[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17874-17878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8012]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-325; DA 10-208]
Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Media Bureau adopts changes in the digital audio
broadcasting (DAB) rules to permit FM radio stations to voluntarily
increase FM hybrid digital effective radiated power (ERP), and
implements interference mitigation and remediation procedures to
resolve promptly allegations of digital interference to authorized
full-service FM analog stations resulting from an FM digital ERP
increase undertaken pursuant to the procedures adopted. The increase in
FM hybrid digital ERP will allow an FM station's digital coverage area
to more closely replicate its licensed analog coverage area, and the
interference mitigation and remediation procedures will make certain
that permissible increases in FM digital ERP do not adversely affect
existing FM analog operations. These rule changes balance the immediate
need for improved FM digital coverage with the continued need to limit
interference from digital FM facilities to FM analog stations.
DATES: Effective May 10, 2010.
FOR FURTHER INFORMATION CONTACT: Peter H. Doyle or Susan N. Crawford,
Media Bureau, Federal Communications Commission, 202-418-2700.
SUPPLEMENTARY INFORMATION: This is a summary of the Media Bureau's
Order in MM Docket No. 99-325, adopted January 27, 2010, and released
January 29, 2010.
Background and Related Documents
In the First Report and Order in MM Docket No. 99-325 (See 67 FR
78193, December 12, 2002), the Commission adopted rules permitting
terrestrial radio stations to begin hybrid digital operations, i.e. the
simultaneous transmission of analog and digital signals, using the in
band-on channel (IBOC) DAB system developed by iBiquity Digital
Corporation (iBiquity). As adopted, the IBOC DAB system permitted an FM
station to operate with digital effective radiated power (ERP) equal to
one percent (1%) of its analog ERP.
In 2007, after over four years of real-world hybrid digital
operation by over 1,100 FM stations, it was apparent to both FM station
licensees and the IBOC system developer that the coverage from an FM
station's hybrid digital facilities was significantly less than the
coverage from its analog facilities, and that this digital coverage
shortfall was a direct result of the very low FM digital ERP permitted.
Several FM station licensees and the IBOC system developer undertook an
experimental field test program to determine the FM digital ERP
required for hybrid digital coverage to replicate analog coverage.
Based on their results, in June 2008, a group of FM stations licensees
and FM transmission equipment manufacturers (Joint Parties) submitted a
technical report of these studies prepared by iBiquity, and asked the
Commission to increase maximum permissible FM digital ERP to ten
percent (10%) of analog ERP for nearly all FM stations. The Joint
Parties also requested that the Commission establish procedures to
[[Page 17875]]
investigate and resolve allegations of harmful interference from
increased power digital operations. Shortly thereafter, National Public
Radio (NPR) submitted a technical study disputing the results of the
iBiquity study and opposing an unqualified increase in FM digital ERP
based on its prediction of substantial interference to authorized
analog FM operations. The Commission sought public comment on issues
and technical studies related to the proposed FM digital ERP increase
by Public Notice DA 08-2340 on October 23, 2008, and Public Notice DA
09-1127 on May 22, 2009 (See 74 FR 27985, June 12, 2009). Over 60
parties filed comments in response to each of these notices. In
November 2009, NPR filed an additional technical study. Based on the
results of that study, NPR reached an agreement with iBiquity on an
increase in FM Digital ERP acceptable to both parties. NPR and iBiquity
jointly filed this agreement, along with their proposal requesting that
the Commission permit a blanket increase in FM Digital ERP to four
percent (4%) of analog ERP for all FM stations except those with
licensed facilities exceeding their allowable class maximum, and permit
FM stations meeting certain criteria to increase digital ERP up to a
maximum of 10% of analog ERP. Additionally, they requested that the
Commission adopt specific procedures and requirements to address and
resolve complaints of interference to licensed full-service analog FM
stations resulting from increased FM digital ERP operation, and asked
that the Commission reserve the right to revisit the FM digital ERP
increase issue should harmful interference be widespread.
