[Federal Register Volume 78, Number 6 (Wednesday, January 9, 2013)]
[Rules and Regulations]
[Pages 2078-2109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30975]
[[Page 2077]]
Vol. 78
Wednesday,
No. 6
January 9, 2013
Part V
Federal Communications Commission
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47 CFR Part 73
Implementation of the Local Community Radio Act of 2010; Revision of
Service and Eligibility Rules for Low Power FM Stations; Final Rule
Federal Register / Vol. 78, No. 6 / Wednesday, January 9, 2013 /
Rules and Regulations
[[Page 2078]]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-25; FCC 12-144]
Implementation of the Local Community Radio Act of 2010; Revision
of Service and Eligibility Rules for Low Power FM Stations
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission modifies its rules in order
to implement provisions of the Local Community Radio Act of 2010
(``LCRA''). 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: Effective February 8, 2013, except for amendments to Sec. Sec.
73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860, 73.872 which
contain information collection requirements that are not effective
until approved by the Office of Management and Budget (``OMB''). The
FCC will seek Paperwork Reduction Act comments via a separate notice in
the Federal Register. The FCC will publish a document in the Federal
Register announcing the effective date for those sections.
FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Sixth
Report and Order (``Sixth R&O''), FCC No. 12-144, adopted November 30,
2012. The full text of the Order 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.
Summary of Sixth Report and Order
1. On March 19, 2012, we released a Fourth Further Notice of
Proposed Rule Making (``Fourth FNPRM'') in this proceeding, seeking
comment on proposals to amend the rules to implement provisions of the
LCRA and to promote a more sustainable community radio service. These
proposed changes were intended to advance the LCRA's core goals of
localism and diversity while preserving the technical integrity of all
of the FM services. We also sought comment on proposals to reduce the
potential for licensing abuses.
2. In this Sixth R&O, we adopt an LPFM service standard for second-
adjacent channel spacing waivers (``second-adjacent waivers''), in
accordance with section 3(b)(2)(A) of the LCRA. We also specify the
manner in which a waiver applicant can satisfy this standard and the
manner in which we will handle complaints of interference caused by
LPFM stations operating pursuant to second-adjacent waivers. As
specified in section 7 of the LCRA, we establish separate third-
adjacent channel interference remediation regimes for short-spaced and
fully-spaced LPFM stations. Finally, as mandated by section 6 of the
LCRA, we modify our rules to address the potential for predicted
interference to FM translator input signals from LPFM stations
operating on third-adjacent channels.
3. We also make a number of other changes to our rules to better
promote the core localism and diversity goals of LPFM service.
Specifically, we modify our rules to clarify that the localism
requirement set forth in Sec. 73.853(b) applies not just to LPFM
applicants but also to LPFM permittees and licensees. We revise our
rules to permit cross-ownership of an LPFM station and up to two FM
translator stations, but we adopt a number of restrictions on such
cross-ownership in order to ensure that the LPFM service retains its
extremely local focus. In the interests of advancing the Commission's
efforts to increase ownership of radio stations by federally recognized
American Indian Tribes and Alaska Native Villages (``Tribal Nations'')
or entities owned or controlled by Tribal Nations, we revise our rules
to explicitly provide for the licensing of LPFM stations to Tribal
Nations or entities owned and controlled by Tribal Nations
(collectively, ``Tribal Nation Applicants''), and to permit Tribal
Nation Applicants to own or hold attributable interests in up to two
LPFM stations. In addition, we modify the point system that we use to
select from among MX LPFM applications. Specifically, we revise the
established community presence criterion; retain the local program
origination criterion; and add new criteria to promote the
establishment and staffing of a main studio, radio service proposals by
Tribal Nation Applicants to serve Tribal lands, and new entry into
radio broadcasting. Given these changes, we revise the existing
exception to the cross-ownership rule for student-run stations. We also
modify the way in which involuntary time sharing works, shifting from
sequential to concurrent license terms and limiting involuntary time
sharing arrangements to three applicants. We adopt mandatory time
sharing, which previously applied to full-service NCE stations but not
LPFM stations, for the LPFM service. We also revise our rules to
eliminate the LP10 class of LPFM facilities and eliminate the
intermediate frequency (``I.F.'') protection requirements applicable to
LPFM stations. Finally, we briefly discuss administrative aspects of
the upcoming filing window for LPFM stations.
A. Waiver of Second-Adjacent Channel Minimum Distance Separation
Requirements
4. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission
the authority to waive the second-adjacent channel spacing requirements
set forth in Sec. 73.807 of the rules. It permits second-adjacent
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.'' In the Fourth FNPRM, we tentatively concluded that this
waiver standard supersedes the interim waiver processing policy adopted
by the Commission in 2007. We sought comment on this tentative
conclusion. The three commenters that addressed this tentative
conclusion agreed with it. As we noted in the Fourth FNPRM, the interim
waiver processing policy requires the Commission to ``balance the
potential for new interference to the full-service station at issue
against the potential loss of an LPFM station.'' This balancing is
inconsistent with the language of section 3(b)(2)(A) of the LCRA
described above, which does not contemplate such a balancing.
Accordingly, we affirm our tentative conclusion that the waiver
standard set forth in the LCRA and discussed herein supersedes the
interim waiver processing policy previously adopted by the Commission.
5. In the Fourth FNPRM, we sought comment on the factors relevant
to and showings appropriate for second-adjacent waiver requests. Some
commenters express support for a requirement that waiver applicants
demonstrate there are no fully-spaced channels available, a potential
waiver standard about which we specifically sought comment. One
commenter--the National Association of Broadcasters (``NAB'')--proposes
additional requirements for second-adjacent waivers. These commenters
argue that the plain language of the LCRA and its
[[Page 2079]]
legislative history require that the Commission grant second-adjacent
waivers ``only in strictly defined circumstances.'' In contrast,
Prometheus and others argue that ``[b]eyond a showing of non-
interference as required by the statute, no other showing should be
required for LPFM applicants seeking waivers.'' Prometheus states that
``[t]he Commission is bound by the LCRA's terms'' and cannot ``infer a
wide range of additional limitations or prescriptions that appear
nowhere in the statute.''
6. We have reviewed both the text of the LCRA and the legislative
history. The plain language of section 3(b)(2)(A) of the LCRA permits
the Commission to grant second-adjacent waivers where a waiver
applicant demonstrates that its proposed operations ``will not result
in interference to any authorized radio service.'' Nothing in the LCRA
or its legislative history suggests that Congress intended to require
that waiver applicants make any additional showings. The statute does
not mandate any further conditions on the grant of such waivers, and it
does not prescribe the burden of proof. We conclude that Congress
intended to ensure that LPFM stations operating pursuant to second-
adjacent waivers do not cause interference to full-service FM and other
authorized radio stations. We find that additional limitations are not
needed to achieve this goal. Indeed, to require additional showings of
waiver applicants would impose requirements that go beyond those
established in the LCRA that we do not believe are either necessary to
the implementation of its interference protection goals or consistent
with the localism and diversity goals underlying the LPFM service.
Accordingly, we will not further restrict the availability of second-
adjacent waivers. Likewise, we will not consider any of the other
factors proposed in the Fourth FNPRM in determining whether to grant a
waiver request, none of which received any support in the comments.
7. We find unconvincing the policy arguments made by supporters of
requiring additional showings of waiver applicants. For instance, we
are not persuaded that any additional limits are needed to preserve the
technical integrity of the FM service. Neither NAB nor any other
commenter has offered evidence to support the claim that granting
second-adjacent waivers that satisfy the LCRA requirements will harm
audio quality or disrupt the expectations of listeners. Indeed, we are
not sure how any commenter could since waivers will only be granted
where an applicant makes a showing that its proposed operations will
not cause interference. Moreover, we note that many FM translators
successfully operate on second-adjacent channels, often at higher
effective radiated powers (``ERPs'') and heights above average terrain
(``HAAT'') than LPFM stations, under a protection scheme that permits
second-adjacent channel operations at less than LPFM distance
separation requirements. We believe LPFM stations can operate just as
successfully. Should interference occur, the interference remediation
obligations set forth in section 3(b)(2)(B) of the LCRA will serve as a
backstop to ensure that the technical integrity of the FM band is
maintained.
8. We find equally unpersuasive the argument that imposing
additional limits on second-adjacent waivers is in the best interest of
LPFM applicants. LPFM applicants may lack broadcast experience and
technical expertise, and therefore, may have difficulty predicting
interference issues. However, Commission staff will review each waiver
request and will deny any request that they determine would cause
interference. In addition, while the interference remediation
obligations may prove burdensome to LPFM licensees and may require some
LPFM stations to cease operations, we do not see this as a reason to
limit waivers. We agree with Prometheus that the potential benefit of
promoting a locally-based non-commercial radio service in potentially
thousands of communities nationwide vastly outweighs the risks that
individual LPFM licensees may face. In this regard, we note that, in
spectrum-congested markets, few LPFM opportunities would exist without
the use of second-adjacent waivers. For instance, applicants will be
able to select from 19 unique LPFM channels in the Denver Arbitron
Metro market and 18 in the New Haven Arbitron Metro market if second-
adjacent waivers are available. If these waivers are not available, an
applicant will have a much more limited selection--four unique LPFM
channels in the Denver Arbitron Metro market and three in the New Haven
Arbitron Metro market.
9. We turn to the manner in which waiver applicants can
``establish, using methods of predicting interference taking into
account relevant factors, including terrain-sensitive propagation
models, that their proposed operations will not result in interference
to any authorized radio service.'' In the Fourth FNPRM, we asked
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.'' A number of commenters offer
general support for this proposal. Prometheus grounds its support in
the fact that, read together, sections 3(b)(2)(A) and (B) of the LCRA
``set out a second adjacent waiver standard substantially identical to
the rules allocating translators on the second adjacent frequency.''
NAB opposes the use of these showings by waiver applicants, arguing
that it could lead to ``over-packing of the FM band, unwanted
interference, and the degradation of listeners' experience.'' NAB,
however, does not offer any evidence to support its claims. Nor does
NAB explain why the operations of the very large number of FM
translators that have relied on these showings do not cause the same
interference and signal degradation problems they predict as a result
of LPFM second-adjacent waivers. NPR also opposes allowing LPFM
applicants to make the same showings as FM translators. NPR argues that
there are ``significant differences'' between the LPFM and FM
translator services. However, it does not explain how these
differences--the ability to originate programming or lack thereof, the
highly local nature of the LPFM service, the relative inexperience of
LPFM licensees when compared to FM translator licensees--would justify
different waiver standards for FM translators and LPFM stations. We are
not persuaded that the differences that NPR cites have any impact on
whether a station will cause interference. Rather, the potential for
interference is principally dependent on the propagation
characteristics of the ``protected'' and ``interfering'' FM signals and
the quality of the utilized FM receiver.
10. We will permit waiver applicants to demonstrate that ``no
actual interference will occur'' in the same manner as FM translator
applicants. Put another way, we will permit waiver applicants to show
that ``no actual interference will occur'' due to ``lack of
population'' and will allow waiver applicants to use an undesired/
desired signal strength ratio methodology to define areas of potential
interference when proposing to operate near another station operating
on a second-adjacent channel. Although the LCRA does not require the
Commission to incorporate for second-adjacent channels the FM
translator regime that Congress incorporated for third-adjacent channel
interference protection, as Prometheus notes the second-adjacent waiver
provisions of the LCRA establish a regime similar to that governing FM
translators. Given the discretion afforded by Congress to the
Commission
[[Page 2080]]
for determining appropriate ``methods of predicting interference,'' our
experience in connection with methods for doing so in the analogous
context of FM translators, and the similarities between the regime
established in sections 3(b)(2)(A) and (B) and the regime applicable to
FM translator stations, we believe it is appropriate to grant waiver
applicants the same flexibility as FM translator applicants to
demonstrate that, despite predicted contour overlap, interference will
not in fact occur due to an absence of population in the overlap area.
We note that, like FM translator stations, LPFM stations operating
pursuant to second-adjacent waivers may not cause any actual
interference.
11. We also will permit waiver applicants to propose use of
directional antennas in making these showings. This is consistent with
our treatment of FM translator applicants and supported by the vast
majority of commenters. We clarify that, like FM translator applicants,
waiver applicants may use ``off the shelf'' antenna patterns and will
not be required to submit information regarding the characteristics of
the pattern with the construction permit application. In addition, as
requested by Prometheus and Common Frequency, we will permit waiver
applicants to propose lower ERPs and differing polarizations in order
to demonstrate that their operations will not result in interference to
any authorized radio service. We expect that this flexibility will
facilitate the expansion of the LPFM service while still protecting the
technical integrity of the FM band. In terms of proposals specifying
lower ERPs, we will not accept proposals to operate at less than
current LPFM minimum permissible facilities (i.e., power levels of less
than 50 watts ERP at 30 meters HAAT, or its equivalent). Since the
proposed operating parameters of a waiver applicant will be available
in our Consolidated Database System (``CDBS'') and since we do not
require other applicants seeking waivers of our technical rules to
serve their waiver requests on potentially affected stations, we will
not require an LPFM applicant seeking a second-adjacent waiver to serve
its waiver request on any potentially affected station. We will,
however, instruct the Media Bureau to identify specifically all
potentially affected second-adjacent channel stations in the public
notice that accepts for filing an application for an LPFM station that
includes a request for a second-adjacent waiver.
12. We remind potential LPFM applicants that the LCRA permits the
Commission to grant waivers only of second-adjacent, and not co- and
first-adjacent, spacing requirements. The flexibility discussed above
regarding lower power, polarization and directional patterns extends
only to waiver applicants seeking to demonstrate that their proposed
operations will not result in any second-adjacent channel interference.
We also caution LPFM applicants against using this technical
flexibility to limit the already small service areas of LPFM stations
to such an extent that, while their LPFM applications are grantable,
the LPFM stations will not be viable. As the Media Bureau noted
recently ``the limitations on the maximum power of LPFM stations
substantially reduce the number of potential listeners they can
serve.'' The Media Bureau went on to note that ``[t]he low power of an
LPFM station affects not only its geographic reach and coverage area,
but also the quality of its signal and the ability of listeners to
receive its signal consistently inside the station's coverage area.''
Finally, we take this opportunity to make clear the protection
obligations of FM translators toward LPFM stations operating with lower
powers, differing polarizations and/or directional antennas. To
simplify matters and provide clear guidance to FM translator
applicants, we will require FM translator modification applications and
applications for new FM translators to treat such LPFM stations as
operating with non-directional antennas at their authorized power.
13. We turn now to what happens if an LPFM station operating
pursuant to a second-adjacent channel waiver causes interference.
Section 3(b)(2)(B) provides a framework for handling an interference
complaint resulting from an LPFM station operating pursuant to a
second-adjacent waiver ``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
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.''
14. In the Fourth FNPRM, we proposed to incorporate these
provisions into our rules. We will do so. We believe including these
provisions in the rules will provide a clear framework for the
efficient resolution of interference complaints.
15. We also requested comment on whether to define a ``bona fide
complaint'' for the purpose of triggering these interference
remediation procedures. Prometheus urges us to do so and to handle
interference complaints against LPFM stations operating pursuant to
second-adjacent waivers in a manner similar to complaints against FM
translators and similar to the former third adjacent channel
remediation requirements. As we described in the Fourth FNPRM, for FM
translators, Sec. 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 Commission has interpreted
this rule 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 name, address, location(s) at
which FM translator interference occurs, and a statement that the
complainant 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 of FM translator interference
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 from an FM
[[Page 2081]]
translator, it will notify the station that ``interference is being
caused'' and direct the station to discontinue operations.
16. We conclude that it is appropriate to handle complaints in a
manner similar to that used to handle complaints of interference caused
by FM translators. As we noted above, we believe that the LCRA affords
the Commission the discretion to rely on our successful FM translator
experience in implementing the interference protection regime for
second-adjacent LPFM stations. Accordingly, we will adopt the same
requirements for complaints that we apply in the FM translator context.
As described above, that means that a complaint must come from a
disinterested listener and must include the listener's name and
address, and the location at which the interference occurs. We are
unconvinced by NPR's argument that a listener complaint is unnecessary.
While NPR is correct that section 3(b)(2)(B)(iii) refers simply to ``a
complaint of interference'' and does not specify the source of such
complaint, we find this statutory term to be ambiguous. We conclude
that it may reasonably be interpreted to refer to listener complaints.
We note that we have interpreted Sec. 74.1203 of the rules to require
that complaints of interference in the FM translator context be filed
by listeners. We also note that the scope of the rule prohibiting
translator stations from causing ``actual interference to * * * direct
reception,'' and that of section 3(b)(2)(B) which prohibits LPFM
stations from causing ``interference to the reception of an existing or
modified full-service station,'' are essentially equivalent. The
Commission previously has interpreted the ``direct reception'' language
included in Sec. 73.1203(a) as limiting actionable complaints to those
that are made by bona fide listeners. We believe it is appropriate to
interpret the ``reception'' language in section 3(b)(2)(B) of the LCRA
as imposing this same limit.
17. Once the Commission receives a bona fide complaint of
interference from an LPFM station operating pursuant to a second-
adjacent waiver and notifies the LPFM station of the complaint, the
LPFM station must ``suspend operation immediately'' and stay off the
air until it eliminates the interference or demonstrates that the
interference was not due to its emissions. We conclude that an LPFM
station may demonstrate that it is not the source of the interference
at issue by conducting an ``on-off'' test. ``On-off'' tests have been
used by the FM translator and other services to determine whether
identified transmissions are ``the source of interference.'' In
addition, the Commission specifically authorized LPFM stations to use
``on-off'' tests for determining ``whether [third-adjacent
interference] is traceable to [an] LPFM station.'' As the Commission
did in that context, we require the full-service station(s) involved to
cooperate in these tests.
B. Third-Adjacent Channel Interference Complaints and Remediation
18. As instructed by section 3 of the LCRA, in the Fifth Report and
Order (``Fifth R&O''), we eliminated the third-adjacent channel spacing
requirements. We then sought comment on the associated interference
remediation obligations, set forth in section 7 of the LCRA, that
Congress paired with this change. We 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 the third-adjacent channel spacing requirements in place when the
LCRA was enacted, and one for LPFM stations that would be considered
fully spaced under those requirements. We discuss this conclusion and
each of the regimes below.
1. LPFM Interference Protection and Remediation Requirements
19. Two Distinct Regimes. Sections 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) 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 Section 74.1203 of [the] rules.'' Section 7(3),
in contrast, directs the Commission to require ``[LPFM] stations on
third-adjacent channels * * * to address interference complaints within
the protected contour of an affected station'' and encourages such LPFM
stations to address ``all other interference complaints.'' In the
Fourth FNPRM, we tentatively concluded that, through these two
provisions, Congress intended to create 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 explained that the intended regimes differed both
with respect to the locations at which an affected station's signal is
protected from third-adjacent interference from an LPFM station and the
extent of the remediation obligations applicable when interference
occurs at these locations. We sought comment on our tentative
conclusion.
20. Commenters addressing this question support our tentative
conclusion. Accordingly, we find that section 7 of the LCRA creates two
different interference protection and remediation regimes--one that
applies to Section 7(1) Stations and one that applies to Section 7(3)
Stations. As we noted in the Fourth FNPRM, 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), which incorporates the requirements
for FM translators and boosters, Section 7(1) Stations must
``eliminate'' any actual interference they cause to the signal of any
authorized station in areas where that station's signal is ``regularly
used.'' Section 7(3), on the other hand, would obligate such stations
only to ``address'' complaints of interference occurring within an
affected station's protected contour. We conclude that this statutory
interpretation is necessary to read section 7 as a harmonious whole.
