Creation of a Low Power Radio Service; Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations, 45491-45499 [2011-19171]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 76, Number 146 (Friday, July 29, 2011)]
[Proposed Rules]
[Pages 45491-45499]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19171]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MM Docket No. 99-25; MB Docket No. 07-172, RM-11338; FCC 11-105]


Creation of a Low Power Radio Service; Amendment of Service and 
Eligibility Rules for FM Broadcast Translator Stations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission considers how the recently 
enacted Local Community Radio Act (``LCRA'') will impact future LPFM 
and translator station licensing. Section 5 of the Act requires the 
Commission to ensure that: Licenses are available for both LPFM and 
translator stations; licensing decisions are based on community needs; 
and translator and LPFM stations remain equal in status. The item 
tentatively finds that a previously adopted cap on translator 
applications is inconsistent with the LCRA's directives. It considers 
three alternate processing schemes, and tentatively concludes that a 
market-specific processing policy would most faithfully implement 
section 5's directives. The item sets forth proposed LPFM channel 
floors for the top 150 markets, and proposes to dismiss all translator 
applications in markets where the number of available LPFM channels is 
below the channel floor. The item also considers whether the Commission 
should take additional steps to prevent the trafficking of translator 
construction permits, and whether translators from Auction No. 83 
should be allowed to

[[Page 45492]]

rebroadcast the signals of AM stations at night.

DATES: Comments must be filed on or before August 29, 2011, and reply 
comments must be filed on or before September 12, 2011.

ADDRESSES: You may submit comments, identified by MM Docket No. 99-25 
and MB Docket No. 07-172, by any of the following methods:
     Federal Communications Commission's Web Site: https://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     Mail: Commission's Secretary, Office of the Secretary, 
Federal Communications Commission, 445 12th St., SW., Room TW-A325, 
Washington, DC 20554.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, or phone: 202-418-0530 or TTY: 202-418-0432).
For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the supplementary 
information section of this document.

FOR FURTHER INFORMATION CONTACT: Peter Doyle, (202) 418-2789.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third 
Further Notice of Proposed Rulemaking, MM Docket No. 99-25; MB Docket 
No. 07-172, RM-11338, adopted and released on July 12, 2011. The full 
text of this document is available for inspection and copying during 
normal business hours in the FCC Reference Center (Room CY-A257), 445 
12th Street, SW., Washington, DC 20554. The full text may also be 
downloaded at: https://www.fcc.gov.

Comment Period and Procedures

    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415 and 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: https://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy 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. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8 a.m. to 7 p.m. All hand deliveries must be held together with 
rubber bands or fasteners. Any envelopes and boxes 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 must be addressed to 445 12th Street, SW., Washington, DC 20554.
    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to fcc504@fcc.gov or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

Summary of Proposed Rulemaking

    1. In this Third Further Notice of Proposed Rule Making (``Third 
Further Notice''), the Commission seeks comment on the impact of the 
enactment of the LCRA on the procedures previously adopted to process 
the approximately 6,500 applications which remain pending from the 2003 
FM translator window. The goals of this proceeding are to develop FM 
translator application processing policies that faithfully implement 
LCRA directives, to resume promptly the licensing of the remaining 
translator applications consistent with those directives, and to chart 
a path forward to the licensing of new LPFM stations in accordance with 
the framework established by the LCRA.
    2. Under the Commission's rules, LPFM and FM translator 
applications may be filed only during ``windows'' announced by the 
Commission. Translator applications have priority over later-filed LPFM 
applications. The last LPFM filing window was in 2001. The translator 
applications at issue here have been pending since 2003, when they were 
filed in response to an FM non-reserved band translator-only window, 
Auction No. 83. This window generated over 13,000 applications. In 
2005, the Commission froze processing of the applications due to 
concerns that they would limit LPFM licensing opportunities. In doing 
so, the Commission noted the need to address a basic question set forth 
in a 2004 Notice of Inquiry in the broadcast localism proceeding: 
``Recognizing 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?''
    3. On December 11, 2007, the Commission released a Third Report and 
Order and Second Further Notice of Proposed Rulemaking (``Third Report 
and Order'' or ``Second Further Notice'') in MM Docket No. 99-25. The 
Commission considered whether Auction No. 83 filing activity had 
adversely impacted its 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,'' and concluded that processing all of the then-pending 7,000 
translator applications would frustrate the development of the LPFM 
service. To address this concern, the Third Report and Order 
established a going-forward limit of ten pending short-form FM 
translator applications per applicant from Auction No. 83, and directed 
the Media Bureau (``Bureau'') to resume processing the applications of 
those applicants in compliance with this numerical cap. The Commission 
found that this limit would not have an adverse impact on more than 80 
percent of those applicants and would appropriately balance the 
equitable interests of the remaining 20 percent against important LPFM 
licensing goals and policies.
    4. On January 4, 2011, President Obama signed the LCRA into law. 
Among other things, the LCRA expands LPFM licensing opportunities by 
repealing the requirement that LPFM stations operate a minimum distance 
from nearby stations operating on ``third-adjacent'' channels. Section 
5 of the LCRA requires the Commission, when licensing FM translator, FM 
booster and LPFM stations, to ensure that: licenses are available to FM 
translator stations, FM booster stations, and low-power FM stations; 
that licensing decisions are made based on the needs of the local 
community; and that FM translator stations, FM booster stations, and 
low-power FM stations

[[Page 45493]]

remain equal in status and secondary to existing and modified FM 
stations.

