Creation of a Low Power Radio Service, 3202-3218 [E8-783]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 73, Number 12 (Thursday, January 17, 2008)]
[Rules and Regulations]
[Pages 3202-3218]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-783]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MB Docket No. 99-25; FCC 07-204]


Creation of a Low Power Radio Service

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts rules and provides 
guidance to efforts to promote the operation and expansion of the low 
power FM (LPFM) service. The Commission solicited and reviewed comments 
regarding the status of LPFM service, and found that to promote the 
service, it was necessary to make rule changes related to ownership and 
technical issues.

DATES: The rules will become effective March 17, 2008.

FOR FURTHER INFORMATION CONTACT: For additional information on this 
proceeding, contact Holly Saurer, Holly.Saurer@fcc.gov of the Media 
Bureau, Policy Division, (202) 418-2120.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Report and Order, FCC 07-204, adopted on November 27, 2007, and 
released on December 11, 2007. 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

[[Page 3203]]

Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 
(TTY).

Summary of the Third Report and Order

I. Introduction

    1. In March 2005, the Commission released a Second Order on 
Reconsideration (Second Order), 70 FR 39182, July 7, 2005 and Further 
Notice of Proposed Rulemaking (FNPRM), 70 FR 39217, July 7, 2005 as 
part of its ongoing efforts to promote the operation and expansion of 
the low power FM (LPFM) service. In the Second Order, the Commission 
made minor changes to the LPFM rules. The accompanying FNPRM sought 
comment on a number of issues related to ownership and eligibility 
restrictions for LPFM licensees, as well as technical matters related 
to the LPFM service. This Third Report and Order resolves the issues 
raised in the FNPRM. In so doing, this Order advances the Commission's 
goal ``to ensure that we maximize the value of LPFM service without 
harming the interests of full-power FM stations or other Commission 
licensees.'' In light of changed circumstances since we last considered 
the issue of protection rights for LPFM stations from subsequently 
authorized full-service stations, we also find it necessary to consider 
certain rule changes to avoid the potential loss of LPFM stations. 
Accordingly, we issue a Second Further Notice of Proposed Rulemaking 
(Second FNPRM) to seek comment on these changes.

II. Background

    2. In January 2000, the Commission adopted rules to establish two 
classes of LPFM facilities: (a) 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 dB[mu]) of approximately 3.5 miles (5.6 
kilometers); and (b) the LP10 class, consisting of stations with a 
maximum 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, 65 FR 7615, February 15, 2000 announcing those 
classes imposed separation requirements for LPFM stations to protect 
full-power FM stations operating on the co-, first-, and second-
adjacent channels, as well as stations operating on intermediate 
frequency (IF) channels. The Report and Order concluded, however, that 
imposition of a third-adjacent channel separation requirement would 
restrict unnecessarily the number of LPFM stations that could be 
authorized, and therefore declined to impose that requirement.
    3. The Report and Order also established ownership and eligibility 
rules for the LPFM service. The Commission restricted LPFM service to 
noncommercial educational (NCE) operations, restricted licensee 
eligibility to applicants with no attributable interests in any other 
broadcast station or other media subject to our ownership rules, and 
prohibited the assignment or transfer of LPFM stations. The Commission 
also determined that, during the two years following the first LPFM 
filing window, no entity would be permitted to own more than one LPFM 
station and that ownership should be restricted to local entities. To 
choose among entities filing mutually exclusive applications for LPFM 
licenses, the Report and Order set forth a point system that favors 
local ownership and locally-originated programming, with ties between 
competing applicants resolved by either voluntary time-sharing 
agreements between such applicants or, in the event that they cannot so 
agree, the imposition of ``involuntary time-sharing,'' with each tied 
and grantable applicant awarded an equal, successive and non-renewable 
license term of no less than one year, for a combined total eight-year 
term. Finally, the Report and Order directed the then-Mass Media Bureau 
to establish filing windows for LP100 applications.
    4. The Commission revised and clarified some of its LPFM rules in a 
September 2000 Memorandum Opinion and Order on Reconsideration 
(Reconsideration Order), 65 FR 67289, November 9, 2000. The 
Reconsideration Order declined to adopt the more restrictive channel 
separation requirements urged by certain petitioners. Instead, the 
Commission adopted complaint and license modification procedures to 
address unexpected third-channel interference problems caused by LPFM 
stations. The Reconsideration Order modified spacing standards to 
require LPFM stations to protect radio reading services. Beyond the 
issue of interference, the Commission increased ownership flexibility 
for universities, state and local governments, and entities operating 
public safety or transportation services. Finally, the Reconsideration 
Order addressed a number of technical and ownership issues and 
clarified the eligibility rules for certain groups.
    5. After the Commission declined to impose third-adjacent channel 
separation requirements in the Reconsideration Order, Congress directed 
the agency to do so in the Making Appropriations for the Government of 
The District of Columbia for FY 2001 Act (2001 DC Appropriations Act). 
In that legislation, Congress instructed the Commission to prescribe 
third-adjacent channel spacing standards for LPFM stations and to deny 
LPFM applications of applicants that previously had engaged in the 
unlicensed operation of a radio station. The 2001 DC Appropriations Act 
also directed the Commission to evaluate the likelihood of interference 
to existing FM stations if LPFM stations were not subject to the third-
adjacent channel spacing requirement.
    6. As a result of the spacing requirement imposed by the 2001 DC 
Appropriations Act, a number of facilities proposed in otherwise 
technically grantable applications became short-spaced to existing 
full-power FM stations or translators, leading to the eventual 
dismissal of those applications. To evaluate the likelihood of 
interference in the absence of a third-adjacent channel separation 
requirement, the Commission selected an independent third party--the 
Mitre Corporation--to conduct field tests. The Commission then sought 
public comment on Mitre's reported findings. In February 2004, the 
Commission submitted its report to Congress, recommending that, based 
on the Mitre study, Congress ``modify the statute to eliminate the 
third-adjacent channel distan[ce] separation requirements for LPFM 
stations.''
    7. In the March 2005 Second Order, the Commission reexamined some 
of the rules governing the LPFM service, noting that the rules might 
need adjustment in light of the experiences of LPFM applicants and 
licensees. The Commission also took into account comments made at a 
February 2005 forum on LPFM that had addressed ``achievements by LPFM 
stations and the challenges faced as the service mark[ed] its fifth 
year.'' The Second Order clarified that ``local program origination,'' 
as that term is used in Sec.  73.872(b)(2) of the Commission's rules, 
does not include the airing of satellite-fed programming. The Second 
Order also modified slightly the definitions of ``minor change'' and 
``minor amendment.''
    8. In the accompanying FNPRM, the Commission sought comment on a 
number of issues with respect to LPFM ownership restrictions and 
eligibility. The Commission asked whether LPFM licenses should be 
assignable or transferable and whether the temporary restrictions on 
multiple ownership of