21. As we noted in the Fourth FNPRM, we can also reasonably
conclude that Congress intended to impose more stringent interference
protection and remediation obligations on LPFM stations that are
located nearest to full-service FM stations and, therefore, have a
greater potential to cause interference. The LCRA provides greater
flexibility by eliminating third-adjacent channel spacing requirements
for LPFM stations, but counterbalances that flexibility with a
prohibition on LPFM stations that would be short-spaced under such
requirements causing any actual interference to other stations.
Accordingly, our reading is consistent with the general licensing rule
of counterbalancing flexible technical standards with more stringent
interference remediation requirements.
22. Retention of Third-Adjacent Channel Spacing Requirements for
Reference. We tentatively concluded that, although section 3(a) of the
LCRA mandates the elimination of the third-adjacent channel spacing
requirements, we should retain them solely for reference purposes in
order to implement section 7(1) of the LCRA. We sought comment on this
tentative conclusion and also on whether, if the spacing tables are
retained in the rules,
[[Page 2082]]
to include them in Sec. 73.807 or a different rule section.
23. Commenters addressing this issue agree that the rules should
reference the former third-adjacent channel distance separation
requirements, but are divided on the best approach. REC expresses
concern that references to third-adjacent spacing in Sec. 73.807 could
confuse new applicants. Common Frequency asserts that it would be
confusing to eliminate the third-adjacent spacing provisions, rename
them, and then insert them in a table elsewhere in the rules.
24. We will retain the third-adjacent channel spacing provisions in
Sec. 73.807 for reference purposes only. It is necessary to reference
the former third-adjacent channel spacing requirements in order to
clarify which stations must adhere to the section 7(1) regime. We are
sympathetic to commenters' concerns of confusion. However, we believe
that licensees will find it easier and more convenient to have all the
spacing standards (reference or otherwise) in one section of the rules.
We make clear in the new version of Sec. 73.807 that LPFM stations
need not satisfy these standards, and that they are included solely to
determine which third-adjacent interference regime applies.
25. Applicability of sections 7(4) and (5) of the LCRA. Sections
7(4) and (5) of the LCRA establish a number of protection and
interference remediation requirements. These provisions mandate that
the Commission allow LPFM stations on third-adjacent channels to
collocate and establish certain complaint procedures and standards. In
the Fourth FNPRM, we tentatively concluded these sections apply only to
Section 7(3) Stations.
26. We affirm our tentative conclusion, which was supported by
Prometheus, the sole commenter on this issue. We believe this is the
most reasonable reading of these provisions. Sections 7(4) and (5) 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) Stations are subject to the well-
established and comprehensive interference protection and remediation
regime set forth in Sec. 74.1203 of the rules. We therefore will not
apply sections 7(4) and 7(5), which establish discrete requirements
inconsistent with the Sec. 74.1203 regime, to Section 7(1) stations.
27. Third-Adjacent Channel Interference Only. We tentatively
concluded that sections 7(1), (2), (3), (4) and (5) of the LCRA apply
only to third-adjacent channel interference. We affirm our conclusion,
which commenters support. Although Congress did not specify the type of
interference to which these provisions apply, we believe this is the
most reasonable reading. 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 LPFM stations causing
interference to stations located on third-adjacent channels. 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.
2. Regime Applicable to Section 7(1) Stations
28. General Requirements. Section 7(1) Stations are subject to the
same interference protection and remediation regime applicable to FM
translator and booster stations. These requirements, set forth in Sec.
74.1203 of the rules, are more stringent than those currently
applicable to LPFM stations. Sec. 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. As
previously noted, the rule has been interpreted broadly.
29. Southwestern Ohio Public Radio (``SOPR''), the only commenter
to address this issue, comments that ``it appears that the requirements
in Section 7(1) give the Commission very little leeway in its
interpretation.'' Section 7(1) is explicit in its direction to
``provide the same interference protections that FM translator stations
and FM booster stations are required to provide as set forth in Section
74.1203.'' There is no evidence in the statute or legislative history
that Congress intended the Sec. 74.1203 requirements to be merely a
list of minimum criteria that could be supplemented or modified;
indeed, the statute expressly says that the interference protections
must be ``the same.'' Further, the LCRA refers to the particular
version of Sec. 74.1203 ``in effect on the date of enactment of this
Act'' (i.e., January 4, 2011). Accordingly, we will apply the relevant
sections of Sec. 74.1203, without modification, to Section 7(1)
Stations. We will interpret these provisions in the same manner as we
have in the FM translator context. In addition, we will consider
directional antennas, lower ERPs and/or differing polarizations to be
suitable techniques for eliminating third-adjacent channel
interference. FM translators have the flexibility to employ all of
these options in their operations. Thus, permitting LPFM stations to
use these same remedial techniques is consistent with Congress'
decision to require the wholesale adoption of the well-established and
comprehensive regime in Sec. 74.1203 of the rules.
30. Periodic Announcements. We also requested comment on requiring
newly constructed Section 7(1) Stations to make the same periodic
announcements required of Section 7(3) Stations under section 7(2) of
the LCRA. We questioned whether we could reasonably 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. We noted, 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 section 74.1203 of its rules,'' and that Sec. 74.1203 does not
require an FM translator station to broadcast periodic announcements
that alert listeners to the potential for interference. Thus, we asked
commenters to address whether we could and, if so, whether we should
impose the periodic announcement requirement on Section 7(1) Stations.
31. Commenters addressing this issue were divided. SOPR states that
the Commission must strictly adhere to the requirements of Sec.
74.1203, in accordance with the section 7(1) mandate, and therefore,
periodic announcements should not be required of Section 7(1) Stations.
Similarly, Common Frequency highlights the inconsistency of the
Commission finding distinctions between Section 7(1) and 7(3) Stations,
but then conversely stating that there is no reason to distinguish
between Section 7(1) Stations and Section 7(3) Stations for purposes of
periodic announcements. REC, on the other hand, argues that the section
7(2) periodic announcement requirement applies to Section 7(1)
Stations. It believes ``that the differences in references to how a
LPFM station operating on a third adjacent channel in respect to a
full-service FM station may be due to how the 2010 version of the LCRA
was marked-up by Congress,'' and
[[Page 2083]]
that Congress intended the periodic announcement requirement to apply
to all LPFM stations constructed on third-adjacent channels.
32. We believe that Congress, in framing section 7, did not intend
to apply the periodic announcement requirement to Section 7(1)
Stations. If it had wished to apply this requirement to Section 7(1)
Stations, it could have done so explicitly in the LCRA. Instead,
Congress required our wholesale adoption of the well-established and
comprehensive Sec. 74.1203 regime for Section 7(1) Stations. That
regime does not include any form of periodic announcements. We agree
with Common Frequency that it is incongruous to find clear distinctions
between the section 7(1) and 7(3) Station interference protection and
remediation regimes, as we have done, but then to ignore these
distinctions in this context. Accordingly, for the reasons discussed
above, we will not impose a periodic announcement requirement on
Section 7(1) Stations.
3. Regime Applicable to Other LPFM Stations
33. 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 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 these other provisions below.
34. ``Addressing'' Complaints of Third-Adjacent Channel
Interference. Unlike section 7(1), section 7(3) does not specifically
refer to Sec. 74.1203 of the rules. 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.
Section 7(2) of the LCRA--which we conclude applies only to Section
7(3) Stations--further mandates that we require newly constructed
Section 7(3) Stations on third-adjacent channels to cooperate in
``addressing'' any such interference complaints. Therefore, in the
Fourth FNPRM, we sought comment on (1) what a Section 7(3) Station must
do to ``address'' a complaint of third-adjacent channel interference;
(2) whether to specify the scope of efforts which a Section 7(3)
Station must undertake; (3) whether to relieve a Section 7(3) Station
of its obligations in instances where the complainant does not
reasonably cooperate with the Section 7(3) Station's remedial efforts;
and (4) whether the more lenient interference protection obligations
currently set forth in Sec. 73.810 should continue to apply to Section
7(3) Stations.
35. Commenters offer varied interpretations of the actions a
Section 7(3) Station must take to ``address'' a complaint of third-
adjacent channel interference. SOPR argues that ``to address'' means
``to respond to the complaint with reasonable effort to remediate the
interference based on accepted engineering practices and with the
cooperation of the complainant.'' It urges the Commission to clearly
specify the scope of required efforts. Common Frequency proposes that
``addressing'' interference complaints ``could mean visiting the
impacted area, turning on the receiver in question, and shutting down
temporarily.'' NPR, in contrast, contends that this phrase imposes the
full scope of section 7(1) remediation requirements on Section 7(3)
Stations when interference occurs within the protected contour of the
affected station. Notwithstanding these divergent interpretations, we
find unanimous support for relieving Section 7(3) Stations of their
obligations in instances where a complainant does not reasonably
cooperate with an LPFM station's remedial efforts. Finally, in lieu of
applying the interference protection obligations currently set forth in
Sec. 73.810 to Section 7(3) Stations, one commenter suggests that we
instead employ the current FM translator rules, which, it asserts,
``have worked for decades and [are] seen as `tried and tested.'''
36. We find that it is most reasonable to conclude that the
substantial differences between the language of sections 7(1) and 7(3)
reflect Congress's intention to establish differing remediation regimes
for these two classes of stations. Moreover we find a clear difference
in meaning between the Sec. 74.1203 obligation to ``eliminate''
interference and the lesser section 7(3) obligation to ``address * * *
interference complaints.'' Accordingly, we will define ``address'' in
accordance with the current version of Sec. 73.810 of the rules,
meaning ``an LPFM station will be given a reasonable opportunity to
resolve all interference complaints.'' We will not require Section 7(3)
Stations to cease operations while resolving interference complaints,
and we decline to specify the scope of remedial efforts Section 7(3)
Stations must undertake. Section 7(3) Stations fully comply with the
Commission's former third-adjacent spacing requirements, a stringent
licensing standard, which is based on a proven methodology for ensuring
interference-free operations between nearby stations. Accordingly,
similarly stringent interference remediation obligations are
unnecessary. We expect Section 7(3) Stations, however, to make good
faith and diligent efforts to resolve any complaints received. For
example, a Section 7(3) Station may agree to provide new receivers to
impacted listeners or to install filters at the receiver site. Section
7(3) Stations also may wish to consider colocation, a power reduction
and/or other facility modifications (e.g., use of directional antennas
or differing polarizations) to alleviate the interference. Finally, we
will continue to consider a complaint resolved if the complainant does
not reasonably cooperate with a Section 7(3) Station's investigatory
and remedial efforts.
37. Complaints. 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. Further, 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.
38. We requested comment on whether any of the four criteria for
bona fide complaints set forth in Sec. 73.810(b) of the rules remain
relevant. We tentatively concluded that section 7(5) of the LCRA
requires us to delete Sec. 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
[[Page 2084]]
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 asked commenters to address whether we should
retain the remaining criterion set forth in Sec. 73.810(b)(4), which
requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts. We also sought comment on
whether to establish certain basic requirements for complaints.
39. No commenter opposes our conclusion that section 7(5) of the
LCRA mandates that we delete Sec. Sec. 73.810(b)(1) and (b)(3) from
our rules. One commenter, however, proposes that we add a provision
limiting complaints to those involving interference within the 100 dBu
contour of the affected station. With respect to Sec. 73.810(b)(2)
(bona fide complaint must be in form of affidavit and state the nature
and location of the alleged interference), several commenters recommend
that we retain some semblance of the former rule and also establish
additional basic requirements for complaints. For instance, Athens
Community Radio Foundation asserts that bona fide complaints should
state the nature and location of the alleged interference, the call
letters of the stations involved, and accurate contact information.
Similarly, Common Frequency argues that an actionable complaint must
specify the location and date of interference, the type of receiver,
channel, time/day of interference, whether ongoing or intermittent, and
contact information for the complainant. Several commenters also assert
that the Commission should require complainants to file copies of their
complaints with the Audio Division, and that the Commission should
consider only complaints from bona fide listeners who are
``disinterested.'' Finally, those discussing it unanimously agree that
we should retain the criterion set forth in Sec. 73.810(b)(4), which
requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts.
40. We will, as proposed, eliminate Sec. Sec. 73.810(b)(1) and
(b)(3) from our rules. These distance restrictions conflict with the
explicit mandate of section 7(5) of the LCRA to ``accept complaints
based on interference * * * at any distance from the full-service FM
station, FM translator station, or FM booster station.'' In addition,
the Sec. 73.810(b)(3) fixed receiver limitation is inconsistent with
section 7(5)(C) of the LCRA, which requires us to accept complaints of
interference at fixed locations and to mobile reception.
41. In this same vein, we decline to adopt the proposal to limit
complaints to those occurring within the 100 dBu contour of the
affected station. We agree, however, with commenters' suggestions that
we impose explicit, basic requirements for complaints. A list of
minimum criteria likely will help LPFM stations quickly address issues
while also curbing the risk of frivolous filings. Accordingly, while we
will delete the Sec. 73.810(b)(2) criterion that the complaint be in
the form of an affidavit, we retain the requirement that the complaint
state the nature and location of the alleged interference. We will also
require complainants to specify: (1) The call signs of the LPFM station
and the affected full-service FM, FM translator or FM booster station;
(2) the type of receiver; and (3) current contact information. We
strongly encourage listeners to file copies of the complaints with the
Media Bureau's Audio Division to ensure proper oversight. LPFM stations
also must promptly forward copies of complaints to the Audio Division
for resolution. However, an affected station may forward copies of
complaints that it receives to the Audio Division as a courtesy to the
complainant listeners. When complainants fail to include all the
necessary information listed above, Audio Division staff will take
efforts to correct any deficiencies. We also limit actionable listener
complaints to those that are made by bona fide ``disinterested''
listeners (e.g., persons or entities without legal, economic or
familial stakes in the outcome of the LPFM station licensing
proceeding). Finally, we will preserve the Sec. 73.810(b)(4)
criterion, which requires a bona fide complaint to be received within
one year of the date an LPFM station commenced broadcasts with its
currently authorized facilities. Any interference caused by a Section
7(3) Station should be detectable within one year after it commences
such operations. This time restriction will reasonably limit
uncertainty regarding the potential modification or cancellation of an
LPFM station's license and such station's financial obligation to
resolve interference complaints. We believe that the efficient, limited
complaint procedure that we are adopting is fully consistent with the
LCRA and fairly balances the interests of full-service broadcasters
against the benefits of fostering the LPFM radio service.
42. Periodic Broadcast Announcements. Section 7(2) of the LCRA
directs the Commission to amend Sec. 73.810 of the rules 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 station to report any interference.
These announcements must be broadcast for a period of one year after
construction. We sought comment on whether we should adopt specific
announcement language and whether we should mandate the timing and
frequency of these announcements.
43. Commenters agree that the Commission should provide some
guidance regarding the text of the announcements. One commenter
recommends that the Commission specify explicit uniform language. Other
commenters state that the Commission should merely suggest language and
allow operators of Section 7(3) Stations the flexibility to modify the
wording. REC emphasizes that broadcasters need to have ``latitude to
word the message in a way to get the points across without overwhelming
listeners with technical jargon.''
44. With respect to the timing and frequency of the mandatory
announcements, REC argues that we should aim to achieve ``a balance
between educating radio listeners of changes in the `dialscape' as a
result of the new [LPFM] station while * * * not confus[ing] the
listener or excessively burden[ing] the [LPFM] broadcaster.'' Jeff
Sibert (``Sibert'') and Prometheus each urge us to address the
announcements in a manner that is simple, flexible and imposes a
minimum burden on new Section 7(3) Stations. One commenter suggests
that we allow the affected full-power station to waive the Section 7(3)
Station's periodic announcement requirement.
45. Several commenters recommend that we use the pre-filing and
post-filing license renewal announcement schedule as a template. REC,
in particular, suggests a very detailed schedule based on a modified
version of the renewal announcement schedule. It argues that any bona
fide interference will be discovered in the first month of the Section
7(3) Station's operation, and accordingly, it is necessary to air the
highest frequency of announcements during the first month. Sibert
asserts that the requirement to broadcast the announcement should be no
greater than once per day between the hours of 6 a.m. and midnight for
the first three months, and once per week during the same hours for the
last nine months.
46. We agree that we should provide licensees of newly constructed
Section 7(3) Stations explicit guidance on the language to be used in
the periodic
[[Page 2085]]
announcements. Therefore, we will amend our rules to specify sample
language that may be used in the announcements. Specific language will
make it easier for licensees of new Section 7(3) Stations to comply
with this section 7(2) requirement. We will not, however, mandate that
licensees of Section 7(3) Stations follow the sample text verbatim, but
rather, allow licensees the discretion to modify the exact wording, as
the vast majority proposed. To ensure consistency, the announcement
must, however, at a minimum: (1) Alert listeners of a potentially
affected third-adjacent channel station of the potential for
interference; (2) instruct listeners to contact the Section 7(3)
Station to report any interference; and (3) provide contact information
for the Section 7(3) Station. Further, the message must be broadcast in
the primary language of both the newly constructed Section 7(3) Station
and any third-adjacent station that could be potentially affected.
47. We will, as the commenters suggest, dictate the timing and
frequency of the required announcements. We believe that an explicit
schedule will promote compliance with this requirement. We also believe
that the schedule specified below achieves the benefits of effectively
notifying listeners of the potential for interference while minimizing
the costs of doing so for the new Section 7(3) Station.
48. We agree with REC that any interference is likely to be
detected within the first month of the new Section 7(3) Station's
operation. Accordingly, during the first thirty-days after a new
Section 7(3) Station is constructed, we direct such station to
broadcast the announcements at least twice daily. One of these daily
announcements shall be made between the hours of 7 a.m. and 9 a.m. or 4
p.m. and 6 p.m. The second daily announcement shall be made outside of
these time slots. Between days 31 and 365 of operation, the station
must broadcast the announcements a minimum of twice per week. The
required announcements shall be made between the hours of 7 a.m. and
midnight.
49. Finally, we decline to allow an affected full-power station to
waive the newly constructed Section 7(3) Station's periodic
announcement obligation, as one commenter suggests. Section 7(2) of the
LCRA explicitly mandates that newly constructed Section 7(3) Stations
broadcast periodic announcements. The announcement is intended to
benefit listeners, by alerting them of the potential for interference.
Allowing potentially affected stations to waive the announcements would
be inconsistent with section 7(2) of the LCRA and deprive listeners of
its intended benefits.
50. 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 colocation of the transmission facilities of
the low-power FM station and any stations on third-adjacent channels.''
In the Fourth FNPRM, we tentatively concluded that, other than
eliminating the third-adjacent channel spacing requirements as mandated
by section 3(a) of the LCRA, we need not modify or eliminate any other
provisions of our rules to implement section 7(4).
51. Two commenters propose additional modifications to our rules in
order to implement section 7(4). REC argues that LPFM stations should
have the flexibility to co-locate with or operate from a site ``very
close to the third-adjacent full-service station as long as no new
short spacing is created, even if this means moving the transmitter
site to a location that may be outside the current service contour of
the LPFM station.'' REC points out that, under existing rules, such a
change would constitute a ``major change'' and an applicant seeking
authority to make such a change would have to do so during a filing
window. We infer that REC would like us to modify our rules to clarify
that we will treat as a ``minor change'' a proposal to move a Section
7(3) Station's transmitter site, including a move outside its current
service contour, in order to co-locate or operate from a site close to
a third-adjacent channel station and remediate interference to that
station. We will adopt REC's proposed modification. We note that
section 7(4) of the LCRA explicitly requires the Commission to grant
``low-power FM stations on third-adjacent channels the technical
flexibility to remediate interference through the colocation of the
transmission facilities of the low-power FM station and any stations on
third-adjacent channels.'' We believe that REC's suggested expansion of
the definition of ``minor change'' will provide Section 7(3) Stations
the sort of ``technical flexibility'' that Congress intended. We also
will treat as a ``minor change'' an LPFM proposal to locate ``very
close'' to a third-adjacent channel station. Although the LCRA does not
explicitly direct the Commission to employ ``flexible'' licensing
standards in this context, colocation and ``very close'' locations can
eliminate the potential for interference for exactly the same reason
(i.e., they result in acceptable signal strength ratios between the two
stations at all locations). Generally, this will limit LPFM site
selections and relocations pursuant to this policy to transmitter
within 500 meters of stations operating on third-adjacent channels. The
approach we adopt will advance the overarching goal of section 7 to
prevent third-adjacent channel interference by LPFM stations.
