Creation of a Low Power Radio Service, 39217-39227 [05-13369]
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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules
EPA has no authority to disapprove a
redesignation request for failure to use
VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews
a state recommendation, to use VCS in
place of a state request that otherwise
satisfies the provisions of the CAA.
Thus, the requirements of section 12(d)
of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C.
272 note) do not apply. This rule does
not impose an information collection
burden under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 81
Environmental protection, Air
pollution control, National park,
Wilderness area.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 27, 2005.
George Pavlou,
Acting Regional Administrator, EPA Region
2.
[FR Doc. 05–13344 Filed 7–6–05; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 300
Comments concerning this Site
must be received by August 8, 2005.
DATES:
[FRL–7933–9]
Environmental Protection
Agency.
ACTION: Notice of intent to delete the
Jones Sanitation Superfund Site from
the National Priorities List.
AGENCY:
SUMMARY: The Environmental Protection
Agency (EPA) Region 2 office is issuing
this notice of intent to delete the Jones
Sanitation Superfund Site (Site), located
in Hyde Park, New York from the
National Priorities List (NPL) and
requests public comment on this action.
The NPL is Appendix B of the National
Oil and Hazardous Substances Pollution
Contingency Plan (NCP), 40 CFR part
300, which EPA promulgated pursuant
to section 105 of the Comprehensive
Environmental Response,
Compensation, and Liability Act
(CERCLA) of 1980, as amended. The
EPA and the State of New York, through
the Department of Environmental
Conservation (NYSDEC), have
determined that potentially responsible
parties have implemented all
appropriate response actions. Moreover,
EPA and NYSDEC have determined that
the Site poses no significant threat to
16:01 Jul 06, 2005
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Written comments should
be addressed to: Isabel Rodrigues,
Remedial Project Manager, Emergency
and Remedial Response Division, U.S.
Environmental Protection Agency,
Region 2, 290 Broadway, 20th Floor,
New York, New York 10007–1866.
ADDRESSES:
National Oil and Hazardous
Substances Pollution Contingency
Plan; National Priorities List
VerDate jul<14>2003
public health or the environment. In the
‘‘Rules and Regulations’’ Section of
today’s Federal Register, we are
publishing a direct final notice of
deletion for the Jones Sanitation
Superfund Site without prior notice of
this action because we view this as a
noncontroversial revision and anticipate
no significant adverse comment. We
have explained our reasons for this
action in the preamble to the direct final
deletion. If we receive no significant
adverse comment(s) on this notice of
intent to delete or the direct final notice
of deletion or other notices we may
issue, we will not take further action on
this notice of intent to delete. If we
receive significant adverse comment(s),
we will withdraw the direct final notice
of deletion and it will not take effect.
We will, as appropriate, address all
public comments. If, after evaluating
public comments, EPA decides to
proceed with deletion, we will do so in
a subsequent final deletion notice based
on this notice of intent to delete. Any
parties interested in commenting must
do so at this time. For additional
information, see the direct final notice
of deletion which is located in the Rules
section of this Federal Register.
Ms.
Isabel Rodrigues at the address provided
above, or by telephone at (212) 637–
4248, by Fax at (212) 637–4284 or via
e-mail at Rodrigues.Isabel@EPA.GOV.
FOR FURTHER INFORMATION CONTACT:
For
additional information, see the Direct
Final Notice of Deletion which is
located in the Rules section of this
Federal Register.
SUPPLEMENTARY INFORMATION:
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9675; E.O. 12777, 56 FR 54757, 3 CFR,
1991 Comp., p. 351; E.O. 12580, 52 FR 2923,
3 CFR, 1987 Comp., p. 193.
Dated: June 6, 2005.
George Pavlou,
Acting Regional Administrator, U.S. EPA,
Region II.
[FR Doc. 05–13347 Filed 7–6–05; 8:45 am]
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MM Docket No. 99–25; FCC 05–75]
Creation of a Low Power Radio Service
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
SUMMARY: In this document, the
Commission seeks comment on
ownership and eligibility issues related
to low power FM (LPFM)
authorizations, including: whether
LPFM authorizations should be
transferable and, if so, whether
transferability should be broadly
permitted or limited to special
circumstances; whether to extend the
deadline for submission of a time-share
proposal after a mutually exclusive
group of LPFM applicants is announced;
whether to permit renewal of licenses
granted under involuntary time-sharing,
successive license term procedures;
whether to permanently restrict
ownership of LPFM stations to local
entities; and whether to permanently
prohibit multiple ownership of LPFM
stations. The Commission also seeks
comment on technical issues related to
LPFM authorizations, including:
whether to extend the LPFM
construction period to 36 months;
whether to allow applicants submitting
a time-share proposal to relocate the
transmitter to a central location,
notwithstanding the site relocation
limits for minor amendments; whether
and, if so, under what conditions LPFM
applications should be treated as having
‘‘primary’’ status with respect to priorfiled FM translator applications and
existing FM translator stations; and
whether an LPFM station should be
permitted to continue to operate even
when interference is predicted to occur
within the 70 dBu contour of a
subsequently-authorized second- or
third-adjacent channel full service FM
station.
Comments must be filed on or
before August 8, 2005, and reply
comments must be filed on or before
August 22, 2005. Written comments on
the proposed information collection
requirements contained in the
document must be submitted by the
public, the Office of Management and
Budget (OMB), and other interested
parties on or before September 6, 2005.
ADDRESSES: You may submit comments,
identified by MM Docket No. 99–25, by
any of the following methods:
DATES:
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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Web Site: https://
www.fcc.gov/cgb/ecfs. Follow the
instructions for submitting comments.
• People with Disabilities: Contact
the FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by e-mail: FCC504@fcc.gov
or phone: 202–418–0530 or TTY: 202–
418–0432.
For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
For
additional information on this
proceeding, contact Natalie Roisman,
Natalie.Roisman@fcc.gov, of the Media
Bureau, Policy Division, (202) 418–
2120. For additional information
concerning the Paperwork Reduction
Act information collection requirements
contained in this document, contact
Cathy Williams, Federal
Communications Commission, 445 12th
St., SW., Room 1–C823, Washington, DC
20554, or via the Internet to
Cathy.Williams@fcc.gov. If you would
like to obtain or view a copy of this
revised information collection, you may
do so by visiting the FCC PRA Web page
at: https://www.fcc.gov/omd/pra.
FOR FURTHER INFORMATION CONTACT:
This is a
summary of the Federal
Communications Commission’s Further
Notice of Proposed Rulemaking
(FNPRM) FCC 05–75, adopted on March
16, 2005, and released on March 17,
2005. The full text of this document is
available for public inspection and
copying during regular business hours
in the FCC Reference Center, Federal
Communications Commission, 445 12th
Street, SW., CY–A257, Washington, DC
20554. These documents will also be
available via ECFS (https://www.fcc.gov/
cgb/ecfs/). (Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.) The complete text
may be purchased from the
Commission’s copy contractor, 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
SUPPLEMENTARY INFORMATION:
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Initial Paperwork Reduction Act of
1995 Analysis
This FNPRM contains proposed
information collection requirements. It
will be submitted to the Office of
Management and Budget (OMB) for
review under section 3507(d) of the
Paperwork Reduction Act of 1995
(PRA), Pub. L. 104–13. The
Commission, as part of its continuing
effort to reduce paperwork burdens,
invites the general public and OMB to
comment on the proposed information
collection requirements contained in
this FNPRM, as required by the PRA.
Written comments on the PRA proposed
information collection requirements
must be submitted by the public, OMB,
and other interested parties on or before
September 6, 2005. Comments should
address: (a) Whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Commission, including
whether the information shall have
practical utility; (b) the accuracy of the
Commission’s burden estimates; (c)
ways to enhance the quality, utility, and
clarity of the information collected; and
(d) ways to minimize the burden of the
collection of information on the
respondents, including the use of
automated collection techniques or
other forms of information technology.
In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
Pub. L. 107–198, see 44 U.S.C.
3506(c)(4), we seek specific comment on
how we might ‘‘further reduce the
information collection burden for small
business concerns with fewer than 25
employees.’’
OMB Control Number: 3060–0031.
Title: Application for Consent to
Assignment of Broadcast Station
Construction Permit or License;
Application for Consent to Transfer
Control of Entity Holding Broadcast
Station Construction Permit or License;
Section 73.3580, Local Public Notice of
Filing of Broadcast Applications.
Form Number: FCC Form 314 and
FCC Form 315.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other forprofit entities; not-for-profit institutions.
Number of Respondents: 4,510.
Frequency of Response: On occasion
reporting requirement; third party
disclosure requirement.
Estimated Time Per Response: 1 hour
to 6 hours.
Total Annual Burden: 15,890 hours.
Total Annual Costs: $33,349,150.
Privacy Impact Assessment: No
impact(s).
Needs and Uses: On March 16, 2005
the Commission adopted a 2nd Order on
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Reconsideration and Further Notice of
Proposed Rulemaking (FNRPM), In the
Matter of the Creation of a Low Power
Radio Service, MM Docket No. 99–25,
FCC 05–75. The FNPRM proposes to
permit the transfer and/or assignment of
Low Power FM (LPFM) authorizations.
FCC Forms 314 and 315 have been
revised to encompass the assignment of
LPFM authorizations, as proposed in the
FNPRM, and to reflect the ownership
and eligibility restrictions applicable to
LPFM permittees and licensees.
FCC Form 314 and the applicable
exhibits/explanations are required to be
filed when applying for consent for
assignment of an AM, FM, TV or Low
Power FM (LPFM) broadcast station
construction permit or license. In
addition, the applicant must notify the
Commission when an approved
assignment of a broadcast station
construction permit or license has been
consummated.
FCC Form 315 and applicable
exhibits/explanations are required to be
filed when applying for transfer of
control of an entity holding an AM, FM,
TV or LPFM broadcast station
construction permit or license. In
addition, the applicant must notify the
Commission when an approved
assignment of a broadcast station
construction permit or license has been
consummated.
OMB Control Number: 3060–0009.
Title: Application for Consent to
Assignment of Broadcast Station
Construction Permit or License or
Transfer of Control of Corporation
Holding Broadcast Station Construction
Permit or License.
Form Number: FCC Form 316.
Type of Review: Revision of a
currently approved collection.
Respondents: Business or other forprofit entities; not-for-profit institutions;
State, local or tribal government.
Number of Respondents: 730.
Frequency of Response: On occasion
reporting requirement.
Estimated Time Per Response: 1–4
hours.
Total Annual Burden: 775 hours.
Total Annual Costs: $423,720.
Privacy Impact Assessment: No
impact(s).
Needs and Uses: On March 16, 2005
the Commission adopted a 2nd Order on
Reconsideration and Further Notice of
Proposed Rulemaking (FNRPM), In the
Matter of the Creation of a Low Power
Radio Service, MM Docket No. 99–25,
FCC 05–75. The FNPRM proposes to
permit the assignment or transfer of
control of Low Power FM (LPFM)
authorizations where there is a change
in the governing board of the permittee
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or licensee or in other situations
analogous to ‘‘pro forma’’ assignments
or transfers of control for other types of
broadcast authorizations. FCC Form has
been revised to encompass the
assignment and transfer on control of
these LPFM authorizations.
OMB Control Number: 3060–0920.
Title: Application for Construction
Permit for a Low Power FM Broadcast
Station; Report and Order in MM Docket
No. 99–25 Creation of Low Power Radio
Service.
Form Number: FCC Form 318.
Type of Review: Revision of a
currently approved collection.
Respondents: Not-for-profit
institutions; State, local or tribal
government.
Number of Respondents: 16,422.
Frequency of Response:
Recordkeeping requirement; on
occasion reporting requirement; third
party disclosure requirement.
Estimated Time Per Response: 15
minutes–12 hours.
Total Annual Burden: 33,866 hours.
Total Annual Costs: $23,850.
Privacy Impact Assessment: No
impact(s).
Needs and Uses: On March 16, 2005
the Commission adopted a 2nd Order on
Reconsideration and Further Notice of
Proposed Rulemaking (FNRPM), In the
Matter of the Creation of a Low Power
Radio Service, MM Docket No. 99–25,
FCC 05–75. The FNPRM proposes to
amend 47 CFR 73.870 and 73.871 to
permit voluntary time-share applicants
to relocate an LPFM transmitter to a
central location by filing amendments to
their pending FCC Form 318
applications.
FCC Form 318 is required to: (1) apply
for a construction permit for a new
LPFM station, (2) to make changes in
the existing facilities of such a station or
(3) to amend a pending FCC Form 318
application.
Summary of the Further Notice of
Proposed Rulemaking
I. Introduction
1. In January 2000, the Commission
adopted a Report and Order establishing
the low power FM (LPFM) service,
Creation of Low Power Radio Service,
65 FR 7616, February 15, 2000. The
Commission authorized the LPFM
service to provide opportunities for new
voices to be heard, while at the same
time maintaining the integrity of
existing FM radio service and
preserving its ability to transition to a
digital transmission mode. In the Report
and Order, the Commission authorized
two classes of LPFM service: The LP100
class, consisting of stations with a
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maximum power of 100 watts effective
radiated power (ERP) at 30 meters
antenna height above average terrain
(HAAT), providing an FM service radius
(1 mV/m or 60 dBu) of approximately
3.5 miles (5.6 kilometers), and the LP10
class, consisting of stations with a
maximum power of 10 watts ERP at 30
meters HAAT, providing an FM service
radius of approximately one to two
miles (1.6 to 3.2 kilometers). The Report
and Order also imposed separation
requirements for LPFM with respect to
full power stations.
