[Federal Register Volume 78, Number 218 (Tuesday, November 12, 2013)]
[Rules and Regulations]
[Pages 67310-67318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27004]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-25; FCC 13-134]
Implementation of the Local Community Radio Act of 2010; Revision
of Service and Eligibility Rules for Low Power FM Stations
AGENCY: Federal Communications Commission.
ACTION: Final rule; denial and/or dismissal of petitions for
reconsideration.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) grants in part and denies in part Prometheus Radio
Project's Petition for Reconsideration of the Sixth Report and Order
(Sixth R&O) in this proceeding. In particular, the Commission makes
minor revisions to the rule that protects the input signals of FM
translator and FM booster stations from interference by low power FM
(``LPFM'') stations. The Commission also denied the remaining four
petitions for reconsideration for the reasons set forth below. These
actions will provide clarification of the LPFM rules for entities
preparing for the upcoming LPFM filing window.
DATES: Effective December 12, 2013.
FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Sixth
Order on Reconsideration (Sixth OOR) in MM Docket No. 99-25, FCC 13-
134, adopted September 30, 2013, and released October 17, 2013. The
full text of the is document is available for inspection and copying
during regular business hours in the FCC Reference Center, 445 12th
Street SW., Room CY-A257, Portals II, Washington, DC 20554, and may
also be purchased from the Commission's copy contractor, BCPI, Inc.,
Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554.
Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160. This document is available in
alternative formats (computer diskette, large print, audio record, and
Braille). Persons with disabilities who need documents in these formats
may contact the FCC by email: [email protected] or phone: 202-418-0530 or
TTY: 202-418-0432.
Paperwork Reduction Act Analysis. The Sixth OOR does not adopt any
new or revised information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 (44 U.S.C.
3501-3520). In addition, therefore, it does not contain any new or
modified ``information collection burden for small business concerns
with fewer than 25 employees,'' pursuant to the Small Business
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C.
3506(c)(4).
Report to Congress. The Commission will send a copy of the Sixth
OOR to Congress and the Government Accountability Office pursuant to
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
Summary of Sixth Order on Reconsideration
I. Background
1. On March 19, 2012, the Commission released a Fourth Further
Notice of Proposed Rulemaking (Fourth FNPRM), seeking comment on
proposals to amend the Commission's rules to implement provisions of
the Local Community Radio Act of 2010 (``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.
2. On December 4, 2012, the Commission released the Sixth R&O, in
which it adopted numerous measures to complete implementation of the
LCRA, service and licensing rules to promote the LCRA's aforementioned
goals, and technical rules to ensure the efficient use of the radio
broadcast spectrum. The five Petitions were filed following Federal
Register publication of the Sixth R&O, 78 FR 2077 (Jan. 9, 2013). These
Petitions address only a narrow range of rule changes--LPFM eligibility
requirements, whether to identify and award construction permits to
``secondary'' grantees, protection standards for FM translator input
signals, protection requirements toward LPFM stations operating with
reduced power, and periodic announcements by LPFM stations regarding
potential interference. One petition addresses the decisions to
eliminate the LP10 service class (that is, the class of LPFM stations
that is authorized to operate at a power level of up to 10 Watts) and
decline adoption of an LP50 service class (that is, a class that would
be authorized to operate at a power level of up to 50 Watts).
II. Discussion
3. The Petitions, for the most part, either repeat arguments that
were considered and rejected in the Sixth R&O, raise issues that are
beyond the scope of the Sixth R&O, or rely on arguments that were not
previously presented. While reconsideration in these circumstances is
generally unwarranted, we believe it is in the public interest to
discuss certain of the petitioners' arguments and our analysis of the
issues raised, particularly to provide guidance to potential applicants
in the upcoming LPFM filing window.
A. Eligibility and Attribution Issues
4. LifeTalk Radio, Inc. (``LTR'') seeks to ``clarify or amend''
Sec. 73.858 of the Commission's rules (``Attribution of LPFM station
interests''). Pursuant to Sec. 73.858(b), a broadcast interest of a
national organization will not be attributed to the local chapter if
the local chapter ``is separately incorporated and has a distinct local
presence and mission.'' Determining attribution is relevant because
Sec. 73.860(a) of our rules generally prohibits LPFM licensees from
holding attributable interests in other broadcast stations. LTR
believes these two provisions, together, will prevent an unincorporated
local chapter of a larger organization from owning an LPFM
[[Page 67311]]
station if the larger parent organization has other broadcast
interests. LTR argues this result is inconsistent with Montmorenci
United Methodist Church and urges the Commission to amend its rules to
conform to Montmorenci.
5. Prometheus opposes LTR's request, noting that the LTR Petition
is not appropriate because the Commission did not amend Sec. 73.858(b)
in the Sixth R&O. Moreover, Prometheus argues Montmorenci does not
conflict with Sec. 73.858(b) because that case involved a national
organization and local chapter that were both unincorporated, and thus
posed an attribution issue outside the scope of the rule.
6. We deny LTR's request to amend Sec. 73.858(b). The Fourth FNPRM
did not seek comment regarding changes to Sec. 73.858(b). Thus, LTR's
proposed amendment is beyond the scope of matters that can be addressed
on reconsideration of the Sixth R&O. Moreover, on August 23, 2013, the
Commission released a Memorandum Opinion and Order that, inter alia,
concluded that the Bureau's grant of the Montmorenci United Methodist
Church application was inconsistent with the language of Sec.
73.858(b) of our rules and accordingly rescinded that grant, an action
that eliminates any arguable inconsistency between this precedent and
the Rule.