Accordingly, we will modify Sec. 73.870(a) of our rules to treat these
moves as ``minor changes,'' and we will routinely grant applications
for authority to make these moves, upon a showing of potential
interference from the authorized site, and provided that the licensee
would continue to satisfy all eligibility requirements and maintain any
comparative attributes on which the grant of the station's initial
construction permit was predicated.
52. If interference is remediated through colocation, Common
Frequency recommends that we consider allowing ``flexible operating
proposals,'' such as upgrades to LP250 if the colocation takes the LPFM
transmitter far from the existing transmitter site, the use of
different or directional antennas, and the use of close-by towers
instead of colocation. We decline to permit Section 7(3) Stations
seeking to remediate interference by co-locating their transmission
facilities with those of an affected full-service FM station to operate
at powers exceeding 100 watts ERP at 30 meters HAAT. We will, however,
permit Section 7(3) Stations to propose lower powers, use of
directional antennas and use of differing polarizations to remediate
interference. This is consistent with our decision to afford applicants
seeking second-adjacent waivers the flexibility to employ these
methods.
4. Additional Interference Protection and Remediation Obligations
53. 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. It 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
[[Page 2086]]
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. In the Fourth FNPRM, we found that the section
7(6) interference requirements are, with one exception, unambiguous. We
sought comment on whether to interpret the term ``States'' to include
the territories and possessions of the United States. We noted that
only New Jersey and Puerto Rico satisfy the population and population
density thresholds set forth in section 7(6).
54. Commenters are divided how we should construe the term
``States.'' REC and SOPR argue that Congress did not intend to include
Puerto Rico as a ``State'' for purposes of section 7(6). REC contends
that, following lobbying from the New Jersey Broadcasters Association
(``NJBA''), Congress amended the Act to include the current section
7(6), and that Congress intended this section to apply solely to the
state of New Jersey. Arso Radio Corporation (``Arso''), in contrast,
asserts that ``States'' should include the territories and possessions
of the United States, and therefore, the more restrictive section 7(6)
interference protections should apply to both New Jersey and Puerto
Rico. Although Arso acknowledges that an examination of the legislative
history ``does not yield any clues as to congressional intent regarding
use of the word `States,''' it insists that Congress intended to define
the words ``States'' in the same way as it defined ``States'' in
section 153(47) of the Communications Act of 1934, as amended
(``Act''), which provides that the term ``State'' includes the District
of Columbia and the Territories and possessions.
55. We recognize that the term ``States'' is susceptible to
different interpretations. It is unclear from the statutory text
whether Congress intended the term ``States'' to mean the definition of
``States'' as it appears in the Act, which includes all territories and
possessions, or whether Congress intended to use the word ``State'' in
its literal sense. We believe, however, that the best construction of
this term, based on context and the current record before us, is that
``State'' means one of the 50 states. Congress knows how to implement
its directives as amendments to the Communications Act, and chose not
to do so in the LCRA. Thus, there is no basis for expanding on the
common meaning of the term ``states'' here to include territories. We
also agree with REC that New Jersey is ``in a unique situation where
there are two significant out-of-state metro markets (New York and
Philadelphia) on each side of the state.'' With the New York and
Philadelphia Arbitron Metro markets dominating much of the state, full
power radio stations in New Jersey generally operate with lower powers
and smaller protected contours than other full power radio stations.
This could make them uniquely susceptible to interference from LPFM and
FM translator stations. Moreover, we note that this provision of the
LCRA was introduced by Senator Lautenburg, the senior Senator from New
Jersey. This legislative history provides additional support for our
conclusion that the term ``States'' in section 7(6) was not intended to
include territories.
C. Protection of Translator Input Signals
56. 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).''' Section 2.7 of this report finds that
``significant interference to translator input signals does not occur
for [desired/undesired ratio] values of -34 dB or higher at the
translator input.'' Section 2.7 sets out a formula (``Mitre Formula'')
that allows calculation of the minimum LPFM-to-translator separation
that will ensure a desired/undesired ratio equal to or greater than -34
dB.
57. In the Fourth FNPRM, we noted that the Commission 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 protection standards. Based on the
language of section 6, which requires the Commission to ``address the
potential for predicted interference,'' we tentatively concluded that
our existing requirements regarding remediation of actual interference
must be recast as licensing rules designed to prevent any predicted
interference. No commenter suggested another interpretation of section
6 of the LCRA. Thus, we affirm our tentative conclusion that section 6
of the LCRA requires us to adopt rules designed to prevent predicted
interference to FM translator input signals on third-adjacent channels.
58. In the Fourth FNPRM, we sought comment on whether we should
require LPFM applicants to protect the input signals of only those
translators receiving third-adjacent channel full-service FM station
signals, or whether we also should require them to protect the input
signals of translators that receive third-adjacent channel translator
signals directly off-air. Commenters' opinions vary on this issue.
Prometheus argues that the protections should be limited to translators
receiving input signals from FM stations. Prometheus believes that any
protections beyond those to translators receiving off-air signals from
FM stations would violate section 5 of the LCRA, which requires the
Commission to ensure that LPFM stations and FM translators remain
``equal in status.'' NPR and Western Inspirational, on the other hand,
assert that the protections should extend to translators receiving
input signals from other FM translators. NPR claims that, by its plain
terms, section 6 of the LCRA requires protection of all signal inputs
to translators. NPR notes that this interpretation is consistent with
the Commission's current rule protecting translator input signals.
Western Inspirational asserts that, with increased spectrum congestion,
it has found it necessary for many of its translators to use an off-air
input from another translator, not the originating FM station, in order
to obtain a reliable input signal.
59. After considering the comments and reviewing the text of the
LCRA, we conclude that LPFM applicants must protect the reception
directly, off-air of third-adjacent channel input signals from any
station, including full-service FM stations and FM translator stations.
Section 6 of the LCRA asks the Commission to address predicted
interference to ``FM translator input signals on third adjacent
channels.'' This unqualified mandate is consistent with our rules,
which require LPFM stations to operate without causing actual
interference to the input signal of an FM translator or FM booster
station.
60. We turn next to the issue of a predicted interference standard
for processing LPFM applications. We adopt the basic threshold test
proposed in the Fourth FNPRM, which received overwhelming support from
commenters. This threshold test closely tracks the interference
standard developed by Mitre but for the reasons stated below does not
require an LPFM applicant to obtain the receive antenna technical
characteristics that are incorporated into the Mitre Formula. It
provides that an applicant for a new or modified LPFM construction
permit may not propose a transmitter site within the ``potential
interference area'' of any FM translator station that receives its
input signal directly off-air from a full-service FM or FM translator
station on a third-adjacent channel. For
[[Page 2087]]
these purposes, we define the ``potential interference area'' as both
the area within 2 kilometers of the translator site and also the area
within 10 kilometers 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 FM station being rebroadcast by the translator.
61. As proposed in the Fourth FNPRM and supported by commenters, we
will permit an LPFM applicant proposing to locate its transmitter
within the ``potential interference area'' to use either of two methods
to demonstrate that LPFM station transmissions will not cause
interference to an FM translator input signal. First, as indicated in
Section 2.7 of the Mitre Report, an LPFM applicant 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, an LPFM applicant may use the equation provided in
Section 2.7 of the Mitre Report. As requested by Prometheus, we also
will permit an LPFM applicant to reach an agreement with the licensee
of the potentially affected FM translator regarding an alternative
technical solution.
62. We do not authorize FM translator receive antenna locations.
However, we believe that most receive and transmit antennas are co-
located on the same tower. Accordingly, we proposed to assume that the
translator receive antenna is co-located with its associated translator
transmit antenna. We received no comment on this proposal. We continue
to believe that assuming colocation of translator receive and transmit
antennas will facilitate the use of the methods described above. We
noted that the Mitre Formula would require the horizontal plane pattern
of the FM translator's receive antenna--information that is not
typically available publicly or in CDBS. Therefore, we also proposed to
allow the use of a ``typical'' pattern in situations where an LPFM
applicant is not able to obtain this information from the FM translator
licensee, despite reasonable efforts to do so. Both Prometheus and
Common Frequency support this proposal. No commenter opposes it.
Accordingly, we adopt our proposal to allow use of a ``typical''
pattern when an LPFM station makes reasonable efforts but is unable to
obtain the horizontal plane pattern of an FM translator station from
that station.
63. Prometheus proposes that we relieve an LPFM applicant of its
obligation to protect an FM translator's input signal if, despite
reasonable efforts to do so, the applicant is unable to determine the
delivery method or input channel for that translator. We will not adopt
this proposal because the LCRA requires us to ``address the potential
for predicted interference'' in this context. We lack authority to
adopt a processing rule that abdicates this responsibility. For this
same reason, we also reject Prometheus' proposal to relieve an LPFM
station applicant from this protection obligation if a translator
licensee fails to maintain accurate and current Commission records
regarding its primary station and input signal. In any event, we note
that we specify the primary station call sign, frequency and community
of license in FM translator authorizations. In addition, we require
each FM translator licensee to identify its primary station when filing
its renewal application. We strongly recommend that FM translator
licensees update the Commission if they have changed their primary
stations since they last filed renewal applications.
64. We proposed to dismiss as defective an LPFM application that
specifies a transmitter site within the third-adjacent channel
``potential interference area'' but fails to include an exhibit
demonstrating lack of interference to the off-air reception by that
translator of its input signal. We proposed to permit an LPFM applicant
to seek reconsideration of the dismissal of its application and to
request reinstatement nunc pro tunc. We also proposed that an LPFM
applicant seeking reconsideration and reinstatement nunc pro tunc
demonstrate that its proposal would not cause any predicted
interference using either the undesired/desired ratio or the Mitre
Formula discussed above. Commenters support these proposals. We
continue to believe it is appropriate to treat an application dismissed
on these grounds the same as an application dismissed for violation of
other interference protection requirements. Accordingly, we adopt our
proposal to allow an applicant to seek reconsideration and
reinstatement nunc pro tunc by making one of the showings discussed
herein. In addition, consistent with our decision to permit applicants
to do so at the application filing stage, we will permit applicants to
reach an agreement with the licensee of the potentially affected FM
translator regarding alternative technical solutions.
D. Other Rule Changes
65. The Fourth FNPRM proposed 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 sought
comment on whether the proposed changes were consistent with the LCRA
and whether they would promote the public interest. We discuss each
proposed change in turn below.
1. Eligibility and Ownership
a. Requirement That Applicants Remain Local
66. The LPFM service is reserved solely for non-profit, local
organizations. In the Fourth FNPRM, we expressed concern that, because
our rules define ``local'' in terms of ``applicants'' and their
eligibility to ``submit applications,'' applicants and licensees might
not understand that the localism requirement extends beyond the
application stage. We proposed to clarify this 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 * * *.''
67. Prometheus and SOPR support our proposal. Prometheus notes that
to require otherwise (i.e., to require that an organization be local
only at the time it submits its application) ``would controvert the
LCRA and the policies of the Commission.'' SOPR asserts that this
clarification may prevent abuse. Catholic Radio Association (``CRA'')
suggests language it believes will better achieve our policy objective.
68. Given the limited reach of LPFM stations, we continue to
believe that LPFM entities must be local at all times and we will
clarify that requirement by amending Sec. 73.853(b). At CRA's
suggestion, we will adopt language slightly different from that
originally proposed. Our revised rule (with the new language
underlined) will read: ``Only local organizations will be permitted to
submit applications and to hold authorizations in the LPFM service. For
the purposes of this paragraph, an organization will be deemed local if
it can certify, at the time of application, that it meets the criteria
listed below and if it continues to satisfy the criteria at all times
thereafter * * *.'' We address changes we proposed to the criteria used
to define ``local,'' later in this decision.
b. Cross-Ownership of LPFM and FM Translator Stations
69. From the outset, the Commission has prohibited common ownership
of an LPFM station and any other media subject to the Commission's
ownership
[[Page 2088]]
rules. This prohibition fosters 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.'' In the Fourth FNPRM, we sought comment
on whether to allow LPFM station licensees to own or hold attributable
interests in one or more FM translator stations. We noted that this
could enable LPFM stations to expand their listenership and provide
another way for FM translators to serve the needs of communities. We
asked whether it was possible to achieve such benefits without changing
the extremely local nature of the LPFM service. We further asked
whether we should limit cross-ownership of FM translators and LPFM
stations by, for example, requiring that (1) any cross-owned FM
translator rebroadcast the programming of its co-owned LPFM station;
(2) the 60 dBu contours of the co-owned LPFM and FM translator stations
overlap; and/or (3) the co-owned LPFM and FM translator stations be
located within a set distance or geographic limit of each other.
Finally, we asked whether to permit an LPFM station to use alternative
methods to deliver its signal to a commonly owned FM translator.
70. A few commenters oppose cross-ownership. These commenters
express concerns about the impact of LPFM/FM translator cross-ownership
on the local character of the LPFM service and the availability of
spectrum for new LPFM stations. NPR points out that the Commission, in
creating the LPFM service, considered but ultimately rejected the
option of allowing cross-ownership of LPFM and other broadcast
stations, finding that its interest in providing for new voices to
speak to the community and providing a medium for new speakers to gain
broadcasting experience would be best served by barring cross-
ownership.
71. In contrast, many commenters support LPFM/FM translator cross-
ownership. REC and Nexus/Conexus assert that cross-ownership would
enable LPFM stations to better reach their intended communities. REC
observes that FM translator stations owned by unrelated entities have
been rebroadcasting LPFM signals for over a decade. REC does not
believe that limited common ownership of FM translator and LPFM
stations would change the nature of the LPFM service. National Lawyers
Guild and Media Alliance state that translators might be useful if a
terrain obstruction blocks an LPFM signal within the LPFM station's
primary contour. Several commenters contend that cross-ownership could
enhance localism because many communities are larger than the typical
reach of an LPFM station's signal. They contend that FM translators
could allow stations to serve their entire intended service area, such
as a single county.
72. Most commenters qualify their support for cross-ownership,
suggesting various limits or restrictions to ensure that any co-owned
FM translator enhances an LPFM station's local mission. Commenters
support (1) establishing a distance or geographic limit on FM
translator cross-ownership, (2) requiring the service contours of co-
owned LPFM and FM translator stations to overlap; (3) limiting the
number of FM translators an LPFM licensee may own to a ``modest''
number, such as one or two; and/or (4) requiring co-owned translators
to rebroadcast only the LPFM station. Commenters also support requiring
an LPFM station to feed the FM translator with an off-air signal, the
same delivery restriction that applies to non-reserved band FM
translators.
73. We believe that commenters on both sides of this issue raise
valid points. As many observe, use of FM translators to rebroadcast
LPFM stations could be beneficial, improving local service to oddly-
shaped communities and to rural communities that could receive, at
best, only partial LPFM coverage. However, as others aptly note, cross-
ownership without adequate safeguards poses a potential danger to the
local character of the LPFM service. On balance, we believe that the
benefits of FM translator ownership by LPFM licensees will outweigh any
disadvantages, provided that we take steps to limit potential risks.
74. Accordingly, we will amend Sec. 73.860 of our rules to allow
LPFM/FM translator cross-ownership. We will limit cross-ownership,
however, in order to prevent large-scale chains and ``leapfrogging''
into unconnected, distant communities. We adopt the following five
limits on cross-ownership, which are intended to ensure that the LPFM
service retains its extremely local focus. First, we will permit
entities--other than Tribal Nation Applicants--to own or hold
attributable interests in one LPFM station and a maximum of two FM
translator stations. Second, we will require that the 60 dBu contours
of a commonly-owned LPFM station and FM translator station(s) overlap.
Third, we will require that an FM translator receive the signal of its
co-owned LPFM station off-air and directly from the LPFM station, not
another FM translator station. Fourth, we will limit the distance
between an LPFM station and the transmitting antenna of any co-owned
translator to 10 miles for applicants in the top 50 urban markets and
20 miles for applicants outside the top 50 urban markets. An LPFM
station may use either its transmitter site or the reference
coordinates of its community of license to satisfy these distance
restrictions. Fifth, we will require the FM translator station to
synchronously rebroadcast the primary analog signal of the commonly-
owned LPFM station (or for ``hybrid'' stations, the digital HD-1
program-stream) at all times.
75. We believe that allowing cross-ownership of an LPFM station and
up to two FM translator stations will provide maximum flexibility,
while the requirement that these translators link directly to their
commonly-owned LPFM station rather than to each other will prevent the
type of chained-networks of concern to commenters. To keep the service
provided by the LPFM/FM translator combinations locally focused, we
will limit the placement of co-owned FM translators to conform to the
same ten- and twenty-mile distances which define ``local'' applicants
in the top 50 and all other markets, respectively. We believe that such
a requirement is more easily understood and achieved than alternatives
phrased in terms of a signal's ability to stay within political
boundaries of a county or city. Our requirement that an FM translator
rebroadcast the primary signal of its co-owned LPFM station addresses
Grant County's concern that LPFM stations may begin to broadcast
multiple digital streams and that stations operating in such a hybrid
mode might use translators to network secondary, less locally-oriented
programming rather than the station's primary program stream. We are
aware of only one LPFM station currently operating in hybrid mode, so
this issue is currently of limited applicability. Nevertheless, we
adopt Grant County's suggestion that co-owned translators
simultaneously rebroadcast the LPFM station's analog programming, as a
forward-looking protection to preserve the service's local nature as
more LPFM stations avail themselves of technological advances. We
further agree with commenters that alternative signal delivery of LPFM
signals to FM translators could regionalize LPFM service. Accordingly,
we will require that an FM translator receive the signal of its co-
owned LPFM station off-air and directly from the LPFM station itself in
order to maintain the service's local character.
c. Ownership Issues Affecting Tribal Nations
76. We posed additional ownership-related questions in the Fourth
FNPRM,
[[Page 2089]]
including whether Tribal Nations are eligible and, if not, whether they
should be eligible to own LPFM stations. We also sought comment on
whether they should be permitted to own more than one LPFM station and/
or to own or hold an attributable interest in an LPFM station in
addition to a full-power station. We address each of these proposals
below.
77. Basic Eligibility. Sec. 73.853 of the rules currently provides
for the licensing of an LPFM station to a state or local government,
but does not explicitly establish the eligibility of a Tribal Nation
Applicant. Notwithstanding this omission, it is well established that
Tribal Nations are inherently sovereign Nations, with the obligation to
``maintain peace and good order, improve their condition, establish
school systems, and aid their people in their efforts to acquire the
arts of civilized life,'' within their jurisdictions. The Commission,
as an independent agency of the United States Government, has an
historic federal trust relationship with Tribal Nations, and a
longstanding policy of promoting Tribal self-sufficiency and economic
development. To this end, the Commission has taken steps to aid in
their efforts to provide educational and other programming to their
members residing on Tribal Lands, as well as to assist them in
acquiring stations for purposes of business and commercial development.
78. In view of our commitment to assist Tribal Nations in
establishing radio service on Tribal lands and our consideration of
whether to include a Tribal Nation selection criterion in the LPFM
comparative analysis, in the Fourth FNPRM we proposed to recognize
explicitly the eligibility of Tribal Nation Applicants to hold LPFM
licenses. We proposed to rely on the definitions of the terms ``Tribal
applicant'' and ``Tribal lands'' as they are currently defined in our
rules governing full-power NCE FM licensing. By specifically cross-
referencing the definition of ``Tribal applicant'' set forth in Sec.
