Implementation of the Local Community Radio Act of 2010; Revision of Service and Eligibility Rules for Low Power FM Stations, 73545-73554 [2012-29877]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 77, Number 238 (Tuesday, December 11, 2012)]
[Rules and Regulations]
[Pages 73545-73554]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29877]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 73

[MM Docket No. 99-25; FCC 12-144]


Implementation of the Local Community Radio Act of 2010; Revision 
of Service and Eligibility Rules for Low Power FM Stations

AGENCY: Federal Communications Commission.

ACTION: Denial and/or dismissal of petitions for reconsideration.

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SUMMARY: In this document, the Commission acts on six petitions for 
reconsideration of the Fourth Report

[[Page 73546]]

and Order, challenging the per-market and/or the national caps adopted 
in the Fourth Report and Order in this proceeding. In response to the 
petitions for reconsideration, the Commission modifies the national cap 
to allow each applicant to pursue up to 70 applications, so long as no 
more than 50 of them are in the spectrum-limited radio markets 
identified in the Fourth Report and Order; increases the per-market cap 
for spectrum-limited markets to allow up to three applications per 
applicant for each market, subject to certain conditions; and clarifies 
the application of the per-market cap in ``embedded'' markets.

DATES: Effective January 10, 2013.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fifth 
Order on Reconsideration in MM Docket No. 99-25, FCC 12-144, adopted 
November 30, 2012, and released December 4, 2012. The full text of this 
document is available for inspection and copying during regular 
business hours in the FCC Reference Center, 445 Twelfth 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 Twelfth 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 Analysis. This Order on Reconsideration 
does not adopt any new or revised information collection requirements 
subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13 
(44 U.S.C. 3501-3520). In addition, therefore, it does not contain any 
new or modified ``information collection burden for small business 
concerns with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
    Report to Congress. The Commission will send a copy of this Order 
on Reconsideration to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Summary of Fifth Order on Reconsideration

I. Introduction

    1. In this Fifth Order on Reconsideration and Sixth Report and 
Order, we take various actions to implement the Local Community Radio 
Act of 2010 (``LCRA''), safeguard the integrity of our FM translator 
licensing procedures and modify licensing and service rules for the low 
power FM (``LPFM'') service. In the Fifth Order on Reconsideration we 
affirm with slight modifications and clarifications the comprehensive 
plan for licensing FM translators and LPFM stations adopted in the 
Fourth Report and Order (Fourth R&O). In response to petitions for 
reconsideration, we modify the national cap to allow each applicant to 
pursue up to 70 applications, so long as no more than 50 of them are in 
the Appendix A markets. We also increase the per-market cap for radio 
markets identified in Appendix A of the Fourth R&O to allow up to three 
applications for each market, subject to certain conditions. We also 
clarify the application of the per-market cap in those Appendix A 
markets with ``embedded'' markets. In the Sixth Report and Order we 
complete the implementation of the LCRA and make a number of additional 
changes to promote the localism and diversity goals of the LPFM service 
and a more sustainable community radio service. When effective, these 
orders will permit the Commission to move forward with the long-delayed 
processing of over 6,000 FM translator applications and establish a 
timeline for the opening of an LPFM window.

II. Fifth Order on Reconsideration

A. Background

    2. On July 12, 2011, the Commission released a Third Further Notice 
of Proposed Rule Making (Third FNPRM) in this proceeding, seeking 
comment on the impact of the LCRA on the procedures previously adopted 
to process the approximately 6,000 applications that remain pending 
from the 2003 FM non-reserved band translator window. There, the 
Commission tentatively concluded that those licensing procedures, which 
would limit each applicant to ten pending applications, would be 
inconsistent with the LCRA's goals. We 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 LPFM 
licensing opportunities. At the same time, we tentatively concluded 
that these new procedures would not be sufficient to address the 
potential for licensing abuses with respect to the thousands of pending 
translator applications. Accordingly, we asked for comments on 
appropriate processing policies for those applications, including a 
potential national cap of 50-75 applications and a potential cap of one 
or a few applications in any particular market.
    3. The Commission released the Fourth R&O on March 19, 2012. The 
Commission affirmed its decision to reject the prior national cap of 10 
translator applications per applicant. It adopted a modified market-
specific translator licensing scheme which incorporated a number of 
commenter proposals. To minimize the potential for speculative 
licensing conduct, the Commission established a national cap of 50 
applications and a local cap of one application per applicant per 
market for the 156 Arbitron Metro markets identified in Appendix A of 
the Fourth R&O.
1. Rationale for the Translator Application Caps
    4. When the Commission opened the March 2003 filing window for 
Auction 83 FM translator applications, there were 3,818 licensed FM 
translators. 13,377 translator applications were filed in that window--
approximately three times as many applications as the number of FM 
translators licensed since 1970. From that group, 3,476 new 
authorizations were issued before the Commission's freeze on further 
processing of applications from that window took effect. Of those 3,476 
authorizations, 926 (more than 25 percent) were never constructed and 
1,358 (almost 40 percent) were assigned to a party other than the 
applicant. Although 97 percent of all filers filed fewer than 50 
applications, the remaining three percent accounted for a total of 
8,163 applications, representing 61 percent of the total. The two 
largest filers, commonly-owned Radio Assist Ministries, Inc. and 
Edgewater Broadcasting, Inc. (collectively, ``RAM''), filed 4,219 
applications and received 1,046 grants before the processing freeze 
took effect. When we adopted the cap of ten applications in 2007, we 
noted that RAM had sought to assign more than 50 percent of the 
construction permits it had received and consummated more than 400 
assignments of such permits. We based the cap of ten applications on 
the need to preserve spectrum for future LPFM availability and the need 
to protect the

[[Page 73547]]