7. In addition, LTR, Michael Couzens and Alan Korn (collectively
``C/K'') seek to expand the ``new entrant'' comparative criterion. LTR
argues our current rules are inconsistent because the broadcast
interests of a national organization are attributable for purposes of
awarding a point under the new entrant selection criterion, but not
attributable in certain cases for satisfying the cross-ownership
eligibility restrictions set forth at Sec. 73.860. LTR contends that
local LPFM applicants that have separate and local purposes
distinguishable from the larger organization also should qualify for a
new entrant point. Similarly, C/K argue that a student-run station that
is part of a larger multi-campus system should also qualify for a new
entrant point if the applicant can show it is functionally independent
of the larger entity in its day-to-day decision making.
8. A number of parties oppose awarding the new entrant point to
local chapters of national organizations. They contend that the new
entrant point appropriately reflects the Commission's intent to
increase ownership diversity. We agree. The new entrant comparative
criterion and the exceptions to the general prohibition on cross-
ownership, as set forth at Sec. 73.860(b)-(d), serve different
purposes. As discussed in the Sixth R&O, the new entrant point for LPFM
applicants was adopted to encourage genuinely new entrants to
broadcasting and to foster a more diverse range of community voices. In
contrast, the cross-ownership exceptions reasonably expand community
radio licensing opportunities for a narrow group of applicant entities
consistent with the LPFM service's core localism goal. We reject the
view that there is any ``inconsistency'' between these different
comparative and eligibility rules. Neither LTR nor C/K provides any new
information or arguments to justify reconsideration.
9. C/K also seek clarification that the acquisition of a
permissible attributable interest during the pendency of an LPFM
application would result in the loss of the new entrant credit and
would constitute a reportable event. Our rules require applicants to
continuously maintain the ``accuracy and completeness of information
furnished in a pending application.'' Previously, in the NCE context,
this included all changes that negatively affected the applicant's
claimed points. We believe this same policy should apply to LPFM
applicants. Thus, we clarify that an LPFM applicant may lose claimed
points, such as the new entrant credit, as a result of changes made
after the application filing. In addition, changes affecting an LPFM
applicant could render the applicant ineligible for the proposed LPFM
authorization.
10. Additionally, C/K seek clarification that local organizations
must not only certify their pre-existing local status pursuant to Sec.
73.872(b), but must also provide corroborative documentation of pre-
existing local status. No clarification is necessary. Our revised Form
318 states: ``Nonprofit educations organizations claiming a point for
[established community presence] must submit evidence of their
qualifications as an exhibit to their application forms.''
11. Further, C/K seek clarification that applicants that merge and
aggregate their points to prevail over other mutually exclusive
applicants will be placed on public notice as the tentative selectee,
allowing interested parties an opportunity to file petitions to deny.
Again, no clarification is necessary. Section 73.870(d) of the
Commission's rules already requires the Commission to ``issue a Public
Notice of the acceptance for filing of all applications tentatively
selected pursuant to the procedures for mutually exclusive LPFM
applications set forth at Sec. 73.872. Petitions to deny such
applications may be filed within 30 days of such public notice and in
accordance with the procedures set forth at Sec. 73.3584.''
B. ``Secondary'' Grantees
12. C/K also argue that, once the Commission has awarded a
construction permit to a tentative selectee in a mutually exclusive
group, ``to yield as many authorizations as possible,'' the Commission
should review the other applicants in the mutually exclusive group for
``secondary'' grantees. No other party commented on this proposal. We
do not believe awarding additional construction permits in this manner
is appropriate. Our current policies already provide LPFM applicants
numerous opportunities in the settlement process to resolve mutual
exclusivities. As noted in the Sixth R&O, the Commission will continue
to accept both partial and global technical settlements in the upcoming
LPFM window. We will also permit mutually exclusive applicants to move
to any available channel during the period specified by Sec.
73.872(e). We believe these procedures provide substantial flexibility
to applicants to resolve conflicts and obtain multiple grants from
mutually exclusive groups.
13. Further, in the NCE context, the Commission noted that although
it might be beneficial to select more than one applicant in a mutually
exclusive application group, doing so could potentially result in the
selection of an inferior applicant as a secondary selectee. The
Commission determined that the better approach would be to dismiss all
non-selected applicants in a group, and permit them to file again in
the next filing window, even if a particular application is not
mutually exclusive with the primary selectee of the group. We believe
the same reasoning and process apply in this context.
C. Protection of FM Translator and FM Booster Station Input Signals
14. Section 6 of the LCRA requires the Commission to ``modify its
rules to address the potential for predicted interference to FM
translator input signals'' based on independently conducted
experimental measurements. This section is intended to protect the off-
air input signal of an FM translator station. To implement this
requirement, the Commission amended Sec. 73.827 to prohibit the
location of an LPFM station at certain locations--within the
``potential interference area''--near an FM translator station that
receives an off-air input signal on a third-adjacent channel to such
LPFM station. This protection requirement applies to input signals from
both ``full-service FM
[[Page 67312]]
stations and FM translator stations.'' However, Sec. 73.827(a) exempts
an LPFM applicant from these siting restrictions if the applicant can
demonstrate that no actual interference will occur. Moreover, to assist
LPFM applicants in complying with the revised rule, the Commission
strongly recommended that FM translator licensees update the
information concerning their input signals if they have changed that
information since their last such notification.
1. Protection of FM Translators That Use Other FM Translators for Input
Signals
15. Prometheus contends that there is a discrepancy between revised
rule Sec. 73.827(a) and the associated discussion in the Sixth R&O. As
noted above, the latter concluded ``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.'' In contrast, Sec. 73.827(a) protects the input signal only
when ``the LPFM application proposes to operate on a third-adjacent
channel to the primary station.'' The National Translator Association
(``NTA''), Educational Media Foundation (``EMF''), and National Public
Radio, Inc. (``NPR'') all agree with Prometheus's observation that the
rule appears to inadvertently exclude input signals from FM
translators.