73.7000 of the rules, which includes a reference to the term ``Tribal
coverage,'' we implicitly proposed to incorporate the definition of
``Tribal coverage'' set forth therein.
79. Commenters, including NPM and NCAI, supported without
significant discussion the proposal to expand the LPFM eligibility rule
to include Tribal Nation Applicants. No commenter opposed this
proposal. Accordingly, we will amend Sec. 73.853(a) to clarify that
Tribal Nation Applicants are eligible to hold LPFM licenses. This rule
amendment further underscores the Commission's commitment to recognize
the sovereignty of Tribal Nations and to ensure their equal treatment
under our rules. However, we will not, as originally proposed, rely on
the definition of ``Tribal applicant'' or ``Tribal coverage'' currently
used in the NCE FM context. The definition of ``Tribal coverage'' set
forth in the NCE FM rules includes a coverage requirement and a
requirement that the proposed station serve at least 2,000 people
living on Tribal Lands. As NPM and NCAI note, the limited scope of LPFM
coverage and the scattered populations on lands occupied by Tribal
Nations warrant a departure from the definition of ``Tribal coverage''
set forth in Sec. 73.7000. Unlike NPM and NCAI, however, we believe
that not only the 2,000 person threshold but also the coverage
requirements are unsuitable for the LPFM context. Instead, for LPFM
licensing purposes, we will define a ``Tribal applicant'' by retaining
the requirement that the applicant be a Tribe or entity that is 51
percent or more owned or controlled by a Tribe. Such action is
consistent with the localism and diversity goals of the LPFM service
and will better achieve our goal of assisting Tribal Nations in
establishing radio service to their members on Tribal Lands. Tribal
stations currently account for less than one-third of one percent of
the more than 14,000 radio stations in the United States. Thus, it is
self-evident that expanding Tribal radio ownership opportunities will
help bring needed new service to chronically underserved communities.
Moreover, restricting ownership to Tribes and Tribally controlled
entities, which are obligated to preserve their histories, languages,
cultures and traditions, will promote the licensing of stations to
entities that are uniquely capable of providing radio programming
tailored to local community needs and interests.
80. Finally, as NPM and NCAI propose, we will consider a Tribal
Nation Applicant local throughout its Tribal lands, so long as such
lands are within the LPFM's station's service area. We are persuaded
that this better recognizes the sovereign status of Tribal Nations than
our original proposal to consider a Tribal Nation Applicant local only
if it proposed to locate the transmitting antenna of the proposed LPFM
station on its Tribal lands. Moreover, this is consistent with the
rules applicable to Tribal Nations and state and local governments
operating full-service NCE-FM and Public Safety land mobile services.
81. Ownership of Multiple LPFM stations. The Commission currently
prohibits entities from owning more than one LPFM station unless they
are ``[n]ot-for-profit organizations with a public safety purpose.''
This prohibition is intended to further diversity of ownership and
foster a local, community-based LPFM service. In the Fourth FNPRM, we
sought comment on whether to permit Tribal Nation Applicants to seek
more than one LPFM construction permit to ensure adequate coverage of
Tribal lands. For instance, we noted that ownership of multiple LPFM
stations might be appropriate if Tribal Nation Applicants seek to serve
large, irregularly shaped or rural areas that could not be covered
adequately with one LPFM station. We explained that we believed that
permitting Tribal Nations to hold more than one LPFM license could
advance the Commission's efforts to enhance the ability of Tribal
Nations to produce programming tailored to their specific needs and
cultures, and expand Tribal Nation LPFM station ownership
opportunities. We questioned, however, whether we should limit
ownership of multiple LPFM stations by a Tribal Nation Applicant to
situations where channels also are available for other applicants,
thereby eliminating the risk that a new entrant would be precluded from
offering service. Finally, we sought comment on whether to implement
this policy through amendment of Sec. 73.855(a) of the rules or by
rule waivers.
82. A number of commenters support Tribal Nation ownership of
multiple LPFM stations on Tribal lands to permit more complete coverage
than would be achieved with a single LPFM station. NPM and NCAI note
that Tribal Nations already are eligible to own multiple LPFM stations
as governmental entities under the public safety exception to our ban
on multiple ownership of LPFM stations. They and REC believe Tribal
Nations should also be able to own multiple LPFM stations for other
noncommercial purposes.
83. Common Frequency, NLG and Media Alliance believe that multiple
ownership by Tribal Nations is appropriate on Tribal lands, and in
rural areas and small towns where there would be few other
organizations interested in applying for LPFM stations. REC, however,
would allow Tribal Nation Applicants to own or hold attributable
interests in multiple LPFM stations only if Tribal lands constitute at
least 50 percent of the land area covered by each additional LPFM
station licensed to a Tribal Nation Applicant.
84. CRA, Matt Tuter (``Tuter'') and William Spry (``Spry'') urge us
to eliminate the ban on multiple ownership of LPFM stations altogether.
[[Page 2090]]
CRA and Tuter contend that maintaining multiple ownership restrictions
for all applicants except for Tribal Nation Applicants is mistaken
``because it proceeds from a false notion that only Tribal governments
can serve the interests of Tribal Americans.'' Spry, on the other hand,
argues that allowing multiple ownership of LPFM stations is no
different than permitting cross-ownership of an LPFM station and FM
translator stations. According to Spry, ``Multiple licenses are
multiple licenses. The service should not matter.''
85. We will allow Tribal Nation Applicants to seek up to two LPFM
construction permits to ensure adequate coverage of Tribal lands. Our
rules already permit governments, including Tribal Nations, to own
multiple LPFM stations for public safety purposes, provided that they
designate one application as a priority and provided that non-priority
applications do not face MX applications. Consistent with our decision
above, we will permit each such co-owned LPFM station to retransmit its
signal over two FM translator stations, creating the potential for a
Tribal Nation Applicant to have attributable interests in a total of
two LPFM stations and four FM translator stations. We believe that this
action will significantly further opportunities for LPFM service by
Tribal Nations to their members. We will not eliminate our prohibition
on multiple ownership altogether as CRA, Tuter and Spry urge. In the
Fourth Report and Order in this proceeding we found that limited
licensing opportunities remain for future LPFM stations in many larger
markets while abundant spectrum is available in the more sparsely
populated areas where Tribal Nation stations would operate
predominantly. Moreover, the voluminous record of this proceeding
testifies to the unmet demand for community radio stations. Given the
imbalance between spectrum supply and applicant demand in larger
markets, eliminating the current prohibition entirely could undermine
the LPFM service goal to promote diversity of ownership. Nor will we
restrict Tribal Nation ownership of multiple LPFM stations as proposed
by REC. Tribal Nation Applicants will need to satisfy our localism
requirement in order to be eligible to hold LPFM licenses. We believe
this will provide adequate assurance that Tribal Nation ownership of
multiple LPFM stations furthers our goal of promoting service to Tribal
lands and members.
86. Finally, we note that, in the past, the Commission has
prohibited an LPFM applicant from filing more than one application in a
filing window. In doing so, it relied upon the fact that ``no one may
hold an attributable interest in more than one LPFM station'' and noted
that ``a second application filed by an applicant in [a] window would
be treated as a `conflicting' application subject to dismissal under
Section 73.3518.'' As discussed above, we are creating a limited
exception to the ban on multiple ownership of LPFM stations for Tribal
Nation Applicants. Accordingly, we will permit Tribal Nation Applicants
to file up to two applications in a filing window.
87. Cross-Ownership of LPFM and Full Power Stations. We also sought
comment on whether to permit a full-service radio station permittee or
licensee that is a Tribal Nation Applicant to file for an LPFM station
and hold an attributable interest in such station. As discussed
previously, our rules prohibit cross-ownership in order ``to afford
small, community-based organizations an opportunity to communicate over
the airwaves and thus expand diversity of ownership.'' We stated that
we believed that adding an exception for Tribal Nations would enhance
their ability to provide communications services to their members on
Tribal lands without significantly undermining diversity of ownership.
We asked commenters to discuss whether such an exception should be
limited to situations where the Tribal Nation Applicant demonstrates
that it would serve currently unserved Tribal lands or populations.
88. Few commenters discussed this proposal. NPM, NCAI and Common
Frequency express general support. CRA supports cross-ownership of LPFM
and full-power stations but believes this option should be available to
all applicants. REC supports the proposal but would impose certain
cross-ownership restrictions.
89. After considering the comments, we do not believe that there is
a sufficient record on which to modify our rules to provide for Tribal
Nation cross-ownership of LPFM and full-service stations. The record at
this time does not demonstrate that this is necessary or would provide
significant public interest benefit. A Tribal Nation with an LPFM
authorization may file at any time a rulemaking petition for a Tribal
allotment, provided that it pledges to divest the LPFM station.
Although we recognize that cross-ownership could permit a Tribal Nation
to program separately for different audiences, we remain concerned that
this type of cross-ownership might undermine the diversity goals of the
LPFM service. It is also not clear, on the record before us, how it
would advance our goal of expanding service to Tribal lands and
members. Finally, the record did not identify a demonstrated need
unique to Tribal Nations that this change would address. Accordingly,
we decline at this time to adopt a cross-ownership exception that would
allow a Tribal Nation Applicant to hold both LPFM and full-power radio
station authorizations. A Tribal Nation Applicant that can demonstrate
that a waiver would advance our LPFM goals, and advance our goal of
expanding service to Tribal lands and members or is otherwise in the
public interest, may seek a waiver of this ownership restriction.
Moreover, in light of the trust relationship we share with federally
recognized Tribal Nations, the Commission will endeavor, through
efforts coordinated by the Office of Native Affairs and Policy and the
Audio Division, to engage in further consultation with Tribal Nations
and coordination with inter-Tribal government organizations on this
cross-ownership issue.
d. Ownership of Student-Run Stations
90. Two commenters ask us to make changes to the exception to the
cross-ownership prohibition for student-run stations, which is set
forth in Sec. 73.860(b) of the rules. Currently, we permit an
accredited school that has a non-student-run full power broadcast
station also to apply for an LPFM station that will be managed and
operated by students of that institution, provided that the LPFM
application is not subject to competing applications. The Commission
dismisses the student-run LPFM application if competing applications
are filed.
91. REC and Common Frequency propose that we consider applications
for student-run stations even if there are competing applications, so
that all applicants can participate in settlements and time sharing
negotiations. We agree that it would serve the public interest to
eliminate this automatic dismissal requirement. When the Commission
first adopted this exception to the general prohibition on cross-
ownership, it was seeking to strike a balance between an LPFM service
comprised entirely of new entrants and one which would enable new
speakers including students to gain experience in the broadcast field,
even if their universities held other broadcast interests. The
Commission believed that the exception properly balanced the interests
of local groups in acquiring a first broadcast facility and of
university licensees in providing a distinct media outlet for students.
Our decision today, however,
[[Page 2091]]
alters the LPFM comparative process by adding a selection criterion for
applicants with no other broadcast interests. Given this change, we
believe it is appropriate to eliminate our limitation on eligibility
for student-run LPFM applications by schools with non-student run full
power broadcast stations.
92. Common Frequency also proposes that we allow university systems
with multiple campuses serving distinct regions, such as those in New
York, Georgia, and California, to apply for student-run LPFM stations
at any campus without another station, provided that the 60 dBu service
contours do not overlap. For example, Common Frequency argues that the
newest campus of the University of California at Merced could benefit
from a student-run LPFM station but cannot apply because the university
owns full-power stations at other campuses. We do not believe that a
rule change is needed, however, concerning multiple campuses. Under our
rules, a local chapter of a national or other large organization is not
attributed with the interests of the larger organization, provided that
the local chapter is separately incorporated and has a distinct local
presence and mission. In 2000, the Commission clarified that this LPFM
attribution exception for ``local chapters'' applies to schools that
are part of the same school system, including university systems with
multiple campuses, provided that the ``local chapter'' seeks its own
licenses. Thus, in Common Frequency's example, the University of
California's ownership of full power broadcast stations licensed to
separate campus institutions would not prevent the University of
California at Merced from applying for an LPFM new station construction
permit for a student-run station. We note, however, that ``local
chapters'' of larger organizations that hold broadcast interests will
not qualify for a ``new entrant'' point, as discussed below. Any
broadcast interests held by the ``parent'' organization will be
considered attributable for the purposes of this criterion only.
2. Selection Among Mutually Exclusive Applicants
93. The Commission accepts applications for new LPFM stations or
major changes to authorized LPFM stations only during filing windows.
After the close of an LPFM filing window, the Commission makes mutual
exclusivity determinations with regard to all timely and complete
filings. The staff then processes any applications not in conflict with
any other application filed during the window, and offers applicants
identified as MX with other applicants the opportunity to settle their
conflicts. If conflicts remain, the Commission applies the LPFM point
system. Specifically, under our current rules, the Commission awards
one point to each applicant that has an established community presence,
one point to each applicant that pledges to operate at least twelve
hours per day, and one point to each applicant that pledges to
originate locally at least eight hours of programming per day. The
Commission takes the pledges made by applicants seriously. We will
consider complaints that a licensee is not making good on a pledge it
made during the application process and take appropriate enforcement
action if we find a licensee has not followed through on its pledge.
Moreover, as we noted in establishing the point system, ``As with other
broadcast applications, the Commission will rely on certifications but
will use random audits to verify the accuracy of the certifications.''
In the event of a tie, the Commission employs voluntary time sharing as
the initial tie-breaker. As a last resort, the Commission awards each
tied and grantable applicant an equal, successive and non-renewable
license term of no less than one year, for a combined total eight-year
term.
94. In the Fourth FNPRM, we proposed certain changes to our
existing criteria, suggested that we award a point to Tribal Nation
Applicants, and requested suggestions for new selection criteria that
would improve the efficiency of the selection process. As discussed in
more detail below, we adopt a revised point system. We will award one
point to applicants for each of the following: (1) Established
community presence; (2) local program origination; (3) main studio/
staff presence (with an extra point going to those applicants making
both the local program origination and main studio pledges); (4)
service to Tribal lands by a Tribal Nation Applicant; and (5) new entry
into radio broadcasting. We will continue to accept voluntary timeshare
arrangements, and will continue to accept partial settlements not
involving timeshare arrangements, as an additional means to eliminate
ties, discourage gamesmanship in timesharing arrangements, and reduce
involuntary timeshare outcomes. We eliminate successive timeshare
arrangements as the last resort, and will instead allow remaining
qualified applicants to share time designated in the manner described
below. Finally, we revise our rules to extend mandatory time sharing to
LPFM stations that meet the Commission's minimum operating requirements
but do not operate 12 hours per day each day of the year.
a. Point System Structure, and Elimination of Proposed Operating Hours
Criterion
95. REC and Prometheus each offer modifications to the current
point system, but also submit alternative or enhanced methods by which
to resolve MX groups. Each party maintains that the purpose of its
proposed structure is to decrease the number of potential timeshares
and successive licensees. Prometheus proposes a multistage ``waterfall
evaluation process'' in which there are multiple opportunities for a
single winner to emerge. It notes that, under this system, the
Commission would be able to emphasize its ``top priority'' criteria by
placing them in the first tier, and explains the process as follows:
In this system, each criterion would be worth a single point and
would be placed--according to priority--into one of several tiers.
The Commission would first compare applications using only the
criteria in ``Tier 1.'' If, after relying only on the criteria in
Tier 1, a single applicant receives more points than any of its
competitors, that winning applicant becomes the tentative selectee.
However, in the event of a tie between two or more applicants with
the most points, those tied applicants would then advance to Tier 2.
Applicants with fewer points would be dismissed. These procedures
would then be repeated to evaluate the remaining applicants using
Tier 2 and, if necessary, Tier 3 criteria.
96. REC, on the other hand, suggests that we retain the established
community presence and local programming criteria, and award additional
points as follows:
--One point to any applicant that is a municipal or state agency
eligible under Part 90 of the rules and provides emergency service;
--One point to any applicant that is an accredited school and will use
the proposed LPFM station for a ``hands on'' educational experience in
broadcasting;
--One point to any applicant proposing to broadcast children's
programming for at least 3 hours per week;
--One point to any applicant that will maintain a main studio staff
presence for at least 40 hours per week;
--One point to any applicant volunteering to maintain an online public
file;
--One point to any applicant that is owned or controlled by a
recognized Tribal Nation that currently has no attributable interests
in any other broadcast facility, proposes a
[[Page 2092]]
transmitter site located within the boundaries of a Tribal Nation, and
has not received a point under this criterion in connection with
another LPFM station for which the applicant holds a construction
permit or license;
--One point to any applicant that pledges to create a public access
broadcasting regime that solicits and presents programming created by
and directly submitted by members of the public within the proposed
LPFM station's service contour; and
--One point to any applicant willing to accept a time share agreement
in lieu of being allowed to broadcast full time.
97. We continue to believe that our basic points structure remains
the most effective and efficient method of resolving mutual
exclusivities. This conclusion is based in part on our recent
experience with NCE applications filed during the 2007 and 2010
windows, where we have successfully resolved hundreds of groups of MX
applications based on a very similar point system process. We decline
to adopt Prometheus' proposed ``waterfall'' system. While doing so may
reduce the likelihood of involuntary timesharing outcomes, we do not
believe, as Prometheus suggests, that it would ``reduce the
administrative complexity'' of the comparative process generally.
Indeed, we believe that it would have the opposite effect, as it would
also create the potential for ``waterfall'' levels of comparative
analysis and re-analysis. For example, for every successful challenge
to the tentative selection of an applicant in a tiered category, the
Commission would be forced to re-evaluate the group as a whole to
determine which applicant, if any, should proceed to the next tier. If
the new applicant in the next tier was successfully challenged, the
Commission would have to repeat the evaluation process. This outcome is
much less efficient than the current points system, which allows the
Commission to weigh all points claimed by all applicants
simultaneously. Even if we were to conclude that this approach was
administratively feasible, we believe that we would need a far more
comprehensive record, developed through a supplemental rulemaking,
before we could attempt to ``rank'' the LPFM selection criteria into
``tiers.''
98. As discussed below, however, we adopt some of the new criteria
suggested by REC, which we believe will enhance the localism and
diversity policies underlying the LPFM service and anticipate will
reduce the number of involuntary timesharing outcomes. We reject the
remaining criteria suggested by REC and others, as they fail to
demonstrate any unmet need that warrants preferences for particular
types of programming, would be difficult and time-consuming to
administer or enforce, or would not substantially further the
Commission's localism goals.
99. Finally, REC, Prometheus and others suggest that we eliminate
the proposed operating hours criterion, noting that, because of
automation software, ``even one-person LPFM stations easily meet this
standard.'' We agree with the commenters that this criterion does not
meaningfully distinguish among applicants. Thus, we eliminate it.
b. Established Community Presence
100. Currently, under the LPFM selection procedures for MX 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 the Fourth FNPRM, we proposed 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 noted that while Sec. 73.872(b)(1)
currently does not include the requirement that an applicant maintain a
local presence, we believed that was the only reasonable interpretation
of the rule. Commenters that addressed this proposal agreed that this
was a reasonable interpretation. Accordingly, we adopt this proposed
revision.
101. In addition, we sought comment on other changes to the rule.
First, we requested 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. Commenters largely disagreed with this proposal, asserting that
the duration of a nonprofit organization's existence is not indicative
of its level of responsiveness to local concerns. Others noted that the
proposal could ``shut out'' suitable applicants or have ``unintended
discriminatory consequences.'' A few commenters, however, generally
embraced our proposal to maintain the two-year threshold but supported
an award of an additional point to applicants that have a substantially
longer established community presence (e.g., four years).
102. We continue to believe that established local organizations
are more likely to be aware of community needs and better able to ``hit
the ground running'' upon commencement of broadcast operations.
However, we are persuaded by commenters that organizations that have
been established in the community for four years will not necessarily
be more responsive to community needs or likely to establish a viable
community radio station than those who have been present for two. We
likewise agree that extending the length to four years may
unnecessarily limit the pool of qualified organizations. Finally,
parties supporting a ``bonus'' point for applicants with more
established ties to the community failed to offer any demonstration of
greater responsiveness supporting its adoption. Accordingly, we will
retain the current two-year standard.