A. Issues Relating to Section 5 of the LCRA

    5. Section 5(1)--Ensuring that licenses are available. In its 
broadest terms, section 5(1) is clear: it mandates that the Commission 
adopt licensing procedures that ensure some minimum number of licensing 
opportunities for each service throughout the nation. Read together 
with section 5(2), we also interpret section 5(1) to require the 
Commission to provide, to the extent possible, licensing opportunities 
for both services in as many local communities as possible. Prior to 
the enactment of the LCRA, several commenters raised concerns directly 
related to this section 5(1) mandate. They argued that the nationwide 
cap, which does not operate based on spectrum availability in specific 
areas, would not ensure future LPFM opportunities in certain larger 
spectrum-limited markets. These commenters contended that translator 
applicants would attempt to retain their most valuable applications 
which propose service to densely populated areas. Due to the very large 
number of pending applications in these markets, they predict that a 
cap-based dismissal process would result in the dismissal of some--but 
not all--applications proposing facilities on channels and at locations 
otherwise available for LPFM licensing. Thus, they claim, the 
anticipated dismissals would not, in fact, ``free up'' spectrum for new 
LPFM stations at or near the locations specified in the dismissed 
translator applications because ``blocking'' translator applications 
would remain. The Media Bureau has carefully reviewed the Common 
Frequency study. It has found that the methodology is reasonable. Using 
similar assumptions, the Bureau has undertaken limited analyses of a 
number of other large markets. It also found that ``blocking'' 
translator applications would likely remain following the completion of 
the cap dismissal process due to the very high number of pending 
applications and/or discrete applicants in these markets. These 
findings raise significant concerns about whether the ten-application 
cap would be a certain and effective processing policy for preserving 
LPFM licensing opportunities in many larger markets. We seek comment on 
this issue.
    6. Following the enactment of the LCRA, the Bureau undertook a 
nationwide LPFM spectrum availability analysis. The Bureau studied all 
top 150 radio markets, as defined by Arbitron, and smaller markets 
where more than four translator applications are pending. The results 
of that analysis are presented in Appendix A of the Third Further 
Notice. The total number of identified channels (``LPFM Channels'') 
currently available for LPFM use is listed in the ``Channel'' column.
    7. The Bureau analysis establishes that no or limited useful 
spectrum for future LPFM stations is likely to remain in numerous 
specific radio markets unless the translator dismissal procedures 
reliably result in the dismissal of all ``blocking'' translator 
applications. For example, no channels would be available for LPFM 
licensing in 13 of the top 30 markets and only one or two channels 
would be available in six others if ``blocking'' translator 
applications remain. Based on the record developed in the proceeding, 
we tentatively conclude that the ten-application cap is inconsistent 
with section 5(1) because it would not ``ensure'' that licenses will be 
available in spectrum-congested markets for future LPFM licensing. 
Moreover, the Bureau has determined, using the same spectrum 
availability methodology, that LPFM licensing opportunities would be 
increased in certain spectrum-limited markets if LPFM applicants were 
not required to protect pending translator applications. For example, 
in Phoenix, the number of available channels available for LPFM 
licensing would increase from three to five. In Houston the number of 
available channels would increase from one to two. The Bureau's 
analysis also establishes that market size, alone, is a poor proxy for 
LPFM spectrum availability. For example, there appears to be ample 
spectrum for new LPFM stations in Sacramento (Market 27) and 
none in Stamford-Norwalk (Market 147). In particular, the 
proximity of smaller markets to larger ones in the nation's most 
populous areas appears to impact spectrum availability significantly.
    8. We recognize certain limitations in the data used by the Bureau 
in its analysis and note, in particular, a number of unknowns. These 
include site suitability and availability, population levels near 
studied locations, and demand for LPFM licenses at these locations. 
Future full service station licensing and settlement activity among the 
remaining translator applicants also could impact spectrum 
availability. Given these limitations, the ``Channel'' and ``Total 
Stations'' availability determinations likely overstate, and in some 
cases may substantially overstate, the number of potential bona fide 
licenses that will be available to future LPFM applicants in each 
market. Nevertheless, we believe the results shown in Appendix A 
provide a useful measure of LPFM spectrum availability. We seek comment 
on the Bureau study, the validity of its methodology and its relevance 
in informing our translator dismissal policy. We also seek comment on 
other measures of LPFM spectrum availability and welcome the submission 
of alternate spectrum availability assessments, both nationally and in 
particular markets.
    9. Given the tentative conclusion that the ten-application cap 
processing policy is inconsistent with the statutory mandate to ensure 
some minimum number of LPFM licensing opportunities in as many local 
communities as possible, the Third Further Notice considers how best to 
process the remaining translator applications in a manner that is 
consistent with the LCRA. The Commission could apply several different 
standards to establish compliance with an ``available'' licenses 
threshold for each service consistent with section 5(1). Specifically, 
we seek comment on whether we should take into account existing 
translator and LPFM licenses in making a ``licenses are available'' 
finding. In this regard, we note that the word ``new'' appears in the 
first clause of section 5 but not in subparagraph 1, suggesting that we 
should consider the availability of both new and existing stations. 
Alternatively, section 5(1) could be interpreted merely as a going-
forward standard, limited to ensuring a future balance between new 
translator and new LPFM licenses. Under this interpretation, the 
presence of a licensed translator or LPFM station would not enter into 
a licensing decision under section 5(1). We seek comment on these and 
other possible interpretations of section 5(1) and their impact on our 
treatment of the pending translator applications.
    10. The issue whether to take existing licenses into account may be 
particularly significant in light of the present disparity between the 
two services. Currently, 1921 translators are licensed at locations 
within the top 200 Arbitron-rated markets. In contrast, 290 LPFM 
stations operate in the top 200 markets. The Commission has licensed 
approximately 2,700 translator stations from the 2003 window and 
approximately 860 LPFM stations from the 2000-01 windows. Thus, taking 
into account existing translators and LPFM stations, or even just those 
licensed for the first time during the past decade, would militate in 
favor of the dismissal of translator applications, at least in markets 
where there is little or no

