[Federal Register Volume 77, Number 66 (Thursday, April 5, 2012)]
[Rules and Regulations]
[Pages 20555-20558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8129]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-25; FCC 12-28]
Implementation of the Local Community Radio Act of 2010; Revision
of Service and Eligibility Rules for Low Power FM Stations
AGENCY: Federal Communications Commission.
ACTION: Final rule; denial of petitions for reconsideration.
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SUMMARY: In this document, the Commission modifies its rules in order
to implement provisions of the Local Community Radio Act of 2010
(``LCRA'') that unambiguously require the Commission to eliminate its
third-adjacent channel spacing requirements and to maintain the spacing
requirements currently in place to protect radio reading services. The
Commission also dismisses and/or denies various petitions for
reconsideration of the Third Report and Order in MM Docket No. 99-25
and terminates a Second Further Notice of Proposed Rulemaking in that
docket.
DATES: Effective June 4, 2012.
FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
document in MM Docket No. 99-25, FCC No. 12-28, adopted March 19, 2012.
A synopsis of the proposed rulemaking segment of this decision will be
published in a later issue of the Federal Register. The full text of
the Fifth Report and Order, Fourth Further Notice of Proposed
Rulemaking and Fourth Order on Reconsideration 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.
Paperwork Reduction Act Analysis. This Report and Order does not
adopt any new or revised information collection requirements subject to
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C.
3501-3520). In addition, therefore, it does not contain any new or
modified ``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).
Report to Congress. The Commission will send a copy of this Fifth
Report & Order to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Summary of Fifth Report and Order and Fourth Order on Reconsideration
I. Introduction
1. In the Fifth Report and Order, we modify our rules to implement
certain provisions of the Local Community Radio Act of 2010 (``LCRA''),
which unambiguously require the Commission to eliminate its third-
adjacent channel spacing requirements and to maintain the spacing
requirements currently in place to protect radio reading services. In
the Fourth Order on Reconsideration, we dismiss in part and deny in
part a petition for reconsideration of the Third Report and Order in
this docket, which the Commission released in 2007, and terminate the
Second Further Notice of Proposed Rulemaking (Second FNPRM) that
accompanied that order.
II. Background
2. In January 2000, the Commission adopted a Report and Order
establishing the LPFM service. In doing so, the Commission sought ``to
create a class of radio stations designed to serve very localized
communities or underrepresented groups within communities.'' The
Commission created two classes of LPFM facilities. The LP100 class
consists of stations with a maximum power of 100 watts effective
radiated power (``ERP'') at 30 meters antenna height above average
terrain (``HAAT''), providing an FM service radius (1 mV/m or 60 dBu)
of approximately 3.5 miles. The LP10 class consists of stations with a
maximum of 10 watts ERP at 30 meters HAAT, providing an FM service
radius of approximately one to two miles. ``[T]o preserve the integrity
and technical excellence of existing FM radio service,'' the Commission
adopted separation requirements for LPFM stations operating on co-,
first- and second-adjacent channels to full-service FM, FM translator
and FM booster stations. The Commission, however, declined to impose
third adjacent channel distance separation requirements, and declined
to adopt special protections for radio reading services. The Commission
specified that LPFM stations operate on a ``secondary'' basis. In other
words, LPFM stations generally cannot cause interference to existing
and future full-service FM and other ``primary'' stations and are not
protected against interference from these stations.
[[Page 20556]]
3. To ensure that any new LPFM service included the voices of
community-based schools, churches and civic organizations, the
Commission established ownership and eligibility rules for the LPFM
service. Specifically, the Commission restricted LPFM service to
noncommercial educational (``NCE'') operations, and restricted licensee
eligibility to applicants with no attributable interests in any other
broadcast station or other media subject to the Commission's ownership
rules. The Commission also limited eligibility to local entities during
the first two years LPFM licenses were available. To choose among
entities filing mutually exclusive applications for LPFM licenses, the
Commission adopted a point system that favors local ownership and
locally-originated programming, with ties between competing applicants
resolved by either voluntary time-sharing agreements between such
applicants or, in the event that the applicants cannot agree, the
imposition of ``involuntary time-sharing,'' with each tied and
grantable applicant awarded an equal, successive and non-renewable
license term of no less than one year, for a combined total eight-year
term.