103. We also solicited 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 will adopt this modification as proposed.
We note that the Commission extended the ``local'' standard in Sec.
73.853(b) to 20 miles only for rural areas, based on a record
indicating special challenges for rural stations. While many commenters
support an extension of the established community presence standard to
20 miles in all areas, not just rural areas, we are unconvinced that
limiting our extension of the standard to rural areas only is unduly
harsh or will create disadvantages to applicants with geographically
dispersed board member residences, as some commenters suggest.
104. Finally, we sought 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. Most commenters rejected this proposal,
noting that it would encourage gamesmanship and unethical behavior.
Amherst Alliance and others state that they are ``deeply concerned that
unethical LPFM applicants could manufacture `paper partners' in order
to gain a dramatic advantage over their rivals,'' predicting that the
paper partners would eventually either leave the scene or simply
``rubber stamp'' the station operator's actions. Prometheus notes that
the proposal could lead to discrimination, and potentially lead to a
contest ``favoring the best connected,
[[Page 2093]]
best resourced groups'' in a given community. It further notes that
non-consortium applicants competing with consortium applicants would
almost always lose, even if the non-consortium applicants have received
points that are arguably more ``directly related'' to a licensee's
potential to serve its community. Finally, Common Frequency notes that
the proposal would ``discourage diversity,'' effectively rewarding
consortia organizations that hold similar viewpoints over single
minority groups, such as foreign-language speakers and LGBT
organizations.
105. The few commenters supporting the proposal note that the
consortia proposal could speed up the licensing process by lessening
the Commission's burden of sorting out MX applications, and would help
avoid involuntary time sharing by applicants whose proposed programming
formats are incompatible and likely to confuse potential audiences. To
help deter potential abuse, Cynthia Conti (``Conti'') suggests that the
Commission require consortia applicants to submit with their
applications proof of their intention to coexist at their future
station, such as a ``joint plan of action'' that would include
descriptions of the participating organizations, their individual and
collective intentions for the station, and a proposed programming
schedule.
106. We are persuaded by commenters that the risk of licensing
abuses and the potential for excluding unrepresented or
underrepresented niche communities far outweigh potential service
benefits or mere administrative efficiencies. Even if we were to
require supporting documentation at the application stage, we would
still have no reliable mechanism, given our limited administrative
resources, to ultimately ensure that such consortia relationships are
being meaningfully maintained throughout the license period. Thus, we
do not adopt the consortia proposal.
c. Local Program Origination
107. The Commission currently encourages LPFM stations to originate
programming locally by awarding one point to each MX applicant that
pledges to provide at least eight hours per day of locally originated
programming. The rules define ``local origination'' as ``the production
of programming, by the licensee, within ten miles of the coordinates of
the proposed transmitting antenna.'' 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.''
108. In the Fourth FNPRM, we sought comment on whether to place
greater emphasis on this selection factor by awarding two points for
this criterion instead of the current one point. Alternatively, we
sought comment on whether to impose a specific requirement that all new
LPFM licensees provide locally-originated programming. We asked parties
supporting such a requirement to explain why our prior finding that it
was not necessary to impose specific requirements for locally
originated programming no longer is valid and to identify problems or
short-comings in the current LPFM licensing and service rules that such
a change would remedy. We also asked parties supporting a locally-
originated programming requirement to address potential constitutional
issues.
109. Many commenters generally support the adoption of a locally
originated programming obligation, but provide little or no analysis.
Prometheus, which devotes the most significant discussion to this
issue, would require every LPFM station to air at least 20 hours per
week of locally originated programming, maintaining that such a
requirement would more effectively ensure that a station would serve
community needs, would be consistent with the Commission's policy goal
of promoting localism, and would help remediate the ``drastic decline''
of local programming in the media. Prometheus asserts that today,
approximately 20 percent of all licensed LPFM stations produce no local
programming whatsoever, and states that, without such a requirement, a
``significant number'' of LPFM stations will not offer any local
programming. It further maintains that a local program origination
requirement is constitutionally sound, pointing to the fact that
``federal legislation, Commission decisions and Supreme Court precedent
support the importance of local programming* * * and support Commission
actions to adopt content-neutral broadcaster obligations that embrace
substantial broadcaster discretion.'' In particular, Prometheus cites
proceedings in which the Commission has regulated children's television
and network programming.
110. Several commenters do not agree with Prometheus' position,
instead arguing that local program origination should remain a
comparative criterion. REC fears that ``during tough times,'' stations
may not have the financial resources to generate 20 hours weekly of
local programming. Other commenters observe that local program
origination is ``an easily manipulated requirement,'' is of ``limited
value'' with no enforcement mechanism in place, and is not necessarily
more responsive to community needs than non-local content. Conti states
that, ``given the concern over the constitutionality of requiring
programming, the addition of a locally-originated programming
requirement could make LPFM rules vulnerable to complaints'' and does
not ``think it is worth the risk considering that the criterion does
not necessarily result in its stated goal.''
111. After careful consideration of the record, we decline to
impose a local program origination requirement. When we first created
the LPFM service, we sought comment on whether to impose a local
program origination requirement. We noted that listeners benefit from
locally originated programming because it often reflects needs,
interests, circumstances or perspectives that may be unique to a
community. However, we also found that programming need not be locally
originated to be responsive to local needs. Ultimately, we concluded
that the nature of the LPFM service, combined with eligibility criteria
and preferences, would ensure that LPFM licensees would provide locally
originated programming or programming that would otherwise respond to
local needs.
112. Nothing in the record persuades us that these findings are no
longer valid. The Commission has consistently maintained that non-local
programming can serve community needs. While Prometheus points to a
decline in the production of local programming as support for a local
program origination requirement, it has failed to counter the argument
that non-locally produced programming can serve community needs.
Indeed, as commenters have noted, non-local programming can serve the
unique needs of a community. For instance, a foreign language station
may carry programming ``from home,'' other LPFM stations may broadcast
public affairs programming from a neighboring county, and still other
LPFM stations may broadcast religious programming.
113. We also continue to believe that the nature of the service
inherently ensures that LPFM stations will be responsive to community
needs. The record supports this conclusion. Last year, in the INC
Report, we noted several LPFM ``success'' stories in which LPFM
stations were serving their
[[Page 2094]]
communities. Moreover, while Prometheus points to the fact that 20
percent of all LPFM licensees currently produce no locally originated
programming as evidence of a local media crisis, we believe this is a
``glass half empty'' perspective, and are instead encouraged by the
fact that 80 percent of all LPFM licensees are producing some local
programming.
114. Moreover, given the current economic climate, we believe a
local program origination requirement could unnecessarily restrict LPFM
licensees and jeopardize their financial health. Many, if not all, of
these stations are run by volunteers and operate on a shoestring
budget. LPFM licensees often have difficulty finding underwriters to
support their stations. Prometheus argues that LPFM stations could
arguably afford to produce locally originated programming. However, our
own records show that, as a whole, the LPFM service remains financially
vulnerable. This is evidenced by the fact that, of the 1,286 LPFM
construction permits granted out of the last LPFM application filing
window, only 903 LPFM stations ultimately became fully licensed.
Moreover, 84 of these station licenses now have either expired or been
cancelled, with nearly half of these expirations/cancellations
occurring in the last two years. Of the remaining 819 licensed
stations, 26 are currently silent. Given these alarming statistics, we
believe it is essential to provide LPFM licensees with maximum
flexibility to choose their own programming as a measure to ensure
their continued viability.
115. Finally, we recognize that Prometheus' support of a local
program origination requirement is based on its belief that this option
will most effectively further the Commission's goal of ensuring that
the LPFM service will ``enhance locally focused community-oriented
radio broadcasting.'' We agree that this goal is one of the bedrocks of
the LPFM service. However, we find that there are better, alternative
ways of furthering this goal without imposing further regulatory
restrictions. Specifically, as discussed in more detail below, we
believe we can better effectuate our localism goals by retaining a one-
point preference for local program origination and supplementing that
preference with two additional selection criteria that award points to
those applicants best positioned to locally originate programming.
Accordingly, given the lack of a clear record basis to support its
adoption, we decline to adopt a program origination requirement for
LPFM stations. In short, while our selection criteria seek to promote
local origination, we believe the benefits of imposing it as a
requirement are far outweighed by the costs to a financially vulnerable
fledgling sector of the industry.
116. That said, we note that the comments filed in this proceeding
reflect some misunderstanding of what constitutes ``locally originated
programming'' under our previous orders, and we take this opportunity
to provide additional guidance to current and prospective LPFM
licensees. In the Second Order on Reconsideration in this docket, the
Commission held that time-shifted, non-local, satellite-fed programming
does not qualify toward the local origination pledge. Commenters
indicate that some licensees believe that such programming is local
provided that it is delivered in a way other than satellite. This
inference is incorrect. Any non-local programming, whether delivered by
satellite, over the Internet or other means, does not qualify as
locally originated programming. Similarly, in the Third Report and
Order, we clarified that repetitious automated programming does not
meet the definition of local origination, and specifically stated that
once a station has broadcast a program twice it can no longer count it
as locally originated. According to commenters, some LPFM licensees
believe that this is a daily restriction (i.e., cannot repeat
programming more than twice in one day), while others believe that a
program becomes ``new'' for local purposes if musical selections within
a program are re-shuffled. Again, these inferences are incorrect. Once
a station has broadcast a program twice it can never again be counted
toward the local program origination pledge. Likewise, programs that
have been ``tweaked'' or reorganized do not count toward the
requirement if the underlying program has already been played twice.
Generally speaking, locally originated programming--whether locally
created content (e.g., live call-in shows or news programs), or locally
curated content (e.g., a music program reflecting non-random song
choices)--must involve a certain level of local production (i.e.,
creation of new content, in order for the programming to be considered
locally originated). Each of the examples discussed above lacks this
critical element. Our deliberations in this proceeding, including the
clarification we provide today, have been consistent with this
underlying principle. Accordingly, we will revise Sec. 73.872 of our
rules, as well as the FCC Form 318, to incorporate these
clarifications.
d. Main Studio
117. REC, Common Frequency and Prometheus each suggest that we
modify our rules to award one point to applicants that pledge to
maintain a main studio with a staff presence. They assert that an
organization that maintains a staffed main studio within the community
served by its LPFM station will be better resourced to serve its
community's needs. We agree. The local program origination selection
criterion was created in part ``to encourage licensees to maintain
production facilities and a meaningful staff presence within the
community served by the station.'' The Commission has long held that
the maintenance of a main studio is integral to a station's ability to
serve community needs and produce programming that is responsive to
those needs. As indicated by commenters, however, some licensees have
chosen not to maintain a main studio and have instead originated
programming using automated software, iPods, or CD players. While
applicants claiming the local program origination point will retain the
discretion to determine the origination point of their programming, we
believe that a separate main studio criterion will better effectuate
the intent underlying the creation of the local program origination
pledge. Accordingly, we will award one point to any organization that
pledges to maintain a meaningful staff presence (i.e., staffed by
persons whose duties relate primarily to the station and not to non-
broadcast related activities of licensee) in a publicly accessible main
studio location that has local program origination capability for at
least 20 hours per week between 7 a.m. and 10 p.m. Staff may be paid or
unpaid, and staffing may alternate among individuals. We will not
require stations to have ``management'' staff present during main
studio hours. The main studio should be located within 10 miles of the
proposed site for the transmitting antenna for applicants in the top 50
urban markets, and 20 miles for applicants outside the top 50 urban
markets. We will require applicants to list the proposed main studio
address in their applications, as well as the local telephone number to
be maintained by the main studio at all times. Applicants failing to
include this information will not receive credit for this point.
118. In addition, we will revise Sec. 73.872 of our rules to
provide that applicants that claim both the local program origination
point and the main studio point will receive a total of three points.
We find that the creation of this ``bonus'' point will more effectively
[[Page 2095]]
foster the production of focused community-oriented radio programming
than would a general local program origination requirement, as it will
reward those applicants best situated to further this goal in a
meaningful way. We believe that an applicant that plans to originate
programming from a main studio will be in a better position to provide
programming reflecting community needs and interests than an applicant
that will originate programming elsewhere. As the Commission has noted
previously, the maintenance of a main studio in the station's community
can help ``promote the use of local talent and ideas,'' can ``assure
meaningful interaction between the station and the community,'' and can
``increase the ability of the station to provide information of a local
nature to the community of license.'' Indeed, both our main studio
rules and the LPFM service were created for the same purpose: to ensure
that stations would serve as an outlet for community self-expression.
The Commission implicitly recognized this nexus when it created the
local program origination criterion as a way to ``advance the
Commission's policy goal of addressing unmet needs for community
oriented radio broadcasting'' and as a means to encourage licensees to
maintain production facilities. Moreover, these attributes, of
themselves, reflect our core vision of and animating purpose for
community radio: licensees that make their stations accessible to their
local communities and that are committed to responding to unmet local
programming needs.
119. Many LPFM stations fulfill their local program origination
commitments without the benefit of equipment and facilities that could
be reasonably characterized as ``main studios.'' We also anticipate
that some applicants in the upcoming LPFM window may conclude that
maintaining and staffing a main studio is not feasible or necessary. On
the other hand, the ``bonus'' point will provide a substantial
incentive to applicants to assume these responsibilities
notwithstanding the associated costs. It is also likely to permit
resolution of mutual exclusivities based on Commission policy goals
rather than complex tie-breaking procedures and also avoid voluntary
and involuntary time sharing arrangements--outcomes that many
commenters view negatively. Given commenters' general support of local
program origination, our longstanding policy goal of ensuring that the
LPFM service provides an outlet for local community voices, and the
benefits that would result from implementation of a more robust point
system that promotes this goal, we conclude that the record supports
our award of a total of three points to those applicants that make both
the local program origination and main studio pledges.
e. Tribal Nations
120. In the Fourth FNPRM, we sought comment on whether to give a
point to Tribal Nation Applicants when they propose new radio services
that primarily would serve Tribal lands. We proposed to modify Sec.
73.872(b) of our rules to include a Tribal Nations criterion. As with
our proposed revisions to the LPFM eligibility requirements set forth
at Sec. 73.853 of the rules, we proposed to rely on the definitions of
the terms ``Tribal Applicant,'' ``Tribal Coverage,'' and ``Tribal
Lands'' as they are currently defined in our rules for this comparative
criterion.
121. Commenters largely supported the creation of a Tribal Nation
criterion. As we stated in the Fourth FNPRM, we believe that adding
this criterion will further our efforts to increase ownership of radio
stations by Tribal Nation Applicants and enable Tribal Nation
Applicants to serve the unique needs and interests of their
communities. We find unpersuasive the argument of NPM and NCAI that we
should create a ``Tribal Priority,'' i.e., a dispositive preference,
for LPFM Tribal Applicants as the rules now provide for in the full
power NCE and commercial radio services. The expansion of Tribal
stations unquestionably advances our section 307(b) policies. However,
as we have explained, Tribes, which hold sovereign responsibilities for
the welfare and improvement of their Members, are well-positioned to
advance the localism and diversity goals of the LPFM service. Thus, it
is reasonable to treat this factor as we have the other comparative
factors that also advance these same LPFM goals. Finally, we find no
basis in the record for elevating this criterion to a dispositive
factor. Accordingly, we adopt our proposal to create a Tribal Nation
point criterion.
122. We will not, as originally proposed, rely on the definitions
of ``Tribal Applicant'' or ``Tribal Coverage.'' For the reasons
discussed above, we instead will define a ``Tribal Applicant'' as a
Tribe or entity that is 51 percent or more owned and controlled by a
Tribe. We will, however, require that any Tribal Nation Applicant
claiming a point under the Tribal Nation criterion propose to locate
the transmitting antenna for its proposed station on its Tribal lands.
While NPM and NCAI oppose the imposition of such a requirement, arguing
``it is easy to imagine circumstances in which the site which delivers
the best, most affordable service to Tribal Lands is a developed
antenna site located near, but not on, Tribal Lands,'' we are not
persuaded that this requirement will hinder the provision of LPFM
service on Tribal lands. Many Tribal Nations occupy unserved or
underserved areas. We believe it is highly unlikely that there will be
developed antenna sites located near most Tribal lands. However, in the
event that there is a developed antenna site near, but not on, the
Tribal lands of a Tribal Nation Applicant and the Tribal Nation
Applicant can demonstrate that the use of such site will better promote
our goals of increasing ownership of radio stations by Tribal Nations
and enabling Tribal Nations to serve the unique needs and interests of
their communities, we will entertain requests to waive the requirement
that the transmitting antenna for the proposed LPFM station be located
on the Tribal lands of the Tribal Nation Applicant. Finally, we note
that we will not, as REC proposes, require a Tribal Nation Applicant to
have no attributable interests in any other broadcast facility in order
to qualify for a point under the Tribal Nation criterion. We believe
our adoption of a new entrant criterion adequately addresses the
concerns underlying REC's proposal. At bottom, through its proposal,
REC seeks to ensure that diversity of ownership remains an important
goal underlying the LPFM service. By adopting a new entrant criterion,
which awards a point to applicants with no attributable interests in
other broadcast facilities, we retain an emphasis on diversity of
ownership without deemphasizing the importance of promoting the
provision of service by Tribal Nation Applicants to Tribal lands and
citizens of Tribal Nations.
f. New Entrants
123. As discussed above, we are relaxing our ownership rules to
allow LPFM licensees to own or apply for other broadcast interests.
Among other things, we are allowing Tribal Nation Applicants to own up
to two LPFM stations. In response to this revision, REC suggests that
we only allow a Tribal Nation Applicant to claim a point under the
Tribal Nations criterion if it is applying for its first LPFM station.
We agree with REC's proposal to the extent that it suggests that
multiple ownership should be a relevant factor in our analysis. Indeed,
we raised this issue in the Fourth FNPRM. However, we
[[Page 2096]]
believe that a Tribal Nation Applicant should be eligible to receive a
point under the Tribal Nation criterion regardless of whether or not it
owns or has applied for other LPFM stations, and that any restriction
of a Tribal Nation Applicant's eligibility to claim this point would
run contrary to our commitment to increase the ownership of radio
stations by Tribal Nations and to increase service to Tribal lands and
citizens of Tribal Nations. However, we also believe that our selection
process should encourage new entrants to broadcasting and foster a
diverse range of community voices. We find that allocating a point to
new entrants strikes the appropriate balance between these two
competing goals. Likewise, adding a new entrants criterion addresses
concerns raised by REC and Common Frequency regarding student-run
stations. Accordingly, we will award one point to an applicant that can
certify that it has no attributable interest in any other broadcast
station.
g. Tiebreakers--Voluntary and Involuntary Time Sharing
124. As noted above, in the event the point analysis results in a
tie, the Commission releases a public notice announcing the tie and
gives the tied applicants the opportunity to propose voluntary time
sharing arrangements. Some or all parties in an MX group may enter into
a timeshare agreement and aggregate their points. Where applicants
cannot reach either a universal settlement or a voluntary time sharing
arrangement, the Commission awards each tied and grantable applicant in
the MX group an equal, successive and non-renewable license term of no
less than one year, for a combined total eight-year term.
