Creation of a Low Power Radio Service; Amendment of Service and Eligibility Rules for FM Broadcast Translator Stations, 21002-21015 [2012-8404]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 77, Number 68 (Monday, April 9, 2012)]
[Rules and Regulations]
[Pages 21002-21015]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8404]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MB Docket No. 99-25; MB Docket No. 07-172, RM-11338, FCC 12-29]


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

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission adopts LPFM and translator 
licensing policies that conform to the Local Community Radio Act 
(``LCRA''). The LCRA requires the FCC to balance the competing demands 
of LPFM and translator applicants when making licensing decisions. 
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 finds that a previously adopted cap on translator 
applications pending from Auction No. 83 is inconsistent with the 
LCRA's directives, and adopts a market-specific processing policy. The 
item finds that this approach most faithfully implements Section 5's 
directives, and will allow the Commission to resume the processing of 
approximately 6,500 translator applications that have been pending 
since 2003, while also ensuring that the upcoming LPFM window will 
provide a real opportunity for significant community radio licensing in 
major metropolitan areas.
    The item also adopts national and market caps to prevent the 
trafficking of translator construction permits. Finally, the item 
relaxes the May 1, 2009, date restriction to allow pending translator 
applications from Auction No. 83 that are subsequently granted to 
rebroadcast the signals of AM stations at night.

DATES: The amendment to 47 CFR 74.1232(d) of the Rules will be 
effective May 9, 2012.

FOR FURTHER INFORMATION CONTACT: Peter Doyle, (202) 418-2789. For 
additional information concerning the Paperwork Reduction Act 
information collection requirements contained in this document, contact 
Cathy Williams at 202-418-2918, or via the Internet at 
Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Fourth Report and Order (Fourth R&O), FCC 12-29, adopted March 19, 
2012, and released March 19, 2012. The full text of the Fourth R&O is 
available for inspection and copying during regular business hours in 
the FCC Reference Center, 445 12th Street SW., Room CY-A257, Portals 
II, Washington, DC 20554, and may also be purchased from the 
Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street 
SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, 
Inc. via their Web site, https://www.bcpi.com, or call 1-800-378-3160. 
This document is available in alternative formats (computer diskette, 
large print, audio record, and Braille). Persons with disabilities who 
need documents in these formats may contact the FCC by email: 
FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

Paperwork Reduction Act of 1995 Analysis

    This Fourth R&O adopts new information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA) (Pub. L. 104-13, 
109 Stat 163 (1995) (codified in 44 U.S.C. 3501-3520)). These 
information collection requirements will be submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
PRA. The Commission will publish a separate notice in the Federal 
Register inviting comment on the new information collection 
requirements adopted in this document. The requirements will not go 
into effect until OMB has approved them and the Commission has 
published a notice announcing the effective date of the information 
collection requirements. In addition, the Commission notes that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public

[[Page 21003]]

Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific 
comment on how the Commission might ``further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.''

Synopsis of Order

    1. On July 12, 2011, the Commission released a Third Further Notice 
of Proposed Rule Making (``Third Further Notice'') in this proceeding, 
seeking comment on the impact of the enactment of the Local Community 
Radio Act of 2010 (``LCRA'') on the procedures previously adopted to 
process the approximately 6,500 applications that remain pending from 
the 2003 FM translator window. There, the Commission tentatively 
concluded that the previously adopted translator licensing procedures, 
which would limit each applicant to ten pending applications, would be 
inconsistent with the LCRA's goals. It proposed to modify those 
procedures and instead adopt a market-specific translator application 
dismissal process, dismissing pending translator applications in 
identified spectrum-limited markets in order to preserve adequate low 
power FM (``LPFM'') licensing opportunities. It also sought comment on 
whether, based on the enactment of the LCRA, the Commission should 
modify its rules permitting only those translator stations authorized 
on or prior to May 1, 2009, to rebroadcast the signals of AM stations.
    2. In this Fourth Report and Order, we adopt the market-specific 
translator application processing and dismissal policies proposed in 
the Third Further Notice, incorporating certain modifications proposed 
by commenters. These policies are designed to fully and faithfully 
effectuate the licensing directives set forth at section 5 of the LCRA 
while also taking into account the constraints of limited spectrum and 
technical licensing requirements. We are founding these procedures on 
our extensive spectrum availability studies set forth in Appendices A 
and B, which establish that limited LPFM licensing opportunities remain 
in many markets. We have determined, based on these studies, that the 
next LPFM window presents a critical, and indeed possibly a last, 
opportunity to nurture and promote a community radio service that can 
respond to unmet listener needs and underserved communities in many 
urban areas. As explained herein, we find that it is necessary to 
dismiss significant numbers of translator applications in spectrum 
limited markets to fulfill that opportunity. Nevertheless, these 
procedures are also designed to facilitate to the maximum extent 
possible the grant of the pending translator applications in all 
markets--whether spectrum is limited or abundant. In adopting these 
procedures, we note that neither the Commission nor any commenter has 
identified a fundamentally different approach that would both satisfy 
section 5's mandate and permit the rapid and efficient licensing of 
both LPFM and translator stations. With regard to the 6,500 
applications that remain pending from the 2003 FM translator window, we 
also adopt a national cap of 50 applications and a market-based cap of 
one application per applicant per market for the 156 markets identified 
in Appendix A to minimize the potential for speculative licensing 
conduct. Finally, we modify the May 1, 2009, date restriction to allow 
pending FM translator applications that are granted to be used as 
cross-service translators.
    3. In the Third Order on Reconsideration, we also dismiss petitions 
for reconsideration of the Third Report and Order as they relate to the 
now-abandoned ten-application cap processing policy.

I. Discussion

A. Section 5 of the LCRA: Broad Interpretive Principles

1. Background
    4. The LCRA, signed into law by President Obama on January 4, 2011, 
expands LPFM licensing opportunities by repealing the requirement that 
LPFM stations be certain minimum distances from nearby stations 
operating on ``third-adjacent'' channels. Section 5 of the LCRA also 
sets forth criteria that the Commission must take into account when 
licensing FM translator, FM booster and LPFM stations.
    5. In the Third Further Notice, we proposed to interpret section 5 
to establish the following broad principles:
    [ssquf] Section 5(1) requires the Commission to adopt licensing 
procedures that ensure some minimum number of licensing opportunities 
for both LPFM and translator services across the nation;
    [ssquf] Read together with section 5(2), section 5(1) requires the 
Commission to provide licensing opportunities for both services in as 
many local communities as possible; and
    [ssquf] We tentatively concluded that our primary focus under 
section 5(1) must be to ensure that translator licensing procedures do 
not foreclose or unduly limit future LPFM licensing, because the more 
flexible translator licensing standards will make it much easier to 
license new translator stations in spectrum-limited markets than new 
LPFM stations.
    6. In addition, we sought comment on whether to consider existing 
stations in making a ``licenses are available'' finding under section 
5(1), pointing out that because of the large number of existing 
translators within the top 200 Arbitron-rated markets, ``taking into 
account existing translators [hellip] would militate in favor of the 
dismissal of [pending] translator applications, at least in markets 
where there is little or no remaining spectrum for future LPFM stations 
or where substantially fewer licensing opportunities remain.'' We 
tentatively concluded that the suspended national cap of ten translator 
applications per applicant in the Auction No. 83 pool of pending 
translator applications is inconsistent with the statutory mandate to 
ensure some minimum number of LPFM licensing opportunities in as many 
local communities as possible. Instead, we proposed a market-specific 
process of dismissing all pending translator applications in certain 
spectrum-limited markets in order to preserve a certain number of LPFM 
licensing opportunities, while allowing processing of translator 
applications outside those markets.
2. Comments
    7. Among all the parties submitting comments in response to the 
Third Further Notice, there is broad support for eliminating the cap of 
ten translator applications and using market-specific spectrum 
availability metrics to implement section 5 requirements. However, on 
the issue of interpreting section 5, divergent arguments were presented 
by translator supporters, on the one hand, and LPFM supporters on the 
other. Their positions are summarized in the following sections, 
addressing interpretive issues presented by sections 5(1)-(3) of the 
LCRA. We also note that Senators Cantwell and McCain and 
Representatives Doyle and Terry, the original sponsors of the LCRA, 
submitted a letter expressing their support for our interpretation of 
section 5 of the LCRA and for our proposed approach to effectuating the 
statute.
a. Section 5(1)--Ensuring That Licenses Are Available
    8. LPFM advocates support our view that section 5(1) of the LCRA 
requires the Commission to ensure that the processing of translator 
applications does not preclude future opportunities for new LPFM 
licenses. Prometheus cites to the Congressional history of the LCRA and 
the Sponsors' Letter to

