Implementation of the Local Community Radio Act of 2010; Revision of Service and Eligibility Rules for Low Power FM Stations, 2077-2109 [2012-30975]
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47 CFR Part 73
Implementation of the Local Community Radio Act of 2010; Revision of
Service and Eligibility Rules for Low Power FM Stations; Final Rule
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Federal Register / Vol. 78, No. 6 / Wednesday, January 9, 2013 / Rules and Regulations
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
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission modifies its rules in order
to implement provisions of the Local
Community Radio Act of 2010
(‘‘LCRA’’). It also proposes changes to
its rules intended to promote the low
power FM service’s localism and
diversity goals, reduce the potential for
licensing abuses, and clarify certain
rules.
SUMMARY:
Effective February 8, 2013,
except for amendments to §§ 73.807,
73.810, 73.827, 73.850, 73.853, 73.855,
73.860, 73.872 which contain
information collection requirements that
are not effective until approved by the
Office of Management and Budget
(‘‘OMB’’). The FCC will seek Paperwork
Reduction Act comments via a separate
notice in the Federal Register. The FCC
will publish a document in the Federal
Register announcing the effective date
for those sections.
FOR FURTHER INFORMATION CONTACT:
Peter Doyle (202) 418–2789.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Sixth
Report and Order (‘‘Sixth R&O’’), FCC
No. 12–144, adopted November 30,
2012. The full text of the Order is
available for inspection and copying
during normal business hours in the
FCC Reference Center (Room CY–A257),
445 12th Street SW., Washington, DC
20554. The full text may also be
downloaded at: https://www.fcc.gov.
DATES:
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Summary of Sixth Report and Order
1. On March 19, 2012, we released a
Fourth Further Notice of Proposed Rule
Making (‘‘Fourth FNPRM’’) in this
proceeding, seeking comment on
proposals to amend the rules to
implement provisions of the LCRA and
to promote a more sustainable
community radio service. These
proposed changes were intended to
advance the LCRA’s core goals of
localism and diversity while preserving
the technical integrity of all of the FM
services. We also sought comment on
proposals to reduce the potential for
licensing abuses.
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2. In this Sixth R&O, we adopt an
LPFM service standard for secondadjacent channel spacing waivers
(‘‘second-adjacent waivers’’), in
accordance with section 3(b)(2)(A) of
the LCRA. We also specify the manner
in which a waiver applicant can satisfy
this standard and the manner in which
we will handle complaints of
interference caused by LPFM stations
operating pursuant to second-adjacent
waivers. As specified in section 7 of the
LCRA, we establish separate thirdadjacent channel interference
remediation regimes for short-spaced
and fully-spaced LPFM stations. Finally,
as mandated by section 6 of the LCRA,
we modify our rules to address the
potential for predicted interference to
FM translator input signals from LPFM
stations operating on third-adjacent
channels.
3. We also make a number of other
changes to our rules to better promote
the core localism and diversity goals of
LPFM service. Specifically, we modify
our rules to clarify that the localism
requirement set forth in § 73.853(b)
applies not just to LPFM applicants but
also to LPFM permittees and licensees.
We revise our rules to permit crossownership of an LPFM station and up
to two FM translator stations, but we
adopt a number of restrictions on such
cross-ownership in order to ensure that
the LPFM service retains its extremely
local focus. In the interests of advancing
the Commission’s efforts to increase
ownership of radio stations by federally
recognized American Indian Tribes and
Alaska Native Villages (‘‘Tribal
Nations’’) or entities owned or
controlled by Tribal Nations, we revise
our rules to explicitly provide for the
licensing of LPFM stations to Tribal
Nations or entities owned and
controlled by Tribal Nations
(collectively, ‘‘Tribal Nation
Applicants’’), and to permit Tribal
Nation Applicants to own or hold
attributable interests in up to two LPFM
stations. In addition, we modify the
point system that we use to select from
among MX LPFM applications.
Specifically, we revise the established
community presence criterion; retain
the local program origination criterion;
and add new criteria to promote the
establishment and staffing of a main
studio, radio service proposals by Tribal
Nation Applicants to serve Tribal lands,
and new entry into radio broadcasting.
Given these changes, we revise the
existing exception to the crossownership rule for student-run stations.
We also modify the way in which
involuntary time sharing works, shifting
from sequential to concurrent license
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terms and limiting involuntary time
sharing arrangements to three
applicants. We adopt mandatory time
sharing, which previously applied to
full-service NCE stations but not LPFM
stations, for the LPFM service. We also
revise our rules to eliminate the LP10
class of LPFM facilities and eliminate
the intermediate frequency (‘‘I.F.’’)
protection requirements applicable to
LPFM stations. Finally, we briefly
discuss administrative aspects of the
upcoming filing window for LPFM
stations.
A. Waiver of Second-Adjacent Channel
Minimum Distance Separation
Requirements
4. Section 3(b)(2)(A) of the LCRA
explicitly grants the Commission the
authority to waive the second-adjacent
channel spacing requirements set forth
in § 73.807 of the rules. It permits
second-adjacent waivers where an
LPFM station establishes, ‘‘using
methods of predicting interference
taking into account all relevant factors,
including terrain-sensitive propagation
models,’’ that its proposed operations
‘‘will not result in interference to any
authorized radio service.’’ In the Fourth
FNPRM, we tentatively concluded that
this waiver standard supersedes the
interim waiver processing policy
adopted by the Commission in 2007. We
sought comment on this tentative
conclusion. The three commenters that
addressed this tentative conclusion
agreed with it. As we noted in the
Fourth FNPRM, the interim waiver
processing policy requires the
Commission to ‘‘balance the potential
for new interference to the full-service
station at issue against the potential loss
of an LPFM station.’’ This balancing is
inconsistent with the language of
section 3(b)(2)(A) of the LCRA described
above, which does not contemplate such
a balancing. Accordingly, we affirm our
tentative conclusion that the waiver
standard set forth in the LCRA and
discussed herein supersedes the interim
waiver processing policy previously
adopted by the Commission.
5. In the Fourth FNPRM, we sought
comment on the factors relevant to and
showings appropriate for secondadjacent waiver requests. Some
commenters express support for a
requirement that waiver applicants
demonstrate there are no fully-spaced
channels available, a potential waiver
standard about which we specifically
sought comment. One commenter—the
National Association of Broadcasters
(‘‘NAB’’)—proposes additional
requirements for second-adjacent
waivers. These commenters argue that
the plain language of the LCRA and its
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legislative history require that the
Commission grant second-adjacent
waivers ‘‘only in strictly defined
circumstances.’’ In contrast, Prometheus
and others argue that ‘‘[b]eyond a
showing of non-interference as required
by the statute, no other showing should
be required for LPFM applicants seeking
waivers.’’ Prometheus states that ‘‘[t]he
Commission is bound by the LCRA’s
terms’’ and cannot ‘‘infer a wide range
of additional limitations or
prescriptions that appear nowhere in
the statute.’’
6. We have reviewed both the text of
the LCRA and the legislative history.
The plain language of section 3(b)(2)(A)
of the LCRA permits the Commission to
grant second-adjacent waivers where a
waiver applicant demonstrates that its
proposed operations ‘‘will not result in
interference to any authorized radio
service.’’ Nothing in the LCRA or its
legislative history suggests that Congress
intended to require that waiver
applicants make any additional
showings. The statute does not mandate
any further conditions on the grant of
such waivers, and it does not prescribe
the burden of proof. We conclude that
Congress intended to ensure that LPFM
stations operating pursuant to secondadjacent waivers do not cause
interference to full-service FM and other
authorized radio stations. We find that
additional limitations are not needed to
achieve this goal. Indeed, to require
additional showings of waiver
applicants would impose requirements
that go beyond those established in the
LCRA that we do not believe are either
necessary to the implementation of its
interference protection goals or
consistent with the localism and
diversity goals underlying the LPFM
service. Accordingly, we will not further
restrict the availability of secondadjacent waivers. Likewise, we will not
consider any of the other factors
proposed in the Fourth FNPRM in
determining whether to grant a waiver
request, none of which received any
support in the comments.
7. We find unconvincing the policy
arguments made by supporters of
requiring additional showings of waiver
applicants. For instance, we are not
persuaded that any additional limits are
needed to preserve the technical
integrity of the FM service. Neither NAB
nor any other commenter has offered
evidence to support the claim that
granting second-adjacent waivers that
satisfy the LCRA requirements will
harm audio quality or disrupt the
expectations of listeners. Indeed, we are
not sure how any commenter could
since waivers will only be granted
where an applicant makes a showing
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that its proposed operations will not
cause interference. Moreover, we note
that many FM translators successfully
operate on second-adjacent channels,
often at higher effective radiated powers
(‘‘ERPs’’) and heights above average
terrain (‘‘HAAT’’) than LPFM stations,
under a protection scheme that permits
second-adjacent channel operations at
less than LPFM distance separation
requirements. We believe LPFM stations
can operate just as successfully. Should
interference occur, the interference
remediation obligations set forth in
section 3(b)(2)(B) of the LCRA will serve
as a backstop to ensure that the
technical integrity of the FM band is
maintained.
8. We find equally unpersuasive the
argument that imposing additional
limits on second-adjacent waivers is in
the best interest of LPFM applicants.
LPFM applicants may lack broadcast
experience and technical expertise, and
therefore, may have difficulty predicting
interference issues. However,
Commission staff will review each
waiver request and will deny any
request that they determine would cause
interference. In addition, while the
interference remediation obligations
may prove burdensome to LPFM
licensees and may require some LPFM
stations to cease operations, we do not
see this as a reason to limit waivers. We
agree with Prometheus that the potential
benefit of promoting a locally-based
non-commercial radio service in
potentially thousands of communities
nationwide vastly outweighs the risks
that individual LPFM licensees may
face. In this regard, we note that, in
spectrum-congested markets, few LPFM
opportunities would exist without the
use of second-adjacent waivers. For
instance, applicants will be able to
select from 19 unique LPFM channels in
the Denver Arbitron Metro market and
18 in the New Haven Arbitron Metro
market if second-adjacent waivers are
available. If these waivers are not
available, an applicant will have a much
more limited selection—four unique
LPFM channels in the Denver Arbitron
Metro market and three in the New
Haven Arbitron Metro market.
9. We turn to the manner in which
waiver applicants can ‘‘establish, using
methods of predicting interference
taking into account relevant factors,
including terrain-sensitive propagation
models, that their proposed operations
will not result in interference to any
authorized radio service.’’ In the Fourth
FNPRM, we asked whether we should
permit LPFM applicants to make the
sort of showings we routinely accept
from FM translator applicants to
establish that ‘‘no actual interference
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will occur.’’ A number of commenters
offer general support for this proposal.
Prometheus grounds its support in the
fact that, read together, sections
3(b)(2)(A) and (B) of the LCRA ‘‘set out
a second adjacent waiver standard
substantially identical to the rules
allocating translators on the second
adjacent frequency.’’ NAB opposes the
use of these showings by waiver
applicants, arguing that it could lead to
‘‘over-packing of the FM band,
unwanted interference, and the
degradation of listeners’ experience.’’
NAB, however, does not offer any
evidence to support its claims. Nor does
NAB explain why the operations of the
very large number of FM translators that
have relied on these showings do not
cause the same interference and signal
degradation problems they predict as a
result of LPFM second-adjacent waivers.
NPR also opposes allowing LPFM
applicants to make the same showings
as FM translators. NPR argues that there
are ‘‘significant differences’’ between
the LPFM and FM translator services.
However, it does not explain how these
differences—the ability to originate
programming or lack thereof, the highly
local nature of the LPFM service, the
relative inexperience of LPFM licensees
when compared to FM translator
licensees—would justify different
waiver standards for FM translators and
LPFM stations. We are not persuaded
that the differences that NPR cites have
any impact on whether a station will
cause interference. Rather, the potential
for interference is principally dependent
on the propagation characteristics of the
‘‘protected’’ and ‘‘interfering’’ FM
signals and the quality of the utilized
FM receiver.
10. We will permit waiver applicants
to demonstrate that ‘‘no actual
interference will occur’’ in the same
manner as FM translator applicants. Put
another way, we will permit waiver
applicants to show that ‘‘no actual
interference will occur’’ due to ‘‘lack of
population’’ and will allow waiver
applicants to use an undesired/desired
signal strength ratio methodology to
define areas of potential interference
when proposing to operate near another
station operating on a second-adjacent
channel. Although the LCRA does not
require the Commission to incorporate
for second-adjacent channels the FM
translator regime that Congress
incorporated for third-adjacent channel
interference protection, as Prometheus
notes the second-adjacent waiver
provisions of the LCRA establish a
regime similar to that governing FM
translators. Given the discretion
afforded by Congress to the Commission
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for determining appropriate ‘‘methods
of predicting interference,’’ our
experience in connection with methods
for doing so in the analogous context of
FM translators, and the similarities
between the regime established in
sections 3(b)(2)(A) and (B) and the
regime applicable to FM translator
stations, we believe it is appropriate to
grant waiver applicants the same
flexibility as FM translator applicants to
demonstrate that, despite predicted
contour overlap, interference will not in
fact occur due to an absence of
population in the overlap area. We note
that, like FM translator stations, LPFM
stations operating pursuant to secondadjacent waivers may not cause any
actual interference.
11. We also will permit waiver
applicants to propose use of directional
antennas in making these showings.
This is consistent with our treatment of
FM translator applicants and supported
by the vast majority of commenters. We
clarify that, like FM translator
applicants, waiver applicants may use
‘‘off the shelf’’ antenna patterns and will
not be required to submit information
regarding the characteristics of the
pattern with the construction permit
application. In addition, as requested by
Prometheus and Common Frequency,
we will permit waiver applicants to
propose lower ERPs and differing
polarizations in order to demonstrate
that their operations will not result in
interference to any authorized radio
service. We expect that this flexibility
will facilitate the expansion of the
LPFM service while still protecting the
technical integrity of the FM band. In
terms of proposals specifying lower
ERPs, we will not accept proposals to
operate at less than current LPFM
minimum permissible facilities (i.e.,
power levels of less than 50 watts ERP
at 30 meters HAAT, or its equivalent).
Since the proposed operating
parameters of a waiver applicant will be
available in our Consolidated Database
System (‘‘CDBS’’) and since we do not
require other applicants seeking waivers
of our technical rules to serve their
waiver requests on potentially affected
stations, we will not require an LPFM
applicant seeking a second-adjacent
waiver to serve its waiver request on
any potentially affected station. We will,
however, instruct the Media Bureau to
identify specifically all potentially
affected second-adjacent channel
stations in the public notice that accepts
for filing an application for an LPFM
station that includes a request for a
second-adjacent waiver.
12. We remind potential LPFM
applicants that the LCRA permits the
Commission to grant waivers only of
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second-adjacent, and not co- and firstadjacent, spacing requirements. The
flexibility discussed above regarding
lower power, polarization and
directional patterns extends only to
waiver applicants seeking to
demonstrate that their proposed
operations will not result in any secondadjacent channel interference. We also
caution LPFM applicants against using
this technical flexibility to limit the
already small service areas of LPFM
stations to such an extent that, while
their LPFM applications are grantable,
the LPFM stations will not be viable. As
the Media Bureau noted recently ‘‘the
limitations on the maximum power of
LPFM stations substantially reduce the
number of potential listeners they can
serve.’’ The Media Bureau went on to
note that ‘‘[t]he low power of an LPFM
station affects not only its geographic
reach and coverage area, but also the
quality of its signal and the ability of
listeners to receive its signal
consistently inside the station’s
coverage area.’’ Finally, we take this
opportunity to make clear the protection
obligations of FM translators toward
LPFM stations operating with lower
powers, differing polarizations and/or
directional antennas. To simplify
matters and provide clear guidance to
FM translator applicants, we will
require FM translator modification
applications and applications for new
FM translators to treat such LPFM
stations as operating with nondirectional antennas at their authorized
power.
13. We turn now to what happens if
an LPFM station operating pursuant to
a second-adjacent channel waiver
causes interference. Section 3(b)(2)(B)
provides a framework for handling an
interference complaint resulting from an
LPFM station operating pursuant to a
second-adjacent waiver ‘‘without regard
to the location of the station receiving
interference.’’ Upon receipt of a
complaint of interference caused by an
LPFM station operating pursuant to a
second-adjacent waiver, the
Commission must notify the LPFM
station ‘‘by telephone or other electronic
communication within 1 business day.’’
The LPFM station must ‘‘suspend
operation immediately upon
notification’’ by the Commission that it
is ‘‘causing interference to the reception
of any existing or modified full-service
FM station.’’ It may not resume
operations ‘‘until such interference has
been eliminated or it can demonstrate
* * * that the interference was not due
to [its] emissions.’’ The LPFM station,
however, may ‘‘make short test
transmissions during the period of
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suspended operation to check the
efficacy of remedial measures.’’
14. In the Fourth FNPRM, we
proposed to incorporate these
provisions into our rules. We will do so.
We believe including these provisions
in the rules will provide a clear
framework for the efficient resolution of
interference complaints.
15. We also requested comment on
whether to define a ‘‘bona fide
complaint’’ for the purpose of triggering
these interference remediation
procedures. Prometheus urges us to do
so and to handle interference
complaints against LPFM stations
operating pursuant to second-adjacent
waivers in a manner similar to
complaints against FM translators and
similar to the former third adjacent
channel remediation requirements. As
we described in the Fourth FNPRM, for
FM translators, § 74.1203(a) prohibits
‘‘actual interference to * * *[t]he direct
reception by the public of the off-the-air
signals of any authorized broadcast
station* * *.’’ It specifies that
‘‘[i]nterference will be considered to
occur whenever reception of a regularly
used signal is impaired by the signals
radiated by’’ the interfering FM
translator station. An interfering FM
translator station must remedy the
interference or cease operation. The
Commission has interpreted this rule
broadly. It places no geographic or
temporal limitation on complaints. It
covers all types of interference. The
reception affected can be that of a fixed
or mobile receiver. The Commission
also has interpreted ‘‘direct reception by
the public’’ to limit actionable
complaints to those that are made by
bona fide listeners. Thus, it has declined
to credit claims of interference or lack
of interference from station personnel
involved in an interference dispute.
More generally, the Commission
requires that a complainant ‘‘be
‘disinterested,’ e.g., a person or entity
without a legal stake in the outcome of
the translator station licensing
proceeding.’’ The staff has routinely
required a complainant to provide his
name, address, location(s) at which FM
translator interference occurs, and a
statement that the complainant is, in
fact, a listener of the affected station.
Moreover, as is the case with other types
of interference complaints, the staff has
considered only those complaints of FM
translator interference where the
complainant cooperates in efforts to
identify the source of interference and
accepts reasonable corrective measures.
Accordingly, when the Commission
concludes that a bona fide listener has
made an actionable complaint of
uncorrected interference from an FM
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translator, it will notify the station that
‘‘interference is being caused’’ and
direct the station to discontinue
operations.
16. We conclude that it is appropriate
to handle complaints in a manner
similar to that used to handle
complaints of interference caused by
FM translators. As we noted above, we
believe that the LCRA affords the
Commission the discretion to rely on
our successful FM translator experience
in implementing the interference
protection regime for second-adjacent
LPFM stations. Accordingly, we will
adopt the same requirements for
complaints that we apply in the FM
translator context. As described above,
that means that a complaint must come
from a disinterested listener and must
include the listener’s name and address,
and the location at which the
interference occurs. We are
unconvinced by NPR’s argument that a
listener complaint is unnecessary.
While NPR is correct that section
3(b)(2)(B)(iii) refers simply to ‘‘a
complaint of interference’’ and does not
specify the source of such complaint,
we find this statutory term to be
ambiguous. We conclude that it may
reasonably be interpreted to refer to
listener complaints. We note that we
have interpreted § 74.1203 of the rules
to require that complaints of
interference in the FM translator context
be filed by listeners. We also note that
the scope of the rule prohibiting
translator stations from causing ‘‘actual
interference to * * * direct reception,’’
and that of section 3(b)(2)(B) which
prohibits LPFM stations from causing
‘‘interference to the reception of an
existing or modified full-service
station,’’ are essentially equivalent. The
Commission previously has interpreted
the ‘‘direct reception’’ language
included in § 73.1203(a) as limiting
actionable complaints to those that are
made by bona fide listeners. We believe
it is appropriate to interpret the
‘‘reception’’ language in section
3(b)(2)(B) of the LCRA as imposing this
same limit.
17. Once the Commission receives a
bona fide complaint of interference from
an LPFM station operating pursuant to
a second-adjacent waiver and notifies
the LPFM station of the complaint, the
LPFM station must ‘‘suspend operation
immediately’’ and stay off the air until
it eliminates the interference or
demonstrates that the interference was
not due to its emissions. We conclude
that an LPFM station may demonstrate
that it is not the source of the
interference at issue by conducting an
‘‘on-off’’ test. ‘‘On-off’’ tests have been
used by the FM translator and other
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services to determine whether identified
transmissions are ‘‘the source of
interference.’’ In addition, the
Commission specifically authorized
LPFM stations to use ‘‘on-off’’ tests for
determining ‘‘whether [third-adjacent
interference] is traceable to [an] LPFM
station.’’ As the Commission did in that
context, we require the full-service
station(s) involved to cooperate in these
tests.
B. Third-Adjacent Channel Interference
Complaints and Remediation
18. As instructed by section 3 of the
LCRA, in the Fifth Report and Order
(‘‘Fifth R&O’’), we eliminated the thirdadjacent channel spacing requirements.
We then sought comment on the
associated interference remediation
obligations, set forth in section 7 of the
LCRA, that Congress paired with this
change. We conclude that section 7 of
the LCRA creates two different LPFM
interference protection and remediation
regimes, one for LPFM stations that
would be considered short-spaced
under the third-adjacent channel
spacing requirements in place when the
LCRA was enacted, and one for LPFM
stations that would be considered fully
spaced under those requirements. We
discuss this conclusion and each of the
regimes below.
1. LPFM Interference Protection and
Remediation Requirements
19. Two Distinct Regimes. Sections
7(1) and 7(3) of the LCRA both address
the interference protection and
remediation obligations of LPFM
stations on third-adjacent channels.
Only section 7(1) specifies requirements
for ‘‘low-power FM stations licensed at
locations that do not satisfy thirdadjacent channel spacing requirements
* * *.’’ With regard to such stations
(‘‘Section 7(1) Stations’’), section 7(1)
instructs the Commission to adopt ‘‘the
same interference protections that FM
translator stations and FM booster
stations are required to provide as set
forth in Section 74.1203 of [the] rules.’’
Section 7(3), in contrast, directs the
Commission to require ‘‘[LPFM] stations
on third-adjacent channels * * * to
address interference complaints within
the protected contour of an affected
station’’ and encourages such LPFM
stations to address ‘‘all other
interference complaints.’’ In the Fourth
FNPRM, we tentatively concluded that,
through these two provisions, Congress
intended to create two different
interference protection and remediation
regimes—one that applies to Section
7(1) Stations and one that applies to all
other LPFM stations (‘‘Section 7(3)
Stations’’). We explained that the
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intended regimes differed both with
respect to the locations at which an
affected station’s signal is protected
from third-adjacent interference from an
LPFM station and the extent of the
remediation obligations applicable
when interference occurs at these
locations. We sought comment on our
tentative conclusion.
20. Commenters addressing this
question support our tentative
conclusion. Accordingly, we find that
section 7 of the LCRA creates two
different interference protection and
remediation regimes—one that applies
to Section 7(1) Stations and one that
applies to Section 7(3) Stations. As we
noted in the Fourth FNPRM, were we to
conclude otherwise, Section 7(1)
Stations would be subject to different
and conflicting interference protection
and remediation obligations.
Specifically, under section 7(1), which
incorporates the requirements for FM
translators and boosters, Section 7(1)
Stations must ‘‘eliminate’’ any actual
interference they cause to the signal of
any authorized station in areas where
that station’s signal is ‘‘regularly used.’’
Section 7(3), on the other hand, would
obligate such stations only to ‘‘address’’
complaints of interference occurring
within an affected station’s protected
contour. We conclude that this statutory
interpretation is necessary to read
section 7 as a harmonious whole.
21. As we noted in the Fourth
FNPRM, we can also reasonably
conclude that Congress intended to
impose more stringent interference
protection and remediation obligations
on LPFM stations that are located
nearest to full-service FM stations and,
therefore, have a greater potential to
cause interference. The LCRA provides
greater flexibility by eliminating thirdadjacent channel spacing requirements
for LPFM stations, but counterbalances
that flexibility with a prohibition on
LPFM stations that would be shortspaced under such requirements
causing any actual interference to other
stations. Accordingly, our reading is
consistent with the general licensing
rule of counterbalancing flexible
technical standards with more stringent
interference remediation requirements.
22. Retention of Third-Adjacent
Channel Spacing Requirements for
Reference. We tentatively concluded
that, although section 3(a) of the LCRA
mandates the elimination of the thirdadjacent channel spacing requirements,
we should retain them solely for
reference purposes in order to
implement section 7(1) of the LCRA. We
sought comment on this tentative
conclusion and also on whether, if the
spacing tables are retained in the rules,
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to include them in § 73.807 or a
different rule section.
23. Commenters addressing this issue
agree that the rules should reference the
former third-adjacent channel distance
separation requirements, but are divided
on the best approach. REC expresses
concern that references to third-adjacent
spacing in § 73.807 could confuse new
applicants. Common Frequency asserts
that it would be confusing to eliminate
the third-adjacent spacing provisions,
rename them, and then insert them in a
table elsewhere in the rules.
24. We will retain the third-adjacent
channel spacing provisions in § 73.807
for reference purposes only. It is
necessary to reference the former thirdadjacent channel spacing requirements
in order to clarify which stations must
adhere to the section 7(1) regime. We
are sympathetic to commenters’
concerns of confusion. However, we
believe that licensees will find it easier
and more convenient to have all the
spacing standards (reference or
otherwise) in one section of the rules.
We make clear in the new version of
§ 73.807 that LPFM stations need not
satisfy these standards, and that they are
included solely to determine which
third-adjacent interference regime
applies.
25. Applicability of sections 7(4) and
(5) of the LCRA. Sections 7(4) and (5) of
the LCRA establish a number of
protection and interference remediation
requirements. These provisions mandate
that the Commission allow LPFM
stations on third-adjacent channels to
collocate and establish certain
complaint procedures and standards. In
the Fourth FNPRM, we tentatively
concluded these sections apply only to
Section 7(3) Stations.
26. We affirm our tentative
conclusion, which was supported by
Prometheus, the sole commenter on this
issue. We believe this is the most
reasonable reading of these provisions.
Sections 7(4) and (5) use the same ‘‘lowpower FM stations on third-adjacent
channels’’ language as section 7(3), not
the more specific ‘‘low-power FM
stations licensed at locations that do not
satisfy third-adjacent channel spacing
requirements’’ language set forth in
section 7(1). In addition, as discussed
above, Section 7(1) Stations are subject
to the well-established and
comprehensive interference protection
and remediation regime set forth in
§ 74.1203 of the rules. We therefore will
not apply sections 7(4) and 7(5), which
establish discrete requirements
inconsistent with the § 74.1203 regime,
to Section 7(1) stations.
27. Third-Adjacent Channel
Interference Only. We tentatively
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concluded that sections 7(1), (2), (3), (4)
and (5) of the LCRA apply only to thirdadjacent channel interference. We affirm
our conclusion, which commenters
support. Although Congress did not
specify the type of interference to which
these provisions apply, we believe this
is the most reasonable reading. In each
of these provisions, Congress refers
specifically to LPFM stations on thirdadjacent channels or LPFM stations that
do not satisfy the third-adjacent channel
spacing requirements. These references
reflect a focus on LPFM stations causing
interference to stations located on thirdadjacent channels. Our conclusion is
further supported by the fact that
Congress separately addressed the
possibility of second-adjacent channel
interference in section 3 of the LCRA.
2. Regime Applicable to Section 7(1)
Stations
28. General Requirements. Section
7(1) Stations are subject to the same
interference protection and remediation
regime applicable to FM translator and
booster stations. These requirements, set
forth in § 74.1203 of the rules, are more
stringent than those currently applicable
to LPFM stations. § 74.1203(a) prohibits
‘‘actual interference to * * * [t]he direct
reception by the public of the off-the-air
signals of any authorized broadcast
station * * * .’’ It specifies that
‘‘[i]nterference will be considered to
occur whenever reception of a regularly
used signal is impaired by the signals
radiated by’’ the interfering FM
translator station. An interfering FM
translator station must remedy the
interference or cease operation. As
previously noted, the rule has been
interpreted broadly.
29. Southwestern Ohio Public Radio
(‘‘SOPR’’), the only commenter to
address this issue, comments that ‘‘it
appears that the requirements in Section
7(1) give the Commission very little
leeway in its interpretation.’’ Section
7(1) is explicit in its direction to
‘‘provide the same interference
protections that FM translator stations
and FM booster stations are required to
provide as set forth in Section 74.1203.’’
There is no evidence in the statute or
legislative history that Congress
intended the § 74.1203 requirements to
be merely a list of minimum criteria that
could be supplemented or modified;
indeed, the statute expressly says that
the interference protections must be
‘‘the same.’’ Further, the LCRA refers to
the particular version of § 74.1203 ‘‘in
effect on the date of enactment of this
Act’’ (i.e., January 4, 2011). Accordingly,
we will apply the relevant sections of
§ 74.1203, without modification, to
Section 7(1) Stations. We will interpret
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these provisions in the same manner as
we have in the FM translator context. In
addition, we will consider directional
antennas, lower ERPs and/or differing
polarizations to be suitable techniques
for eliminating third-adjacent channel
interference. FM translators have the
flexibility to employ all of these options
in their operations. Thus, permitting
LPFM stations to use these same
remedial techniques is consistent with
Congress’ decision to require the
wholesale adoption of the wellestablished and comprehensive regime
in § 74.1203 of the rules.
30. Periodic Announcements. We also
requested comment on requiring newly
constructed Section 7(1) Stations to
make the same periodic announcements
required of Section 7(3) Stations under
section 7(2) of the LCRA. We questioned
whether we could reasonably
distinguish between listeners of stations
that may experience interference as a
result of the operations of Section 7(1)
Stations and those that may experience
interference as a result of the operations
of Section 7(3) Stations for such
purposes. We noted, however, that
section 7(1) explicitly requires the
Commission to ‘‘provide the same
[LPFM] interference protections that FM
translator stations * * * are required to
provide as set forth in section 74.1203
of its rules,’’ and that § 74.1203 does not
require an FM translator station to
broadcast periodic announcements that
alert listeners to the potential for
interference. Thus, we asked
commenters to address whether we
could and, if so, whether we should
impose the periodic announcement
requirement on Section 7(1) Stations.
31. Commenters addressing this issue
were divided. SOPR states that the
Commission must strictly adhere to the
requirements of § 74.1203, in
accordance with the section 7(1)
mandate, and therefore, periodic
announcements should not be required
of Section 7(1) Stations. Similarly,
Common Frequency highlights the
inconsistency of the Commission
finding distinctions between Section
7(1) and 7(3) Stations, but then
conversely stating that there is no
reason to distinguish between Section
7(1) Stations and Section 7(3) Stations
for purposes of periodic
announcements. REC, on the other
hand, argues that the section 7(2)
periodic announcement requirement
applies to Section 7(1) Stations. It
believes ‘‘that the differences in
references to how a LPFM station
operating on a third adjacent channel in
respect to a full-service FM station may
be due to how the 2010 version of the
LCRA was marked-up by Congress,’’ and
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that Congress intended the periodic
announcement requirement to apply to
all LPFM stations constructed on thirdadjacent channels.
32. We believe that Congress, in
framing section 7, did not intend to
apply the periodic announcement
requirement to Section 7(1) Stations. If
it had wished to apply this requirement
to Section 7(1) Stations, it could have
done so explicitly in the LCRA. Instead,
Congress required our wholesale
adoption of the well-established and
comprehensive § 74.1203 regime for
Section 7(1) Stations. That regime does
not include any form of periodic
announcements. We agree with
Common Frequency that it is
incongruous to find clear distinctions
between the section 7(1) and 7(3)
Station interference protection and
remediation regimes, as we have done,
but then to ignore these distinctions in
this context. Accordingly, for the
reasons discussed above, we will not
impose a periodic announcement
requirement on Section 7(1) Stations.
3. Regime Applicable to Other LPFM
Stations
33. Section 7(3) of the LCRA requires
the Commission to modify § 73.810 of
the rules to require Section 7(3) Stations
‘‘to address interference complaints
within the protected contour of an
affected station’’ and encourage them to
address all other interference
complaints, including complaints
‘‘based on interference to a full-service
FM station, an FM translator station or
an FM booster station by the transmitter
site of a low-power FM station on a
third-adjacent channel at any distance
from the full-service FM station, FM
translator station or FM booster station.’’
As noted above, we conclude that
sections 7(2), (4) and (5) apply only to
Section 7(3) Stations. We discuss the
general interference remediation
requirements set forth in Section 7(3)
and these other provisions below.
34. ‘‘Addressing’’ Complaints of
Third-Adjacent Channel Interference.
Unlike section 7(1), section 7(3) does
not specifically refer to § 74.1203 of the
rules. While section 7(1) instructs the
Commission to require Section 7(1)
Stations ‘‘to provide’’ interference
protections, section 7(3) merely
instructs the Commission to require
Section 7(3) Stations ‘‘to address’’
complaints of interference. Section 7(2)
of the LCRA—which we conclude
applies only to Section 7(3) Stations—
further mandates that we require newly
constructed Section 7(3) Stations on
third-adjacent channels to cooperate in
‘‘addressing’’ any such interference
complaints. Therefore, in the Fourth
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FNPRM, we sought comment on (1)
what a Section 7(3) Station must do to
‘‘address’’ a complaint of third-adjacent
channel interference; (2) whether to
specify the scope of efforts which a
Section 7(3) Station must undertake; (3)
whether to relieve a Section 7(3) Station
of its obligations in instances where the
complainant does not reasonably
cooperate with the Section 7(3) Station’s
remedial efforts; and (4) whether the
more lenient interference protection
obligations currently set forth in
§ 73.810 should continue to apply to
Section 7(3) Stations.
35. Commenters offer varied
interpretations of the actions a Section
7(3) Station must take to ‘‘address’’ a
complaint of third-adjacent channel
interference. SOPR argues that ‘‘to
address’’ means ‘‘to respond to the
complaint with reasonable effort to
remediate the interference based on
accepted engineering practices and with
the cooperation of the complainant.’’ It
urges the Commission to clearly specify
the scope of required efforts. Common
Frequency proposes that ‘‘addressing’’
interference complaints ‘‘could mean
visiting the impacted area, turning on
the receiver in question, and shutting
down temporarily.’’ NPR, in contrast,
contends that this phrase imposes the
full scope of section 7(1) remediation
requirements on Section 7(3) Stations
when interference occurs within the
protected contour of the affected station.
Notwithstanding these divergent
interpretations, we find unanimous
support for relieving Section 7(3)
Stations of their obligations in instances
where a complainant does not
reasonably cooperate with an LPFM
station’s remedial efforts. Finally, in
lieu of applying the interference
protection obligations currently set forth
in § 73.810 to Section 7(3) Stations, one
commenter suggests that we instead
employ the current FM translator rules,
which, it asserts, ‘‘have worked for
decades and [are] seen as ‘tried and
tested.’’’
36. We find that it is most reasonable
to conclude that the substantial
differences between the language of
sections 7(1) and 7(3) reflect Congress’s
intention to establish differing
remediation regimes for these two
classes of stations. Moreover we find a
clear difference in meaning between the
§ 74.1203 obligation to ‘‘eliminate’’
interference and the lesser section 7(3)
obligation to ‘‘address * * *
interference complaints.’’ Accordingly,
we will define ‘‘address’’ in accordance
with the current version of § 73.810 of
the rules, meaning ‘‘an LPFM station
will be given a reasonable opportunity
to resolve all interference complaints.’’
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We will not require Section 7(3)
Stations to cease operations while
resolving interference complaints, and
we decline to specify the scope of
remedial efforts Section 7(3) Stations
must undertake. Section 7(3) Stations
fully comply with the Commission’s
former third-adjacent spacing
requirements, a stringent licensing
standard, which is based on a proven
methodology for ensuring interferencefree operations between nearby stations.
Accordingly, similarly stringent
interference remediation obligations are
unnecessary. We expect Section 7(3)
Stations, however, to make good faith
and diligent efforts to resolve any
complaints received. For example, a
Section 7(3) Station may agree to
provide new receivers to impacted
listeners or to install filters at the
receiver site. Section 7(3) Stations also
may wish to consider colocation, a
power reduction and/or other facility
modifications (e.g., use of directional
antennas or differing polarizations) to
alleviate the interference. Finally, we
will continue to consider a complaint
resolved if the complainant does not
reasonably cooperate with a Section 7(3)
Station’s investigatory and remedial
efforts.
37. Complaints. Section 7(3) requires
the Commission to provide notice to the
licensee of a Section 7(3) Station of the
existence of interference within 7
calendar days of the receipt of a
complaint from a listener or another
station. Further, section 7(5) of the
LCRA expands the universe of
interference complaints which Section
7(3) Stations must remediate. Section
7(5) states:
The Federal Communications Commission
shall —(A) permit the submission of informal
evidence of interference, including any
engineering analysis that an affected station
may commission; (B) accept complaints
based on interference to a full-service FM
station, FM translator station, or FM booster
station by the transmitter site of a low-power
FM station on a third-adjacent channel at any
distance from the full-service FM station, FM
translator station, or FM booster station; and
(C) accept complaints of interference to
mobile reception.
38. We requested comment on
whether any of the four criteria for bona
fide complaints set forth in § 73.810(b)
of the rules remain relevant. We
tentatively concluded that section 7(5)
of the LCRA requires us to delete
§§ 73.810(b)(1) (bona fide complaint
must allege interference caused by
LPFM station that has its transmitter site
located within the predicted 60 dBu
contour of the affected station), (2) (bona
fide complaint must be in form of
affidavit and state the nature and
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location of the alleged interference) and
(3) (bona fide complaint must involve a
fixed receiver located within the 60 dBu
contour of the affected station and not
more than 1 kilometer from the LPFM
transmitter site). We asked commenters
to address whether we should retain the
remaining criterion set forth in
§ 73.810(b)(4), which requires a bona
fide complaint to be received within one
year of the date an LPFM station
commenced broadcasts. We also sought
comment on whether to establish
certain basic requirements for
complaints.
39. No commenter opposes our
conclusion that section 7(5) of the LCRA
mandates that we delete §§ 73.810(b)(1)
and (b)(3) from our rules. One
commenter, however, proposes that we
add a provision limiting complaints to
those involving interference within the
100 dBu contour of the affected station.
With respect to § 73.810(b)(2) (bona fide
complaint must be in form of affidavit
and state the nature and location of the
alleged interference), several
commenters recommend that we retain
some semblance of the former rule and
also establish additional basic
requirements for complaints. For
instance, Athens Community Radio
Foundation asserts that bona fide
complaints should state the nature and
location of the alleged interference, the
call letters of the stations involved, and
accurate contact information. Similarly,
Common Frequency argues that an
actionable complaint must specify the
location and date of interference, the
type of receiver, channel, time/day of
interference, whether ongoing or
intermittent, and contact information for
the complainant. Several commenters
also assert that the Commission should
require complainants to file copies of
their complaints with the Audio
Division, and that the Commission
should consider only complaints from
bona fide listeners who are
‘‘disinterested.’’ Finally, those
discussing it unanimously agree that we
should retain the criterion set forth in
§ 73.810(b)(4), which requires a bona
fide complaint to be received within one
year of the date an LPFM station
commenced broadcasts.
40. We will, as proposed, eliminate
§§ 73.810(b)(1) and (b)(3) from our rules.
These distance restrictions conflict with
the explicit mandate of section 7(5) of
the LCRA to ‘‘accept complaints based
on interference * * * at any distance
from the full-service FM station, FM
translator station, or FM booster
station.’’ In addition, the § 73.810(b)(3)
fixed receiver limitation is inconsistent
with section 7(5)(C) of the LCRA, which
requires us to accept complaints of
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interference at fixed locations and to
mobile reception.
41. In this same vein, we decline to
adopt the proposal to limit complaints
to those occurring within the 100 dBu
contour of the affected station. We
agree, however, with commenters’
suggestions that we impose explicit,
basic requirements for complaints. A list
of minimum criteria likely will help
LPFM stations quickly address issues
while also curbing the risk of frivolous
filings. Accordingly, while we will
delete the § 73.810(b)(2) criterion that
the complaint be in the form of an
affidavit, we retain the requirement that
the complaint state the nature and
location of the alleged interference. We
will also require complainants to
specify: (1) The call signs of the LPFM
station and the affected full-service FM,
FM translator or FM booster station; (2)
the type of receiver; and (3) current
contact information. We strongly
encourage listeners to file copies of the
complaints with the Media Bureau’s
Audio Division to ensure proper
oversight. LPFM stations also must
promptly forward copies of complaints
to the Audio Division for resolution.
However, an affected station may
forward copies of complaints that it
receives to the Audio Division as a
courtesy to the complainant listeners.
When complainants fail to include all
the necessary information listed above,
Audio Division staff will take efforts to
correct any deficiencies. We also limit
actionable listener complaints to those
that are made by bona fide
‘‘disinterested’’ listeners (e.g., persons
or entities without legal, economic or
familial stakes in the outcome of the
LPFM station licensing proceeding).
Finally, we will preserve the
§ 73.810(b)(4) criterion, which requires a
bona fide complaint to be received
within one year of the date an LPFM
station commenced broadcasts with its
currently authorized facilities. Any
interference caused by a Section 7(3)
Station should be detectable within one
year after it commences such
operations. This time restriction will
reasonably limit uncertainty regarding
the potential modification or
cancellation of an LPFM station’s
license and such station’s financial
obligation to resolve interference
complaints. We believe that the
efficient, limited complaint procedure
that we are adopting is fully consistent
with the LCRA and fairly balances the
interests of full-service broadcasters
against the benefits of fostering the
LPFM radio service.
42. Periodic Broadcast
Announcements. Section 7(2) of the
LCRA directs the Commission to amend
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§ 73.810 of the rules to require a newly
constructed Section 7(3) Station to
broadcast periodic announcements that
alert listeners to the potential for
interference and instruct them to
contact the station to report any
interference. These announcements
must be broadcast for a period of one
year after construction. We sought
comment on whether we should adopt
specific announcement language and
whether we should mandate the timing
and frequency of these announcements.