integrity of our translator licensing process.
    5. In the Third FNPRM, when we proposed to replace the cap of ten 
translator applications with a market-specific processing system, we 
tentatively concluded that such a processing system would not be 
sufficient to address the potential abuses in translator licensing and 
trafficking. We noted that the vast majority of applicants hold only a 
few applications, but the top 20 applicants collectively account for 
more than half of the pending applications. Similar imbalances exist in 
particular markets and regions. For instance, one applicant holds 24 of 
the 24 translator applications proposing operation within 20 kilometers 
of Houston's reference coordinates and 73 applications in Texas. Two 
applicants hold 66 of the 74 applications proposing service to the New 
York City radio market.
    6. We also described a number of factors that create an environment 
which promotes the acquisition of translator authorizations solely for 
the purpose of selling them. First, we expect that a substantial 
portion of the remaining translator grants will be made pursuant to our 
settlement (i.e., non-auction) procedures. Second, translator 
construction permits may be sold without any limitation on price. 
Third, permittees are not required to construct or operate newly 
authorized facilities before they can sell their authorizations. 
Collectively, these factors created an incentive for speculative 
filings and trafficking in translator authorizations. Such behavior 
damages the integrity of our licensing process, which assigns valuable 
spectrum rights to parties based on a system that gives priority to 
applications filed in one filing window over subsequent applications 
based on the assumption that the applications filed in the earlier 
window are filed in good faith by applicants that intend to construct 
and operate their proposed stations to serve the public. The history of 
the Auction 83 translator applications strongly supports our view that 
speculative applications delay the processing of bona fide 
applications, thereby impeding efforts to bring new service to the 
public. These speculative translator applications have also delayed the 
introduction of new LPFM service pursuant to our mandate under the LCRA 
to provide licensing opportunities for both LPFM and translator 
stations.
    7. The extraordinarily high number of applications filed in the 
Auction 83 window, particularly by certain applicants (both nationally 
and in certain markets), and the significant number of authorized 
stations that were either assigned to another party or never 
constructed are strong indicia of applications filed for speculative 
purposes (either for potential sale or to game the auction system) 
rather than a good faith intent to construct and operate the proposed 
stations. Based on these concerns, we sought comment on whether a 
national cap of 50 or 75 applications would force filers with a large 
number of applications to concentrate on those proposals and markets 
where they have bona fide service plans. We also asked whether 
applicants should be limited to one or a few applications in a 
particular market, noting that such a restriction ``could limit 
substantially the opportunity to warehouse and traffic in translator 
authorizations while promoting diversity goals.''
    8. The Fourth R&O concluded that both a national cap and a per-
market cap for the 156 Appendix A markets were appropriate to limit 
speculative licensing conduct and necessary to bolster the integrity of 
the remaining Auction 83 licensing. We stated that non-feeable 
application procedures, flexible auction rules, and flexible translator 
settlement and transfer/assignment rules ``clearly have facilitated and 
encouraged the filing of speculative proposals * * *. While we 
recognize that high-volume filers did not violate our rules 
(``Rules''), these types of speculative filings are fundamentally at 
odds with the core Commission broadcast licensing policies and contrary 
to the public interest.''
    9. The Fourth R&O rejected other potential anti-trafficking 
proposals offered by commenters, stating that application caps were the 
most administratively feasible solution for processing this large group 
of long-pending applications. We stated that we considered caps to be 
the only approach that would not only limit trafficking in translator 
authorizations but also fulfill our mandate under the LCRA to provide 
the fastest path to additional translator and LPFM licensing in areas 
where the need for additional service is greatest.
    10. We adopted a national cap of 50 additional translators per 
applicant. We found that this cap, of itself, would affect no more than 
20 of the approximately 646 total applicants in this group, and that 
this was a reasonable number of stations to construct and operate as 
proposed and would place restraints on trafficking of permits on the 
open market. We also noted that there was some agreement on such a 
limit even among translator advocates.
    11. We also adopted a per-market cap of one application per market 
in the radio markets listed in Appendix A to the Fourth R&O, consisting 
of the top 150 Arbitron Metro markets (per the BIA Fall 2011 database, 
as defined in Appendix A) plus six additional markets where more than 
four translator applications are pending. We noted that some applicants 
had filed dozens of applications for a particular market, when it was 
inconceivable that a single entity would construct and operate so many 
stations there. We concluded that such applications were clearly filed 
for speculative reasons or to skew our auction procedures. Given the 
volume of pending applications, we found that it was administratively 
infeasible to conduct a case-by-case assessment of these applications 
to determine whether they could satisfy our rule limiting the grant of 
additional translator authorizations to a party that can make a 
``showing of technical need for such additional stations'' (the 
``Technical Need Rule''). Accordingly, we adopted a cap of one 
translator application per market in the Arbitron Metro markets listed 
in Appendix A to the Fourth R&O. For applications outside those 
markets, where only a small number of applications will require 
analysis, we decided to apply the Technical Need Rule on a case-by-case 
basis.
    12. Appendix A to the Fourth R&O lists several ``embedded'' radio 
markets that are part of a larger market also listed in Appendix A: (1) 
Nassau-Suffolk (Long Island), NY (Arbitron Metro market 18, 
embedded in the New York Arbitron Metro market); (2) Hudson Valley, NY 
(Arbitron Metro market 39, partially embedded in the New York 
Arbitron Metro market); (3) Middlesex-Somerset-Union, NJ (Arbitron 
Metro market 41, embedded in the New York Arbitron Metro 
market); (4) Monmouth-Ocean, NJ (Arbitron Metro market 53, 
partially embedded in the New York Arbitron Metro market); (5) 
Morristown, NJ (Arbitron Metro market 117, embedded in the New 
York Arbitron Metro market); (6) Stamford-Norwalk, CT (Arbitron Metro 
market 148, embedded in the New York Arbitron Metro market); 
(7) San Jose, CA (Arbitron Metro market 37, embedded in the 
San Francisco Arbitron Metro market); (8) Santa Rosa, CA (Arbitron 
Metro market 121, embedded in the San Francisco Arbitron Metro 
market); and (9) Fredericksburg, VA (Arbitron Metro market 
147, partially embedded in the Washington, DC Arbitron Metro 
market). The Fourth R&O stated that the one-per-market cap would apply 
to all

[[Page 73548]]

