[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Proposed Rules]
[Pages 20756-20773]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8239]
=======================================================================
-----------------------------------------------------------------------
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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission seeks comment on how to amend
its rules to implement certain provisions of the Local Community Radio
Act of 2010 (``LCRA'') that are not already the subject of Commission
action. It also proposes changes to its rules intended to promote the
low power FM service's localism and diversity goals, reduce the
potential for licensing abuses, and clarify certain rules.
DATES: Comments must be filed on or before May 7, 2012, and reply
comments must be filed on or before May 21, 2012. Written comments on
the Paperwork Reduction Act proposed information collection
requirements must be submitted by the public, Office of Management and
Budget (OMB), and other interested parties on or before June 5, 2012.
ADDRESSES: You may submit comments, identified by MM Docket No. 99-25,
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.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to the Federal
Communications Commission via email to PRA@fcc.gov and to Nicholas A.
Fraser, Office of Management and Budget, via email to Nicholas_A._Fraser@omb.eop.gov or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789. For
additional information concerning the Paperwork Reduction Act
information collection requirements contained in this document, send an
email to PRA@fcc.gov or contact Cathy Williams on (202) 418-2918.
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 order segments of this decision were published in a
previous issue of the Federal Register. 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, 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).
[ssquf] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
[ssquf] 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.
[ssquf] 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.
[ssquf] 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.
[ssquf] 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 email to fcc504@fcc.gov or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Paperwork Reducation Act of 1995
This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due June 5, 2012.
Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
[[Page 20757]]
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and (e)
way to further reduce the information collection burden on small
business concerns with fewer than 25 employees. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might
further reduce the information collection burden for small business
concerns with fewer than 25 employees.
To view a copy of this information collection request (ICR)
submitted to OMB: (1) Go to the Web page <http://www.reginfo.gov/public/do/PRAMain>, (2) look for the section of the Web page called
``Currently Under Review,'' (3) click on the downward-pointing arrow in
the ``Select Agency'' box below the ``Currently Under Review'' heading,
(4) select ``Federal Communications Commission'' from the list of
agencies presented in the ``Select Agency'' box, (5) click the
``Submit'' button to the right of the ``Select Agency'' box, (6) when
the list of FCC ICRs currently under review appears, look for the OMB
control number of this ICR and then click on the ICR Reference Number.
A copy of the FCC submission to OMB will be displayed.
OMB Control Number: 3060-0920.
Title: Application for Construction Permit for a Low Power FM
Broadcast Station; Report and Order in MM Docket No. 99-25 Creation of
Low Power Radio Service; Sec. Sec. 73.807, 73.809, 73.827, 73.865,
73.870, 73.871, 73.872, 73.877, 73.878, 73.318, 73.1030, 73.1207,
73.1212, 73.1230, 73.1300, 73.1350, 73.1610, 73.1620, 73.1750, 73.1943,
73.3525, 73.3550, 73.3598, 11.61(ii), FCC Form 318.
Form No.: FCC Form 318.
Type of Review: Revision of a currently approved collection.
Respondents: Not-for-profit institutions; State, local or tribal
governments.
Number of Respondents and Responses: 21,337 respondents with
multiple responses; 27,387 responses.
Estimated Time per Response: .0025-12 hours.
Frequency of Response: Recordkeeping requirement; On occasion
reporting requirement; monthly reporting requirement; Third party
disclosure requirement.
Obligation to Respond: Required to obtain or retain benefits. The
statutory authority for this collection of information is contained in
sections 154(i), 303, 308 and 325(a) of the Communications Act of 1934,
as amended.
Total Annual Burden: 35,146 hours.
Total Annual Costs: $39,750.
Privacy Act Impact Assessment: This information collection does not
affect individuals or households; thus, there are no impacts under the
Privacy Act.
Nature and Extent of Confidentiality: There is no need for
confidentiality with this information collection.
Needs and Uses: On March 19, 2012, the FCC released a Fifth Report
and Order, Fourth Further Notice of Proposed Rulemaking and Third Order
on Reconsideration, Creation of a Low Power Radio Service, MM Docket
No. 99-25, FCC 12-28. In the Fourth Further Notice of Proposed
Rulemaking (Fourth FNPRM), FCC 12-28, the FCC proposes to revise Sec.
73.853(b) of the Commission's rules (``rules'') to permit federally
recognized Native American Tribes and Alaska Native Villages (``Native
Nations'') and entities owned or controlled by Native Nations to hold
LPFM licenses. We have revised FCC Form 318 to reflect this proposal.
The FCC also proposes to modify its ownership rules. First, the FCC
proposes to revise its cross-ownership rule to permit cross-ownership
of an LPFM station and an FM translator or translators. Second, the FCC
proposes to modify its cross-ownership rule to permit a full-service
radio station permittee or licensee that is a Tribe or Tribal
Organization to apply for an LPFM station and to hold an attributable
interest in such station. Third, the FCC proposes to permit Tribes or
Tribal Organizations to seek more than one LPFM construction permit to
ensure adequate coverage of tribal lands. We have revised FCC Form 318
to reflect this proposal.
The FCC further proposes to modify the point system used to select
among mutually exclusive LPFM applicants and set forth in Sec. 73.872
of the rules. First, the FCC proposes to modify the ``established
community presence'' criterion to require that an applicant have
maintained an established local presence for four years instead of the
two years currently required. Second, it proposes to extend the
``established community presence'' standard in rural areas. Under the
current rule, an LPFM applicant was deemed to have an established
community presence if it was physically headquartered or had a campus
within ten miles of the proposed LPFM transmitter site, or if 75
percent of its board members resided within ten miles of the proposed
LPFM transmitter site. The Fourth Further Notice proposes to modify the
ten-mile requirement to twenty miles for all LPFM applicants proposing
facilities located outside the top fifty urban markets, for both the
distance from transmitter and residence of board member standards.
Third, the FCC proposes to allow local organizations, tribal
organizations and/or tribes to file as consortia and receive one point
under the established community presence criterion for each
organization or tribe that qualifies for such a point. Fourth, the FCC
proposes to award two points--as opposed to the one point currently
awarded--to applicants qualifying under the local program origination
criterion. Fifth, the FCC proposes to modify the point system to award
a point to Native Nations and entities owned or controlled by Native
Nations, when they propose to provide LPFM service to Native Nation
communities. We have revised the Form 318 to reflect these changes to
the point system.
Finally, the FCC proposes to modify the manner in which it
processes requests for waiver of the second-adjacent channel minimum
distance separation requirement, and to amend the rule that sets forth
the obligations of LPFM stations with respect to interference to the
input signals of FM translator or FM booster stations. We have revised
the Form 318 to reflect these proposed changes.
FCC staff uses the data to determine whether an applicant meets
basic statutory and regulatory requirements to become a Commission
licensee and to ensure that the public interest would be served by
grant of the application. In addition, the information contained within
this information collection ensures that (1) The integrity of the FM
spectrum is not compromised, (2) unacceptable interference will not be
caused to existing radio services, (3) statutory requirements are met,
and (4) the stations operate in the public interest.
Summary of the Fourth Further Notice of Proposed Rulemaking
I. Introduction
1. In the Fourth Further Notice of Proposed Rule Making (Fourth
FNPRM), we seek comment on proposals to amend our rules to implement
the remaining provisions of LCRA and to promote a more sustainable
community radio service. These changes are intended to advance the
LCRA's core goals of localism and diversity while preserving the
technical integrity of all of the FM services. In addition, we seek
comment on proposals to reduce the potential for licensing abuses.
[[Page 20758]]
II. Fourth Further Notice of Proposed Rulemaking
A. Changes to Technical Rules Required by the LCRA
2. A number of provisions of the LCRA require Commission action. We
seek comment below on how to amend our rules to most faithfully
implement these provisions of the LCRA.
1. Waiver of Second-Adjacent Channel Minimum Distance Separation
Requirements
3. In 2007, the Commission established an interim waiver processing
policy that permits an LPFM station that will receive increased
interference or be displaced by a new or modified full-service FM
station to seek waiver of the second-adjacent channel spacing
requirements in connection with an application to move the LPFM station
to a new channel. The Commission found that circumstances had changed
considerably since it last considered the issue of protection rights
for LPFM stations from subsequently authorized full-service stations.
Specifically, in late 2006, the Commission had streamlined its
licensing procedures, and announced the lifting of its freeze on the
filing of community of license modification applications. These actions
resulted in ``increased filings'' that the Media Bureau (``Bureau'')
estimated could force approximately 40 LPFM stations to cease
operations. For many of the LPFM stations at risk of displacement, the
Bureau had identified alternate channels that would require waivers of
the second-adjacent channel spacing requirements. To avoid ``potential
harm to this small but not insignificant number of LPFM stations,'' the
Commission adopted the waiver processing policy. In adopting this
policy, the Commission relied on the general waiver provisions set
forth in Sec. 1.3 of the rules.
4. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission
the authority to waive the second-adjacent channel spacing
requirements. Section 3(b)(2)(A) permits waivers where an LPFM station
establishes, ``using methods of predicting interference taking into
account all relevant factors, including terrain-sensitive propagation
models,'' that its proposed operations ``will not result in
interference to any authorized radio service.''
5. We tentatively conclude that the waiver standard set forth in
section 3(b)(2)(A) of the LCRA supersedes the interim waiver processing
policy adopted by the Commission in 2007. We note that, under the
interim waiver processing policy, when the Commission considers a
waiver request, it ``balance[s] the potential for new interference to
the full-service station at issue against the potential loss of an LPFM
station.'' Section 3(b)(2)(A) of the LCRA, on the other hand, clearly
requires an LPFM station to establish that its proposed operations
``will not result in interference to any authorized radio service.'' It
leaves no room for balancing of the potential for interference with the
potential for loss of service. We seek comment on our tentative
conclusion and our reasoning. We also seek comment on whether we should
permit LPFM applicants to make the sort of showings we routinely accept
from FM translator applicants to establish that ``no actual
interference will occur.'' Section 74.1204(d) of the rules permits a
translator applicant to demonstrate that ``no actual interference will
occur'' due to ``lack of population'' and we have permitted translator
applicants to use an undesired/desired signal strength ratio
methodology to narrowly define areas of potential interference when
proposing to operate near another station operating on a second- or
third-adjacent channel. Are such showings consistent with the statutory
mandate to accept showings that a proposed LPFM service ``will not
result in interference to any authorized radio service''? Should we
permit the use of directional antennas in conjunction with proposals
attempting to protect second-adjacent stations?