43. Commenters agree that the
Commission should provide some
guidance regarding the text of the
announcements. One commenter
recommends that the Commission
specify explicit uniform language. Other
commenters state that the Commission
should merely suggest language and
allow operators of Section 7(3) Stations
the flexibility to modify the wording.
REC emphasizes that broadcasters need
to have ‘‘latitude to word the message in
a way to get the points across without
overwhelming listeners with technical
jargon.’’
44. With respect to the timing and
frequency of the mandatory
announcements, REC argues that we
should aim to achieve ‘‘a balance
between educating radio listeners of
changes in the ‘dialscape’ as a result of
the new [LPFM] station while * * * not
confus[ing] the listener or excessively
burden[ing] the [LPFM] broadcaster.’’
Jeff Sibert (‘‘Sibert’’) and Prometheus
each urge us to address the
announcements in a manner that is
simple, flexible and imposes a
minimum burden on new Section 7(3)
Stations. One commenter suggests that
we allow the affected full-power station
to waive the Section 7(3) Station’s
periodic announcement requirement.
45. Several commenters recommend
that we use the pre-filing and post-filing
license renewal announcement schedule
as a template. REC, in particular,
suggests a very detailed schedule based
on a modified version of the renewal
announcement schedule. It argues that
any bona fide interference will be
discovered in the first month of the
Section 7(3) Station’s operation, and
accordingly, it is necessary to air the
highest frequency of announcements
during the first month. Sibert asserts
that the requirement to broadcast the
announcement should be no greater
than once per day between the hours of
6 a.m. and midnight for the first three
months, and once per week during the
same hours for the last nine months.
46. We agree that we should provide
licensees of newly constructed Section
7(3) Stations explicit guidance on the
language to be used in the periodic
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announcements. Therefore, we will
amend our rules to specify sample
language that may be used in the
announcements. Specific language will
make it easier for licensees of new
Section 7(3) Stations to comply with
this section 7(2) requirement. We will
not, however, mandate that licensees of
Section 7(3) Stations follow the sample
text verbatim, but rather, allow licensees
the discretion to modify the exact
wording, as the vast majority proposed.
To ensure consistency, the
announcement must, however, at a
minimum: (1) Alert listeners of a
potentially affected third-adjacent
channel station of the potential for
interference; (2) instruct listeners to
contact the Section 7(3) Station to report
any interference; and (3) provide contact
information for the Section 7(3) Station.
Further, the message must be broadcast
in the primary language of both the
newly constructed Section 7(3) Station
and any third-adjacent station that
could be potentially affected.
47. We will, as the commenters
suggest, dictate the timing and
frequency of the required
announcements. We believe that an
explicit schedule will promote
compliance with this requirement. We
also believe that the schedule specified
below achieves the benefits of
effectively notifying listeners of the
potential for interference while
minimizing the costs of doing so for the
new Section 7(3) Station.
48. We agree with REC that any
interference is likely to be detected
within the first month of the new
Section 7(3) Station’s operation.
Accordingly, during the first thirty-days
after a new Section 7(3) Station is
constructed, we direct such station to
broadcast the announcements at least
twice daily. One of these daily
announcements shall be made between
the hours of 7 a.m. and 9 a.m. or 4 p.m.
and 6 p.m. The second daily
announcement shall be made outside of
these time slots. Between days 31 and
365 of operation, the station must
broadcast the announcements a
minimum of twice per week. The
required announcements shall be made
between the hours of 7 a.m. and
midnight.
49. Finally, we decline to allow an
affected full-power station to waive the
newly constructed Section 7(3) Station’s
periodic announcement obligation, as
one commenter suggests. Section 7(2) of
the LCRA explicitly mandates that
newly constructed Section 7(3) Stations
broadcast periodic announcements. The
announcement is intended to benefit
listeners, by alerting them of the
potential for interference. Allowing
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potentially affected stations to waive the
announcements would be inconsistent
with section 7(2) of the LCRA and
deprive listeners of its intended
benefits.
50. Technical Flexibility. Section 7(4)
of the LCRA requires the Commission,
to the extent possible, to ‘‘grant lowpower FM stations on third-adjacent
channels the technical flexibility to
remediate interference through the
colocation of the transmission facilities
of the low-power FM station and any
stations on third-adjacent channels.’’ In
the Fourth FNPRM, we tentatively
concluded that, other than eliminating
the third-adjacent channel spacing
requirements as mandated by section
3(a) of the LCRA, we need not modify
or eliminate any other provisions of our
rules to implement section 7(4).
51. Two commenters propose
additional modifications to our rules in
order to implement section 7(4). REC
argues that LPFM stations should have
the flexibility to co-locate with or
operate from a site ‘‘very close to the
third-adjacent full-service station as
long as no new short spacing is created,
even if this means moving the
transmitter site to a location that may be
outside the current service contour of
the LPFM station.’’ REC points out that,
under existing rules, such a change
would constitute a ‘‘major change’’ and
an applicant seeking authority to make
such a change would have to do so
during a filing window. We infer that
REC would like us to modify our rules
to clarify that we will treat as a ‘‘minor
change’’ a proposal to move a Section
7(3) Station’s transmitter site, including
a move outside its current service
contour, in order to co-locate or operate
from a site close to a third-adjacent
channel station and remediate
interference to that station. We will
adopt REC’s proposed modification. We
note that section 7(4) of the LCRA
explicitly requires the Commission to
grant ‘‘low-power FM stations on thirdadjacent channels the technical
flexibility to remediate interference
through the colocation of the
transmission facilities of the low-power
FM station and any stations on thirdadjacent channels.’’ We believe that
REC’s suggested expansion of the
definition of ‘‘minor change’’ will
provide Section 7(3) Stations the sort of
‘‘technical flexibility’’ that Congress
intended. We also will treat as a ‘‘minor
change’’ an LPFM proposal to locate
‘‘very close’’ to a third-adjacent channel
station. Although the LCRA does not
explicitly direct the Commission to
employ ‘‘flexible’’ licensing standards in
this context, colocation and ‘‘very
close’’ locations can eliminate the
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potential for interference for exactly the
same reason (i.e., they result in
acceptable signal strength ratios
between the two stations at all
locations). Generally, this will limit
LPFM site selections and relocations
pursuant to this policy to transmitter
within 500 meters of stations operating
on third-adjacent channels. The
approach we adopt will advance the
overarching goal of section 7 to prevent
third-adjacent channel interference by
LPFM stations. Accordingly, we will
modify § 73.870(a) of our rules to treat
these moves as ‘‘minor changes,’’ and
we will routinely grant applications for
authority to make these moves, upon a
showing of potential interference from
the authorized site, and provided that
the licensee would continue to satisfy
all eligibility requirements and maintain
any comparative attributes on which the
grant of the station’s initial construction
permit was predicated.
52. If interference is remediated
through colocation, Common Frequency
recommends that we consider allowing
‘‘flexible operating proposals,’’ such as
upgrades to LP250 if the colocation
takes the LPFM transmitter far from the
existing transmitter site, the use of
different or directional antennas, and
the use of close-by towers instead of
colocation. We decline to permit
Section 7(3) Stations seeking to
remediate interference by co-locating
their transmission facilities with those
of an affected full-service FM station to
operate at powers exceeding 100 watts
ERP at 30 meters HAAT. We will,
however, permit Section 7(3) Stations to
propose lower powers, use of
directional antennas and use of differing
polarizations to remediate interference.
This is consistent with our decision to
afford applicants seeking secondadjacent waivers the flexibility to
employ these methods.
4. Additional Interference Protection
and Remediation Obligations
53. One additional provision of
section 7—section 7(6)—requires the
Commission to impose additional
interference protection and remediation
obligations on one class of LPFM
stations. It directs the Commission to
create special interference protections
for ‘‘full-service FM stations that are
licensed in significantly populated
States with more than 3,000,000
population and a population density
greater than 1,000 people per square
mile land area.’’ The obligations apply
only to LPFM stations licensed after the
enactment of the LCRA. Such stations
must remediate actual interference to
full-service FM stations licensed to the
significantly populated states specified
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in section 7(6) and ‘‘located on thirdadjacent, second-adjacent, first-adjacent
or co-channels’’ to the LPFM station and
must do so under the interference and
complaint procedures set forth in
§ 74.1203 of the rules. In the Fourth
FNPRM, we found that the section 7(6)
interference requirements are, with one
exception, unambiguous. We sought
comment on whether to interpret the
term ‘‘States’’ to include the territories
and possessions of the United States.
We noted that only New Jersey and
Puerto Rico satisfy the population and
population density thresholds set forth
in section 7(6).
54. Commenters are divided how we
should construe the term ‘‘States.’’ REC
and SOPR argue that Congress did not
intend to include Puerto Rico as a
‘‘State’’ for purposes of section 7(6). REC
contends that, following lobbying from
the New Jersey Broadcasters Association
(‘‘NJBA’’), Congress amended the Act to
include the current section 7(6), and
that Congress intended this section to
apply solely to the state of New Jersey.
Arso Radio Corporation (‘‘Arso’’), in
contrast, asserts that ‘‘States’’ should
include the territories and possessions
of the United States, and therefore, the
more restrictive section 7(6) interference
protections should apply to both New
Jersey and Puerto Rico. Although Arso
acknowledges that an examination of
the legislative history ‘‘does not yield
any clues as to congressional intent
regarding use of the word ‘States,’’’ it
insists that Congress intended to define
the words ‘‘States’’ in the same way as
it defined ‘‘States’’ in section 153(47) of
the Communications Act of 1934, as
amended (‘‘Act’’), which provides that
the term ‘‘State’’ includes the District of
Columbia and the Territories and
possessions.
55. We recognize that the term
‘‘States’’ is susceptible to different
interpretations. It is unclear from the
statutory text whether Congress
intended the term ‘‘States’’ to mean the
definition of ‘‘States’’ as it appears in
the Act, which includes all territories
and possessions, or whether Congress
intended to use the word ‘‘State’’ in its
literal sense. We believe, however, that
the best construction of this term, based
on context and the current record before
us, is that ‘‘State’’ means one of the 50
states. Congress knows how to
implement its directives as amendments
to the Communications Act, and chose
not to do so in the LCRA. Thus, there
is no basis for expanding on the
common meaning of the term ‘‘states’’
here to include territories. We also agree
with REC that New Jersey is ‘‘in a
unique situation where there are two
significant out-of-state metro markets
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(New York and Philadelphia) on each
side of the state.’’ With the New York
and Philadelphia Arbitron Metro
markets dominating much of the state,
full power radio stations in New Jersey
generally operate with lower powers
and smaller protected contours than
other full power radio stations. This
could make them uniquely susceptible
to interference from LPFM and FM
translator stations. Moreover, we note
that this provision of the LCRA was
introduced by Senator Lautenburg, the
senior Senator from New Jersey. This
legislative history provides additional
support for our conclusion that the term
‘‘States’’ in section 7(6) was not
intended to include territories.
C. Protection of Translator Input Signals
56. Section 6 of the LCRA requires the
Commission to ‘‘modify its rules to
address the potential for predicted
interference to FM translator input
signals on third-adjacent channels set
forth in Section 2.7 of the technical
report entitled ‘Experimental
Measurements of the Third-Adjacent
Channel Impacts of Low Power FM
Stations, Volume One—Final Report
(May 2003).’’’ Section 2.7 of this report
finds that ‘‘significant interference to
translator input signals does not occur
for [desired/undesired ratio] values of
-34 dB or higher at the translator input.’’
Section 2.7 sets out a formula (‘‘Mitre
Formula’’) that allows calculation of the
minimum LPFM-to-translator separation
that will ensure a desired/undesired
ratio equal to or greater than -34 dB.
57. In the Fourth FNPRM, we noted
that the Commission requires LPFM
stations to remediate actual interference
to the input signal of an FM translator
station but has not established any
minimum distance separation
requirements or other protection
standards. Based on the language of
section 6, which requires the
Commission to ‘‘address the potential
for predicted interference,’’ we
tentatively concluded that our existing
requirements regarding remediation of
actual interference must be recast as
licensing rules designed to prevent any
predicted interference. No commenter
suggested another interpretation of
section 6 of the LCRA. Thus, we affirm
our tentative conclusion that section 6
of the LCRA requires us to adopt rules
designed to prevent predicted
interference to FM translator input
signals on third-adjacent channels.
58. In the Fourth FNPRM, we sought
comment on whether we should require
LPFM applicants to protect the input
signals of only those translators
receiving third-adjacent channel fullservice FM station signals, or whether
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we also should require them to protect
the input signals of translators that
receive third-adjacent channel translator
signals directly off-air. Commenters’
opinions vary on this issue. Prometheus
argues that the protections should be
limited to translators receiving input
signals from FM stations. Prometheus
believes that any protections beyond
those to translators receiving off-air
signals from FM stations would violate
section 5 of the LCRA, which requires
the Commission to ensure that LPFM
stations and FM translators remain
‘‘equal in status.’’ NPR and Western
Inspirational, on the other hand, assert
that the protections should extend to
translators receiving input signals from
other FM translators. NPR claims that,
by its plain terms, section 6 of the LCRA
requires protection of all signal inputs
to translators. NPR notes that this
interpretation is consistent with the
Commission’s current rule protecting
translator input signals. Western
Inspirational asserts that, with increased
spectrum congestion, it has found it
necessary for many of its translators to
use an off-air input from another
translator, not the originating FM
station, in order to obtain a reliable
input signal.
59. After considering the comments
and reviewing the text of the LCRA, we
conclude that LPFM applicants must
protect the reception directly, off-air of
third-adjacent channel input signals
from any station, including full-service
FM stations and FM translator stations.
Section 6 of the LCRA asks the
Commission to address predicted
interference to ‘‘FM translator input
signals on third adjacent channels.’’
This unqualified mandate is consistent
with our rules, which require LPFM
stations to operate without causing
actual interference to the input signal of
an FM translator or FM booster station.
60. We turn next to the issue of a
predicted interference standard for
processing LPFM applications. We
adopt the basic threshold test proposed
in the Fourth FNPRM, which received
overwhelming support from
commenters. This threshold test closely
tracks the interference standard
developed by Mitre but for the reasons
stated below does not require an LPFM
applicant to obtain the receive antenna
technical characteristics that are
incorporated into the Mitre Formula. It
provides that an applicant for a new or
modified LPFM construction permit
may not propose a transmitter site
within the ‘‘potential interference area’’
of any FM translator station that
receives its input signal directly off-air
from a full-service FM or FM translator
station on a third-adjacent channel. For
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these purposes, we define the ‘‘potential
interference area’’ as both the area
within 2 kilometers of the translator site
and also the area within 10 kilometers
of the translator site within the
azimuths from -30 degrees to +30
degrees of the azimuth from the
translator site to the site of the FM
station being rebroadcast by the
translator.
61. As proposed in the Fourth FNPRM
and supported by commenters, we will
permit an LPFM applicant proposing to
locate its transmitter within the
‘‘potential interference area’’ to use
either of two methods to demonstrate
that LPFM station transmissions will
not cause interference to an FM
translator input signal. First, as
indicated in Section 2.7 of the Mitre
Report, an LPFM applicant may show
that the ratio of the signal strength of the
LPFM (undesired) proposal to the signal
strength of the FM (desired) station is
below 34 dB at all locations. Second, an
LPFM applicant may use the equation
provided in Section 2.7 of the Mitre
Report. As requested by Prometheus, we
also will permit an LPFM applicant to
reach an agreement with the licensee of
the potentially affected FM translator
regarding an alternative technical
solution.
62. We do not authorize FM translator
receive antenna locations. However, we
believe that most receive and transmit
antennas are co-located on the same
tower. Accordingly, we proposed to
assume that the translator receive
antenna is co-located with its associated
translator transmit antenna. We received
no comment on this proposal. We
continue to believe that assuming
colocation of translator receive and
transmit antennas will facilitate the use
of the methods described above. We
noted that the Mitre Formula would
require the horizontal plane pattern of
the FM translator’s receive antenna—
information that is not typically
available publicly or in CDBS.
Therefore, we also proposed to allow
the use of a ‘‘typical’’ pattern in
situations where an LPFM applicant is
not able to obtain this information from
the FM translator licensee, despite
reasonable efforts to do so. Both
Prometheus and Common Frequency
support this proposal. No commenter
opposes it. Accordingly, we adopt our
proposal to allow use of a ‘‘typical’’
pattern when an LPFM station makes
reasonable efforts but is unable to obtain
the horizontal plane pattern of an FM
translator station from that station.
63. Prometheus proposes that we
relieve an LPFM applicant of its
obligation to protect an FM translator’s
input signal if, despite reasonable efforts
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to do so, the applicant is unable to
determine the delivery method or input
channel for that translator. We will not
adopt this proposal because the LCRA
requires us to ‘‘address the potential for
predicted interference’’ in this context.
We lack authority to adopt a processing
rule that abdicates this responsibility.
For this same reason, we also reject
Prometheus’ proposal to relieve an
LPFM station applicant from this
protection obligation if a translator
licensee fails to maintain accurate and
current Commission records regarding
its primary station and input signal. In
any event, we note that we specify the
primary station call sign, frequency and
community of license in FM translator
authorizations. In addition, we require
each FM translator licensee to identify
its primary station when filing its
renewal application. We strongly
recommend that FM translator licensees
update the Commission if they have
changed their primary stations since
they last filed renewal applications.
64. We proposed to dismiss as
defective an LPFM application that
specifies a transmitter site within the
third-adjacent channel ‘‘potential
interference area’’ but fails to include an
exhibit demonstrating lack of
interference to the off-air reception by
that translator of its input signal. We
proposed to permit an LPFM applicant
to seek reconsideration of the dismissal
of its application and to request
reinstatement nunc pro tunc. We also
proposed that an LPFM applicant
seeking reconsideration and
reinstatement nunc pro tunc
demonstrate that its proposal would not
cause any predicted interference using
either the undesired/desired ratio or the
Mitre Formula discussed above.
Commenters support these proposals.
We continue to believe it is appropriate
to treat an application dismissed on
these grounds the same as an
application dismissed for violation of
other interference protection
requirements. Accordingly, we adopt
our proposal to allow an applicant to
seek reconsideration and reinstatement
nunc pro tunc by making one of the
showings discussed herein. In addition,
consistent with our decision to permit
applicants to do so at the application
filing stage, we will permit applicants to
reach an agreement with the licensee of
the potentially affected FM translator
regarding alternative technical
solutions.
D. Other Rule Changes
65. The Fourth FNPRM proposed
changes to our rules intended to
promote the LPFM service’s localism
and diversity goals, reduce the potential
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for licensing abuses, and clarify certain
rules. We sought comment on whether
the proposed changes were consistent
with the LCRA and whether they would
promote the public interest. We discuss
each proposed change in turn below.
1. Eligibility and Ownership
a. Requirement That Applicants Remain
Local
66. The LPFM service is reserved
solely for non-profit, local
organizations. In the Fourth FNPRM, we
expressed concern that, because our
rules define ‘‘local’’ in terms of
‘‘applicants’’ and their eligibility to
‘‘submit applications,’’ applicants and
licensees might not understand that the
localism requirement extends beyond
the application stage. We proposed to
clarify this by revising § 73.853(b) to
read: ‘‘Only local applicants will be
permitted to submit applications. For
the purposes of this paragraph, an
applicant will be deemed local if it can
certify, at the time of application, that
it meets the criteria listed below and if
such applicant continues to satisfy the
criteria at all times thereafter * * *.’’
67. Prometheus and SOPR support
our proposal. Prometheus notes that to
require otherwise (i.e., to require that an
organization be local only at the time it
submits its application) ‘‘would
controvert the LCRA and the policies of
the Commission.’’ SOPR asserts that this
clarification may prevent abuse.
Catholic Radio Association (‘‘CRA’’)
suggests language it believes will better
achieve our policy objective.
68. Given the limited reach of LPFM
stations, we continue to believe that
LPFM entities must be local at all times
and we will clarify that requirement by
amending § 73.853(b). At CRA’s
suggestion, we will adopt language
slightly different from that originally
proposed. Our revised rule (with the
new language underlined) will read:
‘‘Only local organizations will be
permitted to submit applications and to
hold authorizations in the LPFM service.
For the purposes of this paragraph, an
organization will be deemed local if it
can certify, at the time of application,
that it meets the criteria listed below
and if it continues to satisfy the criteria
at all times thereafter * * *.’’ We
address changes we proposed to the
criteria used to define ‘‘local,’’ later in
this decision.
b. Cross-Ownership of LPFM and FM
Translator Stations
69. From the outset, the Commission
has prohibited common ownership of an
LPFM station and any other media
subject to the Commission’s ownership
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rules. This prohibition fosters one of the
most important purposes of establishing
the LPFM service—‘‘to afford small,
community-based organizations an
opportunity to communicate over the
airwaves and thus expand diversity of
ownership.’’ In the Fourth FNPRM, we
sought comment on whether to allow
LPFM station licensees to own or hold
attributable interests in one or more FM
translator stations. We noted that this
could enable LPFM stations to expand
their listenership and provide another
way for FM translators to serve the
needs of communities. We asked
whether it was possible to achieve such
benefits without changing the extremely
local nature of the LPFM service. We
further asked whether we should limit
cross-ownership of FM translators and
LPFM stations by, for example,
requiring that (1) any cross-owned FM
translator rebroadcast the programming
of its co-owned LPFM station; (2) the 60
dBu contours of the co-owned LPFM
and FM translator stations overlap; and/
or (3) the co-owned LPFM and FM
translator stations be located within a
set distance or geographic limit of each
other. Finally, we asked whether to
permit an LPFM station to use
alternative methods to deliver its signal
to a commonly owned FM translator.
70. A few commenters oppose crossownership. These commenters express
concerns about the impact of LPFM/FM
translator cross-ownership on the local
character of the LPFM service and the
availability of spectrum for new LPFM
stations. NPR points out that the
Commission, in creating the LPFM
service, considered but ultimately
rejected the option of allowing crossownership of LPFM and other broadcast
stations, finding that its interest in
providing for new voices to speak to the
community and providing a medium for
new speakers to gain broadcasting
experience would be best served by
barring cross-ownership.
71. In contrast, many commenters
support LPFM/FM translator crossownership. REC and Nexus/Conexus
assert that cross-ownership would
enable LPFM stations to better reach
their intended communities. REC
observes that FM translator stations
owned by unrelated entities have been
rebroadcasting LPFM signals for over a
decade. REC does not believe that
limited common ownership of FM
translator and LPFM stations would
change the nature of the LPFM service.
National Lawyers Guild and Media
Alliance state that translators might be
useful if a terrain obstruction blocks an
LPFM signal within the LPFM station’s
primary contour. Several commenters
contend that cross-ownership could
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enhance localism because many
communities are larger than the typical
reach of an LPFM station’s signal. They
contend that FM translators could allow
stations to serve their entire intended
service area, such as a single county.
72. Most commenters qualify their
support for cross-ownership, suggesting
various limits or restrictions to ensure
that any co-owned FM translator
enhances an LPFM station’s local
mission. Commenters support (1)
establishing a distance or geographic
limit on FM translator cross-ownership,
(2) requiring the service contours of coowned LPFM and FM translator stations
to overlap; (3) limiting the number of
FM translators an LPFM licensee may
own to a ‘‘modest’’ number, such as one
or two; and/or (4) requiring co-owned
translators to rebroadcast only the LPFM
station. Commenters also support
requiring an LPFM station to feed the
FM translator with an off-air signal, the
same delivery restriction that applies to
non-reserved band FM translators.
73. We believe that commenters on
both sides of this issue raise valid
points. As many observe, use of FM
translators to rebroadcast LPFM stations
could be beneficial, improving local
service to oddly-shaped communities
and to rural communities that could
receive, at best, only partial LPFM
coverage. However, as others aptly note,
cross-ownership without adequate
safeguards poses a potential danger to
the local character of the LPFM service.
On balance, we believe that the benefits
of FM translator ownership by LPFM
licensees will outweigh any
disadvantages, provided that we take
steps to limit potential risks.
74. Accordingly, we will amend
§ 73.860 of our rules to allow LPFM/FM
translator cross-ownership. We will
limit cross-ownership, however, in
order to prevent large-scale chains and
‘‘leapfrogging’’ into unconnected,
distant communities. We adopt the
following five limits on crossownership, which are intended to
ensure that the LPFM service retains its
extremely local focus. First, we will
permit entities—other than Tribal
Nation Applicants—to own or hold
attributable interests in one LPFM
station and a maximum of two FM
translator stations. Second, we will
require that the 60 dBu contours of a
commonly-owned LPFM station and FM
translator station(s) overlap. Third, we
will require that an FM translator
receive the signal of its co-owned LPFM
station off-air and directly from the
LPFM station, not another FM translator
station. Fourth, we will limit the
distance between an LPFM station and
the transmitting antenna of any co-
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owned translator to 10 miles for
applicants in the top 50 urban markets
and 20 miles for applicants outside the
top 50 urban markets. An LPFM station
may use either its transmitter site or the
reference coordinates of its community
of license to satisfy these distance
restrictions. Fifth, we will require the
FM translator station to synchronously
rebroadcast the primary analog signal of
the commonly-owned LPFM station (or
for ‘‘hybrid’’ stations, the digital HD–1
program-stream) at all times.
75. We believe that allowing crossownership of an LPFM station and up
to two FM translator stations will
provide maximum flexibility, while the
requirement that these translators link
directly to their commonly-owned
LPFM station rather than to each other
will prevent the type of chainednetworks of concern to commenters. To
keep the service provided by the LPFM/
FM translator combinations locally
focused, we will limit the placement of
co-owned FM translators to conform to
the same ten- and twenty-mile distances
which define ‘‘local’’ applicants in the
top 50 and all other markets,
respectively. We believe that such a
requirement is more easily understood
and achieved than alternatives phrased
in terms of a signal’s ability to stay
within political boundaries of a county
or city. Our requirement that an FM
translator rebroadcast the primary signal
of its co-owned LPFM station addresses
Grant County’s concern that LPFM
stations may begin to broadcast multiple
digital streams and that stations
operating in such a hybrid mode might
use translators to network secondary,
less locally-oriented programming
rather than the station’s primary
program stream. We are aware of only
one LPFM station currently operating in
hybrid mode, so this issue is currently
of limited applicability. Nevertheless,
we adopt Grant County’s suggestion that
co-owned translators simultaneously
rebroadcast the LPFM station’s analog
programming, as a forward-looking
protection to preserve the service’s local
nature as more LPFM stations avail
themselves of technological advances.
We further agree with commenters that
alternative signal delivery of LPFM
signals to FM translators could
regionalize LPFM service. Accordingly,
we will require that an FM translator
receive the signal of its co-owned LPFM
station off-air and directly from the
LPFM station itself in order to maintain
the service’s local character.
c. Ownership Issues Affecting Tribal
Nations
76. We posed additional ownershiprelated questions in the Fourth FNPRM,
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including whether Tribal Nations are
eligible and, if not, whether they should
be eligible to own LPFM stations. We
also sought comment on whether they
should be permitted to own more than
one LPFM station and/or to own or hold
an attributable interest in an LPFM
station in addition to a full-power
station. We address each of these
proposals below.
77. Basic Eligibility. § 73.853 of the
rules currently provides for the
licensing of an LPFM station to a state
or local government, but does not
explicitly establish the eligibility of a
Tribal Nation Applicant.
Notwithstanding this omission, it is
well established that Tribal Nations are
inherently sovereign Nations, with the
obligation to ‘‘maintain peace and good
order, improve their condition, establish
school systems, and aid their people in
their efforts to acquire the arts of
civilized life,’’ within their
jurisdictions. The Commission, as an
independent agency of the United States
Government, has an historic federal
trust relationship with Tribal Nations,
and a longstanding policy of promoting
Tribal self-sufficiency and economic
development. To this end, the
Commission has taken steps to aid in
their efforts to provide educational and
other programming to their members
residing on Tribal Lands, as well as to
assist them in acquiring stations for
purposes of business and commercial
development.
78. In view of our commitment to
assist Tribal Nations in establishing
radio service on Tribal lands and our
consideration of whether to include a
Tribal Nation selection criterion in the
LPFM comparative analysis, in the
Fourth FNPRM we proposed to
recognize explicitly the eligibility of
Tribal Nation Applicants to hold LPFM
licenses. We proposed to rely on the
definitions of the terms ‘‘Tribal
applicant’’ and ‘‘Tribal lands’’ as they
are currently defined in our rules
governing full-power NCE FM licensing.
By specifically cross-referencing the
definition of ‘‘Tribal applicant’’ set forth
in § 73.7000 of the rules, which includes
a reference to the term ‘‘Tribal
coverage,’’ we implicitly proposed to
incorporate the definition of ‘‘Tribal
coverage’’ set forth therein.
79. Commenters, including NPM and
NCAI, supported without significant
discussion the proposal to expand the
LPFM eligibility rule to include Tribal
Nation Applicants. No commenter
opposed this proposal. Accordingly, we
will amend § 73.853(a) to clarify that
Tribal Nation Applicants are eligible to
hold LPFM licenses. This rule
amendment further underscores the
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Commission’s commitment to recognize
the sovereignty of Tribal Nations and to
ensure their equal treatment under our
rules. However, we will not, as
originally proposed, rely on the
definition of ‘‘Tribal applicant’’ or
‘‘Tribal coverage’’ currently used in the
NCE FM context. The definition of
‘‘Tribal coverage’’ set forth in the NCE
FM rules includes a coverage
requirement and a requirement that the
proposed station serve at least 2,000
people living on Tribal Lands. As NPM
and NCAI note, the limited scope of
LPFM coverage and the scattered
populations on lands occupied by Tribal
Nations warrant a departure from the
definition of ‘‘Tribal coverage’’ set forth
in § 73.7000. Unlike NPM and NCAI,
however, we believe that not only the
2,000 person threshold but also the
coverage requirements are unsuitable for
the LPFM context. Instead, for LPFM
licensing purposes, we will define a
‘‘Tribal applicant’’ by retaining the
requirement that the applicant be a
Tribe or entity that is 51 percent or more
owned or controlled by a Tribe. Such
action is consistent with the localism
and diversity goals of the LPFM service
and will better achieve our goal of
assisting Tribal Nations in establishing
radio service to their members on Tribal
Lands. Tribal stations currently account
for less than one-third of one percent of
the more than 14,000 radio stations in
the United States. Thus, it is selfevident that expanding Tribal radio
ownership opportunities will help bring
needed new service to chronically
underserved communities. Moreover,
restricting ownership to Tribes and
Tribally controlled entities, which are
obligated to preserve their histories,
languages, cultures and traditions, will
promote the licensing of stations to
entities that are uniquely capable of
providing radio programming tailored to
local community needs and interests.
80. Finally, as NPM and NCAI
propose, we will consider a Tribal
Nation Applicant local throughout its
Tribal lands, so long as such lands are
within the LPFM’s station’s service area.
We are persuaded that this better
recognizes the sovereign status of Tribal
Nations than our original proposal to
consider a Tribal Nation Applicant local
only if it proposed to locate the
transmitting antenna of the proposed
LPFM station on its Tribal lands.
Moreover, this is consistent with the
rules applicable to Tribal Nations and
state and local governments operating
full-service NCE–FM and Public Safety
land mobile services.
81. Ownership of Multiple LPFM
stations. The Commission currently
prohibits entities from owning more
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than one LPFM station unless they are
‘‘[n]ot-for-profit organizations with a
public safety purpose.’’ This prohibition
is intended to further diversity of
ownership and foster a local,
community-based LPFM service. In the
Fourth FNPRM, we sought comment on
whether to permit Tribal Nation
Applicants to seek more than one LPFM
construction permit to ensure adequate
coverage of Tribal lands. For instance,
we noted that ownership of multiple
LPFM stations might be appropriate if
Tribal Nation Applicants seek to serve
large, irregularly shaped or rural areas
that could not be covered adequately
with one LPFM station. We explained
that we believed that permitting Tribal
Nations to hold more than one LPFM
license could advance the Commission’s
efforts to enhance the ability of Tribal
Nations to produce programming
tailored to their specific needs and
cultures, and expand Tribal Nation
LPFM station ownership opportunities.
We questioned, however, whether we
should limit ownership of multiple
LPFM stations by a Tribal Nation
Applicant to situations where channels
also are available for other applicants,
thereby eliminating the risk that a new
entrant would be precluded from
offering service. Finally, we sought
comment on whether to implement this
policy through amendment of
§ 73.855(a) of the rules or by rule
waivers.
82. A number of commenters support
Tribal Nation ownership of multiple
LPFM stations on Tribal lands to permit
more complete coverage than would be
achieved with a single LPFM station.
NPM and NCAI note that Tribal Nations
already are eligible to own multiple
LPFM stations as governmental entities
under the public safety exception to our
ban on multiple ownership of LPFM
stations. They and REC believe Tribal
Nations should also be able to own
multiple LPFM stations for other
noncommercial purposes.
83. Common Frequency, NLG and
Media Alliance believe that multiple
ownership by Tribal Nations is
appropriate on Tribal lands, and in rural
areas and small towns where there
would be few other organizations
interested in applying for LPFM
stations. REC, however, would allow
Tribal Nation Applicants to own or hold
attributable interests in multiple LPFM
stations only if Tribal lands constitute at
least 50 percent of the land area covered
by each additional LPFM station
licensed to a Tribal Nation Applicant.
84. CRA, Matt Tuter (‘‘Tuter’’) and
William Spry (‘‘Spry’’) urge us to
eliminate the ban on multiple
ownership of LPFM stations altogether.
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CRA and Tuter contend that
maintaining multiple ownership
restrictions for all applicants except for
Tribal Nation Applicants is mistaken
‘‘because it proceeds from a false notion
that only Tribal governments can serve
the interests of Tribal Americans.’’ Spry,
on the other hand, argues that allowing
multiple ownership of LPFM stations is
no different than permitting crossownership of an LPFM station and FM
translator stations. According to Spry,
‘‘Multiple licenses are multiple licenses.
The service should not matter.’’
85. We will allow Tribal Nation
Applicants to seek up to two LPFM
construction permits to ensure adequate
coverage of Tribal lands. Our rules
already permit governments, including
Tribal Nations, to own multiple LPFM
stations for public safety purposes,
provided that they designate one
application as a priority and provided
that non-priority applications do not
face MX applications. Consistent with
our decision above, we will permit each
such co-owned LPFM station to
retransmit its signal over two FM
translator stations, creating the potential
for a Tribal Nation Applicant to have
attributable interests in a total of two
LPFM stations and four FM translator
stations. We believe that this action will
significantly further opportunities for
LPFM service by Tribal Nations to their
members. We will not eliminate our
prohibition on multiple ownership
altogether as CRA, Tuter and Spry urge.
In the Fourth Report and Order in this
proceeding we found that limited
licensing opportunities remain for
future LPFM stations in many larger
markets while abundant spectrum is
available in the more sparsely populated
areas where Tribal Nation stations
would operate predominantly.
Moreover, the voluminous record of this
proceeding testifies to the unmet
demand for community radio stations.
Given the imbalance between spectrum
supply and applicant demand in larger
markets, eliminating the current
prohibition entirely could undermine
the LPFM service goal to promote
diversity of ownership. Nor will we
restrict Tribal Nation ownership of
multiple LPFM stations as proposed by
REC. Tribal Nation Applicants will need
to satisfy our localism requirement in
order to be eligible to hold LPFM
licenses. We believe this will provide
adequate assurance that Tribal Nation
ownership of multiple LPFM stations
furthers our goal of promoting service to
Tribal lands and members.
86. Finally, we note that, in the past,
the Commission has prohibited an
LPFM applicant from filing more than
one application in a filing window. In
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doing so, it relied upon the fact that ‘‘no
one may hold an attributable interest in
more than one LPFM station’’ and noted
that ‘‘a second application filed by an
applicant in [a] window would be
treated as a ‘conflicting’ application
subject to dismissal under Section
73.3518.’’ As discussed above, we are
creating a limited exception to the ban
on multiple ownership of LPFM stations
for Tribal Nation Applicants.
Accordingly, we will permit Tribal
Nation Applicants to file up to two
applications in a filing window.
87. Cross-Ownership of LPFM and
Full Power Stations. We also sought
comment on whether to permit a fullservice radio station permittee or
licensee that is a Tribal Nation
Applicant to file for an LPFM station
and hold an attributable interest in such
station. As discussed previously, our
rules prohibit cross-ownership in order
‘‘to afford small, community-based
organizations an opportunity to
communicate over the airwaves and
thus expand diversity of ownership.’’
We stated that we believed that adding
an exception for Tribal Nations would
enhance their ability to provide
communications services to their
members on Tribal lands without
significantly undermining diversity of
ownership. We asked commenters to
discuss whether such an exception
should be limited to situations where
the Tribal Nation Applicant
demonstrates that it would serve
currently unserved Tribal lands or
populations.
88. Few commenters discussed this
proposal. NPM, NCAI and Common
Frequency express general support. CRA
supports cross-ownership of LPFM and
full-power stations but believes this
option should be available to all
applicants. REC supports the proposal
but would impose certain crossownership restrictions.
89. After considering the comments,
we do not believe that there is a
sufficient record on which to modify
our rules to provide for Tribal Nation
cross-ownership of LPFM and fullservice stations. The record at this time
does not demonstrate that this is
necessary or would provide significant
public interest benefit. A Tribal Nation
with an LPFM authorization may file at
any time a rulemaking petition for a
Tribal allotment, provided that it
pledges to divest the LPFM station.
Although we recognize that crossownership could permit a Tribal Nation
to program separately for different
audiences, we remain concerned that
this type of cross-ownership might
undermine the diversity goals of the
LPFM service. It is also not clear, on the
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record before us, how it would advance
our goal of expanding service to Tribal
lands and members. Finally, the record
did not identify a demonstrated need
unique to Tribal Nations that this
change would address. Accordingly, we
decline at this time to adopt a crossownership exception that would allow a
Tribal Nation Applicant to hold both
LPFM and full-power radio station
authorizations. A Tribal Nation
Applicant that can demonstrate that a
waiver would advance our LPFM goals,
and advance our goal of expanding
service to Tribal lands and members or
is otherwise in the public interest, may
seek a waiver of this ownership
restriction. Moreover, in light of the
trust relationship we share with
federally recognized Tribal Nations, the
Commission will endeavor, through
efforts coordinated by the Office of
Native Affairs and Policy and the Audio
Division, to engage in further
consultation with Tribal Nations and
coordination with inter-Tribal
government organizations on this crossownership issue.
d. Ownership of Student-Run Stations
90. Two commenters ask us to make
changes to the exception to the crossownership prohibition for student-run
stations, which is set forth in § 73.860(b)
of the rules. Currently, we permit an
accredited school that has a nonstudent-run full power broadcast station
also to apply for an LPFM station that
will be managed and operated by
students of that institution, provided
that the LPFM application is not subject
to competing applications. The
Commission dismisses the student-run
LPFM application if competing
applications are filed.
91. REC and Common Frequency
propose that we consider applications
for student-run stations even if there are
competing applications, so that all
applicants can participate in settlements
and time sharing negotiations. We agree
that it would serve the public interest to
eliminate this automatic dismissal
requirement. When the Commission
first adopted this exception to the
general prohibition on cross-ownership,
it was seeking to strike a balance
between an LPFM service comprised
entirely of new entrants and one which
would enable new speakers including
students to gain experience in the
broadcast field, even if their universities
held other broadcast interests. The
Commission believed that the exception
properly balanced the interests of local
groups in acquiring a first broadcast
facility and of university licensees in
providing a distinct media outlet for
students. Our decision today, however,
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alters the LPFM comparative process by
adding a selection criterion for
applicants with no other broadcast
interests. Given this change, we believe
it is appropriate to eliminate our
limitation on eligibility for student-run
LPFM applications by schools with nonstudent run full power broadcast
stations.
92. Common Frequency also proposes
that we allow university systems with
multiple campuses serving distinct
regions, such as those in New York,
Georgia, and California, to apply for
student-run LPFM stations at any
campus without another station,
provided that the 60 dBu service
contours do not overlap. For example,
Common Frequency argues that the
newest campus of the University of
California at Merced could benefit from
a student-run LPFM station but cannot
apply because the university owns fullpower stations at other campuses. We
do not believe that a rule change is
needed, however, concerning multiple
campuses. Under our rules, a local
chapter of a national or other large
organization is not attributed with the
interests of the larger organization,
provided that the local chapter is
separately incorporated and has a
distinct local presence and mission. In
2000, the Commission clarified that this
LPFM attribution exception for ‘‘local
chapters’’ applies to schools that are
part of the same school system,
including university systems with
multiple campuses, provided that the
‘‘local chapter’’ seeks its own licenses.
Thus, in Common Frequency’s example,
the University of California’s ownership
of full power broadcast stations licensed
to separate campus institutions would
not prevent the University of California
at Merced from applying for an LPFM
new station construction permit for a
student-run station. We note, however,
that ‘‘local chapters’’ of larger
organizations that hold broadcast
interests will not qualify for a ‘‘new
entrant’’ point, as discussed below. Any
broadcast interests held by the ‘‘parent’’
organization will be considered
attributable for the purposes of this
criterion only.
2. Selection Among Mutually Exclusive
Applicants
93. The Commission accepts
applications for new LPFM stations or
major changes to authorized LPFM
stations only during filing windows.
After the close of an LPFM filing
window, the Commission makes mutual
exclusivity determinations with regard
to all timely and complete filings. The
staff then processes any applications not
in conflict with any other application
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filed during the window, and offers
applicants identified as MX with other
applicants the opportunity to settle their
conflicts. If conflicts remain, the
Commission applies the LPFM point
system. Specifically, under our current
rules, the Commission awards one point
to each applicant that has an established
community presence, one point to each
applicant that pledges to operate at least
twelve hours per day, and one point to
each applicant that pledges to originate
locally at least eight hours of
programming per day. The Commission
takes the pledges made by applicants
seriously. We will consider complaints
that a licensee is not making good on a
pledge it made during the application
process and take appropriate
enforcement action if we find a licensee
has not followed through on its pledge.
Moreover, as we noted in establishing
the point system, ‘‘As with other
broadcast applications, the Commission
will rely on certifications but will use
random audits to verify the accuracy of
the certifications.’’ In the event of a tie,
the Commission employs voluntary time
sharing as the initial tie-breaker. As a
last resort, the Commission awards each
tied and grantable applicant an equal,
successive and non-renewable license
term of no less than one year, for a
combined total eight-year term.