2. In the Report and Order, the
Commission also established ownership
and eligibility rules for the LPFM
service. The Commission restricted
LPFM service to noncommercial
educational (NCE) operation by nonprofit entities and public safety radio
services. With certain narrow
exceptions, the Commission restricted
ownership to entities with no
attributable interest in any other
broadcast station or other media subject
to our ownership rules. The
Commission prohibited the sale or
transfer of an LPFM station. For the first
two years of the LPFM service, the
Commission prohibited multiple
ownership of LPFM stations and limited
ownership to locally-based entities. To
resolve mutually exclusive applications,
the Commission established a point
system that favors local ownership and
locally-originated programming, with
time-sharing and successive license
terms as tie-breakers.
3. The Report and Order directed the
Mass Media Bureau to announce by
public notice the opening of a national
filing window for LP100 applications. In
March 2000, the Mass Media Bureau
announced that it would accept LPFM
applications in five separate filing
windows, each limited to an application
group of ten states and at least one other
U.S. jurisdiction, in order to ‘‘ensure the
expeditious implementation of the
LPFM service and to promote the
efficient use of Commission resources.’’
See FCC Announces Five-Stage National
Filing Window for Low Power FM
Broadcast Station Applications, DA 00–
621 (MMB rel. Mar. 17, 2000). The
Commission conducted a lottery to
determine the order of the application
groups, and the Mass Media Bureau
announced that the first LPFM filing
window would open on May 30, 2000.
Subsequent filing windows opened on
August 28, 2000, January 16, 2001, and
June 11, 2001. The fourth and fifth
LPFM application groups were
consolidated into a single window in
order to speed the filing process for
applicants in these states.
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4. On reconsideration in September
2000, the Commission issued some
revisions and clarifications, but
generally affirmed the decisions reached
in the Report and Order. See 65 FR
67289, November 9, 2000. The Making
Appropriations for the Government of
the District of Columbia for FY 2001 Act
(2001 DC Appropriations Act), Pub. L.
106–553 632, required the Commission
to modify its rules to prescribe LPFM
station third-adjacent channel spacing
standards and to prohibit any applicant
from obtaining an LPFM station license
if the applicant previously had engaged
in the unlicensed operation of a station.
As a result of rule revisions adopted
pursuant to the 2001 DC Appropriations
Act, facilities proposed in a number of
otherwise technically sufficient
applications filed in the first two LPFM
filing windows became short-spaced to
existing full-power FM and/or FM
translator stations, and were
subsequently dismissed. The 2001 DC
Appropriations Act also instructed the
Commission to conduct an experimental
program to evaluate whether LPFM
stations would interfere with existing
FM stations if the LPFM stations were
not subject to the additional channel
spacing requirements, and to submit a
report to Congress, including the
Commission’s recommendations to
Congress regarding reduction or
elimination of the minimum separations
for third-adjacent channels. The
Commission selected an independent
third party, the Mitre Corporation
(Mitre), to conduct the field tests. On
February 19, 2004, the Commission staff
submitted the required report to
Congress and, based on the Mitre study,
recommended that Congress ‘‘modify
the statute to eliminate the thirdadjacent channel distant separation
requirements for LPFM stations.’’
5. On February 8, 2005, the
Commission held a forum on LPFM.
The forum was intended to inform the
Commission of achievements by LPFM
stations and the challenges faced as the
service marks its fifth year. As of March
2005, more than 1,175 LPFM
construction permits have been granted.
Of these 1,175 permits, approximately
590 stations are on the air, serving
mostly mid-sized and smaller markets.
6. Since the LPFM service was
created, the experiences of LPFM
applicants, permittees, and licensees
have demonstrated that the
Commission’s LPFM rules may need
some adjustment in order to ensure that
the Commission maximize the value of
the LPFM service without harming the
interests of full-power FM stations or
other Commission licensees. The
Commission’s actions in this FNPRM,
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based in part on testimony received at
the LPFM forum, are designed to
increase the number of LPFM stations
on the air and strengthen the viability of
those stations that are already operating.
The Commission seeks comment on a
number of technical and ownership
issues related to LPFM.
II. Further Notice of Proposed
Rulemaking
7. In ex parte meetings and filings and
at the recent LPFM forum hosted by the
Commission, members of the LPFM
community have urged the Commission
to revise certain LPFM rules. Five years
after the establishment of LPFM, the
Commission believes it is now
appropriate to assess the practical
ramifications of the LPFM rules. The
Commission believes that some of the
LPFM community’s proposals are
appropriate for further consideration,
and seeks comment on them as
discussed below.
Ownership and Eligibility
A. Transferability
8. In the Report and Order, the
Commission declined to allow the sale
of LPFM stations. The Commission
determined that a prohibition on
transfers or assignments of construction
permits and licenses for LPFM stations
would best promote the Commission’s
interest in ensuring spectrum use for
low power operations as soon as
possible, without the delay associated
with license speculation. The
Commission concluded that the goals of
the LPFM service would be best met if
unused permits and licenses were
returned to the Commission. 47 CFR
73.865 provides that ‘‘[a]n LPFM
authorization may not be transferred or
assigned except for a transfer or
assignment that involves: (1) Less than
a substantial change in ownership or
control; or (2) An involuntary
assignment of license or transfer of
control.’’ Based on forum testimony, ex
parte presentations, and requests for
waiver of section 73.865 filed with the
Media Bureau’s Audio Division, the
Commission now believes that the rule
prohibiting transfer or assignment of
LPFM construction permits or licenses
may be unduly restrictive and may
hinder, rather than promote, LPFM
service. The Commission therefore seeks
comment on whether to permit the
transfer and/or assignment of LPFM
authorizations and, if so, whether
transfer or assignment should be
broadly permitted or limited to special
circumstances. The Commission also
seeks comment on the effect, if any, of
a change in transferability with respect
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to ownership amendments to pending
LPFM new and major change
applications.
9. First, the Commission seeks
comment on whether to amend its rules
to permit the transfer of control of LPFM
licensee entities. If the Commission
permits the transfer of control of LPFM
licensees, should any restrictions be
imposed on such transfers, beyond the
requirement that the licensee entity
continue to meet the LPFM eligibility
criteria? The Commission seek comment
regarding the types of organizational
structures utilized by LPFM licensees
and how transfers of control of LPFM
licensees, if permitted, would be
effectuated. For example, are LPFM
licensees likely to undergo transfers of
control by virtue of changes in
governing boards, shifting composition
of membership bodies, acquisition of a
licensee by another organization, or
other means? Because the question has
been raised frequently on the record, the
Commission seeks comment more
specifically on whether and how to
amend our rules to permit the transfer
of control of an LPFM licensee in the
case of a sudden change in the majority
of a governing board. On
reconsideration in 2000, the
Commission clarified that the gradual
change of a governing board or
membership body to the point that a
majority of its members are new since
the authorization was granted will not,
by itself, constitute a prohibited transfer
of control. The Commission’s rules,
however, do not permit a sudden
change in the board or membership of
an LPFM licensee, which would
constitute an impermissible transfer of
control. Several panelists at the recent
LPFM forum testified that this
restriction causes unnecessary
complications for LPFM licensees. The
Media Access Project (MAP) has
requested that the Commission modify
its rules so that typical board changes
on a non-profit board will be
permissible under the Commission’s
rules. Prometheus Radio Project
(Prometheus) argues that if the LPFM
service is to be accessible to community
groups, its regulations must take into
account that changes in governing
boards are part of the nature of existence
of such groups. Based on the record, the
Commission proposes to amend its rules
to permit changes of more than 50
percent of the membership of governing
boards that occur suddenly, in addition
to the gradual board changes that are
currently permitted under the rules. The
Commission seeks comment on this
proposal.
10. Similarly, the Commission seeks
comment on whether to amend the rules
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to permit the assignment of LPFM
authorizations from the licensee to
another entity. If LPFM authorizations
may be assigned and control of LPFM
licensees may be transferred, should the
Commission allow consideration for
these transactions? In short, should the
Commission permit the sale of LPFM
stations? If so, should the Commission
establish a holding period during which
a station may not be sold at all, or may
not be sold for more than the licensee’s
legitimate and prudent expenses? The
Commission seeks comment below on
whether to permanently restrict
eligibility for LPFM authorizations to
local entities and/or permanently
prohibit multiple ownership of LPFM
stations and how any actions in that
regard should affect assignments and
transfers.
11. Finally, assuming that the
Commission amends the rules to permit
transfer and/or assignment of LPFM
authorizations, what procedures should
be implemented to ensure the integrity
of the process and the promotion of
local service? Can general guidelines be
established for the transfer of control or
assignment of LPFM stations, or should
the Commission delegate to the Media
Bureau authority to review proposed
transfers and assignments on a case-bycase basis? In particular, the
Commission seeks comment on the
process by which LPFM permittees and
licensees may request approval for or
report transfers of control. For LPFM
licensees with a traditional corporate
organizational structure, should the
Commission apply the rules governing
transfers of control of stock
corporations? (With respect to
traditional corporations, the
Commission has developed general
guidelines for determining where
control resides, what constitutes a
transfer of control, and how permittees
and licensees may seek approval of such
transfers). Given the non-profit nature of
LPFM licensees, it is likely that many
LPFM authorizations are held by nonstock corporations. The Commission has
never formally adopted a policy setting
forth a clear standard for transfers of
control by non-stock corporations. In
1989, the Commission issued a notice of
inquiry (NOI) regarding transfers of nonstock corporations, but the proceeding
did not reach the rulemaking stage.
Nevertheless, this notice of inquiry may
provide helpful guidance in establishing
the process by which the Commission
will consider transfers of control of
LPFM licensees, if such transfers are
permitted. In the NOI, the Commission
proposed that gradual changes in the
governing boards of membership
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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules
organizations and governmental
entities—even if the changes ultimately
resulted in the replacement of a majority
of the original board members—would
not be considered transfers of control
within the meaning of the Act, and
would need to be reported only as
appropriate on the licensee’s ownership
reports. This approach is consistent
with the Commission’s clarification
regarding LPFM stations on
reconsideration in 2000. Under the
proposal in the NOI, a sudden change in
a majority of the governing board of a
membership organization or
governmental entity would be
considered an insubstantial transfer of
control, subject to a modified ‘‘short
form’’ consent procedure, including the
filing of an FCC Form 316. The
Commission seeks comment on whether
to adopt a similar approach for changes
in governing boards of LPFM licensees
that are non-stock entities.
12. As discussed in detail above, the
current rule prohibiting the transfer of
LPFM stations is hampering the LPFM
service by, for example, impeding
routine transitions to new governing
boards and limiting the ability of an
LPFM licensee to assign its license to a
new, jointly-controlled entity composed
of several similarly focused
organizations. Introducing some level of
transferability to the LPFM service is
critical, and delaying relief to LPFM
stations until this proceeding is
completed will not serve the public
interest. Accordingly, the Commission
delegates to the Media Bureau authority
to consider, on a case-by-case basis,
requests for waivers of 47 CFR 73.865.
The Media Bureau may grant a waiver
upon determination that such waiver
will maximize spectrum use for low
power FM operations. For example,
waiver may be appropriate, assuming
the public interest would be served, in
certain circumstances: a sudden change
in the majority of a governing board
with no change in the organization’s
mission; development of a partnership
or cooperative effort between local
community groups, one of which is the
licensee; and transfer to another local
entity upon the inability of the current
licensee to continue operations. This is
not an exhaustive list of circumstances
appropriate for waiver. However, until
the Commission has further considered
the transferability issue, waiver is not
appropriate to permit the for-profit sale
of an LPFM station to any entity or the
transfer of an LPFM station to a nonlocal entity or an entity that owns
another LPFM station.
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B. Ownership and Eligibility
Limitations
13. In the Report and Order, the
Commission placed certain restrictions
on LPFM ownership for the first two
years after the opening of the first filing
window for the LPFM service. First, for
the first two years, no entity may own
more than one LPFM station. After the
first two years, one entity may own up
to five stations nationally, and after the
first three years, an entity may own up
to ten stations nationwide. No entity
may own more than 10 LPFM stations.
Second, for the initial and subsequent
windows opened within two years of
the first filing window for LPFM, all
LPFM applicants were required to be
based within 10 miles of the station they
sought to operate. Beginning two years
after the first window for LPFM service
opened, non-local applicants were
eligible to apply for LPFM stations. UCC
requests that the Commission
permanently prohibit multiple
ownership and either permanently
restrict eligibility to local entities or
extend the restriction for an additional
period of time.
14. The Commission adopted these
rules in order to foster diversity and to
maximize the opportunities for
applicants to obtain LPFM
authorizations by disallowing any
common ownership of LPFM stations
during the start-up of the service. After
the start-up phase was over, however,
the Commission allowed the
accumulation of additional stations
where local applicants had not applied.
The Commission stated in the Report
and Order that, in addition to ensuring
the fullest use of LPFM spectrum in the
long term, this approach would balance
the interests of local entities, whom the
Commission expected to be the first
entrants in the service, and national
NCE entities, which the Commission
anticipated would be interested in
additional local outlets to increase their
reach and achieve certain efficiencies of
operation. Our intention was to make it
more likely that local entities would
operate this service, but to ensure that
if no local entities came forward, the
available spectrum would not go
unused. On reconsideration, the
Commission considered a request from
UCC to extend the two-year time
periods for the community-based
requirement and the national cap, and
concluded that the Report and Order
struck an appropriate balance between
the interests of local groups and the
Commission’s interest in ensuring that
the LPFM service is used fully.
Accordingly, the Commission declined
to modify these rules at that time.
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15. Now that more than two years has
passed since the first set of LPFM filing
windows, the Commission seeks
comment regarding whether to amend
the rules to reinstate for a period of time
or make permanent the restrictions
regarding local entities and multiple
ownership. Would a continued
limitation on multiple ownership foster
diversity of programming and viewpoint
or would it prevent LPFM licensees
from achieving economies of scale?