[[Page 3204]]

LPFM stations and on non-local ownership should be extended or allowed 
to sunset. Because ``introducing some level of transferability to the 
LPFM service is critical,'' the Commission delegated to the Media 
Bureau the authority to waive the prohibition on the assignment or 
transfer of a LPFM station contained in Sec.  73.865 of the rules on a 
case-by-case basis and cited examples of circumstances in which the 
grant of such a waiver might be appropriate:

    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 operation. * * *

The Commission noted, however, that ``until we have further considered 
the transferability issue, we do not believe that waiver is 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.''
    9. The Commission also proposed certain changes to the rules 
governing the formation and duration of voluntary and involuntary time-
sharing arrangements among mutually exclusive LPFM applicants. The 
FNPRM also considered a number of changes to the LPFM technical rules. 
The Commission proposed to extend the construction period for LPFM 
stations and to allow time-sharing applicants greater flexibility to 
amend their applications to relocate the transmitter to a central 
location. The FNPRM also sought comment on the relationship between the 
LPFM and full-power FM services. Noting that thousands of FM translator 
applications remained pending from the 2003 filing window, the 
Commission froze the processing of those applications and sought 
comment on possible adjustments to the co-equal status of LPFM stations 
and FM translators with regard to interference between them. The 
Commission also sought comment on whether LPFM stations should be 
protected from interference from subsequently authorized FM stations. 
Finally, the Commission denied a request by the Media Access Project 
(MAP) to schedule ``regular'' filing windows for LPFM new station 
applications and major modification applications.
    10. During the seven years since we created the LPFM service, that 
service has flourished for the most part, but also has encountered 
unique obstacles. To date, the Media Bureau has received 3236 
applications for new LPFM construction permits, of which 1,286 have 
been granted. Currently, there are 809 LPFM stations operating 
throughout the country. At the same time, the Media Bureau was 
compelled to cancel 17 station licenses and 95 construction permits for 
failure by the holder to satisfy certain procedural and/or technical 
requirements. In view of this practical experience with LPFM service, 
we now turn to the issues raised in the FNPRM. In resolving those 
issues, we seek to increase the number of LPFM stations that are on the 
air and providing service to the public, and to promote the continued 
operation of LPFM stations already broadcasting, while avoiding 
interference to existing FM service.

III. Discussion

A. Ownership and Eligibility

1. Alienability of Authorizations
a. Changes in Board Membership
    11. Section 73.865 of the rules 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.'' The Reconsideration Order clarified that the 
gradual change of a licensee's governing board or membership body is a 
permissible ``insubstantial change,'' even if the majority of current 
members joined after the station's authorization was granted. As the 
FNPRM noted, however, ``[o]ur rules * * * do not permit a sudden change 
in the board or membership of an LPFM licensee, which would constitute 
an impermissible transfer of control.'' Panelists at the February 2000 
LPFM forum and other parties concerned with the viability of LPFM 
stations remarked that the proscription of sudden changes in governing 
board membership causes unnecessary complications for LPFM licensees. 
Responding to that concern, the FNPRM proposed to amend our rules to 
permit sudden changes of more than 50 percent of the membership of 
governing boards.
    12. As commenters have since observed, frequent elections and 
changes in governing board membership are common among volunteer 
organizations and other entities that operate LPFM stations. As LPFM 
station KVLP-LP noted, experience on the board of an LPFM station can 
confer valuable leadership experience to community members, leading 
community groups to encourage frequent shuffling of board membership. 
Unsurprisingly, then, most commenters favor amending our rules to 
permit transfers of control in the case of a sudden change in a 
majority of a governing board's membership so long as the overall 
mission of the organization remains unchanged.
    13. We agree. In crafting our LPFM rules, the Commission intended 
to preserve the integrity of the LPFM service and of the local 
organizations operating LPFM stations. We did not intend, however, to 
hamper the customary governance procedures of those organizations or to 
make LPFM less ``accessible to community groups.'' To the extent that 
our rules have blocked that access, we now remove that inadvertent 
barrier and adopt the FNPRM's proposal to allow sudden changes of more 
than 50 percent of the membership of governing boards. Accordingly, we 
will amend Sec.  73.865 of our rules to clarify that transfers of 
control involving a sudden change of more than 50 percent of an LPFM 
licensee's governing board shall not be deemed ``a substantial change 
in ownership and control.''
b. Assignments and Transfers
    14. The FNPRM sought comment on whether the rules should permit the 
sale of LPFM authorizations, for some or no consideration, and whether 
they should impose a holding period by the initial permittee and 
licensee. Noting that at least 221 construction permits have lapsed due 
to the permittee's failure to construct facilities, REC Networks (REC) 
argues that an LPFM permittee or licensee should be able to convey its 
authorization when doing so would prevent the loss of the permit. 
Indeed, most commenters support amending the rules to permit sales in 
at least some circumstances, although they express diverse views with 
respect to when such transactions should be allowed. At one extreme are 
those commenters who maintain that LPFM stations should be transferable 
without restriction because there is little risk of manipulation or 
take-over in the ``market'' for LPFM authorizations. At the opposite 
end of the spectrum are those who contend that transfers of control or 
assignments should be limited to those situations in which the assignee 
or transferee ``represents the community'' and no consideration is 
involved. Prometheus argues that the Commission should not allow 
transfers or assignments to be made in exchange for consideration, as 
such a rule could lead to speculation by those with substantial 
resources, at the expense of local community groups that lack funding.