markets listed in Appendix A but did not explain how this cap would 
apply to the listed embedded markets.
    13. In addition to those embedded markets, there are three more 
embedded markets that are not listed in Appendix A due to their smaller 
size: (1) New Bedford-Fall River, MA (Arbitron Metro market 
180, embedded in the Providence-Warwick-Pawtucket, RI Arbitron 
Metro market); (2) Frederick, MD (Arbitron Metro market 195, 
embedded in the Washington, DC Arbitron Metro market); and (3) 
Manchester, NH (Arbitron Metro market 196, partially embedded 
in the Portsmouth-Dover-Rochester, NH Arbitron Metro market). The 
Fourth R&O did not explain whether applications filed in those embedded 
markets would be subject to the per-market cap imposed on the larger 
markets within which they are embedded.
2. Petitions for Reconsideration
    14. Five petitions for reconsideration were filed following Federal 
Register publication of the Fourth R&O. Educational Media Foundation 
(``EMF'') filed a Petition for Reconsideration (``EMF Petition'') 
seeking reconsideration as to both the national cap of 50 applications 
and the per-market cap of one application. The remaining petitions only 
addressed the latter cap.
    15. EMF currently has 292 pending translator applications from the 
Auction 83 window. EMF received 259 translator grants from that window 
before we froze the processing of such applications.
    16. EMF first contends that the Commission must clarify the 
definition of the term ``radio market'' as used in the Fourth R&O. EMF 
argues that the term could mean census-designated urban areas, 
metropolitan statistical areas, Arbitron Metro markets, or some 
definition connected to the ``grids'' used in determining whether 
markets are ``spectrum limited'' or not. Additionally, EMF argues that 
both the national cap and the per-market cap are arbitrary and 
capricious. EMF argues that the Commission did not adequately explain 
the ``abusive'' licensing activity relating to Auction 83 filings and 
did not adequately explain why other ``more direct'' measures to combat 
speculation are not being used. EMF also argues that the Commission did 
not adequately explain how the caps square with the Commission's own 
conclusion that the LCRA requires it to make available licensing 
opportunities for both translators and LPFM stations ``in as many local 
communities as possible.''
    17. Hope Christian Church of Marlton, Inc. (``Hope''), Bridgelight, 
LLC (``Bridgelight'') and Calvary Chapel of the Finger Lakes, Inc. 
(``CCFL'') (collectively, the ``Joint Petitioners'') filed a joint 
Petition for Partial Reconsideration (``Joint Petition'') seeking 
reconsideration to revise the one-per-market cap to include a waiver 
process. Hope is the licensee of WVBV(FM), Medford Lakes, NJ 
(Philadelphia, PA Arbitron Metro market); WWFP(FM), Brigantine, NJ 
(Atlantic City-Cape May, NJ Arbitron Metro market); and WZBL(FM), 
Barnegat Light, NJ (Monmouth-Ocean, NJ embedded market). Hope has 46 
pending translator applications from the Auction 83 window, of which 45 
are in Appendix A markets and one is outside the Appendix A markets. 
Hope received 21 translator grants before the processing freeze, 
primarily in the Philadelphia and Baltimore Arbitron Metro markets. 
Hope constructed all of those proposed stations. Bridgelight is the 
licensee of WRDR(FM), Freehold Township, NJ (Monmouth-Ocean, NJ 
embedded market); and WJUX(FM), Monticello, NY (outside the Appendix A 
markets). Bridgelight has 16 pending applications from the Auction 83 
window. Bridgelight received five translator grants before the 
processing freeze (primarily in the New York Arbitron Metro market), 
but assigned all of them to other parties. CCFL is the licensee of 
WZXV(FM), Palmyra, NY (Rochester, NY Arbitron Metro market). CCFL has 
16 pending translator applications from the Auction 83 window, of which 
eight are in Appendix A markets (five in the Buffalo, NY Arbitron Metro 
market and three in the Rochester, NY Arbitron Metro market). CCFL 
received 14 translator grants before the processing freeze (primarily 
in the Buffalo and Rochester Arbitron Metro markets), but assigned five 
of those to other parties and cancelled another one.
    18. The Joint Petition maintains that the one-per-market cap 
unfairly harms local and regional applicants that have filed 
applications in a limited number of markets for the purpose of reaching 
distant communities in geographically large markets. The Joint Petition 
argues that the one-per-market cap should be supplemented with a waiver 
process that allows for waivers (with no limit on the number of 
authorizations in a market) under three conditions: (1) The 60 dBu 
contour of the translator application cannot overlap the 60 dBu contour 
of any commonly-controlled application; (2) the application would not 
preclude a future LPFM application in the grid for the Appendix A 
market or at the proposed transmitter site; and (3) the applicant 
agrees to accept a condition on the construction permit that disallows 
sale of the authorization for a period of four years after the station 
commences operation.
    19. Conner Media, Inc. (together with the commonly-controlled 
Conner Media Corporation, ``Conner'') filed a Petition for Partial 
Reconsideration (``Conner Petition'') of the Fourth R&O. Conner is the 
licensee of WAVQ(AM), Jacksonville, NC (Greenville-New Bern-
Jacksonville, NC Arbitron Metro market). Conner states that it filed 
translator applications in five different locations to serve the 
Greenville-New Bern-Jacksonville, NC Arbitron Metro market, which 
comprises ten diverse counties. Conner expresses interest in assigning 
additional permits from its pending applications to other AM 
broadcasters who would benefit from the nighttime service available on 
a translator. Conner argues that any local translator cap should be 
per-community, not per-market.
    20. Western North Carolina Public Radio, Inc. (``WNC'') is the 
licensee of noncommercial educational (``NCE'') stations WCQS(FM), 
Asheville, NC; WFSQ(FM), Franklin, NC; and WYQS(FM), Mars Hill, NC (all 
in the Asheville, NC Arbitron Metro market). WNC filed a Petition for 
Reconsideration (``WNC Petition'') arguing that its Arbitron Metro 
market, Asheville, NC, should not be included in Appendix A or, 
alternatively, that the community of Black Mountain, NC, should not be 
considered part of that market because it is separated by a mountain 
range from Asheville and therefore requires its own translator service. 
WNC notes that Asheville is the 159th Arbitron Metro market, but was 
included in Appendix A because more than four translator applications 
are pending in that market.
    21. Kyle Magrill (``Magrill'') filed a Petition for Reconsideration 
(``Magrill Petition''). Magrill is a translator applicant under the 
corporate name of CircuitWerkes, Inc. and the d/b/a name of 
CircuitWerkes. Magrill has seven pending translator applications from 
the Auction 83 window in four Appendix A markets in Florida. Magrill 
received three translator grants before the processing freeze took 
effect. Magrill argues that the Commission did not propose per-market 
caps in the Third FNPRM, but instead called for processing all 
translator applications in non-spectrum limited markets. Magrill argues 
that the number of translator sales has not been so high as to present 
a problem. Magrill notes that many

[[Page 73549]]

markets are geographically and ethnically diverse and also notes that 
HD channels have increased the need for multiple translators in certain 
locations. Magrill argues that the per-market cap particularly hurts 
local service providers who did not exceed the national cap. Magrill 
argues that the cap should be revisited and at least eased in markets 
that are not spectrum limited.
3. Responsive Pleadings
    22. Prometheus Radio Project (``Prometheus'') filed an Opposition 
(``Prometheus Opposition'') to the petitions for reconsideration. 
Prometheus argues that the Commission properly defined the ``market'' 
for the one-per-market translator caps as the Arbitron Metro market. 
Prometheus rejects Magrill's claim about lack of notice, noting that 
the Commission specifically asked for comments on whether translator 
applicants should be limited to one or a few applications in any 
particular market and that this material was published in the Federal 
Register. Prometheus then argues that the caps will prevent speculation 
and preserve radio market diversity. Prometheus opposes any waiver 
process that would delay the LPFM application window.
    23. REC Networks (``REC'') partially opposes the petitions for 
reconsideration. REC supports the national cap of 50 applications, but 
believes the per-market cap may be overly restrictive. REC argues for 
adoption of a waiver standard that is more stringent than the one 
proposed in the Joint Petition. REC suggests the following additional 
criteria: (1) The applicant must accept a condition on its construction 
permit that for a four-year period after commencing operations, the 
translator must be commonly owned with the primary station and must 
rebroadcast the primary analog output of that station; (2) the 60 dBu 
contour of the translator application must not overlap (i) a 30 
kilometer radius around the center of markets 1-20, (ii) a 20 kilometer 
radius around the center of spectrum limited markets 21-50, or (iii) a 
10 kilometer radius around the center of spectrum limited markets 51-
100; and (3) applications grantable under this waiver must also comply 
with the national cap of 50 applications.
    24. In reply comments, Conner, the Joint Petitioners and Magrill 
reiterate their prior positions. Four Rivers Community Broadcasting 
Corporation filed a reply arguing for a waiver standard similar to the 
standard suggested by the Joint Petition. One Ministries, Inc. and Life 
On The Way Communications, Inc. filed reply comments arguing for 
separation of embedded markets from the core market, particularly in 
the case of San Francisco, San Jose and Santa Rosa.