16. We agree that the text of Sec. 73.827(a) does not fully and
accurately reflect the Commission's conclusion that section 6 requires
the protection of all signals being delivered off-air on third adjacent
channels. We therefore revise the first sentence of the rule to read
(with the new language in italics and the deleted text in
strikethrough): ``This subsection applies when an LPFM application
proposes to operate near an FM translator station, the FM translator
station is receiving its input primary station signal off-air (either
directly from the primary station or from a translator station) and the
LPFM application proposes to operate on a third-adjacent channel to the
primary station station delivering an input signal to the translator
station.'' To maintain consistency, we will also revise the third
sentence of the rule to read (with the new language in italics and the
deleted text in strikethrough): 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 input signal, the LPFM
station will not be authorized unless it is located at least 10
kilometers from the FM translator station.
2. Methodology for Determining Predicted Interference to Input Signals
17. Prometheus also seeks revision of Sec. 73.827(a)(1)'s
requirement that an LPFM applicant proposing to operate near an FM
translator station demonstrate ``that no actual interference will occur
due to an undesired (LPFM) to desired (primary station) ratio below 34
dB at all locations.'' Prometheus argues it is unnecessary and
unreasonable to make this determination ``at all locations'' and asks
the Commission to modify Sec. 73.827(a)(1) to require only that an
applicant specifying a transmitter location within the defined
potential interference area establish that the signal strength ratio is
below 34 dB ``at the translator receive antenna'' rather than ``at all
locations.''
18. NPR argues that Prometheus improperly relies on arguments not
previously presented, and therefore the Commission should dismiss this
portion of Prometheus's Petition. Substantively, NPR argues that
section 6 of the LCRA does not permit the Commission to accept and
process an LPFM application based on a showing limited to the
translator receive antenna location itself. On the other hand, NTA
agrees ``with Prometheus . . . that the term `all locations' should
refer to a single point which would be the receiver's input feeding the
translator.''
19. Prometheus counters that NPR misunderstands its request, which
seeks clarification as to the required calculations for a good-faith
demonstration when an LPFM applicant is within the ``potential
interference zone.'' It also notes that ``the physical reality'' is
that ``the function of an in-band translator input depends only on the
signal strength at its receive antenna, and not elsewhere.'' Prometheus
argues it is a great burden to comply with the ``at all locations''
requirement, which it states will not technically improve the FM
translator service.
20. As an initial matter, we agree with NPR that Prometheus raises
a new argument on reconsideration. However, for the reasons set forth
below, we believe it is in the public interest to consider the merits
of the argument. 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 Mitre Report].'' In the Fourth FNPRM the Commission
``propose[d], as indicated in section 2.7 of the [Mitre] Report, that
applicants may show that the ratio of [signal strengths] is below 34 dB
at all locations'' to establish lack of predicted interference.
Although adopted in the Sixth R&O, the ``at all locations'' requirement
does not accurately describe the Mitre Report methodology, which
measured the effect of third-adjacent channel signals on a translator's
receive antenna ``at the translator input.'' Thus, contrary to NPR's
claim, applying this interference standard at only one location is
fully consistent with and, in fact, more faithfully implements section
6 of the LCRA because Congress determined that the predicted
interference to FM translator input signals on third-adjacent channels
should be consistent with the Mitre Report, which in fact measured the
effect of third-adjacent channel signals on a translator's receive
antenna at the translator input. We agree with Prometheus that it is
neither sensible nor necessary to require LPFM applicants to
demonstrate no actual interference will occur ``at all locations''
because the only technically relevant point to measure for the purpose
of ``address[ing] the potential for predicted interference to FM
translator input signals on third-adjacent channels,'' is the location
of the translator's receive antenna. In a case where a third-adjacent
channel LPFM station is causing interference to a translator input
signal at other locations, the LPFM station is subject, of course, to
Sec. 73.810 complaint and remediation provisions. Accordingly, we will
grant reconsideration on this issue.
21. For the same reasons as set forth above, we also find that the
use of the term ``primary station'' in Sec. 73.827(a)(1) erroneously
excludes input signals from other FM translators. Therefore, we
substitute ``station delivering signal to translator station'' for
``primary station.'' We will revise Sec. 73.827(a)(1) to read (with
the new language in italics and deleted language in strikethrough): ``.
. . demonstrates that no actual interference will occur due to an
undesired (LPFM) to desired (primary station delivering signal to
translator station) ratio below 34 dB at all locations at such
translator station's receive antenna.'' We recognize that this rule may
place a burden on LPFM applicants because the Commission does not
require licensees to submit or maintain separate receive antenna
location data. Accordingly, unless a translator licensee has specified
its specific receive antenna location in CDBS, LPFM applicants
specifying transmitter locations within the defined potential
interference area may assume that the translator receive antenna and
[[Page 67313]]
its associated transmit antenna are co-located.
3. Database Records Regarding FM Translator Signal Delivery Methods and
Input Signal Designations
22. To add more certainty to the LPFM application process,
Prometheus requests that the Commission require translator licensees to
update their records with the Commission regarding their input signal
data and that it take further measures to improve the accuracy of that
data available to applicants prior to the opening of the LPFM window.
Prometheus states it has conducted a review of the Commission's CDBS
records regarding translator input signals and has found that they
contain contradictory, incomplete, or missing data. In cases where the
data may be inaccurate, missing or disputed, Prometheus seeks guidance
on submitting a sufficient ``no interference'' showing.
23. NPR opposes Prometheus's request to require all translator
licensees to update their records with the Commission. NPR points out
that the Commission previously declined this Prometheus request,
choosing instead to encourage licensees to voluntarily review and
update this information. On the other hand, NTA and EMF agree there
should be some simple path for LPFM applicants to determine the
identity of the stations delivering signals to translator stations. NTA
suggests that we modify CDBS to allow translators to identify
translator receiver inputs, frequency, sources and locations. EMF also
contends that protection of translator input signals should apply to
the input signals specified in applications and construction permits
for new translators as well as operational stations. Prometheus agrees
with EMF that input signals specified by prior-filed translator
applications should be protected by later-filed LPFM applications.