Synopsis of Order
Based on seven years of hybrid digital operation by over 1,500 FM
stations that were free of well-documented interference complaints, and
review and analysis of detailed technical studies and voluminous public
comments submitted to the Commission, the Media Bureau concluded that
it is necessary and prudent to increase maximum permissible FM digital
ERP to improve FM digital coverage, and to eliminate regulatory
impediments to FM digital radio's ability to realize its full potential
and deliver its promised benefits. Specifically, this Order takes the
following actions:
1. Increases maximum permissible hybrid FM digital ERP to 10% of
authorized analog power.
2. Permits most FM stations to immediately commence operation with
FM digital ERP equal to 4% of authorized analog power without prior
approval from the Commission.
3. Establishes application procedures for FM stations desiring to
increase FM digital ERP to more than 4% of authorized analog ERP.
4. Establishes interference remediation procedures that require the
Media Bureau to review and resolve each bona fide interference
complaint within 90 days of Bureau receipt of the complaint, and
details required tiered digital ERP reductions for the alleged
interfering digital station should the Bureau fail to act in the
allowable 90-day period.
5. Reserves the right of the Commission to revisit the issue of FM
digital ERP levels if harmful and significant interference results to
existing analog FM operations.
Document Availability
The full text of this document and all related documents are
available for public inspection and copying during regular business
hours in the Commission's Reference Information Center, Portals II, 445
12th Street, SW., Room CY-A257, 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 by
telephone at 1-800-378-3160. Additionally, all documents are available
for download using the Commission's Electronic Comment Filing System at
http://fjallfoss.fcc.gov/ecfs/. 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 Brian Millin at (202) 418-7426 (voice), (202) 418-7365
(TTY), or via e-mail at [email protected].
Final Paperwork Reduction Act Analysis. This Order adopts a new or
revised information collection requirement(s) subject to the Paperwork
Reduction Act of 1995 (``PRA''), Public Law 104-13 (44 U.S.C. 3501-
3520). The requirement will be submitted to the Office of Management
and Budget (OMB) for review under section 3507 of the PRA. The
Commission published a separate notice in the Federal Register inviting
comment on the new or revised information collection requirement(s)
adopted in this document (See 75 FR 10266, March 5, 2010). The
requirement(s) will not go into effect until OMB has approved it and
the Commission has published a notice announcing the effective date of
the information collection requirement(s). 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 find that the modified information collection
requirements must apply fully to small entities (as well as to others)
to ensure compliance with our FM rules, as described in the Report and
Order.
Final Regulatory Flexibility Act Analysis. As required by the
Regulatory Flexibility Act (RFA),\1\ as amended, an Initial Regulatory
Flexibility Analysis (IRFA) was incorporated in the FM Digital Power
Increase and Associated Technical Studies Notice of Proposed Rules in
this proceeding (See 74 FR 27985, June 12, 2009). The Commission sought
written public comment on the proposals in the Notice of Proposed Rules
section, including comment on the IRFA. The Commission received no
comments specifically on the IRFA. This Final Regulatory Flexibility
Analysis (FRFA) conforms to the RFA.
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\1\ See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has
been amended by the Contract With America Advancement Act of 1996,
Pub. L. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA
is the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA).