B. Discussion

    25. For the reasons explained below, we will grant the petitions 
for reconsideration in part and clarify the treatment of translator 
applications in embedded markets. We will modify the national cap to 
allow each applicant to pursue up to 70 applications, provided that no 
more than 50 of them are in the Appendix A markets. We will also modify 
the per-market cap from one translator application per market to three, 
subject to two conditions: (1) To avoid dismissal under the cap 
procedures, the 60 dBu contour of a translator application may not 
overlap the 60 dBu contour of another translator application filed by 
that party or translator authorization held by that party as of the 
release date of this decision; and (2) the translator application may 
not preclude grant of a future LPFM application in the grid for that 
market or at the proposed out of grid transmitter site, in accordance 
with the processing policy delineated in the Fourth R&O. In all other 
respects, we deny the petitions.
1. Market Definitions
    26. The Fourth R&O adopted ``both a national cap and a market-based 
cap for the markets identified in Appendix A.'' Appendix A contained a 
spreadsheet with eight top-level columns. Appendix A also contained a 
paragraph entitled ``Detailed Column Information'' for which the 
following information appeared in bold for the spreadsheet's first 
three top-level columns:

Arb/Rank--Arbitron Market Ranking

CF/Rank--Common Frequency Arbitron Market Ranking

Fall 2011 Arbitron Rankings--Arbitron Market Name

    27. Appendix A made it clear that we were referring to Arbitron 
Metro markets rather than non-Arbitron data such as census data. 
Although we did not describe the markets as Arbitron Metro markets, the 
only alternative type of Arbitron radio market is an Arbitron Total 
Survey Area. Appendix A could not be interpreted to mean Arbitron Total 
Survey Area, however, because there is no Arbitron Total Survey Area 
for many of the markets listed in Appendix A, particularly the largest 
radio markets. Accordingly, contrary to EMF's claim, we do not believe 
there could reasonably have been any confusion over the fact that 
Appendix A refers to Arbitron Metro markets. In any event, we clarify 
here that the markets listed in Appendix A are Arbitron Metro markets.
    28. EMF also argues that the Fourth R&O did not spell out how an 
application would be deemed to be within an Appendix A market. We 
disagree. Both the Third FNPRM and the Fourth R&O consistently referred 
to the proposed transmitter site as the determining factor for whether 
an application would be considered to be within a particular market. In 
fact, the Third FNPRM adopted a processing freeze on ``any translator 
modification application that proposes a transmitter site for the first 
time within any [spectrum-limited] market,'' while allowing any 
translator modification application ``which proposes to move its 
transmitter site from one location to another within the same spectrum-
limited market.'' Our detailed market-specific translator processing 
policy adopted in the Fourth R&O specifically refers to the proposed 
transmitter site as the determining factor, and the translator cap 
discussion in the Fourth R&O likewise refers to proposed transmitter 
locations. In any event, we clarify here that a translator application 
is considered within an Arbitron Metro market for purposes of the per-
market translator caps if it specifies a transmitter site within that 
Arbitron Metro market.
    29. On the other hand, we agree that we should clarify the 
treatment of ``embedded'' markets. An embedded market is a unique 
marketing area for the buying and selling of radio air time. It is 
contained, either in whole or in part, within the boundaries of a 
larger ``parent'' market. Most, but not all, embedded markets are among 
the 156 radio markets listed in Appendix A.
    30. Our intent was, and is, to treat each embedded market listed in 
Appendix A as a separate radio market for purposes of the per-market 
cap. For example, the San Francisco market (Arbitron Metro market 
4) includes the San Jose (Arbitron Metro market 37) 
and Santa Rosa (Arbitron Metro market 122) embedded markets. 
Accordingly, the per-market cap would apply to each of three markets: 
(1) The core San Francisco market (consisting of Alameda, Contra Costa, 
Marin, Napa, San Francisco, San Mateo and Solano Counties); (2) the San 
Jose market (consisting of Santa Clara County); and (3) the Santa Rosa 
market (consisting of Sonoma County). Thus, an application for a 
translator in San Jose would not count against the per-market cap for 
that applicant in either the core San

[[Page 73550]]

Francisco market or the Santa Rosa market. Accordingly, subject to the 
processing rules described below, an applicant could prosecute three 
applications in each of those three markets. In contrast, the 
Washington, DC market (Arbitron Metro market 8) includes one 
county from the Fredericksburg, VA market (Arbitron Metro market 
147, with Stafford County being the embedded portion of that 
market) and all of the Frederick, MD market (Arbitron Metro market 
197). In that situation, an application proposing a site in 
Stafford County would be treated as an application in the 
Fredericksburg, VA Arbitron Metro market rather than an application in 
the Washington, DC Arbitron Metro Market. The per-market cap (as 
revised below) will apply to all applications proposing a site in the 
Fredericksburg, VA Arbitron Metro market, because that market is listed 
in Appendix A. On the other hand, an application proposing a site in 
Frederick County, MD would be treated as an application in the 
Frederick, MD Arbitron Metro market rather than the Washington, DC 
Arbitron Metro market. Because the Frederick, MD Arbitron Metro market 
is not listed in Appendix A, the per-market cap does not apply to any 
application proposing a site there. With the exclusion of Stafford 
County, VA and Frederick County, MD from the Washington, DC market for 
the purposes of the per-market cap, the cap for the Washington, DC 
market would apply only to applications proposing operation from a site 
in the core of that market, which is any part of the market other than 
those two counties.
2. Notice of Appendix A Per-Market Cap Proposal
    31. We next address Magrill's claim that we violated the 
Administrative Procedure Act's notice and comment requirements by 
failing to give notice that the per-cap limit would apply to all 
Appendix A markets rather than just ``spectrum limited'' Appendix A 
markets. Magrill's comments focus on the Commission's market-specific 
translator dismissal process, with its distinction between ``spectrum 
limited'' markets and ``spectrum available'' markets, as delineated in 
Section III.B of the Third FNPRM. However, in Section III.C of the 
Third FNPRM, we then stated our tentative conclusion that this 
translator dismissal process would not be sufficient to address the 
problem of speculation among Auction 83 filers. We tentatively 
concluded that nothing in the LCRA limits the Commission from 
addressing such speculation through processing policies separate from 
the dismissal process discussed in Section III.B of the Third FNPRM. 
Based on those tentative conclusions, we asked for comments on 
processing policies to address the potential for speculative abuses 
among the remaining translator applications:

    For example, we seek comment on whether to establish an 
application cap for the applications that would remain pending in 
non-spectrum limited markets and unrated markets. Would a cap of 50 
or 75 applications in a window force high filers to concentrate on 
those proposals and markets where they have bona fide service 
aspirations? In addition or alternatively, should applicants be 
limited to one or a few applications in any particular market?