24. Our CDBS database collects all of the information specified by
NTA, with the exception of the receive antenna location (i.e., input
signal, frequency, source, and location). As indicated in the Sixth
R&O, we assume the receive antenna and the transmit antenna are
normally co-located, thus identifying the location of transmit antennas
in CDBS will suffice in identifying the receive antenna. No one has
disputed the validity of this assumption and therefore we reject NTA's
proposal to expand information burden collections (by requiring the
fling of thousands of notifications identifying the locations of
receive antennas) on translator licensees and applicants. With respect
to the accuracy of the CDBS data, CDBS is a database that compiles
information received by the Commission from thousands of licensees and
applicants. As a result, at any given time there is some conflicting
and missing translator data in CDBS, mainly data concerning translator
input delivery methods. We remind translator licensees that ``[c]hanges
in the primary FM station being retransmitted must be submitted to the
FCC in writing,'' and that timely notification is required to qualify
for the protections provided by Sec. 73.827 with regard to LPFM
applications filed in the upcoming window. We also continue to
encourage FM translator licensees to review and update the Commission
as to their operations, as necessary, so that staff may revise CDBS
accordingly. In cases where LPFM applicants are unable to obtain data
regarding signal delivery method, they should assume for evidentiary
and exhibit purposes that the signal delivery method is off-air. We
also direct the Media Bureau to issue a public notice providing
guidance to potential LPFM applicants by identifying the various CDBS
data fields that may contain relevant information.
4. Limitation on Input Signal Protection Obligations by LPFM Applicants
25. Section 73.827(b) currently provides, ``[a]n authorized LPFM
station will not be permitted 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.'' Prometheus seeks revision of this rule to require that an
input signal be in use ``prior to the release of the public notice
announcing an LPFM application window period,'' rather than ``at the
time the LPFM station is authorized.'' Prometheus also seeks
clarification that the term ``in use'' in Sec. 73.827(b) means ``in
use as the input to that translator.''
26. NPR states that this attempted reconsideration of Sec.
73.827(b) should be dismissed because Prometheus did not offer any
arguments previously as to why the Commission should so limit its
proposed protection of FM translator input signals. NPR also argues
that section 6 of the LCRA requires the Commission to address the
potential for predicted interference to an FM translator station's
input signal, without limitations based on filing dates.
27. In response to Prometheus's request, NTA suggests revision of
Sec. 73.827(b) to allow FM translator licensees to change input
sources as needed, at any time, and allow affected LPFM applicants to
file, where necessary, displacement modification applications. Further,
while NTA suggests that the Media Bureau protect changes to signal
inputs up to the point the Bureau establishes a translator application
filing freeze prior to the LPFM filing window, NTA also appears to
acknowledge that LPFM window applicants will not be required to protect
translator input signal changes made after the window. Prometheus
agrees that while translators ``may change their input signals as
needed, these newly changed signals cannot be considered primary to
previously filed LPFM applications . . . [which] would violate the co-
equal status of LPFM stations and translators.''
28. As an initial matter, while NPR is correct that Prometheus
could have raised this issue earlier, for the reason discussed below,
we believe it is in the public interest to consider the merits of the
argument. Under the Commission's ``cut-off'' rules as between LPFM and
FM translator filings, a prior-filed application in one service
generally ``cuts off'' a subsequently-filed application in the other
service. However, Sec. 73.807(c) provides a different cut-off rule
with regard to LPFM window filings. Only FM translator authorizations
and applications filed prior to the release of the public notice
announcing the LPFM window are cut-off from window-filed applications.
This requirement provides stability and certainty to LPFM applicants
regarding the LPFM applicants' protection responsibilities when they
are searching for available frequencies. To ensure continued stability
and certainty, we will apply this same policy to input signals.
Moreover, we find that this cut-off rule is the best way to give effect
to the LCRA section 5 requirement that the two services remain ``equal
in status.'' Thus, an application for an LPFM station must protect an
input signal that is in use or proposed in an application filed with
the Commission prior to the release of the public notice announcing the
dates for the LPFM filing window. Contrary to NPR's assertion, this
policy is consistent with the plain language of section 6 of the LCRA's
requirement that the Commission address the potential for predicted
interference to FM translator input signals; section 6 does not
restrict the Commission's authority to establish cut-off rights for
both LPFM and FM translator stations regarding translator input
signals.
29. We also provide the following clarifications with regard to
Sec. 73.827(b). We agree with Prometheus that the phrase ``in use''
limits the applicability
[[Page 67314]]
of the rule to the particular input signal that was in use as the input
signal to the protected FM translator station as of the release date of
the LPFM window public notice. Second, as noted by Prometheus, the text
of the rule refers initially to ``an FM translator or FM booster'' but
later only to ``the FM booster.'' We agree that the rule should list
both types of stations and that the rule should be amended accordingly.
For these reasons, we will revise Sec. 73.827(b) to read (with the new
language in italics and deleted language in strikethrough): ``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 translator or FM
booster station's input signal, provided that the same input signal was
in use or proposed in an application filed with the Commission at the
time the LPFM station was authorized prior to the release of the Public
Notice announcing the dates for an LPFM application filing window and
has been continuously in use or proposed since that time.''
30. We will not adopt NTA's suggestion to extend protection
requirements to input signal changes made and applications filed on or
after June 17, 2013, the date of the release of the public notice
announcing the LPFM window, and prior to the LPFM window. Translator
licensees may change their input signals as needed during this period.
However, pursuant to section 5(c) of the LCRA's mandate for co-equal
status, these changes will cease to receive cut-off protection as of
the release of the LPFM window Public Notice.