94. In the Fourth FNPRM, we
proposed certain changes to our existing
criteria, suggested that we award a point
to Tribal Nation Applicants, and
requested suggestions for new selection
criteria that would improve the
efficiency of the selection process. As
discussed in more detail below, we
adopt a revised point system. We will
award one point to applicants for each
of the following: (1) Established
community presence; (2) local program
origination; (3) main studio/staff
presence (with an extra point going to
those applicants making both the local
program origination and main studio
pledges); (4) service to Tribal lands by
a Tribal Nation Applicant; and (5) new
entry into radio broadcasting. We will
continue to accept voluntary timeshare
arrangements, and will continue to
accept partial settlements not involving
timeshare arrangements, as an
additional means to eliminate ties,
discourage gamesmanship in
timesharing arrangements, and reduce
involuntary timeshare outcomes. We
eliminate successive timeshare
arrangements as the last resort, and will
instead allow remaining qualified
applicants to share time designated in
the manner described below. Finally,
we revise our rules to extend mandatory
time sharing to LPFM stations that meet
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the Commission’s minimum operating
requirements but do not operate 12
hours per day each day of the year.
a. Point System Structure, and
Elimination of Proposed Operating
Hours Criterion
95. REC and Prometheus each offer
modifications to the current point
system, but also submit alternative or
enhanced methods by which to resolve
MX groups. Each party maintains that
the purpose of its proposed structure is
to decrease the number of potential
timeshares and successive licensees.
Prometheus proposes a multistage
‘‘waterfall evaluation process’’ in which
there are multiple opportunities for a
single winner to emerge. It notes that,
under this system, the Commission
would be able to emphasize its ‘‘top
priority’’ criteria by placing them in the
first tier, and explains the process as
follows:
In this system, each criterion would be
worth a single point and would be placed—
according to priority—into one of several
tiers. The Commission would first compare
applications using only the criteria in ‘‘Tier
1.’’ If, after relying only on the criteria in Tier
1, a single applicant receives more points
than any of its competitors, that winning
applicant becomes the tentative selectee.
However, in the event of a tie between two
or more applicants with the most points,
those tied applicants would then advance to
Tier 2. Applicants with fewer points would
be dismissed. These procedures would then
be repeated to evaluate the remaining
applicants using Tier 2 and, if necessary, Tier
3 criteria.
96. REC, on the other hand, suggests
that we retain the established
community presence and local
programming criteria, and award
additional points as follows:
—One point to any applicant that is a
municipal or state agency eligible
under Part 90 of the rules and
provides emergency service;
—One point to any applicant that is an
accredited school and will use the
proposed LPFM station for a ‘‘hands
on’’ educational experience in
broadcasting;
—One point to any applicant proposing
to broadcast children’s programming
for at least 3 hours per week;
—One point to any applicant that will
maintain a main studio staff presence
for at least 40 hours per week;
—One point to any applicant
volunteering to maintain an online
public file;
—One point to any applicant that is
owned or controlled by a recognized
Tribal Nation that currently has no
attributable interests in any other
broadcast facility, proposes a
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transmitter site located within the
boundaries of a Tribal Nation, and has
not received a point under this
criterion in connection with another
LPFM station for which the applicant
holds a construction permit or
license;
—One point to any applicant that
pledges to create a public access
broadcasting regime that solicits and
presents programming created by and
directly submitted by members of the
public within the proposed LPFM
station’s service contour; and
—One point to any applicant willing to
accept a time share agreement in lieu
of being allowed to broadcast full
time.
97. We continue to believe that our
basic points structure remains the most
effective and efficient method of
resolving mutual exclusivities. This
conclusion is based in part on our
recent experience with NCE
applications filed during the 2007 and
2010 windows, where we have
successfully resolved hundreds of
groups of MX applications based on a
very similar point system process. We
decline to adopt Prometheus’ proposed
‘‘waterfall’’ system. While doing so may
reduce the likelihood of involuntary
timesharing outcomes, we do not
believe, as Prometheus suggests, that it
would ‘‘reduce the administrative
complexity’’ of the comparative process
generally. Indeed, we believe that it
would have the opposite effect, as it
would also create the potential for
‘‘waterfall’’ levels of comparative
analysis and re-analysis. For example,
for every successful challenge to the
tentative selection of an applicant in a
tiered category, the Commission would
be forced to re-evaluate the group as a
whole to determine which applicant, if
any, should proceed to the next tier. If
the new applicant in the next tier was
successfully challenged, the
Commission would have to repeat the
evaluation process. This outcome is
much less efficient than the current
points system, which allows the
Commission to weigh all points claimed
by all applicants simultaneously. Even
if we were to conclude that this
approach was administratively feasible,
we believe that we would need a far
more comprehensive record, developed
through a supplemental rulemaking,
before we could attempt to ‘‘rank’’ the
LPFM selection criteria into ‘‘tiers.’’
98. As discussed below, however, we
adopt some of the new criteria suggested
by REC, which we believe will enhance
the localism and diversity policies
underlying the LPFM service and
anticipate will reduce the number of
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involuntary timesharing outcomes. We
reject the remaining criteria suggested
by REC and others, as they fail to
demonstrate any unmet need that
warrants preferences for particular types
of programming, would be difficult and
time-consuming to administer or
enforce, or would not substantially
further the Commission’s localism goals.
99. Finally, REC, Prometheus and
others suggest that we eliminate the
proposed operating hours criterion,
noting that, because of automation
software, ‘‘even one-person LPFM
stations easily meet this standard.’’ We
agree with the commenters that this
criterion does not meaningfully
distinguish among applicants. Thus, we
eliminate it.
b. Established Community Presence
100. Currently, under the LPFM
selection procedures for MX LPFM
applications set forth in § 73.872 of the
rules, the Commission awards one point
to an applicant that has an established
community presence. The Commission
deems an applicant to have such a
presence if, for at least two years prior
to application filing, the applicant has
been headquartered, has maintained a
campus or has had three-quarters of its
board members residing within ten
miles of the proposed station’s
transmitter site. In the Fourth FNPRM,
we proposed to revise the language of
§ 73.872(b)(1) to clarify that an applicant
must have had an established local
presence for a specified period of time
prior to filing its application and must
maintain that local presence at all times
thereafter. We noted that while
§ 73.872(b)(1) currently does not include
the requirement that an applicant
maintain a local presence, we believed
that was the only reasonable
interpretation of the rule. Commenters
that addressed this proposal agreed that
this was a reasonable interpretation.
Accordingly, we adopt this proposed
revision.
101. In addition, we sought comment
on other changes to the rule. First, we
requested comment on whether to revise
our definition of established community
presence to require that an applicant
have maintained such a presence for a
longer period of time, such as four
years. Commenters largely disagreed
with this proposal, asserting that the
duration of a nonprofit organization’s
existence is not indicative of its level of
responsiveness to local concerns. Others
noted that the proposal could ‘‘shut
out’’ suitable applicants or have
‘‘unintended discriminatory
consequences.’’ A few commenters,
however, generally embraced our
proposal to maintain the two-year
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threshold but supported an award of an
additional point to applicants that have
a substantially longer established
community presence (e.g., four years).
102. We continue to believe that
established local organizations are more
likely to be aware of community needs
and better able to ‘‘hit the ground
running’’ upon commencement of
broadcast operations. However, we are
persuaded by commenters that
organizations that have been established
in the community for four years will not
necessarily be more responsive to
community needs or likely to establish
a viable community radio station than
those who have been present for two.
We likewise agree that extending the
length to four years may unnecessarily
limit the pool of qualified organizations.
Finally, parties supporting a ‘‘bonus’’
point for applicants with more
established ties to the community failed
to offer any demonstration of greater
responsiveness supporting its adoption.
Accordingly, we will retain the current
two-year standard.
103. We also solicited comment on
whether we should modify
§ 73.872(b)(1) to extend the established
community presence standard to 20
miles in rural areas. We will adopt this
modification as proposed. We note that
the Commission extended the ‘‘local’’
standard in § 73.853(b) to 20 miles only
for rural areas, based on a record
indicating special challenges for rural
stations. While many commenters
support an extension of the established
community presence standard to 20
miles in all areas, not just rural areas,
we are unconvinced that limiting our
extension of the standard to rural areas
only is unduly harsh or will create
disadvantages to applicants with
geographically dispersed board member
residences, as some commenters
suggest.
104. Finally, we sought comment on
whether to allow local organizations
filing as consortia to receive one point
under the established community
presence criterion for each organization
that qualifies for such a point. Most
commenters rejected this proposal,
noting that it would encourage
gamesmanship and unethical behavior.
Amherst Alliance and others state that
they are ‘‘deeply concerned that
unethical LPFM applicants could
manufacture ‘paper partners’ in order to
gain a dramatic advantage over their
rivals,’’ predicting that the paper
partners would eventually either leave
the scene or simply ‘‘rubber stamp’’ the
station operator’s actions. Prometheus
notes that the proposal could lead to
discrimination, and potentially lead to a
contest ‘‘favoring the best connected,
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best resourced groups’’ in a given
community. It further notes that nonconsortium applicants competing with
consortium applicants would almost
always lose, even if the non-consortium
applicants have received points that are
arguably more ‘‘directly related’’ to a
licensee’s potential to serve its
community. Finally, Common
Frequency notes that the proposal
would ‘‘discourage diversity,’’
effectively rewarding consortia
organizations that hold similar
viewpoints over single minority groups,
such as foreign-language speakers and
LGBT organizations.
105. The few commenters supporting
the proposal note that the consortia
proposal could speed up the licensing
process by lessening the Commission’s
burden of sorting out MX applications,
and would help avoid involuntary time
sharing by applicants whose proposed
programming formats are incompatible
and likely to confuse potential
audiences. To help deter potential
abuse, Cynthia Conti (‘‘Conti’’) suggests
that the Commission require consortia
applicants to submit with their
applications proof of their intention to
coexist at their future station, such as a
‘‘joint plan of action’’ that would
include descriptions of the participating
organizations, their individual and
collective intentions for the station, and
a proposed programming schedule.
106. We are persuaded by
commenters that the risk of licensing
abuses and the potential for excluding
unrepresented or underrepresented
niche communities far outweigh
potential service benefits or mere
administrative efficiencies. Even if we
were to require supporting
documentation at the application stage,
we would still have no reliable
mechanism, given our limited
administrative resources, to ultimately
ensure that such consortia relationships
are being meaningfully maintained
throughout the license period. Thus, we
do not adopt the consortia proposal.
c. Local Program Origination
107. The Commission currently
encourages LPFM stations to originate
programming locally by awarding one
point to each MX applicant that pledges
to provide at least eight hours per day
of locally originated programming. The
rules define ‘‘local origination’’ as ‘‘the
production of programming, by the
licensee, within ten miles of the
coordinates of the proposed transmitting
antenna.’’ In adopting the local program
origination criterion, the Commission
reasoned that ‘‘local program origination
can advance the Commission’s policy
goal of addressing unmet needs for
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community-oriented radio
broadcasting’’ and concluded that ‘‘an
applicant’s intent to provide locallyoriginated programming is a reasonable
gauge of whether the LPFM station will
function as an outlet for community
self-expression.’’
108. In the Fourth FNPRM, we sought
comment on whether to place greater
emphasis on this selection factor by
awarding two points for this criterion
instead of the current one point.
Alternatively, we sought comment on
whether to impose a specific
requirement that all new LPFM
licensees provide locally-originated
programming. We asked parties
supporting such a requirement to
explain why our prior finding that it
was not necessary to impose specific
requirements for locally originated
programming no longer is valid and to
identify problems or short-comings in
the current LPFM licensing and service
rules that such a change would remedy.
We also asked parties supporting a
locally-originated programming
requirement to address potential
constitutional issues.
109. Many commenters generally
support the adoption of a locally
originated programming obligation, but
provide little or no analysis.
Prometheus, which devotes the most
significant discussion to this issue,
would require every LPFM station to air
at least 20 hours per week of locally
originated programming, maintaining
that such a requirement would more
effectively ensure that a station would
serve community needs, would be
consistent with the Commission’s policy
goal of promoting localism, and would
help remediate the ‘‘drastic decline’’ of
local programming in the media.
Prometheus asserts that today,
approximately 20 percent of all licensed
LPFM stations produce no local
programming whatsoever, and states
that, without such a requirement, a
‘‘significant number’’ of LPFM stations
will not offer any local programming. It
further maintains that a local program
origination requirement is
constitutionally sound, pointing to the
fact that ‘‘federal legislation,
Commission decisions and Supreme
Court precedent support the importance
of local programming* * * and support
Commission actions to adopt contentneutral broadcaster obligations that
embrace substantial broadcaster
discretion.’’ In particular, Prometheus
cites proceedings in which the
Commission has regulated children’s
television and network programming.
110. Several commenters do not agree
with Prometheus’ position, instead
arguing that local program origination
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should remain a comparative criterion.
REC fears that ‘‘during tough times,’’
stations may not have the financial
resources to generate 20 hours weekly of
local programming. Other commenters
observe that local program origination is
‘‘an easily manipulated requirement,’’ is
of ‘‘limited value’’ with no enforcement
mechanism in place, and is not
necessarily more responsive to
community needs than non-local
content. Conti states that, ‘‘given the
concern over the constitutionality of
requiring programming, the addition of
a locally-originated programming
requirement could make LPFM rules
vulnerable to complaints’’ and does not
‘‘think it is worth the risk considering
that the criterion does not necessarily
result in its stated goal.’’
111. After careful consideration of the
record, we decline to impose a local
program origination requirement. When
we first created the LPFM service, we
sought comment on whether to impose
a local program origination requirement.
We noted that listeners benefit from
locally originated programming because
it often reflects needs, interests,
circumstances or perspectives that may
be unique to a community. However, we
also found that programming need not
be locally originated to be responsive to
local needs. Ultimately, we concluded
that the nature of the LPFM service,
combined with eligibility criteria and
preferences, would ensure that LPFM
licensees would provide locally
originated programming or
programming that would otherwise
respond to local needs.
112. Nothing in the record persuades
us that these findings are no longer
valid. The Commission has consistently
maintained that non-local programming
can serve community needs. While
Prometheus points to a decline in the
production of local programming as
support for a local program origination
requirement, it has failed to counter the
argument that non-locally produced
programming can serve community
needs. Indeed, as commenters have
noted, non-local programming can serve
the unique needs of a community. For
instance, a foreign language station may
carry programming ‘‘from home,’’ other
LPFM stations may broadcast public
affairs programming from a neighboring
county, and still other LPFM stations
may broadcast religious programming.
113. We also continue to believe that
the nature of the service inherently
ensures that LPFM stations will be
responsive to community needs. The
record supports this conclusion. Last
year, in the INC Report, we noted
several LPFM ‘‘success’’ stories in
which LPFM stations were serving their
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communities. Moreover, while
Prometheus points to the fact that 20
percent of all LPFM licensees currently
produce no locally originated
programming as evidence of a local
media crisis, we believe this is a ‘‘glass
half empty’’ perspective, and are instead
encouraged by the fact that 80 percent
of all LPFM licensees are producing
some local programming.
114. Moreover, given the current
economic climate, we believe a local
program origination requirement could
unnecessarily restrict LPFM licensees
and jeopardize their financial health.
Many, if not all, of these stations are run
by volunteers and operate on a
shoestring budget. LPFM licensees often
have difficulty finding underwriters to
support their stations. Prometheus
argues that LPFM stations could
arguably afford to produce locally
originated programming. However, our
own records show that, as a whole, the
LPFM service remains financially
vulnerable. This is evidenced by the fact
that, of the 1,286 LPFM construction
permits granted out of the last LPFM
application filing window, only 903
LPFM stations ultimately became fully
licensed. Moreover, 84 of these station
licenses now have either expired or
been cancelled, with nearly half of these
expirations/cancellations occurring in
the last two years. Of the remaining 819
licensed stations, 26 are currently silent.
Given these alarming statistics, we
believe it is essential to provide LPFM
licensees with maximum flexibility to
choose their own programming as a
measure to ensure their continued
viability.
115. Finally, we recognize that
Prometheus’ support of a local program
origination requirement is based on its
belief that this option will most
effectively further the Commission’s
goal of ensuring that the LPFM service
will ‘‘enhance locally focused
community-oriented radio
broadcasting.’’ We agree that this goal is
one of the bedrocks of the LPFM service.
However, we find that there are better,
alternative ways of furthering this goal
without imposing further regulatory
restrictions. Specifically, as discussed in
more detail below, we believe we can
better effectuate our localism goals by
retaining a one-point preference for
local program origination and
supplementing that preference with two
additional selection criteria that award
points to those applicants best
positioned to locally originate
programming. Accordingly, given the
lack of a clear record basis to support its
adoption, we decline to adopt a program
origination requirement for LPFM
stations. In short, while our selection
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criteria seek to promote local
origination, we believe the benefits of
imposing it as a requirement are far
outweighed by the costs to a financially
vulnerable fledgling sector of the
industry.
116. That said, we note that the
comments filed in this proceeding
reflect some misunderstanding of what
constitutes ‘‘locally originated
programming’’ under our previous
orders, and we take this opportunity to
provide additional guidance to current
and prospective LPFM licensees. In the
Second Order on Reconsideration in
this docket, the Commission held that
time-shifted, non-local, satellite-fed
programming does not qualify toward
the local origination pledge.
Commenters indicate that some
licensees believe that such programming
is local provided that it is delivered in
a way other than satellite. This
inference is incorrect. Any non-local
programming, whether delivered by
satellite, over the Internet or other
means, does not qualify as locally
originated programming. Similarly, in
the Third Report and Order, we clarified
that repetitious automated programming
does not meet the definition of local
origination, and specifically stated that
once a station has broadcast a program
twice it can no longer count it as locally
originated. According to commenters,
some LPFM licensees believe that this is
a daily restriction (i.e., cannot repeat
programming more than twice in one
day), while others believe that a
program becomes ‘‘new’’ for local
purposes if musical selections within a
program are re-shuffled. Again, these
inferences are incorrect. Once a station
has broadcast a program twice it can
never again be counted toward the local
program origination pledge. Likewise,
programs that have been ‘‘tweaked’’ or
reorganized do not count toward the
requirement if the underlying program
has already been played twice.
Generally speaking, locally originated
programming—whether locally created
content (e.g., live call-in shows or news
programs), or locally curated content
(e.g., a music program reflecting nonrandom song choices)—must involve a
certain level of local production (i.e.,
creation of new content, in order for the
programming to be considered locally
originated). Each of the examples
discussed above lacks this critical
element. Our deliberations in this
proceeding, including the clarification
we provide today, have been consistent
with this underlying principle.
Accordingly, we will revise § 73.872 of
our rules, as well as the FCC Form 318,
to incorporate these clarifications.
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d. Main Studio
117. REC, Common Frequency and
Prometheus each suggest that we modify
our rules to award one point to
applicants that pledge to maintain a
main studio with a staff presence. They
assert that an organization that
maintains a staffed main studio within
the community served by its LPFM
station will be better resourced to serve
its community’s needs. We agree. The
local program origination selection
criterion was created in part ‘‘to
encourage licensees to maintain
production facilities and a meaningful
staff presence within the community
served by the station.’’ The Commission
has long held that the maintenance of a
main studio is integral to a station’s
ability to serve community needs and
produce programming that is responsive
to those needs. As indicated by
commenters, however, some licensees
have chosen not to maintain a main
studio and have instead originated
programming using automated software,
iPods, or CD players. While applicants
claiming the local program origination
point will retain the discretion to
determine the origination point of their
programming, we believe that a separate
main studio criterion will better
effectuate the intent underlying the
creation of the local program origination
pledge. Accordingly, we will award one
point to any organization that pledges to
maintain a meaningful staff presence
(i.e., staffed by persons whose duties
relate primarily to the station and not to
non-broadcast related activities of
licensee) in a publicly accessible main
studio location that has local program
origination capability for at least 20
hours per week between 7 a.m. and 10
p.m. Staff may be paid or unpaid, and
staffing may alternate among
individuals. We will not require stations
to have ‘‘management’’ staff present
during main studio hours. The main
studio should be located within 10
miles of the proposed site for the
transmitting antenna for applicants in
the top 50 urban markets, and 20 miles
for applicants outside the top 50 urban
markets. We will require applicants to
list the proposed main studio address in
their applications, as well as the local
telephone number to be maintained by
the main studio at all times. Applicants
failing to include this information will
not receive credit for this point.
118. In addition, we will revise
§ 73.872 of our rules to provide that
applicants that claim both the local
program origination point and the main
studio point will receive a total of three
points. We find that the creation of this
‘‘bonus’’ point will more effectively
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foster the production of focused
community-oriented radio programming
than would a general local program
origination requirement, as it will
reward those applicants best situated to
further this goal in a meaningful way.
We believe that an applicant that plans
to originate programming from a main
studio will be in a better position to
provide programming reflecting
community needs and interests than an
applicant that will originate
programming elsewhere. As the
Commission has noted previously, the
maintenance of a main studio in the
station’s community can help ‘‘promote
the use of local talent and ideas,’’ can
‘‘assure meaningful interaction between
the station and the community,’’ and
can ‘‘increase the ability of the station
to provide information of a local nature
to the community of license.’’ Indeed,
both our main studio rules and the
LPFM service were created for the same
purpose: to ensure that stations would
serve as an outlet for community selfexpression. The Commission implicitly
recognized this nexus when it created
the local program origination criterion
as a way to ‘‘advance the Commission’s
policy goal of addressing unmet needs
for community oriented radio
broadcasting’’ and as a means to
encourage licensees to maintain
production facilities. Moreover, these
attributes, of themselves, reflect our core
vision of and animating purpose for
community radio: licensees that make
their stations accessible to their local
communities and that are committed to
responding to unmet local programming
needs.
119. Many LPFM stations fulfill their
local program origination commitments
without the benefit of equipment and
facilities that could be reasonably
characterized as ‘‘main studios.’’ We
also anticipate that some applicants in
the upcoming LPFM window may
conclude that maintaining and staffing a
main studio is not feasible or necessary.
On the other hand, the ‘‘bonus’’ point
will provide a substantial incentive to
applicants to assume these
responsibilities notwithstanding the
associated costs. It is also likely to
permit resolution of mutual
exclusivities based on Commission
policy goals rather than complex tiebreaking procedures and also avoid
voluntary and involuntary time sharing
arrangements—outcomes that many
commenters view negatively. Given
commenters’ general support of local
program origination, our longstanding
policy goal of ensuring that the LPFM
service provides an outlet for local
community voices, and the benefits that
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would result from implementation of a
more robust point system that promotes
this goal, we conclude that the record
supports our award of a total of three
points to those applicants that make
both the local program origination and
main studio pledges.
e. Tribal Nations
120. In the Fourth FNPRM, we sought
comment on whether to give a point to
Tribal Nation Applicants when they
propose new radio services that
primarily would serve Tribal lands. We
proposed to modify § 73.872(b) of our
rules to include a Tribal Nations
criterion. As with our proposed
revisions to the LPFM eligibility
requirements set forth at § 73.853 of the
rules, we proposed to rely on the
definitions of the terms ‘‘Tribal
Applicant,’’ ‘‘Tribal Coverage,’’ and
‘‘Tribal Lands’’ as they are currently
defined in our rules for this comparative
criterion.
121. Commenters largely supported
the creation of a Tribal Nation criterion.
As we stated in the Fourth FNPRM, we
believe that adding this criterion will
further our efforts to increase ownership
of radio stations by Tribal Nation
Applicants and enable Tribal Nation
Applicants to serve the unique needs
and interests of their communities. We
find unpersuasive the argument of NPM
and NCAI that we should create a
‘‘Tribal Priority,’’ i.e., a dispositive
preference, for LPFM Tribal Applicants
as the rules now provide for in the full
power NCE and commercial radio
services. The expansion of Tribal
stations unquestionably advances our
section 307(b) policies. However, as we
have explained, Tribes, which hold
sovereign responsibilities for the welfare
and improvement of their Members, are
well-positioned to advance the localism
and diversity goals of the LPFM service.
Thus, it is reasonable to treat this factor
as we have the other comparative factors
that also advance these same LPFM
goals. Finally, we find no basis in the
record for elevating this criterion to a
dispositive factor. Accordingly, we
adopt our proposal to create a Tribal
Nation point criterion.
122. We will not, as originally
proposed, rely on the definitions of
‘‘Tribal Applicant’’ or ‘‘Tribal
Coverage.’’ For the reasons discussed
above, we instead will define a ‘‘Tribal
Applicant’’ as a Tribe or entity that is 51
percent or more owned and controlled
by a Tribe. We will, however, require
that any Tribal Nation Applicant
claiming a point under the Tribal Nation
criterion propose to locate the
transmitting antenna for its proposed
station on its Tribal lands. While NPM
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and NCAI oppose the imposition of
such a requirement, arguing ‘‘it is easy
to imagine circumstances in which the
site which delivers the best, most
affordable service to Tribal Lands is a
developed antenna site located near, but
not on, Tribal Lands,’’ we are not
persuaded that this requirement will
hinder the provision of LPFM service on
Tribal lands. Many Tribal Nations
occupy unserved or underserved areas.
We believe it is highly unlikely that
there will be developed antenna sites
located near most Tribal lands.
However, in the event that there is a
developed antenna site near, but not on,
the Tribal lands of a Tribal Nation
Applicant and the Tribal Nation
Applicant can demonstrate that the use
of such site will better promote our
goals of increasing ownership of radio
stations by Tribal Nations and enabling
Tribal Nations to serve the unique needs
and interests of their communities, we
will entertain requests to waive the
requirement that the transmitting
antenna for the proposed LPFM station
be located on the Tribal lands of the
Tribal Nation Applicant. Finally, we
note that we will not, as REC proposes,
require a Tribal Nation Applicant to
have no attributable interests in any
other broadcast facility in order to
qualify for a point under the Tribal
Nation criterion. We believe our
adoption of a new entrant criterion
adequately addresses the concerns
underlying REC’s proposal. At bottom,
through its proposal, REC seeks to
ensure that diversity of ownership
remains an important goal underlying
the LPFM service. By adopting a new
entrant criterion, which awards a point
to applicants with no attributable
interests in other broadcast facilities, we
retain an emphasis on diversity of
ownership without deemphasizing the
importance of promoting the provision
of service by Tribal Nation Applicants
to Tribal lands and citizens of Tribal
Nations.
f. New Entrants
123. As discussed above, we are
relaxing our ownership rules to allow
LPFM licensees to own or apply for
other broadcast interests. Among other
things, we are allowing Tribal Nation
Applicants to own up to two LPFM
stations. In response to this revision,
REC suggests that we only allow a Tribal
Nation Applicant to claim a point under
the Tribal Nations criterion if it is
applying for its first LPFM station. We
agree with REC’s proposal to the extent
that it suggests that multiple ownership
should be a relevant factor in our
analysis. Indeed, we raised this issue in
the Fourth FNPRM. However, we
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believe that a Tribal Nation Applicant
should be eligible to receive a point
under the Tribal Nation criterion
regardless of whether or not it owns or
has applied for other LPFM stations,
and that any restriction of a Tribal
Nation Applicant’s eligibility to claim
this point would run contrary to our
commitment to increase the ownership
of radio stations by Tribal Nations and
to increase service to Tribal lands and
citizens of Tribal Nations. However, we
also believe that our selection process
should encourage new entrants to
broadcasting and foster a diverse range
of community voices. We find that
allocating a point to new entrants strikes
the appropriate balance between these
two competing goals. Likewise, adding
a new entrants criterion addresses
concerns raised by REC and Common
Frequency regarding student-run
stations. Accordingly, we will award
one point to an applicant that can
certify that it has no attributable interest
in any other broadcast station.
g. Tiebreakers—Voluntary and
Involuntary Time Sharing
124. As noted above, in the event the
point analysis results in a tie, the
Commission releases a public notice
announcing the tie and gives the tied
applicants the opportunity to propose
voluntary time sharing arrangements.
Some or all parties in an MX group may
enter into a timeshare agreement and
aggregate their points. Where applicants
cannot reach either a universal
settlement or a voluntary time sharing
arrangement, the Commission awards
each tied and grantable applicant in the
MX group an equal, successive and nonrenewable license term of no less than
one year, for a combined total eight-year
term.
125. Several commenters voiced
dissatisfaction with both the voluntary
and involuntary timesharing processes.
REC asserts that we should eliminate
point aggregation in voluntary time
sharing because it ‘‘can lead to
discriminatory behavior intended to
silence [other] voices * * *.’’ As an
alternative, it suggests that applicants
move straight to an involuntary time
sharing process in cases where parties
cannot agree on a voluntary time share
(without aggregating points) or other
settlement arrangement. Under REC’s
proposed process, an applicant would
have the option to select an
‘‘involuntary time share trigger point’’
as a points criterion. In the event of a
tie in an MX group, the involuntary time
share point would be reviewed. At this
point, one of the following scenarios
could take place: (1) If all or no
applicants claim the point, then they
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would all proceed to the time share
process; or (2) if one or some applicants
claim the trigger point, then those
claiming the point would proceed to the
time share process and remaining
applications would be dismissed. Under
REC’s proposal, applicants reaching the
time sharing process would either
voluntarily agree on a time sharing
arrangement, or be subject to a ‘‘last
resort’’ method that would allocate time
to the top three applicants based on the
date of the organization’s establishment
in the community (i.e., the applicant
with the oldest community presence
date would get the first opportunity to
select its time share slot). REC notes that
‘‘an effective time share group should
have no more than three members.’’
126. Brown Student Radio also argues
that allowing a ‘‘partial settlement’’ for
the purposes of aggregating points
invites the potential for abuse in the
LPFM licensing process, where
dominant applicants can effectively
‘‘squeeze out’’ fellow timeshare
applicants by forcing them to accept
minimal and suboptimal air time. It
cites two examples from the last LPFM
filing window in which the dominant
applicant in a timesharing arrangement
claimed virtually all of the shared air
time and left only the required
minimum of 10 hours a week (during
suboptimal air time) for the other
applicants. As such, it urges the
Commission to allow parties to partially
settle, but without the benefit of
aggregating points, or otherwise revise
the share-time rules to increase the
minimum number of hours that must be
awarded to each party to a settlement.
Brown Broadcast Services notes that
settlements involving less than all of the
MX parties were explicitly allowed for
in the full-power NCE filing window of
2007, when the action resulted in a
grantable singleton application and no
new mutual exclusivities were created.
Common Frequency likewise supports
the use of partial settlements involving
technical changes, and additionally
suggests that the Commission set up an
online settlement process that will
allow competing applicants to monitor
for potential gamesmanship.
127. While we are cognizant of the
potential for gamesmanship in the
voluntary timesharing process, we
continue to believe that it is one of the
most efficient and effective means of
resolving mutual exclusivity among tied
LPFM applicants. We are not persuaded
that REC’s proposal, which essentially
eliminates voluntary timesharing as a tie
breaker and replaces it with an
involuntary time sharing regime, will
better serve the public interest. We are
doubtful that a group of unaffiliated
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applicants with different formats,
budgets and levels of broadcast
experience would work together to
operate a station under a forced time
sharing arrangement as successfully as a
group of applicants that have
voluntarily agreed to share time. We
further believe that we must allow as
much flexibility as possible for LPFM
stations, especially those subject to time
sharing arrangements, to allow them to
build and maintain audiences. It is
possible that some LPFM applicants
may not desire to operate for more than
a few hours a week, and in such cases,
pooling resources with a timeshare
applicant wishing to use more time
would result in more diversity and more
efficient use of spectrum. Accordingly,
we will not revise our time sharing
rules, and will continue to allow
existing time share participants to reach
voluntary arrangements that allow them
to apportion the time as they see fit,
subject to our requirements under
§ 73.872(c) of the rules. While we will
not set up an online process designed
specifically to monitor settlements, as
Common Frequency suggests, we note
that the Commission has recently
upgraded CDBS to permit the electronic
filing of pleadings. This feature makes
electronically filed pleadings promptly
available to the general public, thereby
increasing the transparency of the
broadcast licensing processes. We will
require a party submitting a timeshare
agreement or other settlement agreement
to file it through CDBS. As such, parties
to an MX group should be able to
sufficiently monitor competing
applications for any developments
within their respective group.
128. We turn next to the suggestion
that we entertain partial settlements.
During the last LPFM filing window, we
accepted partial ‘‘technical’’ settlements
(i.e., technical amendments that
eliminated all conflicts between at least
one application and all other
applications in the same MX group).
Thus, through a technical settlement,
the Commission can grant one or more
applications immediately, with the
remaining applicants in that MX group
considered separately under the LPFM
comparative criteria. These partial
settlements worked well during the
2007 NCE FM filing window, where we
granted dozens of settlements that
resulted in the disposal of hundreds of
applications. We will continue to accept
such settlements in the upcoming LPFM
window, as they provide an additional
means for applicants to resolve mutual
exclusivities. To provide increased
flexibility to this process, we will also,
as suggested by Brown Broadcast
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Services, temporarily waive our rules to
allow MX applicants to move to any
available channel during the prescribed
settlement period. Amendments
proposing new channels will be
processed in accordance with
established first-come, first-served
licensing procedures.
129. We agree with commenters that
the system of serial license terms as a tie
breaker of last resort has proven
unworkable. Of the more than 1,200
construction permits granted in the
LPFM service, not a single station
currently holds an authorization for
involuntary time sharing. While we
have little historical data on involuntary
timesharing outcomes from the last
LPFM window, we presume this is the
case either because (1) involuntary time
share permittees did not want to invest
in building out facilities that would be
used by them for as little as one year,
or (2) involuntary time share situations
proved to be unworkable. To promote
more efficient use of available LPFM
frequencies, time shares under the final
tie breaker will run concurrently and
not serially. As suggested by CMAP and,
to some extent REC, each party to the
involuntary time share will be assigned
an equal number of hours per week. We
agree with REC that time share
situations involving more than three
parties may prove cumbersome. As REC
proposes, we will limit involuntary time
sharing arrangements under this final tie
breaker to the three applicants that have
been ‘‘established’’ in their respective
communities for the longest periods of
time. Accordingly, each applicant will
be required to provide, as part of its
application, its date of establishment. If
more than three applications are tied
and grantable, we will dismiss the
applications of all but the three longest
‘‘established’’ applicants. We will offer
these applicants an opportunity to
voluntarily reach a time sharing
arrangement. If they are unable to do so,
we will ask these applicants to
simultaneously and confidentially
submit their preferred time slots to the
Commission. To ensure that there is no
gamesmanship, we will require that
these applicants certify that they have
not colluded with any other applicants
in the selection of time slots. We will
use the information provided by the
applicants to assign time slots to them.
The staff will give preference to the
applicant with the longest ‘‘established
community presence.’’ However, it will
award time in units as small as four
hours per day to accommodate
competing demands for airtime to the
maximum extent possible. We believe
these procedures are a more sustainable
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and practical solution to involuntary
time share arrangements than our
previous measures, and will revise our
rules and FCC Form 318 accordingly.
130. Turning to the final issues raised
in the Fourth FNPRM on share time
arrangements, we asked whether we
should open a ‘‘mini-window’’ for the
filing of applications for the abandoned
air-time in such arrangements, rather
than allowing remaining time share
licensees to re-apportion the remaining
air time. We did not receive any
substantive comments voicing strong
opinions on this proposal. We believe
that opening such mini-windows would
pose a great administrative burden on
Commission staff. Such a burden would
significantly outweigh the modest
benefits that would be realized by filling
such limited portions of a broadcast day
with additional programming provided
by a new timeshare licensee. Moreover,
we believe that our adoption of the
mandatory timesharing procedures
discussed below will provide adequate
opportunities to applicants that wish to
apply for abandoned airtime.
Accordingly, we do not adopt this
proposal.
3. Operating Schedule
131. Currently, the Commission
requires LPFM stations to meet the same
minimum operating hour requirements
as full-service NCE FM stations. Like
NCE FM stations, LPFM stations must
operate at least 36 hours per week,
consisting of at least 5 hours of
operation per day on at least 6 days of
the week. However, while the
Commission has mandated time sharing
for NCE FM stations that meet the
Commission’s minimum operating
requirements but do not operate 12
hours per day each day of the year, it
has not done so for LPFM stations. We
sought comment on whether we should
extend such mandatory time sharing to
the LPFM service. We noted that we
believe that doing so could increase the
number of broadcast voices and promote
additional diversity in radio voices and
program services.
132. Only CRA commented on this
proposal. It urges the Commission to
‘‘reject this impulse,’’ noting that LPFM
applicants need as much flexibility as
possible to ensure the viability of these
small stations. We continue to believe
that this measure will increase the
number of broadcast voices and promote
additional diversity in radio voices and
program services in the most
administratively efficient manner.
However, we find merit to CRA’s
concerns and will adopt this proposal
with safeguards designed to ensure that
LPFM licensees have as much
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opportunity and flexibility as needed to
ensure their success. Specifically, in
order to provide sufficient ‘‘ramp up’’
time, we will not accept applications to
share time with any LPFM licensee that
has been licensed and operating its
station for less than three years.
Accordingly, we adopt this proposal,
with the modification just described.
4. Classes of Service
133. Currently, there are two classes
of LPFM facilities: LP100 and LP10. To
date, we have licensed only LP100
stations. In the Fourth FNPRM, we
proposed to eliminate the LP10 class.
We also sought comment on whether to
create a new, higher power LP250 class.
We specifically sought comment on how
the creation of an LP250 class of LPFM
facilities could be harmonized with the
LCRA, which was ‘‘presumably
grounded on the current LPFM
maximum power level.’’
134. A number of LPFM proponents
urge us to retain the LP10 class of
service, arguing that it is needed to
ensure that LPFM opportunities are
available in urban areas. Other
commenters advocate eliminating the
LP10 class. They point out that, from an
engineering standpoint, the LP10 class
is spectrally inefficient. We agree that
the existing LP10 class is an inefficient
utilization of spectrum. LP10 stations
offer more limited service but are more
susceptible to interference than LP100
stations. Given the increasingly
crowded nature of the FM band, we find
it appropriate to take this into account.
We also are concerned that the reach of
LP10 stations would be too small for the
stations to be economically viable. As
the Media Bureau recently noted, even
higher-powered LP100 stations have
small service areas and are constrained
in ‘‘their ability to gain listeners’’ and
‘‘appeal to potential underwriters.’’
Because we find that licensing LP10
stations would be an inefficient use of
available spectrum and are concerned
that LP10 stations would have an even
higher failure rate than LP100 stations,
we eliminate the LP10 station class.
135. Faced with the loss of the LP10
class, some commenters propose that we
create other classes that would transmit
at less than 100 watts. Many in the
LPFM community support a proposal to
replace the LP10 class with an LP50
class, which would allow licensees to
transmit at any ERP from 1 to 50 watts.
In support, they argue that LP50 stations
would offer higher quality service than
LP10 stations and may permit station
locations closer to city centers. In
contrast, NAB opposes creation of an
LP50 class, arguing that such action
would exceed the intent of Congress.
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NAB also asserts that the proposal is not
a logical outgrowth of the Fourth
Further Notice and, therefore, is
untimely. Finally, NAB asserts that, like
the LP10 class of stations, an LP50 class
would be ‘‘technically inefficient.’’
136. We will not create an LP50 class.
In the Fourth FNPRM, we proposed to
eliminate the LP10 class, retain the
LP100 class and introduce a new LP250
class. We proposed these changes in
order to address our concerns with the
efficiency and viability of stations
operating at powers at or below those
authorized for LP100 stations. We agree
with NAB that a decision to introduce
a new LP50 class could not have been
reasonably anticipated by all interested
parties. Moreover, we believe that LP50
stations would suffer many of the same
technical deficiencies as LP10 stations.
Accordingly, we have decided not to
adopt the proposed LP50 class.
137. The LPFM community offers
broad support for the creation of a new
LP250 class. These commenters cite
benefits including improved LPFM
station viability through better access to
underwriting, more consistent signal
coverage throughout the community
served by the LPFM station, and the
ability to serve areas of low population
density and/or more distant
communities. Several commenters,
however, strenuously oppose the
creation of an LP250 class. These
commenters do not dispute the benefits
cited by those supportive of an LP250
class. Instead, they argue that an LP250
class would pose a greater interference
risk to full power stations, is
unnecessary given the availability of
250 watt Class A licenses, would be a
departure from the local character of the
LPFM service, and goes beyond the
intent of Congress in enacting the LCRA.
138. At this time, we will not adopt
our proposal to create an LP250 class.
Given the disagreement among
commenters about, among other things,
LP250 station location restrictions and
technical parameters, we believe the
issue of increasing the maximum
facilities for LPFM stations requires
further study. We note, however, that
the LCRA does not contain any language
limiting the power levels at which
LPFM stations may be licensed. We also
find unpersuasive NAB’s and NPR’s
reliance on certain statements in the
legislative history. These statements
merely describe the rules governing
LPFM service at the time Congress was
considering the LCRA. Since we have
decided not to adopt the proposal, we
need not definitively resolve the
question.
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5. Removal of I.F. Channel Minimum
Distance Separation Requirements
139. In the Fourth FNPRM, we noted
that LPFM stations are currently
required to protect full-service stations
on I.F. channels while translator
stations operating with less than 100
watts are not. To address this disparity,
we proposed to remove I.F. protection
requirements for LPFM stations
operating with less than 100 watts. We
noted that we believe the same
reasoning that the Commission applied
in exempting FM translator stations
operating with less than 100 watts ERP
from I.F. protection requirements would
apply for LPFM stations operating at
less than 100 watts ERP. These stations
too are the equivalent of Class D FM
stations, which are not subject to I.F.
protection requirements. We further
noted that FM allotments would
continue to be protected on the I.F.
channels based on existing international
agreements. We sought comment on this
proposal.
140. Commenters generally support
removal of the I.F. protection
requirements applicable to LPFM
stations. Some ground their support in
the need to put LPFM stations and
translators on an ‘‘equal footing’’ while
others assert that improvements in
receiver technology render I.F.
protection requirements unnecessary.
NPR is the lone commenter urging
retention of I.F. protection
requirements. NPR infers an intent to
retain the I.F. protections from the fact
that Congress specifically addressed
minimum distance separations but did
not eliminate those related to I.F. We
find NPR’s argument unpersuasive. In
the absence of explicit direction in the
LCRA regarding I.F. protection
requirements, and in light of the fact
that Congress explicitly required
retention of the co-channel and firstand second-adjacent channel spacing
requirements, we believe that it is
reasonable to read the statute not to
require the Commission to retain I.F.
protection requirements. Had Congress
wished to ensure that the I.F.
protections remained in place, we
believe that it would have done so in
the text of the LCRA.