[[Page 21004]]

support this position. LPFM supporters contend that Congress intended 
that the Commission take existing licenses into account when assessing 
whether its licensing procedures would ensure that licenses are 
available rather than establish a ``going forward'' only standard that 
ignores legacy licensing. LPFM advocates also argue that section 5(1) 
requires the Commission to preserve a significant number of licensing 
opportunities for new LPFM stations in all markets where this is 
possible.
    9. Translator supporters disagree with these positions. These 
commenters oppose an interpretation of section 5(1) that, in their 
view, would favor LPFM stations over translators and urge the 
Commission not to devise licensing procedures to redress perceived 
imbalances in past licensing. NPR argues that our proposal unduly 
favors future LPFM service at the expense of the pending FM translator 
applicants by taking into account the number of existing LPFM and 
translator stations. NPR also argues that ``ensuring that licenses are 
available'' includes current and future FM translator station 
applicants. Similarly, EMF notes that the LCRA never ``directly'' 
references applications from Auction No. 83, and emphasizes Congress' 
use of ``new'' at the beginning of section 5 to argue that section 5(1) 
``requires that `new' licenses for both translators and LPFM stations 
be made available.'' NAB argues that a policy of dismissing translator 
applications where translators but not LPFM stations could be located 
would counter section 5(1)'s mandate that licenses be available for 
translator stations.
b. Section 5(2)--Assessing the ``Needs of the Local Community''
    10. Commenters are divided also in interpreting section 5(2) of the 
LCRA. LPFM advocates suggest that section 5(2) should be interpreted as 
a mandate favoring localism, and in particular LPFM stations, which 
they argue provide the greatest localism benefit of any broadcast 
service. Indeed, commenters note that the LPFM service was established 
in part to address the perceived loss of local programming during a 
period of significant radio consolidation. Some parties argue that 
translators, which do not originate programming, fail to serve local 
community needs and are not truly local, while LPFM stations better 
serve the goals of localism. LPFM proponents also suggest that, when 
making licensing decisions, the Commission could address the needs of 
local communities by considering demographic data. Specifically, they 
argue that urban communities, well served by commercial and 
noncommercial services, have less need for translator services and more 
need for local community-level programming, while rural communities, 
poorly served by full-service facilities, have need for both 
translators and LPFM stations.
    11. On the other hand, translator advocates argue that translators 
can serve the needs of the local community and note that the Commission 
and Congress have found that to be the case. For example, translators 
can provide emergency information, as well as regional and state news. 
Translators can also serve the local community by providing a format 
not currently available in that area. Thus, they argue it is wrong to 
assume that LPFM stations better serve local community needs than do 
translators. NPR criticizes our analysis of section 5(2) on the ground 
that we focused on the differences between translators and LPFM 
stations, rather than focusing on how both services serve the needs of 
the local community by expanding the programming choices available to 
listeners. NPR also argues that some communities might actually have a 
greater need for a translator than for an LPFM station because a 
translator may be filling a coverage gap for a significant full-power 
station. Common Frequency replies that urban communities served by 
multiple translators have more need for a first LPFM station.
c. Section 5(3)--``Equal in Status''
    12. The Third Further Notice noted that section 5(3) refers 
specifically to ``stations'' rather than to ``applications,'' 
suggesting that it could be applied only to existing stations and that 
future LPFM applications could have priority over pending FM translator 
applications. However, the Third Further Notice also recognized that 
the Commission had used the terms ``stations'' and ``applications'' 
interchangeably in discussing the ``co-equal status'' of LPFM stations 
and FM translator stations and that the Commission had framed this 
issue in terms of whether to follow or waive the current ``cut-off'' 
rules which protect prior-filed Auction No. 83 translator applications 
from subsequently-filed LPFM station applications. The Third Further 
Notice stated that it seems reasonable to assume that Congress intended 
the same meaning when it used the word ``station'' in the LCRA.
    13. Translator proponents argue that, for regulatory purposes, the 
terms ``stations'' and ``applications'' are interchangeable. Translator 
proponents argue that either changing the Commission's market-based 
approach or waiving the cut-off rules in favor of future-filed LPFM 
applications would not be consistent with section 5(3). Mullaney 
Engineering argues that the services are not ``equal in status'' if 
LPFM applicants are allowed to invalidate the cut-off protection rights 
of previously-filed translator applications. NPR likewise believes that 
waiving cut-off rules to give preference to later-filed LPFM 
applications would violate the ``equal in status'' mandate. Other 
translator supporters express concern that this approach would 
disproportionately favor the licensing of future LPFM stations and 
thereby violate section 5(3)'s equal in status mandate. They claim that 
trying to make LPFM and translators equal in numbers would suppress 
translator licensing and artificially encourage unwanted LPFMs.
    14. LPFM supporters disagree, arguing that, while the grant of a 
station license conveys certain vested and statutorily protected 
interests to a licensee, those interests do not attach to a pending 
application. Prometheus argues that section 5(3) does not refer to the 
cut-off rule, but instead merely requires that translators and LPFM 
stations be secondary to full-service stations and equal to each other. 
Prometheus further asserts that section 5(3) does not prohibit the 
Commission from giving LPFM applicants priority over translator 
applicants, particularly when read in the context of section 5(2)'s 
requirement that licensing serve the needs of local communities and 
section 307(b)'s requirement that the Commission distribute radio 
service in the public interest. Prometheus states that the Commission 
should balance the two services by aiding in the development of LPFM.
    15. Other LPFM advocates argue that the cut-off protection rule is 
a regulatory custom that the Commission can waive if it serves the 
public interest. Some commenters argue for giving LPFM stations 
priority because translators consume valuable radio spectrum while 
failing to provide original local programming. LPFM advocates also 
argue that the Commission must compensate for the ``head start'' that 
the translator service has to the comparatively new LPFM service. 
Commenters further argue that the current rules favor translators. Some 
suggest that, in order to achieve a true equality between the LPFM 
service and translators, the technical rules governing the LPFM service 
should be changed to match those of translators. Common Frequency 
contends that

[[Page 21005]]

section 5(3) calls for a goal of equal spectrum for each service.
3. Analysis
    16. We adopt the interpretations of the three section 5 licensing 
standards proposed in the Third Further Notice. In its broadest terms, 
section 5(1) clearly requires the Commission to ensure that some 
minimum number of FM translator and LPFM ``licenses are available'' 
throughout the nation when licensing new FM translator and LPFM 
stations. We also find that section 5 is most reasonably interpreted to 
require consideration of existing licenses. As we observed in the Third 
Further Notice, 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 in ensuring that 
``licenses are available'' for both services. In addition, our 
interpretation is consistent with the title of section 5, ``Ensuring 
Availability of Spectrum for Low-Power FM Stations,'' as well as the 
Commission's longstanding license allocation policies under section 
307(b) of the Communications Act of 1934, as amended (``Act''), which 
directs the Commission to ensure ``a fair, efficient, and equitable 
distribution of radio service'' ``among the several States and 
communities.'' In contrast, interpreting section 5 to require us to 
license new translator and LPFM stations without regard to the number 
of operating stations in each service, as EMF advocates, would be 
inconsistent with ensuring the availability of spectrum for both 
services, as well as section 307(b)'s direction. We also find support 
for our interpretation in the comments of LPFM advocates discussed 
above. Accordingly, we conclude that the mandate of section 5(1) to 
ensure that ``licenses are available'' is reasonably interpreted to 
require consideration of both existing and future licenses in the 
translator and LPFM services when licensing new stations in those 
services.
    17. We reject arguments that interpreting section 5(1) to require 
consideration of existing licenses is unreasonable because such an 
interpretation would ``favor'' LPFM licensing. The LCRA necessarily 
requires the Commission to make choices between licensing new LPFM and 
translator stations in some cases, given that the two services compete 
for the same limited spectrum. Making such choices based on the overall 
spectrum available to each service does not ``favor'' one service over 
the other. On the contrary, the fact that our interpretation of section 
5(1) enables us to account for the present disparities between the two 
services in terms of the number of licensed stations supports its 
reasonableness. We also reject EMF's argument that the LCRA ``says 
nothing'' about the processing of the applications which remain pending 
from the 2003 translator window because it does not expressly address 
them. These applications are unquestionably subject to section 5 
requirements which apply ``when licensing new FM translator stations * 
* * .'' Rather, we agree with NPR that the language of section 5(1) 
encompasses pending as well as future applications.
    18. We also adopt our proposed interpretation of sections 5(1) and 
(2) together to require that LPFM and translator licenses be available 
in as many ``local communit[ies]'' as possible, according to their 
needs. We recognize that translators and LPFM stations both serve the 
needs of communities, albeit in different ways, and conclude that we 
must take these factors into consideration in implementing section 
5(2). In particular, translators, which are inexpensive to construct 
and operate, can effectively bring service to rural and under-served 
areas. LPFM stations, on the other hand, which typically utilize 
volunteer staffs, operate under great budget constraints, and serve 
smaller geographic areas, may be less effective in meeting the needs of 
small communities and areas of low population density. Translators also 
are essential components of local and regional transmission systems 
that efficiently deliver valued programming to listeners. Nevertheless, 
as we explained in the Third Further Notice, the Commission has 
historically accorded no weight to translators in assessing the 
comparative needs of a community for radio service under its section 
307(b) licensing policies. In contrast, the LPFM service was created 
``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.'' Numerous 
LPFM service and comparative licensing criteria are designed to promote 
these goals. These criteria include a requirement that licensees be 
local, a licensing preference for those applicants with an established 
community presence, and a licensing preference for those applicants 
that pledge to locally originate at least eight hours of programming 
per day. In addition, ownership restrictions and time-share rules 
necessarily result in expanded ownership diversity. Based on these 
factors, we find that LPFM stations are uniquely positioned to meet 
local needs, particularly in areas of higher population density where 
LPFM service is practical and sustainable.
    19. We also adopt our tentative conclusion that our primary focus 
under section 5 must be to ensure that translator licensing procedures 
do not foreclose or unduly limit future LPFM licensing, because the 
more flexible translator licensing standards will make it much easier 
to license new translator stations in spectrum-limited markets than new 
LPFM stations. Our market-specific analyses, which are set forth in 
Appendices A and B, establish that few LPFM licenses have been issued 
and limited LPFM licensing opportunities remain in many markets due to 
the relatively inflexible LPFM technical rules and high spectrum 
utilization. In contrast, given the more flexible translator licensing 
standards and the limited LPFM licensing opportunities in many markets, 
the next round of LPFM licensing will have only a modest impact on 
licensing opportunities for future translator stations. Thus, our 
principal challenge in effectuating the mandates of sections 5(1) and 
5(2) is to identify and preserve LPFM licensing opportunities where few 
or no LPFM stations currently operate. We note that this goal is fully 
consistent with Congress's decisions to eliminate third adjacent 
channel distance separation requirements and to permit second adjacent 
channel spacing waivers, and thereby, expand the LFPM service.
    20. Our interpretation of section 5 has clear implications for the 
translator processing and dismissal procedures we adopt in this 
proceeding. These procedures must be responsive to two different 
situations. The first concerns markets where, taking into account both 
licensed stations and the potential for additional stations, ample LPFM 
licensing opportunities are present. Procedures in these markets must 
balance translator and LPFM licensing in a manner that ``ensures'' a 
level of future LPFM licensing that the Commission determines is 
sufficient to satisfy statutory requirements. Secondly, in markets 
where insufficient spectrum remains to satisfy these requirements, the 
translator processing and dismissal procedures, including amendment and 
settlement procedures, should preserve all identified LPFM licensing 
opportunities, i.e., should facilitate the grant of only those 
translator applications that would not diminish or ``block'' future 
LPFM licensing in these markets.
    21. On the other hand, we agree with NAB that, consistent with our 
statutory interpretation, our policies should seek