D. Protection Requirements Toward Certain Short-Spaced LPFM Stations
31. Among other things, the Sixth R&O implemented section
3(b)(2)(A) of the LCRA, which permits LPFM stations to request waiver
of the second-adjacent channel distance separation requirements with
respect to any authorized radio service. The Commission may grant a
waiver if a waiver applicant demonstrates that its proposed operations
``will not result in interference to any authorized radio service.''
One method in which waiver applicants can propose to eliminate
interference is through the use of directional antennas. The Sixth R&O
made clear the protection obligations of subsequently filed FM
translator applications toward LPFM stations using directional antennas
to ensure interference-free operations. Specifically, the Commission
decided ``[t]o simplify matters and provide clear guidance to FM
translator applicants [by requiring] FM translator modification
applications and applications for new FM translators to treat . . .
LPFM stations [operating with directional antennas] as operating with
non-directional antennas at their authorized power.''
32. Prometheus Radio Project (``Prometheus'') seeks clarification
as to whether translator applicants' obligations to protect LPFM
stations using directional antennas will also apply to future LPFM new
station and modification applications. Specifically, Prometheus seeks
clarification as to whether future LPFM applications or modifications
will have to also treat LPFM stations using directional antennas as
operating with non-directional antennas at their authorized power. NTA
suggests the Commission treat both FM translators and LPFM stations
based on their actual operating (as opposed to their authorized) power
and antenna patterns. We expect minimal use of directional antennas and
therefore decline to adopt this more complex licensing standard. As
noted in the Sixth R&O, the second-adjacent channel interfering contour
for LPFM stations will generally encompass only the area in the
immediate vicinity of an LPFM station's transmitter site. Thus,
directional antennas will have little value in limiting or eliminating
the area where interference would be predicted to occur. For
consistency and simplicity, we believe that it is appropriate that both
FM translator and LPFM applicants should treat LPFM stations that are
using directional antennas as operating non-directionally at their
authorized power.
E. Periodic Announcements by Section 7(1) and Section 7(3) LPFM
Stations
33. In the Sixth R&O the Commission also addressed ambiguous
language in section 7 of the LCRA and determined that Section 7 creates
two different LPFM interference protection and remediation regimes, one
for LPFM stations that would be short-spaced under the third-adjacent
channel spacing requirements in place when the LCRA was enacted
(``Section 7(1) Stations'') and one for LPFM stations that would be
fully spaced under those requirements (``Section 7(3) Stations'').
Thereafter, the Commission determined that the LCRA required Section
7(3) Stations, but not Section 7(1) Stations, to broadcast periodic
announcements that alert listeners to the potential for interference
and codified this requirement in Sec. 73.810(b)(2) of our rules.
34. REC Networks (``REC'') argues Congress did not intend to create
two separate regimes for periodic announcements. However, it then
maintains that the periodic announcement requirement should apply
``only . . . to LPFM stations that do not meet the minimum spacing
requirements to third-adjacent channel FM stations.'' In other words,
contrary to its own interpretation that the LCRA established one regime
for all third adjacent channel LPFM stations, REC would require
periodic announcements for Section 7(1) Stations and eliminate the
requirement for Section 7(3) Stations. REC, which made a similar
argument previously, relies on prior legislative versions of the LCRA
to support its interpretation. We reject this argument as internally
inconsistent.
35. We also reject REC's interpretation for the reasons set forth
in the Sixth R&O. The Commission is required to implement and interpret
the legislation as enacted, which REC acknowledges included the
addition of section 7(1). In section 7(2), Congress required that for a
period of one year after ``a new low-power FM station is constructed on
a third adjacent channel, such low-power FM station shall be required
to broadcast periodic announcements . . . .'' In section 7(1), in
contrast, Congress applied a specific interference protection regime to
``those low-power FM stations licensed at locations that do not satisfy
third-adjacent channel spacing requirements'' under the applicable
Commission rule. We recognize that the broad phrasing in section 7(3)
is ambiguous, since it could be read to apply to all LPFM stations, not
just those that are short-spaced. The Commission concluded based on its
analysis of the text, structure, and purpose of the statute that it is
more reasonable to construe the statute as reflecting two different
LPFM interference protection and remediation regimes for short-spaced
and non-short spaced third adjacent channel stations and to apply
section 7(2) only to the latter group of stations. As the Commission
stated previously, if Congress had wished to apply the periodic
announcements requirement to Section 7(1) Stations, it could have done
so explicitly in the LCRA. Instead, Congress expressly required the
wholesale adoption of the well-established, comprehensive and strict
Sec. 74.1203 FM translator non-interference regime for Section 7(1)
Stations. That regime does not include periodic announcements. As NPR
notes in its Comments, REC presented similar arguments, which the
Commission
[[Page 67315]]
rejected in the Sixth R&O. REC presents no new arguments or evidence in
its Petition that would lead us to change that conclusion. Accordingly,
we deny the REC Petition.
36. We note that REC attempts to provide further evidence that the
Commission misinterpreted Section 7 of the LCRA by arguing that an
LPFM's periodic announcement requirement under Sec. 73.810(b)(2)
includes no geographic limitation as to what could be a ``potentially
affected'' station. Our rule regarding periodic announcements requires
LPFM stations to alert listeners of a potentially affected third-
adjacent channel station of the potential for interference.
Specifically, ``[f]or a period of one year from the date of licensing
of a new LPFM station that is constructed on a third-adjacent channel .
. . such LPFM station shall broadcast periodic announcements. The
announcements shall, at 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.'' However, neither the LCRA nor the Sixth R&O address which
stations would be considered the ``potentially affected'' stations that
the LPFM station must include in its periodic announcements.
Consequently, according to REC, the ``periodic announcement could
include hundreds if not thousands of potential interfering stations.''