[[Page 45494]]

remaining spectrum for future LPFM stations or where substantially 
fewer licensing opportunities remain. Does an interpretation that could 
have that effect conflict with the section 5(3) requirement that 
translator and LPFM stations remain ``equal in status''? We seek 
comment on these issues.
    11. Finally, it appears that it will be significantly easier to 
ensure that licenses will be available for future translator stations 
than for LPFM stations. As previously noted, licensing asymmetries 
between the translator and LPFM services make it unlikely that LPFM 
licensing will preclude translator licensing opportunities, even in 
spectrum-limited markets. The translator protection rule, Sec.  
74.1204, which is substantially more flexible than the minimum spacing 
requirements governing the LPFM service, facilitates the filing of 
technically acceptable applications in a window. It also facilitates 
the resolution of technical conflicts among competing applications, 
thereby permitting numerous grants from individual mutually exclusive 
groups under the translator auction settlement procedures. We 
tentatively conclude that these considerations establish that the 
Commission's primary focus in effectuating section 5(1) must be to 
ensure translator licensing procedures do not foreclose or unduly limit 
future LPFM licensing. We seek comment on this conclusion.
    12. Section 5(2)--Assessing the ``needs of the local community.'' 
The section 5(2) directive to base translator and LPFM licensing 
decisions on the ``needs of the local community'' could be interpreted 
to concern solely the needs of communities for additional LPFM service 
on the theory that translators cannot be expected to provide meaningful 
local service, at least in larger markets. We seek comment on whether, 
based on a consideration of section 5 in its entirety, the obligation 
to make licensing decisions based on the ``needs of the local 
community'' reflects a Congressional finding that both translators and 
LPFM stations can be expected to serve community needs. We note that 
the Commission similarly concluded in 2007 that each of these services 
can provide important programming to their local communities.
    13. We also seek comment on whether and how to compare the two 
services in assessing local community needs. Significant differences 
exist in translator and LPFM eligibility, licensing and service rules, 
differences that can dramatically affect the ability of these stations 
to serve the needs of their communities. Translators may not, except in 
certain narrow circumstances, originate programming. A translator is 
not required to place a certain strength signal over its community of 
license or comply with minimum operating schedule requirements. A 
translator licensee is not required to broadcast programs that provide 
significant treatment of community issues or maintain issues/program 
lists. Licensing rules for new translator stations neither limit 
eligibility to nor favor local applicants.
    14. The Commission has traditionally assessed the comparative 
``needs of a community'' for radio service as part of its obligation to 
``provide a fair, efficient, and equitable distribution of radio 
service. * * *'' For example, the Commission established last year a 
Tribal Priority to advance section 307(b) goals ``by enabling Indian 
Tribal governments to provide radio service tailored to the needs and 
interests of their local communities. * * *'' Under long-standing and 
well established case law, translators are accorded no weight in 
assessing local service levels in FM allotment proceedings. The 
Commission, in the analogous context of low-power television and 
television translator licensing, has stated that the application of 
section 307(b) principles would be ``inappropriate'' because such cases 
would not ``present a meaningful section 307(b) issue.''
    15. The main rationales for the exclusion of translators from 
section 307(b) assessments are their status as secondary stations and, 
as a related matter, their potential preemption by full-service 
stations. LPFM stations also face potential displacement from full 
service stations. In sharp contrast to the translator service, however, 
the LPFM service was specifically created to fill a perceived gap in 
the way that full-power stations meet community needs--``to foster a 
program service responsive to the needs and interests of small 
community groups, particularly specialized community needs that have 
not been well served by commercial broadcast stations.'' Thus, under 
the Commission's rules, LPFM stations may originate programming; those 
that pledge to do so receive a licensing preference. LPFM stations must 
be locally owned. No party may hold an attributable interest in an LPFM 
station and another broadcast station. This restriction ensures that 
each licensed LPFM station necessarily expands ownership diversity in 
its community of license. The LPFM licensing rules promote share-time 
settlements between or among competing local applicants, further 
encouraging ownership diversity where spectrum is limited. For these 
reasons, the Commission has concluded that LPFM eligibility, selection 
and service rules ``will ensure that LPFM licensees will meet the needs 
and interests of their communities.''
    16. We seek comment on whether the Commission should take 
cognizance of the differing eligibility, licensing, and service rules 
for the translator and LPFM services in assessing the ``needs of a 
community'' for additional radio service. If so, how heavily should 
this directive weigh in favor of future LPFM licensing? What specific 
translator application procedures should the Commission adopt to give 
effect to section 5(2)? We also seek comment on alternate 
interpretations of section 5(2) and their impact on licensing 
procedures for the pending translator applications.
    17. Section 5(3)--``Equal in Status.'' Section 5(3) requires that 
translator and LPFM stations ``remain equal in status and secondary to 
existing and modified full-service FM stations.'' We invite comment on 
whether and how this requirement impacts our treatment of the pending 
FM translator applications. In particular, we invite comment on whether 
section 5(3) limits the Commission's authority to waive its cut-off 
rules in order to give priority to a later-filed LPFM application over 
a pending FM translator application. Section 5(3) refers specifically 
to ``stations,'' not to ``applications.'' If section 5(3) is 
interpreted to apply only to stations, the Commission would be able to 
defer action on any pending FM translator applications that it 
determines must make way for LPFM licensing opportunities and then 
process those applications later.
    18. On the other hand, a number of factors argue in favor of 
interpreting section 5(3) to prohibit cut-off rule waivers in this 
context. Under current Commission rules, stations in these two services 
are ``co-equal'' in this licensing context in one principal way. 
Specifically, under the Commission's so-called ``cut-off'' rules, a 
prior filed application in one service ``cuts off'' a subsequently-
filed application in the other service. This exact issue, characterized 
as ``LPFM-FM Protection Priorities'' in the Third Report and Order, has 
been a central point of dispute between LPFM and translator proponents 
since the imposition of the translator processing freeze in 2005. 
Moreover, the Commission and parties to this proceeding have used 
substantially identical language to explain their conflicting policy 
positions. For example, the Commission