[[Page 21006]]

to avoid the dismissal of translator applications where LPFM stations 
``cannot'' be licensed. We note that, however, that capacity to 
identify such situations is limited. The FM database is dynamic, with 
LPFM filing opportunities being created, eliminated or modified daily 
due to FM application and allotment filings. Moreover, revised LPFM 
technical licensing rules that are now under consideration will 
materially affect licensing opportunities. Given the limited LPFM 
licensing opportunities in many markets, the modest impact that LPFM 
licensing will have on future translator licensing in those markets and 
the difficulties in establishing with certainty that a translator 
application ``cannot'' preclude an LPFM filing, we conclude that 
adoption of a conservative processing regime that fully protects scarce 
spectrum for future LPFM stations would be consistent with section 5, 
read as a whole.
    22. We adopt our tentative conclusion that the nationwide ten 
translator application-cap dismissal policy we established prior to the 
LCRA's enactment is inconsistent with section 5 because it would not 
provide a certain and effective way to ensure that LPFM ``licenses are 
available'' for local communities in many markets. Under that policy, 
translator applications that prevent or ``block'' LPFM licensing 
opportunities would likely be eligible for processing in markets where 
the need for LPFM licensing opportunities is greatest and spectrum most 
limited. Based on the market-specific analyses set forth in Appendices 
A and B, we also conclude that no or limited useful spectrum for LPFM 
stations is likely to remain in numerous specific radio markets where 
typically few or no LPFM stations now operate unless translator 
dismissal procedures reliably result in the dismissal of all 
``blocking'' translator applications.
    23. With regard to section 5(3), we asked in the Third Further 
Notice whether the requirement that translator and LPFM stations remain 
``equal in status'' prohibits waivers of the LPFM cut-off rule, which 
prioritizes pending FM translator applications over later-filed LPFM 
applications, explaining that such an interpretation would require the 
Commission to dismiss any pending FM translator applications that it 
determines must make way for LPFM licensing opportunities, rather than 
deferring action on such applications and later processing any that 
remain pending after the completion of dismissal and settlement 
procedures adopted to implement section 5. We identified several 
factors that support such an interpretation. The cut-off rules are a 
principal characteristic of the two services, establishing their 
``equal'' status as to each other. While acknowledging that section 
5(3) refers to ``stations,''' we noted in the Third Further Notice that 
the Commission has used ``stations'' and ``applications'' 
interchangeably in considering whether to give priority to applications 
filed in the upcoming LPFM window, a central issue in this proceeding 
since 2005. Thus, we explained, section 5(3) could be reasonably 
interpreted to prohibit waivers of the LPFM cut-off rule.
    24. Prometheus disagrees with this reasoning, pointing out that the 
``plain language'' of section 5(3) does not refer to the Commission's 
cut-off rules. It contends that section 5(3) merely ``authorizes the 
existing arrangements between licensed LPFM and translator stations as 
they relate to full-service stations. Both can be displaced by primary 
stations but neither can displace the other; and in this sense these 
stations should remain equal.'' Prometheus concludes that section 5(3) 
is not a bar to giving priority to LPFM applications filed in the 
upcoming window. Based on this interpretation, Prometheus advocates a 
processing policy under which action on certain translator applications 
would be deferred. Those applications that remain pending would be 
subject to dismissal if a conflicting LPFM application is filed. 
Prometheus, however, also recognizes that the translator dismissal 
procedures proposed in the Third Further Notice would be permissible 
under Prometheus's differing section 5(3) interpretation.
    25. We are not persuaded that Prometheus's narrow interpretation of 
section 5(3) is reasonable. For the reasons discussed above, we believe 
that the equality mandated by section 5(3) for FM translator stations 
vis-[agrave]-vis LPFM stations is most reasonably interpreted to 
encompass applications as well as authorized stations in order to be 
meaningful. That view is consistent with the Commission's treatment of 
the issue of the relative status of LPFM and translator stations prior 
to the LCRA's enactment, and nothing in the legislative history 
supports a contrary interpretation. Our interpretation also is 
consistent with the fact that the section 5 mandates apply ``when 
licensing new FM translator stations, FM booster stations and low-power 
FM stations.'' That is, section 5 as a whole concerns the processing of 
applications. Thus, we believe that Prometheus's interpretation is 
inconsistent with section 5(3) when it is considered in the context of 
section 5 as a whole.
    26. Although we find that the ``equal in status'' requirement of 
section 5(3) is most reasonably interpreted to bar LPFM cut-off rule 
waivers, we need not resolve this issue. Assuming arguendo that we 
could give priority to LPFM applications filed in the upcoming window 
over pending translator applications, we nevertheless conclude that the 
processing regime we adopt herein more rapidly and efficiently 
effectuates the LCRA's goals than would Prometheus's alternate 
approach. Most importantly, it avoids the translator licensing delays 
that would result from a deferral approach. Under such an approach, all 
translator application processing would remain frozen until all LPFM 
applications are on file and have been analyzed. Only at that point 
could the Commission attempt to process ``non-conflicting'' translator 
and LPFM applications simultaneously. In addition to these delays, 
translator grants under Prometheus's approach would have to be 
conditioned on subsequent LPFM licensing decisions, with the risk of 
displacement potentially discouraging or delaying construction efforts. 
Alternatively, the Commission could delay translator application 
processing until initial licensing actions from the LPFM window are 
substantially completed, a process that would likely take a number of 
years. In contrast, as set forth in detail below, our tailored market-
specific processing scheme is likely to allow the rapid licensing of at 
least one 1000 additional translator stations. Thus, we agree with the 
sponsors of the LCRA that the approach we adopt herein ``takes into 
account the needs of translator applicants'' as well as potential LPFM 
applicants.
    27. We also conclude that the approach Prometheus advocates would 
be administratively burdensome and resource intensive. Prometheus's 
approach would require the Commission to identify with certainty the 
potential preclusive impact of pending LPFM window filings in order to 
determine which deferred FM translator applications may be acted on, 
yet the potential for LPFM application amendments and settlements would 
make it difficult to identify with certainty the breadth of the 
potential preclusive impact of pending LPFM window filings. Moreover, 
Prometheus's approach could lead to inequitable treatment of FM 
translator applications filed in the same window, with the opportunity 
for technical amendments resulting in certain translator applications 
that are deemed ready for processing before others receiving

[[Page 21007]]

preferential access to limited spectrum. Thus, we conclude for policy 
reasons that the problems associated with deferring action on pending 
FM translator applications that otherwise would be subject to dismissal 
under the policies we adopt herein substantially outweigh any benefits.