6. We request comment on the factors that we should take into
account and the showings we should require when considering requests
for waiver of the second-adjacent channel spacing requirements. Should
we require a showing that there are no fully-spaced channels available
to the LPFM applicant? Should we take into account that the proposal
would eliminate or reduce the interference received by the LPFM
applicant? Should we consider whether the proposal would avoid a short-
spacing between the proposed LPFM facilities and a full-service FM
station, FM translator or FM booster station on a third-adjacent
channel? Should we also take into account the interference protection
and remediation obligations such short-spacing would trigger? Should we
consider whether the proposal would result in superior spacing to full-
service FM, FM translator or FM booster stations operating on co- and
first-adjacent channels? Are there other factors or showings that we
should consider?
7. Section 3(b)(2)(B) of the LCRA also sets out a framework for
handling complaints when an LPFM station operating pursuant to a
second-adjacent channel waiver has caused interference to the reception
of any existing or modified full-service FM station ``without regard to
the location of the station receiving interference.'' Upon receipt of a
complaint of interference caused by an LPFM station operating pursuant
to a second-adjacent channel waiver, the Commission must notify the
LPFM station ``by telephone or other electronic communication within 1
business day.'' The LPFM station must ``suspend operation immediately
upon notification'' by the Commission that it is ``causing interference
to the reception of any existing or modified full-service FM station.''
It may not resume operations ``until such interference has been
eliminated or it can demonstrate * * * that the interference was not
due to [its] emissions.'' The LPFM station, however, may ``make short
test transmissions during the period of suspended operation to check
the efficacy of remedial measures.'' We propose to incorporate this
framework for handling complaints into the rules. We seek comment on
this proposal. We also request comment on whether and how we should
define what constitutes a bona fide complaint that would trigger the
Commission's obligation to notify the LPFM station at issue and that
station's obligation to suspend operations. Finally, we solicit comment
on whether and how to specify the showing an LPFM station operating
pursuant to a second-adjacent channel waiver must make to demonstrate
that it was not the source of the interference at issue.
2. Third-Adjacent Channel Interference Complaints and Remediation
8. When the Commission created the LPFM service in 2000, it
declined to impose third-adjacent channel distance separation
requirements, stating ``our own technical studies and our review of the
record persuade us that 100-watt LPFM stations operating without
[third]-adjacent channel separation requirements will not result in
unacceptable new interference to the service of existing FM stations.''
The Commission also noted that ``imposing [third]-adjacent channel
separation requirements on LPFM stations would unnecessarily impede the
opportunities for stations in this new service, particularly in highly
populated areas where there is a great demand for alternative forms of
radio service.''
9. Subsequently, on reconsideration, the Commission again declined
to impose third-adjacent channel separation requirements. However, it
did establish complaint and license
[[Page 20759]]
modification procedures for third-adjacent channel interference. In
doing so, the Commission stated:
Although we expect it to be the rare case where an LPFM station
operating on a [third-]adjacent channel causes more than a de
minimis level of interference within the service area of a full
power station protected by the distance separation requirements for
other channel relationships, such a result would be unacceptable if
it were to occur. Accordingly, we conclude on reconsideration that
it would be prudent to establish procedures that would encourage
cooperation between the parties and permit the Commission to take
prompt remedial action where a significant level of interference can
be traced to the commencement of broadcasts by a new LPFM station.
The procedures are set forth in Sec. 73.810 of the rules.
10. As noted, in 2001, we adopted third-adjacent channel spacing
requirements at the direction of Congress. While we did not delete the
third-adjacent channel complaint and license modification procedures
from our rules, with the adoption of the spacing requirements, the
procedures became irrelevant. Now, however, with the elimination of the
third-adjacent spacing requirements under section 3 of the LCRA, a
process for handling complaints of third-adjacent channel interference
again has relevance. Congress has recognized this.
11. Rather than simply utilize the procedures set forth in Sec.
73.810 of the rules, though, Congress has opted to impose broader
remediation obligations, which are set forth in section 7 of the LCRA.
Specifically, section 7 sets forth the following requirements:
Section 7(1) of the LCRA requires the Commission to adopt
``the same interference protections that FM translator stations and FM
booster stations are required to provide as set forth in [Sec. ]
74.1203 of [the] rules.'' These obligations apply to LPFM stations that
would be considered short-spaced under the existing third-adjacent
channel spacing requirements (``Section 7(1) Stations'').
Section 7(2) requires that a new LPFM station
``constructed on a third-adjacent channel'' must ``broadcast periodic
announcements'' that alert listeners that any interference they are
experiencing could be the result of the station's operations and that
instruct affected listeners to contact the station to report any
interference.
Section 7(3) directs the Commission to modify Sec. 73.810
of the rules to require ``[LPFM] stations on third-adjacent channels *
* * to address interference complaints within the protected contour of
an affected station'' and encourage them to address ``all other
interference complaints.''
Section 7(4) requires the Commission, to the extent
possible, to ``grant low-power FM stations on third-adjacent channels
the technical flexibility to remediate interference through the
collocation of the transmission facilities of the low-power FM station
and any stations on third-adjacent channels.''
Section 7(5) requires the Commission to ``permit the
submission of informal evidence of interference, including any
engineering analysis that an affected station may commission,''
``accept complaints based on interference to a full-service FM station,
FM translator station, or FM booster station by the transmitter site of
a low-power FM station on a third-adjacent channel at any distance from
the full-service FM station, FM translator station, or FM booster
station,'' and ``accept complaints of interference to mobile
reception.''
Section 7(6) requires the Commission to impose additional
interference protection and remediation obligations on one class of
LPFM stations.
12. Below, we discuss certain preliminary issues and tentatively
conclude that section 7 of the LCRA creates two different LPFM
interference protection and remediation regimes, one for LPFM stations
that would be considered short-spaced under third-adjacent channel
spacing requirements, and one for LPFM stations that would not be
considered short-spaced under those requirements. Then, we proceed to
discuss each of those regimes. Given the comprehensive nature of the
regimes created by section 7, we propose to eliminate the existing
interference complaint and remediation procedures set forth in Sec.
73.810 of the rules and replace them with those set forth below.
a. LPFM Interference Protection and Remediation Requirements
13. Section 7(1) and 7(3) of the LCRA both address the interference
protection and remediation obligations of LPFM stations on third-
adjacent channels. Only section 7(1) specifies requirements for ``low-
power FM stations licensed at locations that do not satisfy third-
adjacent channel spacing requirements * * *'' With regard to such
stations, Section 7(1) instructs the Commission to adopt ``the same
interference protections that FM translator stations and FM booster
stations are required to provide as set forth in Sec. 74.1203 of [the]
rules.'' Section 7(3), in contrast, directs the Commission to modify
Sec. 73.810 of the rules to require ``[LPFM] stations on third-
adjacent channels * * * to address interference complaints within the
protected contour of an affected station'' and encourage them to
address ``all other interference complaints.'' We tentatively conclude
that, through these two provisions, Congress has created two different
interference protection and remediation regimes--one that applies to
Section 7(1) Stations and one that applies to all other LPFM stations
(``Section 7(3) Stations''). We seek comment on this tentative
conclusion.
14. We note that, were we to conclude otherwise, Section 7(1)
Stations would be subject to different and conflicting interference
protection and remediation obligations. Specifically, under section
7(1), LPFM stations that would be considered short-spaced under third-
adjacent channel spacing requirements must ``eliminate'' any actual
interference they cause to the signal of any authorized station in
areas where that station's signal is ``regularly used.'' This
requirement encompasses locations beyond the authorized station's
protected contour. In contrast, section 7(3) merely requires LPFM
stations to ``address'' complaints of interference occurring within a
full-service FM station's protected contour. To conclude that sections
7(1) and (3) both apply to Section 7(1) Stations would run afoul of one
of the cardinal rules of statutory construction--a statute should be
read as a harmonious whole. We believe our conclusion that Congress has
created two different interference protection and remediation regimes
is the most reasonable reading of section 7 of the LCRA as a whole. It
makes sense that Congress would impose more stringent interference
protection and remediation obligations on stations that are located
nearest to full-service FM stations and have the greatest potential to
cause interference. Moreover, our reading is consistent with the
general rule that, where a protection approach offers greater
flexibility, that flexibility is counter-balanced by more stringent
interference remediation and protection requirements. The LCRA provides
greater flexibility by eliminating third-adjacent channel spacing
requirements for LPFM stations, but counter-balances that flexibility
with a prohibition on LPFM stations that would be short-spaced under
such requirements causing any actual interference to other stations.
15. Based on the text of section 7(1) of the LCRA, we tentatively
conclude that, although section 3(a) of the LCRA mandates the
elimination of the third-adjacent channel spacing requirements, we
should retain them solely for purposes of reference in order to
[[Page 20760]]
implement that section. We seek comment on this tentative conclusion
and also on whether ultimately to retain the third-adjacent channel
spacing requirements in Sec. 73.807 for purposes of reference or
transfer them to another section of the rules.
16. Sections 7(4) and (5) of the LCRA establish a number of
requirements related to interference protection and remediation. These
range from a requirement that the Commission allow LPFM stations on
third-adjacent channels to remediate interference through collocation
to requirements related to what constitutes a bona fide complaint of
interference. We tentatively conclude these sections apply only to
Section 7(3) Stations. We seek comment on our tentative conclusion. We
believe this is the most reasonable reading of these provisions. We
note that these provisions use the same ``low-power FM stations on
third-adjacent channels'' language as section 7(3), not the more
specific ``low-power FM stations licensed at locations that do not
satisfy third-adjacent channel spacing requirements'' language set
forth in section 7(1). In addition, as discussed above, section 7(1)
subjects LPFM stations licensed at locations that would be considered
short-spaced under third-adjacent channel spacing requirements to the
interference protection and remediation regime set forth in Sec.
74.1203 of the rules. Thus, Section 7(1) Stations must remediate any
actual interference caused by their operations or go off the air; must
respond to all complaints meeting the specifications set forth in Sec.
74.1203; and, must do so in the manner described in that section. That
Congress required our wholesale adoption of the well-established and
comprehensive regime in Sec. 74.1203 of the rules bolsters our
tentative conclusion that sections 7(4) and 7(5), which establish
discrete requirements inconsistent with the Sec. 74.1203 regime, do
not apply to Section 7(1) Stations.