4. In September 2000, the Commission adopted a Memorandum Opinion
and Order on Reconsideration. In the Reconsideration Order, the
Commission revised and clarified some of its LPFM rules, including the
local program origination criterion adopted for the point system. The
Commission again declined to impose third-adjacent channel separation
requirements. Instead, it adopted complaint and license modification
procedures to address any unexpected, significant third-adjacent
channel interference problems caused by LPFM stations. It also modified
the spacing standards to protect radio reading services and adopted
procedures for addressing any interference caused by an LPFM station to
the input signal of an FM translator or FM booster station.
5. Shortly thereafter, in December 2000, Congress enacted the
Making Appropriations for the Government of the District of Columbia
for FY 2001 Act (``2001 DC Appropriations Act''). Therein, Congress
directed the Commission to prescribe third-adjacent channel spacing
requirements for LPFM stations, which the Commission did in April 2001.
Congress also directed the Commission to conduct an experimental
program to evaluate the likelihood of interference to existing full-
service FM stations and FM translator stations if LPFM stations were
not subject to third-adjacent channel spacing requirements, and to
submit a report that included the Commission's recommendations
regarding reduction or elimination of the spacing requirements for
third-adjacent channels. The Commission selected an independent third
party, the Mitre Corporation (``Mitre''), to conduct field tests. Mitre
submitted a report to the Commission, which, in turn, sought comment on
the report. In February 2004, the Commission submitted a report to
Congress on this issue. Based on the Mitre study, the Commission
recommended that Congress ``modify the statute to eliminate the third-
adjacent channel distan[ce] separation requirements for LPFM
stations.''
6. In March 2005, the Commission adopted a Second Order on
Reconsideration and Further Notice of Proposed Rulemaking. In the
Second Order, the Commission modified some of the rules governing the
LPFM service, noting that the rules needed adjustment in light of the
experiences of LPFM applicants and licensees. In the accompanying
FNPRM, the Commission sought comment on a number of issues with respect
to LPFM ownership restrictions and eligibility. The Commission also
proposed certain changes to the rules governing the formation and
duration of voluntary and involuntary time-sharing arrangements among
mutually exclusive LPFM applicants. Finally, the Commission sought
comment on a number of changes to the LPFM technical rules.
7. In December 2007, the Commission released the Third Report and
Order and Second FNPRM. In the Third Report and Order, the Commission
resolved the issues raised in the FNPRM. Among other things, the
Commission set forth an interim processing policy that it would use to
consider requests for waiver of the second-adjacent channel spacing
requirements from certain LPFM stations, reinstated the local ownership
requirement, and clarified its definition of local origination. The
Commission also modified the rules governing the formation and duration
of voluntary and involuntary time-sharing arrangements among mutually
exclusive LPFM applicants. In the Second FNPRM, the Commission proposed
certain rule changes designed to avoid the potential loss of LPFM
stations. The Commission made these proposals ``[i]n light of changed
circumstances since [it] last considered the issue of protection rights
for LPFM stations from subsequently authorized full-service stations.''
The Commission sought comment on whether to codify the procedures for
LPFM stations seeking a waiver of the second-adjacent channel spacing
requirements, whether rule changes were warranted to provide additional
flexibility to propose LPFM station modifications, whether to require
full-service new station and modification applicants to provide
technical and/or financial assistance to potentially impacted LPFM
stations, whether to adopt contour protection-based licensing standards
for LPFM stations, and whether to modify the LPFM-FM translator
protection priorities.