125. Several commenters voiced dissatisfaction with both the
voluntary and involuntary timesharing processes. REC asserts that we
should eliminate point aggregation in voluntary time sharing because it
``can lead to discriminatory behavior intended to silence [other]
voices * * *.'' As an alternative, it suggests that applicants move
straight to an involuntary time sharing process in cases where parties
cannot agree on a voluntary time share (without aggregating points) or
other settlement arrangement. Under REC's proposed process, an
applicant would have the option to select an ``involuntary time share
trigger point'' as a points criterion. In the event of a tie in an MX
group, the involuntary time share point would be reviewed. At this
point, one of the following scenarios could take place: (1) If all or
no applicants claim the point, then they would all proceed to the time
share process; or (2) if one or some applicants claim the trigger
point, then those claiming the point would proceed to the time share
process and remaining applications would be dismissed. Under REC's
proposal, applicants reaching the time sharing process would either
voluntarily agree on a time sharing arrangement, or be subject to a
``last resort'' method that would allocate time to the top three
applicants based on the date of the organization's establishment in the
community (i.e., the applicant with the oldest community presence date
would get the first opportunity to select its time share slot). REC
notes that ``an effective time share group should have no more than
three members.''
126. Brown Student Radio also argues that allowing a ``partial
settlement'' for the purposes of aggregating points invites the
potential for abuse in the LPFM licensing process, where dominant
applicants can effectively ``squeeze out'' fellow timeshare applicants
by forcing them to accept minimal and suboptimal air time. It cites two
examples from the last LPFM filing window in which the dominant
applicant in a timesharing arrangement claimed virtually all of the
shared air time and left only the required minimum of 10 hours a week
(during suboptimal air time) for the other applicants. As such, it
urges the Commission to allow parties to partially settle, but without
the benefit of aggregating points, or otherwise revise the share-time
rules to increase the minimum number of hours that must be awarded to
each party to a settlement. Brown Broadcast Services notes that
settlements involving less than all of the MX parties were explicitly
allowed for in the full-power NCE filing window of 2007, when the
action resulted in a grantable singleton application and no new mutual
exclusivities were created. Common Frequency likewise supports the use
of partial settlements involving technical changes, and additionally
suggests that the Commission set up an online settlement process that
will allow competing applicants to monitor for potential gamesmanship.
127. While we are cognizant of the potential for gamesmanship in
the voluntary timesharing process, we continue to believe that it is
one of the most efficient and effective means of resolving mutual
exclusivity among tied LPFM applicants. We are not persuaded that REC's
proposal, which essentially eliminates voluntary timesharing as a tie
breaker and replaces it with an involuntary time sharing regime, will
better serve the public interest. We are doubtful that a group of
unaffiliated applicants with different formats, budgets and levels of
broadcast experience would work together to operate a station under a
forced time sharing arrangement as successfully as a group of
applicants that have voluntarily agreed to share time. We further
believe that we must allow as much flexibility as possible for LPFM
stations, especially those subject to time sharing arrangements, to
allow them to build and maintain audiences. It is possible that some
LPFM applicants may not desire to operate for more than a few hours a
week, and in such cases, pooling resources with a timeshare applicant
wishing to use more time would result in more diversity and more
efficient use of spectrum. Accordingly, we will not revise our time
sharing rules, and will continue to allow existing time share
participants to reach voluntary arrangements that allow them to
apportion the time as they see fit, subject to our requirements under
Sec. 73.872(c) of the rules. While we will not set up an online
process designed specifically to monitor settlements, as Common
Frequency suggests, we note that the Commission has recently upgraded
CDBS to permit the electronic filing of pleadings. This feature makes
electronically filed pleadings promptly available to the general
public, thereby increasing the transparency of the broadcast licensing
processes. We will require a party submitting a timeshare agreement or
other settlement agreement to file it through CDBS. As such, parties to
an MX group should be able to sufficiently monitor competing
applications for any developments within their respective group.
128. We turn next to the suggestion that we entertain partial
settlements. During the last LPFM filing window, we accepted partial
``technical'' settlements (i.e., technical amendments that eliminated
all conflicts between at least one application and all other
applications in the same MX group). Thus, through a technical
settlement, the Commission can grant one or more applications
immediately, with the remaining applicants in that MX group considered
separately under the LPFM comparative criteria. These partial
settlements worked well during the 2007 NCE FM filing window, where we
granted dozens of settlements that resulted in the disposal of hundreds
of applications. We will continue to accept such settlements in the
upcoming LPFM window, as they provide an additional means for
applicants to resolve mutual exclusivities. To provide increased
flexibility to this process, we will also, as suggested by Brown
Broadcast
[[Page 2097]]
Services, temporarily waive our rules to allow MX applicants to move to
any available channel during the prescribed settlement period.
Amendments proposing new channels will be processed in accordance with
established first-come, first-served licensing procedures.
129. We agree with commenters that the system of serial license
terms as a tie breaker of last resort has proven unworkable. Of the
more than 1,200 construction permits granted in the LPFM service, not a
single station currently holds an authorization for involuntary time
sharing. While we have little historical data on involuntary
timesharing outcomes from the last LPFM window, we presume this is the
case either because (1) involuntary time share permittees did not want
to invest in building out facilities that would be used by them for as
little as one year, or (2) involuntary time share situations proved to
be unworkable. To promote more efficient use of available LPFM
frequencies, time shares under the final tie breaker will run
concurrently and not serially. As suggested by CMAP and, to some extent
REC, each party to the involuntary time share will be assigned an equal
number of hours per week. We agree with REC that time share situations
involving more than three parties may prove cumbersome. As REC
proposes, we will limit involuntary time sharing arrangements under
this final tie breaker to the three applicants that have been
``established'' in their respective communities for the longest periods
of time. Accordingly, each applicant will be required to provide, as
part of its application, its date of establishment. If more than three
applications are tied and grantable, we will dismiss the applications
of all but the three longest ``established'' applicants. We will offer
these applicants an opportunity to voluntarily reach a time sharing
arrangement. If they are unable to do so, we will ask these applicants
to simultaneously and confidentially submit their preferred time slots
to the Commission. To ensure that there is no gamesmanship, we will
require that these applicants certify that they have not colluded with
any other applicants in the selection of time slots. We will use the
information provided by the applicants to assign time slots to them.
The staff will give preference to the applicant with the longest
``established community presence.'' However, it will award time in
units as small as four hours per day to accommodate competing demands
for airtime to the maximum extent possible. We believe these procedures
are a more sustainable and practical solution to involuntary time share
arrangements than our previous measures, and will revise our rules and
FCC Form 318 accordingly.
130. Turning to the final issues raised in the Fourth FNPRM on
share time arrangements, we asked whether we should open a ``mini-
window'' for the filing of applications for the abandoned air-time in
such arrangements, rather than allowing remaining time share licensees
to re-apportion the remaining air time. We did not receive any
substantive comments voicing strong opinions on this proposal. We
believe that opening such mini-windows would pose a great
administrative burden on Commission staff. Such a burden would
significantly outweigh the modest benefits that would be realized by
filling such limited portions of a broadcast day with additional
programming provided by a new timeshare licensee. Moreover, we believe
that our adoption of the mandatory timesharing procedures discussed
below will provide adequate opportunities to applicants that wish to
apply for abandoned airtime. Accordingly, we do not adopt this
proposal.
3. Operating Schedule
131. 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 sought comment on
whether we should extend such mandatory time sharing to the LPFM
service. We noted that we believe that doing so could increase the
number of broadcast voices and promote additional diversity in radio
voices and program services.
132. Only CRA commented on this proposal. It urges the Commission
to ``reject this impulse,'' noting that LPFM applicants need as much
flexibility as possible to ensure the viability of these small
stations. We continue to believe that this measure will increase the
number of broadcast voices and promote additional diversity in radio
voices and program services in the most administratively efficient
manner. However, we find merit to CRA's concerns and will adopt this
proposal with safeguards designed to ensure that LPFM licensees have as
much opportunity and flexibility as needed to ensure their success.
Specifically, in order to provide sufficient ``ramp up'' time, we will
not accept applications to share time with any LPFM licensee that has
been licensed and operating its station for less than three years.
Accordingly, we adopt this proposal, with the modification just
described.
4. Classes of Service
133. Currently, there are two classes of LPFM facilities: LP100 and
LP10. To date, we have licensed only LP100 stations. In the Fourth
FNPRM, we proposed to eliminate the LP10 class. We also sought comment
on whether to create a new, higher power LP250 class. We specifically
sought comment on how the creation of an LP250 class of LPFM facilities
could be harmonized with the LCRA, which was ``presumably grounded on
the current LPFM maximum power level.''
134. A number of LPFM proponents urge us to retain the LP10 class
of service, arguing that it is needed to ensure that LPFM opportunities
are available in urban areas. Other commenters advocate eliminating the
LP10 class. They point out that, from an engineering standpoint, the
LP10 class is spectrally inefficient. We agree that the existing LP10
class is an inefficient utilization of spectrum. LP10 stations offer
more limited service but are more susceptible to interference than
LP100 stations. Given the increasingly crowded nature of the FM band,
we find it appropriate to take this into account. We also are concerned
that the reach of LP10 stations would be too small for the stations to
be economically viable. As the Media Bureau recently noted, even
higher-powered LP100 stations have small service areas and are
constrained in ``their ability to gain listeners'' and ``appeal to
potential underwriters.'' Because we find that licensing LP10 stations
would be an inefficient use of available spectrum and are concerned
that LP10 stations would have an even higher failure rate than LP100
stations, we eliminate the LP10 station class.
135. Faced with the loss of the LP10 class, some commenters propose
that we create other classes that would transmit at less than 100
watts. Many in the LPFM community support a proposal to replace the
LP10 class with an LP50 class, which would allow licensees to transmit
at any ERP from 1 to 50 watts. In support, they argue that LP50
stations would offer higher quality service than LP10 stations and may
permit station locations closer to city centers. In contrast, NAB
opposes creation of an LP50 class, arguing that such action would
exceed the intent of Congress.
[[Page 2098]]
NAB also asserts that the proposal is not a logical outgrowth of the
Fourth Further Notice and, therefore, is untimely. Finally, NAB asserts
that, like the LP10 class of stations, an LP50 class would be
``technically inefficient.''
136. We will not create an LP50 class. In the Fourth FNPRM, we
proposed to eliminate the LP10 class, retain the LP100 class and
introduce a new LP250 class. We proposed these changes in order to
address our concerns with the efficiency and viability of stations
operating at powers at or below those authorized for LP100 stations. We
agree with NAB that a decision to introduce a new LP50 class could not
have been reasonably anticipated by all interested parties. Moreover,
we believe that LP50 stations would suffer many of the same technical
deficiencies as LP10 stations. Accordingly, we have decided not to
adopt the proposed LP50 class.
137. The LPFM community offers broad support for the creation of a
new LP250 class. These commenters cite benefits including improved LPFM
station viability through better access to underwriting, more
consistent signal coverage throughout the community served by the LPFM
station, and the ability to serve areas of low population density and/
or more distant communities. Several commenters, however, strenuously
oppose the creation of an LP250 class. These commenters do not dispute
the benefits cited by those supportive of an LP250 class. Instead, they
argue that an LP250 class would pose a greater interference risk to
full power stations, is unnecessary given the availability of 250 watt
Class A licenses, would be a departure from the local character of the
LPFM service, and goes beyond the intent of Congress in enacting the
LCRA.
138. At this time, we will not adopt our proposal to create an
LP250 class. Given the disagreement among commenters about, among other
things, LP250 station location restrictions and technical parameters,
we believe the issue of increasing the maximum facilities for LPFM
stations requires further study. We note, however, that the LCRA does
not contain any language limiting the power levels at which LPFM
stations may be licensed. We also find unpersuasive NAB's and NPR's
reliance on certain statements in the legislative history. These
statements merely describe the rules governing LPFM service at the time
Congress was considering the LCRA. Since we have decided not to adopt
the proposal, we need not definitively resolve the question.
5. Removal of I.F. Channel Minimum Distance Separation Requirements
139. In the Fourth FNPRM, we noted that LPFM stations are currently
required to protect full-service stations on I.F. channels while
translator stations operating with less than 100 watts are not. To
address this disparity, we proposed to remove I.F. protection
requirements for LPFM stations operating with less than 100 watts. We
noted that we believe the same reasoning that the Commission applied in
exempting FM translator stations operating with less than 100 watts ERP
from I.F. protection requirements would apply 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 further noted that FM allotments would
continue to be protected on the I.F. channels based on existing
international agreements. We sought comment on this proposal.
140. Commenters generally support removal of the I.F. protection
requirements applicable to LPFM stations. Some ground their support in
the need to put LPFM stations and translators on an ``equal footing''
while others assert that improvements in receiver technology render
I.F. protection requirements unnecessary. NPR is the lone commenter
urging retention of I.F. protection requirements. NPR infers an intent
to retain the I.F. protections from the fact that Congress specifically
addressed minimum distance separations but did not eliminate those
related to I.F. We find NPR's argument unpersuasive. In the absence of
explicit direction in the LCRA regarding I.F. protection requirements,
and in light of the fact that Congress explicitly required retention of
the co-channel and first- and second-adjacent channel spacing
requirements, we believe that it is reasonable to read the statute not
to require the Commission to retain I.F. protection requirements. Had
Congress wished to ensure that the I.F. protections remained in place,
we believe that it would have done so in the text of the LCRA.
141. NPR also requests that the Commission study the impact of its
decision ``roughly 20 years ago'' to exempt from I.F. protection
requirements FM translator stations operating with less than 100 watts
ERP. NPR urges us to complete this study prior to acting on our
proposal. Common Frequency asserts, however, that the Commission would
have investigated I.F. interference by now if it had proved a problem.
Common Frequency is correct. We have not received any recent complaints
regarding I.F. interference from FM translators exempted from the I.F.
protection requirements. Indeed, it is telling that NPR has not cited a
single instance of such interference. Therefore, and in light of the
fact that a receiver does not distinguish between the signal of an LPFM
station or an FM translator, we find that the proposed change will not
result in significant I.F. interference.
142. Accordingly, we adopt this proposal. We find this change
necessary to ensure parity between LPFM stations and FM translator
stations, which, for I.F. interference purposes, are indistinguishable.
As requested by commenters, we will eliminate these requirements for
LPFM stations operating at or below 100 watts ERP. We had originally
proposed to exempt only LPFM stations operating at less than 100 watts
ERP from the I.F. protection requirements. However, commenters pointed
out that, if we adopted the proposal set forth in the Fourth FNPRM,
LP100 stations would remain subject to I.F. protection requirements.
These commenters argue that there is little difference between LPFM
stations operating at 99 versus 100 watts ERP and urge us to eliminate
the I.F. protection requirements for LPFM stations operating at 100
watts or less ERP. We agree. Moreover, since going forward we will
license LPFM stations to operate at ERPs ranging from 50 watts to 100
watts, we find that eliminating the I.F. protection requirements for
stations operating at 100 watts or less ERP is the more sensible
choice.
E. Window Filing Process
143. Several commenters voiced concern about the timing and
mechanics of the upcoming LPFM application filing window. Several LPFM
advocates ask that ``adequate time'' be given for applicants to prepare
their applications after adoption of the revised rules. Prometheus
urges the Commission to give six to nine months lead time up to the
filing window, maintaining that applicants need time to raise funds,
hire a consulting engineer and assess spectrum availability. REC, on
the other hand, opposes any ``artificial'' delay, stating that any
delay between the issuance of final rules and the window should occur
naturally. To some extent, this debate is moot as there is a
substantial cushion of time organically built into the process for the
final rules we adopt or modify today, as well as any related form
changes. Moreover, to maximize LPFM filing opportunities it is critical
for the Media Bureau to
[[Page 2099]]
complete substantially all of its processing of the pending FM
translator applications prior to the opening of the LPFM window. Thus,
the window will open approximately nine months from the effective date
of the Fifth Order on Reconsideration. To help potential LPFM
applicants prepare for the upcoming window, we announce a target date
of October 15, 2013. However, we delegate authority to the Media Bureau
to adjust this date in the event that future developments affect window
timing. In sum, there will be ample time for all LPFM applicants to
familiarize themselves with the rules and plan accordingly before the
filing window opens.
144. Commenters also suggest multiple windows in order to ease the
demand for affordable engineering assistance immediately before the
opening of the window. Prometheus further suggests that we bifurcate
the application into short and long forms, with second-adjacent waiver
showings submitted in the long form. Prometheus argues that multiple
filing windows and a short form/long form application process would
help address the scarcity issue of qualified, affordable consulting
engineers and allow more interested parties to file. Common Frequency
echoes these concerns, reporting that in the 2007 NCE window ``[s]ome
applicants could not file because they could not find engineers, and
others were priced-out from applying because an engineer and lawyer
could run as much as $5000.'' We recognize these concerns. Thus, in
order to ease upfront technical burdens and engineering costs, we will
accept a threshold second-adjacent waiver technical showing when an
applicant seeks to make a ``no interference'' showing based on lack of
population in areas where interference is predicted to occur. Under
this procedure an applicant would use ``worst-case'' assumptions about
the area of potential interference in combination with a USGS map or a
Google map to demonstrate ``lack of population'' within this area.
Applicants should be able to complete this simple showing without the
use of a consulting engineer. In light of our adoption of this
threshold showing, we see no need to bifurcate our application process
into short and long forms or to open multiple filing windows. We
believe that this alternative showing will ease some of the technical
and financial burdens of application filing and will help ensure that
new entrants in underserved communities are not ``priced out'' of the
opportunity to file an LPFM application in the upcoming window. We
further believe that these measures will help alleviate any obstacles
applicants face due to an ``engineering shortage,'' as those applicants
that choose to make the threshold showing will no longer need to hire a
consulting engineer.
II. Procedural Matters
A. Final Regulatory Flexibility Analysis
145. As required by the Regulatory Flexibility Act (``RFA''), an
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in
the Fourth FNPRM in MM Docket No. 99-25. The Commission sought written
public comment on the proposals in the Fourth FNPRM, including comment
on the IRFA. We received no comments specifically directed toward the
IRFA. This Final Regulatory Flexibility Analysis (``FRFA'') conforms to
the RFA.
146. Need For, and Objectives of, the Proposed Rules. This
rulemaking proceeding was initiated to seek comment on how to implement
certain provisions of the LCRA. The Sixth R&O amends certain technical
rules to implement the LCRA. The Sixth R&O adopts the waiver standard
for second-adjacent channel spacing waivers set forth in section
3(b)(2)(A) of the LCRA. It specifies the manner in which a waiver
applicant can satisfy this standard and the manner in which the
Commission will handle complaints of interference caused by LPFM
stations operating pursuant to second-adjacent channel waivers. As
required by section 7 of the LCRA, the Sixth R&O modifies the regimes
applicable if an LPFM station causes third-adjacent channel
interference. As specified by the LCRA, the Sixth R&O applies the
protection and interference remediation requirements applicable to FM
translator stations to those LPFM stations that would have been short-
spaced under the third-adjacent channel spacing requirements eliminated
in the Fifth R&O in MM Docket No. 99-25. The Sixth R&O states that the
Commission will consider directional antennas, lower ERPs and/or
differing polarizations to be suitable techniques for eliminating
third-adjacent channel interference. The Sixth R&O applies the more
lenient interference protection obligations currently applicable to
LPFM stations that would have been fully-spaced under the third-
adjacent channel spacing requirements eliminated in the Fifth R&O
(``fully-spaced LPFM stations''). The Sixth R&O addresses the timing,
frequency and content of the periodic broadcast announcements that
newly constructed fully-spaced LPFM stations must make pursuant to
section 7(2) of the LCRA. It revises the rules to treat as a ``minor
change'' a proposal to move a fully-spaced LPFM station's transmitter
outside its current service contour in order to co-locate or operate
from a site close to a third-adjacent channel station and remediate
interference to that station. Finally, the Sixth R&O implements section
6 of the LCRA, modifying the Commission's rules to address the
potential for predicted interference to FM translator input signals
from LPFM stations operating on third-adjacent channels. It adopts a
basic threshold test designed to identify applications that are
predicted to cause interference to FM translator input signals on
third-adjacent channels and states that the Commission will dismiss any
application that does not satisfy this threshold test as unacceptable
for filing.