B. Implementing Section 5 of the LCRA: Proposed Market-Based Processing 
Policy

1. Background
    28. Having tentatively concluded that the ten-application cap 
dismissal policy would run contrary to the LCRA's mandate, the 
Commission considered three alternative processing regimes and 
tentatively concluded that a market-specific, spectrum availability-
based translator application dismissal policy would most faithfully 
implement section 5 of the LCRA. To determine LPFM opportunities in 
major markets, 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. It centered a thirty-minute 
latitude by thirty-minute longitude grid over the center-city 
coordinates of each studied market. Each grid consisted of 961 points--
31 points running east/west by 31 points running north/south. The 
Bureau analyzed each of the 100 FM channels (88.1 mHz--107.9 mHz) at 
each grid point to determine whether any channels remained available 
for future LPFM stations at that location. Only channels that fully 
satisfied co-, first- and second adjacent channel LPFM spacing 
requirements to all authorizations and applications, including pending 
translator applications, were treated as available. The area 
encompassed by the grid was designed to approximate ``core'' market 
locations that could serve significant populations. The results of that 
analysis were presented in the Third Further Notice, and identified the 
number of channels (``LPFM Channels'') currently available for LPFM use 
in each studied market. In calculating ``available'' LPFM channels, it 
included both the identified vacant channels and those channels 
currently licensed to LPFM stations which are authorized to operate at 
locations within each market's thirty-minute latitude by thirty-minute 
longitude grid.
    29. The Commission proposed to dismiss all pending applications for 
new FM translators in any market in which the number of available LPFM 
Channels was below a specified LPFM channel floor (a ``dismiss all'' 
market), and to process all pending applications for new translators in 
markets in which the number of available LPFM channels met or exceeded 
the applicable LPFM channel floor (a ``process all'' market). In 
proposing the channel floors, the Commission was guided by the number 
of top 150-market NCE FM full power stations, noting that this service 
was most comparable to the LPFM service.

 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

    30. The Commission sought comment on the methodology of its study, 
and whether a market-tier approach was a reasonable means for 
effectuating both section 5(1) and 5(2) directives. It also sought 
comment on whether use of Arbitron market-based assessments as used 
therein was reasonable for purposes of implementing section 5 of the 
LCRA, and tentatively concluded that a market-based analysis would 
provide a reasonable ``global'' assessment of LPFM spectrum 
availability in particular areas. It sought comment on whether defining 
the section 5(2) term ``local community'' in terms of markets was 
reasonable and whether it was appropriate to use the same definition 
for LPFM and translator purposes.
    31. The Commission also sought comment on whether it should impose 
restrictions on the translator settlement process in the ``process 
all'' markets to ensure that engineering solutions to resolve 
application conflicts would not reduce the number of channels available 
for LPFM stations in these markets. Finally, in order to preserve the 
status quo during the pendency of this proceeding, it proposed to 
suspend the processing of any translator modification application that 
proposes a transmitter site for the first time within any market that 
has fewer LPFM channels available than the proposed channel floor. It 
also imposed an immediate freeze on the filing of translator ``move-
in'' modification applications and directed the Bureau to dismiss any 
such application filed after the adoption of the Third Further Notice. 
It noted that the freeze would continue until the close of the upcoming 
LPFM filing window, but would 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. It sought 
comment on these proposals.
2. Comments
    32. With a few exceptions, most commenters generally agreed that 
some form of the Commission's market-based approach was an acceptable 
methodology to carry out the mandate of section 5. However, many 
commenters suggested modifications to the proposal. Some commenters 
suggest changes that would potentially foster more opportunities for 
LPFM stations (which could result in the dismissal of more pending FM 
translator applications), while others favor processing more translator 
applications from the 2003 window (which also could result in fewer 
LPFM opportunities). We discuss them in turn below.
a. Defining the Market and Channel Floors
    33. Prometheus and other LPFM proponents suggest that the 
Commission analyze the top markets using a smaller grid (21x21), 
arguing that the 31x31 grid studies an area ``far too large to 
adequately evaluate spectrum availability in most urban areas.'' 
Prometheus and REC each note that many available LPFM opportunities are 
located in sparsely populated (or unpopulated) areas on the fringe of 
the 31x31 grid. LPFM advocates likewise urge the Commission to 
separately evaluate named cities in hyphenated Arbitron markets, to set 
higher channel floors, to count only channels (and not locations) as 
counting toward a channel floor, and to only count new licensing 
opportunities when assessing LPFM channel availability.
    34. Translator advocates largely disagree with these suggestions. 
NPR and NAB assert that a 21x21 grid ``provides a skewed analysis of 
market conditions'' and would violate the LCRA mandate that the two 
services remain equal in status because it would result in the 
dismissal of more translator applications. Indeed, they maintain that 
even the Commission's proposed 31x31 grid is too small, and argue that 
use of Arbitron market boundaries would provide a more accurate measure 
of current LPFM and FM translator station locations and potential LPFM 
licensing opportunities. EMF and other translator proponents likewise 
disagree with Prometheus's view that only channels should apply to the 
channel floors, maintaining that potential ``locations'' for LPFM 
stations should also count. By looking solely at channels, EMF 
maintains that the Commission is understating the number of potential 
LPFM stations that could actually be

[[Page 21008]]

constructed in the market. It argues that if LPFM is truly a localized 
service to small populations, channel re-use within a market is ``to be 
expected.''
b. Translator Amendment and Settlement Procedures
    35. In ``Dismiss All'' Markets. NAB and others assert that we 
should process translator applications where an application grant would 
not obstruct a particular LPFM opportunity or where a dismissal would 
not create an additional LPFM opportunity. LPFM advocates oppose these 
suggestions. With respect to the former, they argue that this proposal 
in practice would likely result in the loss of significant LPFM 
licensing opportunities. With respect to the latter, they argue that 
the second-adjacent waiver process will create many LPFM opportunities 
in markets that otherwise appear to have no available LPFM channels 
(such as New York and Chicago). Common Frequency further urges the 
Commission to take into account LP-10 availability and the potential 
for intermediate frequency (``I.F.'') and second adjacent channel 
waivers in determining whether a particular translator application 
could preclude an LPFM licensing opportunity.
    36. In ``Process All'' Markets. NPR and others argue that the 
Commission should not restrict the ability of pending translator 
applicants to make minor amendments to their applications, arguing that 
circumstances may have changed considerably since their applications 
were filed in 2003. NAB argues that the Commission should allow 
applicants to choose other channels as part of the settlement process, 
so long as the availability of LPFM opportunities is not reduced below 
the LPFM channel floor for that market. It does not, however, propose 
procedures to select among competing translator applicants while also 
safeguarding the pertinent LPFM channel floor. It notes that in many 
``process all'' markets, the number of available LPFM channels far 
exceeds the channel floor.
    37. LPFM advocates disagree, arguing that the ``availability of 
settlements negates the FCC's systemic approach to defining clear 
channel floors.'' Common Frequency maintains that the availability of 
settlements ``provides for an open-ended scenario where translator 
applicants could effectively cherry-pick the best channels, leaving the 
channels at the edges of the grid-area for LPFM applicants.''
3. Analysis--Revised Translator Application Processing and Dismissal 
Policies
    38. Despite the divergence of views about interpreting the LCRA, 
there is relatively broad agreement with respect to our proposal to 
effectuate section 5 with market-specific spectrum availability 
metrics. Significantly, no commenter provided a comprehensive statutory 
interpretation pointing to a fundamentally different approach. 
Accordingly, we adopt, with certain modifications, the market-specific 
processing approach outlined in the Third Further Notice. As discussed 
above, our principal challenge in effectuating section 5(1) of the LCRA 
is to identify and preserve those LPFM licensing opportunities where 
few or no LPFM stations currently operate. The processing approach we 
adopt today furthers this goal by ensuring that LPFM licensing 
opportunities in spectrum-limited markets remain ``available.'' At the 
same time, we adopt translator application and amendment procedures 
that will permit the immediate licensing of certain pending translator 
applications in both ``dismiss all'' and ``process all'' markets, 
consistent with section 5(1) and 5(2) directives and the procedures set 
forth below. To conform our terminology to the revised processing 
standards, we will use the names ``spectrum limited'' and ``spectrum 
available'' markets to refer to what were previously characterized as 
``dismiss all'' and ``process all'' markets, respectively.
    39. We believe certain modifications are necessary to better ensure 
that our licensing decisions are based on community needs, as required 
by section 5 of the LCRA. As we noted in the Third Further Notice and 
as discussed above, LPFM stations are best suited to serve more densely 
populated markets. We have reviewed our grid studies and have 
determined that in some smaller ``spectrum available'' markets, many of 
the channels identified as available for LPFM are on the fringe of the 
31x31 grid in unpopulated or very lightly populated areas. Indeed, in 
some cases, the population of the 21x21 grid represents more than 90 
percent of the population of the 31x31 grid. We believe that LPFM 
stations can best serve the needs of local communities in areas with 
significant populations where LPFM service is practical and 
sustainable. Accordingly, we find that adoption of a smaller grid is 
appropriate in certain markets to compensate for low population levels 
on the outer fringes of the grid. We believe that use of a smaller grid 
in these markets will more faithfully implement section 5(2) of the 
LCRA than our original proposal because it identifies and preserves 
LPFM opportunities in core city areas, where the LPFM service can best 
serve community needs. We likewise find that this revised approach is 
more faithful to our interpretation of sections 5(1) and 5(2) of the 
LCRA. As set forth above, these sections, when read together, require 
us to ensure a certain level of future LPFM licensing in ``spectrum 
available'' markets. However, we believe that licensing opportunities 
identified as ``available'' in these smaller markets should be limited 
to those locations that are likely to be able to support viable LPFM 
stations. Our adoption of a 21x21 grid in certain markets will enable 
us to more accurately identify such opportunities.
    40. Different considerations apply to the largest markets. Our 
analysis establishes that there are few or no LPFM licensing 
opportunities within the core areas of most of the top 50 markets, 
especially when compared to the number of licensed translator stations 
and the number of pending translator applications in these markets. 
Using the methodology set forth in paragraph 41 below, we have 
determined that only seven of the top 50 markets which are classified 
as ``spectrum limited'' exhibit the high population concentrations 
within the grid that occur in a number of smaller markets. That is, 
based on both raw population numbers and population distributions, the 
largest markets are more likely to include population centers outside 
core market locations that LPFM stations could serve. Thus, we find 
that our translator processing procedures must not preclude LPFM 
licensing opportunities beyond the studied 31x31 grids in the top 50 
spectrum limited markets.
    41. We have modified the LPFM spectrum availability study set forth 
in the Third Further Notice as follows. As before, we identified the 
number of available LPFM channels and licensed stations within the 
31x31 grid and compared this number to each market's channel floor. 
These results are set forth in Appendix A. We then analyzed ``spectrum 
available'' markets to identify those where 75 percent or more of the 
total population in the 31x31 grid is located in the 21x21 grid. In 
these markets, the smaller grid contains the concentrated core 
population and, for the reasons explained in paragraph 39 above, we 
used the smaller grid to determine both the number of licensed stations 
and the number of channels available for future LPFM stations.