[[Page 3205]]

    15. The for-profit sale of LPFM authorizations to any buyer is 
fundamentally inconsistent with the Commission's desire to promote 
local, community based use and ownership of LPFM stations. Transfers of 
control or assignments for consideration will create a market for LPFM 
licenses and may facilitate trafficking in licenses by those who have 
no interest in providing LPFM services to the public. Such a state of 
affairs would likely interfere with, rather than spur development of, 
community-based programming and hamper the ability of community-based 
entities to obtain LPFM authorizations. Therefore, we will not permit 
the sale of LPFM licenses for consideration exceeding the depreciated 
fair market value of the physical equipment and facilities of the 
station, and will not allow under any circumstances the transfer or 
assignment of construction permits.
    16. With respect to the imposition of eligibility restrictions on a 
transferee or assignee of an LPFM license, some commenters suggest that 
we permit the sale of an LPFM authorization to any willing buyer. 
Others suggest that we limit the universe of eligible assignees and 
transferees to other local nonprofits. We conclude that the appropriate 
balance is struck by requiring the assignee or transferee of an LPFM 
license to satisfy ownership and eligibility criteria existing at the 
time of the assignment or transfer. That restriction will prevent 
entities from using intermediaries to circumvent our LPFM eligibility 
requirements and will further address our concern about potential 
trafficking in LPFM authorizations by ensuring that future LPFM 
licensees meet the Commission's criteria for LPFM service. At the same 
time, permitting assignments or transfers among qualified parties will 
allow newly-``merged'' local entities, consisting of several eligible 
organizations, to pool their resources to provide the necessary 
financial support for quality local programming when, standing alone, 
those entities would be otherwise incapable of constructing and 
operating an LPFM station.
    17. For all transfers and assignments, we will require a three year 
holding period from the issuance of license, during which a licensee 
cannot transfer or assign the license, and must operate the station, as 
suggested by Prometheus. That restriction will prevent entities from 
using the LPFM assignment and transfer process to undermine the 
Commission's LPFM policies and will ensure that the benefits to the 
public which were the basis for the license grant will be realized.
c. Procedures
    18. The FNPRM asked what procedures would be appropriate to allow 
assignments and transfers while ensuring the integrity of the LPFM 
service. Because many LPFM permittees and licensees are entities that 
do not issue ownership shares, the Commission drew attention to the 
Non-Stock Transfer NOI for guidance in establishing the procedures for 
transfers of control of such licensees. The Non-Stock Transfer NOI 
proposed to treat a sudden change of a governing board's majority as an 
insubstantial transfer for which approval must be sought on an FCC Form 
316 (short form) broadcast application. The FNPRM sought comment on 
adopting a similar approach for changes in the governing boards of LPFM 
permittees and licensees that are non-stock entities. The FNPRM also 
sought comment on the process by which LPFM stations should seek 
approval of assignments and transfers of control.
    19. Few commenters addressed the issue of the appropriate 
procedures for transfers of control or assignments of LPFM 
authorizations. Christian Community Broadcasters proposed using a 
modified FCC Form 318 LPFM construction permit application to cover all 
instances of ownership changes or changes in board membership. 
Limestone Community Radio suggested instead that entities use a 
modified FCC Form 316 for ``typical'' changes in station ownership. 
Still other commenters suggest that the Commission should take a more 
active role in overseeing any LPFM ownership changes to ensure 
``ethical use'' of LPFM licenses.
    20. We will use existing FCC forms for the conveyance of LPFM 
licenses, rather than adopting new forms and filing procedures. We see 
no reason to depart from the filing procedures that currently are used 
for other broadcasting services. Accordingly, we direct LPFM licensees 
to use modified FCC Forms 314 and 315 for assignments and transfers of 
control, respectively, and FCC Form 316 for pro forma changes in 
ownership. We will apply the Non-Stock Transfer NOI to appropriate LPFM 
licensees, and thus, will interpret a sudden change of a governing 
board's majority as an insubstantial transfer for which approval must 
be sought on an FCC Form 316 (``short form'') broadcast application. 
Use of these forms offers many advantages, particularly to smaller 
entities that have few resources to dedicate to the application 
process, such as the ability to retrieve and submit the forms 
electronically.
2. Ownership and Eligibility Limitations
    21. As discussed above, the rules required that, during the two 
years following the first LPFM filing window, no entity was permitted 
to own more than one LPFM station, and ownership was restricted to 
local entities. The rules gradually relaxed these restrictions. 
Currently, the rules limit the number of LPFM stations a single entity 
may own up to ten stations and the rule that allows only local entities 
to apply for LPFM licenses has sunsetted. As we explained in the FNPRM, 
the Commission's intention in gradually increasing the ownership 
limitation from one to ten stations and in allowing the local entity 
restriction to sunset ``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.'' In 
connection with its query of whether to allow the sale of LPFM 
stations, the FNPRM asked if either the ownership limitation or the 
restriction to local entities should be extended or reinstated.
    22. Several organizations urge the Commission to maintain ``strict 
local and multiple ownership requirements,'' to ensure that LPFM 
service continues to advance the public's interest in localism and 
diversity. According to some of these commenters, any relaxation of 
either the multiple ownership restriction or the locality-based 
restriction is fundamentally at odds with the ``community radio'' 
rationale that justifies the existence of LPFM stations. Prometheus 
Radio Project argues that, even when no local entity applies for an 
LPFM authorization, non-local entities should be barred from applying, 
because ``LPFM is not a goal in itself, rather it is a means to promote 
localism.''
    23. We agree. As emphasized in our Report and Order, our two 
primary goals in establishing the LPFM service were to ``create 
opportunities for new voices on the airwaves and to allow local groups, 
including schools, churches, and other community-based organizations, 
to provide programming responsive to local community needs and 
interests.'' The Report and Order also stated that the potential 
benefit of allowing multiple ownership--increased efficiency--was 
clearly outweighed by ``the benefit to a community of multiple 
community-based voices.'' By amending the rules to permanently limit 
LPFM eligibility, we protect the public interest in localism and foster 
greater diversity of programming from community sources. Thus, we will 
reinstate the prohibition