Does an eligibility restriction for local
entities ensure local service for listeners
or might it result in some communities
losing LPFM service because no local
entity seeks to provide it? Should the
Commission permanently restrict
eligibility to local entities but grant a
waiver of such restriction in cases in
which the applicant can demonstrate
that no local entity has sought to
provide service? The Commission
further seeks comment regarding the
relationship between any such
restrictions and our consideration
regarding transferability of LPFM
stations. Specifically, if the Commission
makes permanent the local entity
eligibility restriction and the prohibition
on multiple ownership, how should
such limitations be considered in the
context of applications for assignment
or transfer of control of LPFM stations,
discussed above?
C. Time-Sharing
16. In the Report and Order, the
Commission established a point system
for resolving mutual exclusivity among
LPFM applicants. If mutually exclusive
applicants have the same point total,
any two or more of the tied applicants
may propose to share use of the
frequency by submitting a time-share
proposal within 30 days of the release
of a public notice announcing the tie.
Such proposals are treated as
amendments to the time-share
proponents’ applications and become
part of the terms of the station’s license.
MAP asserts that because LPFM
applicants have few resources, the 30day deadline for the submission of a
time-share proposal is too short. MAP
has requested that the Commission
extend the submission deadline to 90
days from the date a mutually exclusive
group is announced. The Commission
agrees that 30 days may not afford
sufficient time for two or more small
organizations to commence and
complete negotiations and prepare a
time-share proposal for the
Commission’s consideration.
Accordingly, the Commission proposes
to extend the period to 90 days and
seeks comment on this proposal.
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17. If a tie among mutually exclusive
applications is not resolved through
time-sharing, the tied applications are
reviewed for acceptability and
applicants with tied, grantable
applications are eligible for equal,
successive, non-renewable license terms
of no less than one year each for a total
combined term of eight years. In the
Report and Order, although LP100 and
LP10 licensees were provided with the
same license terms and renewal
expectancy as full-power FM radio
stations, the Commission determined
not to extend a renewal expectancy to
licenses granted under these final tiebreaker procedures. The Commission
now believes that the public interest
would be better served by permitting the
renewal of viable time-share
arrangements, rather than subjecting
operating stations to the uncertainty of
window filing schedules and the risks of
the LPFM comparative process.
Accordingly, the Commission
tentatively proposes to permit the
renewal of licenses granted under
involuntary time-sharing successive
license term procedures. The
Commission seeks comment on this
proposal and the means of
implementing such renewal expectancy.
Should licenses be renewed in the same
order as they are granted, i.e., the
sequence in which the parties file
applications for licenses to cover their
construction permits? Increased
flexibility in transferability of LPFM
licenses, combined with a renewal
expectancy, may result in involuntary
time-sharing licensees modifying their
time-sharing arrangements prior to
seeking renewal. The Commission seeks
comment on how best to accommodate
such developments in the renewal
process.
Technical Rules
A. Construction Period
18. In the Report and Order, the
Commission established an 18-month
construction period for both LP10 and
LP100 services. The Commission
believed that most permittees would be
able to and would have sufficient
incentive to construct their low power
stations in a much shorter time period
than other broadcast permittees, given
the relative technical simplicity of such
stations. The Commission recognized,
however, that zoning and permitting
processes could, in some cases, delay
construction. Accordingly, the
Commission afforded permittees 18
months to construct, and stated that the
18-month deadline would be strictly
enforced. The Commission is aware that
some LPFM permittees have met the
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construction deadline only with great
difficulty, and that some have been
unable to complete construction within
the 18-month period. MAP has
requested that the Commission waive or
extend construction deadlines to avoid
forfeit of LPFM construction permits for
failure to construct. However, the
Commission’s current policy regarding
all broadcast station construction
deadlines is to extend such deadlines
only in extremely limited situations that
dictate the tolling of the construction
period: Acts of God; administrative or
judicial review of a construction permit
grant; failure of a Commission-imposed
condition precedent on the permit; or
judicial action related to necessary
local, state, or federal requirements. See
47 CFR 73.3598. Thus, although some
LPFM permittees may face delays that
are outside of their control, if such
delays do not qualify under the tolling
rules, a permittee must either complete
construction or forfeit the permit. The
policy regarding extension of broadcast
station construction deadlines generally
serves the public interest. The
Commission recognizes, however, that
the LPFM 18-month construction period
may be too short in some cases. The
Commission’s intention is to maximize
the likelihood that LPFM permittees
will get on the air. Accordingly, the
Commission proposes to extend the
LPFM construction period to three
years, the same period afforded other
broadcast permittees, and seeks
comment on this proposal.
19. Some LPFM construction permits
are scheduled to expire in the near
future, while the Commission is
considering this issue, and other LPFM
permittees with expired permits have
requests pending before the Media
Bureau for additional time to construct.
The Commission adopts an interim
waiver policy to increase the likelihood
that these permittees will complete
construction and commence operation.
Although the rules do not generally
permit waiver of broadcast construction
permit deadlines, all other broadcast
permittees are afforded 36 months to
construct facilities. See 47 CFR 73.3598.
Here, where the construction period is
half as long, the Commission finds that
waivers generally are warranted to
extend outstanding LPFM construction
permits to three years. Pending
Commission action on this FNPRM, the
Commission delegates to the Media
Bureau the authority to consider
requests for waiver of the construction
period even if the requirements under
the tolling rules are not met. The Media
Bureau may determine that a waiver is
appropriate if an LPFM permittee
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demonstrates that it cannot complete
construction within the allotted 18
months for reasons beyond its control,
that it reasonably expects to be able to
complete construction within the
additional 18 months that the
construction extension would provide,
and that the public interest would be
served by the extension.
B. Technical Amendments
20. In the Order on Reconsideration
accompanying this FNPRM, the
Commission amends 47 CFR 73.871 to
permit greater flexibility for applicants
to file minor amendments to relocate
transmitter sites. However, the amended
rule will continue to preclude timesharing applicants from relocating the
transmitter to a central location, unless
such location falls within the new
distance limits. UCC has requested that
the Commission amend its rules to
allow applicants that submit a timeshare agreement to relocate the
transmitter to a central location,
provided one is available in the channel
finder. The Commission agrees that
increasing flexibility for time-sharing
applicants to relocate the transmitter
will facilitate time-share arrangements
and expedite grant of LPFM licenses.
Accordingly, the Commission proposes
to permit applicants that submit a timesharing proposal to file a minor
amendment proposing to relocate the
transmitter to a central location,
notwithstanding the site relocation
limits set forth in 47 CFR 73.871, and
seeks comment on this proposal.
C. Interference Protection Requirements
21. As part of the overall plan to
protect FM stations from interference
from new LPFM stations, the Report and
Order adopted minimum distance
separation requirements for LPFM
stations. The Commission concluded
that minimum spacing rules would
provide the most efficient means to
process a large number of applications
while ensuring the overall technical
integrity of the FM service. Because FM
translator and booster stations generally
do not have specific class limitations,
LPFM–FM translator separation
requirements were determined by
analyzing the 60 dBu contours of
authorized translator stations and
grouping them into three cohorts based
on station power and height. The Report
and Order also amended certain part 74
rules to require that FM translator and
booster stations protect the 60 dBu
contour of LP100 stations. On
reconsideration, the Commission stated
that the interference protections ‘‘place
LPFM stations and FM translators on
essentially equal footing’’ with respect
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to protecting each other from
interference. However, Commission
policy treats translators as a secondary
service and a ‘‘proper role of FM
translators among aural services to the
public is to provide secondary service to
areas in which direct reception of
signals from FM broadcast stations is
unsatisfactory due to distance or
intervening terrain obstructions.’’ The
Commission declined on
reconsideration to eliminate the
protections afforded to LP100 stations
because such modifications would have
rendered LPFM stations secondary to
translators.
22. LPFM advocates now request that
the Commission reassess the
relationship between FM translators and
LPFM stations for licensing purposes.
Prometheus argues that because NCE
translators may be fed by satellite, see
47 CFR 74.1231(b), such translators
often are used to retransmit distant
signals, contrary to the intended
purpose of the translator service to
merely extend the reach of local
stations. Prometheus contends that
every new translator that does not
expand the reach of a station originating
local programming takes the place of a
potential LPFM station that will
originate local programming. In
particular, Prometheus argues that the
Commission’s March 2003 filing
window for translator applications
opened in major cities before a full
LPFM filing window opened, thereby
eliminating virtually all opportunities
for new LPFM stations in top-25
markets. Prometheus also claims that
translator applications are being filed
not by members of local communities,
but by non-local organizations applying
for large numbers of translator licenses.
To overcome the preclusive impact of
the 2003 translator window, Prometheus
requests that the Commission give
locally controlled and operated LPFM
stations priority over translators.
23. The Commission agrees that it is
appropriate to reevaluate the current coequal status of LPFM and FM translator
stations as a result of the extraordinary
volume of FM translator construction
permit applications—more than
13,000—filed with the Commission
during the March 2003 filing window.
The Media Bureau’s Audio Division
already has granted approximately 3,300
new station construction permit
applications from the singleton filings, a
number nearly equal to the total number
of FM translator stations licensed and
operating prior to the filing window.
Approximately 8,000 applications
remain on file. New LPFM station
applications must protect each of these
authorized facilities and pending
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applications. Because LPFM and FM
translator stations are licensed under
fundamentally different technical rules,
it is impossible to determine the precise
extent to which the 2003 window-filed
FM translator applications have
impacted the potential licensing of new
LPFM stations. In this regard,
Prometheus’s contention that every new
translator ‘‘takes the place’’ of a
potential LPFM station is incorrect.
Nonetheless, the Commission is
confident that these filings have had a
significant preclusive impact on future
LPFM licensing opportunities based
solely on application volume. This
impact is of particular concern because
the 2000–2001 national LPFM window
filing process demonstrated that very
few opportunities for LPFM stations
remained in major markets at that time.
Moreover, as Prometheus notes, many of
the translator applications were filed by
a relatively small number of non-local
filers without any apparent connection
to the communities specified in the
applications.
24. On the other hand, ‘‘translatorbased delivery of broadcast
programming is an important objective,’’
and the Commission continues to
support this objective. Some FM
translators provide important aural
services to unserved and underserved
areas. Translators also are used to
deliver syndicated national
programming to well-served
communities. The Commission’s rules
impose strict ownership limits on
commercial translator licensees, see 47
CFR 74.1232(d), and require the use of
off-air signal delivery systems, see 47
CFR 74.1231(b), for both commercial
and NCE translators operating in the
non-reserved FM band. (The March
2003 window was limited to proposals
for non-reserved band stations, none of
which may rebroadcast signals
delivered direct to the station via
satellite; thus, the Commission finds
misplaced Prometheus’s attempt to link
the ‘‘problem’’ of the 2003 window to
the satellite delivery rules). These rules
generally prohibit a commercial FM
station from using translators to expand
service beyond its protected contour. In
contrast, an NCE licensee may own and
operate translators that reach listeners
far beyond the service area of its coowned primary station. Thus, many
NCE licensees use FM translators to
distribute programming throughout the
country. Notwithstanding Prometheus’s
complaint regarding non-local filers in
the March 2003 translator window, this
is not a recent development in the FM
translator service.
25. In a notice of inquiry in the
broadcast localism proceeding, the
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39223
Commission sought comment on how
best to harmonize the licensing
processes for FM translators and LPFM
stations to enhance localism. See 19
FCC Rcd 12425. As the Commission
asked, ‘‘[r]ecognizing that both LPFM
stations and translators provide valuable
service, what licensing rule changes
should the Commission adopt to resolve
competing demands by stations in these
two services for the same limited
spectrum?’’ The Commission seeks
comment on whether and, if so, under
what conditions LPFM applications
should be treated as having ‘‘primary’’
status to prior-filed FM translator
applications and authorized FM
translator stations. Should all LPFM
applications have primary status
because LPFM stations are permitted to
originate local programming? Should
primary status be limited to LPFM
applicants that pledge to originate
locally at least eight hours of
programming per day? Should the
Commission provide ‘‘grandfathered’’
protection rights to certain classes of FM
translators? Possible class designations
include currently licensed and
operating stations; stations licensed
prior to the adoption of the Report and
Order; currently authorized translator
stations, including the construction
permits issued to the 2003 window
filers; and/or ‘‘fill-in’’ FM translators but
not ‘‘other area’’ translator stations.
Should the Commission dismiss all
pending applications for new FM
translator stations and make potential
refilings subject to the resolution of the
licensing issues raised in this
proceeding? Should the Commission
dismiss the pending mutually exclusive
FM translator applications? As an
interim measure while considering
these important questions, the
Commission directs the Media Bureau
to stop granting FM translator new
station construction permits for which
short-form applications were filed in the
2003 window. This freeze is effective
upon the release of this FNPRM and
shall remain in effect for six months.
26. In addition to requesting that the
Commission grant LPFM stations
priority with respect to FM translators,
some LPFM advocates have requested
that the Commission adopt more
flexible technical licensing rules for the
LPFM service as a partial remedy to the
preclusive impact of the FM translator
filings and limited LPFM spectrum
availability in many large and mediumsized communities. Specifically, they
have requested that LPFM applicants be
permitted to utilize the contour overlap
interference protection approach, rather
than mileage separations. Adoption of a
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contour overlap approach is statutorily
barred at this time. Congress has
mandated the use of a distance
separation methodology to protect FM
stations from LPFM station interference
by directing the Commission to
prescribe co-, first-, second-, and thirdadjacent channel ‘‘minimum distance
separations’’ for LPFM stations. Thus,
the Commission may not use the
fundamentally different contour
methodology to license LPFM stations.