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Need For and Objectives of the Proposed Rules. The Commission's
current rules limit the maximum permissible digital effective radiated
power for FM stations (FM Digital ERP) to 1 percent of a station's
authorized analog effective radiated power (Analog ERP) (20 decibels
below carrier (-20 dBc)). Operating pursuant to that limitation, many
stations have observed deficiencies in their digital signal coverage as
compared to the coverage of their analog signal, particularly with
regard to portable and indoor listening. A group consisting of 18
broadcasters that operate over 1200 commercial and noncommercial
educational (NCE) FM radio stations throughout the United States and
the 4 largest manufacturers of broadcast transmission equipment,
collectively identifying themselves as the ``Joint Parties,'' filed
with the Commission a request that the maximum permissible FM Digital
ERP be increased to 10 percent of a station's authorized Analog ERP (-
10 dBc) to allow stations to improve their digital coverage (Joint
Parties' Request). Filed concurrently with and in support of the Joint
Parties' Request was a technical report on the proposed increase,
prepared by iBiquity Digital Corporation (``iBiquity''). National
Public Radio
[[Page 17876]]
(NPR) subsequently submitted its Corporation for Public Broadcasting
(CPB)-supported research on FM digital radio coverage and interference
at higher power levels and expressed its opposition to the Joint
Parties' Request, citing interference concerns. The Media Bureau
(Bureau) issued a public notice seeking comment on the Joint Parties'
Request and the iBiquity and NPR technical studies.\2\
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\2\ Comment Sought on Joint Parties Request for FM Digital Power
Increase and Associated Technical Studies, Public Notice, DA 08-2340
(MB rel. Oct. 23, 2008).
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NPR subsequently announced that it would complete additional
studies on FM DAB at higher power levels, which it stated would be
released in September 2009. The Bureau thereafter issued a second
public notice in which it specifically asked whether an increase in
maximum authorized FM digital operating power is warranted, and whether
it should defer consideration of a power increase until completion of
and comment on the further NPR studies.\3\ In response, the majority of
commenters stated that improvements to FM digital coverage are
necessary for the successful consumer adoption of FM DAB technology.
Some commenters stated, however, that the Bureau should delay any
increase until completion of and comment on the further NPR studies, in
order to ensure that higher-powered digital operation does not cause
unacceptable interference to first adjacent analog stations.
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\3\ Comment Sought on Specific Issues Regarding Joint Parties'
Request for FM Digital Power Increase and Associated Technical
Studies, Public Notice, 24 FCC Rcd (MB 2009) (DA 09-1127).
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On November 4, 2009, NPR submitted the results of its additional FM
Digital ERP increase studies, ``Report to the FCC on the Advanced IBOC
Coverage and Compatibility Study'' (AICCS Project Report), to the
Commission. Based on its AICCS Project Report findings, NPR concluded
that a blanket 6 dB increase in FM Digital ERP (from -20 dBc to -14
dBc) was acceptable for most FM stations, and that using a formula it
developed based on its testing, certain FM stations could increase FM
Digital ERP up to a maximum of 10 dB (from -20 dBc to -10 dBc).
Based on the results of the AICCS Project Report and the five years
of generally interference-free FM hybrid digital operations by
approximately 1500 stations, the Order adopts rule changes to allow
eligible authorized FM stations to commence operation of FM digital
facilities with operating power up to -14 dBc upon notice to the
Commission (licensees of a super-powered FM station \4\ must file an
informal request for any increase in the station's FM Digital ERP). The
rule changes will further allow licensees to submit an application to
the Media Bureau, in the form of an informal request, for any increase
in FM Digital ERP beyond 6 dB. Licensees submitting such a request must
use a simplified method set forth in the Order to determine the
proponent station's maximum permissible FM Digital ERP. In situations
where the simplified method is not applicable due to unusual terrain or
other environmental or technical considerations or when it produces
anomalous FM Digital ERP results, the Bureau will accept applications
for FM Digital ERP in excess of -14 dBc. Such an application must be
accompanied by a detailed showing containing a complete explanation of
the prediction methodology used as well as data, maps and sample
calculations. The Media Bureau will evaluate these applications on a
case-by-case basis. Finally, the Order implements interference
mitigation and remediation procedures to resolve promptly allegations
of digital interference to an authorized FM analog facility resulting
from an FM Digital ERP power increase undertaken pursuant to the
procedures adopted in the Order. Specifically, if an analog FM station
is receiving verifiable listener complaints of interference within its
protected contour from FM digital facilities operating with FM Digital
ERP in excess of -20 dBc, the licensee of the affected analog FM
station must contact the licensee of the station operating the FM
digital facilities. Stations are required to work cooperatively to
confirm the instances of interference. If the stations fail to reach
agreement on appropriate interference remediation measures, the
licensee of the affected analog FM station may file an interference
complaint with the Bureau.