[[Page 3206]]

on the ownership of more than one LPFM station.
    24. In addition, we agree with those parties that suggest that we 
reinstate the local ownership restrictions. Although growing in both 
usage and recognition, LPFM service is still in its nascence and doing 
away with the locality restriction could threaten its predominantly 
local character, in particular the hallmark of a LPFM station's local 
character, its local origination of programming. In upholding the local 
origination selection criterion for mutually exclusive applications, 
our Second Order emphasized that local origination is ``intended to 
encourage licensees to maintain production facilities and a meaningful 
staff presence within the community served by the station.'' Even 
outside the limited context of mutually exclusive applications, we view 
local origination as a central virtue of the LPFM service and therefore 
will reinstate the eligibility restriction contained in Sec.  73.853(b) 
of the rules to encourage local origination. We also wish to clarify 
our definition of local origination. According to Prometheus, a 
licensee could theoretically create one program, continually repeat it 
on a tape loop, and still claim it meets the definition of local 
origination. Prometheus asserts that in order to meet the local 
origination requirement, programming cannot be automated, including 
randomized songs or long blocks of locally produced programming run 
multiple times, and cannot be aired more than two times. We agree that 
there is room for abuse here, and as such, we clarify that repetitious 
automated programming does not meet the local origination requirement. 
We will only allow a program to be broadcast twice in order to meet the 
local origination requirement. After its initial broadcast a program 
can be rebroadcast once and still meet our requirement. After that, the 
program cannot count toward the local origination requirement.
    25. Finally, we adopt the suggestion by Prometheus that we extend 
the local standard for rural markets. Pursuant to Sec.  73.853(b) of 
the rules, an LPFM applicant is deemed local if it is physically 
headquartered or has a campus within ten miles of the proposed LPFM 
transmitter site, or if 75 percent of its board members reside within 
ten miles of the proposed LPFM transmitter site. The ten-mile limit was 
adopted based on the ``station's likely effective reach.'' Prometheus' 
comments express concern that this ten-mile local entity standard is 
difficult to meet for rural applicants, especially in finding board 
members who reside within ten miles of the proposed transmitter site. 
Prometheus states that people in rural communities often listen to and 
participate in stations that are outside of their home coverage area, 
because they listen to the station while driving to and from work. As 
such, Prometheus requests modifying the ten-mile requirement to twenty 
miles for all LPFM applicants for proposed facilities in other than the 
top fifty urban markets, for both the distance from transmitter and 
residence of board member standards. We agree with Prometheus that 
applicants for stations located in rural communities find it 
particularly challenging to meet the current ten-mile standard. We also 
agree that the concept of ``local'' should be more expansive in rural 
areas. Accordingly, we will revise Sec.  73.853(b) of the rules to 
reflect Prometheus' proposal.
3. Time-Sharing
    26. The Report and Order established a comparative point system for 
determining which among mutually exclusive LPFM applicants should 
receive the authorization that they commonly seek. If such applicants 
have the same point total, two or more of the tied applicants may 
propose to share use of the LPFM frequency by submitting a time-share 
proposal within 30 days of the release of a public notice announcing 
their tie. If the tie among the applicants is not resolved through a 
voluntary time-sharing agreement, the tied applicants submitting 
grantable applications are placed in an involuntary time-sharing 
arrangement, and granted equal, successive, non-renewable license terms 
for the applied-for facility of no less than one year each, for a total 
combined term of eight years. The FNPRM proposed amending the rules 
governing mutually exclusive LPFM applications in two key respects. 
First, in response to a request by MAP, the FNPRM proposed to extend, 
from 30 to 90 days, the period allowed for applicants to submit a 
voluntary time-sharing agreement. Second, the FNPRM proposed to amend 
the rules to permit the renewal of licenses granted under the 
involuntary time-sharing successive licensing procedures. We address 
those proposals in turn.
a. Deadline for Submission of Voluntary Time-Sharing Agreements
    27. In its Petition for Reconsideration of the Report and Order, 
MAP observed that ``LPFM applicants are largely comprised of small 
organizations with few administrative resources,'' and that few 
applicants ``have access to the expertise of professional engineers.'' 
Accordingly, few applicants are able to identify mutually exclusive 
applications before receiving notice from the Commission that they are 
tied with others, leaving them only 30 days to contact the other 
applicants, complete negotiations and execute and file their agreements 
with the Commission. Because those negotiations likely will be 
conducted by inexperienced volunteers, MAP argues, reaching a 
successful compromise within that time frame is very unlikely. Finding 
MAP's argument persuasive, the FNPRM proposed to extend to 90 days the 
time period within which mutually exclusive LPFM applicants must reach 
and file a voluntary time-sharing arrangement.
    28. All commenters who addressed the issue favor adoption of the 
proposal to so extend the negotiation and filing period to 90 days. 
NPR, ``recogniz[ing] the fundamental importance of a diversity of 
programming services and station ownership,'' observes that allowing 
LPFM applicants more time to enter into voluntary time-sharing 
arrangements will promote that diversity. Similarly, REC contends that 
30 days is not enough time in which to reach and file a viable time-
sharing agreement. REC sought to assist applicants with negotiations of 
universal settlements, but found that often basic contact information 
supplied on the applications was inaccurate. Drawing from that 
experience and similar considerations, REC urges the Commission to 
extend the period of time in which mutually exclusive applicants may 
negotiate and file time-sharing agreements.
    29. We agree with the views of NPR, REC, and others, and therefore 
adopt the FNPRM's proposal to extend the negotiating and filing period 
to 90 days. Mutually exclusive LPFM applicants should be given every 
opportunity to arrive at a negotiated time-sharing arrangement before 
the LPFM rules impose a successive-term licensing scheme on the 
applicants. To the extent that the 30-day time period in Sec.  73.872 
of the rules has impeded the successful negotiation of time-sharing 
arrangements, we remove that impediment and hope that this will reduce 
considerably the likelihood that involuntary time-sharing arrangements 
with multiple successive license terms will be necessary.
b. License Renewal Procedures for Parties to Time-Sharing Arrangements
    30. Section 73.872(d) of the rules provides that an LPFM 
authorization issued under involuntary time-sharing arrangements, under 
which mutually exclusive applicants are granted

[[Page 3207]]