27. Even if the Commission were not
statutorily prohibited from adopting a
contour approach, significant policy
considerations weigh in favor of
continuing to license LPFM stations in
accordance with the minimum distance
separation methodology adopted in the
Report and Order. This protection
scheme is modeled on the certain ‘‘gono go’’ predicted interference licensing
methodology utilized for commercial
FM stations. Although this methodology
is more restrictive than the FM
translator contour methodology,
implementation of LPFM minimum
distance separation requirements has
proven to be simple and reliable, and
therefore appropriate for the LPFM
service. Because adoption of a contour
methodology would require the
preparation of complex and costly
engineering exhibits, such approach
would inevitably result in higher
application error rates, extended
processing time frames, and licensing
delays. The Media Bureau has processed
over 3000 applications from the first
LPFM window. At this point, it is
abundantly clear that many LPFM
applicants had significant problems
successfully preparing basic technical
showings, completing simplified
application forms, and responding to
staff requests for required amendments.
Excluding the Congressionally
mandated dismissals of applications
that failed to protect full service stations
operating on third-adjacent channels,
the staff dismissed approximately onethird of all applications for basic
technical and legal defects. The
Commission believes that the more
complex contour methodology would
create even more processing problems.
In addition, the choice of a distance
separation methodology was critically
important in the Audio Division’s
development of the extremely accessible
and successful LPFM channel finder
tool utility.
28. An equally important policy
consideration is that an integral part of
the more flexible translator rules, 47
CFR 74.1203(a), would be wholly
inappropriate for the LPFM service.
Under this rule, an FM translator may
not cause any actual interference to any
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authorized broadcast station. (In
contrast, an LPFM station may continue
to operate when it would cause
interference within the 60 dBu contour,
but not 70 dBu contour, of a full service
FM station; in addition, if an LPFM
station is predicted to cause interference
within a full service station’s 70 dBu
contour, it may continue to operate if it
can show that actual interference would
be unlikely). This rule is a necessary
complement to the more flexible
translator contour rule, essentially
shifting to translator applicants,
permittees, and licensees the risk that a
translator must go off the air if
interference cannot be eliminated. The
47 CFR 73.1203(a) interference
complaint procedure regularly results in
the cancellation of FM translator
authorizations by the Media Bureau.
The risks associated with a rule
prohibiting any interference, such as the
rule applicable to translators, far
outweigh the potential benefit of
additional LPFM licensing
opportunities that use of the contour
method might afford. The Commission
believes that it would be inappropriate
to expose community organizations
with limited funds and little technical
and legal sophistication to this kind of
uncertainty, particularly given the effort
invested by organization members,
station management, and numerous
volunteers. Given the high level of
uncertainty associated with the more
flexible translator allocation scheme,
adoption of this approach for LPFM
seems ill-advised in light of the interest
expressed by many LPFM operators for
greater ‘‘primary’’ status and for greater
protection against ‘‘encroachments’’
from new full power stations and
facility modifications by existing
stations.
D. Protection From Subsequently
Authorized Full Service FM Stations
29. Full-service FM stations,
including subsequently authorized new
stations, facility modifications, and
upgrades, are not required to protect
facilities specified in LPFM applications
or authorizations. In order to provide a
measure of stability to operating LPFM
stations, however, the Commission
concluded in the Report and Order that
an LPFM station generally may continue
to operate even if it is predicted to cause
interference within the protected service
contour of a subsequently authorized
FM service, including new stations and
facilities modifications or upgrades of
existing stations. Under 47 CFR 73.809,
LPFM stations are responsible for
resolving all allegations of actual
interference to the reception of a cochannel or first-, second-, or third-
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adjacent channel full service station
within the full service station’s 70 dBu
contour. This rule requires an LPFM
station to cease operations if the LPFM
station cannot demonstrate that
interference is unlikely to occur.
30. Although to date only one LPFM
station has been forced off the air
pursuant to this procedure, operating
LPFM stations have expressed concerns
about the potential impact of
‘‘encroaching’’ full-service stations.
MAP has requested that the Commission
adopt a ‘‘processing policy’’ that would
permit the denial of a full service FM
station’s modification application if
‘‘grant of the application will deny a
local community content by reducing
the coverage area available to LPFM
stations.’’ Such an ad hoc processing
policy would afford any degree of
certainty to operating LPFM stations.
Moreover, the Commission disagrees
with the basic thrust of this proposal,
which effectively would provide
primary status to LPFM stations with
respect to subsequently filed
applications for new or modified full
service station facilities. As stated in the
Report and Order, ‘‘[w]e do not believe
that an LPFM station should be given an
interference protection right that would
prevent a full-service station from
seeking to modify its transmission
facilities or upgrade to a higher service
class. Nor should LPFM stations
foreclose opportunities to seek new fullservice radio stations.’’ It would be
useful, however, to consider whether to
limit the 47 CFR 73.809 interference
procedures to situations involving coand first-adjacent channel predicted
interference, where the predicted
interference areas are substantially
greater than for second- and thirdadjacent channel interference. Although
the effective service area of an LPFM
station could be diminished as a result
of a second-or third-adjacent channel
full service station ‘‘move-in,’’ the
predicted interference area to the full
service station would be limited to a
small area in the immediate vicinity of
the LPFM station transmitter site. In
these circumstances, the public interest
may favor continued LPFM second- and
third-adjacent channel operations over a
subsequently authorized upgrade or
new full service station.
31. The Commission seeks comment
on whether to amend 47 CFR 73.809.
Should an LPFM station be permitted to
continue to operate even when
interference is predicted to occur within
the 70 dBu contour of an ‘‘encroaching’’
second-or third-adjacent channel full
service station? Should an LPFM station
be permitted to remain on the air if the
area of predicted interference does not
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receive service from the full service
station prior to the grant of a
construction permit for a new station or
facilities modification of an existing
station? Should the LPFM station be
permitted to remain on the air if the full
service station’s community of license
would not be subject to predicted
interference? It is always the case that
an ‘‘encroachment’’ issue involves the
licensing of a subsequently filed full
service station application. As such,
would an amendment to 47 CFR 73.809
be consistent with Congress’s directive
barring the reduction of third-adjacent
channel distance separations for ‘‘lowpower FM radio stations’’?
Filing Windows
32. The Commission has not
announced any upcoming filing
windows for new or major change LPFM
applications. MAP requests that the
Commission establish ‘‘regular’’ filing
windows for new LPFM stations.
Currently, all licensable aural services
use some form of a window filing
process for new stations and for major
modifications to authorized stations. As
a general matter, the Commission agrees
that windows should be scheduled at
reasonable intervals for each of the aural
services. However, it would be
premature to schedule a window for the
filing of LPFM new station and major
modification applications at this time.
First, it would be inefficient to open a
window prior to the Commission
completing consideration of the FM
translator and other licensing issues
raised in this FNPRM. Second, the
Media Bureau has recently begun the
process of awarding construction
permits under the new NCE full-service
comparative criteria. Following the
resolution of the approximately 170
‘‘closed’’ NCE groups (consisting of
approximately 870 applications), the
Commission will open a national filing
window for new NCE stations and for
major changes in authorized NCE
facilities, the first such filing
opportunity since April 21, 2000.
Although the Commission recognizes
the critically valuable service that LPFM
stations can play in serving their
communities, this NCE full service
licensing process must remain a higher
priority at this time. The Commission
intends to proceed in a manner that
takes into account the limited staff
resources that can be devoted to
processing applications for service in
the FM band. This approach will, in the
long run, permit the more prompt
processing of applications filed in the
next LPFM window, a goal endorsed by
numerous LPFM advocates.
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III. Procedural Matters
Regulatory Flexibility Act
33. As required by the Regulatory
Flexibility Act, the Commission has
prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the
possible significant economic impact on
a substantial number of small entities of
the proposals addressed in this FNPRM.
Written public comments are requested
on the IRFA. These comments must be
filed in accordance with the same filing
deadlines for comments on the FNPRM,
and they should have a separate and
distinct heading designating them as
responses to the IRFA. The Commission
will send a copy of the FNPRM,
including this IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA). See 5
U.S.C. 603(a).
Need for, and Objectives of, the Second
Order on Reconsideration
34. Since the LPFM service was
created in 2000, the experiences of
LPFM applicants, permittees, and
licensees have demonstrated that the
Commission’s LPFM rules may need
some adjustment in order to ensure that
the Commission maximizes the value of
the LPFM service without harming the
interests of full-power FM stations or
other Commission licensees. In this
FNPRM, the Commission seeks
comment on a number of technical and
ownership issues related to LPFM. The
Commission believes this proceeding
will result in an improved LPFM
service, while maintaining the integrity
of the FM service.
Description and Estimate of the Number
of Small Entities to Which Rules Will
Apply
35. 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, if adopted. See 5 U.S.C.
603(b)(3). The RFA generally defines the
term ‘‘small entity’’ as having the same
meaning as the terms ‘‘small business,’’
small organization,’’ and ‘‘small
government jurisdiction.’’ 5 U.S.C.
601(6). In addition, the term ‘‘small
business’’ has the same meaning as the
term ‘‘small business concern’’ under
the SBA. 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.
36. The Small Business
Administration (SBA) defines a radio
broadcasting station that has $5 million
or less in annual receipts as a small
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Sfmt 4702
39225
business. See 13 CFR 121.201. A radio
broadcasting station is an establishment
primarily engaged in broadcasting aural
programs by radio to the public.
Included in this industry are
commercial, religious, educational, and
other radio stations. The 1992 Census
indicates that 96 percent (5,861 of
6,127) of radio station establishments
produced less than $5 million in
revenue in 1992.
37. The Commission’s LPFM rules
apply to a new category of FM radio
broadcasting service. As of the date of
release of this FNPRM, the
Commission’s records indicate that
more than 1,175 LPFM construction
permits have been granted. Of these
1,175 permits, approximately 590
stations are on the air, serving mostly
mid-sized and smaller markets. It is not
known how many entities ultimately
may seek to obtain low power radio
licenses. Nor does the Commission
know how many of these entities will be
small entities. The Commission expects,
however, that due to the small size of
low power FM stations, small entities
would generally have a greater interest
than large ones in acquiring them.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
38. The FNPRM seeks comment on a
number of technical and ownership
issues related to LPFM. The potential
reporting requirements that could be
adopted include: (i) applications to be
filed to seek authority for assignment of
an LPFM station or transfer of control of
an LPFM permittee or licensee; (ii)
waiver requests for assignment of an
LPFM station or transfer of control of an
LPFM permittee or licensee, pending
the Commission’s consideration of the
issues raised in the FNPRM; (iii) forms
to be filed by new applicants or
proposed assignees or transferees to
demonstrate local eligibility and/or
compliance with a multiple ownership
prohibition; (iv) renewal applications to
be filed by involuntary time-share
licensees; (v) waiver requests for
extension of an LPFM construction
period; and (vi) applications to be filed
seeking approval to centrally relocate a
transmitter site in the case of a
voluntary time share proposal.
Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
39. 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
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Federal Register / Vol. 70, No. 129 / Thursday, July 7, 2005 / Proposed Rules
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. See 5 U.S.C.
603(c)(1)–(c)(4).
40. The LPFM service has created and
will continue to create significant
opportunities for new small businesses.
In addition, the Commission generally
has taken steps to minimize the impact
on existing small broadcasters. To the
extent that rules proposed in the
FNPRM would impose any burdens on
small entities, the Commission believes
that the resulting impact on small
entities would be favorable because the
proposed rules, if adopted, would
expand opportunities for LPFM
applicants, permittees, and licensees to
commence broadcasting and stay on the
air.
41. The Commission will send a copy
of this FNPRM in a report to Congress
and the Government Accountability
Office pursuant to the Congressional
Review Act, 5 U.S.C. 801(a)(1)(A).
Ex Parte Rules
42. Permit-But-Disclose. This
proceeding will be treated as a ‘‘permitbut-disclose’’ proceeding subject to the
‘‘permit-but-disclose’’ requirements
under 47 CFR 1.1206(b). Ex parte
presentations are permissible if
disclosed in accordance with
Commission rules, except during the
Sunshine Agenda period when
presentations, ex parte or otherwise, are
generally prohibited. Persons making
oral ex parte presentations are reminded
that a memorandum summarizing a
presentation must contain a summary of
the substance of the presentation and
not merely a listing of the subjects
discussed. More than a one-or twosentence description of the views and
arguments presented is generally
required. Additional rules pertaining to
oral and written presentations are set
forth in 47 CFR 1.1206(b).
Filing Requirements
43. Comments and Replies. Pursuant
to 47 CFR 1.415 and 1.419, interested
parties may file comments and reply
comments on or before 30 days after
publication in the Federal Register and
reply comments on or before 45 days
after publication in the Federal
Register. Comments may be filed using:
(1) The Commission’s Electronic
Comment Filing System (ECFS), (2) the
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16:01 Jul 06, 2005
Jkt 205001
Federal Government’s eRulemaking
Portal, or (3) by filing paper copies.
44. Electronic Filers: Comments may
be filed electronically using the Internet
by accessing the ECFS: https://
www.fcc.gov/cgb/ecfs/ or the Federal
eRulemaking Portal: https://
www.regulations.gov. Filers should
follow the instructions provided on the
Web site for submitting comments. For
ECFS filers, if multiple docket or
rulemaking numbers appear in the
caption of this proceeding, filers must
transmit one electronic copy of the
comments for each docket or
rulemaking number referenced in the
caption. In completing the transmittal
screen, filers should include their full
name, U.S. Postal Service mailing
address, and the applicable docket or
rulemaking number. Parties may also
submit an electronic comment by
Internet e-mail. To get filing
instructions, filers should send an email to ecfs@fcc.gov, and include the
following words in the body of the
message: ‘‘get form.’’ A sample form and
directions will be sent in response.
45. Paper Filers: Parties who choose
to file by paper must file an original and
four copies of each filing. If more than
one docket or rulemaking number
appears in the caption of this
proceeding, filers must submit two
additional copies for each additional
docket or rulemaking number. Filings
can be sent by hand or messenger
delivery, by commercial overnight
courier, or by first-class or overnight
U.S. Postal Service mail (although the
Commission continues to experience
delays in receiving U.S. Postal Service
mail). All filings must be addressed to
the Commission’s Secretary, Office of
the Secretary, Federal Communications
Commission.