[[Page 21009]]

Thus, ``spectrum available'' markets are those markets in which the 
number of LPFM channels within the applicable grid meets or exceeds the 
market's channel floor. The results of our market studies using the 
21x21 grid, where applicable, are presented in Appendix B. We did not 
subject the 31x31 ``spectrum limited'' markets to the 21x21 population 
threshold test for several reasons. First, any such market would 
necessarily remain a ``spectrum limited'' market on the basis of a 
21x21 grid analysis. More importantly, the 31x31 grid analysis in each 
of these markets establishes that few opportunities remain within the 
larger grid for new LPFM stations. Thus, we find that it is necessary 
that our ``spectrum limited'' market translator application processing 
rules, as described below, protect all of the limited LPFM licensing 
opportunities within the larger grid in such markets. In addition, for 
the reasons stated above, we also will require a translator applicant 
in any top 50 spectrum limited market to demonstrate that its out-of-
grid proposal would not preclude the only LPFM station licensing 
opportunity at that location (``Top 50 Market Preclusion Showing'') by 
making the showing described below. We note that the analyses in 
Appendices A and B are based on updated BIA data, resulting in several 
changes from the analysis attached to the Third Further Notice, 
including the addition of three radio markets listed in the appendices 
and the removal of two markets previously listed in Appendix A.
    42. We next consider other proposed ``tweaks'' to our methodology. 
Prometheus and REC first urge us to set higher channel floors, arguing 
that, given the ``overstatement of LPFM availability in the 
Commission's methodology, the proposed floors are too low to achieve 
the envisioned LPFM license availability.'' They assert that there are 
a number of unknown factors in determining LPFM availability, including 
suitability and availability of the site, population levels, and demand 
for LPFM at these locations.
    43. We believe that our adoption of the smaller grid in those 
markets with a core concentrated population largely addresses these 
concerns because it excludes from our analysis LPFM opportunities in 
areas with little or no population. It is also the case that our 
studies demonstrate that multiple grid points are available for many of 
the identified channels and that more than one LPFM station can operate 
on identified channels in some markets. We find that these factors 
adequately counter-balance uncertainties regarding site availability, 
site suitability and local demand for LPFM licenses. We will also 
continue to count both identified vacant channels and those channels 
currently licensed to LPFM stations as ``available.'' Excluding 
currently licensed LPFM channels from our ``available LPFM channels'' 
findings, as proposed by Prometheus and REC, would be inconsistent with 
our interpretation of section 5(1) to require consideration of existing 
licenses as part of the ``licenses are available'' metric. Moreover, 
eliminating licensed channels from consideration would not create many 
(if any) new LPFM opportunities because it would not convert any top 50 
``spectrum available'' market into a ``spectrum limited'' market. 
Finally, we decline to break out hyphenated Arbitron markets into 
separate submarkets, as suggested by REC and others, because we believe 
that ample LPFM opportunities remain in most submarkets. Also, without 
clear delineation within the markets, there would be no reasonable way 
of determining which translators would be processed, should two cities 
within a market have different spectrum available/spectrum limited 
outcomes.
    44. NAB does not oppose the channel floors, per se, but urges us to 
count both channels and locations toward the channel floors. We reject 
this suggestion. As Prometheus notes, the Commission cannot determine 
whether there is demand for a future LPFM station at any identified 
location. Moreover, as we have emphasized previously, this may be the 
last opportunity to meaningfully expand opportunities to provide LPFM 
service due to the combined impacts of limited spectrum and the strict 
technical licensing standards mandated by the LCRA. In contrast, and as 
we also explained in the Third Further Notice, flexible translator 
licensing rules ensure that abundant translator licensing opportunities 
will remain after the forthcoming LPFM window. Thus, consistent with 
the broad interpretive principles set forth above, we find that it is 
appropriate to use conservative techniques to assess LPFM availability 
in a given market, including counting available LPFM channels, not 
locations.
    45. In the Third Further Notice, we proposed ``LPFM Channel 
Floors'' of potential LPFM licensing opportunities in the 150 largest 
markets, as well as smaller markets where more than four translator 
applications are pending. These channel floors range from 8 potential 
LPFM channels in the top 20 markets to 5 potential LPFM channels below 
the top 100 markets. We based these figures on a rough approximation of 
the number of noncommercial educational (``NCE'') stations in the top 
150 markets. We selected the NCE FM service as a point of reference 
because that service is the radio service most similar to the LPFM 
service and, therefore, the best gauge of local community needs for 
such service. Commenters who addressed our proposed channel floors 
disputed neither our reasoning nor the specific ranges of channel 
floors or markets selected for those ranges. Thus, based on our 
examination of the record, we conclude that the proposed channel floors 
are a reasonable standard. We find that these floors adequately further 
the development of the LPFM service in spectrum-limited markets, as 
intended by section 5(1) of the LCRA, and strike an effective balance 
by ensuring that licenses for both LPFM and translator services are 
available in as many communities as possible, as required by our 
collective reading of sections 5(1) and 5(2) of the LCRA. Accordingly, 
we adopt the channel floors as proposed in the Third Further Notice.
    46. We will, however, revise our processing approach with regard to 
certain translator applications in both ``spectrum limited'' and 
``spectrum available'' markets. As an initial matter, we recognize that 
our use of the 21x21 grid in certain markets has turned some ``spectrum 
available'' markets into ``spectrum limited'' markets. For the reasons 
discussed above, we find that translators serve community needs, 
especially those in rural or underserved areas. As such, we agree with 
NAB that translator applicants in ``spectrum limited'' markets should 
be given an opportunity to demonstrate that their applications, if 
granted, would not preclude any LPFM opportunities. We also will permit 
minor amendments to meet this ``no preclusion'' test. Translator 
applicants proposing ``move-in'' modifications and modification 
applications that propose to move into a ``spectrum limited'' market 
will also be allowed to make such a showing. This approach is also 
consistent with our combined reading of sections 5(1) and 5(2) because 
it furthers the statutory goal of ensuring that the Commission provide 
licensing opportunities for both services in as many communities as 
possible. Prometheus and others fail to explain how this narrow 
exception to allow continued translator processing in a ``spectrum 
limited'' market will preclude LPFM opportunities, given that, as 
described in more detail below, we will require translator applicants 
to protect all channel/point combinations with the assumption that all 
LPFM

