule has proven to be a very
successful deregulatory policy. Approximately 500 AM stations currently
use FM translators, providing hundreds of these stations with their
first nighttime authority and the opportunity to operate viably at
night. Anecdotal reports from many AM licensees repeatedly emphasize
their vastly increased ability to cover local community, governmental
and school events, and, generally, to better serve the needs of their
communities.
35. Accordingly, we request comments on the issue of whether cross-
service translators should remain limited to those authorized as of May
1, 2009 or whether the limit should be extended to include those
applications which were on file as of May 1, 2009. Specifically, would
the proposed changes in the FM translator application processing rules
provide sufficient future LPFM application opportunities to support
such a revision in the limitation on cross-service translators? Would
the proposed changes in the FM translator application processing rules
accomplish more effectively the goals
[[Page 45498]]
that the Commission sought to accomplish with the original application
cap and the limitation on cross-service translators? Should the
Commission modify this exclusion to enable translator and AM station
licensees to better meet the needs of their communities? We seek
comment on these issues.
Initial Paperwork Reduction Act of 1995 Analysis
36. This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
information collection burden for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Initial Regulatory Flexibility Analysis
37. As required by the Regulatory Flexibility Act of 1980, as
amended (``RFA'') the Commission has prepared this Initial Regulatory
Flexibility Analysis (``IRFA'') of the possible significant economic
impact on a substantial number of small entities by the policies and
rules proposed in the Notice of Proposed Rulemaking. Written public
comments are requested on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
on the Notice of Proposed Rulemaking (``NPRM'') provided in paragraph
39. The Commission will send a copy of this entire NPRM, including this
IRFA, to the Chief Counsel for Advocacy of the Small Business
Administration (``SBA''). In addition, the NPRM and the IRFA (or
summaries thereof) will be published in the Federal Register.
38. Need for, and Objectives of, the Proposed Rules. This
rulemaking proceeding is initiated to seek comment on how the enactment
of section 5 of the LCRA impacts the procedures previously adopted to
process the approximately 6,500 applications which remain from the 2003
FM translator window. The Commission previously established a
processing cap of ten pending short-form applications per applicant
from FM translator Auction No. 83. The NPRM tentatively concludes that
this cap is inconsistent with the LCRA licensing criteria. The NPRM
concludes that it is important that the translator processing policy to
be adopted will ensure that there is sufficient spectrum to establish a
robust, dynamic and permanent LPFM service in larger markets. It
tentatively concludes that a market-specific, spectrum availability-
based translator application dismissal policy most faithfully
implements section 5 of the LCRA. Specifically, the NPRM proposes to
dismiss all pending applications for new FM translators in markets in
which the number of available LPFM channels, as set forth in a Bureau
study, are below these channel floors. The item notes that this
approach would both ensure additional spectrum for LPFM stations in
markets in which it is most limited while also ensuring the immediate
licensing of translator stations in communities in which ample spectrum
remains for both services, including many major markets.
39. The NPRM also seeks comment on whether the Commission should
modify certain recently adopted FM translator service rule changes as a
result of the enactment of the LCRA. Specifically, the NPRM seeks
comment on the issue of whether cross-service translators should remain
limited to those authorized as of May 1, 2009.
40. Legal Basis. The authority for this proposed rulemaking is
contained in sections 1, 2, 4(i), 303, 307, and 309(j) of the
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and
309(j).
41. Description and Estimate of the Number of Small Entities to
Which the Proposed Rules Will Apply. The RFA directs the Commission to
provide a description of and, where feasible, an estimate of the number
of small entities that will be affected by the proposed rules. The RFA
generally defines the term ``small entity'' as encompassing the terms
``small business,'' ``small organization,'' and ``small governmental
entity.'' In addition, the term ``small Business'' has the same meaning
as the term ``small business concern'' under the Small Business Act. A
small business concern is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (``SBA'').
42. Radio Broadcasting. The proposed policies could apply to radio
broadcast licensees, and potential licensees of radio service. The SBA
defines a radio broadcast station as a small business if such station
has no more than $7 million in annual receipts. Business concerns
included in this industry are those primarily engaged in broadcasting
aural programs by radio to the public. According to Commission staff
review of the BIA Publications, Inc. Master Access Radio Analyzer
Database as of January 31, 2011, about 10,820 (97 percent) of 11,100
commercial radio stations) have revenues of $7 million or less and thus
qualify as small entities under the SBA definition. We note, however,
that, in assessing whether a business concern qualifies as small under
the above definition, business (control) affiliations must be included.