17. Finally, we tentatively conclude that sections 7(1), (2), (3),
(4) and (5) of the LCRA apply only to third-adjacent channel
interference. While Congress did not specify the type of interference
to which these provisions apply, we believe this is the most reasonable
reading of them. We note that, in each of these provisions, Congress
refers specifically to LPFM stations on third-adjacent channels or LPFM
stations that do not satisfy the third-adjacent channel spacing
requirements. These references reflect a focus on those stations
located on third-adjacent channels to LPFM stations and any
interference caused to them, which necessarily would be third-adjacent
channel interference. We believe that our conclusion is further
supported by the fact that Congress separately addressed the
possibility of second-adjacent channel interference in section 3 of the
LCRA. We seek comment on our tentative conclusion.
b. Regime Applicable to Section 7(1) Stations
18. Section 7(1) Stations are subject to the same interference
protection regime applicable to FM translator and booster stations,
which is set forth in Sec. 74.1203 of the rules. As indicated above,
this regime is more stringent than that currently set forth in Sec.
73.810. Section 74.1203(a) prohibits ``actual interference to * * *
[t]he direct reception by the public of the off-the-air signals of any
authorized broadcast station. * * *'' It specifies that
``[i]nterference will be considered to occur whenever reception of a
regularly used signal is impaired by the signals radiated by'' the
interfering FM translator station. An interfering FM translator station
must remedy the interference or cease operation. The rule has been
interpreted broadly. It places no geographic or temporal limitation on
complaints. It covers all types of interference. The reception affected
can be that of a fixed or mobile receiver. The Commission also has
interpreted ``direct reception by the public'' to limit actionable
complaints to those that are made by bona fide listeners. Thus, it has
declined to credit claims of interference or lack of interference from
station personnel involved in an interference dispute. More generally,
the Commission requires that a complainant ``be `disinterested,' e.g.,
a person or entity without a legal stake in the outcome of the
translator station licensing proceeding.'' The staff has routinely
required a complainant to provide his/her name, address, location(s) at
which interference occurs, and a statement that the listener is, in
fact, a listener of the affected station. Moreover, as is the case with
other types of interference complaints, the staff has considered only
those complaints where the complainant cooperates in efforts to
identify the source of interference and accepts reasonable corrective
measures. Accordingly, when the Commission concludes that a bona fide
listener has made an actionable complaint of uncorrected interference,
it will notify the station that ``interference is being caused'' and
direct the station to discontinue operations. We seek comment on
whether it would be appropriate to modify the regime set forth in Sec.
74.1203 in any way in order to apply it to Section 7(1) Stations and,
if so, whether we have authority to make any such changes in light of
the statutory mandate to adopt ``the same interference protections that
FM translator stations and FM booster stations are required to provide
as set forth in [Sec. ] 74.1203 of [the] rules.''
19. We also request comment on requiring newly constructed LPFM
stations that would be considered short-spaced under third-adjacent
channel spacing requirements to make the same periodic announcements
required of third-adjacent channel LPFM stations that would not be
considered short-spaced under section 7(2) of the LCRA. We see no
reason to distinguish between listeners of stations that may experience
interference as a result of the operations of Section 7(1) Stations and
those that may experience interference as a result of the operations of
Section 7(3) Stations for such purposes. Indeed, there will be less
distance separating Section 7(1) Stations and full-service FM stations
on third-adjacent channels and thus a greater potential for these
stations to cause such interference, so that we believe requiring
announcements would serve the public interest. We note, however, that
section 7(1) explicitly requires the Commission to ``provide the same
[LPFM] interference protections that FM translator stations * * * are
required to provide as set forth in Sec. 74.1203 of its rules.''
Section 74.1203 does not require an FM translator station to notify
either the Commission or an affected station of an interference
complaint within 48 hours of the receipt of such a complaint.
Accordingly, we seek comment on whether we may impose this requirement
on Section 7(1) Stations and, if so, whether we should.
c. Regime Applicable to Section 7(3) Stations
20. Section 7(3) of the LCRA requires the Commission to modify
Sec. 73.810 of the rules to require Section 7(3) Stations ``to address
interference complaints within the protected contour of an affected
station'' and encourage them to address all other interference
complaints, including complaints ``based on interference to a full-
service FM station, an FM translator station or an FM booster station
by the transmitter site of a low-power FM station on a third-adjacent
channel at any distance from the full-service FM station, FM translator
station or FM booster station.'' As noted above, we tentatively
conclude that sections 7(2), (4) and (5) apply only to Section 7(3)
Stations. We discuss the general interference remediation requirements
set forth in section 7(3) and the additional provisions below.
[[Page 20761]]
21. General Requirements. Unlike section 7(1), section 7(3) does
not specifically refer to Sec. 74.1203 of the rules. We request
comment on whether the more lenient interference protection obligations
currently set forth in Sec. 73.810 should continue to apply to fully-
spaced LPFM stations. We note that, while section 7(1) instructs the
Commission to require Section 7(1) Stations ``to provide'' interference
protections, section 7(3) merely instructs the Commission to require
Section 7(3) Stations ``to address'' complaints of interference. What
must a Section 7(3) Station do to ``address'' a complaint of third-
adjacent channel interference? Finally, we observe that section 7(3)
requires the Commission to provide notice to the licensee of a Section
7(3) Station of the existence of interference within 7 calendar days of
the receipt of a complaint from a listener or another station. We seek
comment on whether to establish certain basic requirements for such
complaints. For instance, should we require copies of such complaints
to be filed with the Bureau's Audio Division? Should we require such
complaints to specify the call sign of the LPFM and/or affected full-
service FM, FM translator or FM booster station? Should we require the
complainant to provide contact information?
22. Periodic Broadcast Announcements. Section 7(2) of the LCRA
directs the Commission to amend Sec. 73.810 of the rules to include
certain requirements related to periodic broadcast announcements.
Section 7(2) instructs the Commission to require a newly constructed
Section 7(3) Station to broadcast periodic announcements that alert
listeners to the potential for interference and instruct them to
contact the LPFM station to report any interference. These
announcements must be broadcast for a period of one year after
construction. We seek comment on whether we should specify the language
to be used in these announcements and, if so, what to specify. We also
seek comment on whether we should mandate when and how often the
announcements must be aired. We note that we have done so with respect
to other required announcements and that ensuring uniformity may reduce
listener confusion and provide regulatory certainty by allowing LPFM
stations to be confident that they have satisfied the requirements of
section 7(2).
23. Section 7(2) also directs the Commission to require newly
constructed Section 7(3) Stations to notify the Commission and all
affected stations on third-adjacent channels of an interference
complaint by electronic communication within 48 hours of receipt of
such complaint. Finally, section 7(2) mandates that we require newly
constructed Section 7(3) Stations on third-adjacent channels to
cooperate in addressing any such interference complaints. We seek
comment on whether to specify the scope of efforts which a Section 7(3)
Station must undertake, and whether to relieve newly constructed
Section 7(3) Stations on third-adjacent channels of their obligations
to cooperate in instances where the complainant does not reasonably
cooperate with the LPFM stations' remedial efforts.
24. Bona Fide Complaints. Section 7(5) of the LCRA expands the
universe of interference complaints which Section 7(3) Stations must
remediate. Section 7(5) states:
The Federal Communications Commission shall--(A) permit the
submission of informal evidence of interference, including any
engineering analysis that an affected station may commission; (B)
accept complaints based on interference to a full-service FM
station, FM translator station, or FM booster station by the
transmitter site of a low-power FM station on a third-adjacent
channel at any distance from the full-service FM station, FM
translator station, or FM booster station; and (C) accept complaints
of interference to mobile reception.
25. We request comment on whether any of the four criteria set
forth in Sec. 73.810(b)(1) of the rules remain relevant. We
tentatively conclude that section 7(5) requires us to delete Sec.
73.810(b)(1) (bona fide complaint must allege interference caused by
LPFM station that has its transmitter site located within the predicted
60 dBu contour of the affected station), (2) (bona fide complaint must
be in form of affidavit and state the nature and location of the
alleged interference) and (3) (bona fide complaint must involve a fixed
receiver located within the 60 dBu contour of the affected station and
not more than 1 kilometer from the LPFM transmitter site). We solicit
comment on whether we should retain the remaining criterion, which
requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts.
26. Technical Flexibility. Section 7(4) of the LCRA requires the
Commission, to the extent possible, to ``grant low-power FM stations on
third-adjacent channels the technical flexibility to remediate
interference through the collocation of the transmission facilities of
the low-power FM station and any stations on third-adjacent channels.''
We note that, per section 3 of the LCRA, we are eliminating the third-
adjacent channel spacing requirements set forth in Sec. 73.807. We
have identified no other provision of our rules that would hinder our
ability to offer the flexibility specified in section 7(4) of the LCRA.
Accordingly, we tentatively conclude that we need not modify or
eliminate any other provisions of our rules to implement section 7(4).
We seek comment on this tentative conclusion.
d. Additional Interference Protection and Remediation Obligations
27. One additional provision of section 7--section 7(6)--requires
the Commission to impose additional interference protection and
remediation obligations on one class of LPFM stations. Specifically,
section 7(6) of the LCRA directs the Commission to create special
interference protections for ``full-service FM stations that are
licensed in significantly populated States with more than 3,000,000
population and a population density greater than 1,000 people per
square mile land area.'' The obligations apply only to LPFM stations
licensed after the enactment of the LCRA. Such stations must remediate
actual interference to full-service FM stations licensed to the
significantly populated states specified in section 7(6) and ``located
on third-adjacent, second-adjacent, first-adjacent or co-channels'' to
the LPFM station and must do so under the interference and complaint
procedures set forth in Sec. 74.1203 of the rules. However, Congress
has created an outer limit to the interference protection obligations
in section 7(6). That outer limit is the co-channel spacing distance
set forth in Sec. 73.807 of the rules for the affected full-service
station's class.
28. This statutory requirement is different than current policy.
Today, if an LPFM station meets the spacing requirements, it is ``not
required to eliminate interference caused to existing FM stations.''
With the enactment of LCRA, at least with respect to full-service FM
stations licensed to the significantly populated states that meet the
criteria set forth in section 7(6), LPFM stations licensed after its
effective date must remediate any actual interference that occurs. We
note that the section 7(6) interference requirements are, with one
exception, unambiguous. We seek comment on how to interpret the term--
``States.'' Only New Jersey and Puerto Rico satisfy the population and
population density thresholds set forth in section 7(6). This raises
the question of whether Congress intended the term ``States'' to
include the territories and possessions of the United States.