8. On January 4, 2011, President Obama signed the LCRA into law.
Through the LCRA, Congress expanded LPFM licensing opportunities.
Specifically, Congress repealed the requirement that LPFM stations
operate a minimum distance from nearby stations operating on third-
adjacent channels, and required the Commission to eliminate its third-
adjacent channel minimum distance separation requirements. Congress
also authorized the Commission to waive the second-adjacent channel
spacing requirements if an LPFM station demonstrates that its proposed
operations will not result in interference to any authorized radio
service. Further, it set forth criteria that the Commission must take
into account when licensing FM translator, FM booster and LPFM
stations.
9. As Congress expanded LPFM licensing opportunities, it also took
steps to provide enhanced interference protection to existing full-
service FM, FM translator and FM booster stations. Specifically, while
Congress eliminated the third-adjacent channel spacing requirements, it
required the Commission to retain the spacing requirements that apply
to LPFM stations operating on a third-adjacent channel to FM stations
that broadcast radio reading services. Congress also required the
Commission to modify its rules to ``address the potential for predicted
interference to FM translator input signals on third-adjacent
channels,'' and to modify the interference protection and remediation
requirements applicable to LPFM stations operating on third-adjacent
channels.
III. Fifth Report and Order
10. The LCRA unambiguously requires the Commission to eliminate its
third-adjacent channel spacing requirements and to maintain the spacing
requirements currently in place to protect radio reading services. We
do so in this Fifth Report and Order. We take these steps without
providing prior public notice and comment because they involve no
discretion. We merely are revising our rules in the manner specified in
the legislation. Notice and
[[Page 20557]]
comment would serve no purpose and thus are unnecessary. Our actions
fall within the ``good cause'' exception of the Administrative
Procedure Act (``APA'').
A. Third-Adjacent Channel Minimum Distance Separation Requirements
11. Section 2 of the LCRA amends section 632 of the 2001 DC
Appropriations Act to delete the requirements that the Commission
establish and maintain minimum distance separations for third-adjacent
channels. It essentially lays the groundwork for section 3(a) of the
LCRA, which requires the Commission to ``modify its rules to eliminate
third-adjacent minimum distance separation requirements between--(1)
low-power FM stations; and (2) full service FM stations, FM translator
stations, and FM booster stations.'' Section 73.807 of the Commission's
rules currently sets forth these spacing requirements. We hereby delete
the provisions requiring protection of third-adjacent channel stations
set forth in that section, with the exception of Sec. 73.807(a)(2),
(b)(2) and (g) of our rules.
B. Protection of Radio Reading Services
12. Radio reading services provide access to printed news and other
information sources for blind or print-disabled persons. They are
transmitted on one of several standardized subcarrier frequencies
within a 200 kHz FM channel. These transmissions cannot be received on
a standard radio. Listeners must use special radios that tune
subcarrier signals to receive these services. When the Commission
established the LPFM service in 2000, it initially did not adopt any
additional interference protections for radio reading services. The
Commission reasoned that subcarrier programming is transmitted within a
broadcast station's assigned frequency and thus receives the same
protection from interference as the main broadcast programming of the
station.
13. The Commission reconsidered this decision shortly thereafter
due to concerns about the greater vulnerability of radio reading
service receivers to third-adjacent channel interference. It noted
that, because of their designs, the subcarrier receivers used for radio
reading services are more susceptible to interference than mass
marketed receivers. The Commission therefore modified the spacing
standards set forth in Sec. 73.807 of the rules to require LPFM
stations to satisfy the second-adjacent channel spacing requirements
with respect to any third-adjacent channel FM station that broadcasts a
radio reading service via a subcarrier frequency.