[[Page 45495]]

noted in 2007 that ``[t]he Third Report and Order does not reach a 
conclusion on the `co-equal' status between LPFM stations and FM 
translator stations. Under the Rules for these services, a first-filed 
LPFM or FM translator application must be protected by all subsequently 
filed LPFM and FM translator applications.'' Given that the cut-off 
rules are a principal characteristic of the two services' co-equal 
status and that ``stations'' and ``applications'' were used 
interchangeably in the Commission proceeding before the LCRA was 
adopted, it seems reasonable to assume that Congress intended the same 
meaning when it used the term ``station'' in the LCRA. If so 
interpreted, the Commission would lack authority to adopt a processing 
policy which includes the dismissal of prior-filed translator 
applications in conflict with subsequently filed LPFM applications. 
Alternatively, does section 5(3) merely require that the Commission not 
favor either service in developing translator and LPFM new station 
licensing rules? If this alternative interpretation is adopted, what 
criteria are relevant in assessing whether such rules maintain a ``co-
equal'' status between the services, especially when the current 
technical licensing rules, which provide substantially greater 
opportunities for future translator licensing in many markets, are 
taken into account? We seek comment on these alternative 
interpretations of section 5(3) and their impact on the processing of 
the pending translator applications.

B. Proposed FM Translator Application Processing Plan

    19. Given our tentative conclusion that the ten-application cap is 
not a viable means of balancing the competing goals of introducing new 
FM translator service and preserving LPFM spectrum availability, we 
must consider alternative options in light of section 5's requirements 
and the data in the record, including Appendix A data.
(1) Open a Joint FM Translator/LPFM Application Window
    20. Although not raised by any party to this proceeding, one option 
is to dismiss all pending FM translator applications from the 2003 
window and make plans for a joint window for both LPFM and FM 
translator applications. In theory, such an option could advance the 
three section 5 mandates. However, we foresee overwhelming practical 
and legal difficulties in attempting to implement such a novel 
licensing process. If the translator and LPFM services were each 
limited to commercial operations, then section 309(j) of the Act would 
appear to require the use of efficient competitive bidding procedures. 
However, both commercial and NCE translator applications can be filed 
in a non-reserved FM band filing window. Accordingly, we would need to 
devise an alternate method for selecting among ``mixed'' groups of 
competing NCE and commercial applications.
    21. The Commission has developed, not without difficulty, only one 
methodology to resolve such conflicts. This comparative scheme, which 
applies to the Auction 83 translator filings, requires the dismissal of 
NCE applications which remain in conflict with a commercial proposal. 
This methodology, which would resolve all commercial translator/LPFM 
conflicts in favor of the translator application, is clearly 
inconsistent with the cross-service balancing principle inherent in the 
section 5 directives. The fact that translator and LPFM stations can 
provide fundamentally different types of radio service adds additional 
complexities to the task of crafting a comparative standard. Thus, not 
only would it be extremely difficult to develop such a selection method 
that fits within section 5's framework as to both services, but any 
method chosen would likely be subject to extensive, time-consuming 
challenges. Accordingly, we tentatively conclude that we should not 
pursue this option with respect to the next window or subsequent 
windows. Instead, we propose to focus on processing the pending FM 
translator applications in an alternate manner that is consistent with 
the LCRA. We seek comment on this tentative conclusion.
(2) Establish a Priority for Future LPFM Applications
    22. Some parties have urged the Commission not to dismiss any 
translator applications immediately, and to defer consideration of all 
translator applications until after the next LPFM window. Only those 
translator applications in conflict with LPFM filings would ultimately 
be dismissed under this approach. However, for the reasons stated 
above, we may implement this approach only if we conclude that section 
5(3) does not bar the Commission from waiving Sec.  73.807(d). We seek 
comment on the lawfulness of this licensing procedure. This approach 
also would necessarily delay further the processing of translator 
applications, filed in the 2003 window and now frozen for six years, 
until after the close of the next LPFM window. It is also possible that 
this approach would increase the disparity between the number of LPFM 
and translator licenses in larger markets where spectrum exists for 
both services and where the number of pending translator applications 
is likely to substantially outnumber LPFM licensing opportunities. We 
seek comment on whether such a licensing outcome is consistent with 
sections 5(1) and (2). We also request that commenters who favor this 
approach address its impact on the timing of future translator and LPFM 
licensing.
(3) Adopt a Market-Specific Translator Application Dismissal Processing 
Policy
    23. Given the competing goals and constraints described above, we 
tentatively conclude that a market-specific, spectrum availability-
based translator application dismissal policy would most faithfully 
implement section 5. This approach would ensure LPFM licensing 
opportunities in spectrum-limited markets while also ensuring the 
immediate licensing of translator stations in communities in which 
ample spectrum remains for both services, including many major markets. 
It is axiomatic that community groups and niche audiences are more 
plentiful in larger, more densely populated markets and, therefore, 
that there is a need for greater numbers of LPFM stations in such 
markets. Moreover, we think that it is important that our translator 
processing policy, to the extent possible, ensure that there is 
sufficient spectrum to establish a robust, dynamic and permanent LPFM 
service in larger markets. In this regard, we believe that the NCE FM 
service, the radio service most similar to the LPFM service, provides 
one measure of the relative needs of communities for LPFM service and a 
point of reference for setting LPFM licensing availability goals. Both 
economics and Commission requirements support the notion that if a 
radio station exists, it is meeting the needs of its listeners. 
Establishing an LPFM service floor which would limit the scale of 
potential LPFM licensing levels to a small fraction of the number of 
licensed NCE FM stations in a market would appear to be inconsistent 
with section 5(2)'s requirement to consider local community needs for 
LPFM service in licensing new FM translators, especially when the 
limited ability of LPFM station signals to reach audiences is taken 
into account.
    24. We seek comment on the following ``LPFM Channel Floors'' which 
are intended to address these concerns and satisfy these licensing 
goals. We also seek comment on whether a market-tier approach is a