[[Page 20762]]
3. Translator Input Signals Complaint Procedure
29. Section 6 of the LCRA requires the Commission to ``modify its
rules to address the potential for predicted interference to FM
translator input signals on third-adjacent channels set forth in
Section 2.7 of the technical report entitled `Experimental Measurements
of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume
One--Final Report (May 2003)''' (``Final Report''). Section 2.7 of the
Final Report finds that significant interference to translator input
signals does not occur for undesired/desired ratio values below 34 dB
at the translator input. Section 2.7 sets out a formula (the ``Mitre
Formula'') that allows calculation of the minimum LPFM-to-translator
separation that will ensure a undesired/desired ratio of 34 dB.
30. The Commission currently requires LPFM stations to remediate
actual interference to the input signal of an FM translator station but
has not established any minimum distance separation requirements or
other preventative measures. Based on the language of section 6, which
requires the Commission to ``address the potential for predicted
interference,'' we tentatively conclude that our existing requirements
regarding remediation of actual interference must be recast as
licensing rules designed to prevent any predicted interference.
31. We propose to adopt a basic threshold test. This test is
designed to closely track the interference standard developed by Mitre,
without necessarily requiring LPFM applicants to obtain the receive
antenna technical characteristics that are incorporated into the Mitre
Formula. We propose that any application for a new or modified LPFM
station construction permit may not use a transmitter site within the
``potential interference area'' of any FM translator station that
receives directly off-air, the signal of a third-adjacent channel FM
station. For these purposes, we define the ``potential interference
area'' to be any area within 2 km of the translator site or any area
within 10 km of the translator site within the azimuths from -30
degrees to +30 degrees of the azimuth from the translator site to the
site of the station being rebroadcast by the translator. For example,
if the primary station is located at 280 degrees true (from the
translator site), the LPFM station must not be within 10 km of the
translator between the azimuths 250 to 310 degrees true (from the
translator site), and must be at least 2 km from the translator tower
site in all other directions. If an LPFM application proposes a
transmitter site within the potential interference area and fails to
include an exhibit demonstrating lack of interference to the off-air
reception, we would dismiss the application as defective.
32. We propose two ways for an LPFM applicant within the potential
interference area to show lack of interference to the input signal of a
potentially affected translator. First, we propose, as indicated in
section 2.7 of the Final Report, that LPFM applicants may show that the
ratio of the signal strength of the LPFM (undesired) proposal to the
signal strength of the FM (desired) station is below 34 dB at all
locations. Second, we propose to allow use of the equation provided in
Section 2.7 of the Final Report to demonstrate lack of interference to
the reception of the FM station at the translator transmitter site.
Because we do not authorize translator receive antenna locations, we
propose to assume that the translator receive antenna is co-located
with its associated translator transmit antenna. In addition, this
equation would require the horizontal plane pattern of the translator's
receive antenna. This information is not typically available publicly
or in the Consolidated Database System (``CDBS''). Therefore, we
propose to allow the use of a ``typical'' pattern in situations where
an LPFM applicant is not able to obtain information from the translator
licensee, despite reasonable efforts to do so. We seek comment on this
proposal.
33. As with similar situations involving dismissals for violation
of interference protection requirements, we propose to permit LPFM
applicants to seek reconsideration of a dismissal and reinstatement
nunc pro tunc by demonstrating that their proposals will not cause any
actual interference to the input signal of any FM translator station
using either the ratio or the Mitre Formula. Furthermore, we seek
comment on whether this process should be applicable to only
translators receiving FM station signals, or also include those that
receive third-adjacent channel translator signals directly off-air.
B. Other Rule Changes
34. In this Fourth FNPRM, we also propose changes to our rules
intended to promote the LPFM service's localism and diversity goals,
reduce the potential for licensing abuses, and clarify certain rules.
We discuss these proposed changes below. We seek comment on whether
these proposed changes are consistent with the LCRA and whether they
will promote the public interest.
1. Classes of Service
35. There are two classes of LPFM facilities: LP100 and LP10. The
Commission permits LP100 stations to operate with a maximum power of
100 watts ERP at 30 meters HAAT. LP10 stations may operate with a
maximum power of 10 watts ERP at 30 meters HAAT. To date, the
Commission has issued construction permits and licenses only for LP100
class facilities. Accordingly, we seek comment on whether to eliminate
the LP10 class of service.
36. In addition, we seek comment on whether to permit LPFM stations
in smaller communities, rural areas or ``non-core'' locations (i.e.,
areas outside population centers) in larger markets to increase power
levels to a maximum ERP of 250 watts at 30 meters HAAT, as urged by
both the Amherst Alliance (``Amherst'') and the Catholic Radio
Association (``CRA''). Both Amherst and CRA support permitting LPFM
stations to operate with up to 250 watts ERP. They focus on the
particular challenges of maintaining economically viable LPFM stations
in rural areas where population densities are low and larger coverage
areas are possible.
37. We seek comment on whether increased power levels could offset
limited potential audiences, promote LPFM station viability and expand
radio service to areas where full service operations may not be
economically feasible. Such an approach would be consistent with the
Commission's decision to adopt a more flexible definition of ``local''
applicant in non-urban areas. We note that this potential revised
maximum operating limit would put LPFM stations on similar footing to
FM translator stations which may operate with a maximum power of 250
watts ERP.
38. We seek comment on whether establishing a higher power level
for certain LPFM stations would allow these stations to better meet the
needs of their local communities. Notwithstanding the potential service
benefits, we also seek comment on whether an increase in the maximum
LPFM power level can be implemented in a manner that would not
undermine the detailed LCRA protection standards and interference
remediation procedures, which are presumably grounded on the current
LPFM maximum power level. Such an increase in power for certain LPFM
stations may be possible as we will be maintaining or increasing the
spacing requirements, not decreasing them. We also seek comment
[[Page 20763]]
on appropriate geographical restrictions for the higher powered LPFM
operations. For example, should we permit increased power levels
anywhere outside the top 100 markets and limit higher powered
operations in the top 20 markets to transmitter locations more than
thirty kilometers from the center city coordinates, in markets 21-50,
to locations more than twenty kilometers from center city coordinates
and in markets 51-100, to locations more than ten kilometers from
center city coordinates. Alternatively, we seek comment on whether
power limit increases should not be permitted anywhere in the top 50
markets where we believe that licensing opportunities to be limited
because of spectrum constraints and where there may be population
centers outside core market locations. We ask that commenters address
whether we should limit eligibility to operate in excess of the current
100 watts/30 meters maximum to previously licensed LPFM facilities in
order to provide those LPFM licensees that have demonstrated their
ability to construct and operate a limited opportunity to expand their
listenership. Finally, we ask that commenters address whether
increasing the maximum LPFM power level could result in an increased
potential for interference. Specifically, should eligibility to
increase power to 250 watts be limited to only those stations that can
fully satisfy co-, first-, and second-adjacent channel spacing
requirements?
2. Removal of I.F. Channel Minimum Distance Separation Requirements
39. LPFM stations are currently required to protect full-service
stations on their intermediate frequencies (``I.F.''), while translator
stations operating with less than 100 watts ERP are not. We recognize
this disparity and propose to remove I.F. protection requirements for
LPFM stations operating with less than 100 watts. We believe the same
reasoning that the Commission applied in exempting FM translator
stations operating with less than 100 watts ERP from the I.F.
protection requirements applies for LPFM stations operating at less
than 100 watts ERP. These stations too are the equivalent of Class D FM
stations, which are not subject to I.F. protection requirements. We
note that FM allotments would continue to be protected on the I.F.
channels based on existing international agreements. We seek comment on
this proposal.
3. Eligibility and Ownership
a. Requirement That Applicant Be Community-Based
40. The LPFM service is reserved solely to non-profit, community-
based entities. However, we believe that the wording of Sec. 73.853 of
the rules is unclear and could be read to require that an applicant be
``local'' only at the time of application. Such a reading would
contravene our intent in adopting--and reinstating--the local ownership
requirement, which rested on our predictive judgment that ``local
entities with their roots in the community will be more attuned and
responsive to the needs of that community, which have heretofore been
underserved by commercial broadcasters.'' We therefore propose to
clarify this requirement by revising Sec. 73.853(b) to read: ``Only
local applicants will be permitted to submit applications. For the
purposes of this paragraph, an applicant will be deemed local if it can
certify, at the time of application, that it meets the criteria listed
below and if such applicant continues to satisfy the criteria at all
times thereafter. * * *'' We seek comment on this proposed requirement.
b. Eligibility of Native Nations
41. The current version of Sec. 73.853 of the rules does not
include federally recognized American Indian Tribes and Alaska Native
Villages (``Native Nations''), consortia of Native Nations, or entities
majority owned by Native Nations or consortia, among the categories of
eligible applicants for stations in the LPFM service. We have recently
expressed our commitment to assisting Native Nations in establishing
radio service to their members living on tribal lands, including a
Tribal Priority that we incorporated into the threshold fair
distribution analysis performed pursuant to section 307(b) of the
Communications Act of 1934, as amended (``Act''), when comparing
mutually exclusive applications for permits to construct new or
modified full-service NCE FM stations that propose service to different
communities. In keeping with this commitment, we seek comment in this
Fourth FNPRM, inter alia, on whether to modify the LPFM point system to
award a point to a Native Nation proposing LPFM service to its
community. However, before we seek comment on Native Nation
participation in LPFM application proceedings, we must first ensure
that, under our rules, Native Nations are eligible to apply for
stations in the LPFM service.
42. Accordingly, we propose to revise Sec. 73.853(a) of the rules
by adding the following: ``(3) Tribal Applicants, as defined in [Sec.
] 73.7000 of this [p]art, that will provide non-commercial radio
services.'' We further propose to revise Sec. 73.853(b) of the rules
by adding the following: ``(4) In the case of a Tribal Applicant, as
defined in [Sec. ]73.7000 of this [p]art, the proposed site for the
transmitting antenna is located on that Tribal Applicant's `Tribal
Lands,' as defined in [Sec. ] 73.7000 of this [p]art.'' We believe
that allowing Native Nations to hold LPFM licenses will be consistent
with the localism and diversity goals of the LPFM service and will
further our goal of assisting Native Nations in establishing radio
service to their members on tribal lands.
c. Cross-Ownership
43. From the outset, the Commission has prohibited common ownership
of an LPFM station and any other broadcast station, as well as other
media subject to the Commission's ownership rules. This prohibition
furthers one of the most important purposes of establishing the LPFM
service--``to afford small, community-based organizations an
opportunity to communicate over the airwaves and thus expand diversity
of ownership.'' We seek comment on whether to revise our rules to
permit cross-ownership of an LPFM station and an FM translator or
translators. We note that this revision could enable LPFM stations to
expand their listenership and provide another way in which translators
could serve the needs of a community. We do not believe allowing
limited cross-ownership of LPFM stations and FM translators will have a
negative effect on the diversity of ownership. However, we solicit
comment on this issue. In addition, we request comment on how cross-
ownership of an LPFM station and an FM translator station would impact
the extremely localized service that LPFM stations provide. Finally, we
solicit input on whether to authorize such cross-ownership only if the
FM translator rebroadcasts the programming of its co-owned LPFM
station; whether we should require some overlap of the 60 dBu contours
of the cross-owned stations; whether to set some distance or geographic
limits on the cross-ownership; and whether to permit an LPFM station to
use an alternative signal delivery mechanism to deliver its signal to a
commonly owned FM translator.