• The Commission’s contractor will
receive hand-delivered or messengerdelivered paper filings for the
Commission’s Secretary at 236
Massachusetts Avenue, NE., Suite 110,
Washington, DC 20002. The filing hours
at this location are 8 a.m. to 7 p.m. All
hand deliveries must be held together
with rubber bands or fasteners. Any
envelopes must be disposed of before
entering the building.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9300
East Hampton Drive, Capitol Heights,
MD 20743.
• U.S. Postal Service first-class,
Express, and Priority mail should be
addressed to 445 12th Street, SW.,
Washington DC 20554.
46. In addition to filing comments
with the Office of the Secretary, a copy
of any comments on the Paperwork
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Frm 00033
Fmt 4702
Sfmt 4702
Reduction Act information collection
requirements contained herein should
be submitted to Cathy Williams Federal
Communications Commission, Room 1–
C804, 445 12th Street, SW., Washington,
DC 20554, or via the Internet to
Cathy.Williams@fcc.gov, and to Kristy L.
LaLonde, OMB Desk Officer, Room
10234 NEOB, 725 17th Street, NW.,
Washington, DC 20503, via Internet to
Kristy_L.LaLonde@omb.eop.gov, or via
fax at 202–395–5167.
47. Availability of Documents.
Comments, reply comments, and ex
parte submissions will be available for
public inspection during regular
business hours in the FCC Reference
Center, Federal Communications
Commission, 445 12th Street, SW., CYA257, Washington, DC 20554. These
documents will also be available via
ECFS. Documents will be available
electronically in ASCII, Word 97, and/
or Adobe Acrobat.
48. Accessibility Information. To
request information in accessible
formats (computer diskettes, large print,
audio recording, and Braille), send an email to fcc504@fcc.gov or call the FCC’s
Consumer and Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY). This document can
also be downloaded in Word and
Portable Document Format (PDF) at:
https://www.fcc.gov.
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rule Changes
For the reasons discussed in the
preamble, the FCC proposes to amend
47 CFR part 73 as follows:
PART 73—RADIO BROADCAST
SERVICES
1. The citation authority for part 73
continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
2. Section 73.855 is revised to read as
follows:
§ 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 LPFM
stations.
(b) Not-for-profit organizations and
governmental entities with a public
safety purpose may be granted multiple
licenses if:
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(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.
3. Section 73.865 is revised to read as
follows:
§ 73.865 Assignment and transfer of LPFM
authorizations.
A change in the name of an LPFM
licensee where no change in ownership
or control is involved may be
accomplished by written notification by
the licensee to the Commission.
4. Section 73.870 is amended by
revising paragraph (a) to read as follows:
§ 73.870 Processing of LPFM broadcast
station applications.
(a) Except as provided in § 73.872(c),
a minor change for an LP100 station
authorized under this subpart is limited
to transmitter site relocations of 5.6
kilometers or less. Except as provided in
§ 73.872(c), a minor change for an LP10
station authorized under this subpart is
limited to transmitter site relocations of
3.2 kilometers or less. Minor changes of
LPFM stations may include changes in
frequency to adjacent or IF frequencies
or, upon a technical showing of reduced
interference, to any frequency.
*
*
*
*
*
5. Section 73.871 is amended by
revising paragraph (c) to read as follows:
§ 73.871 Amendment of LPFM broadcast
station applications.
*
*
*
*
*
(c) Only minor amendments to new
and major change applications will be
accepted after the close of the pertinent
filing window. Subject to the provisions
of this section, such amendments may
be filed as a matter of right by the date
specified in the FCC’s Public Notice
announcing the acceptance of such
applications. For the purposes of this
section, and except as provided in
§ 73.872(c), minor amendments are
limited to:
(1) Site relocations of 3.2 kilometers
or less for LP10 stations;
(2) Site relocations of 5.6 kilometers
or less for LP100 stations;
(3) Changes in ownership where the
original party or parties to an
application retain more than a 50
percent ownership interest in the
application as originally filed; and
(4) Other changes in general and/or
legal information.
*
*
*
*
*
6. Section 73.872 is amended by
revising paragraphs (c) introductory
text, (c)(1), and (d)(1) to read as follows:
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Jkt 205001
§ 73.872 Selection procedure for mutually
exclusive LPFM 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 submitting,
within 90 days of the release of a public
notice announcing the tie, a time-share
proposal. Such proposals shall be
treated as amendments to the time-share
proponents’ applications and shall
become part of the terms of the station
license. Such proposals may include
amendments to the applications
proposing to relocate the transmitter to
a central location between the proposed
transmitter sites, notwithstanding the
site relocation limits set forth in
§§ 73.870 and 73.871. 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 to determine
the tentative selectees.
(1) Time-share proposals shall be in
writing and signed by each time-share
proponent, and shall satisfy the
following requirements:
(i) The proposal must specify the
proposed hours of operation of each
time-share proponent;
(ii) The proposal must not include
simultaneous operation of the timeshare proponents;
(iii) Each time-share proponent must
propose to operate for at least 10 hours
per week; and
(iv) If the time-share proponents
propose to relocate the transmitter site
to a central location beyond the site
relocation limits set forth in § 73.871,
the proposal must demonstrate that the
proposed transmitter site is centrally
located.
*
*
*
*
*
(d) * * *
(1) If a tie among mutually exclusive
applications is not resolved through
time-sharing in accordance with
paragraph (c) of this section, the tied
applications will be reviewed for
acceptability and applicants with tied,
grantable applications will be eligible
for equal, successive license terms of no
less than one year each for a total
combined term of eight years, in
accordance with § 73.873. Eligible
applications will be granted
simultaneously, and the sequence of the
applicants’ license terms will be
determined by the sequence in which
they file applications for licenses to
cover their construction permits based
on the day of filing, except that eligible
applicants proposing same-site facilities
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39227
will be required, within 30 days of
written notification by Commission
staff, to submit a written settlement
agreement as to construction and license
term sequence. Failure to submit such
an agreement will result in the dismissal
of the applications proposing same-site
facilities and the grant of the remaining,
eligible applications.
*
*
*
*
*
7. Section 73.3598 is amended by
revising paragraph (a) to read as follows:
§ 73.3598
Period of construction.
(a) Each original construction permit
for the construction of a new TV, AM,
FM, or International Broadcast; low
power TV; TV translator; TV booster;
FM translator; FM booster; or LPFM
station, or to make changes in such
existing stations, shall specify a period
of three years from the date of issuance
of the original construction permit
within which construction shall be
completed and application for license
filed.
*
*
*
*
*
[FR Doc. 05–13369 Filed 7–6–05; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018–AT88
Endangered and Threatened Wildlife
and Plants; Reopening of the
Comment Period on Proposed
Designation of Critical Habitat for the
Southwestern Willow Flycatcher
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule; reopening of
public comment period.
AGENCY:
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the public comment period
for the proposal to designate critical
habitat for the southwestern willow
flycatcher (Empidonax traillii extimus)
to allow all interested parties to
comment on the proposed critical
habitat designation under the
Endangered Species Act of 1973, as
amended (Act) (16 U.S.C. 1531 et seq.);
the draft economic analysis; draft
environmental assessment; and the
associated required determinations
discussed below.
Comments previously submitted on
the October 12, 2004, proposed rule (69
FR 60705), and the December 13, 2004
(69 FR 72161), March 31, 2005 (70 FR
E:\FR\FM\07JYP1.SGM
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Agencies
[Federal Register Volume 70, Number 129 (Thursday, July 7, 2005)]
[Proposed Rules]
[Pages 39217-39227]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-13369]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 99-25; FCC 05-75]
Creation of a Low Power Radio Service
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission seeks comment on ownership
and eligibility issues related to low power FM (LPFM) authorizations,
including: whether LPFM authorizations should be transferable and, if
so, whether transferability should be broadly permitted or limited to
special circumstances; whether to extend the deadline for submission of
a time-share proposal after a mutually exclusive group of LPFM
applicants is announced; whether to permit renewal of licenses granted
under involuntary time-sharing, successive license term procedures;
whether to permanently restrict ownership of LPFM stations to local
entities; and whether to permanently prohibit multiple ownership of
LPFM stations. The Commission also seeks comment on technical issues
related to LPFM authorizations, including: whether to extend the LPFM
construction period to 36 months; whether to allow applicants
submitting a time-share proposal to relocate the transmitter to a
central location, notwithstanding the site relocation limits for minor
amendments; whether and, if so, under what conditions LPFM applications
should be treated as having ``primary'' status with respect to prior-
filed FM translator applications and existing FM translator stations;
and whether an LPFM station should be permitted to continue to operate
even when interference is predicted to occur within the 70 dBu contour
of a subsequently-authorized second- or third-adjacent channel full
service FM station.
DATES: Comments must be filed on or before August 8, 2005, and reply
comments must be filed on or before August 22, 2005. Written comments
on the proposed information collection requirements contained in the
document must be submitted by the public, the Office of Management and
Budget (OMB), and other interested parties on or before September 6,
2005.
ADDRESSES: You may submit comments, identified by MM Docket No. 99-25,
by any of the following methods:
[[Page 39218]]
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: https://
www.fcc.gov/cgb/ecfs. Follow the instructions for submitting comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions on submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Natalie Roisman, Natalie.Roisman@fcc.gov, of the
Media Bureau, Policy Division, (202) 418-2120. For additional
information concerning the Paperwork Reduction Act information
collection requirements contained in this document, contact Cathy
Williams, Federal Communications Commission, 445 12th St., SW., Room 1-
C823, Washington, DC 20554, or via the Internet to
Cathy.Williams@fcc.gov. If you would like to obtain or view a copy of
this revised information collection, you may do so by visiting the FCC
PRA Web page at: https://www.fcc.gov/omd/pra.
SUPPLEMENTARY INFORMATION: This is a summary of the Federal
Communications Commission's Further Notice of Proposed Rulemaking
(FNPRM) FCC 05-75, adopted on March 16, 2005, and released on March 17,
2005. The full text of this document is available for public inspection
and copying during regular business hours in the FCC Reference Center,
Federal Communications Commission, 445 12th Street, SW., CY-A257,
Washington, DC 20554. These documents will also be available via ECFS
(https://www.fcc.gov/cgb/ecfs/). (Documents will be available
electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete
text may be purchased from the Commission's copy contractor, 445 12th
Street, SW., Room CY-B402, Washington, DC 20554. To request this
document in accessible formats (computer diskettes, large print, audio
recording, and Braille), send an e-mail to fcc504@fcc.gov or call the
Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530
(voice), (202) 418-0432 (TTY).
Initial Paperwork Reduction Act of 1995 Analysis
This FNPRM contains proposed information collection requirements.
It will be submitted to the Office of Management and Budget (OMB) for
review under section 3507(d) of the Paperwork Reduction Act of 1995
(PRA), Pub. L. 104-13. The Commission, as part of its continuing effort
to reduce paperwork burdens, invites the general public and OMB to
comment on the proposed information collection requirements contained
in this FNPRM, as required by the PRA. Written comments on the PRA
proposed information collection requirements must be submitted by the
public, OMB, and other interested parties on or before September 6,
2005. Comments should address: (a) Whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; and (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Pub. L. 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on
how we might ``further reduce the information collection burden for
small business concerns with fewer than 25 employees.''
OMB Control Number: 3060-0031.
Title: Application for Consent to Assignment of Broadcast Station
Construction Permit or License; Application for Consent to Transfer
Control of Entity Holding Broadcast Station Construction Permit or
License; Section 73.3580, Local Public Notice of Filing of Broadcast
Applications.
Form Number: FCC Form 314 and FCC Form 315.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities; not-for-profit
institutions.
Number of Respondents: 4,510.
Frequency of Response: On occasion reporting requirement; third
party disclosure requirement.
Estimated Time Per Response: 1 hour to 6 hours.
Total Annual Burden: 15,890 hours.
Total Annual Costs: $33,349,150.
Privacy Impact Assessment: No impact(s).
Needs and Uses: On March 16, 2005 the Commission adopted a 2nd
Order on Reconsideration and Further Notice of Proposed Rulemaking
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM
Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the transfer
and/or assignment of Low Power FM (LPFM) authorizations.
FCC Forms 314 and 315 have been revised to encompass the assignment
of LPFM authorizations, as proposed in the FNPRM, and to reflect the
ownership and eligibility restrictions applicable to LPFM permittees
and licensees.
FCC Form 314 and the applicable exhibits/explanations are required
to be filed when applying for consent for assignment of an AM, FM, TV
or Low Power FM (LPFM) broadcast station construction permit or
license. In addition, the applicant must notify the Commission when an
approved assignment of a broadcast station construction permit or
license has been consummated.
FCC Form 315 and applicable exhibits/explanations are required to
be filed when applying for transfer of control of an entity holding an
AM, FM, TV or LPFM broadcast station construction permit or license. In
addition, the applicant must notify the Commission when an approved
assignment of a broadcast station construction permit or license has
been consummated.
OMB Control Number: 3060-0009.
Title: Application for Consent to Assignment of Broadcast Station
Construction Permit or License or Transfer of Control of Corporation
Holding Broadcast Station Construction Permit or License.
Form Number: FCC Form 316.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities; not-for-profit
institutions; State, local or tribal government.
Number of Respondents: 730.
Frequency of Response: On occasion reporting requirement.
Estimated Time Per Response: 1-4 hours.
Total Annual Burden: 775 hours.
Total Annual Costs: $423,720.
Privacy Impact Assessment: No impact(s).
Needs and Uses: On March 16, 2005 the Commission adopted a 2nd
Order on Reconsideration and Further Notice of Proposed Rulemaking
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM
Docket No. 99-25, FCC 05-75. The FNPRM proposes to permit the
assignment or transfer of control of Low Power FM (LPFM) authorizations
where there is a change in the governing board of the permittee
[[Page 39219]]
or licensee or in other situations analogous to ``pro forma''
assignments or transfers of control for other types of broadcast
authorizations. FCC Form has been revised to encompass the assignment
and transfer on control of these LPFM authorizations.