[[Page 45496]]

reasonable means for effectuating both section 5(1) and 5(2) 
directives. In proposing these channel floors, we are principally 
guided by the number of top 150-market NCE FM full power stations, the 
service that is most comparable to the LPFM service. In most cases, the 
number of NCE FM stations exceeds, frequently by a wide margin, the 
proposed market-specific LPFM channel floors. We note that the number 
of licensed FM translator stations and pending translator applications 
are each significantly greater than these proposed floors in most 
markets. In proposing these floors, we recognize that we have no 
assurance that these identified channels will result in LPFM station 
licensing. The identified channels are, to some extent, theoretical 
markers. The Commission will not know until the LPFM window whether 
interested applicants exist at the locations where LPFM channels are 
available. Moreover, these channels are at risk every day from full 
power FM station modification filings. Finally, we are mindful of the 
fact that the next LPFM window may provide the last best opportunity to 
create a vital and sustainable community radio service in major 
metropolitan areas. Given the very limited licensing opportunities that 
the Bureau has identified in a number of major markets and the far more 
restrictive technical rules for LPFM station licensing, we tentatively 
conclude that these floors are essential to the development of the LPFM 
service in spectrum-limited markets, as intended by the LCRA. We seek 
comment on this tentative conclusion.
     Markets 1-20: 8 LPFM Channels
     Markets 21-50: 7 LPFM Channels
     Markets 51-100: 6 LPFM Channels
     Markets 101-150 and, in addition, smaller markets where 
more than 4 translator applications are pending: 5 LPFM Channels
    25. To ensure that licenses are available in all markets, we 
propose to dismiss all pending applications for new FM translators in 
markets in which the number of available LPFM channels, as set forth in 
the Bureau study, are below these channel floors. In calculating 
``available'' LPFM channels, we have included both the identified 
vacant channels and those channels currently licensed to LPFM stations 
which are authorized to operate at locations within the thirty-minute 
latitude by thirty-minute longitude grid for each studied market. We 
propose to process all pending applications for new translators in 
markets in which the number of available LPFM channels meets or exceeds 
the applicable LPFM channel floor.
    26. We also seek comment on whether we should impose restrictions 
on the translator settlement process in the ``process all'' markets to 
ensure that engineering solutions to resolve application conflicts do 
not reduce the number of channels available for LPFM stations in these 
markets. Restricting applicants from amending their applications to 
specify adjacent channels and/or different transmitter locations may be 
necessary to safeguard the available LPFM channels identified in 
Appendix A. As set forth therein, the Bureau's channel availability 
analysis incorporates the proposed channels and locations of pending 
translator applications. The translator settlement process, however, 
allows mutually exclusive applicants to settle by amending their 
applications to propose first-, second- and third-adjacent channels and 
different transmitter locations. If unchecked, that process could 
significantly impact spectrum availability for future LPFM stations, 
precluding LPFM licensing opportunities on channels identified as 
available in the Bureau's analysis. To ensure our ability to carry out 
the statutory mandate through the LPFM channel floor proposal or 
whatever approach we ultimately adopt, we propose to restrict 
applicants from amending applications to specify adjacent channels and/
or different transmitter locations. We seek comment on this processing 
policy and alternative approaches that would advance section 5 goals.
    27. We tentatively conclude that a three-pronged licensing process 
would promote section 5 goals. Under this approach, immediately 
following the resolution of the matters at issue in this Third Further 
Notice the Commission would resume the processing of those translator 
applications where there remains sufficient spectrum for LPFM based on 
the channel floors proposed above, i.e., only at locations at which 
translator licensing will not undermine the section 5(1) directive to 
ensure future LPFM licensing opportunities. Following the adoption of 
rules implementing the other provisions of the LCRA, the Commission 
would open an LPFM-only window. Thereafter, following the substantial 
completion of LPFM application processing, the Commission would open a 
translator-only window. Under this approach, the Commission could 
immediately resume the processing of the thousands of translator 
applications which propose service in markets where ample spectrum 
remains for both services. Thus, it appears that this approach, if 
adopted, would provide the most expeditious path to expanded translator 
and LPFM station licensing and would permit the opening of an LPFM 
window by the summer of 2012. In this regard, we request that any 
commenter who proposes an alternative licensing approach to explain how 
such approach would better implement section 5 and to address the 
timing, resource and legal issues that any such approach would pose.
    28. The foregoing section 5 analysis, LPFM spectrum availability 
analysis, and proposed translator application processing plan rely 
heavily on Arbitron market definitions. In this regard we note that the 
DC Circuit has upheld the Commission's broad authority to define 
``community'' differently in different contexts. We believe that 
Arbitron market-based assessments as used herein are reasonable for 
purposes of implementing section 5 of the LCRA. A more granular 
approach would appear to be extremely burdensome and unworkable. Given 
the fact that the demand for LPFM licenses at particular locations and 
the availability of transmitter sites near such locations are 
unknowable prior to the opening of a window, a market-based analysis 
would appear to provide a reasonable ``global'' assessment of LPFM 
spectrum availability in particular areas. We seek comment on this 
issue and alternative definitions to implement the section 5 
directives. In particular, we seek comment on whether defining the 
section 5(2) term ``local community'' in terms of markets is reasonable 
and whether it is appropriate to use the same definition for LPFM and 
translator purposes.
    29. Finally, we find that certain temporary restrictions on the 
modification of translator stations authorized out of the Auction No. 
83 filings are necessary to preserve LPFM licensing opportunities in 
identified spectrum-limited markets. We are concerned that translator 
modifications during the pendency of the rulemaking could undermine the 
statutory mandate to ensure future LPFM licensing opportunities in 
these markets. Accordingly, we direct the Bureau to suspend the 
processing of any translator modification application that proposes a 
transmitter site for the first time within any market which has fewer 
LPFM channels available than the proposed channel floor. We propose to 
dismiss any such application should the Commission adopt the market by 
market licensing approach proposed in this Third Further Notice. We 
seek comment on this proposal. We also impose an immediate freeze on 
the filing of