44. We also seek comment on whether to modify our cross-ownership
rule to permit a full-service radio station permittee or licensee that
is a Native
[[Page 20764]]
Nation or an entity owned or controlled by a Native Nation to apply for
an LPFM station and to hold an attributable interest in such station.
We believe this modification would enhance the ability of Native
Nations to provide communications services to their members on tribal
lands without significantly undermining diversity of ownership. We seek
comment on whether this exception to the general cross-ownership
prohibition should be limited to situations where the Native Nation or
Native Nation-controlled applicant demonstrates that it will serve
currently unserved tribal lands or populations.
d. Multiple Ownership
45. To further its diversity goals and foster local, community-
based service, the Commission prohibits entities from owning more than
one LPFM station in the same community. We seek comment on whether we
should permit Native Nations and entities owned or controlled by Native
Nations to seek more than one LPFM construction permit to ensure
adequate coverage of tribal lands. For instance, we could permit this
when Native Nations and entities owned or controlled by Native Nations
seek to serve large, irregularly shaped or rural areas. Where this is
the case, an applicant may be unable to ensure adequate coverage of
tribal members and tribal lands with one LPFM station. We also could
permit multiple ownership only when there are available channels for
other applicants. In such instances, there would be no risk that a new
entrant would be precluded from offering service. We believe permitting
Native Nations to hold more than one LPFM license would advance the
Commission's efforts to enhance the ability of Native Nations not only
to receive radio service tailored to their specific needs and cultures,
but to increase ownership of such radio stations by Native Nations and
entities owned or controlled by Native Nations. We seek comment on
whether to accomplish this through amendment of Sec. 73.855(a) of the
rules or through waiver.
4. Selection Among Mutually Exclusive Applicants
46. Below, we propose certain changes to the manner in which we
process mutually exclusive LPFM applications. These changes are
intended to better ensure that we award LPFM licenses to those
organizations most capable of serving the very localized communities
and underrepresented groups the LPFM service was designed to serve, and
to improve the efficiency of the selection process.
a. Point System
(i) Established Community Presence
47. Currently, under the LPFM selection procedures for mutually
exclusive LPFM applications set forth in Sec. 73.872 of the rules, the
Commission awards one point to an applicant that has an established
community presence. The Commission deems an applicant to have such a
presence if, for at least two years prior to application filing, the
applicant has been headquartered, has maintained a campus or has had
three-quarters of its board members residing within ten miles of the
proposed station's transmitter site. In adopting this criterion, the
Commission intended to ``favor organizations that have been operating
in the communities where they propose to construct an LPFM station and
thus have `track records' of community-service and established
constituencies in their communities.'' The Commission believed that,
because of their longstanding organizational ties to their communities,
applicants with established community presences were likely to be
``more attuned to, and have organizational experience addressing, the
needs and interests of their communities.''
48. We propose to revise the language of Sec. 73.872(b)(1) to
clarify that an applicant must have had an established local presence
for a specified period of time prior to filing its application and must
maintain that local presence at all times thereafter. We note that,
while Section 73.872(b)(1) currently does not include the requirement
that an applicant maintain its local presence, we believe that is the
only reasonable interpretation of the rule. We seek comment on this
proposed change to Sec. 73.872(b)(1).
49. In addition, we seek comment on three additional changes to the
rule. First, we request comment on whether to revise our definition of
``established community presence'' to require that an applicant have
maintained such a presence for a longer period of time, such as four
years. While this change in the rules would result in a smaller pool of
organizations that could earn this comparative point, we believe it
would better ensure that LPFM licensees are attuned to the local
interests of the communities they seek to serve. Alternatively, should
we maintain the two-year threshold but also award an additional point
to applicants that have a substantially longer established community
presence (e.g., four years)? Second, we solicit comment on whether we
should modify Sec. 73.872(b)(1) to extend the ``established community
presence'' standard to 20 miles in rural areas. We note that such a
change would bring Sec. 73.872(b)(1) in line with Sec. 73.853(b).
Finally, we seek comment on whether to allow local organizations filing
as consortia to receive one point under the established community
presence criterion for each organization that qualifies for such a
point. If we were to revise Sec. 73.872(b)(1) in this fashion, should
we cap the number of points awarded to consortia at three? We note
that, currently, applicants tied with the highest number of points may
enter into time-share agreements. In such a situation, their points are
aggregated. This proposal would operate in a similar fashion, except
that it would precede and potentially preclude post-filing point
aggregation settlements. We believe this proposed change could
significantly promote diversity, speed the licensing process and
provide further incentive for applicants to enter into voluntary time-
sharing arrangements in spectrum-limited areas. However, we seek
comment on whether there is any potential for abuse of such a change in
the rules and, if so, how we can prevent it. For instance, could this
proposed rule change lead local organizations interested in
constructing and operating an LPFM station to recruit other local
organizations that have no interest in doing so to participate in a
consortium in order to inflate the consortium's point total?
(ii) Local Program Origination
50. The Commission currently encourages LPFM stations to locally
originate programming. It does so by incorporating local program
origination as one of the three one-point criteria used to select among
mutually exclusive applicants. In adopting the local program
origination criterion, the Commission reasoned that ``local program
origination can advance the Commission's policy goal of addressing
unmet needs for community-oriented radio broadcasting'' and concluded
that ``an applicant's intent to provide locally-originated programming
is a reasonable gauge of whether the LPFM station will function as an
outlet for community self-expression.'' We seek comment on whether to
place greater emphasis on this selection factor by awarding two
points--instead of the one point currently awarded--to an applicant
that pledges to originate at least eight hours of programming each day.
Do the limited licensing opportunities for LPFM stations in major
markets support giving greater weight to this criterion? Does the
[[Page 20765]]
potential for awarding up to three points to a consortium under the
established community presence criterion justify an increase in the
points awarded under this criterion? Should we modify the definition of
local program origination for LPFM stations that serve rural areas? We
request that commenters specifically address whether increasing the
weight of this criterion is warranted in light of our previous finding
that local programming is not the only programming of interest or value
to listeners in a particular locale. Alternately, should we impose a
specific requirement that all new LPFM licensees provide locally-
originated programming? Parties supporting this proposal are requested
to show that the Commission's prior finding is no longer valid and
identify problems or short-comings in the current LPFM licensing and
service rules that this change would remedy. Parties supporting this
proposal also are requested to address any constitutional issues that
it raises.
(iii) Additional Selection Criteria
51. We seek comment on whether to develop additional selection
criteria for the LPFM point system in order to limit the number of
involuntary time-share licensing outcomes. Specifically, we seek
comment on whether we should modify our point system to award a point
to Native Nations and entities owned or controlled by Native Nations,
when they propose to provide LPFM service to Native Nation communities.
We note that this criterion would be similar to the ``Tribal Priority''
that we incorporated into the threshold fair distribution analysis that
we perform pursuant to Section 307(b) of the Act, when we are faced
with mutually exclusive applications for permits to construct new or
modified full-service FM, AM, or NCE FM stations that propose service
to different communities. We also note that we believe adoption of a
Native Nation selection criterion would further our efforts to increase
ownership of radio stations by Native Nations and entities owned or
controlled by Native Nations and to enable Native Nations and such
entities to serve the unique needs and interests of their communities.
Finally, in addition to seeking comment on this ``Native Nation''
criterion, we invite the submission of additional proposals for new
selection criteria, provided they are (a) specifically linked to
Commission policy, and (b) structured to withstand scrutiny under
applicable legal standards.
b. First Tiebreaker, Voluntary Time Sharing
52. In the event the point analysis results in a tie, the
Commission employs voluntary time-sharing as the initial tie-breaker.
In these circumstances, the Commission releases a public notice
announcing the tie and gives the tied applicants the opportunity to
propose voluntary time-sharing arrangements. Currently, following the
award of voluntary time-share construction permits, if one of the
participants in a voluntary time-sharing arrangement does not construct
or surrenders its station license after commencing operations, the
remaining time-share participants are free to apportion the vacant air-
time as they see fit. We seek comment on the procedures we should adopt
to address the surrender or expiration of a construction permit--or the
surrender of a license--issued to a participant in a voluntary time-
sharing arrangement. We note that the current policy regarding air-time
reapportionment presents the potential for abuse in the LPFM licensing
process. For instance, out of a group of tied mutually exclusive
applicants, some could enter into a time-share arrangement in order to
aggregate their points and prevail over others with the knowledge that
not all of the prevailing applicants intend to build and operate their
LPFM stations. We solicit comment on ways to reduce the potential for
abuse of the air-time reapportionment policy. Should we open a ``mini-
window'' for the filing of applications for the abandoned air-time?
Could we limit eligibility to unsuccessful applicants from the same
mutually exclusive group in the initial window? Is such an approach
consistent with Ashbacker requirements? We believe limiting the
applicant pool for a ``mini-window'' to unsuccessful applications from
the same mutually exclusive group will provide organizations with an
incentive to participate in the LPFM licensing process at the earliest
opportunity (i.e., during the initial filing window). It also will
expedite the filling of dead air-time and promote the goal of reducing
the potential for abuse of the air-time reapportionment policy while
minimizing the administrative complexities involved. In this regard, we
believe that the procedures we develop to select successor permittees
and licensees must operate efficiently. The air-time being filled will
cover only a limited portion of each broadcast day. We must balance our
desire to fill air-time with the need for administrative efficiency,
particularly as we anticipate the considerable licensing burdens that
are likely to result from the upcoming LPFM window. Under another
approach, a non-prevailing applicant could express its interest in
being selected as a successor time share permittee in the event that
the tentatively selected applications are granted and either a
permittee fails to construct or a licensee abandons its time. One
option would be to require the filing of such expressions of interest
by the deadline for filing of petitions to deny the applications of the
tentative selectees. The staff then could identify the applicant with
the highest point total among those filing an expression of interest
and retain this application in pending status. If we modify our air-
time reapportionment policy in voluntary time sharing situations to
reduce the potential for abuse, we propose that the changes would apply
only during the first four years of licensed station operations, as
they do in the NCE FM licensing context. If a time share licensee
abandons its air-time after the first four years of licensed station
operations, we propose to allow the remaining time-share participants
to apportion the vacant air-time as they see fit just as they do under
the current air-time reapportionment policy. We seek comment on these
proposals. Finally, we seek comment on whether, if we modify the
established community presence criterion to award additional points to
consortia, these new procedures also should apply to permits awarded
under this modified criterion.