successive license terms, is not renewable. The FNPRM also proposed 
that we change this provision and make such authorizations renewable. 
The FNPRM sought comment on how the renewal process should operate, 
given that increased flexibility in the rules governing assignments and 
transfers of control may lead licensees under such arrangements to 
negotiate voluntary time-sharing agreements among themselves.
    31. REC is one of the few commenters to respond to our queries 
about involuntary time-sharing arrangements. In its submission, REC 
suggests that if licensees under an involuntary time-sharing 
arrangement ``come up with a universal settlement to engage in a 
conventional time-share arrangement * * * the Commission should grant 
such an arrangement and remove the non-renewable condition of the 
permit and/or license.'' REC further proposes that, at the end of the 
eight-year term, all licensees in a successive license term group 
should each be permitted to file a renewal application.
    32. The FNPRM tentatively proposed to make renewable all viable 
licenses under both voluntary and involuntary time-sharing 
arrangements. Making renewable only the authorizations of those 
organizations that can reach a mutually acceptable agreement with 
respect to scheduling, however, will provide a powerful incentive to 
licensees that thus far have been unable to reach such agreement. This 
will lead to more efficient use of the spectrum. Accordingly, we agree 
with REC that when organizations subject to an involuntary time-sharing 
arrangement reach a ``universal settlement'' with respect to the 
allocation of time on the relevant frequency, the non-renewable 
condition of their authorizations should be removed.
    33. For the same reasons, we also agree with REC that stations 
subject to involuntary time-sharing under successive license terms that 
subsequently enter into a voluntary time-sharing agreement should be 
permitted to file a renewal application. However, we are not persuaded 
that we should accommodate those licensees with successive license 
terms that fail to reach a universal voluntary agreement with the 
ability to renew. By doing this, we would be rewarding such applicants' 
unwillingness or inability to reach such agreements. We note that, of 
the more than 1,200 construction permits granted in the LPFM service, 
currently no stations hold authorizations for involuntary time sharing. 
In this Order, we have extended the 30-day time period in Sec.  73.872 
of the rules for applicants to negotiate and file universal voluntary 
time-share agreements to 90 days. We have also enabled those applicants 
originally issued involuntary time-share permits that reach such 
agreements to ultimately acquire renewable licenses. We believe that 
these measures will greatly reduce the likelihood that involuntary 
time-sharing arrangements will be necessary. Therefore, we decline to 
provide a renewal expectancy for involuntary time-share licensees. We 
strongly encourage any such permittees and licensees and future 
mutually exclusive applicants to enter into universal voluntary time-
share agreements.
    34. Making renewable the authorizations of parties who time-share 
who have reached voluntary time-sharing agreements raises a number of 
practical questions with respect to how and when those arrangements 
will supersede involuntary ones. First, we must determine when a 
voluntary time-sharing agreement should replace the successive-term 
structure of the involuntary arrangement. As we noted in the FNPRM, it 
is likely that licensees will reach universal time-sharing agreements 
prior to seeking renewal. We will therefore construe the superseding 
agreement as a ``minor change,'' allowing the licensees who seek to 
operate under a universal voluntary time-sharing agreement to file the 
minor change application as soon as the agreement is reached, rather 
than having to wait for a filing window. Expediting our approval of 
voluntary time-sharing arrangements in this manner will encourage 
prompt negotiations among licensees operating under involuntary time-
sharing arrangements and, it is hoped, promote a more efficient use of 
scarce LPFM spectrum than that under the successive licensing terms 
that apply to involuntary time-sharing arrangements. Accordingly, we 
will revise the rules to facilitate those voluntary agreements. We 
stress, however, that voluntary time-sharing agreements must be 
genuinely universal, involving all permittees and licensees of a 
particular LPFM facility. That is, to give rise to a renewal 
expectancy, all of those in a time-share group must be parties to the 
time-sharing agreement.
    35. To ensure that voluntary time-sharing arrangements will result 
in the most efficient use of LPFM spectrum, we also must address how to 
apportion unused airtime among licensees in a time-share group. This 
circumstance may arise in a number of ways. For example, a permittee in 
that group could fail to construct its facilities, decide to cease 
operations, or have its authorization revoked for a serious violation 
of the rules. There might also be situations in which no permittee or 
licensee has come forward requesting to operate during a certain part 
of the day or week. REC points to an example in Visalia, California, 
where one licensee, KFSC-LP, broadcasts from 5 to 9 a.m. Monday through 
Saturday and a second licensee, KQOF-LP, broadcasts from 5 to 9 p.m. 
Monday through Saturday. No licensee broadcasts other than those times. 
REC proposes that, prior to the opening of a new filing window, new 
entrants who can reach a universal settlement with existing stations 
should be allowed to do so. REC also argues that new entrants should be 
allowed to apply for periods of unused time once a window for new 
applications has opened.
    36. We agree with REC that, during filing windows for new 
applications, new parties should be permitted to apply for unused and 
unwanted time on a particular frequency. We will not entertain such 
applications outside of an open filing window, however, even when the 
potential new entrant could successfully negotiate a universal 
settlement with existing licensees. Aside from the administrative 
burden that such out-of-window filings could create, allowing a new 
entrant to act before a formally-announced filing window could 
prejudice unfairly other potential applicants who, under the 
comparative criteria set forth in Sec.  73.872(b) of the rules, would 
be entitled to a preference over the would-be new entrant's mutually 
exclusive application. Restricting applications for unwanted time to 
new filing windows does raise a potential concern in that the 
restriction will leave periods of time on a particular frequency vacant 
until the Commission elects to open a filing window for new 
applications. To alleviate that concern, and to promote a more 
efficient use of available LPFM frequency, we will allow existing 
stations in a voluntary time-share group to apportion among themselves 
any time that, for any reason, becomes unused. As with the negotiation 
and execution of voluntary time-sharing agreements by parties in an 
involuntary time-share arrangement, we will deem amendments to a 
voluntary time-sharing agreement to account for unused time requests to 
be minor modifications that may be filed at any time.

B. Technical Rules

1. Construction Period
    37. The Report and Order established an 18-month construction 
period for all LPFM facilities, stating that deadlines

[[Page 3208]]