[[Page 45497]]

translator ``move-in'' modification applications and direct the Bureau 
to dismiss any such application filed after the adoption of this Third 
Further Notice. This freeze shall continue until the close of the 
upcoming LPFM filing window. This processing freeze will not apply to 
any translator modification application which proposes to move its 
transmitter site from one location to another within the same spectrum-
limited market.

C. Prevention of Trafficking in Translator Station Construction Permits 
and Licenses

    30. Having tentatively concluded that the Commission must process 
the remaining translator applications differently, we must consider 
whether a market-specific spectrum-based dismissal policy is sufficient 
to safeguard the integrity of the translator licensing process. The 
Third Report and Order raised concerns about the integrity of our 
translator licensing procedures. We focused on the skewed applicant 
filing behavior in Auction No. 83. Based on our analysis of the then-
pending applications, we found that 80 percent of the 861 filers held 
ten or fewer proposals. In contrast, the top 15 filers held one-half of 
the 13,377 applications. We also noted that several applicants had 
engaged in the active marketing and sale of hundreds of translator 
construction permits, including efforts by RAM to assign more than one-
half of the 1,046 construction permits it had been awarded from the 
2003 window filings. The Commission concluded ``that our assumption 
that our competitive bidding procedures would deter speculative filings 
has proven to be unfounded in the Auction No. 83 context.'' The ten-
application cap was intended, in part, to address these concerns.
    31. We tentatively conclude that our proposed translator 
application processing policy would not be sufficient to deter 
speculative licensing conduct because we face essentially identical 
licensing concerns with the remaining translator filings. RAM alone 
holds 1,563 of the remaining 6,475 applications. Each of the top 20 
applicants continues to hold more than 20 applications and, 
cumulatively, more than one-half of all applications. In contrast, the 
vast majority of applicants continue to hold only a few applications. 
For example, 501 of the 646 (78%) remaining applicants hold five or 
fewer applications. Similar filing imbalances occur in particular 
markets and regions. One applicant holds 25 of the 27 translator 
applications proposing locations within 20 kilometers of Houston's 
center city coordinates and 75 applications in Texas. Two applicants 
hold 66 of the 74 applications proposing service to the New York City 
market.
    32. A number of factors may create an environment which promotes 
the acquisition of translator authorizations solely for the purpose of 
selling them. It is likely that a substantial portion of the remaining 
grants will be made pursuant to our settlement, that is, non-auction, 
procedures. Translator construction permits may be sold on a ``for 
profit'' basis. Permittees are not required to construct or operate 
newly authorized facilities. Absent translator licensing rule changes, 
it appears that limiting the number of permits that any applicant 
receives from the processing of the remaining applications is the only 
effective tool to deter speculative activity. We tentatively conclude 
that nothing in the LCRA limits the Commission's ability to address the 
potential for licensing abuses by any applicant in Auction No. 83. We 
seek comment on this issue. We also seek comment on processing policies 
to deter the potential for speculative abuses among the remaining 
translator applicants. For example, we seek comment on whether to 
establish an application cap for the applications that would remain 
pending in non-spectrum limited markets and unrated markets. Would a 
cap of 50 or 75 applications in a window force high filers to 
concentrate on those proposals and markets where they have bona fide 
service aspirations? In addition or alternatively, should applicants be 
limited to one or a few applications in any particular market? A 
limitation of this sort could limit substantially the opportunity to 
warehouse and traffic in translator authorizations while promoting 
diversity goals. We also seek comment on alternative approaches to 
protect against abuses in the translator licensing process.