5. Operating Schedule, Time Sharing
53. Currently, the Commission requires LPFM stations to meet the
same minimum operating hour requirements as full-service NCE FM
stations. Like NCE FM stations, LPFM stations must operate at least 36
hours per week, consisting of at least 5 hours of operation per day on
at least 6 days of the week. However, while the Commission has mandated
time sharing for NCE FM stations that meet the Commission's minimum
operating requirements but do not operate 12 hours per day each day of
the year, it has not done so for LPFM stations. We seek comment on
whether we should extend this mandatory time-sharing to the LPFM
service. We believe that doing so could increase the number of
broadcast voices and promote additional diversity in radio voices and
program services.
[[Page 20766]]
III. Administrative Matters
A. Filing Requirements
54. Ex Parte Rules. The proceeding this Notice initiates shall be
treated as a ``permit-but-disclose'' proceeding in accordance with the
Commission's ex parte rules. Persons making ex parte presentations must
file a copy of any written presentation or a memorandum summarizing any
oral presentation within two business days after the presentation
(unless a different deadline applicable to the Sunshine period
applies). Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentation must (1) list all persons
attending or otherwise participating in the meeting at which the ex
parte presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b) of the rules. In proceedings
governed by Sec. 1.49(f) of the rules or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
B. Initial Regulatory Flexibility Analysis
55. The Regulatory Flexibility Act of 1980, as amended (``RFA''),
requires that a regulatory flexibility analysis be prepared for notice
and comment rule making proceedings, unless the agency certifies that
``the rule will not, if promulgated, have a significant economic impact
on a substantial number of small entities.'' The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' 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).
56. 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 Fourth Further Notice of Proposed Rulemaking
(``Fourth FNPRM''). 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 Fourth FNPRM provided in paragraph
74. The Commission will send a copy of this entire Fourth FNPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (``SBA''). In addition, the Fourth FNPRM and
the IRFA (or summaries thereof) will be published in the Federal
Register.
57. Need for, and Objectives of, the Proposed Rules. This
rulemaking proceeding is initiated to seek comment on how to implement
the provisions of the Local Community Radio Act of 2010 (``LCRA'')
discussed below. The Fourth FNPRM tentatively concludes that the
second-adjacent channel spacing waiver standard set forth in section
3(b)(2) of the LCRA supersedes the interim waiver processing policy
currently in place and seeks comment on this tentative conclusion and
on what factors the Commission should take into account in considering
waiver requests. The Fourth FNPRM also proposes to implement section
3(b)(2)(B), which provides a framework for handling complaints of
interference from low-power FM (``LPFM'') stations operating pursuant
to second-adjacent channel waivers. Similarly the Fourth FNPRM also
proposes to amend the Commission's rules to implement section 7 of the
LCRA, which creates two different LPFM interference protection and
remediation regimes, one for LPFM stations that would be considered
short-spaced under third-adjacent channel spacing requirements, and one
for LPFM stations that would not be considered short-spaced under those
requirements. Lastly, the Fourth FNPRM takes up implementation of
section 6 of the LCRA, which requires the Commission to modify its
rules to address the potential for predicted interference to translator
input signals on third-adjacent channels. The Fourth FNPRM proposes to
adopt a basic threshold test to determine whether a proposed LPFM
station will cause such predicted interference. Specifically, the
Fourth FNPRM proposes to prohibit an applicant for a new or modified
LPFM station construction permit from specifying a transmitter site
within the ``potential interference area'' of any FM translator station
that receives directly off-air, the signal of a third-adjacent channel
FM station. The Fourth FNPRM would define the ``potential interference
area'' to be any area within 2 km of the translator site or any area
within 10 km of the translator site within the azimuths from -30
degrees to +30 degrees of the azimuth from the translator site to the
site of the station being rebroadcast by the translator.
58. The Fourth FNPRM also proposes changes to our rules intended to
promote the LPFM service's localism and diversity goals, reduce the
potential for licensing abuses, and clarify certain rules. First, the
Fourth FNPRM seeks comment on whether to increase the maximum
facilities for LPFM stations. Second, the Fourth FNPRM seeks comment on
proposed rule changes that will clarify that an LPFM applicant must
satisfy the local ownership requirement at all times. Third, it also
requests comment on whether to allow cross-ownership of an LPFM station
and FM translator stations and whether to allow federally recognized
Native American Tribes and Alaska Native Villages (``Native Nations'')
to own multiple LPFM stations. Fourth, the Fourth FNPRM proposes to
modify the criteria used in the point system, add an additional
criterion to the point system, and revise the voluntary time-sharing
tie-breaker used for selecting among mutually exclusive LPFM
applications when the point analysis results in a tie. Fifth, the
Fourth FNPRM seeks comment on whether to extend to the LPFM service the
mandatory time-sharing requirements that currently apply to FM
translators that meet the Commission's minimum operating requirements
but do not operate 12 hours per day each day of the year. Finally,
noting that LPFM stations are currently required to protect full-
service stations on their intermediate frequencies (``I.F.''), while
translator stations operating with less than 100 watts ERP are not, the
Fourth FNPRM proposes to eliminate the spacing requirements related to
Intermediate Frequency channels.
59. Legal Basis. The authority for this proposed rulemaking is
contained in the
[[Page 20767]]
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).
60. 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 SBA.
61. 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 September 15, 2011, about 10,960 (97 percent) of 11,300
commercial radio station 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.
62. 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.
63. 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 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. Currently, there are approximately
6,131 licensed FM translator stations and 859 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.
64. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. None.
65. Steps Taken to Minimize Significant Impact on Small Entities,
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.
66. The passage of the LCRA required the Commission to propose
certain changes to its technical rules. The Commission considered
maintaining the status quo regarding the proposed changes to its non-
technical rules, but concluded that these proposed rule changes will
benefit small businesses and existing LPFM licensees.
67. The LPFM service has created and will continue to create
significant opportunities for new small businesses by allowing small
businesses to develop LPFM service in their communities. In addition,
the Commission generally has taken steps to minimize the impact on
existing small broadcasters. To the extent that rules proposed in the
Fourth FNPRM would impose any burdens on small entities, we believe
that the resulting impact on small entities would be favorable because
the proposed rules, if adopted, would expand opportunities for LPFM
applicants, permittees, and licensees to commence broadcasting and stay
on the air. Among other things, the Fourth FNPRM proposes to allow FM
translator licensees to own or hold attributable interests in LPFM
stations. This is prohibited under the current rules. Likewise, the
Fourth FNPRM proposes to permit Native Nations and entities owned or
controlled by Native Nations to seek more than one LPFM construction
permit to ensure adequate coverage of tribal lands. Today, multiple
ownership of LPFM stations is prohibited.
68. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals. None.
IV. Ordering Clauses
69. 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.
70. 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 proposes to amend 47 part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
2. Revise Sec. 73.807 to read as follows:
[[Page 20768]]
Sec. 73.807 Minimum distance separation between stations.
Minimum separation requirements for LP250 and LP100 stations, as
defined in Sec. Sec. 73.811 and 73.853, are listed in the following
paragraphs. Except as noted below, an LPFM station will not be
authorized unless the co-channel, first- and second-adjacent and I.F.
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. These third-adjacent channel separations are
included for informational purposes only.
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 intermediate frequency
(I.F.) channels, the required minimum distance separation is sufficient
to avoid interference received from other stations.
(a)(1) An LP100 station will not be authorized initially unless the
minimum distance separations in the following table are met with
respect to authorized FM stations, applications for new and existing FM
stations filed prior to the release of the public notice announcing an
LPFM window period for LP100 stations, authorized LP250 and LP100
stations, LP250 and LP100 station applications that were timely-filed
within a previous window, and vacant FM allotments. LPFM modification
applications must either meet the distance separations in the following
table or, if short-spaced, not lessen the spacing to subsequently
authorized stations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation (km) First-adjacent channel minimum
------------------------------------ separation (km)
------------------------------------ Second and third I.F. channel
For no For no adjacent channel minimum
Station class protected by LP100 interference interference minimum separations--10.6
Required received from Required received from separation (km)-- or 10.8 MHz
max. class max. class required
facility facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
LP100...................................... 24 24 14 14 (\1\) (\1\)
LP250...................................... 26 29 15 16 (\1\) (\1\)
D.......................................... 24 24 13 13 6 3
A.......................................... 67 92 56 56 29 6
B1......................................... 87 119 74 74 46 9
B.......................................... 112 143 97 97 67 12
C3......................................... 78 119 67 67 40 9
C2......................................... 91 143 80 84 53 12
C1......................................... 111 178 100 111 73 20
C0......................................... 122 193 111 130 84 22
C.......................................... 130 203 120 142 93 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
(\1\) None.
(2) LP100 stations must satisfy the second-adjacent channel
minimum distance separation requirements of paragraph (a)(1) of this
section with respect to any third-adjacent channel FM station that, as
of September 20, 2000, broadcasts a radio reading service via a
subcarrier frequency.
(3) An LP250 station will not be authorized initially unless the
minimum distance separations in the following table are met with
respect to authorized FM stations, applications for new and existing FM
stations filed prior to the release of the public notice announcing an
LPFM window period for LP250 stations, authorized LP250 and LP100
stations, LP250 and LP100 station applications that were timely-filed
within a previous window, and vacant FM allotments. LPFM modification
applications must either meet the distance separations in the following
table or, if short-spaced, not lessen the spacing to subsequently
authorized stations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation First-adjacent channel minimum
(km) separation (km)
------------------------------------------------------------------------ Second and third I.F. channel
For no For no adjacent channel minimum
Station class protected by LP250 interference interference minimum separations--10.6
Required received from Required received from separation (km)-- or 10.8 MHz
max. class max. class required
facility facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
LP100...................................... 29 26 16 15 (\1\) (\1\)
LP250...................................... 31 31 17 17 (\1\) (\1\)
D.......................................... 29 26 16 15 7 3
A.......................................... 67 92 56 56 30 6
B1......................................... 87 119 74 74 47 9
B.......................................... 112 143 97 97 68 12
C3......................................... 78 119 67 67 41 9
C2......................................... 91 143 80 84 54 12
C1......................................... 111 178 100 111 74 20
C0......................................... 122 193 111 130 85 22
C.......................................... 130 203 120 142 94 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
(\1\) None.