would be strictly enforced. However, as a temporary measure, the FNPRM 
adopted an interim waiver policy to allow permittees with soon-to-
expire permits to request additional time to construct their 
facilities. Under that policy, the Media Bureau has the authority to 
consider and grant requests for an additional 18 months to construct 
facilities, upon a showing that the permittee reasonably can be 
expected to complete construction within the extended period.
    38. As a permanent solution, the FNPRM proposed extending the 
construction period for LPFM stations to 36 months, the construction 
period afforded to all other broadcast permittees. During the six years 
since the release of the 2000 Report and Order, our assumption that 
LPFM facilities would require significantly less time to build than 
that required to construct full-power FM facilities has proven to be 
overly optimistic. LPFM licensees have encountered varying difficulties 
in locating suitable transmitter sites, raising sufficient funds for 
the proposed facilities, and obtaining the necessary zoning permits. 
The FNPRM thus proposed extending the construction period in order ``to 
maximize the likelihood that LPFM permittees will get on the air.''
    39. Many commenters favor extending the construction period. Some 
state that the blanket adoption of a 36-month construction period has 
administrative advantages over a conditional extension or case-by-case 
review of individual waiver requests. Moreover, extending the 
construction period to 36 months would put the LPFM and full-power FM 
services on equal footing and avoid disenfranchising able, willing, but 
inexperienced, LPFM permittees. Prometheus Radio Project and others 
contend that the better approach is to grant an 18-month extension to 
complete construction, but only upon demonstration of good cause. 
Prometheus argues that such a procedure would give able and willing 
LPFM permittees a total of 36 months to construct their facilities but 
prevent unable or unwilling LPFM permittees from warehousing valuable 
spectrum, without service to the public, for an extended period of 
time.
    40. We seek to encourage permittees to construct their facilities 
within 18 months, and therefore, decline to adopt a blanket 36-month 
construction period for LPFM. We agree with Prometheus that this 
approach will prevent unwilling/unable applicants from sitting on 
valuable spectrum. We recognize, however, that some permittees may face 
difficulties in meeting this deadline. Therefore, we will amend the 
rules to allow all permittees, including current ones whose 
construction permits have yet to expire, the opportunity to seek an 18-
month extension to complete construction of their facilities upon a 
showing of good cause. Because any such extension should account 
adequately for the delays resulting from the potential inexperience of 
the permittee, as well as for potential obstacles that may arise during 
the zoning or permitting processes, that extended construction deadline 
will be strictly enforced, as it is with all other radio broadcast 
stations; we do not expect to entertain, and most likely will not 
grant, waiver requests or those for further extensions.
2. Technical Amendments
    41. Section 73.871 of the rules limits the ability of applicants to 
propose site changes by minor amendment to relocations of 3.2 
kilometers or less for an LP10 station, and 5.6 kilometers or less for 
an LP100 station. That rule prevents time-sharing applicants from 
relocating their transmitters to a central location unless the site 
falls within those distance limits. To increase flexibility for time-
sharing applicants and thereby promote voluntary time-sharing 
agreements, the FNPRM proposed to allow time-sharing applicants to file 
minor amendments to relocate their transmitters to a central location, 
notwithstanding the site relocation limits imposed by Sec.  73.871 of 
the rules.
    42. Few commenters have responded to our queries about technical 
amendments by time-sharing applicants under Sec.  73.871 of the rules. 
In 2001, UCC requested that we amend the rules to allow applicants that 
submit a voluntary time-share agreement to relocate the transmitter to 
a central location, provided that one is available. The Commission has 
a long-standing policy of providing mutually exclusive applicants with 
maximum flexibility to enter into time-share agreements in order to 
facilitate rapid licensing in the service. For instance, in 2003, the 
Commission by public notice waived Sec.  73.871 of the rules for a time 
to permit all LPFM settling applicants the ability to file major change 
amendments specifying new FM channels. Permitting parties to file time-
share agreements to specify a ``central location'' beyond the current 
minor amendment distance limitations would remove one more potential 
impediment to such agreements. Accordingly, we amend Sec.  73.871 of 
the rules to permit time-sharing applicants to specify a central 
transmitter location with a minor amendment without regard to the 
respective 3.2 and 5.6 kilometer limitations on such amendments. These 
agreements, which permit a number of different organizations to reach 
local audiences, promote diversity. Providing applicants additional 
flexibility and the opportunity to avoid the construction of duplicate 
facilities also serves the public interest. For the same reason, we 
amend that rule to allow permittees and licensees that reach a 
voluntary time-sharing agreement after their permits have been granted 
to submit such site change applications by minor submission. We 
anticipate that this rule change will encourage time-share applicants, 
permittees and licensees to consolidate transmission and studio 
facilities.
3. LPFM-FM Translator Interference Priorities
    43. The FNPRM identified several possible ways to modify the LPFM-
FM translator interference protection requirements. Currently, stations 
in these two services operate on a substantially co-equal basis, with a 
facility proposed in an application having ``priority'' over one 
specified in any subsequently filed application. The FNPRM sought 
comment on whether, and if so, under what circumstances LPFM 
applications should be treated as having priority status over prior-
filed FM translator applications and granted authorizations. In 
particular, the Commission sought comment on how to overcome the 
significant preclusive impact of the 2003 Auction No. 83 translator 
filing window, asking among other things whether all pending 
applications for new FM translator stations filed during the window 
should be dismissed. The FNPRM explained that the staff already had 
granted approximately 3,500 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,'' that 7,000 applications remained on file, that 
very few opportunities for LPFM stations in major markets remained 
prior to the 2003 translator filing window, and that the Auction No. 83 
filing would have a ``significant preclusive impact on future LPFM 
licensing opportunities.'' The voluminous comments submitted in 
response to the priority issue focus on two possible theories 
supporting modification of the current rule: (1) That LPFM provides a 
``preferred'' radio service to that offered by translators; and (2) 
that priority status for LPFM applications is necessary to overcome

[[Page 3209]]