D. Restrictions on the Use of FM Translators to Rebroadcast the Signals 
of AM Stations

    33. In 2009, the Commission authorized the use of FM translators 
with licenses or permits in effect as of May 1, 2009, to rebroadcast 
the signal of a local AM station. The limitation of cross-service 
translator usage to already-authorized FM translators was adopted with 
the intention of preserving opportunities for future LPFM licensing. 
Two parties filed petitions for partial reconsideration of this aspect 
of the 2009 Translator Order. Both petitions argue that the limitation 
of cross-service translators to already-authorized translators does not 
serve the public interest and is unfair to both AM stations and FM 
translator applicants. These petitions remain pending in MB Docket No. 
07-172.
    34. As a result of the likely significant impact of the LCRA on the 
processing of the translator applications, we believe it is also 
appropriate to consider whether to remove this limit on cross-service 
translators with respect to the pending FM translator applications. 
Notwithstanding our decision to defer other LCRA implementation issues, 
we conclude that it is appropriate to address this issue now. The 
authorization of AM rebroadcasting in 2009, long after the filing of 
the pending applications, created an enormous new demand for FM 
translators, leading to numerous application modification waiver 
requests and other filings. We believe that resolving this issue before 
processing of the pending translator applications will align FM 
translator licensing outcomes more closely with demand by enabling 
applicants to take the rebroadcasting option into account in the 
translator settlement and licensing processes, thereby advancing the 
goals of section 5(2). Elimination of the date limitation at least with 
respect to the pending translator applications would appear consistent 
with the other actions which the Commission must take to ensure LPFM 
licensing opportunities, the same goal that the going-forward AM/FM 
translator rebroadcasting exclusion was intended to achieve. In 
addition, the new AM/FM translator service rule has proven to be a very 
successful deregulatory policy. Approximately 500 AM stations currently 
use FM translators, providing hundreds of these stations with their 
first nighttime authority and the opportunity to operate viably at 
night. Anecdotal reports from many AM licensees repeatedly emphasize 
their vastly increased ability to cover local community, governmental 
and school events, and, generally, to better serve the needs of their 
communities.
    35. Accordingly, we request comments on the issue of whether cross-
service translators should remain limited to those authorized as of May 
1, 2009 or whether the limit should be extended to include those 
applications which were on file as of May 1, 2009. Specifically, would 
the proposed changes in the FM translator application processing rules 
provide sufficient future LPFM application opportunities to support 
such a revision in the limitation on cross-service translators? Would 
the proposed changes in the FM translator application processing rules 
accomplish more effectively the goals

[[Page 45498]]

that the Commission sought to accomplish with the original application 
cap and the limitation on cross-service translators? Should the 
Commission modify this exclusion to enable translator and AM station 
licensees to better meet the needs of their communities? We seek 
comment on these issues.

Initial Paperwork Reduction Act of 1995 Analysis

    36. This document does not contain proposed information collection 
requirements subject to the Paperwork Reduction Act of 1995, Public Law 
104-13. In addition, therefore, it does not contain any proposed 
information collection burden for small business concerns with fewer 
than 25 employees, pursuant to the Small Business Paperwork Relief Act 
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Initial Regulatory Flexibility Analysis

    37. As required by the Regulatory Flexibility Act of 1980, as 
amended (``RFA'') the Commission has prepared this Initial Regulatory 
Flexibility Analysis (``IRFA'') of the possible significant economic 
impact on a substantial number of small entities by the policies and 
rules proposed in the Notice of Proposed Rulemaking. Written public 
comments are requested on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
on the Notice of Proposed Rulemaking (``NPRM'') provided in paragraph 
39. The Commission will send a copy of this entire NPRM, including this 
IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (``SBA''). In addition, the NPRM and the IRFA (or 
summaries thereof) will be published in the Federal Register.
    38. Need for, and Objectives of, the Proposed Rules. This 
rulemaking proceeding is initiated to seek comment on how the enactment 
of section 5 of the LCRA impacts the procedures previously adopted to 
process the approximately 6,500 applications which remain from the 2003 
FM translator window. The Commission previously established a 
processing cap of ten pending short-form applications per applicant 
from FM translator Auction No. 83. The NPRM tentatively concludes that 
this cap is inconsistent with the LCRA licensing criteria. The NPRM 
concludes that it is important that the translator processing policy to 
be adopted will ensure that there is sufficient spectrum to establish a 
robust, dynamic and permanent LPFM service in larger markets. It 
tentatively concludes that a market-specific, spectrum availability-
based translator application dismissal policy most faithfully 
implements section 5 of the LCRA. Specifically, the NPRM proposes to 
dismiss all pending applications for new FM translators in markets in 
which the number of available LPFM channels, as set forth in a Bureau 
study, are below these channel floors. The item notes that this 
approach would both ensure additional spectrum for LPFM stations in 
markets in which it is most limited while also ensuring the immediate 
licensing of translator stations in communities in which ample spectrum 
remains for both services, including many major markets.
    39. The NPRM also seeks comment on whether the Commission should 
modify certain recently adopted FM translator service rule changes as a 
result of the enactment of the LCRA. Specifically, the NPRM seeks 
comment on the issue of whether cross-service translators should remain 
limited to those authorized as of May 1, 2009.
    40. Legal Basis. The authority for this proposed rulemaking is 
contained in sections 1, 2, 4(i), 303, 307, and 309(j) of the 
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 
309(j).
    41. Description and Estimate of the Number of Small Entities to 
Which the Proposed Rules Will Apply. The RFA directs the Commission to 
provide a description of and, where feasible, an estimate of the number 
of small entities that will be affected by the proposed rules. The RFA 
generally defines the term ``small entity'' as encompassing the terms 
``small business,'' ``small organization,'' and ``small governmental 
entity.'' In addition, the term ``small Business'' has the same meaning 
as the term ``small business concern'' under the Small Business Act. A 
small business concern is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (``SBA'').
    42. Radio Broadcasting. The proposed policies could apply to radio 
broadcast licensees, and potential licensees of radio service. The SBA 
defines a radio broadcast station as a small business if such station 
has no more than $7 million in annual receipts. Business concerns 
included in this industry are those primarily engaged in broadcasting 
aural programs by radio to the public. According to Commission staff 
review of the BIA Publications, Inc. Master Access Radio Analyzer 
Database as of January 31, 2011, about 10,820 (97 percent) of 11,100 
commercial radio stations) have revenues of $7 million or less and thus 
qualify as small entities under the SBA definition. We note, however, 
that, in assessing whether a business concern qualifies as small under 
the above definition, business (control) affiliations must be included. 
Our estimate, therefore, likely overstates the number of small entities 
that might be affected by our action, because the revenue figure on 
which it is based does not include or aggregate revenues from 
affiliated companies.
    43. In addition, an element of the definition of ``small business'' 
is that the entity not be dominant in its field of operation. We are 
unable at this time to define or quantify the criteria that would 
establish whether a specific radio station is dominant in its field of 
operation. Accordingly, the estimate of small businesses to which rules 
may apply do not exclude any radio station from the definition of a 
small business on this basis and therefore may be over-inclusive to 
that extent. Also as noted, an additional element of the definition of 
``small business'' is that the entity must be independently owned and 
operated. We note that it is difficult at times to assess these 
criteria in the context of media entities and our estimates of small 
businesses to which they apply may be over-inclusive to this extent.
    44. FM translator stations and low power FM stations. The proposed 
policies could affect licensees of FM translator and booster stations 
and low power FM (LPFM) stations, as well as to potential licensees in 
these radio services. The same SBA definition that applies to radio 
broadcast licensees would apply to these stations. The SBA defines a 
radio broadcast station as a small business if such station has no more 
than $7 million in annual receipts. Given the nature of these services, 
we will presume that all of these licensees qualify as small entities 
under the SBA definition. Currently, there are approximately 6131 
licensed FM translator stations and 860 licensed LPFM stations. In 
addition, there are approximately 646 applicants with pending 
applications filed in the 2003 translator filing window. Given the 
nature of these services, we will presume that all of these licensees 
and applicants qualify as small entities under the SBA definition.
    45. Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements. The NPRM provides for no changes in the 
reporting, recordkeeping and other compliance requirements for FM 
translator or LPFM licensees or applicants.
    46. Steps Taken to Minimize Significant Impact on Small Entities,