Our estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies.
43. In addition, an element of the definition of ``small business''
is that the entity not be dominant in its field of operation. We are
unable at this time to define or quantify the criteria that would
establish whether a specific radio station is dominant in its field of
operation. Accordingly, the estimate of small businesses to which rules
may apply do not exclude any radio station from the definition of a
small business on this basis and therefore may be over-inclusive to
that extent. Also as noted, an additional element of the definition of
``small business'' is that the entity must be independently owned and
operated. We note that it is difficult at times to assess these
criteria in the context of media entities and our estimates of small
businesses to which they apply may be over-inclusive to this extent.
44. FM translator stations and low power FM stations. The proposed
policies could affect licensees of FM translator and booster stations
and low power FM (LPFM) stations, as well as to potential licensees in
these radio services. The same SBA definition that applies to radio
broadcast licensees would apply to these stations. The SBA defines a
radio broadcast station as a small business if such station has no more
than $7 million in annual receipts. Given the nature of these services,
we will presume that all of these licensees qualify as small entities
under the SBA definition. Currently, there are approximately 6131
licensed FM translator stations and 860 licensed LPFM stations. In
addition, there are approximately 646 applicants with pending
applications filed in the 2003 translator filing window. Given the
nature of these services, we will presume that all of these licensees
and applicants qualify as small entities under the SBA definition.
45. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The NPRM provides for no changes in the
reporting, recordkeeping and other compliance requirements for FM
translator or LPFM licensees or applicants.
46. Steps Taken to Minimize Significant Impact on Small Entities,
[[Page 45499]]
and Significant Alternatives Considered. The RFA requires an agency to
describe any significant alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
47. The NPRM proposes to establish a market-specific, spectrum
availability-based approach to the processing of remaining translator
applications. As discussed in more detail below, alternatives
considered included dismissal of all pending translator applications
and the opening of a joint LPFM/translator window, or the deferral of
translator application processing until the close of the next LPFM
application filing window.
48. Joint Window. One option considered was to dismiss all pending
FM translator applications from the 2003 window and make plans for a
joint window for both LPFM and FM translator applications. In theory,
such an option could advance the three section 5 mandates. However, the
NPRM concludes that there would be overwhelming practical and legal
difficulties in attempting to implement such a novel licensing process.
Specifically, the NPRM notes that an alternate method for selecting
among ``mixed'' groups of competing NCE and commercial applications
would need to be devised, and concludes that it would be extremely
difficult to develop such a selection method that fits within section
5's framework as to both services, and that any method chosen would
likely be subject to extensive, time-consuming challenges.
49. LPFM Priority. Another option considered was to defer
consideration of all translator applications until after the next LPFM
window. Only those translator applications in conflict with LPFM
filings would ultimately be dismissed under this approach. The NPRM
questions the lawfulness of this licensing procedure, and also
concludes that this approach would necessarily delay further the
processing of translator applications, filed in the 2003 window and now
frozen for six years, until after the close of the next LPFM window. It
further notes that this approach would increase the disparity between
the number of LPFM and translator licenses in larger markets where
spectrum exists for both services and where the number of pending
translator applications is likely to substantially outnumber LPFM
licensing opportunities.
50. We do not believe that either of these approaches would have
offered any significant benefits to small entities than the proposed
market-based processing policy. Moreover, as discussed above, the
market-based approach ensures additional spectrum for LPFM stations in
markets in which it is most limited while also ensuring the immediate
licensing of translator stations in communities in which ample spectrum
remains for both services, including many major markets. Both of these
outcomes benefit small entities. However, we are open to comments that
might propose alternatives to any of the approaches considered above.
51. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals. None.
Ordering Clauses
52. Accordingly, it is ordered, pursuant to the authority contained
in sections 1, 2, 4(i), 303, 307, and 309(j) of the Communications Act
of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 309(j), that this
Notice of Proposed Rulemaking is adopted.
53. It is further ordered that no application to modify the
facilities of an authorized FM translator to move its transmitter site
for the first time into a market with fewer LPFM channels available
than the service floor for that market proposed herein, as set forth in
Appendix A, shall be accepted for filing until the close of the
upcoming LPFM filing window proposed for summer 2012.
54. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Notice of Proposed Rulemaking, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration, and shall cause it to be published in the
Federal Register.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-19171 Filed 7-28-11; 8:45 am]
BILLING CODE 6712-01-P