[[Page 21010]]

applicants in these markets will be eligible for second-adjacent 
channel waivers. We likewise agree that translator applicants in 
``spectrum available'' markets should be afforded some opportunity to 
amend their applications. As noted by many translator advocates, 
circumstances have changed since 2003, and transmitter sites may no 
longer be available. As described in more detail below, we will provide 
applicants with a limited opportunity to amend their applications so 
long as their proposals do not eliminate any LPFM channel/point 
combination in any of the 156 market grids and, where applicable, 
satisfy the Top 50 Market Preclusion Showing. We do not believe that 
allowing translator applicants these limited opportunities to amend 
their applications will impede our ability to guarantee licensing 
opportunities equivalent to the LPFM channel floors we adopt herein.
    47. Accordingly, we direct the Bureau to issue a public notice 
requiring all applicants affected by the national application cap and/
or the one application per applicant per market limitation (discussed 
below) to identify applications for continued processing, consistent 
with these limits. The auctions anti-collusion rule will remain in 
effect during this process. Upon completion of this selection/dismissal 
process, the Bureau will process the remaining applications in 
``spectrum available'' markets, starting with the singletons. Mutually 
exclusive applications from this group will then be placed on public 
notice and afforded a 60-90 day window to resolve their application 
conflicts via settlement or amendment. Any amendment of an application 
that precludes any LPFM channel/point combination identified in the 
grid studies will result in application dismissal. Amendments will be 
processed on a first-come, first-served basis, with all unamended 
applications having cut-off protection against amendments filed during 
the settlement period.
    48. Applicants with proposals in ``spectrum limited'' markets will 
be given one opportunity to modify their proposals to eliminate all 
preclusive impacts on protected LPFM channel/point combinations. An 
applicant in a top 50 ``spectrum limited'' market proposing facilities 
outside the studied 31x31 grid also will need to demonstrate either 
that no LPFM station could be licensed at the proposed transmitter site 
or, if an LPFM station could be licensed at the site, that an 
additional channel remains available for a future LPFM station at the 
same site. Applications that conflict with protected channel/point 
combinations or fail to make such a Top 50 Market Preclusion Showing 
and that are not amended to come into compliance with these 
requirements will be dismissed. As explained above, applications in 
31x31 grid ``spectrum limited'' markets must protect all channel/point 
combinations within this grid. Applicants in 21x21 grid ``spectrum 
limited'' markets must protect all channel/point combinations only 
within this grid. We limit ``spectrum limited'' grid protection 
requirements in these markets because, as noted above, we believe that 
this standard will protect those areas where LPFM stations can best 
serve the needs of local communities and, therefore, will most 
faithfully implement sections 5(1) and 5(2). From this point, all 
remaining applications will generally proceed down the same singleton/
MX/settlement/auction/long form path. Amendments will be processed on a 
first-come, first-served basis, including for the purpose of 
determining whether an additional LPFM channel remains available at a 
specific location outside the grid. We terminate the freeze on the 
grant of pending Auction No. 83 translator applications and direct the 
Bureau to resume application processing in accordance with these 
procedures.
    49. We provide the following guidance on translator application 
processing. ``Protected'' LPFM channel/point combinations will be 
determined differently in ``spectrum available'' and ``spectrum 
limited'' markets. In a ``spectrum available'' market, a channel/point 
combination must be protected only if LPFM operations at the site would 
be fully spaced to all pending translator applications on co-, first- 
and second-adjacent channels (and, of course, would satisfy all other 
spacing requirements). Thus, a translator applicant in a ``spectrum 
available'' market that does not modify its technical proposal would 
always qualify for further processing because the proposed translator 
facility cannot conflict, by definition, with any protected channel/
point combinations. ``Spectrum available'' market amendments, however, 
may not conflict with protected LPFM channel/point combinations. 
``Spectrum limited'' calculations, including Top 50 Market Preclusion 
Showing calculations, will assume the dismissal of all translator 
applications in the market. This differing treatment of pending 
translator applications is based on our determination that sufficient 
channels are/are not available if all translator applications remain 
pending. Moreover, the ``spectrum limited'' channel/point and Top 50 
Market Preclusion Showing calculations, will not take into account 
second-adjacent channel spacings to authorized stations and other 
pending applications, i.e., will assume that an LPFM applicant could 
make a sufficient showing to obtain a second-adjacent channel spacing 
waiver. Finally, ``spectrum limited'' calculations will not take into 
account I.F. spacing requirements. We find that these more restrictive 
``spectrum limited'' market processing standards are necessary to 
safeguard LPFM licensing opportunities in these markets. As noted, the 
protection scheme for ``spectrum available'' markets 1-50 and for all 
other studied markets are limited to the particular grid used in each 
market. LPFM licensing opportunities outside the grid in these markets 
are not protected in either ``spectrum limited'' or ``spectrum 
available'' markets. Thus, a translator application specifying a site 
at a distance equal to or greater than the minimum LPFM-translator 
distance separation requirements and otherwise in compliance with 
licensing rules would be grantable under these processing standards in 
all ``spectrum limited'' markets 51 and smaller and all ``spectrum 
available'' markets.

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

1. Background
    50. The Third Further Notice tentatively concluded that our 
proposed market-based translator application processing policy would 
not be sufficient to deter speculative licensing conduct because the 
remaining translator filings present significant issues of abuse of our 
licensing process. It tentatively concluded that nothing in the LCRA 
limits the Commission's ability to address the potential for licensing 
abuses by any applicant in Auction No. 83, and sought comment on 
processing policies to deter the potential for speculative abuses among 
the remaining translator applicants. Specifically, it sought comment on 
whether to establish an application cap for the applications that would 
remain pending in non-spectrum limited markets and unrated markets, and 
asked whether a cap of 50 or 75 applications in a window would force 
filers with a large number of applications to concentrate on those 
proposals and markets where they have bona fide service aspirations. 
The Third Further Notice also asked whether applicants

[[Page 21011]]

should be limited to one or a few applications in any particular 
market, noting that a limitation of this sort could limit substantially 
the opportunity to warehouse and traffic in translator authorizations 
while promoting diversity goals. It also sought comment on alternative 
approaches to protect against abuses in the translator licensing 
process.
2. Comments
    51. Many commenters support some form of cap, with several 
supporting a cap of 50 or 75 per applicant nationally, as proposed in 
the Third Further Notice. Alan W. Jurison suggests that such a high cap 
should be coupled with new translator ownership rules and a waiver 
system to allow bona fide applicants to file numerous applications 
nationally. Others support our suggestion of having a cap on the number 
of applications per market. Kyle Magrill suggests a tiered, market-
based cap whereby the more applications an applicant files nationally, 
the further the number of applications per market must decrease.
    52. However, EMF opposes any cap at all, believing it will reduce 
translator services to smaller markets. Other commenters argue that 
caps fail to distinguish serious applicants from speculators and 
suppress competition. Some commenters simply disagree with the concerns 
over speculative filings described in the Third Further Notice. For 
example, Kyle Magrill suggests that non-commercial applicants may have 
filed large numbers of translator applications because they believed 
that it was the best way to ensure they would obtain a permit, and even 
those permits that were sold have resulted in new facilities on the air 
serving the public interest. Edgewater Broadcasting, Inc., and Radio 
Assist Ministry, Inc., also note that applicants accused of trafficking 
have not in fact violated any of the Commission's Rules.
    53. Several commenters propose alternatives to caps or additional 
safeguards against trafficking: placing limitations on the number of 
outstanding translator construction permits an applicant can have; 
restricting sales of permits to allow applicants to only recover costs; 
or preventing outright the sale of unbuilt construction permits. NPR 
suggests establishing a holding period obligating future translator 
permittees to construct and operate newly authorized translators.
3. Analysis
    54. We conclude that both a national cap and a market-based cap for 
the markets identified in Appendix A are appropriate to limit 
speculative licensing conduct and necessary to bolster the integrity of 
the remaining Auction 83 licensing. Without such caps, we believe that 
the translator licensing process we adopt herein could result in the 
prosecution of thousands of applications for the primary purpose of 
for-profit assignments of the issued translator authorizations. If the 
permits were issued in an auction, then we would be much less concerned 
about such speculation in permits. However, as we noted in the Third 
Further Notice, we expect that a substantial portion of the remaining 
grants will be made pursuant to our settlement procedures rather than 
through auctions.
    55. We first must address whether the adoption of national and per-
market caps on the processing of pending translator applications to 
protect the integrity of the translator licensing process is consistent 
with section 5 of the LCRA. Although that provision mandates that the 
Commission consider the availability of translator licenses to serve 
the needs of local communities in licensing new translators, it does 
not limit the Commission's authority under the Act to adopt measures to 
protect the integrity of its licensing processes. Accordingly, we 
conclude that adoption of the caps to safeguard the integrity of our 
licensing processes is consistent with section 5's requirement to 
ensure that licenses are available to both LPFM and translator 
services.
    56. We next address the public interest benefits of translator 
application caps. As set forth above, the initiation of new translator 
service resulting from a grant of some of those applications may 
benefit the public interest. At the same time, we believe strongly that 
remedial limits are needed to protect the integrity of our licensing 
process. Non-feeable application procedures and flexible auction and 
translator settlement rules clearly have facilitated and encouraged the 
filing of speculative proposals. Our CDBS database shows that 
successful Auction 83 applicants have sold more than 700 translator 
authorizations and let almost 1000 permits expire without completing 
construction. In some markets, certain applicants have filed dozens of 
applications, even though it is inconceivable that one entity would 
construct and operate all of the proposed stations. The filers that 
will be affected by our national cap and by our per-market cap account 
for much of this licensing activity. While we recognize that high-
volume filers did not violate our rules, these types of speculative 
filings are fundamentally at odds with the core Commission broadcast 
licensing policies and contrary to the public interest.
    57. Although we have considered a number of alternatives, we find 
that imposing a cap on applications is the most administratively 
feasible solution for processing this large group of long-pending 
applications. As some comments suggest, a longer term solution may 
require structural changes to the translator licensing process, e.g., 
holding period and/or construction requirements, no-profit restrictions 
on the assignment of authorizations, a cap on application filings, etc. 
However, we believe that the caps we adopt today will both deter 
trafficking and provide the fastest path to additional translator and 
LPFM licensing in areas where the need for additional service is 
greatest. We emphasize that the cap procedures we adopt will give 
applicants the opportunity to elect which applications will be 
processed toward a grant. We expect that applicants will choose 
applications that will maximize new service to the public. Even with 
the dismissal of many of the pending translator applications pursuant 
to the application caps and our market-based processing policy, we are 
confident that the same or comparable licensing opportunities will 
remain available in a future translator filing window under our 
flexible translator licensing standards. In short, these dismissals 
will only delay, not deny, licenses to applicants whose translator 
applications are dismissed but who remain interested in effectuating 
their proposals.
    58. We believe that a national cap of 50 applications per applicant 
from the pending Auction 83 applications is an appropriate limit. 
Because translators are relatively cheap to construct and operate, we 
believe it is feasible for the organizations that filed the highest 
volume of applications to construct and operate 50 additional stations. 
Accordingly, in balancing the competing goals of deterring speculation 
and expanding translator service to local communities, we conclude that 
a national cap of 50 applications is appropriate. We note that this cap 
is high enough to permit all but twenty applicants to prosecute all of 
their pending applications. We also note that even some translator 
advocates commented in support of a cap of 50 applications.
    59. In addition to the national cap of 50 applications, we believe 
that a per-market cap of one application in the markets identified in 
Appendix A is appropriate. Our translator rules contemplate that a 
party may receive an authorization for a second or third FM translator 
serving substantially the same