14. The Commission took this step because, at the time, it had
declined to adopt generally applicable third-adjacent channel spacing
requirements. It later adopted such requirements at the direction of
Congress. These spacing requirements were identical to the second-
adjacent channel spacing requirements. Accordingly, while the
Commission did not delete the protections specific to FM stations
providing radio reading services from the rules, the protections became
redundant. Now, however, with the elimination of the third-adjacent
spacing requirements, these provisions again have relevance. In this
regard, section 4 of the LCRA directs the Commission to ``comply with
existing minimum distance separation requirements'' for stations that
broadcast radio reading services. Accordingly, we conclude that we must
retain without modification Sec. Sec. 73.807(a)(2) and (b)(2) of our
rules to implement section 4.
IV. Fourth Order on Reconsideration
15. As noted above, in the Third Report and Order, the Commission
adopted an interim waiver processing policy. The Commission also
revised Sec. 73.809 and other provisions of the rules in order to
protect and preserve the LPFM service. Ace Radio Corporation (``Ace
Radio'') filed a petition for reconsideration (``Ace Radio Petition'')
of the Third Report and Order, which opposed both the interim waiver
processing policy and the revisions made to Sec. 73.809. For the
reasons discussed below, we deny in part the Petition and defer
consideration of the remainder of the Ace Radio's arguments.
16. Ace Radio challenges the interim waiver processing policy.
However, in the Fourth FNPRM, we tentatively conclude that section
3(b)(2) of the LCRA supersedes this policy. We believe it is
appropriate to defer consideration of Ace Radio's arguments regarding
the interim waiver processing policy until we have resolved this issue.
To the extent Ace Radio's arguments remain relevant, we will consider
them at that time.
17. We reject Ace Radio's arguments regarding our revisions to
Sec. 73.809 of the rules to remove second-adjacent channels from the
interference complaint procedures set forth therein. Ace Radio first
argues that it did not have an opportunity to comment on the
Commission's proposal to modify Sec. 73.809 of the rules to remove
second-adjacent channels from the rule. It also asserts that the
revisions to Sec. 73.809 are not justified by the record and, when
coupled with the Commission's interim waiver processing policy, will
allow LPFM stations to operate within a full-service station's 70 dBu
contour, resulting in interference holes, otherwise known as the
``swiss cheese'' effect.
18. The Commission provided ample public notice that it was
considering modification of Sec. 73.809 of the rules to remove second-
adjacent channels. In the FNPRM, the Commission explicitly raised the
issue of ``encroachment'' and whether a relaxation of the second-
adjacent channel interference restrictions found in Sec. 73.809 of the
rules was necessary to prevent LPFM stations from being displaced.
While Ace Radio argues that ``the number of city of license
applications filed does not justify [the Commission's] action,'' it
fails to raise any facts or questions of law showing that the
Commission's decision was incorrect. Contrary to Ace Radio's suggestion
that the number of LPFM stations at risk of displacement is
insignificant, the Bureau identified 44 LPFM stations that could be
forced to cease operations as a result of the filing activity resulting
from the January 2007 lifting of the freeze on the filing of FM
community of license modification proposals combined with the
implementation of new streamlined licensing procedures.
19. We also note that Ace Radio has mischaracterized the effects
this rule modification will have on signal reception within a full-
service station's 70 dBu contour. The diagram provided by Ace Radio
portrays the full 60 dBu contour of 118 hypothetical LPFM stations
within the 70 dBu contour of a full-service station. The fact that an
LPFM station has a 60 dBu contour on a second- or third-adjacent
channel inside the 70 dBu contour of a full-service station does not
establish that the LPFM station would cause interference. Any potential
interference received by the full-service station would be only in the
immediate vicinity of the low-power transmitter site, and can be
substantially reduced or eliminated through various technical measures.
Finally, contrary to Ace Radio's assertion, the Commission did not, in
its modification of Section 73.809, remove the second-adjacent
restriction for the general allocation processes for LPFMs. Rather,
this rule change is limited to situations involving a full-service
station that is authorized subsequent to an LPFM station. As such, Ace
Radio's concerns are without merit.