141. NPR also requests that the
Commission study the impact of its
decision ‘‘roughly 20 years ago’’ to
exempt from I.F. protection
requirements FM translator stations
operating with less than 100 watts ERP.
NPR urges us to complete this study
prior to acting on our proposal.
Common Frequency asserts, however,
that the Commission would have
investigated I.F. interference by now if
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it had proved a problem. Common
Frequency is correct. We have not
received any recent complaints
regarding I.F. interference from FM
translators exempted from the I.F.
protection requirements. Indeed, it is
telling that NPR has not cited a single
instance of such interference. Therefore,
and in light of the fact that a receiver
does not distinguish between the signal
of an LPFM station or an FM translator,
we find that the proposed change will
not result in significant I.F. interference.
142. Accordingly, we adopt this
proposal. We find this change necessary
to ensure parity between LPFM stations
and FM translator stations, which, for
I.F. interference purposes, are
indistinguishable. As requested by
commenters, we will eliminate these
requirements for LPFM stations
operating at or below 100 watts ERP. We
had originally proposed to exempt only
LPFM stations operating at less than 100
watts ERP from the I.F. protection
requirements. However, commenters
pointed out that, if we adopted the
proposal set forth in the Fourth FNPRM,
LP100 stations would remain subject to
I.F. protection requirements. These
commenters argue that there is little
difference between LPFM stations
operating at 99 versus 100 watts ERP
and urge us to eliminate the I.F.
protection requirements for LPFM
stations operating at 100 watts or less
ERP. We agree. Moreover, since going
forward we will license LPFM stations
to operate at ERPs ranging from 50 watts
to 100 watts, we find that eliminating
the I.F. protection requirements for
stations operating at 100 watts or less
ERP is the more sensible choice.
E. Window Filing Process
143. Several commenters voiced
concern about the timing and mechanics
of the upcoming LPFM application
filing window. Several LPFM advocates
ask that ‘‘adequate time’’ be given for
applicants to prepare their applications
after adoption of the revised rules.
Prometheus urges the Commission to
give six to nine months lead time up to
the filing window, maintaining that
applicants need time to raise funds, hire
a consulting engineer and assess
spectrum availability. REC, on the other
hand, opposes any ‘‘artificial’’ delay,
stating that any delay between the
issuance of final rules and the window
should occur naturally. To some extent,
this debate is moot as there is a
substantial cushion of time organically
built into the process for the final rules
we adopt or modify today, as well as
any related form changes. Moreover, to
maximize LPFM filing opportunities it
is critical for the Media Bureau to
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complete substantially all of its
processing of the pending FM translator
applications prior to the opening of the
LPFM window. Thus, the window will
open approximately nine months from
the effective date of the Fifth Order on
Reconsideration. To help potential
LPFM applicants prepare for the
upcoming window, we announce a
target date of October 15, 2013.
However, we delegate authority to the
Media Bureau to adjust this date in the
event that future developments affect
window timing. In sum, there will be
ample time for all LPFM applicants to
familiarize themselves with the rules
and plan accordingly before the filing
window opens.
144. Commenters also suggest
multiple windows in order to ease the
demand for affordable engineering
assistance immediately before the
opening of the window. Prometheus
further suggests that we bifurcate the
application into short and long forms,
with second-adjacent waiver showings
submitted in the long form. Prometheus
argues that multiple filing windows and
a short form/long form application
process would help address the scarcity
issue of qualified, affordable consulting
engineers and allow more interested
parties to file. Common Frequency
echoes these concerns, reporting that in
the 2007 NCE window ‘‘[s]ome
applicants could not file because they
could not find engineers, and others
were priced-out from applying because
an engineer and lawyer could run as
much as $5000.’’ We recognize these
concerns. Thus, in order to ease upfront
technical burdens and engineering
costs, we will accept a threshold
second-adjacent waiver technical
showing when an applicant seeks to
make a ‘‘no interference’’ showing based
on lack of population in areas where
interference is predicted to occur. Under
this procedure an applicant would use
‘‘worst-case’’ assumptions about the
area of potential interference in
combination with a USGS map or a
Google map to demonstrate ‘‘lack of
population’’ within this area.
Applicants should be able to complete
this simple showing without the use of
a consulting engineer. In light of our
adoption of this threshold showing, we
see no need to bifurcate our application
process into short and long forms or to
open multiple filing windows. We
believe that this alternative showing
will ease some of the technical and
financial burdens of application filing
and will help ensure that new entrants
in underserved communities are not
‘‘priced out’’ of the opportunity to file
an LPFM application in the upcoming
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window. We further believe that these
measures will help alleviate any
obstacles applicants face due to an
‘‘engineering shortage,’’ as those
applicants that choose to make the
threshold showing will no longer need
to hire a consulting engineer.
II. Procedural Matters
A. Final Regulatory Flexibility Analysis
145. As required by the Regulatory
Flexibility Act (‘‘RFA’’), an Initial
Regulatory Flexibility Analysis
(‘‘IRFA’’) was incorporated in the
Fourth FNPRM in MM Docket No. 99–
25. The Commission sought written
public comment on the proposals in the
Fourth FNPRM, including comment on
the IRFA. We received no comments
specifically directed toward the IRFA.
This Final Regulatory Flexibility
Analysis (‘‘FRFA’’) conforms to the
RFA.
146. Need For, and Objectives of, the
Proposed Rules. This rulemaking
proceeding was initiated to seek
comment on how to implement certain
provisions of the LCRA. The Sixth R&O
amends certain technical rules to
implement the LCRA. The Sixth R&O
adopts the waiver standard for secondadjacent channel spacing waivers set
forth in section 3(b)(2)(A) of the LCRA.
It specifies the manner in which a
waiver applicant can satisfy this
standard and the manner in which the
Commission will handle complaints of
interference caused by LPFM stations
operating pursuant to second-adjacent
channel waivers. As required by section
7 of the LCRA, the Sixth R&O modifies
the regimes applicable if an LPFM
station causes third-adjacent channel
interference. As specified by the LCRA,
the Sixth R&O applies the protection
and interference remediation
requirements applicable to FM
translator stations to those LPFM
stations that would have been shortspaced under the third-adjacent channel
spacing requirements eliminated in the
Fifth R&O in MM Docket No. 99–25.
The Sixth R&O states that the
Commission will consider directional
antennas, lower ERPs and/or differing
polarizations to be suitable techniques
for eliminating third-adjacent channel
interference. The Sixth R&O applies the
more lenient interference protection
obligations currently applicable to
LPFM stations that would have been
fully-spaced under the third-adjacent
channel spacing requirements
eliminated in the Fifth R&O (‘‘fullyspaced LPFM stations’’). The Sixth R&O
addresses the timing, frequency and
content of the periodic broadcast
announcements that newly constructed
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fully-spaced LPFM stations must make
pursuant to section 7(2) of the LCRA. It
revises the rules to treat as a ‘‘minor
change’’ a proposal to move a fullyspaced LPFM station’s transmitter
outside its current service contour in
order to co-locate or operate from a site
close to a third-adjacent channel station
and remediate interference to that
station. Finally, the Sixth R&O
implements section 6 of the LCRA,
modifying the Commission’s rules to
address the potential for predicted
interference to FM translator input
signals from LPFM stations operating on
third-adjacent channels. It adopts a
basic threshold test designed to identify
applications that are predicted to cause
interference to FM translator input
signals on third-adjacent channels and
states that the Commission will dismiss
any application that does not satisfy this
threshold test as unacceptable for filing.
147. The Sixth R&O also makes a
number of other changes to the
Commission’s rules to better promote
localism and diversity, which are at the
very heart of the LPFM service. It
clarifies that the localism requirement
set forth in § 73.853(b) of the rules
applies not just to LPFM applicants but
also to LPFM permittees and licensees.
The Sixth R&O revises the rules to
permit cross-ownership of an LPFM
station and up to two FM translator
stations but, at the same time,
establishes a number of restrictions on
such cross-ownership in order to ensure
that the LPFM service retains its
extremely local focus.
148. In the interests of advancing the
Commission’s efforts to increase
ownership of radio stations by federally
recognized Tribal Nations or entities
owned or controlled by Tribal Nations,
the Sixth R&O amends the
Commission’s rules to explicitly provide
for the licensing of LPFM stations to
Tribal Nation Applicants, and to permit
Tribal Nation Applicants to own or hold
attributable interests in up to two LPFM
stations.
149. In addition, the Order modifies
the point system that the Commission
uses to select among MX LPFM
applications. Specifically, the Sixth
R&O eliminates the proposed operating
hours criterion, revises the established
community presence criterion, affirms
the local program origination criterion,
and adds new criteria related to
maintenance and staffing of a main
studio, offering by Tribal Nation
Applicants of new radio services that
primarily serve Tribal lands, and new
entry into radio broadcasting. Given
these changes, the Sixth R&O also
revises the existing exception to the
cross-ownership rule for student-run
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stations. The Sixth R&O announces the
Commission will continue to entertain
partial ‘‘technical’’ settlements in the
LPFM context and modifies the way in
which involuntary time sharing works,
shifting from sequential to concurrent
license terms and limiting involuntary
time sharing arrangements to three
applicants. It adopts mandatory time
sharing, which currently applies to fullservice noncommercial educational
translator stations but not LPFM
stations.
150. Finally, the Sixth R&O
eliminates the LP10 class of LPFM
facilities and removes all of the I.F
protection requirements applicable to
LPFM stations except those established
by international agreements.
151. Summary of Significant Issues
Raised by Public Comments in Response
to the IRFA. None.
152. Description and Estimate of the
Number of Small Entities to Which
Rules Will Apply. The RFA directs the
Commission to provide a description of
and, where feasible, an estimate of the
number of small entities that will be
affected by the 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 SBA.
153. Radio Broadcasting. The policies
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 September 15, 2011, about 10,960
(97 percent) of 11,300 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.
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154. 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 the rules
apply does not exclude any radio station
from the definition of a small business
on this basis and therefore may be overinclusive 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.
155. FM translator stations and low
power FM stations. The policies adopted
in the Sixth R&O 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.
Currently, there are approximately 6,105
licensed FM translator stations and 824
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.
156. Description of Projected
Reporting, Recordkeeping and Other
Compliance Requirements. The Sixth
R&O modifies existing requirements and
imposes additional paperwork burdens.
The Sixth R&O modifies the
Commission’s policy regarding waivers
(‘‘second-adjacent waivers’’) of the
second-adjacent channel minimum
distance separations set forth in § 73.807
of the rules. As required by the LCRA,
the Sixth R&O requires an applicant
seeking a second-adjacent waiver to
submit a showing that demonstrates that
its proposed operations will not result
in interference to any authorized radio
service. The Sixth R&O specifies that a
waiver applicant can make this showing
in the same manner as an FM translator
applicant (i.e., by showing that no
interference will occur due to lack of
population and using undesired/desired
signal strength ratio methodology to
narrowly define areas of potential
interference). The Sixth R&O also
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permits certain applicants to propose to
use directional antennas and/or
differing antenna polarizations to make
the required showing. The Sixth R&O
mandates that complaints about
interference from stations operating
pursuant to second-adjacent waivers
include certain information. For
instance, a complaint must include the
listener’s name and address and the
location at which the interference
occurs. The Sixth R&O specifies that the
Commission will treat as a ‘‘minor
change’’ a proposal to move the
transmitter site of an LPFM station
operating pursuant to a second-adjacent
waiver outside its current service
contour in order to co-locate or operate
from a site close to a second-adjacent
channel station and remediate
interference to that station.
157. The Sixth R&O modifies the
regime governing complaints about and
remediation of third-adjacent channel
interference caused by LPFM stations.
As required by the LCRA, the Sixth R&O
modifies the requirements applicable to
complaints about third-adjacent channel
interference caused by stations that do
not satisfy the third-adjacent minimum
distance separations set forth in § 73.807
of the rules. It also permits such stations
to propose to use directional antennas
and/or differing antenna polarizations
in order to eliminate third-adjacent
channel interference caused by their
operations. The Sixth R&O modifies the
requirements applicable to complaints
about third-adjacent interference caused
by LPFM stations that satisfy the thirdadjacent minimum distance separations
set forth in § 73.807 of the rules and
strongly encourages that such
complaints be filed with the Media
Bureau’s Audio Division. As in the
second-adjacent channel context, the
Sixth R&O explains that the
Commission will treat proposals from
LPFM stations seeking to remediate
third-adjacent channel by co-locating or
operating from a site close to a thirdadjacent channel station as ‘‘minor
changes.’’ As required by the LCRA, the
Sixth R&O requires newly constructed
LPFM stations that satisfy the thirdadjacent minimum distance separations
set forth in § 73.807 of the rules to make
periodic announcements. It also adopts
requirements related to the timing and
content of these announcements.
158. The Sixth R&O adopts certain
New Jersey-specific provisions
regarding complaints of interference.
The Sixth R&O also adopts a threshold
test to determine whether an LPFM
applicant adequately protects translator
input signals. In order to ensure that an
LPFM applicant protects the correct
input signal for an FM translator, the
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Sixth R&O recommends that FM
translator licensees update the
Commission if they have changed their
primary station since they last filed a
renewal application. If an applicant
proposes to locate its transmitter within
the ‘‘potential interference area’’ for
another station, the applicant must
demonstrate that it will not cause
interference by making one of three
showings. The Sixth R&O provides that
an applicant can make these same
showings in the context of a petition for
reconsideration and reinstatement nunc
pro tunc.
159. The Sixth R&O modifies the
rules governing eligibility to hold
licenses for LPFM stations. Specifically,
it alters the eligibility rule to authorize
issuance of an LPFM license to a Tribal
Nation Applicant. The Sixth R&O also
revises the localism requirement to
clarify that an LPFM applicant must
certify that, at the time of application,
it is local and must pledge to remain
local at all times thereafter. In addition,
the Sixth R&O revises the definition of
‘‘local’’ to specify that a Tribal Nation
Applicant is considered ‘‘local’’
throughout its Tribal lands.
160. The Sixth R&O revises the rules
to permit multiple ownership of LPFM
stations by Tribal Nation Applicants
and cross-ownership of LPFM and FM
translator stations. As a result, the
Commission is revising the ownership
certifications set forth in FCC Form 318.
161. The Sixth R&O makes a number
of changes to the point system used to
select among MX applications for LPFM
stations. It extends the established
community presence standard from 10
to 20 miles in rural areas. The
Commission is revising FCC Form 318
to reflect this change. The Sixth R&O
also adopts four new points criteria.
Specifically, it adopts a new main
studio criterion and requires an
applicant seeking to qualify for a point
under this criterion to submit certain
information (i.e., an address and
telephone number for its proposed main
studio) on FCC Form 318. In addition,
the Sixth R&O specifies that the
Commission will award a point to an
LPFM applicant that makes both the
local program origination and main
studio pledges and adopts Tribal
Nations and new entrant criteria. The
Commission is revising FCC Form 318
to reflect these new criteria.
162. The Sixth R&O makes a number
of changes related to time sharing. It
adopts a requirement that parties submit
voluntary time sharing agreements via
the Commission’s Consolidated
Database System. It also revises the
Commission’s involuntary time sharing
policy, shifting from sequential to
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concurrent license terms and limiting
involuntary time sharing arrangements
to three applicants. As a result of these
changes, an LPFM applicant must
submit, on FCC Form 318, the date on
which it qualified as having an
‘‘established community presence’’ and
may be required to submit information
to the Commission regarding the time
slots it prefers. Finally, the Sixth R&O
adopts a mandatory time sharing policy
similar to that applicable to full-service
NCE FM stations. Applicants seeking to
time-share pursuant to this policy must
submit applications on FCC Form 318
and include an exhibit related to
mandatory time sharing.
163. Steps Taken to Minimize
Significant Impact on Small Entities,
and Significant Alternatives Considered.
The RFA requires an agency to describe
any significant alternatives that it has
considered in reaching its proposed
approach, which may include the
following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.
164. Consideration of alternative
methods to reduce the impact on small
entities is unnecessary because the
passage of the LCRA required the
Commission to make changes to a
number of its technical rules. Moreover,
the changes made to the Commission’s
non-technical rules benefit small
businesses and existing LPFM licensees,
offering them greater flexibility and
additional licensing opportunities.
165. The LPFM service has created
and will continue to create significant
opportunities for small businesses,
allowing them to develop LPFM service
in their communities. To the extent that
any modified or new requirements set
forth in the Sixth R&O impose any
burdens on small entities, we believe
that the resulting impact on small
entities would be favorable because the
rules would expand opportunities for
LPFM applicants, permittees, and
licensees to commence broadcasting and
stay on the air. Among other things, the
Sixth R&O allows limited crossownership of LPFM and FM translator
stations. This is prohibited under the
current rules. Likewise, the Sixth R&O
permits Tribal Nation Applicants to
own or hold attributable interests in up
to two LPFM stations to ensure adequate
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2101
coverage of Tribal lands. Today,
multiple ownership of LPFM stations is
prohibited. The Sixth R&O also
modifies the point system that the
Commission uses to select among MX
LPFM applications to award a point to
an applicant that can certify that it has
no attributable interest in any other
broadcast station. Finally, the Sixth
R&O extends mandatory time sharing to
the LPFM service. If the licensee of an
LPFM station does not operate the
station 12 hours per day each day of the
year, another organization may file an
application to share-time with that
licensee.
166. Report to Congress. The
Commission will send a copy of the
Sixth R&O, 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
Sixth R&O, including the FRFA, to the
Chief Counsel for Advocacy of the SBA.
A copy of the Sixth R&O and the FRFA
(or summaries thereof) will also be
published in the Federal Register.
B. Paperwork Reduction Act
167. The Sixth R&O contains new
information collection requirements
subject to the Paperwork Reduction Act
of 1995 (‘‘PRA’’). The requirements will
be submitted to the Office of
Management and Budget 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 B,
infra.
C. Congressional Review Act
168. The Commission will send a
copy of this Sixth R&O 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
169. It is further ordered that pursuant
to the authority contained in sections 1,
4(i), 4(j), 303, 307, 309(j), and 316 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j),
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303, 307, 309(j), and 316, and the Local
Community Radio Act of 2010, Public
Law 111–371, 124 Stat. 4072 (2011), this
Sixth Report and Order is hereby
adopted and Part 73 of the
Commission’s rules is amended as set
forth in Appendix C, effective 30 days
after publication in the Federal
Register, except pursuant to paragraph
140 below.
170. It is further ordered that the rules
adopted herein that contain new or
modified information collection
requirements that require approval by
the Office of Budget and Management
under the Paperwork Reduction Act will
become effective after the Commission
publishes a notice in the Federal
Register announcing such approval and
the relevant effective date.
171. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Sixth 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 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 73 as
follows:
PART 73—RADIO BROADCAST
SERVICES
1. The authority for part 73 continues
to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336,
and 339.
2. Section 73.807 is revised to read as
follows:
■
§ 73.807 Minimum distance separation
between stations.
Minimum separation requirements for
LPFM stations are listed in the
following paragraphs. Except as noted
below, an LPFM station will not be
authorized unless the co-channel, and
first- and second-adjacent channel
separations are met. An LPFM station
need not satisfy the third-adjacent
channel separations listed in paragraphs
(a) through (c) of this section in order to
be authorized. The third-adjacent
channel separations are included for use
in determining for purposes of § 73.810
which third-adjacent channel
Co-channel minimum separation
(km)
For no
interference
received from
max. class
facility
Station class protected by LPFM
Required
LPFM ....................................................................................
D ...........................................................................................
A ...........................................................................................
B1 .........................................................................................
B ...........................................................................................
C3 .........................................................................................
C2 .........................................................................................
C1 .........................................................................................
C0 .........................................................................................
C ...........................................................................................
srobinson on DSK4SPTVN1PROD with
(2) LPFM stations must satisfy the
second-adjacent channel minimum
distance separation requirements of
paragraph (a)(1) of this section with
respect to any third-adjacent channel
FM station that, as of September 20,
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24
24
67
87
112
78
91
111
122
130
Frm 00026
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First-adjacent channel
minimum separation
(km)
Required
24
24
92
119
143
119
143
178
193
203
2000, broadcasts a radio reading service
via a subcarrier frequency.
(b) In addition to meeting or
exceeding the minimum separations in
paragraph (a) of this section, new LPFM
stations will not be autorized in Puerto
PO 00000
interference regime applies to an LPFM
station. Minimum distances for cochannel and first-adjacent channel are
separated into two columns. The lefthand column lists the required
minimum separation to protect other
stations and the right-hand column lists
(for informational purposes only) the
minimum distance necessary for the
LPFM station to receive no interference
from other stations assumed to be
operating at the maximum permitted
facilities for the station class. For
second-adjacent channel, the required
minimum distance separation is
sufficient to avoid interference received
from other stations.
(a)(1) An LPFM station will not be
authorized initially unless the minimum
distance separations in the following
table are met with respect to authorized
FM stations, applications for new and
existing FM stations filed prior to the
release of the public notice announcing
an LPFM window period, authorized
LPFM stations, LPFM station
applications that were timely-filed
within a previous window, and vacant
FM allotments. LPFM modification
applications must either meet the
distance separations in the following
table or, if short-spaced, not lessen the
spacing to subsequently authorized
stations.
14
13
56
74
97
67
80
100
111
120
For no
interference
received
from
max. class
facility
14
13
56
74
97
67
84
111
130
142
Second and
third adjacent
channel
minimum
separation
(km)
Required
None
6
29
46
67
40
53
73
84
93
Rico or the Virgin Islands unless the
minimum distance separations in the
following tables are met with respect to
authorized or proposed FM stations:
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Federal Register / Vol. 78, No. 6 / Wednesday, January 9, 2013 / Rules and Regulations
Co-channel minimum separation
(km)
For no
interference
received from
max. class
facility
Station class protected by LPFM
Required
A ...........................................................................................
B1 .........................................................................................
B ...........................................................................................
Note to paragraphs (a) and (b):
Minimum distance separations towards
‘‘grandfathered’’ superpowered
Reserved Band stations are as specified.
Full service FM stations operating
within the reserved band (Channels
201–220) with facilities in excess of
those permitted in § 73.211(b)(1) or
(b)(3) shall be protected by LPFM
stations in accordance with the
minimum distance separations for the
nearest class as determined under
§ 73.211. For example, a Class B1 station
80
95
138
Co-channel minimum separation
(km)
For no
interference
received
Required
13.3 km or greater ...............................................................
Greater than 7.3 km, but less than 13.3 km .......................
7.3 km or less ......................................................................
srobinson on DSK4SPTVN1PROD with
(d) Existing LPFM stations which do
not meet the separations in paragraphs
(a) through (c) of this section may be
relocated provided that the separation to
any short-spaced station is not reduced.
(e)(1) Waiver of the second-adjacent
channel separations. The Commission
will entertain requests to waive the
second-adjacent channel separations in
paragraphs (a) through (c) of this section
on a case-by-case basis. In each case, the
LPFM station must establish, using
methods of predicting interference
taking into account all relevant factors,
including terrain-sensitive propagation
models, that its proposed operations
will not result in interference to any
authorized radio service. The LPFM
station may do so by demonstrating that
no actual interference will occur due to
intervening terrain or lack of
population. The LPFM station may use
39
32
26
Co-channel
(km)
Canadian station class
A1 & Low Power ..................................................................
A ...........................................................................................
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First-adjacent
channel
(km)
45
66
Fmt 4701
70
82
123
Sfmt 4700
70
82
123
Second and
third adjacent
channel
minimum
separation
(km)—required
42
53
92
the 60 dBu contour. No stations will be
protected beyond Class C separations.
(c) In addition to meeting the
separations specified in paragraphs (a)
and (b), LPFM applications must meet
the minimum separation requirements
in the following table with respect to
authorized FM translator stations, cutoff
FM translator applications, and FM
translator applications filed prior to the
release of the Public Notice announcing
the LPFM window period.
First-adjacent channel
minimum separation (km)
For no
interference
received
Required
67
51
30
an undesired/desired signal strength
ratio methodology to define areas of
potential interference.
(2) Interference. (i) Upon receipt of a
complaint of interference from an LPFM
station operating pursuant to a waiver
granted under paragraph (e)(1) of this
section, the Commission shall notify the
identified LPFM station by telephone or
other electronic communication within
one business day.
(ii) An LPFM station that receives a
waiver under paragraph (e)(1) of this
section shall suspend operation
immediately upon notification by the
Commission that it is causing
interference to the reception of an
existing or modified full-service FM
station without regard to the location of
the station receiving interference. The
LPFM station shall not resume
operation until such interference has
For no
interference
received
from
max. class
facility
Required
111
128
179
operating with facilities that result in a
60 dBu contour that exceeds 39
kilometers but is less than 52 kilometers
would be protected by the Class B
minimum distance separations. Class D
stations with 60 dBu contours that
exceed 5 kilometers will be protected by
the Class A minimum distance
separations. Class B stations with 60
dBu contours that exceed 52 kilometers
will be protected as Class C1 or Class C
stations depending upon the distance to
Distance to FM translator 60 dBu contour
First-adjacent channel
minimum separation
(km)
2103
28
21
15
35
26
16
Second and
third adjacent
channel
minimum
separation
(km)—required
21
14
8
been eliminated or it can demonstrate to
the Commission that the interference
was not due to emissions from the
LPFM station. Short test transmissions
may be made during the period of
suspended operation to check the
efficacy of remedial measures.
(f) Commercial and noncommercial
educational stations authorized under
subparts B and C of this part, as well as
new or modified commercial FM
allotments, are not required to adhere to
the separations specified in this rule
section, even where new or increased
interference would be created.
(g) International considerations
within the border zones. (1) Within 320
km of the Canadian border, LPFM
stations must meet the following
minimum separations with respect to
any Canadian stations:
Secondadjacent
channel
(km)
30
50
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Third-adjacent
channel
(km)
21
41
09JAR4
Intermediate
frequency (IF)
channel
(km)
20
40
4
7
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Co-channel
(km)
Canadian station class
B1 .........................................................................................
B ...........................................................................................
C1 .........................................................................................
C ...........................................................................................
(2) Within 320 km of the Mexican
border, LPFM stations must meet the
First-adjacent
channel
(km)
78
92
113
124
(3) The Commission will notify the
International Telecommunications
Union (ITU) of any LPFM authorizations
in the US Virgin Islands. Any
authorization issued for a US Virgin
Islands LPFM station will include a
condition that permits the Commission
to modify, suspend or terminate without
right to a hearing if found by the
Commission to be necessary to conform
to any international regulations or
agreements.
(4) The Commission will initiate
international coordination of a LPFM
proposal even where the above
Canadian and Mexican spacing tables
are met, if it appears that such
coordination is necessary to maintain
compliance with international
agreements.
3. Section 73.809 is amended by
revising paragraph (a) introductory text
to read as follows:
■
srobinson on DSK4SPTVN1PROD with
§ 73.809 Interference protection to full
service FM stations.
(a) If a full service commercial or NCE
FM facility application is filed
subsequent to the filing of an LPFM
station facility application, such full
service station is protected against any
condition of interference to the direct
reception of its signal that is caused by
such LPFM station operating on the
same channel or first-adjacent channel
provided that the interference is
predicted to occur and actually occurs
within:
*
*
*
*
*
4. Section 73.810 is revised to read as
follows:
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Intermediate
frequency (IF)
channel
(km)
53
68
89
99
52
66
88
98
9
12
19
28
First-adjacent
channel
(km)
Second- and
third-adjacent
channel
(km)
Intermediate
frequency (IF)
channel
(km)
17
32
36
54
76
80
100
9
25
29
45
66
73
92
3
5
6
8
11
19
27
62
76
98
108
Co-channel
(km)
Low Power .......................................................................................................
A .......................................................................................................................
AA ....................................................................................................................
B1 .....................................................................................................................
B .......................................................................................................................
C1 ....................................................................................................................
C ......................................................................................................................
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Third-adjacent
channel
(km)
following separations with respect to
any Mexican stations:
Mexican station class
■
Secondadjacent
channel
(km)
27
43
47
67
91
91
110
§ 73.810 Third adjacent channel
interference.
(a) LPFM Stations Licensed at
Locations That Do Not Satisfy ThirdAdjacent Channel Minimum Distance
Separations. An LPFM station licensed
at a location that does not satisfy the
third-adjacent channel minimum
distance separations set forth in § 73.807
is subject to the following provisions:
(1) Such an LPFM station will not be
permitted to continue to operate if it
causes any actual third-adjacent channel
interference to:
(i) The transmission of any authorized
broadcast station; or
(ii) The reception of the input signal
of any TV translator, TV booster, FM
translator or FM booster station; or
(iii) The direct reception by the public
of the off-the-air signals of any
authorized broadcast station including
TV Channel 6 stations, Class D
(secondary) noncommercial educational
FM stations, and previously authorized
and operating LPFM stations, FM
translators and FM booster stations.
Interference will be considered to occur
whenever reception of a regularly used
signal on a third-adjacent channel is
impaired by the signals radiated by the
LPFM station, regardless of the quality
of such reception, the strength of the
signal so used, or the channel on which
the protected signal is transmitted.
(2) If third-adjacent channel
interference cannot be properly
eliminated by the application of suitable
techniques, operation of the offending
LPFM station shall be suspended and
shall not be resumed until the
interference has been eliminated. Short
test transmissions may be made during
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the period of suspended operation to
check the efficacy of remedial measures.
If a complainant refuses to permit the
licensee of the offending LPFM station
to apply remedial techniques which
demonstrably will eliminate the thirdadjacent channel interference without
impairment to the original reception,
the licensee is absolved of further
responsibility for that complaint.
(3) Upon notice by the Commission to
the licensee that such third-adjacent
channel interference is being caused,
the operation of the LPFM station shall
be suspended within three minutes and
shall not be resumed until the
interference has been eliminated or it
can be demonstrated that the
interference is not due to spurious
emissions by the LPFM station;
provided, however, that short test
transmissions may be made during the
period of suspended operation to check
the efficacy of remedial measures.
(b) LPFM Stations Licensed at
Locations That Satisfy Third-Adjacent
Channel Minimum Distance
Separations. An LPFM station licensed
at a location that satisfies the thirdadjacent channel minimum distance
separations set forth in § 73.807 is
subject to the following provisions:
(1) Interference Complaints and
Remediation. (i) Such an LPFM station
is required to provide copies of all
complaints alleging that its signal is
causing third-adjacent channel
interference to or impairing the
reception of the signal of a full power
FM, FM translator or FM booster station
to such affected station and to the
Commission.
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(ii) A full power FM, FM translator or
FM booster station shall review all
complaints it receives, either directly or
indirectly, from listeners regarding
alleged third-adjacent channel
interference caused by the operations of
such an LPFM station. Such full power
FM, FM translator or FM booster station
shall also identify those that qualify as
bona fide complaints under this section
and promptly provide such LPFM
station with copies of all bona fide
complaints. A bona fide complaint:
(A) Must include current contact
information for the complainant;
(B) Must state the nature and location
of the alleged third-adjacent channel
interference and must specify the call
signs of the LPFM station and affected
full power FM, FM translator or FM
booster station, and the type of receiver
involved; and
(C) Must be received by either the
LPFM station or the affected full power
FM, FM translator or FM booster station
within one year of the date on which the
LPFM station commenced broadcasts
with its currently authorized facilities.
(iii) The Commission will accept bona
fide complaints and will notify the
licensee of the LPFM station allegedly
causing third-adjacent channel
interference to the signal of a full power
FM, FM translator or FM booster station
of the existence of the alleged
interference within 7 calendar days of
the Commission’s receipt of such
complaint.
(iv) Such an LPFM station will be
given a reasonable opportunity to
resolve all complaints of third-adjacent
channel interference within the
protected contour of the affected full
power FM, FM translator or FM booster
station. A complaint will be considered
resolved where the complainant does
not reasonably cooperate with an LPFM
station’s remedial efforts. Such an LPFM
station also is encouraged to address all
other complaints of third-adjacent
channel interference, including
complaints based on interference to a
full power FM, FM translator or FM
booster station by the transmitter site of
the LPFM station at any distance from
the full power, FM translator or FM
booster station.
(v) In the event that the number of
unresolved complaints of third-adjacent
channel interference within the
protected contour of the affected full
power FM, FM translator or FM booster
station plus the number of complaints
for which the source of third-adjacent
channel interference remains in dispute
equals at least one percent of the
households within one kilometer of the
LPFM transmitter site or thirty
households, whichever is less, the
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LPFM and affected stations must
cooperate in an ‘‘on-off’’ test to
determine whether the third-adjacent
channel interference is traceable to the
LPFM station.
(vi) If the number of unresolved and
disputed complaints of third-adjacent
channel interference within the
protected contour of the affected full
power, FM translator or FM booster
station exceeds the numeric threshold
specified in paragraph (b)(1)(v) of this
section following an ‘‘on-off’’ test, the
affected station may request that the
Commission initiate a proceeding to
consider whether the LPFM station
license should be modified or cancelled,
which will be completed by the
Commission within 90 days. Parties
may seek extensions of the 90-day
deadline consistent with Commission
rules.
(vii) An LPFM station may stay any
procedures initiated pursuant to
paragraph (b)(1)(vi) of this section by
voluntarily ceasing operations and filing
an application for facility modification
within twenty days of the
commencement of such procedures.
(2) Periodic Announcements. (i) For a
period of one year from the date of
licensing of a new LPFM station that is
constructed on a third-adjacent channel
and satisfies the third-adjacent channel
minimum distance separations set forth
in § 73.807, such LPFM station shall
broadcast periodic announcements. The
announcements shall, at a minimum,
alert listeners of the potentially affected
third-adjacent channel station of the
potential for interference, instruct
listeners to contact the LPFM station to
report any interference, and provide
contact information for the LPFM
station. The announcements shall be
made in the primary language(s) of both
the new LPFM station and the
potentially affected third-adjacent
channel station(s). Sample
announcement language follows:
On (date of license grant), the Federal
Communications Commission granted (LPFM
station’s call letters) a license to operate.
(LPFM station’s call letters) may cause
interference to the operations of (thirdadjacent channel station’s call letters) and
(other third-adjacent channel stations’ call
letters). If you are normally a listener of
(third-adjacent channel station’s call letters)
or (other third-adjacent channel station’s call
letters) and are having difficulty receiving
(third-adjacent channel station call letters) or
(other third-adjacent channel station’s call
letters), please contact (LPFM station’s call
letters) by mail at (mailing address) or by
telephone at (telephone number) to report
this interference.
(ii) During the first thirty days after
licensing of a new LPFM station that is
constructed on a third-adjacent channel
PO 00000
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2105
and satisfies the third-adjacent channel
minimum distance separations set forth
in Section 73.807, the LPFM station
must broadcast the announcements
specified in paragraph (b)(2)(i) of this
section at least twice daily. The first
daily announcement must be made
between the hours of 7 a.m. and 9 a.m.,
or 4 p.m. and 6 p.m. The LPFM station
must vary the time slot in which it airs
this announcement. For stations that do
not operate at these times, the
announcements shall be made during
the first two hours of broadcast
operations each day. The second daily
announcement must be made outside of
the 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m.
time slots. The LPFM station must vary
the times of day in which it broadcasts
this second daily announcement in
order to ensure that the announcements
air during all parts of its broadcast day.
For stations that do not operate at these
times, the announcements shall be made
during the first two hours of broadcast
operations each day. For the remainder
of the one year period, the LPFM station
must broadcast the announcements at
least twice per week. The
announcements must be broadcast
between the hours of 7 a.m. and
midnight. For stations that do not
operate at these times, the
announcements shall be made during
the first two hours of broadcast
operations each day.
(iii) Any new LPFM station that is
constructed on a third-adjacent channel
and satisfies the minimum distance
separations set forth in § 73.807 must:
(A) notify the Audio Division, Media
Bureau, and all affected stations on
third-adjacent channels of an
interference complaint. The notification
must be made electronically within 48
hours after the receipt of an interference
complaint by the LPFM station; and
(B) cooperate in addressing any thirdadjacent channel interference.
■ 5. Section 73.811 is revised to read as
follows:
§ 73.811 LPFM power and antenna height
requirements.
(a) Maximum facilities. LPFM stations
will be authorized to operate with
maximum facilities of 100 watts ERP at
30 meters HAAT. An LPFM station with
a HAAT that exceeds 30 meters will not
be permitted to operate with an ERP
greater than that which would result in
a 60 dBu contour of 5.6 kilometers. In
no event will an ERP less than one watt
be authorized. No facility will be
authorized in excess of one watt ERP at
450 meters HAAT.
(b) Minimum facilities. LPFM stations
may not operate with facilities less than
50 watts ERP at 30 meters HAAT or the
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equivalent necessary to produce a 60
dBu contour that extends at least 4.7
kilometers.
6. Section 73.816 is amended by
revising paragraphs (b) and (c) to read
as follows:
■
§ 73.816
Antennas.
*
*
*
*
*
(b) Directional antennas generally will
not be authorized and may not be
utilized in the LPFM service, except as
provided in paragraph (c) of this
section.
(c)(1) Public safety and transportation
permittees and licensees, eligible
pursuant to § 73.853(a)(2), may utilize
directional antennas in connection with
the operation of a Travelers’ Information
Service (TIS) provided each LPFM TIS
station utilizes only a single antenna
with standard pattern characteristics
that are predetermined by the
manufacturer. Public safety and
transportation permittees and licensees
may not use composite antennas (i.e.,
antennas that consist of multiple
stacked and/or phased discrete
transmitting antennas).
(2) LPFM permittees and licensees
proposing a waiver of the secondadjacent channel spacing requirements
of § 73.807 may utilize directional
antennas for the sole purpose of
justifying such a waiver.
*
*
*
*
*
7. Section 73.825 is amended by
revising the Tables to paragraphs (a) and
(b) to read as follows:
■
§ 73.825 Protection to reception of TV
channel 6.
(a) * * *
srobinson on DSK4SPTVN1PROD with
FM channel number
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
LPFM to TV
channel 6 (km)
..................................
..................................
..................................
..................................
..................................
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..................................
140
138
137
136
135
133
133
133
133
133
133
132
132
132
131
131
131
131
130
130
(b) * * *
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LPFM to TV
channel 6 (km)
FM channel number
201
202
203
204
205
206
207
208
209
210
211
212
213
214
215
216
217
218
219
220
..................................
..................................
..................................
..................................
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..................................
..................................
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..................................
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..................................
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98
97
95
94
93
91
91
91
91
91
91
90
90
90
90
89
89
89
89
89
8. Section 73.827 is revised to read as
follows:
■
§ 73.827 Interference to the input signals
of FM translator or FM booster stations.
(a) Interference to the direct reception
of the input signal of an FM translator
station. This subsection applies when
an LPFM application proposes to
operate near an FM translator station,
the FM translator station is receiving its
primary station signal off-air and the
LPFM application proposes to operate
on a third-adjacent channel to the
primary station. In these circumstances,
the LPFM station will not be authorized
unless it is located at least 2 km from
the FM translator station. In addition, in
cases where an LPFM station is located
within +/¥ 30 degrees of the azimuth
between the FM translator station and
its primary station, the LPFM station
will not be authorized unless it is
located at least 10 kilometers from the
FM translator station. The provisions of
this subsection will not apply if the
LPFM applicant:
(1) Demonstrates that no actual
interference will occur due to an
undesired (LPFM) to desired (primary
station) ratio below 34 dB at all
locations,
(2) Complies with the minimum
LPFM/FM translator distance separation
calculated in accordance with the
following formula: du = 133.5 antilog
[(Peu + Gru ¥ Grd ¥ Ed)/20], where du =
the minimum allowed separation in km,
Peu = LPFM ERP in dBW, Gru = gain
(dBd) of the FM translator receive
antenna in the direction of the LPFM
site, Grd = gain (dBd) of the FM
translator receive antenna in the
direction of the primary station site, Ed
= predicted field strength (dBu) of the
primary station at the translator site, or
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Fmt 4701
Sfmt 4700
(3) Reaches an agreement with the
licensee of the FM translator regarding
an alternative technical solution.
Note to paragraph (a): LPFM applicants
may assume that an FM translator station’s
receive and transmit antennas are collocated.
(b) An authorized LPFM station will
not be permitted to continue to operate
if an FM translator or FM booster station
demonstrates that the LPFM station is
causing actual interference to the FM
booster station’s input signal, provided
that the same input signal was in use at
the time the LPFM station was
authorized.
(c) Complaints of actual interference
by an LPFM station subject to paragraph
(b) of this section must be served on the
LPFM licensee and the Federal
Communications Commission,
Attention: Audio Division, Media
Bureau. The LPFM station must
suspend operations upon the receipt of
such complaint unless the interference
has been resolved to the satisfaction of
the complainant on the basis of suitable
techniques. Short test transmissions
may be made during the period of
suspended operations to check the
efficacy of remedial measures. An LPFM
station may only resume full operation
at the direction of the Federal
Communications Commission. If the
Commission determines that the
complainant has refused to permit the
LPFM station to apply remedial
techniques that demonstrably will
eliminate the interference without
impairment of the original reception,
the licensee of the LPFM station is
absolved of further responsibility for the
complaint.
■ 9. Section 73.850 is amended by
adding paragraph (c) to read as follows:
§ 73.850
Operating schedule.
*
*
*
*
*
(c) All LPFM stations, including those
meeting the requirements of paragraph
(b) of this section, but which do not
operate 12 hours per day each day of the
year, will be required to share use of the
frequency upon the grant of an
appropriate application proposing such
share time arrangement. Such
applications must set forth the intent to
share time and must be filed in the same
manner as are applications for new
stations. Such applications may be filed
at any time after an LPFM station
completes its third year of licensed
operations. In cases where the licensee
and the prospective licensee are unable
to agree on time sharing, action on the
application will be taken only in
connection with a renewal application
for the existing station filed on or after
June 1, 2019. In order to be considered
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for this purpose, an application to share
time must be filed no later than the
deadline for filing petitions to deny the
renewal application of the existing
licensee.
(1) The licensee and the prospective
licensee(s) shall endeavor to reach an
agreement for a definite schedule of
periods of time to be used by each. Such
agreement must be in writing and must
set forth which licensee is to operate on
each of the hours of the day throughout
the year. Such agreement must not
include simultaneous operation of the
stations. Each licensee must file the
same in triplicate with each application
to the Commission for initial
construction permit or renewal of
license. Such written agreements shall
become part of the terms of each
station’s license.