    32. Clearly, the point of Section III.C. of the Third FNPRM was to 
seek comments on potential national caps and per-market caps as a 
processing policy separate from the market-based translator dismissal 
policy discussed in Section III.B. We specifically noted that this 
processing policy could apply to applications in ``non-spectrum-
limited'' markets and unrated markets. We received substantial comments 
on the proposals for a national cap and per-market caps. In fact, 
Magrill himself commented on the issue by proposing an alternative 
system that would limit applications in both ``spectrum available'' 
markets and ``spectrum limited'' markets based on the total number of 
applications filed nationally by a particular applicant. Accordingly, 
we reject Magrill's claim that we failed to give adequate notice that 
per-market caps might apply in ``spectrum available'' markets.
    33. Similarly, the Joint Petition claims that a one-per-market cap 
on translator applications ``had never previously been proposed prior 
to the Fourth R&O.'' The language quoted above from the Third FNPRM 
shows that this claim is unfounded. Accordingly, we reject this claim 
by the Joint Petitioners.
3. The National Cap of 50 Applications
    34. EMF is the only party to challenge the national cap of 50 
applications. As we noted above, EMF received 259 translator grants 
from its Auction 83 applications before our processing freeze took 
effect. Approximately 20 percent of those grants were never constructed 
and therefore were cancelled. Altogether, 72 out of EMF's 259 grants 
(almost 30 percent of those authorizations) were sold, were not built 
and therefore were cancelled, or were otherwise terminated.
    35. EMF focuses its challenge to the national cap of 50 translator 
applications on two claims. First, EMF claims that the cap is based on 
an erroneous assumption that translator applicants with higher numbers 
of pending applications do not intend to construct all of those 
proposed stations. Second, EMF points out that the Commission chose a 
cap of 50 as the most ``administratively feasible solution for 
processing this large group of long-pending applications'' instead of 
``more direct means'' of curbing speculation, such as limits on sales 
of new translator construction permits or the prices at which they can 
be sold.
    36. EMF's first objection mischaracterizes our decision on the 
national cap by treating it as an unverified assumption about the 
number of stations that applicants could build or wish to build. We 
acknowledge that we cannot divine an applicant's intentions based on 
simple statistics, but that is not what we attempted to do. Rather, we 
developed a processing policy that would reasonably balance competing 
goals. The cap of 50 does not assume that an applicant could only 
intend to construct, or be able to construct, 50 new translator 
stations, but it will require applicants to prioritize their filings 
and focus on applications in those locations where they have a bona 
fide interest in providing service and on applications that are most 
likely to be grantable, while deferring their pursuit of other 
opportunities until a future filing window. In this regard, we 
reiterate that our conclusion here about speculative filings by high-
volume applicants is supported by the data showing that an unusually 
large number of the translator grants from this filing window were not 
constructed or were assigned to a party other than the applicant. We 
believe applicants subject to the cap are likely to choose applications 
that (1) they expect to be granted, (2) they plan to construct and 
operate, and (3) will fill an unmet need, thereby improving competition 
and diversity. EMF has not shown that this expectation is unreasonable.
    37. EMF's second argument overlooks many relevant considerations. 
First, EMF fails to note that most of the applicants subject to the cap 
received many grants before the processing freeze took effect. EMF 
itself received 259 grants, so for EMF the cap translates into 259 
granted applications, plus as many additional applications that EMF 
selects that result in grants.
    38. Second, as the Commission previously noted, future translator 
windows will provide additional new station licensing opportunities. 
With our flexible translator licensing standards, we expressed 
confidence that ``comparable licensing opportunities

[[Page 73551]]