the preclusive impact of the over 13,000 technical proposals filed 
during the 2003 Auction No. 83 FM translator window.
    44. LPFM advocates contend that their service is preferable to 
translator service. They note that the rules require LPFM stations to 
be locally owned and permit local program origination. They note that, 
in contrast, many translators merely rebroadcast satellite-distributed 
national programming. Some LPFM advocates request priority status for 
only those LPFM stations that originate programming. Others request 
priority status over all ``distant'' translators, i.e., translators 
that rebroadcast the signals of non-local stations.
    45. NAB, NPR, the various state broadcast associations, and 
virtually all full-service commercial and NCE broadcasters support 
retention of the current interference protection rules. They argue that 
there are no simple ways to distinguish preferred stations or 
programming. They also claim that there is no such thing as a typical 
LPFM or FM translator station. They reject as unfounded the contention 
that program origination or local ownership correlates to more 
desirable programming. They note that LPFM licensees have limited 
service responsibilities with regard to their communities of license: 
LPFM stations need not originate programming; many serve the needs of 
niche interest groups rather than their entire communities of license; 
they are not required to maintain a main studio or public file; and 
they are required to operate for only 35 hours per week. Many 
broadcasters contend that, because the LPFM service is still in its 
infancy, it is premature to reassess the ``co-equal'' status of LPFM 
and FM translator stations. NCE and public radio broadcasters argue 
that giving LPFMs priority over operating FM translator stations would 
significantly disrupt established and valued translator service to 
millions of listeners, particularly those in rural areas and in 
situations in which broadcasters rely on ``chains'' of translators to 
distribute programming. The public radio commenters note that 
translators are a critical component of the public radio 
infrastructure. A number of other commenters urge that a ``fill-in'' 
translator should be treated as the equivalent of its associated 
primary full-service station and, therefore, always preferred to an 
LPFM station.
    46. With regard to the potentially preclusive impact of the over 
13,000 FM translator applications filed in 2003, some commenters argue 
that the LPFM service is not entitled to any special consideration 
because LPFM applicants had the first opportunity during the 2000-2001 
national LPFM windows to apply for new stations. Translator advocates 
note that their last opportunity for non-reserved band FM translators 
occurred in 1997. Edgewater Broadcasting, Inc. (Edgewater) submits an 
extensive analysis of the preclusive impact of the construction permits 
issued out of the 2003 translator filing window and the more limited 
impact of the over 1,000 permits issued to it and its commonly-owned 
Radio Assist Ministries. Edgewater contends that the preclusive impact 
has been ``miniscule,'' notes that the Commission received no LPFM 
applications to serve many of the areas specified in its translator 
filings, and argues that its studies demonstrate that vast areas in the 
country remain available for new LPFM stations. REC also submits both 
national and market-specific analyses and identifies several 
communities in which 2003 window filings have allegedly precluded or 
diminished LPFM station licensing opportunities.
    47. The Station Resource Group, an alliance of 45 public radio 
broadcasters that operate 168 radio stations, contends that the chief 
contributor to LPFM station preclusion is a ``maxed out spectrum 
situation'' which prevents any broadcasters, NCE or commercial, 
translators or LPFM stations, from obtaining new licenses in virtually 
all major markets and many medium-sized markets. Several commenters 
argue that the statutory third-adjacent channel LPFM protection 
requirement blocks many otherwise-licensable LPFM opportunities.
    48. A number of commenters argue that the Commission's concern is 
misdirected. They urge the Commission to instead move vigorously 
against alleged FM translator filing abuses, speculators, and deficient 
application filings. They suggest imposing numerical application filing 
limits, either on a prospective basis or with regard to the still-
pending translator applications. Several contend that the high demand 
for new FM translators is unsurprising, given the extended freeze on 
non-reserved band licensing.
    49. As demonstrated by the comments filed on this issue, the LPFM 
and FM translator services are each valuable components of the nation's 
radio infrastructure. We agree with the advocates for each of these 
services regarding the important programming that these stations can 
provide to their local communities. We do not reach the merits of the 
priority rules between these two services here. Instead, we seek 
further comment in the attached Second FNPRM to develop a better record 
on whether and how our current rule affects our core goals of localism, 
diversity and competition. The current rules will remain in effect 
until the Commission resolves the issue in that proceeding.
    50. We also must consider the question of whether Auction No. 83 
filing activity has adversely impacted our goal to provide to both LPFM 
and translator applicants reasonable access to limited FM spectrum in a 
manner which promotes the ``fair, efficient, and equitable distribution 
of radio service * * *. '' This issue has taken on much greater 
significance over the past few years as demand for new radio stations 
has increased dramatically while the spectrum for such stations has 
become increasingly scarce, particularly in many mid-sized communities 
and in virtually all urbanized areas. Station Resource Group is 
correct--the primary licensing impediment is the nation's ``maxed out'' 
spectrum situation. New Jersey LPFM licensing activity is illustrative 
of the limited new station opportunities in spectrum-congested areas. 
Only 29 New Jersey LPFM applications were filed during that state's 
June 2001 window. Of those submissions, the Media Bureau has issued 
only eleven construction permits and only one additional authorization 
possibly may be granted. Only seven LPFM stations are currently 
operating in the state. We find these statistics more probative of the 
LPFM service's growth potential than the studies completed by Edgewater 
because LPFM stations, due to their limited service area potential, 
generally require higher population densities to be viable. It seems 
unlikely that the availability of spectrum in the vast rural portions 
of the nation will generate significant levels of LPFM station 
licensing.
    51. Demand for radio spectrum is, if anything, increasing. The 
number of applications filed during the AM new and major change windows 
jumped from 258 in 2000 to more than 1,300 in 2004. Competitive bidding 
activity for FM new station construction permits has been robust since 
the commencement of open FM auctions in 2004. The 2003 FM translator 
window provides further evidence of this trend, especially when 
compared to historic licensing levels for this service. As of September 
30, 1990, a total of 1,847 licensed FM translators and (co-channel) 
boosters operated throughout the nation. As of December 31, 1997, 
shortly after the date on which the Commission imposed a freeze on new 
non-reserved band translator filings (but not on new boosters or new 
reserved band stations), a total of 2,881 FM

[[Page 3210]]