37. As discussed above, the LCRA requires periodic announcements
for Section 7(3) Stations, and not for Section 7(1) Stations. We
believe it will be useful to provide some guidance to help these
stations broadcast periodic announcements as directed by the LCRA.
Accordingly, for purposes of Sec. 73.810(b)(2), we will consider
``potentially affected'' stations to be the two fully spaced third-
adjacent channel stations operating above and below the frequency of
the LPFM station whose transmitter sites are closest to that of the
LPFM station, unless any such third adjacent channel station's
transmitter site is more than 100 km from the LPFM station transmitter
site. We believe that this standard reasonably defines the universe of
``potentially affected'' stations for listeners within a fully-spaced
LPFM station's service contour, while also being relatively easy to
administer. Unlike short-spaced stations, which are subject to the more
stringent Section 7(1) requirements, the potential for interference
from fully-spaced LPFM stations is unlikely and when it does occur it
will be both localized and limited. In this regard, the Commission has
consistently held that third-adjacent channel interference is
restricted to the immediate vicinity of the LPFM transmitter site. This
standard is reasonably designed to identify in a simple and straight
forward manner those third-adjacent channel stations that are most
likely to have listeners near to the LPFM transmitter site.
F. Elimination of LP10 Class of Service
38. The Sixth R&O eliminated the LP10 class of service after
determining licensing LP10 stations would be an inefficient utilization
of spectrum. The Commission noted that LP10 stations could only offer
more limited service and would be more susceptible to interference than
LP100 stations. Given the increasingly crowded nature of the FM band,
the Commission found it appropriate to take this into account. The
Commission was also concerned that the coverage area of LP10 stations
would be too small for the stations to be economically viable. Faced
with the loss of the LP10 class, some commenters proposed the creation
of an LP50 class, which would allow licensees to transmit at any
Effective Radiated Power (``ERP'') from 1 to 50 Watts. The Commission
declined to create an LP50 class, noting that the Fourth FNPRM only
sought comment on whether to eliminate the LP10 class, retain the LP100
class, and/or introduce a new LP250 class. Accordingly, the Commission
determined that a decision to introduce a new LP50 class could not have
been reasonably anticipated by all interested parties, and thus, was
outside the scope of this proceeding.
39. Let the Cities In!! (``LTCI''), along with a number of other
parties, seeks reconsideration of the decision to eliminate the LP10
class of service and the decision not to allow another lower class of
LPFM service, such as an LP50 class of service. In LTCI's view, in
order to maximize the number of new LPFM facilities, the Commission
should authorize stations operating at less than 50 Watts in ``urban
core'' areas, those in the top 100 Arbitron Markets. NPR states LTCI's
Petition should be denied because LTCI relies on the same arguments
that the Commission found insufficient to retain the LP10 class of
service, while National Association of Broadcasters similarly argues
the Commission has addressed and disposed of LTCI's concerns
previously.
40. Specifically, LTCI argues that elimination of the LP10 class
violates the Administrative Procedure Act (``APA'') because the
Commission offered no explanation as to why it proposed to eliminate
that service. This claim is without legal basis. Section 553(b) and (c)
of the APA require the Commission to give public notice of a proposed
rulemaking that includes ``either the terms or substance of the
proposed rule or a description of the subjects and issues involved''
and to give interested parties an opportunity to submit comments on the
proposal. Notice is sufficient where the description of the subjects
and issues involved affords interested parties a reasonable opportunity
to participate in the proceeding. The Fourth FNPRM clearly and
explicitly sought ``comment on whether to eliminate the LP10 class of
service.'' In response, numerous parties provided comments for and
against retaining the LP10 class. It is evident that all interested
parties had an opportunity to submit comments on the proposal to
eliminate the LP10 class of service and that APA requirements have been
satisfied.
41. Substantively, LTCI maintains the Commission's technical and
financial concerns do not justify the elimination of the LP10 service,
which it believes could provide community radio service in ``urban
core'' areas in which spectrum is very limited. LTCI argues the
Commission erred in finding LP10 stations would not be an efficient use
of spectrum. LTCI argues LP10 stations ``can be `dense packed' on the
same channel in a neighborhood'' to increase efficiency and the use of
directional antennas can also increase the efficiency of an LP10
service class. LTCI also argues an LP10 service is technically viable
since the Commission licenses 10 Watt translator stations. LTCI further
argues the Commission ``has grossly overestimated the level of fund
raising needed to sustain an LP10 station financially.'' Essentially,
it appears LTCI believes the Commission's decision to eliminate the
LP10 service is arbitrary and capricious.
42. Even though, due to spectrum congestion, some areas may present
limited or no opportunities for an LP100 service, the elimination of
the LP10 service is reasonable and supported by the record. The
Commission must balance the various statutory objectives of the LCRA,
and based on its expertise as well as the record in response to its
proposed elimination of the LP10 service, the Commission reasonably
concluded that LP10 stations would be an inefficient use of available
spectrum.
43. First, the record supports the Commission's conclusion that the
LP10 service would be susceptible to interference. In addition to the
crowded nature of the FM band, other external forces can also affect
the viability of the LP10 signal, such as natural and man-
[[Page 67316]]
made structures that lie between the transmitter and the receiver.
These obstructions can affect a signal in various ways such as by
attenuating the signal so that the actual signal received is weaker
than that predicted in the absence of any such obstructions or by
creating multipath interference, which occurs when a signal bounces off
structures and the out-of-phase main and reflected signals arrive at
the receiver. All of these challenges are particularly significant for
the mobile receivers that account for most radio listening. Indeed, as
discussed in the Sixth R&O, the Commission previously discontinued a
class of service because of interference concerns: a similar concern
regarding the crowded nature of the FM band led the Commission to cease
accepting applications for Class D FM stations and require Class D FM
stations to either upgrade to Class A facilities or migrate from the
reserved to the non-reserved portion of the FM band or to Channel 200,
where they would be considered secondary operations.