(2) The Commission desires to
facilitate the reaching of agreements on
time sharing. However, if the licensees
of stations authorized to share time are
unable to agree on a division of time,
the prospective licensee(s) must submit
a statement with the Commission to that
effect filed with the application(s)
proposing time sharing.
(3) After receipt of the type of
application(s) described in paragraph
(c)(2) of this section, the Commission
will process such application(s)
pursuant to §§ 73.3561 through 73.3568
of this Part. If any such application is
not dismissed pursuant to those
provisions, the Commission will issue a
notice to the parties proposing a timesharing arrangement and a grant of the
time-sharing application(s). The
licensee may protest the proposed
action, the prospective licensee(s) may
oppose the protest and/or the proposed
action, and the licensee may reply
within the time limits delineated in the
notice. All such pleadings must satisfy
the requirements of Section 309(d) of
the Act. Based on those pleadings and
the requirements of Section 309 of the
Act, the Commission will then act on
the time-sharing application(s) and the
licensee’s renewal application.
(4) A departure from the regular
schedule set forth in a time-sharing
agreement will be permitted only in
cases where a written agreement to that
effect is reduced to writing, is signed by
the licensees of the stations affected
thereby, and is filed in triplicate by each
licensee with the Commission,
Attention: Audio Division, Media
Bureau, prior to the time of the
proposed change. If time is of the
essence, the actual departure in
operating schedule may precede the
actual filing of the written agreement,
provided that appropriate notice is sent
to the Commission in Washington, DC,
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Attention: Audio Division, Media
Bureau.
■ 10. Section 73.853 is amended by
adding paragraph (a)(3), revising
paragraph (b) introductory text, and
adding paragraphs (b)(4) and (c) to read
as follows:
§ 73.853
service.
Licensing requirements and
(a) * * *
(3) Tribal Applicants, as defined in
paragraph (c) of this section that will
provide non-commercial radio services.
(b) Only local organizations will be
permitted to submit applications and to
hold authorizations in the LPFM
service. For the purposes of this
paragraph, an organization will be
deemed local if it can certify, at the time
of application, that it meets the criteria
listed below and if it continues to satisfy
the criteria at all times thereafter.
*
*
*
*
*
(4) In the case of a Tribal Applicant,
as defined in paragraph (c) of this
section, the Tribal Applicant’s Tribal
lands, as that term is defined in
§ 73.7000, are within the service area of
the proposed LPFM station.
(c) A Tribal Applicant is a Tribe or an
entity that is 51 percent or more owned
or controlled by a Tribe or Tribes. For
these purposes, Tribe is defined as set
forth in § 73.7000.
■ 11. Section 73.855 is revised to read
as follows:
§ 73.855
Ownership limits.
(a) No authorization for an LPFM
station shall be granted to any party if
the grant of that authorization will
result in any such party holding an
attributable interest in two or more
LPFM stations.
(b) Notwithstanding the general
prohibition set forth in paragraph (a) of
this section, Tribal Applicants, as
defined in § 73.853(c), may hold an
attributable interest in up to two LPFM
stations.
(c) Notwithstanding the general
prohibition set forth in paragraph (a) of
this section, not-for-profit organizations
and governmental entities with a public
safety purpose may be granted multiple
licenses if:
(1) One of the multiple applications is
submitted as a priority application; and
(2) The remaining non-priority
applications do not face a mutually
exclusive challenge.
■ 12. Section 73.860 is revised to read
as follows:
§ 73.860
Cross-ownership.
(a) Except as provided in paragraphs
(b), (c) and (d) of this section, no license
shall be granted to any party if the grant
PO 00000
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Fmt 4701
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2107
of such authorization will result in the
same party holding an attributable
interest in any other non-LPFM
broadcast station, including any FM
translator or low power television
station, or any other media subject to
our broadcast ownership restrictions.
(b) A party that is not a Tribal
Applicant, as defined in § 73.853(c),
may hold attributable interests in one
LPFM station and no more than two FM
translator stations provided that the
following requirements are met:
(1) The 60 dBu contours of the
commonly-owned LPFM station and FM
translator station(s) overlap;
(2) The FM translator station(s), at all
times, synchronously rebroadcasts the
primary analog signal of the commonlyowned LPFM station or, if the
commonly-owned LPFM station
operates in hybrid mode, synchronously
rebroadcasts the digital HD–1 version of
the LPFM station’s signal;
(3) The FM translator station(s)
receives the signal of the commonlyowned LPFM station over-the-air and
directly from the commonly-owned
LPFM station itself; and
(4) The transmitting antenna of the
FM translator station(s) is located
within 16.1 km (10 miles) for LPFM
stations located in the top 50 urban
markets and 32.1 km (20 miles) for
LPFM stations outside the top 50 urban
markets of either the transmitter site of
the commonly-owned LPFM station or
the reference coordinates for that
station’s community of license.
(c) A party that is a Tribal Applicant,
as defined in § 73.853(c), may hold
attributable interests in no more than
two LPFM stations and four FM
translator stations provided that the
requirements set forth in paragraph (b)
of this section are met.
(d) Unless such interest is permissible
under paragraphs (b) or (c) of this
section, a party with an attributable
interest in a broadcast radio station
must divest such interest prior to the
commencement of operations of an
LPFM station in which the party also
holds an interest. However, a party need
not divest such an attributable interest
if the party is a college or university that
can certify that the existing broadcast
radio station is not student run. This
exception applies only to parties that:
(1) Are accredited educational
institutions;
(2) Own an attributable interest in
non-student run broadcast stations; and
(3) Apply for an authorization for an
LPFM station that will be managed and
operated on a day-to-day basis by
students of the accredited educational
institution.
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(e) No LPFM licensee may enter into
an operating agreement of any type,
including a time brokerage or
management agreement, with either a
full power broadcast station or another
LPFM station.
■ 13. Section 73.870 is amended by
revising paragraph (a) introductory text
to read as follows:
§ 73.870 Processing of LPFM broadcast
station applications.
(a) A minor change for an LPFM
station authorized under this subpart is
limited to transmitter site relocations of
5.6 kilometers or less. These distance
limitations do not apply to amendments
or applications proposing transmitter
site relocation to a common location
filed by applicants that are parties to a
voluntary time-sharing agreement with
regard to their stations pursuant to
§ 73.872 paragraphs (c) and (e). These
distance limitations also do not apply to
an amendment or application proposing
transmitter site relocation to a common
location or a location very close to
another station operating on a thirdadjacent channel in order to remediate
interference to the other station;
provided, however, that the proposed
relocation is consistent with all localism
certifications made by the applicant in
its original application for the LPFM
station. Minor changes of LPFM stations
may include:
*
*
*
*
*
■ 14. Section 73.871 is amended by
revising paragraphs (c)(1), (5), and (6)
and adding paragraph (c)(7) to read as
follows:
§ 73.871 Amendment of LPFM broadcast
station applications.
srobinson on DSK4SPTVN1PROD with
*
*
*
*
*
(c) * * *
(1) Filings subject to paragraph (c)(5)
of this section, site relocations of 5.6
kilometers or less for LPFM stations;
*
*
*
*
*
(5) Other changes in general and/or
legal information;
(6) Filings proposing transmitter site
relocation to a common location
submitted by applications that are
parties to a voluntary time-sharing
agreement with regard to their stations
pursuant to § 73.872 (c) and (e); and
(7) Filings proposing transmitter site
relocation to a common location or a
location very close to another station
operating on a third-adjacent channel in
order to remediate interference to the
other station.
*
*
*
*
*
■ 15. Section 73.872 is amended by
revising paragraphs (b), (c) introductory
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text, (c)(4), (d), and (e) to read as
follows:
§ 73.872 Selection procedure for mutually
exclusive LPFM applications.
*
*
*
*
*
(b) Each mutually exclusive
application will be awarded one point
for each of the following criteria, based
on certifications that the qualifying
conditions are met and submission of
any required documentation:
(1) Established community presence.
An applicant must, for a period of at
least two years prior to application and
at all times thereafter, have qualified as
local pursuant to § 73.853(b). Applicants
claiming a point for this criterion must
submit any documentation specified in
FCC Form 318 at the time of filing their
applications.
(2) Local program origination. The
applicant must pledge to originate
locally at least eight hours of
programming per day. For purposes of
this criterion, local origination is the
production of programming by the
licensee, within ten miles of the
coordinates of the proposed transmitting
antenna. Local origination includes
licensee produced call-in shows, music
selected and played by a disc jockey
present on site, broadcasts of events at
local schools, and broadcasts of musical
performances at a local studio or
festival, whether recorded or live. Local
origination does not include the
broadcast of repetitive or automated
programs or time-shifted recordings of
non-local programming whatever its
source. In addition, local origination
does not include a local program that
has been broadcast twice, even if the
licensee broadcasts the program on a
different day or makes small variations
in the program thereafter.
(3) Main studio. The applicant must
pledge to maintain a publicly accessible
main studio that has local program
origination capability, is reachable by
telephone, is staffed at least 20 hours
per week between 7 a.m. and 10 p.m.,
and is located within 16.1 km (10 miles)
of the proposed site for the transmitting
antenna for applicants in the top 50
urban markets and 32.1 km (20 miles)
for applicants outside the top 50 urban
markets. Applicants claiming a point
under this criterion must specify the
proposed address and telephone
number for the proposed main studio in
FCC Form 318 at the time of filing their
applications.
(4) Local program origination and
main studio. The applicant must make
both the local program origination and
main studio pledges set forth in
paragraphs (b)(2) and (3) of this section.
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Sfmt 4700
(5) Diversity of ownership. An
applicant must hold no attributable
interests in any other broadcast station.
(6) Tribal Applicants serving Tribal
Lands. The applicant must be a Tribal
Applicant, as defined in § 73.853(c), and
the proposed site for the transmitting
antenna must be located on that Tribal
Applicant’s ‘‘Tribal Lands,’’ as defined
in § 73.7000. Applicants claiming a
point for this criterion must submit the
documentation set forth in FCC Form
318 at the time of filing their
applications.
(c) Voluntary time-sharing. If
mutually exclusive applications have
the same point total, any two or more of
the tied applicants may propose to share
use of the frequency by electronically
submitting, within 90 days of the release
of a public notice announcing the tie, a
time-share proposal. Such proposals
shall be treated as minor amendments to
the time-share proponents’ applications,
and shall become part of the terms of
the station authorization. Where such
proposals include all of the tied
applications, all of the tied applications
will be treated as tentative selectees;
otherwise, time-share proponents’
points will be aggregated.
*
*
*
*
*
(4) Concurrent license terms granted
under paragraph (d) of this section may
be converted into voluntary timesharing arrangements renewable
pursuant to § 73.3539 by submitting a
universal time-sharing proposal.
(d) Involuntary time-sharing. (1) If a
tie among mutually exclusive
applications is not resolved through
voluntary time-sharing in accordance
with paragraph (c) of this section, the
tied applications will be reviewed for
acceptability. Applicants with tied,
grantable applications will be eligible
for equal, concurrent, non-renewable
license terms.
(2) If a mutually exclusive group has
three or fewer tied, grantable
applications, the Commission will
simultaneously grant these applications,
assigning an equal number of hours per
week to each applicant. The
Commission will determine the hours
assigned to each applicant by first
assigning hours to the applicant that has
been local, as defined in § 73.853(b), for
the longest uninterrupted period of
time, then assigning hours to the
applicant that has been local for the
next longest uninterrupted period of
time, and finally assigning hours to any
remaining applicant. The Commission
will offer applicants an opportunity to
voluntarily reach a time-sharing
agreement. In the event that applicants
cannot reach such agreement, the
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srobinson on DSK4SPTVN1PROD with
Commission will require each applicant
subject to involuntary time-sharing to
simultaneously and confidentially
submit their preferred time slots to the
Commission. If there are only two tied,
grantable applications, the applicants
must select between the following 12hour time slots 3 a.m.–2:59 p.m., or 3
p.m.–2:59 a.m. If there are three tied,
grantable applications, each applicant
must rank their preference for the
following 8-hour time slots: 2 a.m.–9:59
a.m., 10 a.m.–5:59 p.m., and 6 p.m.–1:59
a.m. The Commission will require the
applicants to certify that they did not
collude with any other applicants in the
selection of time slots. The Commission
will give preference to the applicant that
has been local for the longest
uninterrupted period of time. The
Commission will award time in units as
small as four hours per day. In the event
an applicant neglects to designate its
preferred time slots, staff will select a
time slot for that applicant.
(3) Groups of more than three tied,
grantable applications will not be
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18:11 Jan 08, 2013
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eligible for licensing under this section.
Where such groups exist, the
Commission will dismiss all but the
applications of the three applicants that
have been local, as defined in
§ 73.853(b), for the longest
uninterrupted periods of time. The
Commission then will process the
remaining applications as set forth in
paragraph (d)(2) of this section.
(4) If concurrent license terms granted
under this section are converted into
universal voluntary time-sharing
arrangements pursuant to paragraph
(c)(4) of this section, the permit or
license is renewable pursuant to
§§ 73.801 and 73.3539.
(e) Settlements. Mutually exclusive
applicants may propose a settlement at
any time during the selection process
after the release of a public notice
announcing the mutually exclusive
groups. Settlement proposals must
comply with the Commission’s rules
and policies regarding settlements,
including the requirements of
§§ 73.3525, 73.3588 and 73.3589.
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2109
Settlement proposals may include timeshare agreements that comply with the
requirements of paragraph (c) of this
section, provided that such agreements
may not be filed for the purpose of point
aggregation outside of the 90 day period
set forth in paragraph (c) of this section.
■ 16. Section 73.873 is revised to read
as follows:
§ 73.873
LPFM license period.
(a) Initial licenses for LPFM stations
will be issued for a period running until
the date specified in § 73.1020 for full
service stations operating in the LPFM
station’s state or territory, or if issued
after such date, determined in
accordance with § 73.1020.
(b) The license of an LPFM station
that fails to transmit broadcast signals
for any consecutive 12-month period
expires as a matter of law at the end of
that period, notwithstanding any
provision, term, or condition of the
license to the contrary.
[FR Doc. 2012–30975 Filed 1–8–13; 8:45 am]
BILLING CODE 6712–01–P
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Agencies
[Federal Register Volume 78, Number 6 (Wednesday, January 9, 2013)]
[Rules and Regulations]
[Pages 2077-2109]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30975]
[[Page 2077]]
Vol. 78
Wednesday,
No. 6
January 9, 2013
Part V
Federal Communications Commission
-----------------------------------------------------------------------
47 CFR Part 73
Implementation of the Local Community Radio Act of 2010; Revision of
Service and Eligibility Rules for Low Power FM Stations; Final Rule
Federal Register / Vol. 78, No. 6 / Wednesday, January 9, 2013 /
Rules and Regulations
[[Page 2078]]
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission modifies its rules in order
to implement provisions of the Local Community Radio Act of 2010
(``LCRA''). It also proposes changes to its rules intended to promote
the low power FM service's localism and diversity goals, reduce the
potential for licensing abuses, and clarify certain rules.
DATES: Effective February 8, 2013, except for amendments to Sec. Sec.
73.807, 73.810, 73.827, 73.850, 73.853, 73.855, 73.860, 73.872 which
contain information collection requirements that are not effective
until approved by the Office of Management and Budget (``OMB''). The
FCC will seek Paperwork Reduction Act comments via a separate notice in
the Federal Register. The FCC will publish a document in the Federal
Register announcing the effective date for those sections.
FOR FURTHER INFORMATION CONTACT: Peter Doyle (202) 418-2789.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Sixth
Report and Order (``Sixth R&O''), FCC No. 12-144, adopted November 30,
2012. The full text of the Order is available for inspection and
copying during normal business hours in the FCC Reference Center (Room
CY-A257), 445 12th Street SW., Washington, DC 20554. The full text may
also be downloaded at: https://www.fcc.gov.
Summary of Sixth Report and Order
1. On March 19, 2012, we released a Fourth Further Notice of
Proposed Rule Making (``Fourth FNPRM'') in this proceeding, seeking
comment on proposals to amend the rules to implement provisions of the
LCRA and to promote a more sustainable community radio service. These
proposed changes were intended to advance the LCRA's core goals of
localism and diversity while preserving the technical integrity of all
of the FM services. We also sought comment on proposals to reduce the
potential for licensing abuses.
2. In this Sixth R&O, we adopt an LPFM service standard for second-
adjacent channel spacing waivers (``second-adjacent waivers''), in
accordance with section 3(b)(2)(A) of the LCRA. We also specify the
manner in which a waiver applicant can satisfy this standard and the
manner in which we will handle complaints of interference caused by
LPFM stations operating pursuant to second-adjacent waivers. As
specified in section 7 of the LCRA, we establish separate third-
adjacent channel interference remediation regimes for short-spaced and
fully-spaced LPFM stations. Finally, as mandated by section 6 of the
LCRA, we modify our rules to address the potential for predicted
interference to FM translator input signals from LPFM stations
operating on third-adjacent channels.
3. We also make a number of other changes to our rules to better
promote the core localism and diversity goals of LPFM service.
Specifically, we modify our rules to clarify that the localism
requirement set forth in Sec. 73.853(b) applies not just to LPFM
applicants but also to LPFM permittees and licensees. We revise our
rules to permit cross-ownership of an LPFM station and up to two FM
translator stations, but we adopt a number of restrictions on such
cross-ownership in order to ensure that the LPFM service retains its
extremely local focus. In the interests of advancing the Commission's
efforts to increase ownership of radio stations by federally recognized
American Indian Tribes and Alaska Native Villages (``Tribal Nations'')
or entities owned or controlled by Tribal Nations, we revise our rules
to explicitly provide for the licensing of LPFM stations to Tribal
Nations or entities owned and controlled by Tribal Nations
(collectively, ``Tribal Nation Applicants''), and to permit Tribal
Nation Applicants to own or hold attributable interests in up to two
LPFM stations. In addition, we modify the point system that we use to
select from among MX LPFM applications. Specifically, we revise the
established community presence criterion; retain the local program
origination criterion; and add new criteria to promote the
establishment and staffing of a main studio, radio service proposals by
Tribal Nation Applicants to serve Tribal lands, and new entry into
radio broadcasting. Given these changes, we revise the existing
exception to the cross-ownership rule for student-run stations. We also
modify the way in which involuntary time sharing works, shifting from
sequential to concurrent license terms and limiting involuntary time
sharing arrangements to three applicants. We adopt mandatory time
sharing, which previously applied to full-service NCE stations but not
LPFM stations, for the LPFM service. We also revise our rules to
eliminate the LP10 class of LPFM facilities and eliminate the
intermediate frequency (``I.F.'') protection requirements applicable to
LPFM stations. Finally, we briefly discuss administrative aspects of
the upcoming filing window for LPFM stations.
A. Waiver of Second-Adjacent Channel Minimum Distance Separation
Requirements
4. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission
the authority to waive the second-adjacent channel spacing requirements
set forth in Sec. 73.807 of the rules. It permits second-adjacent
waivers where an LPFM station establishes, ``using methods of
predicting interference taking into account all relevant factors,
including terrain-sensitive propagation models,'' that its proposed
operations ``will not result in interference to any authorized radio
service.'' In the Fourth FNPRM, we tentatively concluded that this
waiver standard supersedes the interim waiver processing policy adopted
by the Commission in 2007. We sought comment on this tentative
conclusion. The three commenters that addressed this tentative
conclusion agreed with it. As we noted in the Fourth FNPRM, the interim
waiver processing policy requires the Commission to ``balance the
potential for new interference to the full-service station at issue
against the potential loss of an LPFM station.'' This balancing is
inconsistent with the language of section 3(b)(2)(A) of the LCRA
described above, which does not contemplate such a balancing.
Accordingly, we affirm our tentative conclusion that the waiver
standard set forth in the LCRA and discussed herein supersedes the
interim waiver processing policy previously adopted by the Commission.
5. In the Fourth FNPRM, we sought comment on the factors relevant
to and showings appropriate for second-adjacent waiver requests. Some
commenters express support for a requirement that waiver applicants
demonstrate there are no fully-spaced channels available, a potential
waiver standard about which we specifically sought comment. One
commenter--the National Association of Broadcasters (``NAB'')--proposes
additional requirements for second-adjacent waivers. These commenters
argue that the plain language of the LCRA and its
[[Page 2079]]
legislative history require that the Commission grant second-adjacent
waivers ``only in strictly defined circumstances.'' In contrast,
Prometheus and others argue that ``[b]eyond a showing of non-
interference as required by the statute, no other showing should be
required for LPFM applicants seeking waivers.'' Prometheus states that
``[t]he Commission is bound by the LCRA's terms'' and cannot ``infer a
wide range of additional limitations or prescriptions that appear
nowhere in the statute.''
6. We have reviewed both the text of the LCRA and the legislative
history. The plain language of section 3(b)(2)(A) of the LCRA permits
the Commission to grant second-adjacent waivers where a waiver
applicant demonstrates that its proposed operations ``will not result
in interference to any authorized radio service.'' Nothing in the LCRA
or its legislative history suggests that Congress intended to require
that waiver applicants make any additional showings. The statute does
not mandate any further conditions on the grant of such waivers, and it
does not prescribe the burden of proof. We conclude that Congress
intended to ensure that LPFM stations operating pursuant to second-
adjacent waivers do not cause interference to full-service FM and other
authorized radio stations. We find that additional limitations are not
needed to achieve this goal. Indeed, to require additional showings of
waiver applicants would impose requirements that go beyond those
established in the LCRA that we do not believe are either necessary to
the implementation of its interference protection goals or consistent
with the localism and diversity goals underlying the LPFM service.
Accordingly, we will not further restrict the availability of second-
adjacent waivers. Likewise, we will not consider any of the other
factors proposed in the Fourth FNPRM in determining whether to grant a
waiver request, none of which received any support in the comments.
7. We find unconvincing the policy arguments made by supporters of
requiring additional showings of waiver applicants. For instance, we
are not persuaded that any additional limits are needed to preserve the
technical integrity of the FM service. Neither NAB nor any other
commenter has offered evidence to support the claim that granting
second-adjacent waivers that satisfy the LCRA requirements will harm
audio quality or disrupt the expectations of listeners. Indeed, we are
not sure how any commenter could since waivers will only be granted
where an applicant makes a showing that its proposed operations will
not cause interference. Moreover, we note that many FM translators
successfully operate on second-adjacent channels, often at higher
effective radiated powers (``ERPs'') and heights above average terrain
(``HAAT'') than LPFM stations, under a protection scheme that permits
second-adjacent channel operations at less than LPFM distance
separation requirements. We believe LPFM stations can operate just as
successfully. Should interference occur, the interference remediation
obligations set forth in section 3(b)(2)(B) of the LCRA will serve as a
backstop to ensure that the technical integrity of the FM band is
maintained.
8. We find equally unpersuasive the argument that imposing
additional limits on second-adjacent waivers is in the best interest of
LPFM applicants. LPFM applicants may lack broadcast experience and
technical expertise, and therefore, may have difficulty predicting
interference issues. However, Commission staff will review each waiver
request and will deny any request that they determine would cause
interference. In addition, while the interference remediation
obligations may prove burdensome to LPFM licensees and may require some
LPFM stations to cease operations, we do not see this as a reason to
limit waivers. We agree with Prometheus that the potential benefit of
promoting a locally-based non-commercial radio service in potentially
thousands of communities nationwide vastly outweighs the risks that
individual LPFM licensees may face. In this regard, we note that, in
spectrum-congested markets, few LPFM opportunities would exist without
the use of second-adjacent waivers. For instance, applicants will be
able to select from 19 unique LPFM channels in the Denver Arbitron
Metro market and 18 in the New Haven Arbitron Metro market if second-
adjacent waivers are available. If these waivers are not available, an
applicant will have a much more limited selection--four unique LPFM
channels in the Denver Arbitron Metro market and three in the New Haven
Arbitron Metro market.
9. We turn to the manner in which waiver applicants can
``establish, using methods of predicting interference taking into
account relevant factors, including terrain-sensitive propagation
models, that their proposed operations will not result in interference
to any authorized radio service.'' In the Fourth FNPRM, we asked
whether we should permit LPFM applicants to make the sort of showings
we routinely accept from FM translator applicants to establish that
``no actual interference will occur.'' A number of commenters offer
general support for this proposal. Prometheus grounds its support in
the fact that, read together, sections 3(b)(2)(A) and (B) of the LCRA
``set out a second adjacent waiver standard substantially identical to
the rules allocating translators on the second adjacent frequency.''
NAB opposes the use of these showings by waiver applicants, arguing
that it could lead to ``over-packing of the FM band, unwanted
interference, and the degradation of listeners' experience.'' NAB,
however, does not offer any evidence to support its claims. Nor does
NAB explain why the operations of the very large number of FM
translators that have relied on these showings do not cause the same
interference and signal degradation problems they predict as a result
of LPFM second-adjacent waivers. NPR also opposes allowing LPFM
applicants to make the same showings as FM translators. NPR argues that
there are ``significant differences'' between the LPFM and FM
translator services. However, it does not explain how these
differences--the ability to originate programming or lack thereof, the
highly local nature of the LPFM service, the relative inexperience of
LPFM licensees when compared to FM translator licensees--would justify
different waiver standards for FM translators and LPFM stations. We are
not persuaded that the differences that NPR cites have any impact on
whether a station will cause interference. Rather, the potential for
interference is principally dependent on the propagation
characteristics of the ``protected'' and ``interfering'' FM signals and
the quality of the utilized FM receiver.
10. We will permit waiver applicants to demonstrate that ``no
actual interference will occur'' in the same manner as FM translator
applicants. Put another way, we will permit waiver applicants to show
that ``no actual interference will occur'' due to ``lack of
population'' and will allow waiver applicants to use an undesired/
desired signal strength ratio methodology to define areas of potential
interference when proposing to operate near another station operating
on a second-adjacent channel. Although the LCRA does not require the
Commission to incorporate for second-adjacent channels the FM
translator regime that Congress incorporated for third-adjacent channel
interference protection, as Prometheus notes the second-adjacent waiver
provisions of the LCRA establish a regime similar to that governing FM
translators. Given the discretion afforded by Congress to the
Commission
[[Page 2080]]
for determining appropriate ``methods of predicting interference,'' our
experience in connection with methods for doing so in the analogous
context of FM translators, and the similarities between the regime
established in sections 3(b)(2)(A) and (B) and the regime applicable to
FM translator stations, we believe it is appropriate to grant waiver
applicants the same flexibility as FM translator applicants to
demonstrate that, despite predicted contour overlap, interference will
not in fact occur due to an absence of population in the overlap area.
We note that, like FM translator stations, LPFM stations operating
pursuant to second-adjacent waivers may not cause any actual
interference.
11. We also will permit waiver applicants to propose use of
directional antennas in making these showings. This is consistent with
our treatment of FM translator applicants and supported by the vast
majority of commenters. We clarify that, like FM translator applicants,
waiver applicants may use ``off the shelf'' antenna patterns and will
not be required to submit information regarding the characteristics of
the pattern with the construction permit application. In addition, as
requested by Prometheus and Common Frequency, we will permit waiver
applicants to propose lower ERPs and differing polarizations in order
to demonstrate that their operations will not result in interference to
any authorized radio service. We expect that this flexibility will
facilitate the expansion of the LPFM service while still protecting the
technical integrity of the FM band. In terms of proposals specifying
lower ERPs, we will not accept proposals to operate at less than
current LPFM minimum permissible facilities (i.e., power levels of less
than 50 watts ERP at 30 meters HAAT, or its equivalent). Since the
proposed operating parameters of a waiver applicant will be available
in our Consolidated Database System (``CDBS'') and since we do not
require other applicants seeking waivers of our technical rules to
serve their waiver requests on potentially affected stations, we will
not require an LPFM applicant seeking a second-adjacent waiver to serve
its waiver request on any potentially affected station. We will,
however, instruct the Media Bureau to identify specifically all
potentially affected second-adjacent channel stations in the public
notice that accepts for filing an application for an LPFM station that
includes a request for a second-adjacent waiver.
12. We remind potential LPFM applicants that the LCRA permits the
Commission to grant waivers only of second-adjacent, and not co- and
first-adjacent, spacing requirements. The flexibility discussed above
regarding lower power, polarization and directional patterns extends
only to waiver applicants seeking to demonstrate that their proposed
operations will not result in any second-adjacent channel interference.
We also caution LPFM applicants against using this technical
flexibility to limit the already small service areas of LPFM stations
to such an extent that, while their LPFM applications are grantable,
the LPFM stations will not be viable. As the Media Bureau noted
recently ``the limitations on the maximum power of LPFM stations
substantially reduce the number of potential listeners they can
serve.'' The Media Bureau went on to note that ``[t]he low power of an
LPFM station affects not only its geographic reach and coverage area,
but also the quality of its signal and the ability of listeners to
receive its signal consistently inside the station's coverage area.''
Finally, we take this opportunity to make clear the protection
obligations of FM translators toward LPFM stations operating with lower
powers, differing polarizations and/or directional antennas. To
simplify matters and provide clear guidance to FM translator
applicants, we will require FM translator modification applications and
applications for new FM translators to treat such LPFM stations as
operating with non-directional antennas at their authorized power.
13. We turn now to what happens if an LPFM station operating
pursuant to a second-adjacent channel waiver causes interference.
Section 3(b)(2)(B) provides a framework for handling an interference
complaint resulting from an LPFM station operating pursuant to a
second-adjacent waiver ``without regard to the location of the station
receiving interference.'' Upon receipt of a complaint of interference
caused by an LPFM station operating pursuant to a second-adjacent
waiver, the Commission must notify the LPFM station ``by telephone or
other electronic communication within 1 business day.'' The LPFM
station must ``suspend operation immediately upon notification'' by the
Commission that it is ``causing interference to the reception of any
existing or modified full-service FM station.'' It may not resume
operations ``until such interference has been eliminated or it can
demonstrate * * * that the interference was not due to [its]
emissions.'' The LPFM station, however, may ``make short test
transmissions during the period of suspended operation to check the
efficacy of remedial measures.''
14. In the Fourth FNPRM, we proposed to incorporate these
provisions into our rules. We will do so. We believe including these
provisions in the rules will provide a clear framework for the
efficient resolution of interference complaints.
15. We also requested comment on whether to define a ``bona fide
complaint'' for the purpose of triggering these interference
remediation procedures. Prometheus urges us to do so and to handle
interference complaints against LPFM stations operating pursuant to
second-adjacent waivers in a manner similar to complaints against FM
translators and similar to the former third adjacent channel
remediation requirements. As we described in the Fourth FNPRM, for FM
translators, Sec. 74.1203(a) prohibits ``actual interference to * *
*[t]he direct reception by the public of the off-the-air signals of any
authorized broadcast station* * *.'' It specifies that ``[i]nterference
will be considered to occur whenever reception of a regularly used
signal is impaired by the signals radiated by'' the interfering FM
translator station. An interfering FM translator station must remedy
the interference or cease operation. The Commission has interpreted
this rule broadly. It places no geographic or temporal limitation on
complaints. It covers all types of interference. The reception affected
can be that of a fixed or mobile receiver. The Commission also has
interpreted ``direct reception by the public'' to limit actionable
complaints to those that are made by bona fide listeners. Thus, it has
declined to credit claims of interference or lack of interference from
station personnel involved in an interference dispute. More generally,
the Commission requires that a complainant ``be `disinterested,' e.g.,
a person or entity without a legal stake in the outcome of the
translator station licensing proceeding.'' The staff has routinely
required a complainant to provide his name, address, location(s) at
which FM translator interference occurs, and a statement that the
complainant is, in fact, a listener of the affected station. Moreover,
as is the case with other types of interference complaints, the staff
has considered only those complaints of FM translator interference
where the complainant cooperates in efforts to identify the source of
interference and accepts reasonable corrective measures. Accordingly,
when the Commission concludes that a bona fide listener has made an
actionable complaint of uncorrected interference from an FM
[[Page 2081]]
translator, it will notify the station that ``interference is being
caused'' and direct the station to discontinue operations.
16. We conclude that it is appropriate to handle complaints in a
manner similar to that used to handle complaints of interference caused
by FM translators. As we noted above, we believe that the LCRA affords
the Commission the discretion to rely on our successful FM translator
experience in implementing the interference protection regime for
second-adjacent LPFM stations. Accordingly, we will adopt the same
requirements for complaints that we apply in the FM translator context.
As described above, that means that a complaint must come from a
disinterested listener and must include the listener's name and
address, and the location at which the interference occurs. We are
unconvinced by NPR's argument that a listener complaint is unnecessary.
While NPR is correct that section 3(b)(2)(B)(iii) refers simply to ``a
complaint of interference'' and does not specify the source of such
complaint, we find this statutory term to be ambiguous. We conclude
that it may reasonably be interpreted to refer to listener complaints.
We note that we have interpreted Sec. 74.1203 of the rules to require
that complaints of interference in the FM translator context be filed
by listeners. We also note that the scope of the rule prohibiting
translator stations from causing ``actual interference to * * * direct
reception,'' and that of section 3(b)(2)(B) which prohibits LPFM
stations from causing ``interference to the reception of an existing or
modified full-service station,'' are essentially equivalent. The
Commission previously has interpreted the ``direct reception'' language
included in Sec. 73.1203(a) as limiting actionable complaints to those
that are made by bona fide listeners. We believe it is appropriate to
interpret the ``reception'' language in section 3(b)(2)(B) of the LCRA
as imposing this same limit.
17. Once the Commission receives a bona fide complaint of
interference from an LPFM station operating pursuant to a second-
adjacent waiver and notifies the LPFM station of the complaint, the
LPFM station must ``suspend operation immediately'' and stay off the
air until it eliminates the interference or demonstrates that the
interference was not due to its emissions. We conclude that an LPFM
station may demonstrate that it is not the source of the interference
at issue by conducting an ``on-off'' test. ``On-off'' tests have been
used by the FM translator and other services to determine whether
identified transmissions are ``the source of interference.'' In
addition, the Commission specifically authorized LPFM stations to use
``on-off'' tests for determining ``whether [third-adjacent
interference] is traceable to [an] LPFM station.'' As the Commission
did in that context, we require the full-service station(s) involved to
cooperate in these tests.
B. Third-Adjacent Channel Interference Complaints and Remediation
18. As instructed by section 3 of the LCRA, in the Fifth Report and
Order (``Fifth R&O''), we eliminated the third-adjacent channel spacing
requirements. We then sought comment on the associated interference
remediation obligations, set forth in section 7 of the LCRA, that
Congress paired with this change. We conclude that section 7 of the
LCRA creates two different LPFM interference protection and remediation
regimes, one for LPFM stations that would be considered short-spaced
under the third-adjacent channel spacing requirements in place when the
LCRA was enacted, and one for LPFM stations that would be considered
fully spaced under those requirements. We discuss this conclusion and
each of the regimes below.
1. LPFM Interference Protection and Remediation Requirements
19. Two Distinct Regimes. Sections 7(1) and 7(3) of the LCRA both
address the interference protection and remediation obligations of LPFM
stations on third-adjacent channels. Only section 7(1) specifies
requirements for ``low-power FM stations licensed at locations that do
not satisfy third-adjacent channel spacing requirements * * *.'' With
regard to such stations (``Section 7(1) Stations''), section 7(1)
instructs the Commission to adopt ``the same interference protections
that FM translator stations and FM booster stations are required to
provide as set forth in Section 74.1203 of [the] rules.'' Section 7(3),
in contrast, directs the Commission to require ``[LPFM] stations on
third-adjacent channels * * * to address interference complaints within
the protected contour of an affected station'' and encourages such LPFM
stations to address ``all other interference complaints.'' In the
Fourth FNPRM, we tentatively concluded that, through these two
provisions, Congress intended to create two different interference
protection and remediation regimes--one that applies to Section 7(1)
Stations and one that applies to all other LPFM stations (``Section
7(3) Stations''). We explained that the intended regimes differed both
with respect to the locations at which an affected station's signal is
protected from third-adjacent interference from an LPFM station and the
extent of the remediation obligations applicable when interference
occurs at these locations. We sought comment on our tentative
conclusion.
20. Commenters addressing this question support our tentative
conclusion. Accordingly, we find that section 7 of the LCRA creates two
different interference protection and remediation regimes--one that
applies to Section 7(1) Stations and one that applies to Section 7(3)
Stations. As we noted in the Fourth FNPRM, were we to conclude
otherwise, Section 7(1) Stations would be subject to different and
conflicting interference protection and remediation obligations.
Specifically, under section 7(1), which incorporates the requirements
for FM translators and boosters, Section 7(1) Stations must
``eliminate'' any actual interference they cause to the signal of any
authorized station in areas where that station's signal is ``regularly
used.'' Section 7(3), on the other hand, would obligate such stations
only to ``address'' complaints of interference occurring within an
affected station's protected contour. We conclude that this statutory
interpretation is necessary to read section 7 as a harmonious whole.
21. As we noted in the Fourth FNPRM, we can also reasonably
conclude that Congress intended to impose more stringent interference
protection and remediation obligations on LPFM stations that are
located nearest to full-service FM stations and, therefore, have a
greater potential to cause interference. The LCRA provides greater
flexibility by eliminating third-adjacent channel spacing requirements
for LPFM stations, but counterbalances that flexibility with a
prohibition on LPFM stations that would be short-spaced under such
requirements causing any actual interference to other stations.
Accordingly, our reading is consistent with the general licensing rule
of counterbalancing flexible technical standards with more stringent
interference remediation requirements.
22. Retention of Third-Adjacent Channel Spacing Requirements for
Reference. We tentatively concluded that, although section 3(a) of the
LCRA mandates the elimination of the third-adjacent channel spacing
requirements, we should retain them solely for reference purposes in
order to implement section 7(1) of the LCRA. We sought comment on this
tentative conclusion and also on whether, if the spacing tables are
retained in the rules,
[[Page 2082]]
to include them in Sec. 73.807 or a different rule section.
23. Commenters addressing this issue agree that the rules should
reference the former third-adjacent channel distance separation
requirements, but are divided on the best approach. REC expresses
concern that references to third-adjacent spacing in Sec. 73.807 could
confuse new applicants. Common Frequency asserts that it would be
confusing to eliminate the third-adjacent spacing provisions, rename
them, and then insert them in a table elsewhere in the rules.
24. We will retain the third-adjacent channel spacing provisions in
Sec. 73.807 for reference purposes only. It is necessary to reference
the former third-adjacent channel spacing requirements in order to
clarify which stations must adhere to the section 7(1) regime. We are
sympathetic to commenters' concerns of confusion. However, we believe
that licensees will find it easier and more convenient to have all the
spacing standards (reference or otherwise) in one section of the rules.
We make clear in the new version of Sec. 73.807 that LPFM stations
need not satisfy these standards, and that they are included solely to
determine which third-adjacent interference regime applies.
25. Applicability of sections 7(4) and (5) of the LCRA. Sections
7(4) and (5) of the LCRA establish a number of protection and
interference remediation requirements. These provisions mandate that
the Commission allow LPFM stations on third-adjacent channels to
collocate and establish certain complaint procedures and standards. In
the Fourth FNPRM, we tentatively concluded these sections apply only to
Section 7(3) Stations.
26. We affirm our tentative conclusion, which was supported by
Prometheus, the sole commenter on this issue. We believe this is the
most reasonable reading of these provisions. Sections 7(4) and (5) use
the same ``low-power FM stations on third-adjacent channels'' language
as section 7(3), not the more specific ``low-power FM stations licensed
at locations that do not satisfy third-adjacent channel spacing
requirements'' language set forth in section 7(1). In addition, as
discussed above, Section 7(1) Stations are subject to the well-
established and comprehensive interference protection and remediation
regime set forth in Sec. 74.1203 of the rules. We therefore will not
apply sections 7(4) and 7(5), which establish discrete requirements
inconsistent with the Sec. 74.1203 regime, to Section 7(1) stations.
27. Third-Adjacent Channel Interference Only. We tentatively
concluded that sections 7(1), (2), (3), (4) and (5) of the LCRA apply
only to third-adjacent channel interference. We affirm our conclusion,
which commenters support. Although Congress did not specify the type of
interference to which these provisions apply, we believe this is the
most reasonable reading. In each of these provisions, Congress refers
specifically to LPFM stations on third-adjacent channels or LPFM
stations that do not satisfy the third-adjacent channel spacing
requirements. These references reflect a focus on LPFM stations causing
interference to stations located on third-adjacent channels. Our
conclusion is further supported by the fact that Congress separately
addressed the possibility of second-adjacent channel interference in
section 3 of the LCRA.
2. Regime Applicable to Section 7(1) Stations
28. General Requirements. Section 7(1) Stations are subject to the
same interference protection and remediation regime applicable to FM
translator and booster stations. These requirements, set forth in Sec.
74.1203 of the rules, are more stringent than those currently
applicable to LPFM stations. Sec. 74.1203(a) prohibits ``actual
interference to * * * [t]he direct reception by the public of the off-
the-air signals of any authorized broadcast station * * * .'' It
specifies that ``[i]nterference will be considered to occur whenever
reception of a regularly used signal is impaired by the signals
radiated by'' the interfering FM translator station. An interfering FM
translator station must remedy the interference or cease operation. As
previously noted, the rule has been interpreted broadly.
29. Southwestern Ohio Public Radio (``SOPR''), the only commenter
to address this issue, comments that ``it appears that the requirements
in Section 7(1) give the Commission very little leeway in its
interpretation.'' Section 7(1) is explicit in its direction to
``provide the same interference protections that FM translator stations
and FM booster stations are required to provide as set forth in Section
74.1203.'' There is no evidence in the statute or legislative history
that Congress intended the Sec. 74.1203 requirements to be merely a
list of minimum criteria that could be supplemented or modified;
indeed, the statute expressly says that the interference protections
must be ``the same.'' Further, the LCRA refers to the particular
version of Sec. 74.1203 ``in effect on the date of enactment of this
Act'' (i.e., January 4, 2011). Accordingly, we will apply the relevant
sections of Sec. 74.1203, without modification, to Section 7(1)
Stations. We will interpret these provisions in the same manner as we
have in the FM translator context. In addition, we will consider
directional antennas, lower ERPs and/or differing polarizations to be
suitable techniques for eliminating third-adjacent channel
interference. FM translators have the flexibility to employ all of
these options in their operations. Thus, permitting LPFM stations to
use these same remedial techniques is consistent with Congress'
decision to require the wholesale adoption of the well-established and
comprehensive regime in Sec. 74.1203 of the rules.