will remain available in a future translator filing window'' with 
respect to applications dismissed pursuant to the application caps and 
our market-based processing policy.
    39. Third, EMF overlooks our explicit balancing of ``the competing 
goals of deterring speculation and expanding translator service to new 
communities.'' In doing so, we selected the number of 50 applications 
to affect no more than 20 applicants, representing only three percent 
of the pool of Auction 83 applicants but approximately half of the 
pending applications. Thus, a national cap of 50 applications would 
allow 97 percent of applicants to prosecute all of their pending 
applications, and it will allow approximately 50 percent of all pending 
applications to be processed, while curbing the excessive number of 
applications filed by 3 percent of the filers.
    40. With respect to the choice of an application cap over other 
options such as anti-trafficking rules, EMF claims erroneously that our 
objective was to limit the number of applications we had to process. We 
chose an application cap ``both [to] deter trafficking and provide the 
fastest path to additional translator and LPFM licensing in areas where 
the need for additional service is greatest.'' This approach benefits 
both translator and LPFM applicants and the public they seek to serve. 
An application cap provides an immediate solution to the trafficking 
issue and also ameliorates the impact of translator applications on 
LPFM service while avoiding the lead time necessary to develop and 
adopt new anti-trafficking rules or the resources needed to enforce 
such rules. This is why we described application caps as ``the most 
administratively feasible solution for processing this large group of 
long-pending applications.'' Advocates of anti-trafficking rules, such 
as EMF, have not shown that this conclusion is flawed.
    41. We will, however, grant reconsideration with respect to the 
national cap of 50 applications in order to better ensure equitable 
distribution of radio service between urban and rural areas. We 
recognize that parties restricted to 50 applications will tend to 
choose applications in urban areas, because those applications offer 
potential service to the greatest number of people. We believe a modest 
relaxation of this restriction can provide additional service to rural 
areas without sacrificing the integrity of our licensing process or 
opportunities for new LPFM service. Accordingly, we will allow 
applicants to prosecute up to 70 applications nationally, provided that 
no more than 50 of those are in Appendix A markets. All selected 
applications outside the Appendix A markets must meet certain 
conditions. Specifically, the applications outside the Appendix A 
markets must (1) comply with the restriction against overlap with the 
applicant's other pending translator applications and authorizations 
set forth in paragraph 58 below with respect to the per-market cap, and 
(2) protect at least one channel for LPFM filing opportunities at the 
proposed transmitter site for each short form application specifying 
such site, as shown in the type of ``out of grid'' preclusion study 
described in paragraph 59 below with respect to the per-market cap. In 
addition, to ensure that these authorizations will not be relocated to 
Appendix A markets, we will impose a condition restricting their 
relocation. Specifically, during the first four years of operation, 
none of these authorizations can be moved to a site from which 
(calculated in accordance with Section 74.1204(b) of our Rules) there 
is no 60 dBu contour overlap with the 60 dBu contour proposed in the 
application as of the release date of this Fifth Order on 
Reconsideration. Our decision to establish a national cap is an 
exercise in line-drawing that is committed to agency discretion. Our 
choice of a limit of 70 applications nationally, with no more than 50 
applications in the Appendix A markets, reasonably balances competing 
goals based on a careful evaluation of the record.
4. The Need for a Per-Market Cap
    42. EMF characterizes the per-market cap as arbitrary and 
capricious. However, the record here clearly demonstrates that 
speculative translator filing activity was not only a national problem 
but also a local market problem. In the Third FNPRM, we described 
exactly this situation, noting that one applicant held 25 of the 27 
translator applications proposing locations within 20 kilometers of 
Houston's center city coordinates and 75 applications in Texas. We also 
noted that two applicants held 66 of the 74 applications proposing 
service to the New York City Arbitron Metro market. EMF has not shown 
that our analysis as to speculative filings activity within Appendix A 
markets is incorrect.
    43. Non-top 150 Markets in Appendix A. Appendix A to the Fourth R&O 
includes six non-top 150 markets, including Asheville, NC, because they 
have more than four translator applications pending. Such a large 
number of applications for markets outside the top 150 markets suggests 
speculative filing activity. Although WNC claims that it filed multiple 
applications to serve ``various clusters of communities'' in the 
Asheville market, it has not explained how its proposed service would 
achieve that result with respect to Black Mountain, NC, which is the 
focus of the WNC Petition. All of WNC's applications there specify 
Black Mountain as the community of license and, with only one 
exception, propose the same transmitter site. In addition, WNC fails to 
show any error in the Commission's analysis of the need to apply the 
market cap to those markets listed in Appendix A that are outside of 
the top 150 markets, or any valid justification for departing from 
Arbitron Metro market definitions. Arbitron Metro market definitions 
are based on multiple demographic/geographic factors, including terrain 
issues. Accordingly, we deny WNC's request to exclude Asheville, NC 
from Appendix A or in the alternative exclude the community of Black 
Mountain from the Asheville market.
    44. Proposed Alternative. Conner argues that any local application 
cap on translators should be per-community, based on the number of 
service-restricted AM stations in any given community. Magrill 
similarly points out that there is increased demand for FM translators, 
both to rebroadcast AM stations and to rebroadcast HD radio streams. 
However, we have an obligation to address abusive application conduct, 
as described above, regardless of the supply/demand balance in the 
marketplace. In fact, trafficking in translator authorizations could 
only occur where there is demand, so the existence of such demand 
supports, rather than undercuts, our rationale for curbing speculation. 
With respect to Conner's suggested cap based on the proposed community 
of license rather than the Arbitron Metro market, this would be 
impractical from an administrative standpoint.
    45. The record in this proceeding strongly supports a limit on 
translator applications within each Arbitron Metro market identified in 
Appendix A to protect the integrity of our licensing process. We 
recognize that EMF proposes anti-trafficking restrictions as an 
alternative approach, but our rationale for rejecting those 
restrictions in favor of a national cap applies equally to the per-
market cap. Accordingly, we reject the claim that a per-market cap is 
arbitrary and capricious.

[[Page 73552]]

5. Revision of the Per-Market Cap
    46. Based on the information presented in the reconsideration 
petitions and responsive pleadings, we conclude that an adjustment of 
the per-market cap will improve competition and diversity in the 
Appendix A markets without sacrificing LPFM filing opportunities or the 
policy objectives behind the per-market cap. As discussed below, we are 
increasing the per-market cap for radio markets identified in Appendix 
A of the Fourth R&O to allow up to three applications for each market, 
subject to certain conditions.
    47. Although the petitioners do not challenge our conclusion that 
it is infeasible to apply the Technical Need Rule to the thousands of 
pending translator applications, they argue that one translator can 
only serve a small portion of most markets in Appendix A. The Joint 
Petition focuses on the Joint Petitioners' attempts to build regional 
networks of translators to rebroadcast the signals of their NCE 
stations. REC independently analyzed the applications of the Joint 
Petitioners and agrees that many of these applications propose 
operations very distant from the center of the Arbitron Metro market. 
REC agrees that, with appropriate limits, allowing such applications to 
be processed would improve diversity and competition in underserved 
areas, without impinging on LPFM filing opportunities.
    48. We believe the Joint Petition and the REC Partial Opposition 
raise a valid point as to whether the one-per-market cap is overly 
restrictive. The Joint Petition states that the Joint Petitioners are 
prosecuting their pending translator applications not to speculate in 
translator permits or to manipulate the auction process, but in hopes 
of increasing the reach of their NCE stations. Based on its analysis of 
Joint Petitioners' applications, REC agrees that the Joint Petition 
demonstrates that the one-per-market cap is overly restrictive.
    49. Prometheus urges that the one-per-market cap be retained as ``a 
crucial way to address the existing disparity'' between the number of 
authorized translators and the number of authorized LPFM stations. This 
argument appears to assume that any expansion in FM translator 
licensing will reduce opportunities for LPFM licensing. Clearly, that 
is not the case. With our market-based translator processing policy, as 
well as our national and per-market caps on translator applications, we 
have put strong limits in place to preserve LPFM filing opportunities. 
The expansion of the per-market cap will not reduce opportunities for 
LPFM licensing because, as we explain below, all translator applicants 
taking advantage of that change will need to protect LPFM filing 
opportunities when they do so. Our adjustment of the per-market cap in 
this order will not negatively affect LPFM licensing opportunities.
    50. The Joint Petition proposes a waiver process under which the 
one-per-market cap would remain in place, but waivers would be 
available for applications meeting certain criteria: (1) The 60 dBu 
contour of the translator station would not overlap the 60 dBu contour 
of any commonly controlled application; (2) the application will not 
preclude the approval of a future LPFM application in the grid or at 
the proposed facility's transmitter site; and (3) the applicant agrees 
to accept a condition on its construction permit that disallows the 
for-profit sale of the authorization for four years after the station 
begins operation. REC agrees with these conditions, but proposes 
additional requirements: (1) The translator station, for four years 
after beginning operation, must be co-owned with the primary station 
and rebroadcast that station's primary analog signal; (2) the 60 dBu 
contour of the translator must not overlap the central core of the 
market; and (3) additional applications being prosecuted under this 
waiver would remain subject to the national cap.
    51. We agree with certain elements of the Joint Petition and the 
REC Partial Opposition, but our revised per-market cap will vary in 
certain respects. First, we will not rely on an anti-trafficking 
condition. As we explained above, we believe such conditions are 
subject to circumvention, and monitoring compliance with an anti-
trafficking condition would be unduly resource-intensive and could 
delay processing.
    52. Second, we believe it is unnecessary to allow parties to 
prosecute a large number of translator applications within an Appendix 
A market, as would be possible under the waiver procedures advocated in 
the Joint Petition. As we have shown above, the Joint Petitioners and 
other applicants already have received a significant number of 
translator grants from the Auction 83 application process. Further, our 
clarification of embedded markets will help these parties prosecute 
more applications within embedded markets. As we have previously 
stated, we also expect that translator applicants will not be 
foreclosed from comparable application opportunities in the next 
translator filing window.
    53. Based on our analysis of pending applications, we believe that 
a limit of three applications per applicant in the Appendix A markets 
is appropriate, subject to the conditions described below. With those 
conditions, we believe this relaxation in the per-market cap will 
improve diversity and competition in under-served areas of the Appendix 
A markets without precluding LPFM filing opportunities or increasing 
significantly the potential for licensing abuses.
    54. The relaxed limit of three applications per market will only 
apply to an applicant that shows that its applications meet the 
conditions described in paragraphs 58-59. As we indicate below, we 
instruct the Media Bureau to issue a public notice asking any applicant 
that is subject to the national cap or the per-market cap to identify 
the applications they wish to prosecute consistent with the caps and to 
show that those applications comply with the caps. If a party has more 
than one application in an Appendix A market but fails to submit a 
showing pursuant to the public notice, or submits a deficient showing, 
we will not analyze their applications independently to assess whether 
they comply with the conditions that there be no 60 dBu overlap with 
that party's other applications or authorizations and that there be no 
preclusion of LPFM filing opportunities. Accordingly, in those 
situations we will process only the first filed application for that 
party in that market.
    55. In deciding on an adjustment to the per-market cap, we are 
balancing the competing interests of adding new service to underserved 
areas by translators versus preserving the integrity of our licensing 
process by dismissing applications filed for speculative reasons or to 
skew our auction procedures. The factors cited by the petitioners and 
REC, particularly the limited service area of a translator compared to 
the size of the Appendix A markets, weigh in favor of allowing more 
than one translator application in an Appendix A market, provided that 
each translator would serve a different part of the market than any of 
an applicant's existing translators or other pending translator 
applications. On the other hand, the abusive filing conduct described 
above, combined with the considerations set forth in paragraph 52, 
suggest that any relaxation be limited to a small number of 
applications per Appendix A market. In addition, the need to protect 
LPFM filing opportunities, for the reasons delineated in the Fourth 
R&O, supports a condition that none of the Appendix A translator