44. Additionally, for the reasons stated above, we reject LTCI's
claim that the use of directional antennas will increase the efficiency
of the LP10 service. Moreover, LTCI's argument about ``dense packed''
co-channel LPFMs in a neighborhood, where ``[e]ach receiver's `capture
effect' selects the strongest station for each listener,'' appears to
involve a new model of licensing that would require rule changes that
are beyond the scope of this proceeding.
45. We also find unpersuasive LTCI's argument that LP10 service
should be allowed based on its alleged similarities to 10 Watt
translator service. Translator stations generally do not originate
programming and do not require a staff to operate. In contrast, LPFM
stations are authorized to originate programming and require staff to
operate and maintain. Moreover, a 10 Watt translator can place a 60 dBu
strength signal 12 to 15 kilometers from its transmitter site, while
the same signal might extend only 3 kilometers from an LP10 station's
transmitter site because maximum power and height restrictions in the
LP10 service (10 Watts at 30 meters HAAT) substantially restrict an
LP10 station's coverage area. In contrast, certain 10 Watt FM
translators can operate with no antenna height restrictions. We
continue to maintain that these differences--the limited coverage area,
the technical and environmental challenges, and the resources required
to maintain an LPFM station--render an LP10 service difficult to
sustain economically.
46. The record also supports our conclusion that an LP10 service
would be difficult to sustain economically. The Commission noted that a
recent study found even higher-powered LP100 stations have small
service areas and are constrained in ``their ability to gain
listeners'' and ``appeal to potential underwriters.'' LTCI's vague
anecdotal claims about LP10 viability fail to undercut this study,
which was mandated by Congress and represents the most comprehensive
economic analysis of LPFM operations that exists.
47. Accordingly, in light of the significant record and the
Commission's experience on the issue, as well as LTCI's failure to
rebut the record submissions relied upon by the Commission, we find no
merit to LTCI's claims that the Commission's concerns regarding
efficiency and financial stability are insufficient to justify the
elimination of the LP10 service.
48. LTCI also disagrees with the Commission's decision not to
create an LP50 service. The Commission concluded that introducing a new
LP50 class was not a logical outgrowth of this proceeding because it
could not have been reasonably anticipated by interested parties. LTCI
fails to address this notice issue, which we find bars substantive
consideration of the possible LP50 class of service at this time.
49. LTCI also argues that allowing only an LP100 class of service
violates section 5 of the LCRA's mandate that the Commission make
available both LPFM stations and translators based on the needs of the
community, because the decision not to license stations at LP50 or
below will leave urban areas unserved or underserved. In the Fourth
Report and Order, the Commission determined that sections 5(1) and (2)
of the LCRA required both LPFM and translator licenses be available in
as many local communities as possible, according to their needs. The
Commission concluded the primary focus under section 5 was to ensure
that translator licensing procedures did not foreclose or unduly limit
future LPFM licensing. The Commission undertook exhaustive technical
analyses to determine the availability of LPFM licensing opportunities
in over 150 markets and adopted strict translator processing and
dismissal standards to preserve identified LPFM licensing opportunities
in these markets, including ``urban core'' areas. In doing so, as
discussed above, after careful consideration of the record and based on
its experience, the Commission determined that an LP10 or LP50 class of
service is neither a practical or efficient use of the spectrum nor
economically sustainable.
50. Finally, LTCI argues the Commission's decision violates the
Equal Protection component of the Fifth Amendment to the United States
Constitution because the failure to allow an LP10 or LP50 class of
service disproportionally impacts racial and ethnic minorities. LTCI's
general, unsupported allegations are not sufficient to establish an
equal protection violation.
51. We also note the LPFM service grew out of the Commission's
commitment to promote diversity on the radio airwaves. The Commission
stated its ``goal in creating a new LPFM service [was] to create a
class of radio stations designed to serve very localized communities or
underrepresented groups within communities.'' The Commission also
``made clear that we will not compromise the integrity of the FM
spectrum.'' As discussed above, we believe an LP10 service would not
only be an inefficient use of the spectrum, but would also not be
financially viable. We do not believe that such a precarious class of
radio service would fulfill our commitment to add diversity to the
airwaves.
52. For the reasons discussed above, we deny LTCI's Petition to
implement a class of service for LPFM facilities operating at less than
50 Watts in ``urban core'' markets.
III. Procedural matters
A. Regulatory Flexibility Act
53. The Regulatory Flexibility Act of 1980, as amended (``RFA'')
requires that a regulatory flexibility analysis be prepared for
rulemaking proceedings, unless the agency certifies that ``the rule
will not have a significant economic impact on a substantial number of
small entities.'' The RFA generally defines ``small entity'' as having
the same meaning as the terms ``small business,'' ``small
organization,'' and ``small governmental jurisdiction.'' In addition,
the term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act. A small business
concern is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).
54. Final Regulatory Flexibility Certification. As required by the
RFA, as amended, the Commission has prepared this Final Regulatory
Flexibility Certification of the possible impact on small entities of
the Sixth OOR. In this proceeding, the Commission's goal
[[Page 67317]]
remains to implement the LCRA and to promote a more sustainable
community radio service. The Commission addresses five petitions for
reconsideration of the Sixth R&O, which adopted numerous measures to
complete implementation of the LCRA, service and licensing rules to
promote core localism and diversity goals, and technical rules to
ensure the efficient use of the radio broadcast spectrum.
55. Pursuant to the RFA, a Final Regulatory Flexibility Analysis
(``FRFA'') was incorporated into the Sixth R&O. The instant Sixth OOR
makes minor revisions to the rule which protects the input signals of
FM translator and FM booster stations from interference by LPFM
stations. The Sixth OOR makes non-substantive changes to the
Commission's rules by: (1) revising the language in Sec. 73.827(a) to
accurately reflect the Commission's conclusion that the LCRA requires
protection from interference of all input signals being delivered off-
air on third adjacent channels; and (2) revising the language in Sec.