translators operated nationally. The number of licensed stations 
continued to grow modestly over the next six years, chiefly as a result 
of ongoing reserved band filing activity. A total of 3,818 licensed 
stations were in operation in March 2003 when the Commission opened the 
FM translator window, a total of 3,897 licensed stations when the 
Commission imposed the Auction No. 83 construction permit freeze in 
March 2005.
    52. Measured against this historical licensing record, Auction No. 
83 window filing activity was significant. Proposals exceeded 
authorized stations by a factor of three in a service in which little 
licensing was done before the 1980s. The 2003 window already has nearly 
doubled the total number of authorized stations. To date, three times 
more translator stations have been authorized out of this one window 
than LPFM stations authorized through the initial LPFM window filing 
process. Approximately 7,000 translator applications remain pending. 
The Commission faces two chief difficulties in trying to balance 
spectrum allocations for LPFM stations and translators. First, FM 
translators are licensed under substantially more flexible technical 
rules. Thus, some of the Auction No. 83 filing activity involves 
spectrum which is unavailable for LPFM use. By the same token, LPFM 
station proponents have far fewer licensing opportunities in spectrum-
congested markets because LPFM technical rules are substantially less 
flexible. Second, it is impossible to accurately predict future demand 
for LPFM station licenses. While engineering studies can identify areas 
in which additional licensing is technically permissible, the interest 
of local organizations to apply for, construct, and operate new LPFM 
stations can only be determined at the time a window is opened.
    53. Although precise preclusionary calculations are not possible, 
we believe that processing all of the approximately remaining 7,000 
translator applications would frustrate the development of the LPFM 
service and our efforts to promote localism. Several factors support 
the adoption of some remedial measures. The sheer volume of Auction No. 
83 filings, when compared to historic translator and LPFM licensing 
levels, is a significant concern. We recognize that LPFM proponents had 
the ``first'' opportunity to file for the spectrum which Auction No. 83 
filers now propose to use. However, it is apparent that the translator 
filings have precluded or diminished LPFM filing opportunities in many 
communities. For example, a REC national study found that 16 percent of 
all census designated communities that otherwise would have LPFM 
channels available in their communities have been precluded by the 
translator filings and that the greatest preclusionary impact has been 
in the largest such communities. Moreover, the Media Bureau has found 
that its efforts to identify alternative channels for LPFM stations 
either causing or receiving interference have been significantly 
limited in numerous cases by the requirement to protect pending FM 
translator applications and authorizations granted out of the 2003 
window. The licensing asymmetries between these two services also 
support this finding. Translator filings can materially impact LPFM new 
station options which are far more limited than FM translator filing 
opportunities. In contrast, it is unlikely that LPFM filings will 
materially affect translator licensing options. FM translator contour-
based station licensing is substantially more flexible than the strict 
distance separation requirements which LPFM stations must satisfy. This 
difference is tied in part to the fact that unlike an LPFM station, an 
FM translator station must cease broadcast operations if it is causing 
``actual interference'' to any authorized broadcast station. In short, 
any translator station construction is at the risk of the permittee. 
The level of Auction No. 83 filing activity and the fact that many 
applications were filed for facilities in the top 100 markets both 
illuminate the significant difference in the licensing opportunities 
between these two services. The next LPFM window may provide the last 
meaningful opportunity to expand the LPFM service in spectrum-congested 
areas. In contrast, we expect significant filing activity in many 
future translator windows.
    54. Certain equitable considerations also tilt in favor of adopting 
remedial measures to limit the preclusive impact of Auction No. 83 
filings. Each applicant filing in Auction No. 83 submitted one Form 175 
Application to Participate in an FCC Auction and a separate Form 349 
``Tech Box'' for each translator proposal. 861 filers submitted 13,377 
such proposals in the window. Applicant filing activity divided between 
the hundreds of applicants who filed a limited number of applications 
and a very small number of applicants who filed for hundreds or 
thousands of construction permits. For example, approximately half the 
filers submitted one or two proposals. Approximately 80 percent of 
filers submitted 10 or fewer proposals. 97 percent filed 50 or fewer 
proposals. In contrast, the two most active filers, commonly-owned 
Radio Assist Ministries and Edgewater (collectively, RAM), filed 4,219 
proposals, constituting almost one-third of all Auction No. 83 filings. 
The fifteen most active filers were responsible for one-half of all 
Tech Box submissions.
    55. We are concerned that the heavily skewed filing activity in 
Auction No. 83 raises concerns about the integrity of our FM translator 
licensing procedures. Even if lawful, it is fair to question whether 
the acquisition of unprecedented numbers of FM translator 
authorizations by a handful of entities through our window filing 
application procedures promotes either diversity or localism. The rapid 
flipping of hundreds of permits acquired through the window process for 
substantial consideration does suggest that our current procedures may 
be insufficient to deter speculative conduct. Some commenters have been 
critical of RAM's business strategy. ``The [National Translator 
Association] considers those applicants who intend to obtain 
construction permits and then sell those permits to be simply 
speculators for profit.'' Most fundamentally, it appears that our 
assumption that our competitive bidding procedures would deter 
speculative filings has proven to be unfounded in the Auction No. 83 
context. RAM, alone, has sought to assign more than 50 percent of the 
1,046 construction permits it has been awarded through the window and 
has consummated assignments for over 400 of all such permits.
    56. In order to further our twin goals of increasing the number of 
LPFM stations and promoting localism, we find it necessary to take 
action. Accordingly, we will limit further processing of applications 
submitted during the Auction No. 83 filing window to ten proposals per 
applicant. Applicants with more than ten proposals pending will be 
provided an opportunity to identify those applications which they wish 
to have processed and those for which they seek voluntary dismissal. 
The Media Bureau is directed to complete its processing of the 
approximately 100 pending but frozen singleton long-form applications 
without regard to the ten application limit. However, construction 
permits granted from this group will count toward the limit for future 
Auction No. 83 licensing purposes. This cap will only apply to short-
form applications, and will not impact the ability of Auction No. 83 
filers with granted construction permits or pending long-form 
applications to obtain licenses to

[[Page 3211]]

cover. This limit will not have an adverse impact on the more than 80 
percent of those who filed ten or fewer proposals in the Auction No. 83 
filing window. It will require certain filers to identify priority 
proposals. This cut-off will limit the preclusive impact of Auction No. 
83 filings on LPFM licensing opportunities by barring the processing of 
thousands of applications filed by a very small number of applicants, 
without impacting the approximately 80 percent of filers who filed ten 
or fewer applications. Although we recognize the equitable interests of 
the remaining 20 percent of filers in the processing of all of their 
short-form applications, on balance we conclude that the public 
interest requires a bar on the processing of more than ten applications 
per filer. We are hopeful that as a result of this cap the Media Bureau 
will be able to shorten the period between windows for both new LPFM 
and FM translator stations. We direct the Media Bureau to issue a 
public notice announcing the opening of the settlement window required 
by Sec. Sec.  73.5002(c) and (d) of the rules. Applicants must select 
the ten applications they wish to preserve before the settlement window 
opens. With the imposition of this cap, we direct the Media Bureau to 
resume the processing of Auction No. 83 filings. Specifically, the 
Media Bureau is to expeditiously process the applications of any 
applicant that is now in compliance or brings itself into compliance 
with the ten proposal cap.
    57. We are mindful of the expenses that translator applicants have 
incurred in preparing their non-feeable Form 175 short-form 
applications and Form 349 Tech Box submissions but believe that the 
imposition of this cap treats all applicants equitably. We have 
attempted to accommodate applicants to the greatest extent possible, 
consistent with statutory requirements and competing Commission goals. 
All applicants will benefit from expedited processing and the Media 
Bureau's ability to open future windows more quickly. Thus, this action 
is entirely consistent with Commission's rules and precedent for the 
dismissal of pending applications as a necessary adjunct of efficient 
and effective rulemaking. Finally, we note that there is ample 
precedent for the mass dismissal of applications based on a rule or 
policy change. This procedural change is a reasonable exercise of the 
Commission's administrative discretion. Accordingly, we conclude that 
the imposition of a cap in these circumstances is lawful.
4. Interference Protection From Subsequently Authorized Full-Service FM 
Stations
    58. Background