[[Page 45499]]

and Significant Alternatives Considered. The RFA requires an agency to 
describe any significant alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): (1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance or 
reporting requirements under the rule for small entities; (3) the use 
of performance, rather than design, standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for small entities.
    47. The NPRM proposes to establish a market-specific, spectrum 
availability-based approach to the processing of remaining translator 
applications. As discussed in more detail below, alternatives 
considered included dismissal of all pending translator applications 
and the opening of a joint LPFM/translator window, or the deferral of 
translator application processing until the close of the next LPFM 
application filing window.
    48. Joint Window. One option considered was to dismiss all pending 
FM translator applications from the 2003 window and make plans for a 
joint window for both LPFM and FM translator applications. In theory, 
such an option could advance the three section 5 mandates. However, the 
NPRM concludes that there would be overwhelming practical and legal 
difficulties in attempting to implement such a novel licensing process. 
Specifically, the NPRM notes that an alternate method for selecting 
among ``mixed'' groups of competing NCE and commercial applications 
would need to be devised, and concludes that it would be extremely 
difficult to develop such a selection method that fits within section 
5's framework as to both services, and that any method chosen would 
likely be subject to extensive, time-consuming challenges.
    49. LPFM Priority. Another option considered was to defer 
consideration of all translator applications until after the next LPFM 
window. Only those translator applications in conflict with LPFM 
filings would ultimately be dismissed under this approach. The NPRM 
questions the lawfulness of this licensing procedure, and also 
concludes that this approach would necessarily delay further the 
processing of translator applications, filed in the 2003 window and now 
frozen for six years, until after the close of the next LPFM window. It 
further notes that this approach would increase the disparity between 
the number of LPFM and translator licenses in larger markets where 
spectrum exists for both services and where the number of pending 
translator applications is likely to substantially outnumber LPFM 
licensing opportunities.
    50. We do not believe that either of these approaches would have 
offered any significant benefits to small entities than the proposed 
market-based processing policy. Moreover, as discussed above, the 
market-based approach ensures additional spectrum for LPFM stations in 
markets in which it is most limited while also ensuring the immediate 
licensing of translator stations in communities in which ample spectrum 
remains for both services, including many major markets. Both of these 
outcomes benefit small entities. However, we are open to comments that 
might propose alternatives to any of the approaches considered above.
    51. Federal Rules Which Duplicate, Overlap, or Conflict With, the 
Commission's Proposals. None.

Ordering Clauses

    52. Accordingly, it is ordered, pursuant to the authority contained 
in sections 1, 2, 4(i), 303, 307, and 309(j) of the Communications Act 
of 1934, 47 U.S.C. 151, 152, 154(i), 303, 307, and 309(j), that this 
Notice of Proposed Rulemaking is adopted.
    53. It is further ordered that no application to modify the 
facilities of an authorized FM translator to move its transmitter site 
for the first time into a market with fewer LPFM channels available 
than the service floor for that market proposed herein, as set forth in 
Appendix A, shall be accepted for filing until the close of the 
upcoming LPFM filing window proposed for summer 2012.
    54. It is further ordered that the Consumer and Governmental 
Affairs Bureau, Reference Information Center, shall send a copy of this 
Notice of Proposed Rulemaking, including the Initial Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration, and shall cause it to be published in the 
Federal Register.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-19171 Filed 7-28-11; 8:45 am]
BILLING CODE 6712-01-P