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\4\ Super-powered FM stations are stations that have effective
radiated powers in excess of the maximum permitted for their class,
or stations with authorized facilities that produce a reference
contour that exceeds the pertinent maximum class contour distance,
as specified in Sec. 73.211.
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The rule changes adopted in the Order balance the pressing need for
improved FM digital coverage with the continued need to limit
interference to first-adjacent analog stations. The rules will allow an
FM station's digital signal to more closely approximate the coverage of
their analog signal, improving service to listeners, and provide a
detailed mechanism for resolving interference complaints, thus
providing regulatory certainty as this relatively new service continues
to develop.
Summary of Significant Issues Raised by Public Comments in Response
to the IRFA. In the IRFA, the Bureau sought comment regarding how small
entities would be affected if the Commission were to adopt an increase
in maximum digital operating power, whether such adoption could result
in the disparate treatment of small entities with limited financial
and/or technical resources, and any information on alternative
approaches to alleviate any potential burdens on small entities. The
Commission received no comments specifically in response to the IRFA.
Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply. The RFA directs the Commission to
provide a description of and, where feasible, an estimate of the number
of small entities that will be affected by the proposed rules.\5\ The
RFA generally defines the term ``small entity'' as encompassing the
terms ``small business,'' ``small organization,'' and ``small
governmental entity.'' \6\ In addition, the term ``small business'' has
the same meaning as the term ``small business concern'' under the Small
Business Act.\7\ 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).\8\ The proposed rules and policies
potentially will apply to all FM radio broadcasting licensees and
potential licensees.
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\5\ 5 U.S.C. 603(b)(3).
\6\ 5 U.S.C. 601(6).
\7\ 5 U.S.C. 601(3) (incorporating by reference the definition
of ``small business concern'' in the Small Business Act, 15 U.S.C.
632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a
small business applies ``unless an agency, after consultation with
the Office of Advocacy of the Small Business Administration and
after opportunity for public comment, establishes one or more
definitions of such term which are appropriate to the activities of
the agency and publishes such definition(s) in the Federal
Register.''
\8\ 15 U.S.C. 632.
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The SBA defines a radio broadcasting station that has $7 million or
less in annual receipts as a small business.\9\ A radio broadcasting
station is an establishment primarily engaged in broadcasting aural
programs by radio to the public.\10\ Included in this industry are
commercial, religious, educational, and other radio stations.\11\ Radio
broadcasting stations which primarily are engaged in radio broadcasting
and which produce radio program materials
[[Page 17877]]
are similarly included.\12\ According to Commission staff review of the
BIA Financial Network, Inc. Media Access Radio Analyzer Database as of
February 19, 2009, about 10,600 (96 percent) of 11,050 commercial radio
stations in the United States have revenues of $7 million or less. We
note that many radio stations are affiliated with much larger
corporations having much higher revenue. Our estimate, therefore,
likely overstates the number of small entities that might be affected
by our action.
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\9\ See 13 CFR 121.201, NAICS Code 515112 (changed from 513112
in October 2002).
\10\ Id.
\11\ Id.
\12\ Id.
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Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The increase of FM Digital ERP as authorized
in the Order is at the option of the licensee. As noted above, a
broadcast licensee may opt not to increase its power and will thus
incur no costs. To the extent that a licensee chooses to increase its
digital operating power, the associated burdens and costs depend on the
nature of the increase. The rule changes will allow eligible authorized
FM stations to commence operation of FM digital facilities with
operating power up to -14 dBc upon notice to the Commission. The rule
changes will further allow licensees to submit an application to the
Media Bureau, in the form of an informal request, for any increase in
FM Digital ERP beyond 6 dB (or, in the case of super-powered stations,
any increase in its Digital ERP). Licensees submitting such a request
must use a simplified method set forth in the Order to determine the
proponent station's maximum permissible FM Digital ERP. In situations
where the simplified method is not applicable due to unusual terrain or
other environmental or technical considerations or when it produces
anomalous FM Digital ERP results, the Bureau will accept applications
for FM Digital ERP in excess of -14 dBc on a case-by-case basis when
accompanied by a detailed showing containing a complete explanation of
the prediction methodology used as well as data, maps and sample
calculations.