[[Page 73553]]

applications would preclude an LPFM filing opportunity. We conclude 
that a limited relaxation of the per-market cap, combined with 
conditions that will protect LPFM filing opportunities and prevent 
duplicative translator service areas, would promote competition and 
diversity in Appendix A markets by expanding translator service to 
underserved areas without threatening the integrity of our licensing 
process or precluding LPFM filing opportunities. Thus, we believe that 
the benefits of our action will outweigh any potential costs.
    56. In considering the change in the per-market cap, we analyzed 
applicants with 1-5 pending applications per market in all Arbitron-
rated markets. In doing so, we have not taken certain variables into 
account because it was not feasible to do so. Those variables are the 
impact of the national cap on the number of pending applications and 
the impact of the two conditions proposed in connection with an 
adjustment of the one-per-market cap. The cap of one would affect two-
thirds of those applicants, whereas a cap of three would affect less 
than one-third of those applicants, meaning that a substantial majority 
of applicants could prosecute all of their pending applications. Thus, 
relaxation of the cap from one to three applications per market could 
benefit a significant number of translator applicants who do not have 
an excessive number of applications pending in any market (i.e., more 
than five). However, as indicated above and in the Joint Petition and 
the REC Partial Opposition, any such relaxation should be subject to 
certain conditions to preserve LPFM filing opportunities and the 
integrity of our licensing process.
    57. With respect to the Joint Petitioners' proposal to prohibit 60 
dBu overlap between commonly-controlled applications, we generally 
agree that this is an appropriate condition. For the reasons shown 
above, we believe that multiple translator applications in a single 
area suggest an attempt to game the auction system or to obtain permits 
for the purpose of selling them. Such a restriction also would advance 
the goal of the Technical Need Rule to limit the licensing of multiple 
translators serving the same area to a single licensee. As we have 
explained, attempting a case-by-case analysis of the thousands of 
pending translator applications for compliance with that rule is not 
feasible.
    58. For these reasons, we adopt the following processing policies: 
The protected (60 dBu) contour (calculated in accordance with Section 
74.1204(b) of our Rules) of the proposed translator station may not 
overlap the protected (60 dBu) contour (also calculated in accordance 
with Section 74.1204(b) of our Rules) of any other translator 
application filed by that applicant or translator authorization held by 
that applicant, as of the date of the release of this Fifth Order on 
Reconsideration. Because our goal is to expedite the processing of 
applications, we will not accept an alternative contour prediction 
method study to establish lack of 60 dBu contour overlap. The concern 
we have about service duplication applies even more strongly when a 
party already has an existing translator station providing service to 
the same area proposed by that party in an application. Accordingly, we 
are expanding the proposed condition to include outstanding 
authorizations as well as applications. However, we will not extend 
this condition to limit applications based on parties' attributable 
interests or common control of applicant and licensee entities. The 
pending Auction 83 applications lack any information about parties to 
the applications, and so we lack sufficient information to make 
determinations about attributable interests in other applications or 
common control of applicant entities. Asking applicants to amend their 
applications to provide this information would delay our efforts to 
ensure expeditious processing of translator and LPFM applications, and 
resolving disputes over whether an application is commonly controlled 
with another application or authorization would further delay this 
effort. Accordingly, consistent with the approach taken in the Fourth 
R&O, we are limiting this condition to applications filed by and 
authorizations issued to the named applicant entity.
    59. We agree with the condition advocated by the Joint Petitioners 
and REC that the proposed translator station cannot preclude approval 
of a future LPFM application in the grid for that market, under the 
processing policy delineated in Section II.B of the Fourth R&O, or at 
the proposed out of grid transmitter site. To satisfy this condition, 
applicants must submit an LPFM preclusion study demonstrating that 
grant of the proposed translator station will not preclude approval of 
a future LPFM application. As we explained in the Fourth R&O, one of 
our broad principles for implementation of the LCRA is 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 the future. This 
condition is consistent with that broad principle.
    60. Under the procedure proposed in the Joint Petition and the REC 
Partial Opposition, compliance with the conditions described above 
would not be required for an applicant's first translator application 
in an Appendix A market, but instead would only be required as part of 
a showing for additional applications in that market. We believe, 
however, that it is appropriate to impose these conditions on all of 
the applications if a party chooses to prosecute more than one 
application in an Appendix A market so that translator applicants will 
have an incentive to provide more service to underserved areas of the 
Appendix A markets.
    61. If a party instead elects to prosecute only one application in 
an Appendix A market, then it need not make a showing that the 
application complies with the conditions described in paragraphs 58 and 
59 when the local cap compliance showings are submitted. (However, if a 
party prosecutes only one application and it proposes substantial 
overlap with an existing translator authorization held by that party, 
the Technical Need Rule and FCC Form 349 will require the party to show 
a technical need for the second translator when the Form 349 
application is due in order to justify a grant of that application.) We 
are providing this flexibility so that the revised policy is not more 
restrictive than the original one-per-market cap for any translator 
applicant. We note that none of the petitions for reconsideration or 
responsive pleadings argue that the one-per-market policy should be 
tightened through the imposition of conditions on a single application.
    62. REC also proposes that applications grantable under the relaxed 
per-market standard be subject to the national cap of 50 applications 
adopted in the Fourth R&O. We agree that the national cap should be 
uniform for all applicants. The relaxation of the per-market cap leaves 
undisturbed an applicant's obligation to comply with the national cap 
of 70 applications, with no more than 50 applications in Appendix A 
markets.
    63. With the cap of three-per-market in place, we find it 
unnecessary to adopt the additional waiver conditions suggested by REC. 
The principal conditions suggested by REC would not preserve LPFM 
filing opportunities or, in our opinion, curb speculation by translator 
applicants. We also believe they would constrain competition in