OMB Control Number: 3060-0920.
Title: Application for Construction Permit for a Low Power FM
Broadcast Station; Report and Order in MM Docket No. 99-25 Creation of
Low Power Radio Service.
Form Number: FCC Form 318.
Type of Review: Revision of a currently approved collection.
Respondents: Not-for-profit institutions; State, local or tribal
government.
Number of Respondents: 16,422.
Frequency of Response: Recordkeeping requirement; on occasion
reporting requirement; third party disclosure requirement.
Estimated Time Per Response: 15 minutes-12 hours.
Total Annual Burden: 33,866 hours.
Total Annual Costs: $23,850.
Privacy Impact Assessment: No impact(s).
Needs and Uses: On March 16, 2005 the Commission adopted a 2nd
Order on Reconsideration and Further Notice of Proposed Rulemaking
(FNRPM), In the Matter of the Creation of a Low Power Radio Service, MM
Docket No. 99-25, FCC 05-75. The FNPRM proposes to amend 47 CFR 73.870
and 73.871 to permit voluntary time-share applicants to relocate an
LPFM transmitter to a central location by filing amendments to their
pending FCC Form 318 applications.
FCC Form 318 is required to: (1) apply for a construction permit
for a new LPFM station, (2) to make changes in the existing facilities
of such a station or (3) to amend a pending FCC Form 318 application.
Summary of the Further Notice of Proposed Rulemaking
I. Introduction
1. In January 2000, the Commission adopted a Report and Order
establishing the low power FM (LPFM) service, Creation of Low Power
Radio Service, 65 FR 7616, February 15, 2000. The Commission authorized
the LPFM service to provide opportunities for new voices to be heard,
while at the same time maintaining the integrity of existing FM radio
service and preserving its ability to transition to a digital
transmission mode. In the Report and Order, the Commission authorized
two classes of LPFM service: The LP100 class, consisting of stations
with a maximum power of 100 watts effective radiated power (ERP) at 30
meters antenna height above average terrain (HAAT), providing an FM
service radius (1 mV/m or 60 dBu) of approximately 3.5 miles (5.6
kilometers), and the LP10 class, consisting of stations with a maximum
power of 10 watts ERP at 30 meters HAAT, providing an FM service radius
of approximately one to two miles (1.6 to 3.2 kilometers). The Report
and Order also imposed separation requirements for LPFM with respect to
full power stations.
2. In the Report and Order, the Commission also established
ownership and eligibility rules for the LPFM service. The Commission
restricted LPFM service to noncommercial educational (NCE) operation by
non-profit entities and public safety radio services. With certain
narrow exceptions, the Commission restricted ownership to entities with
no attributable interest in any other broadcast station or other media
subject to our ownership rules. The Commission prohibited the sale or
transfer of an LPFM station. For the first two years of the LPFM
service, the Commission prohibited multiple ownership of LPFM stations
and limited ownership to locally-based entities. To resolve mutually
exclusive applications, the Commission established a point system that
favors local ownership and locally-originated programming, with time-
sharing and successive license terms as tie-breakers.
3. The Report and Order directed the Mass Media Bureau to announce
by public notice the opening of a national filing window for LP100
applications. In March 2000, the Mass Media Bureau announced that it
would accept LPFM applications in five separate filing windows, each
limited to an application group of ten states and at least one other
U.S. jurisdiction, in order to ``ensure the expeditious implementation
of the LPFM service and to promote the efficient use of Commission
resources.'' See FCC Announces Five-Stage National Filing Window for
Low Power FM Broadcast Station Applications, DA 00-621 (MMB rel. Mar.
17, 2000). The Commission conducted a lottery to determine the order of
the application groups, and the Mass Media Bureau announced that the
first LPFM filing window would open on May 30, 2000. Subsequent filing
windows opened on August 28, 2000, January 16, 2001, and June 11, 2001.
The fourth and fifth LPFM application groups were consolidated into a
single window in order to speed the filing process for applicants in
these states.
4. On reconsideration in September 2000, the Commission issued some
revisions and clarifications, but generally affirmed the decisions
reached in the Report and Order. See 65 FR 67289, November 9, 2000. The
Making Appropriations for the Government of the District of Columbia
for FY 2001 Act (2001 DC Appropriations Act), Pub. L. 106-553 632,
required the Commission to modify its rules to prescribe LPFM station
third-adjacent channel spacing standards and to prohibit any applicant
from obtaining an LPFM station license if the applicant previously had
engaged in the unlicensed operation of a station. As a result of rule
revisions adopted pursuant to the 2001 DC Appropriations Act,
facilities proposed in a number of otherwise technically sufficient
applications filed in the first two LPFM filing windows became short-
spaced to existing full-power FM and/or FM translator stations, and
were subsequently dismissed. The 2001 DC Appropriations Act also
instructed the Commission to conduct an experimental program to
evaluate whether LPFM stations would interfere with existing FM
stations if the LPFM stations were not subject to the additional
channel spacing requirements, and to submit a report to Congress,
including the Commission's recommendations to Congress regarding
reduction or elimination of the minimum separations for third-adjacent
channels. The Commission selected an independent third party, the Mitre
Corporation (Mitre), to conduct the field tests. On February 19, 2004,
the Commission staff submitted the required report to Congress and,
based on the Mitre study, recommended that Congress ``modify the
statute to eliminate the third-adjacent channel distant separation
requirements for LPFM stations.''
5. On February 8, 2005, the Commission held a forum on LPFM. The
forum was intended to inform the Commission of achievements by LPFM
stations and the challenges faced as the service marks its fifth year.
As of March 2005, more than 1,175 LPFM construction permits have been
granted. Of these 1,175 permits, approximately 590 stations are on the
air, serving mostly mid-sized and smaller markets.
6. Since the LPFM service was created, the experiences of LPFM
applicants, permittees, and licensees have demonstrated that the
Commission's LPFM rules may need some adjustment in order to ensure
that the Commission maximize the value of the LPFM service without
harming the interests of full-power FM stations or other Commission
licensees. The Commission's actions in this FNPRM,
[[Page 39220]]
based in part on testimony received at the LPFM forum, are designed to
increase the number of LPFM stations on the air and strengthen the
viability of those stations that are already operating. The Commission
seeks comment on a number of technical and ownership issues related to
LPFM.
II. Further Notice of Proposed Rulemaking
7. In ex parte meetings and filings and at the recent LPFM forum
hosted by the Commission, members of the LPFM community have urged the
Commission to revise certain LPFM rules. Five years after the
establishment of LPFM, the Commission believes it is now appropriate to
assess the practical ramifications of the LPFM rules. The Commission
believes that some of the LPFM community's proposals are appropriate
for further consideration, and seeks comment on them as discussed
below.
Ownership and Eligibility
A. Transferability
8. In the Report and Order, the Commission declined to allow the
sale of LPFM stations. The Commission determined that a prohibition on
transfers or assignments of construction permits and licenses for LPFM
stations would best promote the Commission's interest in ensuring
spectrum use for low power operations as soon as possible, without the
delay associated with license speculation. The Commission concluded
that the goals of the LPFM service would be best met if unused permits
and licenses were returned to the Commission. 47 CFR 73.865 provides
that ``[a]n LPFM authorization may not be transferred or assigned
except for a transfer or assignment that involves: (1) Less than a
substantial change in ownership or control; or (2) An involuntary
assignment of license or transfer of control.'' Based on forum
testimony, ex parte presentations, and requests for waiver of section
73.865 filed with the Media Bureau's Audio Division, the Commission now
believes that the rule prohibiting transfer or assignment of LPFM
construction permits or licenses may be unduly restrictive and may
hinder, rather than promote, LPFM service. The Commission therefore
seeks comment on whether to permit the transfer and/or assignment of
LPFM authorizations and, if so, whether transfer or assignment should
be broadly permitted or limited to special circumstances. The
Commission also seeks comment on the effect, if any, of a change in
transferability with respect to ownership amendments to pending LPFM
new and major change applications.
9. First, the Commission seeks comment on whether to amend its
rules to permit the transfer of control of LPFM licensee entities. If
the Commission permits the transfer of control of LPFM licensees,
should any restrictions be imposed on such transfers, beyond the
requirement that the licensee entity continue to meet the LPFM
eligibility criteria? The Commission seek comment regarding the types
of organizational structures utilized by LPFM licensees and how
transfers of control of LPFM licensees, if permitted, would be
effectuated. For example, are LPFM licensees likely to undergo
transfers of control by virtue of changes in governing boards, shifting
composition of membership bodies, acquisition of a licensee by another
organization, or other means? Because the question has been raised
frequently on the record, the Commission seeks comment more
specifically on whether and how to amend our rules to permit the
transfer of control of an LPFM licensee in the case of a sudden change
in the majority of a governing board. On reconsideration in 2000, the
Commission clarified that the gradual change of a governing board or
membership body to the point that a majority of its members are new
since the authorization was granted will not, by itself, constitute a
prohibited transfer of control. The Commission's rules, however, do not
permit a sudden change in the board or membership of an LPFM licensee,
which would constitute an impermissible transfer of control. Several
panelists at the recent LPFM forum testified that this restriction
causes unnecessary complications for LPFM licensees. The Media Access
Project (MAP) has requested that the Commission modify its rules so
that typical board changes on a non-profit board will be permissible
under the Commission's rules. Prometheus Radio Project (Prometheus)
argues that if the LPFM service is to be accessible to community
groups, its regulations must take into account that changes in
governing boards are part of the nature of existence of such groups.
Based on the record, the Commission proposes to amend its rules to
permit changes of more than 50 percent of the membership of governing
boards that occur suddenly, in addition to the gradual board changes
that are currently permitted under the rules. The Commission seeks
comment on this proposal.
10. Similarly, the Commission seeks comment on whether to amend the
rules to permit the assignment of LPFM authorizations from the licensee
to another entity. If LPFM authorizations may be assigned and control
of LPFM licensees may be transferred, should the Commission allow
consideration for these transactions? In short, should the Commission
permit the sale of LPFM stations? If so, should the Commission
establish a holding period during which a station may not be sold at
all, or may not be sold for more than the licensee's legitimate and
prudent expenses? The Commission seeks comment below on whether to
permanently restrict eligibility for LPFM authorizations to local
entities and/or permanently prohibit multiple ownership of LPFM
stations and how any actions in that regard should affect assignments
and transfers.
11. Finally, assuming that the Commission amends the rules to
permit transfer and/or assignment of LPFM authorizations, what
procedures should be implemented to ensure the integrity of the process
and the promotion of local service? Can general guidelines be
established for the transfer of control or assignment of LPFM stations,
or should the Commission delegate to the Media Bureau authority to
review proposed transfers and assignments on a case-by-case basis? In
particular, the Commission seeks comment on the process by which LPFM
permittees and licensees may request approval for or report transfers
of control. For LPFM licensees with a traditional corporate
organizational structure, should the Commission apply the rules
governing transfers of control of stock corporations? (With respect to
traditional corporations, the Commission has developed general
guidelines for determining where control resides, what constitutes a
transfer of control, and how permittees and licensees may seek approval
of such transfers). Given the non-profit nature of LPFM licensees, it
is likely that many LPFM authorizations are held by non-stock
corporations. The Commission has never formally adopted a policy
setting forth a clear standard for transfers of control by non-stock
corporations. In 1989, the Commission issued a notice of inquiry (NOI)
regarding transfers of non-stock corporations, but the proceeding did
not reach the rulemaking stage. Nevertheless, this notice of inquiry
may provide helpful guidance in establishing the process by which the
Commission will consider transfers of control of LPFM licensees, if
such transfers are permitted. In the NOI, the Commission proposed that
gradual changes in the governing boards of membership
[[Page 39221]]
organizations and governmental entities--even if the changes ultimately
resulted in the replacement of a majority of the original board
members--would not be considered transfers of control within the
meaning of the Act, and would need to be reported only as appropriate
on the licensee's ownership reports. This approach is consistent with
the Commission's clarification regarding LPFM stations on
reconsideration in 2000. Under the proposal in the NOI, a sudden change
in a majority of the governing board of a membership organization or
governmental entity would be considered an insubstantial transfer of
control, subject to a modified ``short form'' consent procedure,
including the filing of an FCC Form 316. The Commission seeks comment
on whether to adopt a similar approach for changes in governing boards
of LPFM licensees that are non-stock entities.
12. As discussed in detail above, the current rule prohibiting the
transfer of LPFM stations is hampering the LPFM service by, for
example, impeding routine transitions to new governing boards and
limiting the ability of an LPFM licensee to assign its license to a
new, jointly-controlled entity composed of several similarly focused
organizations. Introducing some level of transferability to the LPFM
service is critical, and delaying relief to LPFM stations until this
proceeding is completed will not serve the public interest.
Accordingly, the Commission delegates to the Media Bureau authority to
consider, on a case-by-case basis, requests for waivers of 47 CFR
73.865. The Media Bureau may grant a waiver upon determination that
such waiver will maximize spectrum use for low power FM operations. For
example, waiver may be appropriate, assuming the public interest would
be served, in certain circumstances: a sudden change in the majority of
a governing board with no change in the organization's mission;
development of a partnership or cooperative effort between local
community groups, one of which is the licensee; and transfer to another
local entity upon the inability of the current licensee to continue
operations. This is not an exhaustive list of circumstances appropriate
for waiver. However, until the Commission has further considered the
transferability issue, waiver is not appropriate to permit the for-
profit sale of an LPFM station to any entity or the transfer of an LPFM
station to a non-local entity or an entity that owns another LPFM
station.