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.\13\
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\13\ 5 U.S.C. 603(b).
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In the Order, we take actions that may affect FM stations that are
small entities by providing them the opportunity to operate at higher
digital power levels. Prior to the instant rule changes, broadcasting
in digital was optional for FM stations, and it will remain optional
for FM stations following the rule changes. As a result, FM radio
stations of all sizes may choose to take no action in response to the
rule changes. In addition, FM radio stations already broadcasting in
digital will not be required to take any action under the new rule if
they continue operation at one percent of their Analog ERP levels, the
maximum FM Digital ERP previously authorized, because the authorized
increases in FM Digital ERP adopted in the Order are voluntary. In
other words, small entities may continue to operate as authorized prior
to today's rule changes if they lack, for instance, the resources to
make investments in equipment necessary to implement a digital power
increase. We acknowledge that an argument could be made by smaller
entities that they could face an unacceptable disproportionate burden
because of a comparative lack of capital and other resources. This
argument suggests that the adopted rule changes places smaller entities
at a resultant disadvantage in relation to larger entities. However, we
reject such an argument because allowing such voluntary upgrades will
ultimately provide: (1) Improved digital coverage; (2) the advancement
of digital radio technology; (3) increased listenership; (4) greater
regulatory certainty; (5) flexibility to licensees in the timing and
scope of the rollout of their digital radio services; and (6) the
facilitation of informed decisions regarding equipment purchases that
will best serve licensees' needs. Allowing licensees to voluntarily
increase their Digital ERP will, in the long run, prove to impose a
lesser burden on smaller entities than alternative measures, such as
making digital power increases compulsory or prohibiting increases
altogether. In light of these considerations, the Bureau has determined
that the rule changes will not have a significant disproportionate
impact on small entities.
Report to Congress. The Commission will send a copy of this Order,
including the FRFA, in a report to be sent to Congress and the
Government Accountability Office pursuant to the SBREFA.\14\
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\14\ See 5 U.S.C. 801(a)(1)(A).
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Legal Basis
The authority for the actions taken in this Order is contained in
sections 1, 4(i), 301, 302, 303, 307, 308, 309, 319, and 324 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301,
302, 303, 307, 308, 309, 319, and 324, as well as the authority
delegated to the Media Bureau by the Commission in the Second Report
and Order (See 72 FR 45670, August 15, 2007) in this proceeding.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
William T. Lake,
Chief, Media Bureau.
Final Rules
0
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. Section 73.404 is amended by revising paragraphs (a) and (e)(5) as
follows:
Sec. 73.404 Interim hybrid IBOC DAB operation.
(a) The licensee of an AM or FM station, or the permittee of a new
AM or FM station which has commenced program test operation pursuant to
Sec. 73.1620, may commence interim hybrid IBOC DAB operation with
digital facilities which conform to the technical specifications
specified for hybrid DAB operation in the First Report and Order in MM
Docket No. 99-325, as revised in the Media Bureau's subsequent Order in
MM Docket No. 99-325. FM stations are permitted to operate with hybrid
digital effective radiated power equal to one percent (-20 decibels
below carrier (dBc)) of authorized analog effective radiated power and
may operate with up to ten percent (-10 dBc) of authorized analog
effective radiated power in accordance with the procedures set forth in
the Media Bureau's Order in MM Docket No. 99-325. An AM or FM station
may transmit IBOC signals during all hours for which the station is
licensed to broadcast.
* * * * *
[[Page 17878]]
(e) * * *
(5) FM digital effective radiated power used and certification that
the FM analog effective radiated power remains as authorized;
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[FR Doc. 2010-8012 Filed 4-7-10; 8:45 am]
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