[[Page 20558]]
V. Termination of Second Further Notice of Proposed Rulemaking
20. As noted above, the Commission issued a Second FNPRM in 2007.
We find that all of the proposals made in the Second FNPRM are either
inconsistent with or otherwise mooted by the LCRA. Specifically, the
Commission proposed to codify the interim processing policy for second-
adjacent channel waiver requests that it adopted in the Third Report
and Order. However, in the Fourth FNPRM, we conclude that the second-
adjacent channel waiver provisions of the LCRA supersede this interim
policy. Accordingly, we find the Commission's proposal to codify the
interim policy to be moot and will not pursue it further. Similarly, we
find the Commission's proposal to adopt a contour overlap interference
protection approach to be statutorily barred by section 3(b)(1) of the
LCRA, which prohibits the Commission from modifying the current co-
channel and first- and second-adjacent channel distance separation
requirements. We will not pursue this proposal either. Finally, the
Commission proposed certain rule changes related to LPFM station
displacement, the obligations of full-service new station and
modification applicants to potentially impacted LPFM stations, and
LPFM-FM translator protection priorities. We believe that Congress's
adoption of the LCRA renders pursuit of those earlier proposals
unnecessary at this time. Thus, we will not move forward with any of
them. Given our findings regarding each of the proposals set forth by
the Commission in the Second FNPRM, we consider the Second FNPRM to
have been concluded.
VI. Adminstrative Matters
A. Congressional Review Act
21. The Commission will send a copy of this Fifth Report and Order
to Congress and the Government Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
VII. Ordering Clauses
22. Accordingly, It is ordered, pursuant to the authority contained
in the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat.
4072 (2011), and 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 Fifth Report and Order, Fourth Further Notice of
Proposed Rulemaking and Fourth Order on Reconsideration is adopted.
23. It is further ordered that pursuant to the authority contained
in the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat.
4072 (2011), and sections 1, 2, 4(i), 303, and 307 of the
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, and 307,
the Commission's rules are hereby amended. It is our intention in
adopting these rule changes that, if any provision of the rules is held
invalid by any court of competent jurisdiction, the remaining
provisions shall remain in effect to the fullest extent permitted by
law.
24. It is further ordered that the rules shall be effective June 4,
2012.
25. It is further ordered that the Petition for Rulemaking filed by
REC Networks on July 16, 2004, is hereby dismissed, and Proceeding No.
PRM-04-MB is terminated.
26. It is further ordered that the Petition for Reconsideration
filed by Ace Radio Corp. on February 19, 2008, is denied in part.
27. It is further ordered that the Second Further Notice of
Proposed Rulemaking in MM Docket No. 99-25 is terminated.
28. It is further ordered that the Consumer and Governmental
Affairs Bureau, Reference Information Center, shall send a copy of this
Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking
and Fourth Order on Reconsideration, 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.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 to read as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.807 is amended by revising the introductory text to read
as follows:
Sec. 73.807 Minimum distance separation between stations.
Minimum separation requirements for LP100 and LP10 stations, as
defined in Sec. Sec. 73.811 and 73.853, are listed in the following
paragraphs. An LPFM station will not be authorized unless the co-
channel, first- and second-adjacent and IF channel separations are met.
An LPFM station need not satisfy the third-adjacent channel separations
listed in paragraphs (a) through (d) in order to be authorized. Minimum
distances for co-channel and first-adjacent channel are separated into
two columns. The left-hand column lists the required minimum separation
to protect other stations and the right-hand column lists (for
informational purposes only) the minimum distance necessary for the
LPFM station to receive no interference from other stations assumed to
be operating at the maximum permitted facilities for the station class.
For second-adjacent channel and I.F. channels, the required minimum
distance separation is sufficient to avoid interference received from
other stations.
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[FR Doc. 2012-8129 Filed 4-4-12; 8:45 am]
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