30. Periodic Announcements. We also requested comment on requiring
newly constructed Section 7(1) Stations to make the same periodic
announcements required of Section 7(3) Stations under section 7(2) of
the LCRA. We questioned whether we could reasonably distinguish between
listeners of stations that may experience interference as a result of
the operations of Section 7(1) Stations and those that may experience
interference as a result of the operations of Section 7(3) Stations for
such purposes. We noted, however, that section 7(1) explicitly requires
the Commission to ``provide the same [LPFM] interference protections
that FM translator stations * * * are required to provide as set forth
in section 74.1203 of its rules,'' and that Sec. 74.1203 does not
require an FM translator station to broadcast periodic announcements
that alert listeners to the potential for interference. Thus, we asked
commenters to address whether we could and, if so, whether we should
impose the periodic announcement requirement on Section 7(1) Stations.
31. Commenters addressing this issue were divided. SOPR states that
the Commission must strictly adhere to the requirements of Sec.
74.1203, in accordance with the section 7(1) mandate, and therefore,
periodic announcements should not be required of Section 7(1) Stations.
Similarly, Common Frequency highlights the inconsistency of the
Commission finding distinctions between Section 7(1) and 7(3) Stations,
but then conversely stating that there is no reason to distinguish
between Section 7(1) Stations and Section 7(3) Stations for purposes of
periodic announcements. REC, on the other hand, argues that the section
7(2) periodic announcement requirement applies to Section 7(1)
Stations. It believes ``that the differences in references to how a
LPFM station operating on a third adjacent channel in respect to a
full-service FM station may be due to how the 2010 version of the LCRA
was marked-up by Congress,'' and
[[Page 2083]]
that Congress intended the periodic announcement requirement to apply
to all LPFM stations constructed on third-adjacent channels.
32. We believe that Congress, in framing section 7, did not intend
to apply the periodic announcement requirement to Section 7(1)
Stations. If it had wished to apply this requirement to Section 7(1)
Stations, it could have done so explicitly in the LCRA. Instead,
Congress required our wholesale adoption of the well-established and
comprehensive Sec. 74.1203 regime for Section 7(1) Stations. That
regime does not include any form of periodic announcements. We agree
with Common Frequency that it is incongruous to find clear distinctions
between the section 7(1) and 7(3) Station interference protection and
remediation regimes, as we have done, but then to ignore these
distinctions in this context. Accordingly, for the reasons discussed
above, we will not impose a periodic announcement requirement on
Section 7(1) Stations.
3. Regime Applicable to Other LPFM Stations
33. Section 7(3) of the LCRA requires the Commission to modify
Sec. 73.810 of the rules to require Section 7(3) Stations ``to address
interference complaints within the protected contour of an affected
station'' and encourage them to address all other interference
complaints, including complaints ``based on interference to a full-
service FM station, an FM translator station or an FM booster station
by the transmitter site of a low-power FM station on a third-adjacent
channel at any distance from the full-service FM station, FM translator
station or FM booster station.'' As noted above, we conclude that
sections 7(2), (4) and (5) apply only to Section 7(3) Stations. We
discuss the general interference remediation requirements set forth in
Section 7(3) and these other provisions below.
34. ``Addressing'' Complaints of Third-Adjacent Channel
Interference. Unlike section 7(1), section 7(3) does not specifically
refer to Sec. 74.1203 of the rules. While section 7(1) instructs the
Commission to require Section 7(1) Stations ``to provide'' interference
protections, section 7(3) merely instructs the Commission to require
Section 7(3) Stations ``to address'' complaints of interference.
Section 7(2) of the LCRA--which we conclude applies only to Section
7(3) Stations--further mandates that we require newly constructed
Section 7(3) Stations on third-adjacent channels to cooperate in
``addressing'' any such interference complaints. Therefore, in the
Fourth FNPRM, we sought comment on (1) what a Section 7(3) Station must
do to ``address'' a complaint of third-adjacent channel interference;
(2) whether to specify the scope of efforts which a Section 7(3)
Station must undertake; (3) whether to relieve a Section 7(3) Station
of its obligations in instances where the complainant does not
reasonably cooperate with the Section 7(3) Station's remedial efforts;
and (4) whether the more lenient interference protection obligations
currently set forth in Sec. 73.810 should continue to apply to Section
7(3) Stations.
35. Commenters offer varied interpretations of the actions a
Section 7(3) Station must take to ``address'' a complaint of third-
adjacent channel interference. SOPR argues that ``to address'' means
``to respond to the complaint with reasonable effort to remediate the
interference based on accepted engineering practices and with the
cooperation of the complainant.'' It urges the Commission to clearly
specify the scope of required efforts. Common Frequency proposes that
``addressing'' interference complaints ``could mean visiting the
impacted area, turning on the receiver in question, and shutting down
temporarily.'' NPR, in contrast, contends that this phrase imposes the
full scope of section 7(1) remediation requirements on Section 7(3)
Stations when interference occurs within the protected contour of the
affected station. Notwithstanding these divergent interpretations, we
find unanimous support for relieving Section 7(3) Stations of their
obligations in instances where a complainant does not reasonably
cooperate with an LPFM station's remedial efforts. Finally, in lieu of
applying the interference protection obligations currently set forth in
Sec. 73.810 to Section 7(3) Stations, one commenter suggests that we
instead employ the current FM translator rules, which, it asserts,
``have worked for decades and [are] seen as `tried and tested.'''
36. We find that it is most reasonable to conclude that the
substantial differences between the language of sections 7(1) and 7(3)
reflect Congress's intention to establish differing remediation regimes
for these two classes of stations. Moreover we find a clear difference
in meaning between the Sec. 74.1203 obligation to ``eliminate''
interference and the lesser section 7(3) obligation to ``address * * *
interference complaints.'' Accordingly, we will define ``address'' in
accordance with the current version of Sec. 73.810 of the rules,
meaning ``an LPFM station will be given a reasonable opportunity to
resolve all interference complaints.'' We will not require Section 7(3)
Stations to cease operations while resolving interference complaints,
and we decline to specify the scope of remedial efforts Section 7(3)
Stations must undertake. Section 7(3) Stations fully comply with the
Commission's former third-adjacent spacing requirements, a stringent
licensing standard, which is based on a proven methodology for ensuring
interference-free operations between nearby stations. Accordingly,
similarly stringent interference remediation obligations are
unnecessary. We expect Section 7(3) Stations, however, to make good
faith and diligent efforts to resolve any complaints received. For
example, a Section 7(3) Station may agree to provide new receivers to
impacted listeners or to install filters at the receiver site. Section
7(3) Stations also may wish to consider colocation, a power reduction
and/or other facility modifications (e.g., use of directional antennas
or differing polarizations) to alleviate the interference. Finally, we
will continue to consider a complaint resolved if the complainant does
not reasonably cooperate with a Section 7(3) Station's investigatory
and remedial efforts.
37. Complaints. Section 7(3) requires the Commission to provide
notice to the licensee of a Section 7(3) Station of the existence of
interference within 7 calendar days of the receipt of a complaint from
a listener or another station. Further, section 7(5) of the LCRA
expands the universe of interference complaints which Section 7(3)
Stations must remediate. Section 7(5) states:
The Federal Communications Commission shall --(A) permit the
submission of informal evidence of interference, including any
engineering analysis that an affected station may commission; (B)
accept complaints based on interference to a full-service FM
station, FM translator station, or FM booster station by the
transmitter site of a low-power FM station on a third-adjacent
channel at any distance from the full-service FM station, FM
translator station, or FM booster station; and (C) accept complaints
of interference to mobile reception.
38. We requested comment on whether any of the four criteria for
bona fide complaints set forth in Sec. 73.810(b) of the rules remain
relevant. We tentatively concluded that section 7(5) of the LCRA
requires us to delete Sec. Sec. 73.810(b)(1) (bona fide complaint must
allege interference caused by LPFM station that has its transmitter
site located within the predicted 60 dBu contour of the affected
station), (2) (bona fide complaint must be in form of affidavit and
state the nature and
[[Page 2084]]
location of the alleged interference) and (3) (bona fide complaint must
involve a fixed receiver located within the 60 dBu contour of the
affected station and not more than 1 kilometer from the LPFM
transmitter site). We asked commenters to address whether we should
retain the remaining criterion set forth in Sec. 73.810(b)(4), which
requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts. We also sought comment on
whether to establish certain basic requirements for complaints.
39. No commenter opposes our conclusion that section 7(5) of the
LCRA mandates that we delete Sec. Sec. 73.810(b)(1) and (b)(3) from
our rules. One commenter, however, proposes that we add a provision
limiting complaints to those involving interference within the 100 dBu
contour of the affected station. With respect to Sec. 73.810(b)(2)
(bona fide complaint must be in form of affidavit and state the nature
and location of the alleged interference), several commenters recommend
that we retain some semblance of the former rule and also establish
additional basic requirements for complaints. For instance, Athens
Community Radio Foundation asserts that bona fide complaints should
state the nature and location of the alleged interference, the call
letters of the stations involved, and accurate contact information.
Similarly, Common Frequency argues that an actionable complaint must
specify the location and date of interference, the type of receiver,
channel, time/day of interference, whether ongoing or intermittent, and
contact information for the complainant. Several commenters also assert
that the Commission should require complainants to file copies of their
complaints with the Audio Division, and that the Commission should
consider only complaints from bona fide listeners who are
``disinterested.'' Finally, those discussing it unanimously agree that
we should retain the criterion set forth in Sec. 73.810(b)(4), which
requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts.
40. We will, as proposed, eliminate Sec. Sec. 73.810(b)(1) and
(b)(3) from our rules. These distance restrictions conflict with the
explicit mandate of section 7(5) of the LCRA to ``accept complaints
based on interference * * * at any distance from the full-service FM
station, FM translator station, or FM booster station.'' In addition,
the Sec. 73.810(b)(3) fixed receiver limitation is inconsistent with
section 7(5)(C) of the LCRA, which requires us to accept complaints of
interference at fixed locations and to mobile reception.
41. In this same vein, we decline to adopt the proposal to limit
complaints to those occurring within the 100 dBu contour of the
affected station. We agree, however, with commenters' suggestions that
we impose explicit, basic requirements for complaints. A list of
minimum criteria likely will help LPFM stations quickly address issues
while also curbing the risk of frivolous filings. Accordingly, while we
will delete the Sec. 73.810(b)(2) criterion that the complaint be in
the form of an affidavit, we retain the requirement that the complaint
state the nature and location of the alleged interference. We will also
require complainants to specify: (1) The call signs of the LPFM station
and the affected full-service FM, FM translator or FM booster station;
(2) the type of receiver; and (3) current contact information. We
strongly encourage listeners to file copies of the complaints with the
Media Bureau's Audio Division to ensure proper oversight. LPFM stations
also must promptly forward copies of complaints to the Audio Division
for resolution. However, an affected station may forward copies of
complaints that it receives to the Audio Division as a courtesy to the
complainant listeners. When complainants fail to include all the
necessary information listed above, Audio Division staff will take
efforts to correct any deficiencies. We also limit actionable listener
complaints to those that are made by bona fide ``disinterested''
listeners (e.g., persons or entities without legal, economic or
familial stakes in the outcome of the LPFM station licensing
proceeding). Finally, we will preserve the Sec. 73.810(b)(4)
criterion, which requires a bona fide complaint to be received within
one year of the date an LPFM station commenced broadcasts with its
currently authorized facilities. Any interference caused by a Section
7(3) Station should be detectable within one year after it commences
such operations. This time restriction will reasonably limit
uncertainty regarding the potential modification or cancellation of an
LPFM station's license and such station's financial obligation to
resolve interference complaints. We believe that the efficient, limited
complaint procedure that we are adopting is fully consistent with the
LCRA and fairly balances the interests of full-service broadcasters
against the benefits of fostering the LPFM radio service.
42. Periodic Broadcast Announcements. Section 7(2) of the LCRA
directs the Commission to amend Sec. 73.810 of the rules to require a
newly constructed Section 7(3) Station to broadcast periodic
announcements that alert listeners to the potential for interference
and instruct them to contact the station to report any interference.
These announcements must be broadcast for a period of one year after
construction. We sought comment on whether we should adopt specific
announcement language and whether we should mandate the timing and
frequency of these announcements.
43. Commenters agree that the Commission should provide some
guidance regarding the text of the announcements. One commenter
recommends that the Commission specify explicit uniform language. Other
commenters state that the Commission should merely suggest language and
allow operators of Section 7(3) Stations the flexibility to modify the
wording. REC emphasizes that broadcasters need to have ``latitude to
word the message in a way to get the points across without overwhelming
listeners with technical jargon.''
44. With respect to the timing and frequency of the mandatory
announcements, REC argues that we should aim to achieve ``a balance
between educating radio listeners of changes in the `dialscape' as a
result of the new [LPFM] station while * * * not confus[ing] the
listener or excessively burden[ing] the [LPFM] broadcaster.'' Jeff
Sibert (``Sibert'') and Prometheus each urge us to address the
announcements in a manner that is simple, flexible and imposes a
minimum burden on new Section 7(3) Stations. One commenter suggests
that we allow the affected full-power station to waive the Section 7(3)
Station's periodic announcement requirement.
45. Several commenters recommend that we use the pre-filing and
post-filing license renewal announcement schedule as a template. REC,
in particular, suggests a very detailed schedule based on a modified
version of the renewal announcement schedule. It argues that any bona
fide interference will be discovered in the first month of the Section
7(3) Station's operation, and accordingly, it is necessary to air the
highest frequency of announcements during the first month. Sibert
asserts that the requirement to broadcast the announcement should be no
greater than once per day between the hours of 6 a.m. and midnight for
the first three months, and once per week during the same hours for the
last nine months.
46. We agree that we should provide licensees of newly constructed
Section 7(3) Stations explicit guidance on the language to be used in
the periodic
[[Page 2085]]
announcements. Therefore, we will amend our rules to specify sample
language that may be used in the announcements. Specific language will
make it easier for licensees of new Section 7(3) Stations to comply
with this section 7(2) requirement. We will not, however, mandate that
licensees of Section 7(3) Stations follow the sample text verbatim, but
rather, allow licensees the discretion to modify the exact wording, as
the vast majority proposed. To ensure consistency, the announcement
must, however, at a minimum: (1) Alert listeners of a potentially
affected third-adjacent channel station of the potential for
interference; (2) instruct listeners to contact the Section 7(3)
Station to report any interference; and (3) provide contact information
for the Section 7(3) Station. Further, the message must be broadcast in
the primary language of both the newly constructed Section 7(3) Station
and any third-adjacent station that could be potentially affected.
47. We will, as the commenters suggest, dictate the timing and
frequency of the required announcements. We believe that an explicit
schedule will promote compliance with this requirement. We also believe
that the schedule specified below achieves the benefits of effectively
notifying listeners of the potential for interference while minimizing
the costs of doing so for the new Section 7(3) Station.
48. We agree with REC that any interference is likely to be
detected within the first month of the new Section 7(3) Station's
operation. Accordingly, during the first thirty-days after a new
Section 7(3) Station is constructed, we direct such station to
broadcast the announcements at least twice daily. One of these daily
announcements shall be made between the hours of 7 a.m. and 9 a.m. or 4
p.m. and 6 p.m. The second daily announcement shall be made outside of
these time slots. Between days 31 and 365 of operation, the station
must broadcast the announcements a minimum of twice per week. The
required announcements shall be made between the hours of 7 a.m. and
midnight.
49. Finally, we decline to allow an affected full-power station to
waive the newly constructed Section 7(3) Station's periodic
announcement obligation, as one commenter suggests. Section 7(2) of the
LCRA explicitly mandates that newly constructed Section 7(3) Stations
broadcast periodic announcements. The announcement is intended to
benefit listeners, by alerting them of the potential for interference.
Allowing potentially affected stations to waive the announcements would
be inconsistent with section 7(2) of the LCRA and deprive listeners of
its intended benefits.
50. Technical Flexibility. Section 7(4) of the LCRA requires the
Commission, to the extent possible, to ``grant low-power FM stations on
third-adjacent channels the technical flexibility to remediate
interference through the colocation of the transmission facilities of
the low-power FM station and any stations on third-adjacent channels.''
In the Fourth FNPRM, we tentatively concluded that, other than
eliminating the third-adjacent channel spacing requirements as mandated
by section 3(a) of the LCRA, we need not modify or eliminate any other
provisions of our rules to implement section 7(4).
51. Two commenters propose additional modifications to our rules in
order to implement section 7(4). REC argues that LPFM stations should
have the flexibility to co-locate with or operate from a site ``very
close to the third-adjacent full-service station as long as no new
short spacing is created, even if this means moving the transmitter
site to a location that may be outside the current service contour of
the LPFM station.'' REC points out that, under existing rules, such a
change would constitute a ``major change'' and an applicant seeking
authority to make such a change would have to do so during a filing
window. We infer that REC would like us to modify our rules to clarify
that we will treat as a ``minor change'' a proposal to move a Section
7(3) Station's transmitter site, including a move outside its current
service contour, in order to co-locate or operate from a site close to
a third-adjacent channel station and remediate interference to that
station. We will adopt REC's proposed modification. We note that
section 7(4) of the LCRA explicitly requires the Commission to grant
``low-power FM stations on third-adjacent channels the technical
flexibility to remediate interference through the colocation of the
transmission facilities of the low-power FM station and any stations on
third-adjacent channels.'' We believe that REC's suggested expansion of
the definition of ``minor change'' will provide Section 7(3) Stations
the sort of ``technical flexibility'' that Congress intended. We also
will treat as a ``minor change'' an LPFM proposal to locate ``very
close'' to a third-adjacent channel station. Although the LCRA does not
explicitly direct the Commission to employ ``flexible'' licensing
standards in this context, colocation and ``very close'' locations can
eliminate the potential for interference for exactly the same reason
(i.e., they result in acceptable signal strength ratios between the two
stations at all locations). Generally, this will limit LPFM site
selections and relocations pursuant to this policy to transmitter
within 500 meters of stations operating on third-adjacent channels. The
approach we adopt will advance the overarching goal of section 7 to
prevent third-adjacent channel interference by LPFM stations.
Accordingly, we will modify Sec. 73.870(a) of our rules to treat these
moves as ``minor changes,'' and we will routinely grant applications
for authority to make these moves, upon a showing of potential
interference from the authorized site, and provided that the licensee
would continue to satisfy all eligibility requirements and maintain any
comparative attributes on which the grant of the station's initial
construction permit was predicated.
52. If interference is remediated through colocation, Common
Frequency recommends that we consider allowing ``flexible operating
proposals,'' such as upgrades to LP250 if the colocation takes the LPFM
transmitter far from the existing transmitter site, the use of
different or directional antennas, and the use of close-by towers
instead of colocation. We decline to permit Section 7(3) Stations
seeking to remediate interference by co-locating their transmission
facilities with those of an affected full-service FM station to operate
at powers exceeding 100 watts ERP at 30 meters HAAT. We will, however,
permit Section 7(3) Stations to propose lower powers, use of
directional antennas and use of differing polarizations to remediate
interference. This is consistent with our decision to afford applicants
seeking second-adjacent waivers the flexibility to employ these
methods.
4. Additional Interference Protection and Remediation Obligations
53. One additional provision of section 7--section 7(6)--requires
the Commission to impose additional interference protection and
remediation obligations on one class of LPFM stations. It directs the
Commission to create special interference protections for ``full-
service FM stations that are licensed in significantly populated States
with more than 3,000,000 population and a population density greater
than 1,000 people per square mile land area.'' The obligations apply
only to LPFM stations licensed after the enactment of the LCRA. Such
stations must remediate actual interference to full-service FM stations
licensed to the significantly populated states specified
[[Page 2086]]
in section 7(6) and ``located on third-adjacent, second-adjacent,
first-adjacent or co-channels'' to the LPFM station and must do so
under the interference and complaint procedures set forth in Sec.
74.1203 of the rules. In the Fourth FNPRM, we found that the section
7(6) interference requirements are, with one exception, unambiguous. We
sought comment on whether to interpret the term ``States'' to include
the territories and possessions of the United States. We noted that
only New Jersey and Puerto Rico satisfy the population and population
density thresholds set forth in section 7(6).
54. Commenters are divided how we should construe the term
``States.'' REC and SOPR argue that Congress did not intend to include
Puerto Rico as a ``State'' for purposes of section 7(6). REC contends
that, following lobbying from the New Jersey Broadcasters Association
(``NJBA''), Congress amended the Act to include the current section
7(6), and that Congress intended this section to apply solely to the
state of New Jersey. Arso Radio Corporation (``Arso''), in contrast,
asserts that ``States'' should include the territories and possessions
of the United States, and therefore, the more restrictive section 7(6)
interference protections should apply to both New Jersey and Puerto
Rico. Although Arso acknowledges that an examination of the legislative
history ``does not yield any clues as to congressional intent regarding
use of the word `States,''' it insists that Congress intended to define
the words ``States'' in the same way as it defined ``States'' in
section 153(47) of the Communications Act of 1934, as amended
(``Act''), which provides that the term ``State'' includes the District
of Columbia and the Territories and possessions.
55. We recognize that the term ``States'' is susceptible to
different interpretations. It is unclear from the statutory text
whether Congress intended the term ``States'' to mean the definition of
``States'' as it appears in the Act, which includes all territories and
possessions, or whether Congress intended to use the word ``State'' in
its literal sense. We believe, however, that the best construction of
this term, based on context and the current record before us, is that
``State'' means one of the 50 states. Congress knows how to implement
its directives as amendments to the Communications Act, and chose not
to do so in the LCRA. Thus, there is no basis for expanding on the
common meaning of the term ``states'' here to include territories. We
also agree with REC that New Jersey is ``in a unique situation where
there are two significant out-of-state metro markets (New York and
Philadelphia) on each side of the state.'' With the New York and
Philadelphia Arbitron Metro markets dominating much of the state, full
power radio stations in New Jersey generally operate with lower powers
and smaller protected contours than other full power radio stations.
This could make them uniquely susceptible to interference from LPFM and
FM translator stations. Moreover, we note that this provision of the
LCRA was introduced by Senator Lautenburg, the senior Senator from New
Jersey. This legislative history provides additional support for our
conclusion that the term ``States'' in section 7(6) was not intended to
include territories.
C. Protection of Translator Input Signals
56. Section 6 of the LCRA requires the Commission to ``modify its
rules to address the potential for predicted interference to FM
translator input signals on third-adjacent channels set forth in
Section 2.7 of the technical report entitled `Experimental Measurements
of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume
One--Final Report (May 2003).''' Section 2.7 of this report finds that
``significant interference to translator input signals does not occur
for [desired/undesired ratio] values of -34 dB or higher at the
translator input.'' Section 2.7 sets out a formula (``Mitre Formula'')
that allows calculation of the minimum LPFM-to-translator separation
that will ensure a desired/undesired ratio equal to or greater than -34
dB.
57. In the Fourth FNPRM, we noted that the Commission requires LPFM
stations to remediate actual interference to the input signal of an FM
translator station but has not established any minimum distance
separation requirements or other protection standards. Based on the
language of section 6, which requires the Commission to ``address the
potential for predicted interference,'' we tentatively concluded that
our existing requirements regarding remediation of actual interference
must be recast as licensing rules designed to prevent any predicted
interference. No commenter suggested another interpretation of section
6 of the LCRA. Thus, we affirm our tentative conclusion that section 6
of the LCRA requires us to adopt rules designed to prevent predicted
interference to FM translator input signals on third-adjacent channels.
58. In the Fourth FNPRM, we sought comment on whether we should
require LPFM applicants to protect the input signals of only those
translators receiving third-adjacent channel full-service FM station
signals, or whether we also should require them to protect the input
signals of translators that receive third-adjacent channel translator
signals directly off-air. Commenters' opinions vary on this issue.
Prometheus argues that the protections should be limited to translators
receiving input signals from FM stations. Prometheus believes that any
protections beyond those to translators receiving off-air signals from
FM stations would violate section 5 of the LCRA, which requires the
Commission to ensure that LPFM stations and FM translators remain
``equal in status.'' NPR and Western Inspirational, on the other hand,
assert that the protections should extend to translators receiving
input signals from other FM translators. NPR claims that, by its plain
terms, section 6 of the LCRA requires protection of all signal inputs
to translators. NPR notes that this interpretation is consistent with
the Commission's current rule protecting translator input signals.
Western Inspirational asserts that, with increased spectrum congestion,
it has found it necessary for many of its translators to use an off-air
input from another translator, not the originating FM station, in order
to obtain a reliable input signal.
59. After considering the comments and reviewing the text of the
LCRA, we conclude that LPFM applicants must protect the reception
directly, off-air of third-adjacent channel input signals from any
station, including full-service FM stations and FM translator stations.
Section 6 of the LCRA asks the Commission to address predicted
interference to ``FM translator input signals on third adjacent
channels.'' This unqualified mandate is consistent with our rules,
which require LPFM stations to operate without causing actual
interference to the input signal of an FM translator or FM booster
station.
60. We turn next to the issue of a predicted interference standard
for processing LPFM applications. We adopt the basic threshold test
proposed in the Fourth FNPRM, which received overwhelming support from
commenters. This threshold test closely tracks the interference
standard developed by Mitre but for the reasons stated below does not
require an LPFM applicant to obtain the receive antenna technical
characteristics that are incorporated into the Mitre Formula. It
provides that an applicant for a new or modified LPFM construction
permit may not propose a transmitter site within the ``potential
interference area'' of any FM translator station that receives its
input signal directly off-air from a full-service FM or FM translator
station on a third-adjacent channel. For
[[Page 2087]]
these purposes, we define the ``potential interference area'' as both
the area within 2 kilometers of the translator site and also the area
within 10 kilometers of the translator site within the azimuths from -
30 degrees to +30 degrees of the azimuth from the translator site to
the site of the FM station being rebroadcast by the translator.
61. As proposed in the Fourth FNPRM and supported by commenters, we
will permit an LPFM applicant proposing to locate its transmitter
within the ``potential interference area'' to use either of two methods
to demonstrate that LPFM station transmissions will not cause
interference to an FM translator input signal. First, as indicated in
Section 2.7 of the Mitre Report, an LPFM applicant may show that the
ratio of the signal strength of the LPFM (undesired) proposal to the
signal strength of the FM (desired) station is below 34 dB at all
locations. Second, an LPFM applicant may use the equation provided in
Section 2.7 of the Mitre Report. As requested by Prometheus, we also
will permit an LPFM applicant to reach an agreement with the licensee
of the potentially affected FM translator regarding an alternative
technical solution.
62. We do not authorize FM translator receive antenna locations.
However, we believe that most receive and transmit antennas are co-
located on the same tower. Accordingly, we proposed to assume that the
translator receive antenna is co-located with its associated translator
transmit antenna. We received no comment on this proposal. We continue
to believe that assuming colocation of translator receive and transmit
antennas will facilitate the use of the methods described above. We
noted that the Mitre Formula would require the horizontal plane pattern
of the FM translator's receive antenna--information that is not
typically available publicly or in CDBS. Therefore, we also proposed to
allow the use of a ``typical'' pattern in situations where an LPFM
applicant is not able to obtain this information from the FM translator
licensee, despite reasonable efforts to do so. Both Prometheus and
Common Frequency support this proposal. No commenter opposes it.
Accordingly, we adopt our proposal to allow use of a ``typical''
pattern when an LPFM station makes reasonable efforts but is unable to
obtain the horizontal plane pattern of an FM translator station from
that station.
63. Prometheus proposes that we relieve an LPFM applicant of its
obligation to protect an FM translator's input signal if, despite
reasonable efforts to do so, the applicant is unable to determine the
delivery method or input channel for that translator. We will not adopt
this proposal because the LCRA requires us to ``address the potential
for predicted interference'' in this context. We lack authority to
adopt a processing rule that abdicates this responsibility. For this
same reason, we also reject Prometheus' proposal to relieve an LPFM
station applicant from this protection obligation if a translator
licensee fails to maintain accurate and current Commission records
regarding its primary station and input signal. In any event, we note
that we specify the primary station call sign, frequency and community
of license in FM translator authorizations. In addition, we require
each FM translator licensee to identify its primary station when filing
its renewal application. We strongly recommend that FM translator
licensees update the Commission if they have changed their primary
stations since they last filed renewal applications.
64. We proposed to dismiss as defective an LPFM application that
specifies a transmitter site within the third-adjacent channel
``potential interference area'' but fails to include an exhibit
demonstrating lack of interference to the off-air reception by that
translator of its input signal. We proposed to permit an LPFM applicant
to seek reconsideration of the dismissal of its application and to
request reinstatement nunc pro tunc. We also proposed that an LPFM
applicant seeking reconsideration and reinstatement nunc pro tunc
demonstrate that its proposal would not cause any predicted
interference using either the undesired/desired ratio or the Mitre
Formula discussed above. Commenters support these proposals. We
continue to believe it is appropriate to treat an application dismissed
on these grounds the same as an application dismissed for violation of
other interference protection requirements. Accordingly, we adopt our
proposal to allow an applicant to seek reconsideration and
reinstatement nunc pro tunc by making one of the showings discussed
herein. In addition, consistent with our decision to permit applicants
to do so at the application filing stage, we will permit applicants to
reach an agreement with the licensee of the potentially affected FM
translator regarding alternative technical solutions.
D. Other Rule Changes
65. The Fourth FNPRM proposed changes to our rules intended to
promote the LPFM service's localism and diversity goals, reduce the
potential for licensing abuses, and clarify certain rules. We sought
comment on whether the proposed changes were consistent with the LCRA
and whether they would promote the public interest. We discuss each
proposed change in turn below.
1. Eligibility and Ownership
a. Requirement That Applicants Remain Local
66. The LPFM service is reserved solely for non-profit, local
organizations. In the Fourth FNPRM, we expressed concern that, because
our rules define ``local'' in terms of ``applicants'' and their
eligibility to ``submit applications,'' applicants and licensees might
not understand that the localism requirement extends beyond the
application stage. We proposed to clarify this by revising Sec.
73.853(b) to read: ``Only local applicants will be permitted to submit
applications. For the purposes of this paragraph, an applicant will be
deemed local if it can certify, at the time of application, that it
meets the criteria listed below and if such applicant continues to
satisfy the criteria at all times thereafter * * *.''
67. Prometheus and SOPR support our proposal. Prometheus notes that
to require otherwise (i.e., to require that an organization be local
only at the time it submits its application) ``would controvert the
LCRA and the policies of the Commission.'' SOPR asserts that this
clarification may prevent abuse. Catholic Radio Association (``CRA'')
suggests language it believes will better achieve our policy objective.
68. Given the limited reach of LPFM stations, we continue to
believe that LPFM entities must be local at all times and we will
clarify that requirement by amending Sec. 73.853(b). At CRA's
suggestion, we will adopt language slightly different from that
originally proposed. Our revised rule (with the new language
underlined) will read: ``Only local organizations will be permitted to
submit applications and to hold authorizations in the LPFM service. For
the purposes of this paragraph, an organization will be deemed local if
it can certify, at the time of application, that it meets the criteria
listed below and if it continues to satisfy the criteria at all times
thereafter * * *.'' We address changes we proposed to the criteria used
to define ``local,'' later in this decision.
b. Cross-Ownership of LPFM and FM Translator Stations
69. From the outset, the Commission has prohibited common ownership
of an LPFM station and any other media subject to the Commission's
ownership
[[Page 2088]]
rules. This prohibition fosters one of the most important purposes of
establishing the LPFM service--``to afford small, community-based
organizations an opportunity to communicate over the airwaves and thus
expand diversity of ownership.'' In the Fourth FNPRM, we sought comment
on whether to allow LPFM station licensees to own or hold attributable
interests in one or more FM translator stations. We noted that this
could enable LPFM stations to expand their listenership and provide
another way for FM translators to serve the needs of communities. We
asked whether it was possible to achieve such benefits without changing
the extremely local nature of the LPFM service. We further asked
whether we should limit cross-ownership of FM translators and LPFM
stations by, for example, requiring that (1) any cross-owned FM
translator rebroadcast the programming of its co-owned LPFM station;
(2) the 60 dBu contours of the co-owned LPFM and FM translator stations
overlap; and/or (3) the co-owned LPFM and FM translator stations be
located within a set distance or geographic limit of each other.
Finally, we asked whether to permit an LPFM station to use alternative
methods to deliver its signal to a commonly owned FM translator.
70. A few commenters oppose cross-ownership. These commenters
express concerns about the impact of LPFM/FM translator cross-ownership
on the local character of the LPFM service and the availability of
spectrum for new LPFM stations. NPR points out that the Commission, in
creating the LPFM service, considered but ultimately rejected the
option of allowing cross-ownership of LPFM and other broadcast
stations, finding that its interest in providing for new voices to
speak to the community and providing a medium for new speakers to gain
broadcasting experience would be best served by barring cross-
ownership.
71. In contrast, many commenters support LPFM/FM translator cross-
ownership. REC and Nexus/Conexus assert that cross-ownership would
enable LPFM stations to better reach their intended communities. REC
observes that FM translator stations owned by unrelated entities have
been rebroadcasting LPFM signals for over a decade. REC does not
believe that limited common ownership of FM translator and LPFM
stations would change the nature of the LPFM service. National Lawyers
Guild and Media Alliance state that translators might be useful if a
terrain obstruction blocks an LPFM signal within the LPFM station's
primary contour. Several commenters contend that cross-ownership could
enhance localism because many communities are larger than the typical
reach of an LPFM station's signal. They contend that FM translators
could allow stations to serve their entire intended service area, such
as a single county.
72. Most commenters qualify their support for cross-ownership,
suggesting various limits or restrictions to ensure that any co-owned
FM translator enhances an LPFM station's local mission. Commenters
support (1) establishing a distance or geographic limit on FM
translator cross-ownership, (2) requiring the service contours of co-
owned LPFM and FM translator stations to overlap; (3) limiting the
number of FM translators an LPFM licensee may own to a ``modest''
number, such as one or two; and/or (4) requiring co-owned translators
to rebroadcast only the LPFM station. Commenters also support requiring
an LPFM station to feed the FM translator with an off-air signal, the
same delivery restriction that applies to non-reserved band FM
translators.
73. We believe that commenters on both sides of this issue raise
valid points. As many observe, use of FM translators to rebroadcast
LPFM stations could be beneficial, improving local service to oddly-
shaped communities and to rural communities that could receive, at
best, only partial LPFM coverage. However, as others aptly note, cross-
ownership without adequate safeguards poses a potential danger to the
local character of the LPFM service. On balance, we believe that the
benefits of FM translator ownership by LPFM licensees will outweigh any
disadvantages, provided that we take steps to limit potential risks.
74. Accordingly, we will amend Sec. 73.860 of our rules to allow
LPFM/FM translator cross-ownership. We will limit cross-ownership,
however, in order to prevent large-scale chains and ``leapfrogging''
into unconnected, distant communities. We adopt the following five
limits on cross-ownership, which are intended to ensure that the LPFM
service retains its extremely local focus. First, we will permit
entities--other than Tribal Nation Applicants--to own or hold
attributable interests in one LPFM station and a maximum of two FM
translator stations. Second, we will require that the 60 dBu contours
of a commonly-owned LPFM station and FM translator station(s) overlap.
Third, we will require that an FM translator receive the signal of its
co-owned LPFM station off-air and directly from the LPFM station, not
another FM translator station. Fourth, we will limit the distance
between an LPFM station and the transmitting antenna of any co-owned
translator to 10 miles for applicants in the top 50 urban markets and
20 miles for applicants outside the top 50 urban markets. An LPFM
station may use either its transmitter site or the reference
coordinates of its community of license to satisfy these distance
restrictions. Fifth, we will require the FM translator station to
synchronously rebroadcast the primary analog signal of the commonly-
owned LPFM station (or for ``hybrid'' stations, the digital HD-1
program-stream) at all times.
75. We believe that allowing cross-ownership of an LPFM station and
up to two FM translator stations will provide maximum flexibility,
while the requirement that these translators link directly to their
commonly-owned LPFM station rather than to each other will prevent the
type of chained-networks of concern to commenters. To keep the service
provided by the LPFM/FM translator combinations locally focused, we
will limit the placement of co-owned FM translators to conform to the
same ten- and twenty-mile distances which define ``local'' applicants
in the top 50 and all other markets, respectively. We believe that such
a requirement is more easily understood and achieved than alternatives
phrased in terms of a signal's ability to stay within political
boundaries of a county or city. Our requirement that an FM translator
rebroadcast the primary signal of its co-owned LPFM station addresses
Grant County's concern that LPFM stations may begin to broadcast
multiple digital streams and that stations operating in such a hybrid
mode might use translators to network secondary, less locally-oriented
programming rather than the station's primary program stream. We are
aware of only one LPFM station currently operating in hybrid mode, so
this issue is currently of limited applicability. Nevertheless, we
adopt Grant County's suggestion that co-owned translators
simultaneously rebroadcast the LPFM station's analog programming, as a
forward-looking protection to preserve the service's local nature as
more LPFM stations avail themselves of technological advances. We
further agree with commenters that alternative signal delivery of LPFM
signals to FM translators could regionalize LPFM service. Accordingly,
we will require that an FM translator receive the signal of its co-
owned LPFM station off-air and directly from the LPFM station itself in
order to maintain the service's local character.
c. Ownership Issues Affecting Tribal Nations
76. We posed additional ownership-related questions in the Fourth
FNPRM,
[[Page 2089]]
including whether Tribal Nations are eligible and, if not, whether they
should be eligible to own LPFM stations. We also sought comment on
whether they should be permitted to own more than one LPFM station and/
or to own or hold an attributable interest in an LPFM station in
addition to a full-power station. We address each of these proposals
below.
77. Basic Eligibility. Sec. 73.853 of the rules currently provides
for the licensing of an LPFM station to a state or local government,
but does not explicitly establish the eligibility of a Tribal Nation
Applicant. Notwithstanding this omission, it is well established that
Tribal Nations are inherently sovereign Nations, with the obligation to
``maintain peace and good order, improve their condition, establish
school systems, and aid their people in their efforts to acquire the
arts of civilized life,'' within their jurisdictions. The Commission,
as an independent agency of the United States Government, has an
historic federal trust relationship with Tribal Nations, and a
longstanding policy of promoting Tribal self-sufficiency and economic
development. To this end, the Commission has taken steps to aid in
their efforts to provide educational and other programming to their
members residing on Tribal Lands, as well as to assist them in
acquiring stations for purposes of business and commercial development.
78. In view of our commitment to assist Tribal Nations in
establishing radio service on Tribal lands and our consideration of
whether to include a Tribal Nation selection criterion in the LPFM
comparative analysis, in the Fourth FNPRM we proposed to recognize
explicitly the eligibility of Tribal Nation Applicants to hold LPFM
licenses. We proposed to rely on the definitions of the terms ``Tribal
applicant'' and ``Tribal lands'' as they are currently defined in our
rules governing full-power NCE FM licensing. By specifically cross-
referencing the definition of ``Tribal applicant'' set forth in Sec.
73.7000 of the rules, which includes a reference to the term ``Tribal
coverage,'' we implicitly proposed to incorporate the definition of
``Tribal coverage'' set forth therein.
79. Commenters, including NPM and NCAI, supported without
significant discussion the proposal to expand the LPFM eligibility rule
to include Tribal Nation Applicants. No commenter opposed this
proposal. Accordingly, we will amend Sec. 73.853(a) to clarify that
Tribal Nation Applicants are eligible to hold LPFM licenses. This rule
amendment further underscores the Commission's commitment to recognize
the sovereignty of Tribal Nations and to ensure their equal treatment
under our rules. However, we will not, as originally proposed, rely on
the definition of ``Tribal applicant'' or ``Tribal coverage'' currently
used in the NCE FM context. The definition of ``Tribal coverage'' set
forth in the NCE FM rules includes a coverage requirement and a
requirement that the proposed station serve at least 2,000 people
living on Tribal Lands. As NPM and NCAI note, the limited scope of LPFM
coverage and the scattered populations on lands occupied by Tribal
Nations warrant a departure from the definition of ``Tribal coverage''
set forth in Sec. 73.7000. Unlike NPM and NCAI, however, we believe
that not only the 2,000 person threshold but also the coverage
requirements are unsuitable for the LPFM context. Instead, for LPFM
licensing purposes, we will define a ``Tribal applicant'' by retaining
the requirement that the applicant be a Tribe or entity that is 51
percent or more owned or controlled by a Tribe. Such action is
consistent with the localism and diversity goals of the LPFM service
and will better achieve our goal of assisting Tribal Nations in
establishing radio service to their members on Tribal Lands. Tribal
stations currently account for less than one-third of one percent of
the more than 14,000 radio stations in the United States. Thus, it is
self-evident that expanding Tribal radio ownership opportunities will
help bring needed new service to chronically underserved communities.
Moreover, restricting ownership to Tribes and Tribally controlled
entities, which are obligated to preserve their histories, languages,
cultures and traditions, will promote the licensing of stations to
entities that are uniquely capable of providing radio programming
tailored to local community needs and interests.
80. Finally, as NPM and NCAI propose, we will consider a Tribal
Nation Applicant local throughout its Tribal lands, so long as such
lands are within the LPFM's station's service area. We are persuaded
that this better recognizes the sovereign status of Tribal Nations than
our original proposal to consider a Tribal Nation Applicant local only
if it proposed to locate the transmitting antenna of the proposed LPFM
station on its Tribal lands. Moreover, this is consistent with the
rules applicable to Tribal Nations and state and local governments
operating full-service NCE-FM and Public Safety land mobile services.
81. Ownership of Multiple LPFM stations. The Commission currently
prohibits entities from owning more than one LPFM station unless they
are ``[n]ot-for-profit organizations with a public safety purpose.''
This prohibition is intended to further diversity of ownership and
foster a local, community-based LPFM service. In the Fourth FNPRM, we
sought comment on whether to permit Tribal Nation Applicants to seek
more than one LPFM construction permit to ensure adequate coverage of
Tribal lands. For instance, we noted that ownership of multiple LPFM
stations might be appropriate if Tribal Nation Applicants seek to serve
large, irregularly shaped or rural areas that could not be covered
adequately with one LPFM station. We explained that we believed that
permitting Tribal Nations to hold more than one LPFM license could
advance the Commission's efforts to enhance the ability of Tribal
Nations to produce programming tailored to their specific needs and
cultures, and expand Tribal Nation LPFM station ownership
opportunities. We questioned, however, whether we should limit
ownership of multiple LPFM stations by a Tribal Nation Applicant to
situations where channels also are available for other applicants,
thereby eliminating the risk that a new entrant would be precluded from
offering service. Finally, we sought comment on whether to implement
this policy through amendment of Sec. 73.855(a) of the rules or by
rule waivers.