[[Page 21012]]

area as the first only after making a ``showing of technical need for 
such additional stations.'' This is a spectrum efficiency rule based on 
our experience that parties rarely need such multiple translators. Yet 
in some cases, applicants in Auction 83 submitted dozens of 
applications for a particular market. These applications were clearly 
filed for speculative reasons or to skew our auction procedures, as it 
is inconceivable that a single entity would construct so many stations 
in a single market. Given the volume of pending applications, it is not 
administratively feasible to conduct a case-by-case assessment of 
technical need for such multiple applications within the markets 
identified in Appendix A. Accordingly, we will apply a cap of one 
translator application per applicant in the markets identified in 
Appendix A. For applications outside those markets, where the 
duplication issue is more manageable, we will apply our technical need 
rule on a case-by-case basis.
    60. For translator applicants, our revised processing policies 
provide a straightforward licensing path that will likely result in 
more than 1000 new construction permits, thereby increasing the total 
number of authorizations issued out of Auction 83 to over 4500. At the 
same time, the national and per-market caps will require each affected 
applicant to prioritize its filings and to focus on proposals at 
locations where it has a bona fide interest in providing service. We 
believe that these restrictions are necessary to impose on these 
applicants a level of discipline similar to that which competitive 
bidding procedures provide in full service station licensing.
    61. We will require parties with more than 50 pending applications 
nationally and/or more than one pending application in the markets 
identified in Appendix A to identify and affirm their continuing 
interest in those pending applications for which they seek further 
Commission processing, consistent with these limits. Both pending long 
form and short form applications will be subject to these applicant-
based caps. In the event that an applicant does not timely comply with 
these dismissal procedures, we direct the staff to first apply the 
national cap, retaining on file the first 50 filed applications and 
dismissing those that were subsequently filed. The staff will then 
dismiss all but the first filed application in each of the markets 
identified in Appendix A.

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

1. Background
    62. 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 does not serve the public interest and is 
unfair to both AM stations and FM translator applicants.
    63. The practical effect of the date limit imposed in the 2009 
Translator Order was to exclude pending Auction No. 83 FM translator 
applications as well as future FM translator applications from the pool 
of potential cross-service translators. In the Third Further Notice, we 
asked whether it would be appropriate to remove this limit on cross-
service translators with respect to those pending applications. 
Specifically, we asked whether the limit should be removed for those 
applications which were on file as of May 1, 2009. We stated that 
resolving this issue before processing of the pending translator 
applications would align FM translator processing 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) of the LCRA. We also noted 
that allowing cross-service translators had been a very successful 
deregulatory policy.
2. Comments
    64. Most commenters support removing the date restriction for 
pending FM translator applications. These commenters point to the 
public service benefits that FM translators have provided to AM 
stations. Some argue that the need for the date restriction is going 
away now that the Commission will be opening an LPFM window.
    65. To the extent that commenters take a contrary position, most 
argue for some type of restriction or limitation on cross-service 
translators in general. Some LPFM proponents argue for qualifying 
criteria for cross-service translators, such as local ownership, lack 
of in-market FM ownership by the AM licensee, diversity of ownership, 
amount of local programming, and quality of AM signal. REC Networks and 
Prometheus argue that the 250-watt power level allowed for ``fill-in'' 
AM translators should be reduced before cross-service translators are 
expanded. NPR argues that the date restriction should be kept in place 
unless the Commission adopts strong anti-trafficking rules so that 
traffickers in the current pool of Auction 83 applicants will not 
benefit from the change.
3. Analysis
    66. We will modify the date restriction to allow pending FM 
translator applications that are granted to be used as cross-service 
translators. As we explained in the Third Further Notice, the 
limitation of cross-service translator usage to already-authorized 
translators was adopted with the intention of preserving opportunities 
for future LPFM licensing. In the Third Further Notice, we decided to 
revisit this pre-LCRA policy. We proposed changes in the FM translator 
application processing rules designed to accomplish more effectively 
the goal of preserving spectrum for future LPFM licensing. Given those 
proposed changes, as stated above, we indicated that removing the date 
limit, at least for the pending translator applications, could align FM 
translator licensing outcomes more closely with demand, thereby 
advancing the goals of section 5(2) of the LCRA.
    67. With our adoption of the revised translator application 
processing policies described above, we believe we have effectively 
addressed the LPFM spectrum issue that prompted the pre-LCRA date 
limitation on cross-service translators. Having done so, we believe the 
translators that are put into service from the pool of pending 
applications should be put to their best use, consistent with the 
directive of section 5(2) to carry out FM translator licensing ``based 
on the needs of the local community.'' Our view is that, with the FM 
translator processing policies described above in effect, the public 
interest benefits from expanding cross-service translator service are 
considerably more significant than any downside from allowing any 
forthcoming Auction No. 83 authorizations to be used for such service.
    68. With respect to the proposed restrictions or limitations on 
cross-service translators sought by LPFM proponents, most are 
essentially untimely petitions for reconsideration of the 2009 
Translator Order. Accordingly, and because we intend to consider 
modifications to our FM translator rules and procedures more generally 
in a separate proceeding, as discussed

[[Page 21013]]

below, we decline to consider these arguments here. In any event, we 
believe the LPFM proponents who argue for such restrictions fail to 
recognize the significant public interest benefits that will accrue 
from expanding the pool of potential cross-service translators. In the 
2009 Translator Order, we described the substantial benefits to local 
listeners that cross-service translators were providing, for example, 
providing pre-sunrise and post-sunset coverage of traffic, weather, 
news and sports programming and improving localism, competition and 
diversity in a number of radio markets. The record here confirms those 
benefits and supports a change in the date limitation to allow permits 
or licenses arising from pending FM translator applications to be used 
as cross-service translators.
    69. Again, we intend to revise our FM translator rules before the 
next FM translator auction window, so parties will have an opportunity 
to present their views at that time with respect to any appropriate 
modifications in our translator rules and procedures. If parties wish 
to argue that priority should be given in future translator auction 
windows to Class D AM stations or AM stations that lack a co-owned FM 
outlet, then they may do so in that proceeding.
    70. Accordingly, we grant reconsideration of the 2009 Translator 
Order to the extent of allowing authorizations arising from pending FM 
translator applications to be used as cross-service translators. With 
respect to future FM translator applications, we will address their 
potential use as cross-service translators in a future rulemaking to 
revise our FM translator rules.

II. Third Order on Reconsideration

    71. In the Third Report and Order discussed above, the Commission 
established a going-forward limit of ten pending short-form 
applications per applicant from FM translator Auction No. 83, and 
directed the Bureau to resume processing the applications of those 
applicants in compliance with this numerical cap.
    72. Petitions for reconsideration opposing the cap were filed by 
CSN International, National Religious Broadcasters, Positive 
Alternative Radio, Inc., and Educational Media Foundation et. al. In 
light of our adoption of the market-specific translator application 
dismissal process described in this Fourth Report and Order, we dismiss 
them as moot.

III. Procedural Matters

    73. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act, 5 U.S.C. 603, the Commission has prepared a 
Final Regulatory Flexibility Analysis (FRFA) of the possible 
significant economic impact on small entities of the proposals 
suggested in this document. The FRFA is set forth in Appendix C.
    74. Paperwork Reduction Act. This document contains new information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13 (U.S.C. 3501-3520). The requirements will be 
submitted to the Office of Management and Budget (OMB) for review under 
section 3507(d) of the PRA. The Commission will publish a separate 
notice in the Federal Register inviting comments on the new information 
collection requirements adopted in this document. In addition, we note 
that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought 
specific comment on how the Commission might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees. We describe impacts that might affect small 
businesses, which includes most businesses with fewer than 25 
employees, in the FRFA in Appendix C, infra.
    75. Congressional Review Act. The Commission will send a copy of 
this Fourth Report and Order in a report to be sent to Congress and the 
Government Accountability Office pursuant to the Congressional Review 
Act, see 5 U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Analysis.