73.827(b) to accurately reflect the applicability of the rule to both
FM translator and FM booster stations and to reflect that the input
signal must be in use prior to the public notice announcing the LPFM
window and the input signal has been continuously in use. These rule
changes are only for the purpose of clarification and meaning, and
therefore, do not create any new rules that by regulating small
entities, impose any burdens or costs of compliance on such entities.
56. Additionally, we revise the language in Sec. 73.827(a)(1) to
require demonstration of no interference at one location instead of
showing no interference at multiple locations, which is consistent with
the requirements of the Local Community Radio Act of 2010 and a showing
at multiple locations would be irrelevant for determining potential
interference. For a number of reasons, there will be no significant
economic impact, if any, on a substantial number of small entities as a
result of this change. First, Sec. 73.827(a)(1) continues to apply
only in cases where an LPFM applicant proposes to operate near the
input signal of an FM translator station. Second, although the rule
generally does not allow an LPFM station to operate near the input
signal of the FM translator station, the LPFM applicant will be allowed
to operate the LPFM station if it is able to comply with any one of the
three provisions in Sec. 73.827(a)(1)-(a)(3). Therefore, Sec.
73.827(a)(1) continues to be one of three methods by which an LPFM
applicant can demonstrate that it should be allowed to operate near the
input signal. Finally, the change to Sec. 73.827(a)(1) will reduce the
burden and costs of the information being collected by the LPFM
applicant because the modified methodology simplifies Sec.
73.827(a)(1) ``no interference'' showing to the calculation of a single
signal strength ratio at a defined location and by eliminating the
requirement to make the calculation at locations which would be
irrelevant for determining potential interference. Furthermore, the
change does not harm the LPFM applicant's competitive ability or raise
costs for the applicant in any way. Also, there is no additional cost
to implement the rule; no additional record keeping requirements; and
no disincentive to the LPFM applicant or station to seek or invest
capital. This change also will have no impact on translator licensees.
For example, the rule change does not harm the translator licensee's
competitive ability or reduce its revenues or raise costs in any way.
Plus, there is no cost to the translator licensee to implement the
rule; no additional record keeping requirements; and no disincentive to
the translator licensee to seek or invest capital for its translator.
57. Therefore, we certify that the requirements of the Sixth OOR
will not have a significant economic impact on a substantial number of
small entities.
58. The Commission will send a copy of the Sixth OOR, including a
copy of this Final Regulatory Flexibility Certification, in a report to
Congress pursuant to the Congressional Review Act, see 5 U.S.C.
801(a)(1)(A). In addition, the Sixth OOR and this certification will be
sent to the Chief Counsel for Advocacy of the Small Business
Administration, and will be published in the Federal Register. See 5
U.S.C. 605(b).
B. Paperwork Reduction Act
59. The Sixth OOR does not contain new or modified information
collection requirements subject to the Paperwork Reduction Act of 1995
(``PRA''), Public Law 104-13. The information collection requirements
were approved under OMB control number 3060-0920. In addition,
therefore, it does not contain any new or modified ``information
collection burden for small business concerns with fewer than 25
employees,'' pursuant to the Small Business Paperwork Relief Act of
2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
IV. Ordering Clauses
60. Accordingly, it is ordered, pursuant to the authority contained
in the Local Community Radio Act of 2010, Public Law 111-371, 124 Stat.
4072 (2011) and the authority contained in sections 1, 2, 4(i), 303,
and 307 of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i),
303, and 307, that the Sixth OOR is adopted, effective 30 days after
date of publication in the Federal Register.
61. It is ordered that, pursuant to the authority contained in
contained the Local Community Radio Act of 2010, Public Law 111-371,
124 Stat. 4072 (2011) and the authority contained in in sections 1, 2,
4(i), 303, and 307 of the Communications Act of 1934, 47 U.S.C. 151,
152, 154(i), 303, and 307, the Commission's rules are hereby amended.
62. It is further ordered that the Petition for Partial
Reconsideration, filed by REC Networks; the Petition for
Reconsideration of Fifth Order on Reconsideration and Sixth R&O, filed
by Michael Couzens and Alan Korn; the Petition for Reconsideration of
Fifth Order on Reconsideration and Sixth R&O, filed by LifeTalk Radio,
Inc.; and the Petition for Reconsideration, filed by Let the Cities
In!! Are denied. It is further ordered that the Petition for
Reconsideration, filed by Prometheus Radio Project, is granted in part
and denied in part, to the extent discussed herein.
63. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of the 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 broadcast services.
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 citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Amend Sec. 73.827 by revising the second and fourth sentence of
paragraph (a) introductory text, paragraph (a)(1), and paragraph (b) to
read as follows:
[[Page 67318]]
Sec. 73.827 Interference to the input signals of FM translator or FM
booster stations.
(a) * * * This subsection applies when an LPFM application proposes
to operate near an FM translator station, the FM translator station is
receiving its input signal off-air (either directly from the primary
station or from a translator station) and the LPFM application proposes
to operate on a third-adjacent channel to the station delivering an
input signal to the 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 input signal, the LPFM
station will not be authorized unless it is located at least 10
kilometers from the FM translator station.
(1) Demonstrates that no actual interference will occur due to an
undesired (LPFM) to desired (station delivering signal to translator
station) ratio below 34 dB at such translator station's receive
antenna.
* * * * *
(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 translator or FM
booster station's input signal, provided that the same input signal was
in use or proposed in an application filed with the Commission prior to
the release of the public notice announcing the dates for an LPFM
application filing window and has been continuously in use or proposed
since that time.
* * * * *
[FR Doc. 2013-27004 Filed 11-8-13; 8:45 am]
BILLING CODE 6712-01-P