[[Page 20769]]
(4) LP250 stations must satisfy the second-adjacent channel
minimum distance separation requirements of paragraph (a)(3) of this
section with respect to any third-adjacent channel FM station that, as
of September 20, 2000, broadcasts a radio reading service via a
subcarrier frequency.
(5) LP100 stations operating with less than 100 watts effective
radiated power (ERP) need not satisfy the I.F. channel minimum
separations requirements.
(b)(1) In addition to meeting or exceeding the minimum separations
in paragraph (a), new LP100 stations will not be authorized in Puerto
Rico or the Virgin Islands unless the minimum distance separations in
the following tables are met with respect to authorized or proposed FM
stations:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation (km) First-adjacent channel minimum
------------------------------------ separation (km)
------------------------------------ Second and third I.F. channel
For no For no adjacent channel minimum
Station class protected by LP100 interference interference minimum separations--10.6
Required received from Required received from separation (km)-- or 10.8 MHz
max. class max. class required
facility facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................... 80 111 70 70 42 9
B1......................................... 95 128 82 82 53 11
B.......................................... 138 179 123 123 92 19
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) In addition to meeting or exceeding the minimum separations in
paragraph (a), new LP250 stations will not be authorized in Puerto Rico
or the Virgin Islands unless the minimum distance separations in the
following tables are met with respect to authorized or proposed FM
stations:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation (km) First-adjacent channel minimum
------------------------------------ separation (km)
------------------------------------ Second and third I.F. channel
For no For no adjacent channel minimum
Station class protected by LP250 interference interference minimum separations--10.6
Required received from Required received from separation (km)-- or 10.8 MHz
max. class max. class required
facility facility
--------------------------------------------------------------------------------------------------------------------------------------------------------
A.......................................... 80 111 70 70 43 9
B1......................................... 95 128 82 82 54 11
B.......................................... 138 179 123 123 93 19
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) LP 100 stations operating with less than 100 watts ERP need
not satisfy the I.F. channel minimum separations requirements.
Note to paragraphs (a) and (b): Minimum distance separations
towards ``grandfathered'' superpowered Reserved Band stations are as
specified.
Full service FM stations operating within the reserved band
(Channels 201-220) with facilities in excess of those permitted in
Sec. 73.211(b)(1) or Sec. 73.211(b)(3) shall be protected by LPFM
stations in accordance with the minimum distance separations for the
nearest class as determined under Sec. 73.211. For example, a Class B1
station operating with facilities that result in a 60 dBu contour that
exceeds 39 kilometers but is less than 52 kilometers would be protected
by the Class B minimum distance separations. Class D stations with 60
dBu contours that exceed 5 kilometers will be protected by the Class A
minimum distance separations. Class B stations with 60 dBu contours
that exceed 52 kilometers will be protected as Class C1 or Class C
stations depending upon the distance to the 60 dBu contour. No stations
will be protected beyond Class C separations.
(c)(1) In addition to meeting the separations specified in
paragraphs (a) and (b), LP100 applications must meet the minimum
separation requirements in the following table with respect to
authorized FM translator stations, cutoff FM translator applications,
and FM translator applications filed prior to the release of the Public
Notice announcing the LPFM window period.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation (km) First-adjacent channel minimum
------------------------------------ separation (km) Second and third I.F. channel
------------------------------------ adjacent channel minimum
Distance to FM translator 60 dBu contour For no For no minimum separations
Required interference Required interference separation (km)-- (km)--10.6 or
received received required 10.8 MHz
--------------------------------------------------------------------------------------------------------------------------------------------------------
13.3 km or greater.......................... 39 67 28 35 21 5
Greater than 7.3 km, but less than 13.3 km.. 32 51 21 26 14 5
7.3 km or less.............................. 26 30 15 16 8 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) In addition to meeting the separations specified in paragraphs
(a) and (b), LP250 applications must meet the minimum separation
requirements in the following table with respect to authorized FM
translator stations, cutoff FM translator applications, and FM
translator applications filed prior to the release of the Public Notice
announcing the LPFM window period:
[[Page 20770]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Co-channel minimum separation (km) First-adjacent channel minimum
------------------------------------ separation (km) Second and third I.F. channel
------------------------------------ adjacent channel minimum
Distance to FM translator 60 dBu contour For no For no minimum separations
Required interference Required interference separation (km)-- (km)--10.6 or
received received required 10.8 MHz
--------------------------------------------------------------------------------------------------------------------------------------------------------
13.3 km or greater.......................... 44 67 30 37 22 4
Greater than 7.3 km, but less than 13.3 km.. 37 51 23 27 15 4
7.3 km or less.............................. 31 30 17 18 9 3
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) LP100 stations operating with less than 100 watts ERP need not
satisfy the I.F. channel minimum separations requirements.
(d) Existing LP250 and LP100 stations which do not meet the
separations in paragraphs (a) through (c) of this section may be
relocated provided that the separation to any short-spaced station is
not reduced.
(e) Commercial and noncommercial educational stations authorized
under subparts B and C of this part, as well as new or modified
commercial FM allotments, are not required to adhere to the separations
specified in this rule section, even where new or increased
interference would be created.
(f) International considerations within the border zones.
(1) Within 320 km of the Canadian border, LP100 stations must meet
the following minimum separations with respect to any Canadian
stations:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intermediate
Canadian station class Co-channel (km) First-adjacent Second-adjacent Third-adjacent frequency (IF)
channel (km) channel (km) channel (km) channel (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
A1 & Low Power................................................ 45 30 21 20 4
A............................................................. 66 50 41 40 7
B1............................................................ 78 62 53 52 9
B............................................................. 92 76 68 66 12
C1............................................................ 113 98 89 88 19
C............................................................. 124 108 99 98 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) Within 320 km of the Canadian border, LP250 stations must meet
the following minimum separations with respect to any Canadian
stations:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intermediate
Canadian station class Co-channel (km) First-adjacent Second-adjacent Third-adjacent frequency (IF)
channel (km) channel (km) channel (km) channel (km)
--------------------------------------------------------------------------------------------------------------------------------------------------------
A1 & Low Power................................................ 54 33 22 20 4
A............................................................. 74 53 42 40 6
B1............................................................ 86 65 54 52 9
B............................................................. 101 79 68 67 12
C1............................................................ 122 101 90 88 19
C............................................................. 132 111 100 98 26
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) Within 320 km of the Mexican border, LP100 stations must meet
the following separations with respect to any Mexican stations:
----------------------------------------------------------------------------------------------------------------
Second- and Intermediate
Mexican station class Co-channel (km) First-adjacent third-adjacent frequency (IF)
channel (km) channel (km) channel (km)
----------------------------------------------------------------------------------------------------------------
Low Power............................... 27 17 9 3
A....................................... 43 32 25 5
AA...................................... 47 36 29 6
B1...................................... 67 54 45 8
B....................................... 91 76 66 11
C1...................................... 91 80 73 19
C....................................... 110 100 92 27
----------------------------------------------------------------------------------------------------------------
(4) Within 320 km of the Mexican border, LP250 stations must meet
the following separations with respect to any Mexican stations:
[[Page 20771]]
----------------------------------------------------------------------------------------------------------------
Second- and Intermediate
Mexican station class Co-channel (km) First-adjacent third-adjacent frequency (IF)
channel (km) channel (km) channel (km)
----------------------------------------------------------------------------------------------------------------
Low Power............................... 33 19 10 3
A....................................... 48 34 26 6
AA...................................... 52 38 30 6
B1...................................... 73 57 46 9
B....................................... 101 79 68 12
C1...................................... 96 83 74 19
C....................................... 116 102 93 26
----------------------------------------------------------------------------------------------------------------
(5) The Commission will notify the International
Telecommunications Union (ITU) of any LPFM authorizations in the US
Virgin Islands. Any authorization issued for a US Virgin Islands LPFM
station will include a condition that permits the Commission to modify,
suspend or terminate without right to a hearing if found by the
Commission to be necessary to conform to any international regulations
or agreements.
(6) The Commission will initiate international coordination of a
LPFM proposal even where the above Canadian and Mexican spacing tables
are met, if it appears that such coordination is necessary to maintain
compliance with international agreements.
3. Section 73.809 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 73.809 Interference protection to full service FM stations.
(a) If a full service commercial or NCE FM facility application is
filed subsequent to the filing of an LPFM station facility application,
such full service station is protected against any condition of
interference to the direct reception of its signal that is caused by
such LPFM station operating on the same channel or first-adjacent
channel and is protected from any condition of interference to the
direct reception of its signal caused by such LPFM station operating on
an intermediate frequency (IF) channel with more than 100 watts ERP,
provided that the interference is predicted to occur and actually
occurs within:
* * * * *
4. Revise Sec. 73.811 to read as follows:
Sec. 73.811 LPFM power and antenna height requirements.
(a) LP250 stations:
(1) Maximum facilities. LP250 stations will be authorized to
operate with maximum facilities of 250 watts effective radiated power
(ERP) at 30 meters antenna height above average terrain (HAAT). An
LP250 station with a HAAT that exceeds 30 meters will not be permitted
to operate with an ERP greater than that which would result in a 60 dBu
contour of 7.1 kilometers. In no event will an ERP less than one watt
be authorized.
(2) Minimum facilities. LP250 stations may not operate with
facilities less than 101 watts ERP at 30 meters HAAT or the equivalent
necessary to produce a 60 dBu contour that extends at least 5.7
kilometers.
(b) LP100 stations:
(1) Maximum facilities. LP100 stations will be authorized to
operate with maximum facilities of 100 watts ERP at 30 meters HAAT. An
LP100 station with a HAAT that exceeds 30 meters will not be permitted
to operate with an ERP greater than that which would result in a 60 dBu
contour of 5.6 kilometers. In no event will an ERP less than one watt
be authorized. No facility will be authorized in excess of one watt ERP
at 450 meters HAAT.