B. Ownership and Eligibility Limitations
13. In the Report and Order, the Commission placed certain
restrictions on LPFM ownership for the first two years after the
opening of the first filing window for the LPFM service. First, for the
first two years, no entity may own more than one LPFM station. After
the first two years, one entity may own up to five stations nationally,
and after the first three years, an entity may own up to ten stations
nationwide. No entity may own more than 10 LPFM stations. Second, for
the initial and subsequent windows opened within two years of the first
filing window for LPFM, all LPFM applicants were required to be based
within 10 miles of the station they sought to operate. Beginning two
years after the first window for LPFM service opened, non-local
applicants were eligible to apply for LPFM stations. UCC requests that
the Commission permanently prohibit multiple ownership and either
permanently restrict eligibility to local entities or extend the
restriction for an additional period of time.
14. The Commission adopted these rules in order to foster diversity
and to maximize the opportunities for applicants to obtain LPFM
authorizations by disallowing any common ownership of LPFM stations
during the start-up of the service. After the start-up phase was over,
however, the Commission allowed the accumulation of additional stations
where local applicants had not applied. The Commission stated in the
Report and Order that, in addition to ensuring the fullest use of LPFM
spectrum in the long term, this approach would balance the interests of
local entities, whom the Commission expected to be the first entrants
in the service, and national NCE entities, which the Commission
anticipated would be interested in additional local outlets to increase
their reach and achieve certain efficiencies of operation. Our
intention was to make it more likely that local entities would operate
this service, but to ensure that if no local entities came forward, the
available spectrum would not go unused. On reconsideration, the
Commission considered a request from UCC to extend the two-year time
periods for the community-based requirement and the national cap, and
concluded that the Report and Order struck an appropriate balance
between the interests of local groups and the Commission's interest in
ensuring that the LPFM service is used fully. Accordingly, the
Commission declined to modify these rules at that time.
15. Now that more than two years has passed since the first set of
LPFM filing windows, the Commission seeks comment regarding whether to
amend the rules to reinstate for a period of time or make permanent the
restrictions regarding local entities and multiple ownership. Would a
continued limitation on multiple ownership foster diversity of
programming and viewpoint or would it prevent LPFM licensees from
achieving economies of scale? Does an eligibility restriction for local
entities ensure local service for listeners or might it result in some
communities losing LPFM service because no local entity seeks to
provide it? Should the Commission permanently restrict eligibility to
local entities but grant a waiver of such restriction in cases in which
the applicant can demonstrate that no local entity has sought to
provide service? The Commission further seeks comment regarding the
relationship between any such restrictions and our consideration
regarding transferability of LPFM stations. Specifically, if the
Commission makes permanent the local entity eligibility restriction and
the prohibition on multiple ownership, how should such limitations be
considered in the context of applications for assignment or transfer of
control of LPFM stations, discussed above?
C. Time-Sharing
16. In the Report and Order, the Commission established a point
system for resolving mutual exclusivity among LPFM applicants. If
mutually exclusive applicants have the same point total, any two or
more of the tied applicants may propose to share use of the frequency
by submitting a time-share proposal within 30 days of the release of a
public notice announcing the tie. Such proposals are treated as
amendments to the time-share proponents' applications and become part
of the terms of the station's license. MAP asserts that because LPFM
applicants have few resources, the 30-day deadline for the submission
of a time-share proposal is too short. MAP has requested that the
Commission extend the submission deadline to 90 days from the date a
mutually exclusive group is announced. The Commission agrees that 30
days may not afford sufficient time for two or more small organizations
to commence and complete negotiations and prepare a time-share proposal
for the Commission's consideration. Accordingly, the Commission
proposes to extend the period to 90 days and seeks comment on this
proposal.
[[Page 39222]]
17. If a tie among mutually exclusive applications is not resolved
through time-sharing, the tied applications are reviewed for
acceptability and applicants with tied, grantable applications are
eligible for equal, successive, non-renewable license terms of no less
than one year each for a total combined term of eight years. In the
Report and Order, although LP100 and LP10 licensees were provided with
the same license terms and renewal expectancy as full-power FM radio
stations, the Commission determined not to extend a renewal expectancy
to licenses granted under these final tie-breaker procedures. The
Commission now believes that the public interest would be better served
by permitting the renewal of viable time-share arrangements, rather
than subjecting operating stations to the uncertainty of window filing
schedules and the risks of the LPFM comparative process. Accordingly,
the Commission tentatively proposes to permit the renewal of licenses
granted under involuntary time-sharing successive license term
procedures. The Commission seeks comment on this proposal and the means
of implementing such renewal expectancy. Should licenses be renewed in
the same order as they are granted, i.e., the sequence in which the
parties file applications for licenses to cover their construction
permits? Increased flexibility in transferability of LPFM licenses,
combined with a renewal expectancy, may result in involuntary time-
sharing licensees modifying their time-sharing arrangements prior to
seeking renewal. The Commission seeks comment on how best to
accommodate such developments in the renewal process.
Technical Rules
A. Construction Period
18. In the Report and Order, the Commission established an 18-month
construction period for both LP10 and LP100 services. The Commission
believed that most permittees would be able to and would have
sufficient incentive to construct their low power stations in a much
shorter time period than other broadcast permittees, given the relative
technical simplicity of such stations. The Commission recognized,
however, that zoning and permitting processes could, in some cases,
delay construction. Accordingly, the Commission afforded permittees 18
months to construct, and stated that the 18-month deadline would be
strictly enforced. The Commission is aware that some LPFM permittees
have met the construction deadline only with great difficulty, and that
some have been unable to complete construction within the 18-month
period. MAP has requested that the Commission waive or extend
construction deadlines to avoid forfeit of LPFM construction permits
for failure to construct. However, the Commission's current policy
regarding all broadcast station construction deadlines is to extend
such deadlines only in extremely limited situations that dictate the
tolling of the construction period: Acts of God; administrative or
judicial review of a construction permit grant; failure of a
Commission-imposed condition precedent on the permit; or judicial
action related to necessary local, state, or federal requirements. See
47 CFR 73.3598. Thus, although some LPFM permittees may face delays
that are outside of their control, if such delays do not qualify under
the tolling rules, a permittee must either complete construction or
forfeit the permit. The policy regarding extension of broadcast station
construction deadlines generally serves the public interest. The
Commission recognizes, however, that the LPFM 18-month construction
period may be too short in some cases. The Commission's intention is to
maximize the likelihood that LPFM permittees will get on the air.
Accordingly, the Commission proposes to extend the LPFM construction
period to three years, the same period afforded other broadcast
permittees, and seeks comment on this proposal.
19. Some LPFM construction permits are scheduled to expire in the
near future, while the Commission is considering this issue, and other
LPFM permittees with expired permits have requests pending before the
Media Bureau for additional time to construct. The Commission adopts an
interim waiver policy to increase the likelihood that these permittees
will complete construction and commence operation. Although the rules
do not generally permit waiver of broadcast construction permit
deadlines, all other broadcast permittees are afforded 36 months to
construct facilities. See 47 CFR 73.3598. Here, where the construction
period is half as long, the Commission finds that waivers generally are
warranted to extend outstanding LPFM construction permits to three
years. Pending Commission action on this FNPRM, the Commission
delegates to the Media Bureau the authority to consider requests for
waiver of the construction period even if the requirements under the
tolling rules are not met. The Media Bureau may determine that a waiver
is appropriate if an LPFM permittee demonstrates that it cannot
complete construction within the allotted 18 months for reasons beyond
its control, that it reasonably expects to be able to complete
construction within the additional 18 months that the construction
extension would provide, and that the public interest would be served
by the extension.
B. Technical Amendments
20. In the Order on Reconsideration accompanying this FNPRM, the
Commission amends 47 CFR 73.871 to permit greater flexibility for
applicants to file minor amendments to relocate transmitter sites.
However, the amended rule will continue to preclude time-sharing
applicants from relocating the transmitter to a central location,
unless such location falls within the new distance limits. UCC has
requested that the Commission amend its rules to allow applicants that
submit a time-share agreement to relocate the transmitter to a central
location, provided one is available in the channel finder. The
Commission agrees that increasing flexibility for time-sharing
applicants to relocate the transmitter will facilitate time-share
arrangements and expedite grant of LPFM licenses. Accordingly, the
Commission proposes to permit applicants that submit a time-sharing
proposal to file a minor amendment proposing to relocate the
transmitter to a central location, notwithstanding the site relocation
limits set forth in 47 CFR 73.871, and seeks comment on this proposal.
C. Interference Protection Requirements
21. As part of the overall plan to protect FM stations from
interference from new LPFM stations, the Report and Order adopted
minimum distance separation requirements for LPFM stations. The
Commission concluded that minimum spacing rules would provide the most
efficient means to process a large number of applications while
ensuring the overall technical integrity of the FM service. Because FM
translator and booster stations generally do not have specific class
limitations, LPFM-FM translator separation requirements were determined
by analyzing the 60 dBu contours of authorized translator stations and
grouping them into three cohorts based on station power and height. The
Report and Order also amended certain part 74 rules to require that FM
translator and booster stations protect the 60 dBu contour of LP100
stations. On reconsideration, the Commission stated that the
interference protections ``place LPFM stations and FM translators on
essentially equal footing'' with respect
[[Page 39223]]
to protecting each other from interference. However, Commission policy
treats translators as a secondary service and a ``proper role of FM
translators among aural services to the public is to provide secondary
service to areas in which direct reception of signals from FM broadcast
stations is unsatisfactory due to distance or intervening terrain
obstructions.'' The Commission declined on reconsideration to eliminate
the protections afforded to LP100 stations because such modifications
would have rendered LPFM stations secondary to translators.
22. LPFM advocates now request that the Commission reassess the
relationship between FM translators and LPFM stations for licensing
purposes. Prometheus argues that because NCE translators may be fed by
satellite, see 47 CFR 74.1231(b), such translators often are used to
retransmit distant signals, contrary to the intended purpose of the
translator service to merely extend the reach of local stations.
Prometheus contends that every new translator that does not expand the
reach of a station originating local programming takes the place of a
potential LPFM station that will originate local programming. In
particular, Prometheus argues that the Commission's March 2003 filing
window for translator applications opened in major cities before a full
LPFM filing window opened, thereby eliminating virtually all
opportunities for new LPFM stations in top-25 markets. Prometheus also
claims that translator applications are being filed not by members of
local communities, but by non-local organizations applying for large
numbers of translator licenses. To overcome the preclusive impact of
the 2003 translator window, Prometheus requests that the Commission
give locally controlled and operated LPFM stations priority over
translators.
23. The Commission agrees that it is appropriate to reevaluate the
current co-equal status of LPFM and FM translator stations as a result
of the extraordinary volume of FM translator construction permit
applications--more than 13,000--filed with the Commission during the
March 2003 filing window. The Media Bureau's Audio Division already has
granted approximately 3,300 new station construction permit
applications from the singleton filings, a number nearly equal to the
total number of FM translator stations licensed and operating prior to
the filing window. Approximately 8,000 applications remain on file. New
LPFM station applications must protect each of these authorized
facilities and pending applications. Because LPFM and FM translator
stations are licensed under fundamentally different technical rules, it
is impossible to determine the precise extent to which the 2003 window-
filed FM translator applications have impacted the potential licensing
of new LPFM stations. In this regard, Prometheus's contention that
every new translator ``takes the place'' of a potential LPFM station is
incorrect. Nonetheless, the Commission is confident that these filings
have had a significant preclusive impact on future LPFM licensing
opportunities based solely on application volume. This impact is of
particular concern because the 2000-2001 national LPFM window filing
process demonstrated that very few opportunities for LPFM stations
remained in major markets at that time. Moreover, as Prometheus notes,
many of the translator applications were filed by a relatively small
number of non-local filers without any apparent connection to the
communities specified in the applications.
24. On the other hand, ``translator-based delivery of broadcast
programming is an important objective,'' and the Commission continues
to support this objective. Some FM translators provide important aural
services to unserved and underserved areas. Translators also are used
to deliver syndicated national programming to well-served communities.
The Commission's rules impose strict ownership limits on commercial
translator licensees, see 47 CFR 74.1232(d), and require the use of
off-air signal delivery systems, see 47 CFR 74.1231(b), for both
commercial and NCE translators operating in the non-reserved FM band.
(The March 2003 window was limited to proposals for non-reserved band
stations, none of which may rebroadcast signals delivered direct to the
station via satellite; thus, the Commission finds misplaced
Prometheus's attempt to link the ``problem'' of the 2003 window to the
satellite delivery rules). These rules generally prohibit a commercial
FM station from using translators to expand service beyond its
protected contour. In contrast, an NCE licensee may own and operate
translators that reach listeners far beyond the service area of its co-
owned primary station. Thus, many NCE licensees use FM translators to
distribute programming throughout the country. Notwithstanding
Prometheus's complaint regarding non-local filers in the March 2003
translator window, this is not a recent development in the FM
translator service.
25. In a notice of inquiry in the broadcast localism proceeding,
the Commission sought comment on how best to harmonize the licensing
processes for FM translators and LPFM stations to enhance localism. See
19 FCC Rcd 12425. As the Commission asked, ``[r]ecognizing that both
LPFM stations and translators provide valuable service, what licensing
rule changes should the Commission adopt to resolve competing demands
by stations in these two services for the same limited spectrum?'' The
Commission seeks comment on whether and, if so, under what conditions
LPFM applications should be treated as having ``primary'' status to
prior-filed FM translator applications and authorized FM translator
stations. Should all LPFM applications have primary status because LPFM
stations are permitted to originate local programming? Should primary
status be limited to LPFM applicants that pledge to originate locally
at least eight hours of programming per day? Should the Commission
provide ``grandfathered'' protection rights to certain classes of FM
translators? Possible class designations include currently licensed and
operating stations; stations licensed prior to the adoption of the
Report and Order; currently authorized translator stations, including
the construction permits issued to the 2003 window filers; and/or
``fill-in'' FM translators but not ``other area'' translator stations.