147. The Sixth R&O also makes a number of other changes to the
Commission's rules to better promote localism and diversity, which are
at the very heart of the LPFM service. It clarifies that the localism
requirement set forth in Sec. 73.853(b) of the rules applies not just
to LPFM applicants but also to LPFM permittees and licensees. The Sixth
R&O revises the rules to permit cross-ownership of an LPFM station and
up to two FM translator stations but, at the same time, establishes a
number of restrictions on such cross-ownership in order to ensure that
the LPFM service retains its extremely local focus.
148. In the interests of advancing the Commission's efforts to
increase ownership of radio stations by federally recognized Tribal
Nations or entities owned or controlled by Tribal Nations, the Sixth
R&O amends the Commission's rules to explicitly provide for the
licensing of LPFM stations to Tribal Nation Applicants, and to permit
Tribal Nation Applicants to own or hold attributable interests in up to
two LPFM stations.
149. In addition, the Order modifies the point system that the
Commission uses to select among MX LPFM applications. Specifically, the
Sixth R&O eliminates the proposed operating hours criterion, revises
the established community presence criterion, affirms the local program
origination criterion, and adds new criteria related to maintenance and
staffing of a main studio, offering by Tribal Nation Applicants of new
radio services that primarily serve Tribal lands, and new entry into
radio broadcasting. Given these changes, the Sixth R&O also revises the
existing exception to the cross-ownership rule for student-run
[[Page 2100]]
stations. The Sixth R&O announces the Commission will continue to
entertain partial ``technical'' settlements in the LPFM context and
modifies the way in which involuntary time sharing works, shifting from
sequential to concurrent license terms and limiting involuntary time
sharing arrangements to three applicants. It adopts mandatory time
sharing, which currently applies to full-service noncommercial
educational translator stations but not LPFM stations.
150. Finally, the Sixth R&O eliminates the LP10 class of LPFM
facilities and removes all of the I.F protection requirements
applicable to LPFM stations except those established by international
agreements.
151. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. None.
152. Description and Estimate of the Number of Small Entities to
Which 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 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.
153. Radio Broadcasting. The policies 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 stations have revenues of $7 million or less and thus qualify as
small entities under the SBA definition. We note, however, that, in
assessing whether a business concern qualifies as small under the above
definition, business (control) affiliations must be included. Our
estimate, therefore, likely overstates the number of small entities
that might be affected by our action, because the revenue figure on
which it is based does not include or aggregate revenues from
affiliated companies.
154. 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 the rules apply does 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.
155. FM translator stations and low power FM stations. The policies
adopted in the Sixth R&O 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 6,105 licensed FM translator stations and 824 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.
156. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The Sixth R&O modifies existing requirements
and imposes additional paperwork burdens. The Sixth R&O modifies the
Commission's policy regarding waivers (``second-adjacent waivers'') of
the second-adjacent channel minimum distance separations set forth in
Sec. 73.807 of the rules. As required by the LCRA, the Sixth R&O
requires an applicant seeking a second-adjacent waiver to submit a
showing that demonstrates that its proposed operations will not result
in interference to any authorized radio service. The Sixth R&O
specifies that a waiver applicant can make this showing in the same
manner as an FM translator applicant (i.e., by showing that no
interference will occur due to lack of population and using undesired/
desired signal strength ratio methodology to narrowly define areas of
potential interference). The Sixth R&O also permits certain applicants
to propose to use directional antennas and/or differing antenna
polarizations to make the required showing. The Sixth R&O mandates that
complaints about interference from stations operating pursuant to
second-adjacent waivers include certain information. For instance, a
complaint must include the listener's name and address and the location
at which the interference occurs. The Sixth R&O specifies that the
Commission will treat as a ``minor change'' a proposal to move the
transmitter site of an LPFM station operating pursuant to a second-
adjacent waiver outside its current service contour in order to co-
locate or operate from a site close to a second-adjacent channel
station and remediate interference to that station.
157. The Sixth R&O modifies the regime governing complaints about
and remediation of third-adjacent channel interference caused by LPFM
stations. As required by the LCRA, the Sixth R&O modifies the
requirements applicable to complaints about third-adjacent channel
interference caused by stations that do not satisfy the third-adjacent
minimum distance separations set forth in Sec. 73.807 of the rules. It
also permits such stations to propose to use directional antennas and/
or differing antenna polarizations in order to eliminate third-adjacent
channel interference caused by their operations. The Sixth R&O modifies
the requirements applicable to complaints about third-adjacent
interference caused by LPFM stations that satisfy the third-adjacent
minimum distance separations set forth in Sec. 73.807 of the rules and
strongly encourages that such complaints be filed with the Media
Bureau's Audio Division. As in the second-adjacent channel context, the
Sixth R&O explains that the Commission will treat proposals from LPFM
stations seeking to remediate third-adjacent channel by co-locating or
operating from a site close to a third-adjacent channel station as
``minor changes.'' As required by the LCRA, the Sixth R&O requires
newly constructed LPFM stations that satisfy the third-adjacent minimum
distance separations set forth in Sec. 73.807 of the rules to make
periodic announcements. It also adopts requirements related to the
timing and content of these announcements.
158. The Sixth R&O adopts certain New Jersey-specific provisions
regarding complaints of interference. The Sixth R&O also adopts a
threshold test to determine whether an LPFM applicant adequately
protects translator input signals. In order to ensure that an LPFM
applicant protects the correct input signal for an FM translator, the
[[Page 2101]]
Sixth R&O recommends that FM translator licensees update the Commission
if they have changed their primary station since they last filed a
renewal application. If an applicant proposes to locate its transmitter
within the ``potential interference area'' for another station, the
applicant must demonstrate that it will not cause interference by
making one of three showings. The Sixth R&O provides that an applicant
can make these same showings in the context of a petition for
reconsideration and reinstatement nunc pro tunc.
159. The Sixth R&O modifies the rules governing eligibility to hold
licenses for LPFM stations. Specifically, it alters the eligibility
rule to authorize issuance of an LPFM license to a Tribal Nation
Applicant. The Sixth R&O also revises the localism requirement to
clarify that an LPFM applicant must certify that, at the time of
application, it is local and must pledge to remain local at all times
thereafter. In addition, the Sixth R&O revises the definition of
``local'' to specify that a Tribal Nation Applicant is considered
``local'' throughout its Tribal lands.
160. The Sixth R&O revises the rules to permit multiple ownership
of LPFM stations by Tribal Nation Applicants and cross-ownership of
LPFM and FM translator stations. As a result, the Commission is
revising the ownership certifications set forth in FCC Form 318.
161. The Sixth R&O makes a number of changes to the point system
used to select among MX applications for LPFM stations. It extends the
established community presence standard from 10 to 20 miles in rural
areas. The Commission is revising FCC Form 318 to reflect this change.
The Sixth R&O also adopts four new points criteria. Specifically, it
adopts a new main studio criterion and requires an applicant seeking to
qualify for a point under this criterion to submit certain information
(i.e., an address and telephone number for its proposed main studio) on
FCC Form 318. In addition, the Sixth R&O specifies that the Commission
will award a point to an LPFM applicant that makes both the local
program origination and main studio pledges and adopts Tribal Nations
and new entrant criteria. The Commission is revising FCC Form 318 to
reflect these new criteria.
162. The Sixth R&O makes a number of changes related to time
sharing. It adopts a requirement that parties submit voluntary time
sharing agreements via the Commission's Consolidated Database System.
It also revises the Commission's involuntary time sharing policy,
shifting from sequential to concurrent license terms and limiting
involuntary time sharing arrangements to three applicants. As a result
of these changes, an LPFM applicant must submit, on FCC Form 318, the
date on which it qualified as having an ``established community
presence'' and may be required to submit information to the Commission
regarding the time slots it prefers. Finally, the Sixth R&O adopts a
mandatory time sharing policy similar to that applicable to full-
service NCE FM stations. Applicants seeking to time-share pursuant to
this policy must submit applications on FCC Form 318 and include an
exhibit related to mandatory time sharing.
163. 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.
164. Consideration of alternative methods to reduce the impact on
small entities is unnecessary because the passage of the LCRA required
the Commission to make changes to a number of its technical rules.
Moreover, the changes made to the Commission's non-technical rules
benefit small businesses and existing LPFM licensees, offering them
greater flexibility and additional licensing opportunities.
165. The LPFM service has created and will continue to create
significant opportunities for small businesses, allowing them to
develop LPFM service in their communities. To the extent that any
modified or new requirements set forth in the Sixth R&O impose any
burdens on small entities, we believe that the resulting impact on
small entities would be favorable because the rules would expand
opportunities for LPFM applicants, permittees, and licensees to
commence broadcasting and stay on the air. Among other things, the
Sixth R&O allows limited cross-ownership of LPFM and FM translator
stations. This is prohibited under the current rules. Likewise, the
Sixth R&O permits Tribal Nation Applicants to own or hold attributable
interests in up to two LPFM stations to ensure adequate coverage of
Tribal lands. Today, multiple ownership of LPFM stations is prohibited.
The Sixth R&O also modifies the point system that the Commission uses
to select among MX LPFM applications to award a point to an applicant
that can certify that it has no attributable interest in any other
broadcast station. Finally, the Sixth R&O extends mandatory time
sharing to the LPFM service. If the licensee of an LPFM station does
not operate the station 12 hours per day each day of the year, another
organization may file an application to share-time with that licensee.
166. Report to Congress. The Commission will send a copy of the
Sixth R&O, including this FRFA, in a report to be sent to Congress
pursuant to the SBREFA. In addition, the Commission will send a copy of
the Sixth R&O, including the FRFA, to the Chief Counsel for Advocacy of
the SBA. A copy of the Sixth R&O and the FRFA (or summaries thereof)
will also be published in the Federal Register.
B. Paperwork Reduction Act
167. The Sixth R&O contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (``PRA''). The
requirements will be submitted to the Office of Management and Budget
for review under section 3507(d) of the PRA. The Commission will
publish a separate notice in the Federal Register inviting comments on
the new information collection requirements adopted in this document.
In addition, we note that pursuant to the Small Business Paperwork
Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
previously sought specific comment on how the Commission might further
reduce the information collection burden for small business concerns
with fewer than 25 employees. We describe impacts that might affect
small businesses, which includes most businesses with fewer than 25
employees, in the FRFA in Appendix B, infra.
C. Congressional Review Act
168. The Commission will send a copy of this Sixth R&O in a report
to be sent to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
III. Ordering Clauses
169. It is further ordered that pursuant to the authority contained
in sections 1, 4(i), 4(j), 303, 307, 309(j), and 316 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
[[Page 2102]]
303, 307, 309(j), and 316, and the Local Community Radio Act of 2010,
Public Law 111-371, 124 Stat. 4072 (2011), this Sixth Report and Order
is hereby adopted and Part 73 of the Commission's rules is amended as
set forth in Appendix C, effective 30 days after publication in the
Federal Register, except pursuant to paragraph 140 below.
170. It is further ordered that the rules adopted herein that
contain new or modified information collection requirements that
require approval by the Office of Budget and Management under the
Paperwork Reduction Act will become effective after the Commission
publishes a notice in the Federal Register announcing such approval and
the relevant effective date.
171. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Sixth Report and Order, including the Final Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.807 is revised to read as follows:
Sec. 73.807 Minimum distance separation between stations.
Minimum separation requirements for LPFM stations are listed in the
following paragraphs. Except as noted below, an LPFM station will not
be authorized unless the co-channel, and first- and second-adjacent
channel separations are met. An LPFM station need not satisfy the
third-adjacent channel separations listed in paragraphs (a) through (c)
of this section in order to be authorized. The third-adjacent channel
separations are included for use in determining for purposes of Sec.
73.810 which third-adjacent channel interference regime applies to an
LPFM station. 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, the
required minimum distance separation is sufficient to avoid
interference received from other stations.
(a)(1) An LPFM 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, authorized LPFM stations, LPFM 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 Second and
(km) separation (km) third adjacent
---------------------------------------------------------------- channel
For no For no minimum
Station class protected by LPFM interference interference separation
Required received from Required received from (km)
max. class max. class ---------------
facility facility Required
----------------------------------------------------------------------------------------------------------------
LPFM............................ 24 24 14 14 None
D............................... 24 24 13 13 6
A............................... 67 92 56 56 29
B1.............................. 87 119 74 74 46
B............................... 112 143 97 97 67
C3.............................. 78 119 67 67 40
C2.............................. 91 143 80 84 53
C1.............................. 111 178 100 111 73
C0.............................. 122 193 111 130 84
C............................... 130 203 120 142 93
----------------------------------------------------------------------------------------------------------------
(2) LPFM 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.
(b) In addition to meeting or exceeding the minimum separations in
paragraph (a) of this section, new LPFM stations will not be autorized
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:
[[Page 2103]]
----------------------------------------------------------------------------------------------------------------
Co-channel minimum separation First-adjacent channel minimum
(km) separation (km) Second and
---------------------------------------------------------------- third adjacent
For no For no channel
Station class protected by LPFM interference interference minimum
Required received from Required received from separation
max. class max. class (km)--required
facility facility
----------------------------------------------------------------------------------------------------------------
A............................... 80 111 70 70 42
B1.............................. 95 128 82 82 53
B............................... 138 179 123 123 92
----------------------------------------------------------------------------------------------------------------
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 (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) In addition to meeting the separations specified in paragraphs
(a) and (b), LPFM 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 First-adjacent channel minimum Second and
(km) separation (km) third adjacent
Distance to FM translator 60 dBu ---------------------------------------------------------------- channel
contour For no For no minimum
Required interference Required interference separation
received received (km)--required
----------------------------------------------------------------------------------------------------------------
13.3 km or greater.............. 39 67 28 35 21
Greater than 7.3 km, but less 32 51 21 26 14
than 13.3 km...................
7.3 km or less.................. 26 30 15 16 8
----------------------------------------------------------------------------------------------------------------
(d) Existing LPFM 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)(1) Waiver of the second-adjacent channel separations. The
Commission will entertain requests to waive the second-adjacent channel
separations in paragraphs (a) through (c) of this section on a case-by-
case basis. In each case, the LPFM station must establish, 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. The LPFM station may do so by demonstrating that no
actual interference will occur due to intervening terrain or lack of
population. The LPFM station may use an undesired/desired signal
strength ratio methodology to define areas of potential interference.
(2) Interference. (i) Upon receipt of a complaint of interference
from an LPFM station operating pursuant to a waiver granted under
paragraph (e)(1) of this section, the Commission shall notify the
identified LPFM station by telephone or other electronic communication
within one business day.
(ii) An LPFM station that receives a waiver under paragraph (e)(1)
of this section shall suspend operation immediately upon notification
by the Commission that it is causing interference to the reception of
an existing or modified full-service FM station without regard to the
location of the station receiving interference. The LPFM station shall
not resume operation until such interference has been eliminated or it
can demonstrate to the Commission that the interference was not due to
emissions from the LPFM station. Short test transmissions may be made
during the period of suspended operation to check the efficacy of
remedial measures.
(f) 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.
(g) International considerations within the border zones. (1)
Within 320 km of the Canadian border, LPFM stations must meet the
following minimum separations with respect to any Canadian stations:
----------------------------------------------------------------------------------------------------------------
Second- Intermediate
Canadian station class Co-channel First-adjacent adjacent Third-adjacent frequency (IF)
(km) channel (km) channel (km) channel (km) channel (km)
----------------------------------------------------------------------------------------------------------------
A1 & Low Power.................. 45 30 21 20 4
A............................... 66 50 41 40 7
[[Page 2104]]
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 Mexican border, LPFM stations must meet
the following separations with respect to any Mexican stations:
----------------------------------------------------------------------------------------------------------------
Second- and Intermediate
Mexican station class Co-channel First-adjacent third-adjacent frequency (IF)
(km) 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
----------------------------------------------------------------------------------------------------------------
(3) 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.
(4) 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.
0
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 provided that the interference is predicted to occur and
actually occurs within:
* * * * *
0
4. Section 73.810 is revised to read as follows:
Sec. 73.810 Third adjacent channel interference.
(a) LPFM Stations Licensed at Locations That Do Not Satisfy Third-
Adjacent Channel Minimum Distance Separations. An LPFM station licensed
at a location that does not satisfy the third-adjacent channel minimum
distance separations set forth in Sec. 73.807 is subject to the
following provisions:
(1) Such an LPFM station will not be permitted to continue to
operate if it causes any actual third-adjacent channel interference to:
(i) The transmission of any authorized broadcast station; or
(ii) The reception of the input signal of any TV translator, TV
booster, FM translator or FM booster station; or
(iii) The direct reception by the public of the off-the-air signals
of any authorized broadcast station including TV Channel 6 stations,
Class D (secondary) noncommercial educational FM stations, and
previously authorized and operating LPFM stations, FM translators and
FM booster stations. Interference will be considered to occur whenever
reception of a regularly used signal on a third-adjacent channel is
impaired by the signals radiated by the LPFM station, regardless of the
quality of such reception, the strength of the signal so used, or the
channel on which the protected signal is transmitted.
(2) If third-adjacent channel interference cannot be properly
eliminated by the application of suitable techniques, operation of the
offending LPFM station shall be suspended and shall not be resumed
until the interference has been eliminated. Short test transmissions
may be made during the period of suspended operation to check the
efficacy of remedial measures. If a complainant refuses to permit the
licensee of the offending LPFM station to apply remedial techniques
which demonstrably will eliminate the third-adjacent channel
interference without impairment to the original reception, the licensee
is absolved of further responsibility for that complaint.
(3) Upon notice by the Commission to the licensee that such third-
adjacent channel interference is being caused, the operation of the
LPFM station shall be suspended within three minutes and shall not be
resumed until the interference has been eliminated or it can be
demonstrated that the interference is not due to spurious emissions by
the LPFM station; provided, however, that short test transmissions may
be made during the period of suspended operation to check the efficacy
of remedial measures.
(b) LPFM Stations Licensed at Locations That Satisfy Third-Adjacent
Channel Minimum Distance Separations. An LPFM station licensed at a
location that satisfies the third-adjacent channel minimum distance
separations set forth in Sec. 73.807 is subject to the following
provisions:
(1) Interference Complaints and Remediation. (i) Such an LPFM
station is required to provide copies of all complaints alleging that
its signal is causing third-adjacent channel interference to or
impairing the reception of the signal of a full power FM, FM translator
or FM booster station to such affected station and to the Commission.
[[Page 2105]]
(ii) A full power FM, FM translator or FM booster station shall
review all complaints it receives, either directly or indirectly, from
listeners regarding alleged third-adjacent channel interference caused
by the operations of such an LPFM station. Such full power FM, FM
translator or FM booster station shall also identify those that qualify
as bona fide complaints under this section and promptly provide such
LPFM station with copies of all bona fide complaints. A bona fide
complaint:
(A) Must include current contact information for the complainant;
(B) Must state the nature and location of the alleged third-
adjacent channel interference and must specify the call signs of the
LPFM station and affected full power FM, FM translator or FM booster
station, and the type of receiver involved; and
(C) Must be received by either the LPFM station or the affected
full power FM, FM translator or FM booster station within one year of
the date on which the LPFM station commenced broadcasts with its
currently authorized facilities.
(iii) The Commission will accept bona fide complaints and will
notify the licensee of the LPFM station allegedly causing third-
adjacent channel interference to the signal of a full power FM, FM
translator or FM booster station of the existence of the alleged
interference within 7 calendar days of the Commission's receipt of such
complaint.
(iv) Such an LPFM station will be given a reasonable opportunity to
resolve all complaints of third-adjacent channel interference within
the protected contour of the affected full power FM, FM translator or
FM booster station. A complaint will be considered resolved where the
complainant does not reasonably cooperate with an LPFM station's
remedial efforts. Such an LPFM station also is encouraged to address
all other complaints of third-adjacent channel interference, including
complaints based on interference to a full power FM, FM translator or
FM booster station by the transmitter site of the LPFM station at any
distance from the full power, FM translator or FM booster station.