82. A number of commenters support Tribal Nation ownership of
multiple LPFM stations on Tribal lands to permit more complete coverage
than would be achieved with a single LPFM station. NPM and NCAI note
that Tribal Nations already are eligible to own multiple LPFM stations
as governmental entities under the public safety exception to our ban
on multiple ownership of LPFM stations. They and REC believe Tribal
Nations should also be able to own multiple LPFM stations for other
noncommercial purposes.
83. Common Frequency, NLG and Media Alliance believe that multiple
ownership by Tribal Nations is appropriate on Tribal lands, and in
rural areas and small towns where there would be few other
organizations interested in applying for LPFM stations. REC, however,
would allow Tribal Nation Applicants to own or hold attributable
interests in multiple LPFM stations only if Tribal lands constitute at
least 50 percent of the land area covered by each additional LPFM
station licensed to a Tribal Nation Applicant.
84. CRA, Matt Tuter (``Tuter'') and William Spry (``Spry'') urge us
to eliminate the ban on multiple ownership of LPFM stations altogether.
[[Page 2090]]
CRA and Tuter contend that maintaining multiple ownership restrictions
for all applicants except for Tribal Nation Applicants is mistaken
``because it proceeds from a false notion that only Tribal governments
can serve the interests of Tribal Americans.'' Spry, on the other hand,
argues that allowing multiple ownership of LPFM stations is no
different than permitting cross-ownership of an LPFM station and FM
translator stations. According to Spry, ``Multiple licenses are
multiple licenses. The service should not matter.''
85. We will allow Tribal Nation Applicants to seek up to two LPFM
construction permits to ensure adequate coverage of Tribal lands. Our
rules already permit governments, including Tribal Nations, to own
multiple LPFM stations for public safety purposes, provided that they
designate one application as a priority and provided that non-priority
applications do not face MX applications. Consistent with our decision
above, we will permit each such co-owned LPFM station to retransmit its
signal over two FM translator stations, creating the potential for a
Tribal Nation Applicant to have attributable interests in a total of
two LPFM stations and four FM translator stations. We believe that this
action will significantly further opportunities for LPFM service by
Tribal Nations to their members. We will not eliminate our prohibition
on multiple ownership altogether as CRA, Tuter and Spry urge. In the
Fourth Report and Order in this proceeding we found that limited
licensing opportunities remain for future LPFM stations in many larger
markets while abundant spectrum is available in the more sparsely
populated areas where Tribal Nation stations would operate
predominantly. Moreover, the voluminous record of this proceeding
testifies to the unmet demand for community radio stations. Given the
imbalance between spectrum supply and applicant demand in larger
markets, eliminating the current prohibition entirely could undermine
the LPFM service goal to promote diversity of ownership. Nor will we
restrict Tribal Nation ownership of multiple LPFM stations as proposed
by REC. Tribal Nation Applicants will need to satisfy our localism
requirement in order to be eligible to hold LPFM licenses. We believe
this will provide adequate assurance that Tribal Nation ownership of
multiple LPFM stations furthers our goal of promoting service to Tribal
lands and members.
86. Finally, we note that, in the past, the Commission has
prohibited an LPFM applicant from filing more than one application in a
filing window. In doing so, it relied upon the fact that ``no one may
hold an attributable interest in more than one LPFM station'' and noted
that ``a second application filed by an applicant in [a] window would
be treated as a `conflicting' application subject to dismissal under
Section 73.3518.'' As discussed above, we are creating a limited
exception to the ban on multiple ownership of LPFM stations for Tribal
Nation Applicants. Accordingly, we will permit Tribal Nation Applicants
to file up to two applications in a filing window.
87. Cross-Ownership of LPFM and Full Power Stations. We also sought
comment on whether to permit a full-service radio station permittee or
licensee that is a Tribal Nation Applicant to file for an LPFM station
and hold an attributable interest in such station. As discussed
previously, our rules prohibit cross-ownership in order ``to afford
small, community-based organizations an opportunity to communicate over
the airwaves and thus expand diversity of ownership.'' We stated that
we believed that adding an exception for Tribal Nations would enhance
their ability to provide communications services to their members on
Tribal lands without significantly undermining diversity of ownership.
We asked commenters to discuss whether such an exception should be
limited to situations where the Tribal Nation Applicant demonstrates
that it would serve currently unserved Tribal lands or populations.
88. Few commenters discussed this proposal. NPM, NCAI and Common
Frequency express general support. CRA supports cross-ownership of LPFM
and full-power stations but believes this option should be available to
all applicants. REC supports the proposal but would impose certain
cross-ownership restrictions.
89. After considering the comments, we do not believe that there is
a sufficient record on which to modify our rules to provide for Tribal
Nation cross-ownership of LPFM and full-service stations. The record at
this time does not demonstrate that this is necessary or would provide
significant public interest benefit. A Tribal Nation with an LPFM
authorization may file at any time a rulemaking petition for a Tribal
allotment, provided that it pledges to divest the LPFM station.
Although we recognize that cross-ownership could permit a Tribal Nation
to program separately for different audiences, we remain concerned that
this type of cross-ownership might undermine the diversity goals of the
LPFM service. It is also not clear, on the record before us, how it
would advance our goal of expanding service to Tribal lands and
members. Finally, the record did not identify a demonstrated need
unique to Tribal Nations that this change would address. Accordingly,
we decline at this time to adopt a cross-ownership exception that would
allow a Tribal Nation Applicant to hold both LPFM and full-power radio
station authorizations. A Tribal Nation Applicant that can demonstrate
that a waiver would advance our LPFM goals, and advance our goal of
expanding service to Tribal lands and members or is otherwise in the
public interest, may seek a waiver of this ownership restriction.
Moreover, in light of the trust relationship we share with federally
recognized Tribal Nations, the Commission will endeavor, through
efforts coordinated by the Office of Native Affairs and Policy and the
Audio Division, to engage in further consultation with Tribal Nations
and coordination with inter-Tribal government organizations on this
cross-ownership issue.
d. Ownership of Student-Run Stations
90. Two commenters ask us to make changes to the exception to the
cross-ownership prohibition for student-run stations, which is set
forth in Sec. 73.860(b) of the rules. Currently, we permit an
accredited school that has a non-student-run full power broadcast
station also to apply for an LPFM station that will be managed and
operated by students of that institution, provided that the LPFM
application is not subject to competing applications. The Commission
dismisses the student-run LPFM application if competing applications
are filed.
91. REC and Common Frequency propose that we consider applications
for student-run stations even if there are competing applications, so
that all applicants can participate in settlements and time sharing
negotiations. We agree that it would serve the public interest to
eliminate this automatic dismissal requirement. When the Commission
first adopted this exception to the general prohibition on cross-
ownership, it was seeking to strike a balance between an LPFM service
comprised entirely of new entrants and one which would enable new
speakers including students to gain experience in the broadcast field,
even if their universities held other broadcast interests. The
Commission believed that the exception properly balanced the interests
of local groups in acquiring a first broadcast facility and of
university licensees in providing a distinct media outlet for students.
Our decision today, however,
[[Page 2091]]
alters the LPFM comparative process by adding a selection criterion for
applicants with no other broadcast interests. Given this change, we
believe it is appropriate to eliminate our limitation on eligibility
for student-run LPFM applications by schools with non-student run full
power broadcast stations.
92. Common Frequency also proposes that we allow university systems
with multiple campuses serving distinct regions, such as those in New
York, Georgia, and California, to apply for student-run LPFM stations
at any campus without another station, provided that the 60 dBu service
contours do not overlap. For example, Common Frequency argues that the
newest campus of the University of California at Merced could benefit
from a student-run LPFM station but cannot apply because the university
owns full-power stations at other campuses. We do not believe that a
rule change is needed, however, concerning multiple campuses. Under our
rules, a local chapter of a national or other large organization is not
attributed with the interests of the larger organization, provided that
the local chapter is separately incorporated and has a distinct local
presence and mission. In 2000, the Commission clarified that this LPFM
attribution exception for ``local chapters'' applies to schools that
are part of the same school system, including university systems with
multiple campuses, provided that the ``local chapter'' seeks its own
licenses. Thus, in Common Frequency's example, the University of
California's ownership of full power broadcast stations licensed to
separate campus institutions would not prevent the University of
California at Merced from applying for an LPFM new station construction
permit for a student-run station. We note, however, that ``local
chapters'' of larger organizations that hold broadcast interests will
not qualify for a ``new entrant'' point, as discussed below. Any
broadcast interests held by the ``parent'' organization will be
considered attributable for the purposes of this criterion only.
2. Selection Among Mutually Exclusive Applicants
93. The Commission accepts applications for new LPFM stations or
major changes to authorized LPFM stations only during filing windows.
After the close of an LPFM filing window, the Commission makes mutual
exclusivity determinations with regard to all timely and complete
filings. The staff then processes any applications not in conflict with
any other application filed during the window, and offers applicants
identified as MX with other applicants the opportunity to settle their
conflicts. If conflicts remain, the Commission applies the LPFM point
system. Specifically, under our current rules, the Commission awards
one point to each applicant that has an established community presence,
one point to each applicant that pledges to operate at least twelve
hours per day, and one point to each applicant that pledges to
originate locally at least eight hours of programming per day. The
Commission takes the pledges made by applicants seriously. We will
consider complaints that a licensee is not making good on a pledge it
made during the application process and take appropriate enforcement
action if we find a licensee has not followed through on its pledge.
Moreover, as we noted in establishing the point system, ``As with other
broadcast applications, the Commission will rely on certifications but
will use random audits to verify the accuracy of the certifications.''
In the event of a tie, the Commission employs voluntary time sharing as
the initial tie-breaker. As a last resort, the Commission awards each
tied and grantable applicant an equal, successive and non-renewable
license term of no less than one year, for a combined total eight-year
term.
94. In the Fourth FNPRM, we proposed certain changes to our
existing criteria, suggested that we award a point to Tribal Nation
Applicants, and requested suggestions for new selection criteria that
would improve the efficiency of the selection process. As discussed in
more detail below, we adopt a revised point system. We will award one
point to applicants for each of the following: (1) Established
community presence; (2) local program origination; (3) main studio/
staff presence (with an extra point going to those applicants making
both the local program origination and main studio pledges); (4)
service to Tribal lands by a Tribal Nation Applicant; and (5) new entry
into radio broadcasting. We will continue to accept voluntary timeshare
arrangements, and will continue to accept partial settlements not
involving timeshare arrangements, as an additional means to eliminate
ties, discourage gamesmanship in timesharing arrangements, and reduce
involuntary timeshare outcomes. We eliminate successive timeshare
arrangements as the last resort, and will instead allow remaining
qualified applicants to share time designated in the manner described
below. Finally, we revise our rules to extend mandatory time sharing to
LPFM stations that meet the Commission's minimum operating requirements
but do not operate 12 hours per day each day of the year.
a. Point System Structure, and Elimination of Proposed Operating Hours
Criterion
95. REC and Prometheus each offer modifications to the current
point system, but also submit alternative or enhanced methods by which
to resolve MX groups. Each party maintains that the purpose of its
proposed structure is to decrease the number of potential timeshares
and successive licensees. Prometheus proposes a multistage ``waterfall
evaluation process'' in which there are multiple opportunities for a
single winner to emerge. It notes that, under this system, the
Commission would be able to emphasize its ``top priority'' criteria by
placing them in the first tier, and explains the process as follows:
In this system, each criterion would be worth a single point and
would be placed--according to priority--into one of several tiers.
The Commission would first compare applications using only the
criteria in ``Tier 1.'' If, after relying only on the criteria in
Tier 1, a single applicant receives more points than any of its
competitors, that winning applicant becomes the tentative selectee.
However, in the event of a tie between two or more applicants with
the most points, those tied applicants would then advance to Tier 2.
Applicants with fewer points would be dismissed. These procedures
would then be repeated to evaluate the remaining applicants using
Tier 2 and, if necessary, Tier 3 criteria.
96. REC, on the other hand, suggests that we retain the established
community presence and local programming criteria, and award additional
points as follows:
--One point to any applicant that is a municipal or state agency
eligible under Part 90 of the rules and provides emergency service;
--One point to any applicant that is an accredited school and will use
the proposed LPFM station for a ``hands on'' educational experience in
broadcasting;
--One point to any applicant proposing to broadcast children's
programming for at least 3 hours per week;
--One point to any applicant that will maintain a main studio staff
presence for at least 40 hours per week;
--One point to any applicant volunteering to maintain an online public
file;
--One point to any applicant that is owned or controlled by a
recognized Tribal Nation that currently has no attributable interests
in any other broadcast facility, proposes a
[[Page 2092]]
transmitter site located within the boundaries of a Tribal Nation, and
has not received a point under this criterion in connection with
another LPFM station for which the applicant holds a construction
permit or license;
--One point to any applicant that pledges to create a public access
broadcasting regime that solicits and presents programming created by
and directly submitted by members of the public within the proposed
LPFM station's service contour; and
--One point to any applicant willing to accept a time share agreement
in lieu of being allowed to broadcast full time.
97. We continue to believe that our basic points structure remains
the most effective and efficient method of resolving mutual
exclusivities. This conclusion is based in part on our recent
experience with NCE applications filed during the 2007 and 2010
windows, where we have successfully resolved hundreds of groups of MX
applications based on a very similar point system process. We decline
to adopt Prometheus' proposed ``waterfall'' system. While doing so may
reduce the likelihood of involuntary timesharing outcomes, we do not
believe, as Prometheus suggests, that it would ``reduce the
administrative complexity'' of the comparative process generally.
Indeed, we believe that it would have the opposite effect, as it would
also create the potential for ``waterfall'' levels of comparative
analysis and re-analysis. For example, for every successful challenge
to the tentative selection of an applicant in a tiered category, the
Commission would be forced to re-evaluate the group as a whole to
determine which applicant, if any, should proceed to the next tier. If
the new applicant in the next tier was successfully challenged, the
Commission would have to repeat the evaluation process. This outcome is
much less efficient than the current points system, which allows the
Commission to weigh all points claimed by all applicants
simultaneously. Even if we were to conclude that this approach was
administratively feasible, we believe that we would need a far more
comprehensive record, developed through a supplemental rulemaking,
before we could attempt to ``rank'' the LPFM selection criteria into
``tiers.''
98. As discussed below, however, we adopt some of the new criteria
suggested by REC, which we believe will enhance the localism and
diversity policies underlying the LPFM service and anticipate will
reduce the number of involuntary timesharing outcomes. We reject the
remaining criteria suggested by REC and others, as they fail to
demonstrate any unmet need that warrants preferences for particular
types of programming, would be difficult and time-consuming to
administer or enforce, or would not substantially further the
Commission's localism goals.
99. Finally, REC, Prometheus and others suggest that we eliminate
the proposed operating hours criterion, noting that, because of
automation software, ``even one-person LPFM stations easily meet this
standard.'' We agree with the commenters that this criterion does not
meaningfully distinguish among applicants. Thus, we eliminate it.
b. Established Community Presence
100. Currently, under the LPFM selection procedures for MX LPFM
applications set forth in Sec. 73.872 of the rules, the Commission
awards one point to an applicant that has an established community
presence. The Commission deems an applicant to have such a presence if,
for at least two years prior to application filing, the applicant has
been headquartered, has maintained a campus or has had three-quarters
of its board members residing within ten miles of the proposed
station's transmitter site. In the Fourth FNPRM, we proposed to revise
the language of Sec. 73.872(b)(1) to clarify that an applicant must
have had an established local presence for a specified period of time
prior to filing its application and must maintain that local presence
at all times thereafter. We noted that while Sec. 73.872(b)(1)
currently does not include the requirement that an applicant maintain a
local presence, we believed that was the only reasonable interpretation
of the rule. Commenters that addressed this proposal agreed that this
was a reasonable interpretation. Accordingly, we adopt this proposed
revision.
101. In addition, we sought comment on other changes to the rule.
First, we requested comment on whether to revise our definition of
established community presence to require that an applicant have
maintained such a presence for a longer period of time, such as four
years. Commenters largely disagreed with this proposal, asserting that
the duration of a nonprofit organization's existence is not indicative
of its level of responsiveness to local concerns. Others noted that the
proposal could ``shut out'' suitable applicants or have ``unintended
discriminatory consequences.'' A few commenters, however, generally
embraced our proposal to maintain the two-year threshold but supported
an award of an additional point to applicants that have a substantially
longer established community presence (e.g., four years).
102. We continue to believe that established local organizations
are more likely to be aware of community needs and better able to ``hit
the ground running'' upon commencement of broadcast operations.
However, we are persuaded by commenters that organizations that have
been established in the community for four years will not necessarily
be more responsive to community needs or likely to establish a viable
community radio station than those who have been present for two. We
likewise agree that extending the length to four years may
unnecessarily limit the pool of qualified organizations. Finally,
parties supporting a ``bonus'' point for applicants with more
established ties to the community failed to offer any demonstration of
greater responsiveness supporting its adoption. Accordingly, we will
retain the current two-year standard.
103. We also solicited comment on whether we should modify Sec.
73.872(b)(1) to extend the established community presence standard to
20 miles in rural areas. We will adopt this modification as proposed.
We note that the Commission extended the ``local'' standard in Sec.
73.853(b) to 20 miles only for rural areas, based on a record
indicating special challenges for rural stations. While many commenters
support an extension of the established community presence standard to
20 miles in all areas, not just rural areas, we are unconvinced that
limiting our extension of the standard to rural areas only is unduly
harsh or will create disadvantages to applicants with geographically
dispersed board member residences, as some commenters suggest.
104. Finally, we sought comment on whether to allow local
organizations filing as consortia to receive one point under the
established community presence criterion for each organization that
qualifies for such a point. Most commenters rejected this proposal,
noting that it would encourage gamesmanship and unethical behavior.
Amherst Alliance and others state that they are ``deeply concerned that
unethical LPFM applicants could manufacture `paper partners' in order
to gain a dramatic advantage over their rivals,'' predicting that the
paper partners would eventually either leave the scene or simply
``rubber stamp'' the station operator's actions. Prometheus notes that
the proposal could lead to discrimination, and potentially lead to a
contest ``favoring the best connected,
[[Page 2093]]
best resourced groups'' in a given community. It further notes that
non-consortium applicants competing with consortium applicants would
almost always lose, even if the non-consortium applicants have received
points that are arguably more ``directly related'' to a licensee's
potential to serve its community. Finally, Common Frequency notes that
the proposal would ``discourage diversity,'' effectively rewarding
consortia organizations that hold similar viewpoints over single
minority groups, such as foreign-language speakers and LGBT
organizations.
105. The few commenters supporting the proposal note that the
consortia proposal could speed up the licensing process by lessening
the Commission's burden of sorting out MX applications, and would help
avoid involuntary time sharing by applicants whose proposed programming
formats are incompatible and likely to confuse potential audiences. To
help deter potential abuse, Cynthia Conti (``Conti'') suggests that the
Commission require consortia applicants to submit with their
applications proof of their intention to coexist at their future
station, such as a ``joint plan of action'' that would include
descriptions of the participating organizations, their individual and
collective intentions for the station, and a proposed programming
schedule.
106. We are persuaded by commenters that the risk of licensing
abuses and the potential for excluding unrepresented or
underrepresented niche communities far outweigh potential service
benefits or mere administrative efficiencies. Even if we were to
require supporting documentation at the application stage, we would
still have no reliable mechanism, given our limited administrative
resources, to ultimately ensure that such consortia relationships are
being meaningfully maintained throughout the license period. Thus, we
do not adopt the consortia proposal.
c. Local Program Origination
107. The Commission currently encourages LPFM stations to originate
programming locally by awarding one point to each MX applicant that
pledges to provide at least eight hours per day of locally originated
programming. The rules define ``local origination'' as ``the production
of programming, by the licensee, within ten miles of the coordinates of
the proposed transmitting antenna.'' In adopting the local program
origination criterion, the Commission reasoned that ``local program
origination can advance the Commission's policy goal of addressing
unmet needs for community-oriented radio broadcasting'' and concluded
that ``an applicant's intent to provide locally-originated programming
is a reasonable gauge of whether the LPFM station will function as an
outlet for community self-expression.''
108. In the Fourth FNPRM, we sought comment on whether to place
greater emphasis on this selection factor by awarding two points for
this criterion instead of the current one point. Alternatively, we
sought comment on whether to impose a specific requirement that all new
LPFM licensees provide locally-originated programming. We asked parties
supporting such a requirement to explain why our prior finding that it
was not necessary to impose specific requirements for locally
originated programming no longer is valid and to identify problems or
short-comings in the current LPFM licensing and service rules that such
a change would remedy. We also asked parties supporting a locally-
originated programming requirement to address potential constitutional
issues.
109. Many commenters generally support the adoption of a locally
originated programming obligation, but provide little or no analysis.
Prometheus, which devotes the most significant discussion to this
issue, would require every LPFM station to air at least 20 hours per
week of locally originated programming, maintaining that such a
requirement would more effectively ensure that a station would serve
community needs, would be consistent with the Commission's policy goal
of promoting localism, and would help remediate the ``drastic decline''
of local programming in the media. Prometheus asserts that today,
approximately 20 percent of all licensed LPFM stations produce no local
programming whatsoever, and states that, without such a requirement, a
``significant number'' of LPFM stations will not offer any local
programming. It further maintains that a local program origination
requirement is constitutionally sound, pointing to the fact that
``federal legislation, Commission decisions and Supreme Court precedent
support the importance of local programming* * * and support Commission
actions to adopt content-neutral broadcaster obligations that embrace
substantial broadcaster discretion.'' In particular, Prometheus cites
proceedings in which the Commission has regulated children's television
and network programming.
110. Several commenters do not agree with Prometheus' position,
instead arguing that local program origination should remain a
comparative criterion. REC fears that ``during tough times,'' stations
may not have the financial resources to generate 20 hours weekly of
local programming. Other commenters observe that local program
origination is ``an easily manipulated requirement,'' is of ``limited
value'' with no enforcement mechanism in place, and is not necessarily
more responsive to community needs than non-local content. Conti states
that, ``given the concern over the constitutionality of requiring
programming, the addition of a locally-originated programming
requirement could make LPFM rules vulnerable to complaints'' and does
not ``think it is worth the risk considering that the criterion does
not necessarily result in its stated goal.''
111. After careful consideration of the record, we decline to
impose a local program origination requirement. When we first created
the LPFM service, we sought comment on whether to impose a local
program origination requirement. We noted that listeners benefit from
locally originated programming because it often reflects needs,
interests, circumstances or perspectives that may be unique to a
community. However, we also found that programming need not be locally
originated to be responsive to local needs. Ultimately, we concluded
that the nature of the LPFM service, combined with eligibility criteria
and preferences, would ensure that LPFM licensees would provide locally
originated programming or programming that would otherwise respond to
local needs.
112. Nothing in the record persuades us that these findings are no
longer valid. The Commission has consistently maintained that non-local
programming can serve community needs. While Prometheus points to a
decline in the production of local programming as support for a local
program origination requirement, it has failed to counter the argument
that non-locally produced programming can serve community needs.
Indeed, as commenters have noted, non-local programming can serve the
unique needs of a community. For instance, a foreign language station
may carry programming ``from home,'' other LPFM stations may broadcast
public affairs programming from a neighboring county, and still other
LPFM stations may broadcast religious programming.
113. We also continue to believe that the nature of the service
inherently ensures that LPFM stations will be responsive to community
needs. The record supports this conclusion. Last year, in the INC
Report, we noted several LPFM ``success'' stories in which LPFM
stations were serving their
[[Page 2094]]
communities. Moreover, while Prometheus points to the fact that 20
percent of all LPFM licensees currently produce no locally originated
programming as evidence of a local media crisis, we believe this is a
``glass half empty'' perspective, and are instead encouraged by the
fact that 80 percent of all LPFM licensees are producing some local
programming.
114. Moreover, given the current economic climate, we believe a
local program origination requirement could unnecessarily restrict LPFM
licensees and jeopardize their financial health. Many, if not all, of
these stations are run by volunteers and operate on a shoestring
budget. LPFM licensees often have difficulty finding underwriters to
support their stations. Prometheus argues that LPFM stations could
arguably afford to produce locally originated programming. However, our
own records show that, as a whole, the LPFM service remains financially
vulnerable. This is evidenced by the fact that, of the 1,286 LPFM
construction permits granted out of the last LPFM application filing
window, only 903 LPFM stations ultimately became fully licensed.
Moreover, 84 of these station licenses now have either expired or been
cancelled, with nearly half of these expirations/cancellations
occurring in the last two years. Of the remaining 819 licensed
stations, 26 are currently silent. Given these alarming statistics, we
believe it is essential to provide LPFM licensees with maximum
flexibility to choose their own programming as a measure to ensure
their continued viability.
115. Finally, we recognize that Prometheus' support of a local
program origination requirement is based on its belief that this option
will most effectively further the Commission's goal of ensuring that
the LPFM service will ``enhance locally focused community-oriented
radio broadcasting.'' We agree that this goal is one of the bedrocks of
the LPFM service. However, we find that there are better, alternative
ways of furthering this goal without imposing further regulatory
restrictions. Specifically, as discussed in more detail below, we
believe we can better effectuate our localism goals by retaining a one-
point preference for local program origination and supplementing that
preference with two additional selection criteria that award points to
those applicants best positioned to locally originate programming.
Accordingly, given the lack of a clear record basis to support its
adoption, we decline to adopt a program origination requirement for
LPFM stations. In short, while our selection criteria seek to promote
local origination, we believe the benefits of imposing it as a
requirement are far outweighed by the costs to a financially vulnerable
fledgling sector of the industry.
116. That said, we note that the comments filed in this proceeding
reflect some misunderstanding of what constitutes ``locally originated
programming'' under our previous orders, and we take this opportunity
to provide additional guidance to current and prospective LPFM
licensees. In the Second Order on Reconsideration in this docket, the
Commission held that time-shifted, non-local, satellite-fed programming
does not qualify toward the local origination pledge. Commenters
indicate that some licensees believe that such programming is local
provided that it is delivered in a way other than satellite. This
inference is incorrect. Any non-local programming, whether delivered by
satellite, over the Internet or other means, does not qualify as
locally originated programming. Similarly, in the Third Report and
Order, we clarified that repetitious automated programming does not
meet the definition of local origination, and specifically stated that
once a station has broadcast a program twice it can no longer count it
as locally originated. According to commenters, some LPFM licensees
believe that this is a daily restriction (i.e., cannot repeat
programming more than twice in one day), while others believe that a
program becomes ``new'' for local purposes if musical selections within
a program are re-shuffled. Again, these inferences are incorrect. Once
a station has broadcast a program twice it can never again be counted
toward the local program origination pledge. Likewise, programs that
have been ``tweaked'' or reorganized do not count toward the
requirement if the underlying program has already been played twice.
Generally speaking, locally originated programming--whether locally
created content (e.g., live call-in shows or news programs), or locally
curated content (e.g., a music program reflecting non-random song
choices)--must involve a certain level of local production (i.e.,
creation of new content, in order for the programming to be considered
locally originated). Each of the examples discussed above lacks this
critical element. Our deliberations in this proceeding, including the
clarification we provide today, have been consistent with this
underlying principle. Accordingly, we will revise Sec. 73.872 of our
rules, as well as the FCC Form 318, to incorporate these
clarifications.
d. Main Studio
117. REC, Common Frequency and Prometheus each suggest that we
modify our rules to award one point to applicants that pledge to
maintain a main studio with a staff presence. They assert that an
organization that maintains a staffed main studio within the community
served by its LPFM station will be better resourced to serve its
community's needs. We agree. The local program origination selection
criterion was created in part ``to encourage licensees to maintain
production facilities and a meaningful staff presence within the
community served by the station.'' The Commission has long held that
the maintenance of a main studio is integral to a station's ability to
serve community needs and produce programming that is responsive to
those needs. As indicated by commenters, however, some licensees have
chosen not to maintain a main studio and have instead originated
programming using automated software, iPods, or CD players. While
applicants claiming the local program origination point will retain the
discretion to determine the origination point of their programming, we
believe that a separate main studio criterion will better effectuate
the intent underlying the creation of the local program origination
pledge. Accordingly, we will award one point to any organization that
pledges to maintain a meaningful staff presence (i.e., staffed by
persons whose duties relate primarily to the station and not to non-
broadcast related activities of licensee) in a publicly accessible main
studio location that has local program origination capability for at
least 20 hours per week between 7 a.m. and 10 p.m. Staff may be paid or
unpaid, and staffing may alternate among individuals. We will not
require stations to have ``management'' staff present during main
studio hours. The main studio should be located within 10 miles of the
proposed site for the transmitting antenna for applicants in the top 50
urban markets, and 20 miles for applicants outside the top 50 urban
markets. We will require applicants to list the proposed main studio
address in their applications, as well as the local telephone number to
be maintained by the main studio at all times. Applicants failing to
include this information will not receive credit for this point.
118. In addition, we will revise Sec. 73.872 of our rules to
provide that applicants that claim both the local program origination
point and the main studio point will receive a total of three points.
We find that the creation of this ``bonus'' point will more effectively
[[Page 2095]]
foster the production of focused community-oriented radio programming
than would a general local program origination requirement, as it will
reward those applicants best situated to further this goal in a
meaningful way. We believe that an applicant that plans to originate
programming from a main studio will be in a better position to provide
programming reflecting community needs and interests than an applicant
that will originate programming elsewhere. As the Commission has noted
previously, the maintenance of a main studio in the station's community
can help ``promote the use of local talent and ideas,'' can ``assure
meaningful interaction between the station and the community,'' and can
``increase the ability of the station to provide information of a local
nature to the community of license.'' Indeed, both our main studio
rules and the LPFM service were created for the same purpose: to ensure
that stations would serve as an outlet for community self-expression.
The Commission implicitly recognized this nexus when it created the
local program origination criterion as a way to ``advance the
Commission's policy goal of addressing unmet needs for community
oriented radio broadcasting'' and as a means to encourage licensees to
maintain production facilities. Moreover, these attributes, of
themselves, reflect our core vision of and animating purpose for
community radio: licensees that make their stations accessible to their
local communities and that are committed to responding to unmet local
programming needs.
119. Many LPFM stations fulfill their local program origination
commitments without the benefit of equipment and facilities that could
be reasonably characterized as ``main studios.'' We also anticipate
that some applicants in the upcoming LPFM window may conclude that
maintaining and staffing a main studio is not feasible or necessary. On
the other hand, the ``bonus'' point will provide a substantial
incentive to applicants to assume these responsibilities
notwithstanding the associated costs. It is also likely to permit
resolution of mutual exclusivities based on Commission policy goals
rather than complex tie-breaking procedures and also avoid voluntary
and involuntary time sharing arrangements--outcomes that many
commenters view negatively. Given commenters' general support of local
program origination, our longstanding policy goal of ensuring that the
LPFM service provides an outlet for local community voices, and the
benefits that would result from implementation of a more robust point
system that promotes this goal, we conclude that the record supports
our award of a total of three points to those applicants that make both
the local program origination and main studio pledges.
e. Tribal Nations
120. In the Fourth FNPRM, we sought comment on whether to give a
point to Tribal Nation Applicants when they propose new radio services
that primarily would serve Tribal lands. We proposed to modify Sec.
73.872(b) of our rules to include a Tribal Nations criterion. As with
our proposed revisions to the LPFM eligibility requirements set forth
at Sec. 73.853 of the rules, we proposed to rely on the definitions of
the terms ``Tribal Applicant,'' ``Tribal Coverage,'' and ``Tribal
Lands'' as they are currently defined in our rules for this comparative
criterion.
121. Commenters largely supported the creation of a Tribal Nation
criterion. As we stated in the Fourth FNPRM, we believe that adding
this criterion will further our efforts to increase ownership of radio
stations by Tribal Nation Applicants and enable Tribal Nation
Applicants to serve the unique needs and interests of their
communities. We find unpersuasive the argument of NPM and NCAI that we
should create a ``Tribal Priority,'' i.e., a dispositive preference,
for LPFM Tribal Applicants as the rules now provide for in the full
power NCE and commercial radio services. The expansion of Tribal
stations unquestionably advances our section 307(b) policies. However,
as we have explained, Tribes, which hold sovereign responsibilities for
the welfare and improvement of their Members, are well-positioned to
advance the localism and diversity goals of the LPFM service. Thus, it
is reasonable to treat this factor as we have the other comparative
factors that also advance these same LPFM goals. Finally, we find no
basis in the record for elevating this criterion to a dispositive
factor. Accordingly, we adopt our proposal to create a Tribal Nation
point criterion.
122. We will not, as originally proposed, rely on the definitions
of ``Tribal Applicant'' or ``Tribal Coverage.'' For the reasons
discussed above, we instead will define a ``Tribal Applicant'' as a
Tribe or entity that is 51 percent or more owned and controlled by a
Tribe. We will, however, require that any Tribal Nation Applicant
claiming a point under the Tribal Nation criterion propose to locate
the transmitting antenna for its proposed station on its Tribal lands.
While NPM and NCAI oppose the imposition of such a requirement, arguing
``it is easy to imagine circumstances in which the site which delivers
the best, most affordable service to Tribal Lands is a developed
antenna site located near, but not on, Tribal Lands,'' we are not
persuaded that this requirement will hinder the provision of LPFM
service on Tribal lands. Many Tribal Nations occupy unserved or
underserved areas. We believe it is highly unlikely that there will be
developed antenna sites located near most Tribal lands. However, in the
event that there is a developed antenna site near, but not on, the
Tribal lands of a Tribal Nation Applicant and the Tribal Nation
Applicant can demonstrate that the use of such site will better promote
our goals of increasing ownership of radio stations by Tribal Nations
and enabling Tribal Nations to serve the unique needs and interests of
their communities, we will entertain requests to waive the requirement
that the transmitting antenna for the proposed LPFM station be located
on the Tribal lands of the Tribal Nation Applicant. Finally, we note
that we will not, as REC proposes, require a Tribal Nation Applicant to
have no attributable interests in any other broadcast facility in order
to qualify for a point under the Tribal Nation criterion. We believe
our adoption of a new entrant criterion adequately addresses the
concerns underlying REC's proposal. At bottom, through its proposal,
REC seeks to ensure that diversity of ownership remains an important
goal underlying the LPFM service. By adopting a new entrant criterion,
which awards a point to applicants with no attributable interests in
other broadcast facilities, we retain an emphasis on diversity of
ownership without deemphasizing the importance of promoting the
provision of service by Tribal Nation Applicants to Tribal lands and
citizens of Tribal Nations.
f. New Entrants
123. As discussed above, we are relaxing our ownership rules to
allow LPFM licensees to own or apply for other broadcast interests.
Among other things, we are allowing Tribal Nation Applicants to own up
to two LPFM stations. In response to this revision, REC suggests that
we only allow a Tribal Nation Applicant to claim a point under the
Tribal Nations criterion if it is applying for its first LPFM station.
We agree with REC's proposal to the extent that it suggests that
multiple ownership should be a relevant factor in our analysis. Indeed,
we raised this issue in the Fourth FNPRM. However, we
[[Page 2096]]
believe that a Tribal Nation Applicant should be eligible to receive a
point under the Tribal Nation criterion regardless of whether or not it
owns or has applied for other LPFM stations, and that any restriction
of a Tribal Nation Applicant's eligibility to claim this point would
run contrary to our commitment to increase the ownership of radio
stations by Tribal Nations and to increase service to Tribal lands and
citizens of Tribal Nations. However, we also believe that our selection
process should encourage new entrants to broadcasting and foster a
diverse range of community voices. We find that allocating a point to
new entrants strikes the appropriate balance between these two
competing goals. Likewise, adding a new entrants criterion addresses
concerns raised by REC and Common Frequency regarding student-run
stations. Accordingly, we will award one point to an applicant that can
certify that it has no attributable interest in any other broadcast
station.
g. Tiebreakers--Voluntary and Involuntary Time Sharing
124. As noted above, in the event the point analysis results in a
tie, the Commission releases a public notice announcing the tie and
gives the tied applicants the opportunity to propose voluntary time
sharing arrangements. Some or all parties in an MX group may enter into
a timeshare agreement and aggregate their points. Where applicants
cannot reach either a universal settlement or a voluntary time sharing
arrangement, the Commission awards each tied and grantable applicant in
the MX group an equal, successive and non-renewable license term of no
less than one year, for a combined total eight-year term.
125. Several commenters voiced dissatisfaction with both the
voluntary and involuntary timesharing processes. REC asserts that we
should eliminate point aggregation in voluntary time sharing because it
``can lead to discriminatory behavior intended to silence [other]
voices * * *.'' As an alternative, it suggests that applicants move
straight to an involuntary time sharing process in cases where parties
cannot agree on a voluntary time share (without aggregating points) or
other settlement arrangement. Under REC's proposed process, an
applicant would have the option to select an ``involuntary time share
trigger point'' as a points criterion. In the event of a tie in an MX
group, the involuntary time share point would be reviewed. At this
point, one of the following scenarios could take place: (1) If all or
no applicants claim the point, then they would all proceed to the time
share process; or (2) if one or some applicants claim the trigger
point, then those claiming the point would proceed to the time share
process and remaining applications would be dismissed. Under REC's
proposal, applicants reaching the time sharing process would either
voluntarily agree on a time sharing arrangement, or be subject to a
``last resort'' method that would allocate time to the top three
applicants based on the date of the organization's establishment in the
community (i.e., the applicant with the oldest community presence date
would get the first opportunity to select its time share slot). REC
notes that ``an effective time share group should have no more than
three members.''
126. Brown Student Radio also argues that allowing a ``partial
settlement'' for the purposes of aggregating points invites the
potential for abuse in the LPFM licensing process, where dominant
applicants can effectively ``squeeze out'' fellow timeshare applicants
by forcing them to accept minimal and suboptimal air time. It cites two
examples from the last LPFM filing window in which the dominant
applicant in a timesharing arrangement claimed virtually all of the
shared air time and left only the required minimum of 10 hours a week
(during suboptimal air time) for the other applicants. As such, it
urges the Commission to allow parties to partially settle, but without
the benefit of aggregating points, or otherwise revise the share-time
rules to increase the minimum number of hours that must be awarded to
each party to a settlement. Brown Broadcast Services notes that
settlements involving less than all of the MX parties were explicitly
allowed for in the full-power NCE filing window of 2007, when the
action resulted in a grantable singleton application and no new mutual
exclusivities were created. Common Frequency likewise supports the use
of partial settlements involving technical changes, and additionally
suggests that the Commission set up an online settlement process that
will allow competing applicants to monitor for potential gamesmanship.
127. While we are cognizant of the potential for gamesmanship in
the voluntary timesharing process, we continue to believe that it is
one of the most efficient and effective means of resolving mutual
exclusivity among tied LPFM applicants. We are not persuaded that REC's
proposal, which essentially eliminates voluntary timesharing as a tie
breaker and replaces it with an involuntary time sharing regime, will
better serve the public interest. We are doubtful that a group of
unaffiliated applicants with different formats, budgets and levels of
broadcast experience would work together to operate a station under a
forced time sharing arrangement as successfully as a group of
applicants that have voluntarily agreed to share time. We further
believe that we must allow as much flexibility as possible for LPFM
stations, especially those subject to time sharing arrangements, to
allow them to build and maintain audiences. It is possible that some
LPFM applicants may not desire to operate for more than a few hours a
week, and in such cases, pooling resources with a timeshare applicant
wishing to use more time would result in more diversity and more
efficient use of spectrum. Accordingly, we will not revise our time
sharing rules, and will continue to allow existing time share
participants to reach voluntary arrangements that allow them to
apportion the time as they see fit, subject to our requirements under
Sec. 73.872(c) of the rules. While we will not set up an online
process designed specifically to monitor settlements, as Common
Frequency suggests, we note that the Commission has recently upgraded
CDBS to permit the electronic filing of pleadings. This feature makes
electronically filed pleadings promptly available to the general
public, thereby increasing the transparency of the broadcast licensing
processes. We will require a party submitting a timeshare agreement or
other settlement agreement to file it through CDBS. As such, parties to
an MX group should be able to sufficiently monitor competing
applications for any developments within their respective group.
128. We turn next to the suggestion that we entertain partial
settlements. During the last LPFM filing window, we accepted partial
``technical'' settlements (i.e., technical amendments that eliminated
all conflicts between at least one application and all other
applications in the same MX group). Thus, through a technical
settlement, the Commission can grant one or more applications
immediately, with the remaining applicants in that MX group considered
separately under the LPFM comparative criteria. These partial
settlements worked well during the 2007 NCE FM filing window, where we
granted dozens of settlements that resulted in the disposal of hundreds
of applications. We will continue to accept such settlements in the
upcoming LPFM window, as they provide an additional means for
applicants to resolve mutual exclusivities. To provide increased
flexibility to this process, we will also, as suggested by Brown
Broadcast
[[Page 2097]]
Services, temporarily waive our rules to allow MX applicants to move to
any available channel during the prescribed settlement period.
Amendments proposing new channels will be processed in accordance with
established first-come, first-served licensing procedures.
129. We agree with commenters that the system of serial license
terms as a tie breaker of last resort has proven unworkable. Of the
more than 1,200 construction permits granted in the LPFM service, not a
single station currently holds an authorization for involuntary time
sharing. While we have little historical data on involuntary
timesharing outcomes from the last LPFM window, we presume this is the
case either because (1) involuntary time share permittees did not want
to invest in building out facilities that would be used by them for as
little as one year, or (2) involuntary time share situations proved to
be unworkable. To promote more efficient use of available LPFM
frequencies, time shares under the final tie breaker will run
concurrently and not serially. As suggested by CMAP and, to some extent
REC, each party to the involuntary time share will be assigned an equal
number of hours per week. We agree with REC that time share situations
involving more than three parties may prove cumbersome. As REC
proposes, we will limit involuntary time sharing arrangements under
this final tie breaker to the three applicants that have been
``established'' in their respective communities for the longest periods
of time. Accordingly, each applicant will be required to provide, as
part of its application, its date of establishment. If more than three
applications are tied and grantable, we will dismiss the applications
of all but the three longest ``established'' applicants. We will offer
these applicants an opportunity to voluntarily reach a time sharing
arrangement. If they are unable to do so, we will ask these applicants
to simultaneously and confidentially submit their preferred time slots
to the Commission. To ensure that there is no gamesmanship, we will
require that these applicants certify that they have not colluded with
any other applicants in the selection of time slots. We will use the
information provided by the applicants to assign time slots to them.