Should the Commission dismiss all pending applications for new FM
translator stations and make potential refilings subject to the
resolution of the licensing issues raised in this proceeding? Should
the Commission dismiss the pending mutually exclusive FM translator
applications? As an interim measure while considering these important
questions, the Commission directs the Media Bureau to stop granting FM
translator new station construction permits for which short-form
applications were filed in the 2003 window. This freeze is effective
upon the release of this FNPRM and shall remain in effect for six
months.
26. In addition to requesting that the Commission grant LPFM
stations priority with respect to FM translators, some LPFM advocates
have requested that the Commission adopt more flexible technical
licensing rules for the LPFM service as a partial remedy to the
preclusive impact of the FM translator filings and limited LPFM
spectrum availability in many large and medium-sized communities.
Specifically, they have requested that LPFM applicants be permitted to
utilize the contour overlap interference protection approach, rather
than mileage separations. Adoption of a
[[Page 39224]]
contour overlap approach is statutorily barred at this time. Congress
has mandated the use of a distance separation methodology to protect FM
stations from LPFM station interference by directing the Commission to
prescribe co-, first-, second-, and third-adjacent channel ``minimum
distance separations'' for LPFM stations. Thus, the Commission may not
use the fundamentally different contour methodology to license LPFM
stations.
27. Even if the Commission were not statutorily prohibited from
adopting a contour approach, significant policy considerations weigh in
favor of continuing to license LPFM stations in accordance with the
minimum distance separation methodology adopted in the Report and
Order. This protection scheme is modeled on the certain ``go-no go''
predicted interference licensing methodology utilized for commercial FM
stations. Although this methodology is more restrictive than the FM
translator contour methodology, implementation of LPFM minimum distance
separation requirements has proven to be simple and reliable, and
therefore appropriate for the LPFM service. Because adoption of a
contour methodology would require the preparation of complex and costly
engineering exhibits, such approach would inevitably result in higher
application error rates, extended processing time frames, and licensing
delays. The Media Bureau has processed over 3000 applications from the
first LPFM window. At this point, it is abundantly clear that many LPFM
applicants had significant problems successfully preparing basic
technical showings, completing simplified application forms, and
responding to staff requests for required amendments. Excluding the
Congressionally mandated dismissals of applications that failed to
protect full service stations operating on third-adjacent channels, the
staff dismissed approximately one-third of all applications for basic
technical and legal defects. The Commission believes that the more
complex contour methodology would create even more processing problems.
In addition, the choice of a distance separation methodology was
critically important in the Audio Division's development of the
extremely accessible and successful LPFM channel finder tool utility.
28. An equally important policy consideration is that an integral
part of the more flexible translator rules, 47 CFR 74.1203(a), would be
wholly inappropriate for the LPFM service. Under this rule, an FM
translator may not cause any actual interference to any authorized
broadcast station. (In contrast, an LPFM station may continue to
operate when it would cause interference within the 60 dBu contour, but
not 70 dBu contour, of a full service FM station; in addition, if an
LPFM station is predicted to cause interference within a full service
station's 70 dBu contour, it may continue to operate if it can show
that actual interference would be unlikely). This rule is a necessary
complement to the more flexible translator contour rule, essentially
shifting to translator applicants, permittees, and licensees the risk
that a translator must go off the air if interference cannot be
eliminated. The 47 CFR 73.1203(a) interference complaint procedure
regularly results in the cancellation of FM translator authorizations
by the Media Bureau. The risks associated with a rule prohibiting any
interference, such as the rule applicable to translators, far outweigh
the potential benefit of additional LPFM licensing opportunities that
use of the contour method might afford. The Commission believes that it
would be inappropriate to expose community organizations with limited
funds and little technical and legal sophistication to this kind of
uncertainty, particularly given the effort invested by organization
members, station management, and numerous volunteers. Given the high
level of uncertainty associated with the more flexible translator
allocation scheme, adoption of this approach for LPFM seems ill-advised
in light of the interest expressed by many LPFM operators for greater
``primary'' status and for greater protection against ``encroachments''
from new full power stations and facility modifications by existing
stations.
D. Protection From Subsequently Authorized Full Service FM Stations
29. Full-service FM stations, including subsequently authorized new
stations, facility modifications, and upgrades, are not required to
protect facilities specified in LPFM applications or authorizations. In
order to provide a measure of stability to operating LPFM stations,
however, the Commission concluded in the Report and Order that an LPFM
station generally may continue to operate even if it is predicted to
cause interference within the protected service contour of a
subsequently authorized FM service, including new stations and
facilities modifications or upgrades of existing stations. Under 47 CFR
73.809, LPFM stations are responsible for resolving all allegations of
actual interference to the reception of a co-channel or first-, second-
, or third-adjacent channel full service station within the full
service station's 70 dBu contour. This rule requires an LPFM station to
cease operations if the LPFM station cannot demonstrate that
interference is unlikely to occur.
30. Although to date only one LPFM station has been forced off the
air pursuant to this procedure, operating LPFM stations have expressed
concerns about the potential impact of ``encroaching'' full-service
stations. MAP has requested that the Commission adopt a ``processing
policy'' that would permit the denial of a full service FM station's
modification application if ``grant of the application will deny a
local community content by reducing the coverage area available to LPFM
stations.'' Such an ad hoc processing policy would afford any degree of
certainty to operating LPFM stations. Moreover, the Commission
disagrees with the basic thrust of this proposal, which effectively
would provide primary status to LPFM stations with respect to
subsequently filed applications for new or modified full service
station facilities. As stated in the Report and Order, ``[w]e do not
believe that an LPFM station should be given an interference protection
right that would prevent a full-service station from seeking to modify
its transmission facilities or upgrade to a higher service class. Nor
should LPFM stations foreclose opportunities to seek new full-service
radio stations.'' It would be useful, however, to consider whether to
limit the 47 CFR 73.809 interference procedures to situations involving
co- and first-adjacent channel predicted interference, where the
predicted interference areas are substantially greater than for second-
and third-adjacent channel interference. Although the effective service
area of an LPFM station could be diminished as a result of a second-or
third-adjacent channel full service station ``move-in,'' the predicted
interference area to the full service station would be limited to a
small area in the immediate vicinity of the LPFM station transmitter
site. In these circumstances, the public interest may favor continued
LPFM second- and third-adjacent channel operations over a subsequently
authorized upgrade or new full service station.
31. The Commission seeks comment on whether to amend 47 CFR 73.809.
Should an LPFM station be permitted to continue to operate even when
interference is predicted to occur within the 70 dBu contour of an
``encroaching'' second-or third-adjacent channel full service station?
Should an LPFM station be permitted to remain on the air if the area of
predicted interference does not
[[Page 39225]]
receive service from the full service station prior to the grant of a
construction permit for a new station or facilities modification of an
existing station? Should the LPFM station be permitted to remain on the
air if the full service station's community of license would not be
subject to predicted interference? It is always the case that an
``encroachment'' issue involves the licensing of a subsequently filed
full service station application. As such, would an amendment to 47 CFR
73.809 be consistent with Congress's directive barring the reduction of
third-adjacent channel distance separations for ``low-power FM radio
stations''?
Filing Windows
32. The Commission has not announced any upcoming filing windows
for new or major change LPFM applications. MAP requests that the
Commission establish ``regular'' filing windows for new LPFM stations.
Currently, all licensable aural services use some form of a window
filing process for new stations and for major modifications to
authorized stations. As a general matter, the Commission agrees that
windows should be scheduled at reasonable intervals for each of the
aural services. However, it would be premature to schedule a window for
the filing of LPFM new station and major modification applications at
this time. First, it would be inefficient to open a window prior to the
Commission completing consideration of the FM translator and other
licensing issues raised in this FNPRM. Second, the Media Bureau has
recently begun the process of awarding construction permits under the
new NCE full-service comparative criteria. Following the resolution of
the approximately 170 ``closed'' NCE groups (consisting of
approximately 870 applications), the Commission will open a national
filing window for new NCE stations and for major changes in authorized
NCE facilities, the first such filing opportunity since April 21, 2000.
Although the Commission recognizes the critically valuable service that
LPFM stations can play in serving their communities, this NCE full
service licensing process must remain a higher priority at this time.
The Commission intends to proceed in a manner that takes into account
the limited staff resources that can be devoted to processing
applications for service in the FM band. This approach will, in the
long run, permit the more prompt processing of applications filed in
the next LPFM window, a goal endorsed by numerous LPFM advocates.
III. Procedural Matters
Regulatory Flexibility Act
33. As required by the Regulatory Flexibility Act, the Commission
has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the
possible significant economic impact on a substantial number of small
entities of the proposals addressed in this FNPRM. Written public
comments are requested on the IRFA. These comments must be filed in
accordance with the same filing deadlines for comments on the FNPRM,
and they should have a separate and distinct heading designating them
as responses to the IRFA. The Commission will send a copy of the FNPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). See 5 U.S.C. 603(a).
Need for, and Objectives of, the Second Order on Reconsideration
34. Since the LPFM service was created in 2000, the experiences of
LPFM applicants, permittees, and licensees have demonstrated that the
Commission's LPFM rules may need some adjustment in order to ensure
that the Commission maximizes the value of the LPFM service without
harming the interests of full-power FM stations or other Commission
licensees. In this FNPRM, the Commission seeks comment on a number of
technical and ownership issues related to LPFM. The Commission believes
this proceeding will result in an improved LPFM service, while
maintaining the integrity of the FM service.
Description and Estimate of the Number of Small Entities to Which Rules
Will Apply
35. 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, if adopted. See 5 U.S.C. 603(b)(3).
The RFA generally defines the term ``small entity'' as having the same
meaning as the terms ``small business,'' small organization,'' and
``small government jurisdiction.'' 5 U.S.C. 601(6). In addition, the
term ``small business'' has the same meaning as the term ``small
business concern'' under the SBA. 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.
36. The Small Business Administration (SBA) defines a radio
broadcasting station that has $5 million or less in annual receipts as
a small business. See 13 CFR 121.201. A radio broadcasting station is
an establishment primarily engaged in broadcasting aural programs by
radio to the public. Included in this industry are commercial,
religious, educational, and other radio stations. The 1992 Census
indicates that 96 percent (5,861 of 6,127) of radio station
establishments produced less than $5 million in revenue in 1992.
37. The Commission's LPFM rules apply to a new category of FM radio
broadcasting service. As of the date of release of this FNPRM, the
Commission's records indicate that more than 1,175 LPFM construction
permits have been granted. Of these 1,175 permits, approximately 590
stations are on the air, serving mostly mid-sized and smaller markets.
It is not known how many entities ultimately may seek to obtain low
power radio licenses. Nor does the Commission know how many of these
entities will be small entities. The Commission expects, however, that
due to the small size of low power FM stations, small entities would
generally have a greater interest than large ones in acquiring them.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
38. The FNPRM seeks comment on a number of technical and ownership
issues related to LPFM. The potential reporting requirements that could
be adopted include: (i) applications to be filed to seek authority for
assignment of an LPFM station or transfer of control of an LPFM
permittee or licensee; (ii) waiver requests for assignment of an LPFM
station or transfer of control of an LPFM permittee or licensee,
pending the Commission's consideration of the issues raised in the
FNPRM; (iii) forms to be filed by new applicants or proposed assignees
or transferees to demonstrate local eligibility and/or compliance with
a multiple ownership prohibition; (iv) renewal applications to be filed
by involuntary time-share licensees; (v) waiver requests for extension
of an LPFM construction period; and (vi) applications to be filed
seeking approval to centrally relocate a transmitter site in the case
of a voluntary time share proposal.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
39. 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
[[Page 39226]]
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. See
5 U.S.C. 603(c)(1)-(c)(4).
40. The LPFM service has created and will continue to create
significant opportunities for new small businesses. In addition, the
Commission generally has taken steps to minimize the impact on existing
small broadcasters. To the extent that rules proposed in the FNPRM
would impose any burdens on small entities, the Commission believes
that the resulting impact on small entities would be favorable because
the proposed rules, if adopted, would expand opportunities for LPFM
applicants, permittees, and licensees to commence broadcasting and stay
on the air.
41. The Commission will send a copy of this FNPRM in a report to
Congress and the Government Accountability Office pursuant to the
Congressional Review Act, 5 U.S.C. 801(a)(1)(A).
Ex Parte Rules
42. Permit-But-Disclose. This proceeding will be treated as a
``permit-but-disclose'' proceeding subject to the ``permit-but-
disclose'' requirements under 47 CFR 1.1206(b). Ex parte presentations
are permissible if disclosed in accordance with Commission rules,
except during the Sunshine Agenda period when presentations, ex parte
or otherwise, are generally prohibited. Persons making oral ex parte
presentations are reminded that a memorandum summarizing a presentation
must contain a summary of the substance of the presentation and not
merely a listing of the subjects discussed. More than a one-or two-
sentence description of the views and arguments presented is generally
required. Additional rules pertaining to oral and written presentations
are set forth in 47 CFR 1.1206(b).
Filing Requirements
43. Comments and Replies. Pursuant to 47 CFR 1.415 and 1.419,
interested parties may file comments and reply comments on or before 30
days after publication in the Federal Register and reply comments on or
before 45 days after publication in the Federal Register. Comments may
be filed using: (1) The Commission's Electronic Comment Filing System
(ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by
filing paper copies.
44. Electronic Filers: Comments may be filed electronically using
the Internet by accessing the ECFS: https://www.fcc.gov/cgb/ecfs/ or the
Federal eRulemaking Portal: https://www.regulations.gov. Filers should
follow the instructions provided on the Web site for submitting
comments. For ECFS filers, if multiple docket or rulemaking numbers
appear in the caption of this proceeding, filers must transmit one
electronic copy of the comments for each docket or rulemaking number
refer