(2) Minimum facilities. LP100 stations may not operate with
facilities less than 50 watts ERP at 30 meters HAAT or the equivalent
necessary to produce a 60 dBu contour that extends at least 4.7
kilometers.
5. Section 73.816 is amended by revising paragraph (c) to read as
follows:
Sec. 73.816 Antennas.
* * * * *
(c)(1) Public safety and transportation permittees and licensees,
eligible pursuant to Sec. 73.853(a)(ii), may utilize directional
antennas in connection with the operation of a Travelers' Information
Service (TIS) provided each LPFM TIS station utilizes only a single
antenna with standard pattern characteristics that are predetermined by
the manufacturer. In no event may composite antennas (i.e., antennas
that consist of multiple stacked and/or phased discrete transmitting
antennas) and/or transmitters be employed.
(2) LPFM permittees and licensees may utilize directional antennas
for the purpose of preventing interference to a second-adjacent channel
station when requesting a waiver of the second-adjacent channel minimum
distance separations set forth in Sec. 73.807.
* * * * *
6. Revise Sec. 73.825 to read as follows:
Sec. 73.825 Protection to reception of TV channel 6.
(a) LPFM stations will be authorized on Channels 201 through 220
only if the pertinent minimum separation distances in the following
table are met with respect to all full power TV Channel 6 stations.
------------------------------------------------------------------------
Class LP100 Class LP250
to TV to TV
FM channel No. channel 6 channel 6
(km) (km)
------------------------------------------------------------------------
201........................................... 140 143
202........................................... 138 141
203........................................... 137 139
204........................................... 136 138
205........................................... 135 136
206........................................... 133 135
207........................................... 133 133
208........................................... 133 133
209........................................... 133 133
210........................................... 133 133
211........................................... 133 133
212........................................... 132 133
213........................................... 132 133
214........................................... 132 132
215........................................... 131 132
216........................................... 131 132
217........................................... 131 132
218........................................... 131 131
219........................................... 130 131
220........................................... 130 130
------------------------------------------------------------------------
(b) LPFM stations will be authorized on Channels 201 through 220
only if the pertinent minimum separation distances in the following
table are met with respect to all low power TV, TV translator, and
Class A TV stations authorized on TV Channel 6.
------------------------------------------------------------------------
Class LP100 Class LP250
to TV to TV
FM channel No. channel 6 channel 6
(km) (km)
------------------------------------------------------------------------
201........................................... 98 101
202........................................... 97 99
203........................................... 95 97
204........................................... 94 96
205........................................... 93 94
[[Page 20772]]
206........................................... 91 93
207........................................... 91 92
208........................................... 91 92
209........................................... 91 92
210........................................... 91 92
211........................................... 91 92
212........................................... 90 91
213........................................... 90 91
214........................................... 90 91
215........................................... 90 90
216........................................... 89 90
217........................................... 89 90
218........................................... 89 89
219........................................... 89 89
220........................................... 89 89
------------------------------------------------------------------------
7. Section 73.827 is amended by redesignating paragraphs (a) and
(b) as paragraphs (b) and (c) and adding new paragraph (a) to read as
follows:
Sec. 73.827 Interference to the input signals of FM translator or FM
booster stations.
(a) Interference to the direct reception of FM signals at a
translator input. An LPFM station will not be authorized unless it
remains at least 2 km from a translator receiving a third-adjacent
channel FM station (as compared to the LPFM) directly off-air, and
unless it remains at least 10 km from the translator site within the
azimuths from -30 degrees to +30 degrees of the azimuth from the
translator site to the site of the station being rebroadcast by the
translator. The provisions of this subsection will not apply if it can
be demonstrated that no actual interference will occur due to an
undesired (LPFM) to desired (FM) ratio below 34 dB at all locations, or
due to a location at a distance from the translator that satisfies the
following: du = 133.5 antilog [(Peu +
Gru - Grd - Ed)/20], where
du = the minimum allowed separation in km, Peu =
LPFM ERP in dBW, Gru = gain (dBd) of the translator receive
antenna in the direction of the LPFM site, Grd = gain (dBd)
of the translator receive antenna in the direction of the FM site,
Ed = predicted field strength (dBu) of the FM station at the
translator site.
* * * * *
8. Section 73.850 is amended by adding paragraph (c) to read as
follows:
Sec. 73.850 Operating schedule.
* * * * *
(c) All LPFM stations, including those meeting the requirements of
paragraph (b) of this section, but which do not operate 12 hours per
day each day of the year, will be required to share use of the
frequency upon the grant of an appropriate application proposing such
share time arrangement. Such applications must set forth the intent to
share time and must be filed in the same manner as are applications for
new stations. They may be filed at any time, but in cases where the
parties are unable to agree on time sharing, action on the application
will be taken only in connection with a renewal application for the
existing station filed on or after June 1, 2019. In order to be
considered for this purpose, such an application to share time must be
filed no later than the deadline for filing petitions to deny the
renewal application of the existing licensee.
(1) The licensee and the prospective licensee(s) shall endeavor to
reach an agreement for a definite schedule of periods of time to be
used by each. Such agreement must be in writing and must set forth
which licensee is to operate on each of the hours of the day throughout
the year. Such agreement must not include simultaneous operation of the
stations. Each licensee must file the same in triplicate with each
application to the Commission for initial construction permit or
renewal of license. Such written agreements shall become part of the
terms of each station's license.
(2) The Commission desires to facilitate the reaching of agreements
on time sharing. However, if the licensees of stations authorized to
share time are unable to agree on a division of time, the prospective
licensee(s) must submit a statement with the Commission to that effect
filed with the application(s) proposing time sharing.
(3) After receipt of the type of application(s) described in
subsection (c)(2), the Commission will process such application(s)
pursuant to Sec. Sec. 73.3561 through 73.3568 of this part. If any
such application is not dismissed pursuant to those provisions, the
Commission will issue a notice to the parties proposing a time-sharing
arrangement and a grant of the time-sharing application(s). The
licensee may protest the proposed action, the prospective licensee(s)
may oppose the protest and/or the proposed action, and the licensee may
reply within the time limits delineated in the notice. All such
pleadings must satisfy the requirements of section 309(d) of the Act.
Based on those pleadings and the requirements of section 309 of the
Act, the Commission will then act on the time-sharing application(s)
and the licensee's renewal application.
(4) A departure from the regular schedule set forth in a time-
sharing agreement will be permitted only in cases where a written
agreement to that effect is reduced to writing, is signed by the
licensees of the stations affected thereby, and is filed in triplicate
by each licensee with the Commission, Attention: Audio Division, Media
Bureau, prior to the time of the proposed change. If time is of the
essence, the actual departure in operating schedule may precede the
actual filing of the written agreement, provided that appropriate
notice is sent to the Commission in Washington, DC, Attention: Audio
Division, Media Bureau.
9. Section 73.853 is amended by adding paragraph (a)(3), revising
paragraph (b) introductory text and adding paragraphs (b)(4) and (c) to
read as follows:
Sec. 73.853 Licensing requirements and service.
(a) * * *
(3) Tribal Applicants, as defined in Sec. 73.7000 of this part,
that will provide non-commercial radio services.
(b) Only local applicants will be permitted to submit applications.
For the purposes of this paragraph, an applicant will be deemed local
if it can certify, at the time of application, that it meets the
criteria listed below and if such applicant continues to satisfy the
criteria at all times thereafter.
* * * * *
(4) In the case of a Tribal Applicant, as defined in Sec. 73.7000
of this part, the proposed site for the transmitting antenna is located
on that Tribal Applicant's ``Tribal Lands,'' as defined in Sec.
73.7000 of this part.
(c) An LP250 station will be licensed only to applicants that:
(1) Propose transmitter sites located at least 30 kilometers from
the reference coordinates for the top 100 radio markets; and (2)
currently operate an LP100 station serving the community of license
proposed to be served by the LP250 station.
10. Section 73.870 is amended by revising paragraph (a)
introductory text to read as follows:
Sec. 73.870 Processing of LPFM broadcast station applications.
(a) A minor change for an LP250 station authorized under this
subpart is limited to transmitter site relocations of 7.1 kilometers or
less. A minor change for an LP100 station authorized under this subpart
is limited to transmitter site relocations of 5.6 kilometers or less.
These distance limitations do not apply to amendments or applications
proposing transmitter site relocation to a common location filed by
applicants that are parties to a voluntary time-sharing agreement with
regard to their stations pursuant to Sec. 73.872 paragraphs
[[Page 20773]]
(c) and (e). Minor changes of LPFM stations may include:
* * * * *
11. Section 73.871 is amended by revising paragraphs (c)(1) and
(c)(2) to read as follows:
Sec. 73.871 Amendment of LPFM broadcast station applications.
* * * * *
(c) * * * (1) Filings subject to paragraph (c)(5) of this section,
site relocations of 5.6 kilometers or less for LP100 stations;
(2) Filings subject to paragraph (c)(5) of this section, site
relocations of 7.1 kilometers or less for LP250 stations;
* * * * *
12. Section 73.872 is amended by revising paragraphs (b)
introductory text and (b)(1), and adding paragraph (b)(4) to read as
follows:
Sec. 73.872 Selection procedure for mutually exclusive LPFM
applications.
* * * * *
(b) Except as specified in paragraph (b)(1) below, each mutually
exclusive application will be awarded one point for each of the
following criteria, based on application certification that the
qualifying conditions are met:
(1) Established community presence. An applicant must, for a period
of at least 4 years prior to application and at all times thereafter,
have been physically headquartered, have had a campus or have had
seventy-five percent of its board members residing within 16.1 km (10
miles) of the coordinates of the proposed transmitting antenna for
applicants in the top 50 urban markets, and 32.1 km (20 miles) for
applicants outside of the top 50 urban markets. If an applicant does
not satisfy the requirements of the preceding sentence but was formed
jointly by two or more organizations that do meet such requirements and
maintains representation on its governing board by at least one member
from each such organization, that applicant will be awarded one point
for each such formative organization. Applicants claiming a point or
more for this criterion must submit the documentation set forth in the
application form at the time of filing their applications.
* * * * *
(4) Tribal applicants serving Tribal Lands. The applicant must be a
Tribal Applicant, as defined in Sec. 73.7000 of this part, and the
proposed site for the transmitting antenna must be located on that
Tribal Applicant's ``Tribal Lands,'' as defined in Sec. 73.7000 of
this part.
* * * * *
[FR Doc. 2012-8239 Filed 4-5-12; 8:45 am]
BILLING CODE 6712-01-P