    76. As required by the Regulatory Flexibility Act (RFA), an Initial 
Regulatory Flexibility Analysis (IRFA) was incorporated in the Third 
Further Notice of Proposed Rulemaking (Third Further Notice) in MM 
Docket No. 99-25, and MB Docket No. 07-172, RM-11338. The Commission 
sought written public comment on the proposals in the Third Further 
Notice, including comment on the IRFA. We received no comments 
specifically directed toward the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Fourth Report and Order

    77. This rulemaking proceeding was initiated to seek comment on how 
the enactment of section 5 of the Local Community Radio Act of 2010 
(``LCRA'') would impact 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 Fourth Report and Order concludes that 
that this cap was inconsistent with the LCRA licensing criteria. It 
further concludes that a market-specific, spectrum availability-based 
translator application dismissal policy most faithfully implements 
section 5 of the LCRA. Specifically, it sets forth a dismissal policy 
in which the Commission will impose a national application cap and/or a 
one application per applicant per market in the markets identified in 
Appendix A of the Fourth Report and Order. It directs the Media Bureau 
to issue a Public Notice asking applicants to identify applications for 
continued processing, consistent with these limits. Upon completion of 
this selection/dismissal process, the Bureau will process the remaining 
applications in ``spectrum available'' markets, as defined in the 
Fourth Report and Order. Applicants will be able to file amendments 
demonstrating that their applications will not preclude any LPFM 
channel/point combination identified in the grid studies. Those 
applications that fail to do so will be dismissed.
    78. Applicants with proposals remaining in ``spectrum limited'' 
markets, as defined in the Fourth Report and Order, will also be given 
one opportunity to modify their proposals to eliminate all preclusive 
impacts on protected LPFM channel/point combinations. Applications that 
conflict with protected channel/point combinations and that are not 
amended to eliminate all such conflicts will be dismissed.
    79. The Fourth Report and Order also modifies certain recently 
adopted FM translator service rule changes as a result of the enactment 
of the LCRA. Specifically, it modifies the date restriction contained 
in Sec.  74.1232(d) of the Rules to allow pending FM translator 
applications that are granted to be used as cross-service translators.

B. Summary of Significant Issues Raised by Public Comments in Response 
to the IRFA

    80. None.

C. Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    81. The RFA directs the Commission to provide a description of and, 
where

[[Page 21014]]

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'').
    82. Radio Broadcasting. The policies adopted in the Fourth Report 
and Order 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.
    83. 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.
    84. FM translator stations and low power FM stations. The policies 
adopted in the Fourth Report and Order affect licensees of FM 
translator and booster stations and low power FM (LPFM) stations, as 
well as 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.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    85. In the Fourth Report and Order, we require Auction No. 83 
applicants to identify which applications they wish to preserve to come 
into compliance with the national and market-based caps. This will 
enable the Commission to move quickly through a backlog of applications 
that have been pending since 2003 and open a new filing window for the 
LPFM service.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    86. 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.
    87. The Fourth Report and Order establishes a market-specific, 
spectrum availability-based approach to the processing of remaining 
translator applications. It also establishes national and market-
specific application caps. In adopting these policies, several 
alternative approaches were considered:
    88. Size of Grid. The Commission considered alternatives to the 
31x31 market study grid proposed in the Third Further Notice. For 
example, it considered a smaller, 21x21 grid, as well as a larger grid 
based on Arbitron market boundaries. The Fourth Report and Order adopts 
a 31x31 grid, but adopts a 21x21 grid in markets where 75 percent or 
more of the population is located in that smaller grid.
    89. Processing of Translator Application in Spectrum-Limited 
Markets. The Third Further Notice proposed to dismiss all applications 
in certain spectrum-limited markets. One alternative considered was to 
allow continued processing of certain translator applications in 
``spectrum limited'' markets. The Fourth Report and Order adopts this 
policy.
    90. We believe that the adopted policies offer significant benefits 
to small entities. 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. Use of the smaller grid and allowing the 
processing of additional translators benefit small entities because 
they will increase licensing opportunities for both LPFM stations and 
translators. Adoption of the application caps will benefit translator 
and LPFM proponents because it will allow the Commission to quickly act 
on applications that have been pending for more than eight years and to 
open an LPFM window in the near future.
    91. We likewise believe that removing the date restriction 
contained in Sec.  74.1232(d) of the rules to allow pending FM 
translator applications that are granted to be used as cross-service 
translators will benefit small entities because it will expand 
opportunities for translator licensees to rebroadcast AM service.

F. Report to Congress

    92. The Commission will send a copy of the Fourth Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
SBREFA. In addition, the Commission will send a copy of the Fourth 
Report and Order, including the FRFA, to the Chief Counsel for Advocacy 
of the SBA. A copy of the Fourth Report and Order and the FRFA (or 
summaries thereof) will also be published in the Federal Register.

[[Page 21015]]

Ordering Clauses

    93. Accordingly, it is ordered that the Petitions for 
Reconsideration filed by Robert A. Lynch on July 28, 2009, and Edward 
A. Schober on July 28, 2009, are granted in part to extent set forth 
above.
    94. It is further ordered that the Petitions for Reconsideration 
filed by CSN International on February 4, 2008; National Religious 
Broadcasters on February 15, 2008; and Positive Alternative Radio, Inc. 
and Educational Media Foundation on February 19, 2008, are dismissed as 
moot.
    95. It is further ordered that pursuant to the authority contained 
in sections 4(i), 301, 302, 303(e), 303(f) and 303(r) of the 
Communications Act of 1934, as amended, 47 U.S.C, 154(i), 301, 302, 
303(e), 303(f) and 303(r), and the Local Community Radio Act of 2010, 
Public Law 111-371, 124 Stat. 4072 (2011), this Fourth Report and Order 
is hereby adopted and Part 74 of the Commission's rules are amended as 
set forth in Appendix D, effective 30 days after publication in the 
Federal Register.
    96. It is further ordered that the rules adopted herein will become 
effective thirty (30) days after publication in the Federal Register, 
except for any rules or requirements involving Paperwork Reduction Act 
burdens, which shall become effective upon announcement in the Federal 
Register of OMB approval and an effective date of the rule(s).
    97. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Fourth Report and Order, including the Final Regulatory 
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.

List of Subjects in 47 CFR Part 74

    Radio.

Federal Communications Commission.
Sheryl D. Todd,
Deputy Secretary.

Rule changes

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 74 to read as follows:

PART 74--EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER 
PROGRAM DISTRIBUTIONAL SERVICES

0
1. The authority citation for part 74 continues to read as follows:

    Authority:  47 U.S.C. 154, 303, 307, 309, 336, and 554.


0
2. Section 74.1232(d) is revised to read as follows:


Sec.  74.1232  Eligibility and licensing requirements.

* * * * *
     (d) An authorization for an FM translator whose coverage contour 
extends beyond the protected contour of the commercial primary station 
will not be granted to the licensee or permittee of a commercial FM 
radio broadcast station. Similarly, such authorization will not be 
granted to any person or entity having any interest whatsoever, or any 
connection with a primary FM station. Interested and connected parties 
extend to group owners, corporate parents, shareholders, officers, 
directors, employees, general and limited partners, family members and 
business associates. For the purposes of this paragraph, the protected 
contour of the primary station shall be defined as follows: the 
predicted 0.5mV/m contour for commercial Class B stations, the 
predicted 0.7 mV/m contour for commercial Class B1 stations and the 
predicted 1 mV/m field strength contour for all other FM radio 
broadcast stations. The contours shall be as predicted in accordance 
with Sec.  73.313(a) through (d) of this chapter. In the case of an FM 
radio broadcast station authorized with facilities in excess of those 
specified by Sec.  73.211 of this chapter, a co-owned commercial FM 
translator will only be authorized within the protected contour of the 
class of station being rebroadcast, as predicted on the basis of the 
maximum powers and heights set forth in that section for the applicable 
class of FM broadcast station concerned. An FM translator station in 
operation prior to March 1, 1991, which is owned by a commercial FM 
(primary) station and whose coverage contour extends beyond the 
protected contour of the primary station, may continue to be owned by 
such primary station until March 1, 1994. Thereafter, any such FM 
translator station must be owned by independent parties. An FM 
translator station in operation prior to June 1, 1991, which is owned 
by a commercial FM radio broadcast station and whose coverage contour 
extends beyond the protected contour of the primary station, may 
continue to be owned by a commercial FM radio broadcast station until 
June 1, 1994. Thereafter, any such FM translator station must be owned 
by independent parties. An FM translator providing service to an AM 
fill-in area will be authorized only to the permittee or licensee of 
the AM radio broadcast station being rebroadcast, or, in the case of an 
FM translator authorized to operate on an unreserved channel, to a 
party with a valid rebroadcast consent agreement with such a permittee 
or licensee to rebroadcast that station as the translator's primary 
station. In addition, any FM translator providing service to an AM 
fill-in area must have been authorized by a license or construction 
permit in effect as of May 1, 2009, or pursuant to an application that 
was pending as of May 1, 2009. A subsequent modification of any such FM 
translator will not affect its eligibility to rebroadcast an AM signal.
* * * * *
[FR Doc. 2012-8404 Filed 4-6-12; 8:45 am]
BILLING CODE 6712-01-P