(v) In the event that the number of unresolved complaints of third-
adjacent channel interference within the protected contour of the
affected full power FM, FM translator or FM booster station plus the
number of complaints for which the source of third-adjacent channel
interference remains in dispute equals at least one percent of the
households within one kilometer of the LPFM transmitter site or thirty
households, whichever is less, the LPFM and affected stations must
cooperate in an ``on-off'' test to determine whether the third-adjacent
channel interference is traceable to the LPFM station.
(vi) If the number of unresolved and disputed complaints of third-
adjacent channel interference within the protected contour of the
affected full power, FM translator or FM booster station exceeds the
numeric threshold specified in paragraph (b)(1)(v) of this section
following an ``on-off'' test, the affected station may request that the
Commission initiate a proceeding to consider whether the LPFM station
license should be modified or cancelled, which will be completed by the
Commission within 90 days. Parties may seek extensions of the 90-day
deadline consistent with Commission rules.
(vii) An LPFM station may stay any procedures initiated pursuant to
paragraph (b)(1)(vi) of this section by voluntarily ceasing operations
and filing an application for facility modification within twenty days
of the commencement of such procedures.
(2) Periodic Announcements. (i) For a period of one year from the
date of licensing of a new LPFM station that is constructed on a third-
adjacent channel and satisfies the third-adjacent channel minimum
distance separations set forth in Sec. 73.807, such LPFM station shall
broadcast periodic announcements. The announcements shall, at a
minimum, alert listeners of the potentially affected third-adjacent
channel station of the potential for interference, instruct listeners
to contact the LPFM station to report any interference, and provide
contact information for the LPFM station. The announcements shall be
made in the primary language(s) of both the new LPFM station and the
potentially affected third-adjacent channel station(s). Sample
announcement language follows:
On (date of license grant), the Federal Communications
Commission granted (LPFM station's call letters) a license to
operate. (LPFM station's call letters) may cause interference to the
operations of (third-adjacent channel station's call letters) and
(other third-adjacent channel stations' call letters). If you are
normally a listener of (third-adjacent channel station's call
letters) or (other third-adjacent channel station's call letters)
and are having difficulty receiving (third-adjacent channel station
call letters) or (other third-adjacent channel station's call
letters), please contact (LPFM station's call letters) by mail at
(mailing address) or by telephone at (telephone number) to report
this interference.
(ii) During the first thirty days after licensing of a new LPFM
station that is constructed on a third-adjacent channel and satisfies
the third-adjacent channel minimum distance separations set forth in
Section 73.807, the LPFM station must broadcast the announcements
specified in paragraph (b)(2)(i) of this section at least twice daily.
The first daily announcement must be made between the hours of 7 a.m.
and 9 a.m., or 4 p.m. and 6 p.m. The LPFM station must vary the time
slot in which it airs this announcement. For stations that do not
operate at these times, the announcements shall be made during the
first two hours of broadcast operations each day. The second daily
announcement must be made outside of the 7 a.m. to 9 a.m. and 4 p.m. to
6 p.m. time slots. The LPFM station must vary the times of day in which
it broadcasts this second daily announcement in order to ensure that
the announcements air during all parts of its broadcast day. For
stations that do not operate at these times, the announcements shall be
made during the first two hours of broadcast operations each day. For
the remainder of the one year period, the LPFM station must broadcast
the announcements at least twice per week. The announcements must be
broadcast between the hours of 7 a.m. and midnight. For stations that
do not operate at these times, the announcements shall be made during
the first two hours of broadcast operations each day.
(iii) Any new LPFM station that is constructed on a third-adjacent
channel and satisfies the minimum distance separations set forth in
Sec. 73.807 must:
(A) notify the Audio Division, Media Bureau, and all affected
stations on third-adjacent channels of an interference complaint. The
notification must be made electronically within 48 hours after the
receipt of an interference complaint by the LPFM station; and
(B) cooperate in addressing any third-adjacent channel
interference.
0
5. Section 73.811 is revised to read as follows:
Sec. 73.811 LPFM power and antenna height requirements.
(a) Maximum facilities. LPFM stations will be authorized to operate
with maximum facilities of 100 watts ERP at 30 meters HAAT. An LPFM
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.
(b) Minimum facilities. LPFM stations may not operate with
facilities less than 50 watts ERP at 30 meters HAAT or the
[[Page 2106]]
equivalent necessary to produce a 60 dBu contour that extends at least
4.7 kilometers.
0
6. Section 73.816 is amended by revising paragraphs (b) and (c) to read
as follows:
Sec. 73.816 Antennas.
* * * * *
(b) Directional antennas generally will not be authorized and may
not be utilized in the LPFM service, except as provided in paragraph
(c) of this section.
(c)(1) Public safety and transportation permittees and licensees,
eligible pursuant to Sec. 73.853(a)(2), 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. Public safety and transportation permittees and
licensees may not use composite antennas (i.e., antennas that consist
of multiple stacked and/or phased discrete transmitting antennas).
(2) LPFM permittees and licensees proposing a waiver of the second-
adjacent channel spacing requirements of Sec. 73.807 may utilize
directional antennas for the sole purpose of justifying such a waiver.
* * * * *
0
7. Section 73.825 is amended by revising the Tables to paragraphs (a)
and (b) to read as follows:
Sec. 73.825 Protection to reception of TV channel 6.
(a) * * *
------------------------------------------------------------------------
LPFM to TV
FM channel number channel 6 (km)
------------------------------------------------------------------------
201.................................................. 140
202.................................................. 138
203.................................................. 137
204.................................................. 136
205.................................................. 135
206.................................................. 133
207.................................................. 133
208.................................................. 133
209.................................................. 133
210.................................................. 133
211.................................................. 133
212.................................................. 132
213.................................................. 132
214.................................................. 132
215.................................................. 131
216.................................................. 131
217.................................................. 131
218.................................................. 131
219.................................................. 130
220.................................................. 130
------------------------------------------------------------------------
(b) * * *
------------------------------------------------------------------------
LPFM to TV
FM channel number channel 6 (km)
------------------------------------------------------------------------
201.................................................. 98
202.................................................. 97
203.................................................. 95
204.................................................. 94
205.................................................. 93
206.................................................. 91
207.................................................. 91
208.................................................. 91
209.................................................. 91
210.................................................. 91
211.................................................. 91
212.................................................. 90
213.................................................. 90
214.................................................. 90
215.................................................. 90
216.................................................. 89
217.................................................. 89
218.................................................. 89
219.................................................. 89
220.................................................. 89
------------------------------------------------------------------------
0
8. Section 73.827 is revised 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 the input signal of an
FM translator station. This subsection applies when an LPFM application
proposes to operate near an FM translator station, the FM translator
station is receiving its primary station signal off-air and the LPFM
application proposes to operate on a third-adjacent channel to the
primary station. In these circumstances, the LPFM station will not be
authorized unless it is located at least 2 km from the FM translator
station. In addition, in cases where an LPFM station is located within
+/- 30 degrees of the azimuth between the FM translator station and its
primary station, the LPFM station will not be authorized unless it is
located at least 10 kilometers from the FM translator station. The
provisions of this subsection will not apply if the LPFM applicant:
(1) Demonstrates that no actual interference will occur due to an
undesired (LPFM) to desired (primary station) ratio below 34 dB at all
locations,
(2) Complies with the minimum LPFM/FM translator distance
separation calculated in accordance with the following formula:
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 FM translator receive antenna in the
direction of the LPFM site, Grd = gain (dBd) of the FM
translator receive antenna in the direction of the primary station
site, Ed = predicted field strength (dBu) of the primary
station at the translator site, or
(3) Reaches an agreement with the licensee of the FM translator
regarding an alternative technical solution.
Note to paragraph (a): LPFM applicants may assume that an FM
translator station's receive and transmit antennas are collocated.
(b) An authorized LPFM station will not be permitted to continue to
operate if an FM translator or FM booster station demonstrates that the
LPFM station is causing actual interference to the FM booster station's
input signal, provided that the same input signal was in use at the
time the LPFM station was authorized.
(c) Complaints of actual interference by an LPFM station subject to
paragraph (b) of this section must be served on the LPFM licensee and
the Federal Communications Commission, Attention: Audio Division, Media
Bureau. The LPFM station must suspend operations upon the receipt of
such complaint unless the interference has been resolved to the
satisfaction of the complainant on the basis of suitable techniques.
Short test transmissions may be made during the period of suspended
operations to check the efficacy of remedial measures. An LPFM station
may only resume full operation at the direction of the Federal
Communications Commission. If the Commission determines that the
complainant has refused to permit the LPFM station to apply remedial
techniques that demonstrably will eliminate the interference without
impairment of the original reception, the licensee of the LPFM station
is absolved of further responsibility for the complaint.
0
9. 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. Such applications may be filed at any time after an LPFM
station completes its third year of licensed operations. In cases where
the licensee and the prospective licensee 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
[[Page 2107]]
for this purpose, 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
paragraph (c)(2) of this section, 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.
0
10. 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 paragraph (c) of this section
that will provide non-commercial radio services.
(b) Only local organizations will be permitted to submit
applications and to hold authorizations in the LPFM service. For the
purposes of this paragraph, an organization will be deemed local if it
can certify, at the time of application, that it meets the criteria
listed below and if it continues to satisfy the criteria at all times
thereafter.
* * * * *
(4) In the case of a Tribal Applicant, as defined in paragraph (c)
of this section, the Tribal Applicant's Tribal lands, as that term is
defined in Sec. 73.7000, are within the service area of the proposed
LPFM station.
(c) A Tribal Applicant is a Tribe or an entity that is 51 percent
or more owned or controlled by a Tribe or Tribes. For these purposes,
Tribe is defined as set forth in Sec. 73.7000.
0
11. Section 73.855 is revised to read as follows:
Sec. 73.855 Ownership limits.
(a) No authorization for an LPFM station shall be granted to any
party if the grant of that authorization will result in any such party
holding an attributable interest in two or more LPFM stations.
(b) Notwithstanding the general prohibition set forth in paragraph
(a) of this section, Tribal Applicants, as defined in Sec. 73.853(c),
may hold an attributable interest in up to two LPFM stations.
(c) Notwithstanding the general prohibition set forth in paragraph
(a) of this section, not-for-profit organizations and governmental
entities with a public safety purpose may be granted multiple licenses
if:
(1) One of the multiple applications is submitted as a priority
application; and
(2) The remaining non-priority applications do not face a mutually
exclusive challenge.
0
12. Section 73.860 is revised to read as follows:
Sec. 73.860 Cross-ownership.
(a) Except as provided in paragraphs (b), (c) and (d) of this
section, no license shall be granted to any party if the grant of such
authorization will result in the same party holding an attributable
interest in any other non-LPFM broadcast station, including any FM
translator or low power television station, or any other media subject
to our broadcast ownership restrictions.
(b) A party that is not a Tribal Applicant, as defined in Sec.
73.853(c), may hold attributable interests in one LPFM station and no
more than two FM translator stations provided that the following
requirements are met:
(1) The 60 dBu contours of the commonly-owned LPFM station and FM
translator station(s) overlap;
(2) The FM translator station(s), at all times, synchronously
rebroadcasts the primary analog signal of the commonly-owned LPFM
station or, if the commonly-owned LPFM station operates in hybrid mode,
synchronously rebroadcasts the digital HD-1 version of the LPFM
station's signal;
(3) The FM translator station(s) receives the signal of the
commonly-owned LPFM station over-the-air and directly from the
commonly-owned LPFM station itself; and
(4) The transmitting antenna of the FM translator station(s) is
located within 16.1 km (10 miles) for LPFM stations located in the top
50 urban markets and 32.1 km (20 miles) for LPFM stations outside the
top 50 urban markets of either the transmitter site of the commonly-
owned LPFM station or the reference coordinates for that station's
community of license.
(c) A party that is a Tribal Applicant, as defined in Sec.
73.853(c), may hold attributable interests in no more than two LPFM
stations and four FM translator stations provided that the requirements
set forth in paragraph (b) of this section are met.
(d) Unless such interest is permissible under paragraphs (b) or (c)
of this section, a party with an attributable interest in a broadcast
radio station must divest such interest prior to the commencement of
operations of an LPFM station in which the party also holds an
interest. However, a party need not divest such an attributable
interest if the party is a college or university that can certify that
the existing broadcast radio station is not student run. This exception
applies only to parties that:
(1) Are accredited educational institutions;
(2) Own an attributable interest in non-student run broadcast
stations; and
(3) Apply for an authorization for an LPFM station that will be
managed and operated on a day-to-day basis by students of the
accredited educational institution.
[[Page 2108]]
(e) No LPFM licensee may enter into an operating agreement of any
type, including a time brokerage or management agreement, with either a
full power broadcast station or another LPFM station.
0
13. 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 LPFM 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 (c) and (e). These distance limitations also do not apply to
an amendment or application proposing transmitter site relocation to a
common location or a location very close to another station operating
on a third-adjacent channel in order to remediate interference to the
other station; provided, however, that the proposed relocation is
consistent with all localism certifications made by the applicant in
its original application for the LPFM station. Minor changes of LPFM
stations may include:
* * * * *
0
14. Section 73.871 is amended by revising paragraphs (c)(1), (5), and
(6) and adding paragraph (c)(7) 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 LPFM stations;
* * * * *
(5) Other changes in general and/or legal information;
(6) Filings proposing transmitter site relocation to a common
location submitted by applications that are parties to a voluntary
time-sharing agreement with regard to their stations pursuant to Sec.
73.872 (c) and (e); and
(7) Filings proposing transmitter site relocation to a common
location or a location very close to another station operating on a
third-adjacent channel in order to remediate interference to the other
station.
* * * * *
0
15. Section 73.872 is amended by revising paragraphs (b), (c)
introductory text, (c)(4), (d), and (e) to read as follows:
Sec. 73.872 Selection procedure for mutually exclusive LPFM
applications.
* * * * *
(b) Each mutually exclusive application will be awarded one point
for each of the following criteria, based on certifications that the
qualifying conditions are met and submission of any required
documentation:
(1) Established community presence. An applicant must, for a period
of at least two years prior to application and at all times thereafter,
have qualified as local pursuant to Sec. 73.853(b). Applicants
claiming a point for this criterion must submit any documentation
specified in FCC Form 318 at the time of filing their applications.
(2) Local program origination. The applicant must pledge to
originate locally at least eight hours of programming per day. For
purposes of this criterion, local origination is the production of
programming by the licensee, within ten miles of the coordinates of the
proposed transmitting antenna. Local origination includes licensee
produced call-in shows, music selected and played by a disc jockey
present on site, broadcasts of events at local schools, and broadcasts
of musical performances at a local studio or festival, whether recorded
or live. Local origination does not include the broadcast of repetitive
or automated programs or time-shifted recordings of non-local
programming whatever its source. In addition, local origination does
not include a local program that has been broadcast twice, even if the
licensee broadcasts the program on a different day or makes small
variations in the program thereafter.
(3) Main studio. The applicant must pledge to maintain a publicly
accessible main studio that has local program origination capability,
is reachable by telephone, is staffed at least 20 hours per week
between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of
the proposed site for the transmitting antenna for applicants in the
top 50 urban markets and 32.1 km (20 miles) for applicants outside the
top 50 urban markets. Applicants claiming a point under this criterion
must specify the proposed address and telephone number for the proposed
main studio in FCC Form 318 at the time of filing their applications.
(4) Local program origination and main studio. The applicant must
make both the local program origination and main studio pledges set
forth in paragraphs (b)(2) and (3) of this section.
(5) Diversity of ownership. An applicant must hold no attributable
interests in any other broadcast station.
(6) Tribal Applicants serving Tribal Lands. The applicant must be a
Tribal Applicant, as defined in Sec. 73.853(c), and the proposed site
for the transmitting antenna must be located on that Tribal Applicant's
``Tribal Lands,'' as defined in Sec. 73.7000. Applicants claiming a
point for this criterion must submit the documentation set forth in FCC
Form 318 at the time of filing their applications.
(c) Voluntary time-sharing. If mutually exclusive applications have
the same point total, any two or more of the tied applicants may
propose to share use of the frequency by electronically submitting,
within 90 days of the release of a public notice announcing the tie, a
time-share proposal. Such proposals shall be treated as minor
amendments to the time-share proponents' applications, and shall become
part of the terms of the station authorization. Where such proposals
include all of the tied applications, all of the tied applications will
be treated as tentative selectees; otherwise, time-share proponents'
points will be aggregated.
* * * * *
(4) Concurrent license terms granted under paragraph (d) of this
section may be converted into voluntary time-sharing arrangements
renewable pursuant to Sec. 73.3539 by submitting a universal time-
sharing proposal.
(d) Involuntary time-sharing. (1) If a tie among mutually exclusive
applications is not resolved through voluntary time-sharing in
accordance with paragraph (c) of this section, the tied applications
will be reviewed for acceptability. Applicants with tied, grantable
applications will be eligible for equal, concurrent, non-renewable
license terms.
(2) If a mutually exclusive group has three or fewer tied,
grantable applications, the Commission will simultaneously grant these
applications, assigning an equal number of hours per week to each
applicant. The Commission will determine the hours assigned to each
applicant by first assigning hours to the applicant that has been
local, as defined in Sec. 73.853(b), for the longest uninterrupted
period of time, then assigning hours to the applicant that has been
local for the next longest uninterrupted period of time, and finally
assigning hours to any remaining applicant. The Commission will offer
applicants an opportunity to voluntarily reach a time-sharing
agreement. In the event that applicants cannot reach such agreement,
the
[[Page 2109]]
Commission will require each applicant subject to involuntary time-
sharing to simultaneously and confidentially submit their preferred
time slots to the Commission. If there are only two tied, grantable
applications, the applicants must select between the following 12-hour
time slots 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three
tied, grantable applications, each applicant must rank their preference
for the following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59
p.m., and 6 p.m.-1:59 a.m. The Commission will require the applicants
to certify that they did not collude with any other applicants in the
selection of time slots. The Commission will give preference to the
applicant that has been local for the longest uninterrupted period of
time. The Commission will award time in units as small as four hours
per day. In the event an applicant neglects to designate its preferred
time slots, staff will select a time slot for that applicant.
(3) Groups of more than three tied, grantable applications will not
be eligible for licensing under this section. Where such groups exist,
the Commission will dismiss all but the applications of the three
applicants that have been local, as defined in Sec. 73.853(b), for the
longest uninterrupted periods of time. The Commission then will process
the remaining applications as set forth in paragraph (d)(2) of this
section.
(4) If concurrent license terms granted under this section are
converted into universal voluntary time-sharing arrangements pursuant
to paragraph (c)(4) of this section, the permit or license is renewable
pursuant to Sec. Sec. 73.801 and 73.3539.
(e) Settlements. Mutually exclusive applicants may propose a
settlement at any time during the selection process after the release
of a public notice announcing the mutually exclusive groups. Settlement
proposals must comply with the Commission's rules and policies
regarding settlements, including the requirements of Sec. Sec.
73.3525, 73.3588 and 73.3589. Settlement proposals may include time-
share agreements that comply with the requirements of paragraph (c) of
this section, provided that such agreements may not be filed for the
purpose of point aggregation outside of the 90 day period set forth in
paragraph (c) of this section.
0
16. Section 73.873 is revised to read as follows:
Sec. 73.873 LPFM license period.
(a) Initial licenses for LPFM stations will be issued for a period
running until the date specified in Sec. 73.1020 for full service
stations operating in the LPFM station's state or territory, or if
issued after such date, determined in accordance with Sec. 73.1020.
(b) The license of an LPFM station that fails to transmit broadcast
signals for any consecutive 12-month period expires as a matter of law
at the end of that period, notwithstanding any provision, term, or
condition of the license to the contrary.
[FR Doc. 2012-30975 Filed 1-8-13; 8:45 am]
BILLING CODE 6712-01-P