[[Page 73554]]

Appendix A markets without any countervailing public benefit.
    64. REC's first additional waiver requirement would not allow more 
than one translator application to be prosecuted within certain 
geographic zones around the center of the Appendix A markets. However, 
we have already adopted a rigorous processing standard for pending 
translator applications in Appendix A markets, and REC has not shown 
that this additional constraint is needed. We believe this restriction 
would limit competition in the Appendix A markets without providing a 
countervailing benefit. REC's proposal also could be circumvented by 
modifications to construction permits.
    65. REC's second additional waiver requirement would impose a 
condition on the construction permit that, for four years after 
beginning operation, the translator must be commonly-owned with the 
primary station and must rebroadcast that station's primary analog 
signal. REC claims that this condition is appropriate because 
translator permittees in some markets have entered into time brokerage 
deals with commercial broadcasters to air HD radio programming streams 
on NCE translator stations. We view REC's proposed condition as more of 
a programming preference than an effort to curb speculation. We also 
believe diversity and competition would be better served by giving 
translator applicants the flexibility to prosecute applications that 
meet the revised per-market application cap described above. We expect 
those parties to prosecute the applications that are most likely to be 
granted and most likely to provide a needed service without precluding 
a future LPFM filing opportunity. Moreover, as indicated above with 
respect to the Joint Petition's proposed anti-trafficking condition, 
enforcement of REC's proposed condition and processing waiver requests 
would be unduly resource-intensive and could delay the processing of 
applications.
    66. As we indicated in the Fourth R&O, the burden will be on each 
applicant to demonstrate compliance with the national and per-market 
application caps. Any party with (1) more than 70 applications pending 
nationally, (2) more than 50 applications pending in Appendix A 
markets, and/or (3) more than one pending application in any of the 
markets identified in Appendix A (subject to the clarification above as 
to embedded markets) will be required by a forthcoming public notice to 
identify and affirm their continuing interest in those pending 
applications for which they seek further Commission processing, 
consistent first with the national cap, as revised in paragraph 41 
above, and then with the revised per-market cap of three applications. 
They will also be required to demonstrate that the selected 
applications meet the conditions described in (1) paragraph 41 above 
with respect to applications outside the Appendix A markets for 
purposes of the national cap of 70 applications, and (2) paragraphs 58 
and 59 above if they elect to prosecute more than one application in an 
Appendix A market.
    67. The Fourth R&O described certain translator amendment 
opportunities in connection with the market-based processing policy. 
However, the application caps we describe here will be applied before 
any such amendment opportunity is available. This approach is 
consistent with our prior approach in the Third Report and Order. This 
approach also will expedite our processing of the large volume of 
translator applications, which needs to be done before we can open an 
LPFM filing window.
    68. 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 or submits a 
deficient showing, we direct the staff to (1) first apply the national 
cap, retaining on file the first 70 filed applications and dismissing 
(a) those Appendix A applications within that group of 70 applications 
that were filed after the first 50 Appendix A applications, and (b) 
those applications outside the Appendix A markets for which an adequate 
showing pursuant to paragraph 41 has not been submitted, and (2) then 
dismiss all but the first filed application by that applicant in each 
of the markets identified in Appendix A. We believe that this process 
will give applicants an incentive to file timely and complete showings 
so that they can maximize their future service to the public procedural 
matters

C. Fifth Order on Reconsideration

    69. Supplemental Final Regulatory Flexibility Analysis. Appendix A 
contains a supplemental final regulatory flexibility analysis pursuant 
to the Regulatory Flexibility Act of 1980, as amended (``RFA'').
    70. Congressional Review Act. The Commission will send a copy of 
this Fifth Order on Reconsideration 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).

III. Ordering Clauses

A. Fifth Order on Reconsideration

    71. Accordingly, it is ordered that the Petition for Partial 
Reconsideration filed by Hope Christian Church of Marlton, Inc., 
Bridgelight, LLC and Calvary Chapel of the Finger Lakes, Inc. on May 8, 
2012, the Petition for Reconsideration of Educational Media Foundation 
on Fourth R&O and Third Order on Reconsideration on May 8, 2012, the 
Petition for Partial Reconsideration of Fourth R&O and Third Order on 
Reconsideration filed by Conner Media, Inc. on May 9, 2012, the 
Comments of Kyle Magrill and Petition for Reconsideration filed by Kyle 
Magrill on May 7, 2012, and the Petition for Reconsideration filed by 
Western North Carolina Public Radio, Inc. on May 8, 2012, are granted 
in part to extent set forth above and otherwise denied.
    72. It is further ordered that the Reply of Four Rivers Community 
Broadcasting Corporation to Oppositions to Petitions for 
Reconsideration is dismissed to the extent set forth above.
    73. It is further ordered that pursuant to 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, Pub. L. No. 111-371, 124 Stat. 4072 (2011), the Fifth Order on 
Reconsideration is hereby adopted, effective January 10, 2013.
    74. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of the Fifth Order on Reconsideration, including the Final 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2012-29877 Filed 12-10-12; 8:45 am]
BILLING CODE 6712-01-P