The staff will give preference to the applicant with the longest
``established community presence.'' However, it will award time in
units as small as four hours per day to accommodate competing demands
for airtime to the maximum extent possible. We believe these procedures
are a more sustainable and practical solution to involuntary time share
arrangements than our previous measures, and will revise our rules and
FCC Form 318 accordingly.
130. Turning to the final issues raised in the Fourth FNPRM on
share time arrangements, we asked whether we should open a ``mini-
window'' for the filing of applications for the abandoned air-time in
such arrangements, rather than allowing remaining time share licensees
to re-apportion the remaining air time. We did not receive any
substantive comments voicing strong opinions on this proposal. We
believe that opening such mini-windows would pose a great
administrative burden on Commission staff. Such a burden would
significantly outweigh the modest benefits that would be realized by
filling such limited portions of a broadcast day with additional
programming provided by a new timeshare licensee. Moreover, we believe
that our adoption of the mandatory timesharing procedures discussed
below will provide adequate opportunities to applicants that wish to
apply for abandoned airtime. Accordingly, we do not adopt this
proposal.
3. Operating Schedule
131. Currently, the Commission requires LPFM stations to meet the
same minimum operating hour requirements as full-service NCE FM
stations. Like NCE FM stations, LPFM stations must operate at least 36
hours per week, consisting of at least 5 hours of operation per day on
at least 6 days of the week. However, while the Commission has mandated
time sharing for NCE FM stations that meet the Commission's minimum
operating requirements but do not operate 12 hours per day each day of
the year, it has not done so for LPFM stations. We sought comment on
whether we should extend such mandatory time sharing to the LPFM
service. We noted that we believe that doing so could increase the
number of broadcast voices and promote additional diversity in radio
voices and program services.
132. Only CRA commented on this proposal. It urges the Commission
to ``reject this impulse,'' noting that LPFM applicants need as much
flexibility as possible to ensure the viability of these small
stations. We continue to believe that this measure will increase the
number of broadcast voices and promote additional diversity in radio
voices and program services in the most administratively efficient
manner. However, we find merit to CRA's concerns and will adopt this
proposal with safeguards designed to ensure that LPFM licensees have as
much opportunity and flexibility as needed to ensure their success.
Specifically, in order to provide sufficient ``ramp up'' time, we will
not accept applications to share time with any LPFM licensee that has
been licensed and operating its station for less than three years.
Accordingly, we adopt this proposal, with the modification just
described.
4. Classes of Service
133. Currently, there are two classes of LPFM facilities: LP100 and
LP10. To date, we have licensed only LP100 stations. In the Fourth
FNPRM, we proposed to eliminate the LP10 class. We also sought comment
on whether to create a new, higher power LP250 class. We specifically
sought comment on how the creation of an LP250 class of LPFM facilities
could be harmonized with the LCRA, which was ``presumably grounded on
the current LPFM maximum power level.''
134. A number of LPFM proponents urge us to retain the LP10 class
of service, arguing that it is needed to ensure that LPFM opportunities
are available in urban areas. Other commenters advocate eliminating the
LP10 class. They point out that, from an engineering standpoint, the
LP10 class is spectrally inefficient. We agree that the existing LP10
class is an inefficient utilization of spectrum. LP10 stations offer
more limited service but are more susceptible to interference than
LP100 stations. Given the increasingly crowded nature of the FM band,
we find it appropriate to take this into account. We also are concerned
that the reach of LP10 stations would be too small for the stations to
be economically viable. As the Media Bureau recently noted, even
higher-powered LP100 stations have small service areas and are
constrained in ``their ability to gain listeners'' and ``appeal to
potential underwriters.'' Because we find that licensing LP10 stations
would be an inefficient use of available spectrum and are concerned
that LP10 stations would have an even higher failure rate than LP100
stations, we eliminate the LP10 station class.
135. Faced with the loss of the LP10 class, some commenters propose
that we create other classes that would transmit at less than 100
watts. Many in the LPFM community support a proposal to replace the
LP10 class with an LP50 class, which would allow licensees to transmit
at any ERP from 1 to 50 watts. In support, they argue that LP50
stations would offer higher quality service than LP10 stations and may
permit station locations closer to city centers. In contrast, NAB
opposes creation of an LP50 class, arguing that such action would
exceed the intent of Congress.
[[Page 2098]]
NAB also asserts that the proposal is not a logical outgrowth of the
Fourth Further Notice and, therefore, is untimely. Finally, NAB asserts
that, like the LP10 class of stations, an LP50 class would be
``technically inefficient.''
136. We will not create an LP50 class. In the Fourth FNPRM, we
proposed to eliminate the LP10 class, retain the LP100 class and
introduce a new LP250 class. We proposed these changes in order to
address our concerns with the efficiency and viability of stations
operating at powers at or below those authorized for LP100 stations. We
agree with NAB that a decision to introduce a new LP50 class could not
have been reasonably anticipated by all interested parties. Moreover,
we believe that LP50 stations would suffer many of the same technical
deficiencies as LP10 stations. Accordingly, we have decided not to
adopt the proposed LP50 class.
137. The LPFM community offers broad support for the creation of a
new LP250 class. These commenters cite benefits including improved LPFM
station viability through better access to underwriting, more
consistent signal coverage throughout the community served by the LPFM
station, and the ability to serve areas of low population density and/
or more distant communities. Several commenters, however, strenuously
oppose the creation of an LP250 class. These commenters do not dispute
the benefits cited by those supportive of an LP250 class. Instead, they
argue that an LP250 class would pose a greater interference risk to
full power stations, is unnecessary given the availability of 250 watt
Class A licenses, would be a departure from the local character of the
LPFM service, and goes beyond the intent of Congress in enacting the
LCRA.
138. At this time, we will not adopt our proposal to create an
LP250 class. Given the disagreement among commenters about, among other
things, LP250 station location restrictions and technical parameters,
we believe the issue of increasing the maximum facilities for LPFM
stations requires further study. We note, however, that the LCRA does
not contain any language limiting the power levels at which LPFM
stations may be licensed. We also find unpersuasive NAB's and NPR's
reliance on certain statements in the legislative history. These
statements merely describe the rules governing LPFM service at the time
Congress was considering the LCRA. Since we have decided not to adopt
the proposal, we need not definitively resolve the question.
5. Removal of I.F. Channel Minimum Distance Separation Requirements
139. In the Fourth FNPRM, we noted that LPFM stations are currently
required to protect full-service stations on I.F. channels while
translator stations operating with less than 100 watts are not. To
address this disparity, we proposed to remove I.F. protection
requirements for LPFM stations operating with less than 100 watts. We
noted that we believe the same reasoning that the Commission applied in
exempting FM translator stations operating with less than 100 watts ERP
from I.F. protection requirements would apply for LPFM stations
operating at less than 100 watts ERP. These stations too are the
equivalent of Class D FM stations, which are not subject to I.F.
protection requirements. We further noted that FM allotments would
continue to be protected on the I.F. channels based on existing
international agreements. We sought comment on this proposal.
140. Commenters generally support removal of the I.F. protection
requirements applicable to LPFM stations. Some ground their support in
the need to put LPFM stations and translators on an ``equal footing''
while others assert that improvements in receiver technology render
I.F. protection requirements unnecessary. NPR is the lone commenter
urging retention of I.F. protection requirements. NPR infers an intent
to retain the I.F. protections from the fact that Congress specifically
addressed minimum distance separations but did not eliminate those
related to I.F. We find NPR's argument unpersuasive. In the absence of
explicit direction in the LCRA regarding I.F. protection requirements,
and in light of the fact that Congress explicitly required retention of
the co-channel and first- and second-adjacent channel spacing
requirements, we believe that it is reasonable to read the statute not
to require the Commission to retain I.F. protection requirements. Had
Congress wished to ensure that the I.F. protections remained in place,
we believe that it would have done so in the text of the LCRA.
141. NPR also requests that the Commission study the impact of its
decision ``roughly 20 years ago'' to exempt from I.F. protection
requirements FM translator stations operating with less than 100 watts
ERP. NPR urges us to complete this study prior to acting on our
proposal. Common Frequency asserts, however, that the Commission would
have investigated I.F. interference by now if it had proved a problem.
Common Frequency is correct. We have not received any recent complaints
regarding I.F. interference from FM translators exempted from the I.F.
protection requirements. Indeed, it is telling that NPR has not cited a
single instance of such interference. Therefore, and in light of the
fact that a receiver does not distinguish between the signal of an LPFM
station or an FM translator, we find that the proposed change will not
result in significant I.F. interference.
142. Accordingly, we adopt this proposal. We find this change
necessary to ensure parity between LPFM stations and FM translator
stations, which, for I.F. interference purposes, are indistinguishable.
As requested by commenters, we will eliminate these requirements for
LPFM stations operating at or below 100 watts ERP. We had originally
proposed to exempt only LPFM stations operating at less than 100 watts
ERP from the I.F. protection requirements. However, commenters pointed
out that, if we adopted the proposal set forth in the Fourth FNPRM,
LP100 stations would remain subject to I.F. protection requirements.
These commenters argue that there is little difference between LPFM
stations operating at 99 versus 100 watts ERP and urge us to eliminate
the I.F. protection requirements for LPFM stations operating at 100
watts or less ERP. We agree. Moreover, since going forward we will
license LPFM stations to operate at ERPs ranging from 50 watts to 100
watts, we find that eliminating the I.F. protection requirements for
stations operating at 100 watts or less ERP is the more sensible
choice.
E. Window Filing Process
143. Several commenters voiced concern about the timing and
mechanics of the upcoming LPFM application filing window. Several LPFM
advocates ask that ``adequate time'' be given for applicants to prepare
their applications after adoption of the revised rules. Prometheus
urges the Commission to give six to nine months lead time up to the
filing window, maintaining that applicants need time to raise funds,
hire a consulting engineer and assess spectrum availability. REC, on
the other hand, opposes any ``artificial'' delay, stating that any
delay between the issuance of final rules and the window should occur
naturally. To some extent, this debate is moot as there is a
substantial cushion of time organically built into the process for the
final rules we adopt or modify today, as well as any related form
changes. Moreover, to maximize LPFM filing opportunities it is critical
for the Media Bureau to
[[Page 2099]]
complete substantially all of its processing of the pending FM
translator applications prior to the opening of the LPFM window. Thus,
the window will open approximately nine months from the effective date
of the Fifth Order on Reconsideration. To help potential LPFM
applicants prepare for the upcoming window, we announce a target date
of October 15, 2013. However, we delegate authority to the Media Bureau
to adjust this date in the event that future developments affect window
timing. In sum, there will be ample time for all LPFM applicants to
familiarize themselves with the rules and plan accordingly before the
filing window opens.
144. Commenters also suggest multiple windows in order to ease the
demand for affordable engineering assistance immediately before the
opening of the window. Prometheus further suggests that we bifurcate
the application into short and long forms, with second-adjacent waiver
showings submitted in the long form. Prometheus argues that multiple
filing windows and a short form/long form application process would
help address the scarcity issue of qualified, affordable consulting
engineers and allow more interested parties to file. Common Frequency
echoes these concerns, reporting that in the 2007 NCE window ``[s]ome
applicants could not file because they could not find engineers, and
others were priced-out from applying because an engineer and lawyer
could run as much as $5000.'' We recognize these concerns. Thus, in
order to ease upfront technical burdens and engineering costs, we will
accept a threshold second-adjacent waiver technical showing when an
applicant seeks to make a ``no interference'' showing based on lack of
population in areas where interference is predicted to occur. Under
this procedure an applicant would use ``worst-case'' assumptions about
the area of potential interference in combination with a USGS map or a
Google map to demonstrate ``lack of population'' within this area.
Applicants should be able to complete this simple showing without the
use of a consulting engineer. In light of our adoption of this
threshold showing, we see no need to bifurcate our application process
into short and long forms or to open multiple filing windows. We
believe that this alternative showing will ease some of the technical
and financial burdens of application filing and will help ensure that
new entrants in underserved communities are not ``priced out'' of the
opportunity to file an LPFM application in the upcoming window. We
further believe that these measures will help alleviate any obstacles
applicants face due to an ``engineering shortage,'' as those applicants
that choose to make the threshold showing will no longer need to hire a
consulting engineer.
II. Procedural Matters
A. Final Regulatory Flexibility Analysis
145. As required by the Regulatory Flexibility Act (``RFA''), an
Initial Regulatory Flexibility Analysis (``IRFA'') was incorporated in
the Fourth FNPRM in MM Docket No. 99-25. The Commission sought written
public comment on the proposals in the Fourth FNPRM, including comment
on the IRFA. We received no comments specifically directed toward the
IRFA. This Final Regulatory Flexibility Analysis (``FRFA'') conforms to
the RFA.
146. Need For, and Objectives of, the Proposed Rules. This
rulemaking proceeding was initiated to seek comment on how to implement
certain provisions of the LCRA. The Sixth R&O amends certain technical
rules to implement the LCRA. The Sixth R&O adopts the waiver standard
for second-adjacent channel spacing waivers set forth in section
3(b)(2)(A) of the LCRA. It specifies the manner in which a waiver
applicant can satisfy this standard and the manner in which the
Commission will handle complaints of interference caused by LPFM
stations operating pursuant to second-adjacent channel waivers. As
required by section 7 of the LCRA, the Sixth R&O modifies the regimes
applicable if an LPFM station causes third-adjacent channel
interference. As specified by the LCRA, the Sixth R&O applies the
protection and interference remediation requirements applicable to FM
translator stations to those LPFM stations that would have been short-
spaced under the third-adjacent channel spacing requirements eliminated
in the Fifth R&O in MM Docket No. 99-25. The Sixth R&O states that the
Commission will consider directional antennas, lower ERPs and/or
differing polarizations to be suitable techniques for eliminating
third-adjacent channel interference. The Sixth R&O applies the more
lenient interference protection obligations currently applicable to
LPFM stations that would have been fully-spaced under the third-
adjacent channel spacing requirements eliminated in the Fifth R&O
(``fully-spaced LPFM stations''). The Sixth R&O addresses the timing,
frequency and content of the periodic broadcast announcements that
newly constructed fully-spaced LPFM stations must make pursuant to
section 7(2) of the LCRA. It revises the rules to treat as a ``minor
change'' a proposal to move a fully-spaced LPFM station's transmitter
outside its current service contour in order to co-locate or operate
from a site close to a third-adjacent channel station and remediate
interference to that station. Finally, the Sixth R&O implements section
6 of the LCRA, modifying the Commission's rules to address the
potential for predicted interference to FM translator input signals
from LPFM stations operating on third-adjacent channels. It adopts a
basic threshold test designed to identify applications that are
predicted to cause interference to FM translator input signals on
third-adjacent channels and states that the Commission will dismiss any
application that does not satisfy this threshold test as unacceptable
for filing.
147. The Sixth R&O also makes a number of other changes to the
Commission's rules to better promote localism and diversity, which are
at the very heart of the LPFM service. It clarifies that the localism
requirement set forth in Sec. 73.853(b) of the rules applies not just
to LPFM applicants but also to LPFM permittees and licensees. The Sixth
R&O revises the rules to permit cross-ownership of an LPFM station and
up to two FM translator stations but, at the same time, establishes a
number of restrictions on such cross-ownership in order to ensure that
the LPFM service retains its extremely local focus.
148. In the interests of advancing the Commission's efforts to
increase ownership of radio stations by federally recognized Tribal
Nations or entities owned or controlled by Tribal Nations, the Sixth
R&O amends the Commission's rules to explicitly provide for the
licensing of LPFM stations to Tribal Nation Applicants, and to permit
Tribal Nation Applicants to own or hold attributable interests in up to
two LPFM stations.
149. In addition, the Order modifies the point system that the
Commission uses to select among MX LPFM applications. Specifically, the
Sixth R&O eliminates the proposed operating hours criterion, revises
the established community presence criterion, affirms the local program
origination criterion, and adds new criteria related to maintenance and
staffing of a main studio, offering by Tribal Nation Applicants of new
radio services that primarily serve Tribal lands, and new entry into
radio broadcasting. Given these changes, the Sixth R&O also revises the
existing exception to the cross-ownership rule for student-run
[[Page 2100]]
stations. The Sixth R&O announces the Commission will continue to
entertain partial ``technical'' settlements in the LPFM context and
modifies the way in which involuntary time sharing works, shifting from
sequential to concurrent license terms and limiting involuntary time
sharing arrangements to three applicants. It adopts mandatory time
sharing, which currently applies to full-service noncommercial
educational translator stations but not LPFM stations.
150. Finally, the Sixth R&O eliminates the LP10 class of LPFM
facilities and removes all of the I.F protection requirements
applicable to LPFM stations except those established by international
agreements.
151. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. None.
152. Description and Estimate of the Number of Small Entities to
Which Rules Will Apply. The RFA directs the Commission to provide a
description of and, where feasible, an estimate of the number of small
entities that will be affected by the 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 SBA.
153. Radio Broadcasting. The policies 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
September 15, 2011, about 10,960 (97 percent) of 11,300 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.
154. 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 the rules apply does 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.
155. FM translator stations and low power FM stations. The policies
adopted in the Sixth R&O 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. Currently, there are
approximately 6,105 licensed FM translator stations and 824 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.
156. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements. The Sixth R&O modifies existing requirements
and imposes additional paperwork burdens. The Sixth R&O modifies the
Commission's policy regarding waivers (``second-adjacent waivers'') of
the second-adjacent channel minimum distance separations set forth in
Sec. 73.807 of the rules. As required by the LCRA, the Sixth R&O
requires an applicant seeking a second-adjacent waiver to submit a
showing that demonstrates that its proposed operations will not result
in interference to any authorized radio service. The Sixth R&O
specifies that a waiver applicant can make this showing in the same
manner as an FM translator applicant (i.e., by showing that no
interference will occur due to lack of population and using undesired/
desired signal strength ratio methodology to narrowly define areas of
potential interference). The Sixth R&O also permits certain applicants
to propose to use directional antennas and/or differing antenna
polarizations to make the required showing. The Sixth R&O mandates that
complaints about interference from stations operating pursuant to
second-adjacent waivers include certain information. For instance, a
complaint must include the listener's name and address and the location
at which the interference occurs. The Sixth R&O specifies that the
Commission will treat as a ``minor change'' a proposal to move the
transmitter site of an LPFM station operating pursuant to a second-
adjacent waiver outside its current service contour in order to co-
locate or operate from a site close to a second-adjacent channel
station and remediate interference to that station.
157. The Sixth R&O modifies the regime governing complaints about
and remediation of third-adjacent channel interference caused by LPFM
stations. As required by the LCRA, the Sixth R&O modifies the
requirements applicable to complaints about third-adjacent channel
interference caused by stations that do not satisfy the third-adjacent
minimum distance separations set forth in Sec. 73.807 of the rules. It
also permits such stations to propose to use directional antennas and/
or differing antenna polarizations in order to eliminate third-adjacent
channel interference caused by their operations. The Sixth R&O modifies
the requirements applicable to complaints about third-adjacent
interference caused by LPFM stations that satisfy the third-adjacent
minimum distance separations set forth in Sec. 73.807 of the rules and
strongly encourages that such complaints be filed with the Media
Bureau's Audio Division. As in the second-adjacent channel context, the
Sixth R&O explains that the Commission will treat proposals from LPFM
stations seeking to remediate third-adjacent channel by co-locating or
operating from a site close to a third-adjacent channel station as
``minor changes.'' As required by the LCRA, the Sixth R&O requires
newly constructed LPFM stations that satisfy the third-adjacent minimum
distance separations set forth in Sec. 73.807 of the rules to make
periodic announcements. It also adopts requirements related to the
timing and content of these announcements.
158. The Sixth R&O adopts certain New Jersey-specific provisions
regarding complaints of interference. The Sixth R&O also adopts a
threshold test to determine whether an LPFM applicant adequately
protects translator input signals. In order to ensure that an LPFM
applicant protects the correct input signal for an FM translator, the
[[Page 2101]]
Sixth R&O recommends that FM translator licensees update the Commission
if they have changed their primary station since they last filed a
renewal application. If an applicant proposes to locate its transmitter
within the ``potential interference area'' for another station, the
applicant must demonstrate that it will not cause interference by
making one of three showings. The Sixth R&O provides that an applicant
can make these same showings in the context of a petition for
reconsideration and reinstatement nunc pro tunc.
159. The Sixth R&O modifies the rules governing eligibility to hold
licenses for LPFM stations. Specifically, it alters the eligibility
rule to authorize issuance of an LPFM license to a Tribal Nation
Applicant. The Sixth R&O also revises the localism requirement to
clarify that an LPFM applicant must certify that, at the time of
application, it is local and must pledge to remain local at all times
thereafter. In addition, the Sixth R&O revises the definition of
``local'' to specify that a Tribal Nation Applicant is considered
``local'' throughout its Tribal lands.
160. The Sixth R&O revises the rules to permit multiple ownership
of LPFM stations by Tribal Nation Applicants and cross-ownership of
LPFM and FM translator stations. As a result, the Commission is
revising the ownership certifications set forth in FCC Form 318.
161. The Sixth R&O makes a number of changes to the point system
used to select among MX applications for LPFM stations. It extends the
established community presence standard from 10 to 20 miles in rural
areas. The Commission is revising FCC Form 318 to reflect this change.
The Sixth R&O also adopts four new points criteria. Specifically, it
adopts a new main studio criterion and requires an applicant seeking to
qualify for a point under this criterion to submit certain information
(i.e., an address and telephone number for its proposed main studio) on
FCC Form 318. In addition, the Sixth R&O specifies that the Commission
will award a point to an LPFM applicant that makes both the local
program origination and main studio pledges and adopts Tribal Nations
and new entrant criteria. The Commission is revising FCC Form 318 to
reflect these new criteria.
162. The Sixth R&O makes a number of changes related to time
sharing. It adopts a requirement that parties submit voluntary time
sharing agreements via the Commission's Consolidated Database System.
It also revises the Commission's involuntary time sharing policy,
shifting from sequential to concurrent license terms and limiting
involuntary time sharing arrangements to three applicants. As a result
of these changes, an LPFM applicant must submit, on FCC Form 318, the
date on which it qualified as having an ``established community
presence'' and may be required to submit information to the Commission
regarding the time slots it prefers. Finally, the Sixth R&O adopts a
mandatory time sharing policy similar to that applicable to full-
service NCE FM stations. Applicants seeking to time-share pursuant to
this policy must submit applications on FCC Form 318 and include an
exhibit related to mandatory time sharing.
163. Steps Taken to Minimize Significant Impact on Small Entities,
and Significant Alternatives Considered. The RFA requires an agency to
describe any significant alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): (1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use
of performance, rather than design, standards; and (4) an exemption
from coverage of the rule, or any part thereof, for small entities.
164. Consideration of alternative methods to reduce the impact on
small entities is unnecessary because the passage of the LCRA required
the Commission to make changes to a number of its technical rules.
Moreover, the changes made to the Commission's non-technical rules
benefit small businesses and existing LPFM licensees, offering them
greater flexibility and additional licensing opportunities.
165. The LPFM service has created and will continue to create
significant opportunities for small businesses, allowing them to
develop LPFM service in their communities. To the extent that any
modified or new requirements set forth in the Sixth R&O impose any
burdens on small entities, we believe that the resulting impact on
small entities would be favorable because the rules would expand
opportunities for LPFM applicants, permittees, and licensees to
commence broadcasting and stay on the air. Among other things, the
Sixth R&O allows limited cross-ownership of LPFM and FM translator
stations. This is prohibited under the current rules. Likewise, the
Sixth R&O permits Tribal Nation Applicants to own or hold attributable
interests in up to two LPFM stations to ensure adequate coverage of
Tribal lands. Today, multiple ownership of LPFM stations is prohibited.
The Sixth R&O also modifies the point system that the Commission uses
to select among MX LPFM applications to award a point to an applicant
that can certify that it has no attributable interest in any other
broadcast station. Finally, the Sixth R&O extends mandatory time
sharing to the LPFM service. If the licensee of an LPFM station does
not operate the station 12 hours per day each day of the year, another
organization may file an application to share-time with that licensee.
166. Report to Congress. The Commission will send a copy of the
Sixth R&O, 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 Sixth R&O, including the FRFA, to the Chief Counsel for Advocacy of
the SBA. A copy of the Sixth R&O and the FRFA (or summaries thereof)
will also be published in the Federal Register.
B. Paperwork Reduction Act
167. The Sixth R&O contains new information collection requirements
subject to the Paperwork Reduction Act of 1995 (``PRA''). The
requirements will be submitted to the Office of Management and Budget
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 B, infra.
C. Congressional Review Act
168. The Commission will send a copy of this Sixth R&O 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
169. It is further ordered that pursuant to the authority contained
in sections 1, 4(i), 4(j), 303, 307, 309(j), and 316 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j),
[[Page 2102]]
303, 307, 309(j), and 316, and the Local Community Radio Act of 2010,
Public Law 111-371, 124 Stat. 4072 (2011), this Sixth Report and Order
is hereby adopted and Part 73 of the Commission's rules is amended as
set forth in Appendix C, effective 30 days after publication in the
Federal Register, except pursuant to paragraph 140 below.
170. It is further ordered that the rules adopted herein that
contain new or modified information collection requirements that
require approval by the Office of Budget and Management under the
Paperwork Reduction Act will become effective after the Commission
publishes a notice in the Federal Register announcing such approval and
the relevant effective date.
171. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Sixth 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 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.807 is revised to read as follows:
Sec. 73.807 Minimum distance separation between stations.
Minimum separation requirements for LPFM stations are listed in the
following paragraphs. Except as noted below, an LPFM station will not
be authorized unless the co-channel, and first- and second-adjacent
channel separations are met. An LPFM station need not satisfy the
third-adjacent channel separations listed in paragraphs (a) through (c)
of this section in order to be authorized. The third-adjacent channel
separations are included for use in determining for purposes of Sec.
73.810 which third-adjacent channel interference regime applies to an
LPFM station. Minimum distances for co-channel and first-adjacent
channel are separated into two columns. The left-hand column lists the
required minimum separation to protect other stations and the right-
hand column lists (for informational purposes only) the minimum
distance necessary for the LPFM station to receive no interference from
other stations assumed to be operating at the maximum permitted
facilities for the station class. For second-adjacent channel, the
required minimum distance separation is sufficient to avoid
interference received from other stations.
(a)(1) An LPFM station will not be authorized initially unless the
minimum distance separations in the following table are met with
respect to authorized FM stations, applications for new and existing FM
stations filed prior to the release of the public notice announcing an
LPFM window period, authorized LPFM stations, LPFM station applications
that were timely-filed within a previous window, and vacant FM
allotments. LPFM modification applications must either meet the
distance separations in the following table or, if short-spaced, not
lessen the spacing to subsequently authorized stations.
----------------------------------------------------------------------------------------------------------------
Co-channel minimum separation First-adjacent channel minimum Second and
(km) separation (km) third adjacent
---------------------------------------------------------------- channel
For no For no minimum
Station class protected by LPFM interference interference separation
Required received from Required received from (km)
max. class max. class ---------------
facility facility Required
----------------------------------------------------------------------------------------------------------------
LPFM............................ 24 24 14 14 None
D............................... 24 24 13 13 6
A............................... 67 92 56 56 29
B1.............................. 87 119 74 74 46
B............................... 112 143 97 97 67
C3.............................. 78 119 67 67 40
C2.............................. 91 143 80 84 53
C1.............................. 111 178 100 111 73
C0.............................. 122 193 111 130 84
C............................... 130 203 120 142 93
----------------------------------------------------------------------------------------------------------------
(2) LPFM stations must satisfy the second-adjacent channel minimum
distance separation requirements of paragraph (a)(1) of this section
with respect to any third-adjacent channel FM station that, as of
September 20, 2000, broadcasts a radio reading service via a subcarrier
frequency.
(b) In addition to meeting or exceeding the minimum separations in
paragraph (a) of this section, new LPFM stations will not be autorized
in Puerto Rico or the Virgin Islands unless the minimum distance
separations in the following tables are met with respect to authorized
or proposed FM stations:
[[Page 2103]]
----------------------------------------------------------------------------------------------------------------
Co-channel minimum separation First-adjacent channel minimum
(km) separation (km) Second and
---------------------------------------------------------------- third adjacent
For no For no channel
Station class protected by LPFM interference interference minimum
Required received from Required received from separation
max. class max. class (km)--required
facility facility
----------------------------------------------------------------------------------------------------------------
A............................... 80 111 70 70 42
B1.............................. 95 128 82 82 53
B............................... 138 179 123 123 92
----------------------------------------------------------------------------------------------------------------
Note to paragraphs (a) and (b): Minimum distance separations
towards ``grandfathered'' superpowered Reserved Band stations are as
specified. Full service FM stations operating within the reserved band
(Channels 201-220) with facilities in excess of those permitted in
Sec. 73.211(b)(1) or (b)(3) shall be protected by LPFM stations in
accordance with the minimum distance separations for the nearest class
as determined under Sec. 73.211. For example, a Class B1 station
operating with facilities that result in a 60 dBu contour that exceeds
39 kilometers but is less than 52 kilometers would be protected by the
Class B minimum distance separations. Class D stations with 60 dBu
contours that exceed 5 kilometers will be protected by the Class A
minimum distance separations. Class B stations with 60 dBu contours
that exceed 52 kilometers will be protected as Class C1 or Class C
stations depending upon the distance to the 60 dBu contour. No stations
will be protected beyond Class C separations.
(c) In addition to meeting the separations specified in paragraphs
(a) and (b), LPFM applications must meet the minimum separation
requirements in the following table with respect to authorized FM
translator stations, cutoff FM translator applications, and FM
translator applications filed prior to the release of the Public Notice
announcing the LPFM window period.
----------------------------------------------------------------------------------------------------------------
Co-channel minimum separation First-adjacent channel minimum Second and
(km) separation (km) third adjacent
Distance to FM translator 60 dBu ---------------------------------------------------------------- channel
contour For no For no minimum
Required interference Required interference separation
received received (km)--required
----------------------------------------------------------------------------------------------------------------
13.3 km or greater.............. 39 67 28 35 21
Greater than 7.3 km, but less 32 51 21 26 14
than 13.3 km...................
7.3 km or less.................. 26 30 15 16 8
----------------------------------------------------------------------------------------------------------------
(d) Existing LPFM stations which do not meet the separations in
paragraphs (a) through (c) of this section may be relocated provided
that the separation to any short-spaced station is not reduced.
(e)(1) Waiver of the second-adjacent channel separations. The
Commission will entertain requests to waive the second-adjacent channel
separations in paragraphs (a) through (c) of this section on a case-by-
case basis. In each case, the LPFM station must establish, using
methods of predicting interference taking into account all relevant
factors, including terrain-sensitive propagation models, that its
proposed operations will not result in interference to any authorized
radio service. The LPFM station may do so by demonstrating that no
actual interference will occur due to intervening terrain or lack of
population. The LPFM station may use an undesired/desired signal
strength ratio methodology to define areas of potential interference.
(2) Interference. (i) Upon receipt of a complaint of interference
from an LPFM station operating pursuant to a waiver granted under
paragraph (e)(1) of this section, the Commission shall notify the
identified LPFM station by telephone or other electronic communication
within one business day.
(ii) An LPFM station that receives a waiver under paragraph (e)(1)
of this section shall suspend operation immediately upon notification
by the Commission that it is causing interference to the reception of
an existing or modified full-service FM station without regard to the
location of the station receiving interference. The LPFM station shall
not resume operation until such interference has been eliminated or it
can demonstrate to the Commission that the interference was not due to
emissions from the LPFM station. Short test transmissions may be made
during the period of suspended operation to check the efficacy of
remedial measures.
(f) Commercial and noncommercial educational stations authorized
under subparts B and C of this part, as well as new or modified
commercial FM allotments, are not required to adhere to the separations
specified in this rule section, even where new or increased
interference would be created.
(g) International considerations within the border zones. (1)
Within 320 km of the Canadian border, LPFM stations must meet the
following minimum separations with respect to any Canadian stations:
----------------------------------------------------------------------------------------------------------------
Second- Intermediate
Canadian station class Co-channel First-adjacent adjacent Third-adjacent frequency (IF)
(km) channel (km) channel (km) channel (km) channel (km)
----------------------------------------------------------------------------------------------------------------
A1 & Low Power.................. 45 30 21 20 4
A............................... 66 50 41 40 7
[[Page 2104]]
B1.............................. 78 62 53 52 9
B............................... 92 76 68 66 12
C1.............................. 113 98 89 88 19
C............................... 124 108 99 98 28
----------------------------------------------------------------------------------------------------------------
(2) Within 320 km of the Mexican border, LPFM stations must meet
the following separations with respect to any Mexican stations:
----------------------------------------------------------------------------------------------------------------
Second- and Intermediate
Mexican station class Co-channel First-adjacent third-adjacent frequency (IF)
(km) channel (km) channel (km) channel (km)
----------------------------------------------------------------------------------------------------------------
Low Power....................................... 27 17 9 3
A............................................... 43 32 25 5
AA.............................................. 47 36 29 6
B1.............................................. 67 54 45 8
B............................................... 91 76 66 11
C1.............................................. 91 80 73 19
C............................................... 110 100 92 27
----------------------------------------------------------------------------------------------------------------
(3) The Commission will notify the International
Telecommunications Union (ITU) of any LPFM authorizations in the US
Virgin Islands. Any authorization issued for a US Virgin Islands LPFM
station will include a condition that permits the Commission to modify,
suspend or terminate without right to a hearing if found by the
Commission to be necessary to conform to any international regulations
or agreements.
(4) The Commission will initiate international coordination of a
LPFM proposal even where the above Canadian and Mexican spacing tables
are met, if it appears that such coordination is necessary to maintain
compliance with international agreements.
0
3. Section 73.809 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 73.809 Interference protection to full service FM stations.
(a) If a full service commercial or NCE FM facility application is
filed subsequent to the filing of an LPFM station facility application,
such full service station is protected against any condition of
interference to the direct reception of its signal that is caused by
such LPFM station operating on the same channel or first-adjacent
channel provided that the interference is predicted to occur and
actually occurs within:
* * * * *
0
4. Section 73.810 is revised to read as follows:
Sec. 73.810 Third adjacent channel interference.
(a) LPFM Stations Licensed at Locations That Do Not Satisfy Third-
Adjacent Channel Minimum Distance Separations. An LPFM station licensed
at a location that does not satisfy the third-adjacent channel minimum
distance separations set forth in Sec. 73.807 is subject to the
following provisions:
(1) Such an LPFM station will not be permitted to continue to
operate if it causes any actual third-adjacent channel interference to:
(i) The transmission of any authorized broadcast station; or
(ii) The reception of the input signal of any TV translator, TV
booster, FM translator or FM booster station; or
(iii) The direct reception by the public of the off-the-air signals
of any authorized broadcast station including TV Channel 6 stations,
Class D (secondary) noncommercial educational FM stations, and
previously authorized and operating LPFM stations, FM translators and
FM booster stations. Interference will be considered to occur whenever
reception of a regularly used signal on a third-adjacent channel is
impaired by the signals radiated by the LPFM station, regardless of the
quality of such reception, the strength of the signal so used, or the
channel on which the protected signal is transmitted.
(2) If third-adjacent channel interference cannot be properly
eliminated by the application of suitable techniques, operation of the
offending LPFM station shall be suspended and shall not be resumed
until the interference has been eliminated. Short test transmissions
may be made during the period of suspended operation to check the
efficacy of remedial measures. If a complainant refuses to permit the
licensee of the offending LPFM station to apply remedial techniques
which demonstrably will eliminate the third-adjacent channel
interference without impairment to the original reception, the licensee
is absolved of further responsibility for that complaint.
(3) Upon notice by the Commission to the licensee that such third-
adjacent channel interference is being caused, the operation of the
LPFM station shall be suspended within three minutes and shall not be
resumed until the interference has been eliminated or it can be
demonstrated that the interference is not due to spurious emissions by
the LPFM station; provided, however, that short test transmissions may
be made during the period of suspended operation to check the efficacy
of remedial measures.
(b) LPFM Stations Licensed at Locations That Satisfy Third-Adjacent
Channel Minimum Distance Separations. An LPFM station licensed at a
location that satisfies the third-adjacent channel minimum distance
separations set forth in Sec. 73.807 is subject to the following
provisions:
(1) Interference Complaints and Remediation. (i) Such an LPFM
station is required to provide copies of all complaints alleging that
its signal is causing third-adjacent channel interference to or
impairing the reception of the signal of a full power FM, FM translator
or FM booster station to such affected station and to the Commission.
[[Page 2105]]
(ii) A full power FM, FM translator or FM booster station shall
review all complaints it receives, either directly or indirectly, from
listeners regarding alleged third-adjacent channel interference caused
by the operations of such an LPFM station. Such full power FM, FM
translator or FM booster station shall also identify those that qualify
as bona fide complaints under this section and promptly provide such
LPFM station with copies of all bona fide complaints. A bona fide
complaint:
(A) Must include current contact information for the complainant;
(B) Must state the nature and location of the alleged third-
adjacent channel interference and must specify the call signs of the
LPFM station and affected full power FM, FM translator or FM booster
station, and the type of receiver involved; and
(C) Must be received by either the LPFM station or the affected
full power FM, FM translator or FM booster station within one year of
the date on which the LPFM station commenced broadcasts with its
currently authorized facilities.
(iii) The Commission will accept bona fide complaints and will
notify the licensee of the LPFM station allegedly causing third-
adjacent channel interference to the signal of a full power FM, FM
translator or FM booster station of the existence of the alleged
interference within 7 calendar days of the Commission's receipt of such
complaint.
(iv) Such an LPFM station will be given a reasonable opportunity to
resolve all complaints of third-adjacent channel interference within
the protected contour of the affected full power FM, FM translator or
FM booster station. A complaint will be considered resolved where the
complainant does not reasonably cooperate with an LPFM station's
remedial efforts. Such an LPFM station also is encouraged to address
all other complaints of third-adjacent channel interference, including
complaints based on interference to a full power FM, FM translator or
FM booster station by the transmitter site of the LPFM station at any
distance from the full power, FM translator or FM booster station.
(v) In the event that the number of unresolved complaints of third-
adjacent channel interference within the protected contour of the
affected full power FM, FM translator or FM booster station plus the
number of complaints for which the source of third-adjacent channel
interference remains in dispute equals at least one percent of the
households within one kilometer of the LPFM transmitter site or thirty
households, whichever is less, the LPFM and affected stations must
cooperate in an ``on-off'' test to determine whether the third-adjacent
channel interference is traceable to the LPFM station.
(vi) If the number of unresolved and disputed complaints of third-
adjacent channel interference within the protected contour of the
affected full power, FM translator or FM booster station exceeds the
numeric threshold specified in paragraph (b)(1)(v) of this section
following an ``on-off'' test, the affected station may request that the
Commission initiate a proceeding to consider whether the LPFM station
license should be modified or cancelled, which will be completed by the
Commission within 90 days. Parties may seek extensions of the 90-day
deadline consistent with Commission rules.
(vii) An LPFM station may stay any procedures initiated pursuant to
paragraph (b)(1)(vi) of this section by voluntarily ceasing operations
and filing an application for facility modification within twenty days
of the commencement of such procedures.
(2) Periodic Announcements. (i) For a period of one year from the
date of licensing of a new LPFM station that is constructed on a third-
adjacent channel and satisfies the third-adjacent channel minimum
distance separations set forth in Sec. 73.807, such LPFM station shall
broadcast periodic announcements. The announcements shall, at a
minimum, alert listeners of the potentially affected third-adjacent
channel station of the potential for interference, instruct listeners
to contact the LPFM station to report any interference, and provide
contact information for the LPFM station. The announcements shall be
made in the primary language(s) of both the new LPFM station and the
potentially affected third-adjacent channel station(s). Sample
announcement language follows:
On (date of license grant), the Federal Communications
Commission granted (LPFM station's call letters) a license to
operate. (LPFM station's call letters) may cause interference to the
operations of (third-adjacent channel station's call letters) and
(other third-adjacent channel stations' call letters). If you are
normally a listener of (third-adjacent channel station's call
letters) or (other third-adjacent channel station's call letters)
and are having difficulty receiving (third-adjacent channel station
call letters) or (other third-adjacent channel station's call
letters), please contact (LPFM station's call letters) by mail at
(mailing address) or by telephone at (telephone number) to report
this interference.
(ii) During the first thirty days after licensing of a new LPFM
station that is constructed on a third-adjacent channel and satisfies
the third-adjacent channel minimum distance separations set forth in
Section 73.807, the LPFM station must broadcast the announcements
specified in paragraph (b)(2)(i) of this section at least twice daily.
The first daily announcement must be made between the hours of 7 a.m.
and 9 a.m., or 4 p.m. and 6 p.m. The LPFM station must vary the time
slot in which it airs this announcement. For stations that do not
operate at these times, the announcements shall be made during the
first two hours of broadcast operations each day. The second daily
announcement must be made outside of the 7 a.m. to 9 a.m. and 4 p.m. to
6 p.m. time slots. The LPFM station must vary the times of day in which
it broadcasts this second daily announcement in order to ensure that
the announcements air during all parts of its broadcast day. For
stations that do not operate at these times, the announcements shall be
made during the first two hours of broadcast operations each day. For
the remainder of the one year period, the LPFM station must broadcast
the announcements at least twice per week. The announcements must be
broadcast between the hours of 7 a.m. and midnight. For stations that
do not operate at these times, the announcements shall be made during
the first two hours of broadcast operations each day.
(iii) Any new LPFM station that is constructed on a third-adjacent
channel and satisfies the minimum distance separations set forth in
Sec. 73.807 must:
(A) notify the Audio Division, Media Bureau, and all affected
stations on third-adjacent channels of an interference complaint. The
notification must be made electronically within 48 hours after the
receipt of an interference complaint by the LPFM station; and
(B) cooperate in addressing any third-adjacent channel
interference.
0
5. Section 73.811 is revised to read as follows:
Sec. 73.811 LPFM power and antenna height requirements.
(a) Maximum facilities. LPFM stations will be authorized to operate
with maximum facilities of 100 watts ERP at 30 meters HAAT. An LPFM
station with a HAAT that exceeds 30 meters will not be permitted to
operate with an ERP greater than that which would result in a 60 dBu
contour of 5.6 kilometers. In no event will an ERP less than one watt
be authorized. No facility will be authorized in excess of one watt ERP
at 450 meters HAAT.
(b) Minimum facilities. LPFM stations may not operate with
facilities less than 50 watts ERP at 30 meters HAAT or the
[[Page 2106]]
equivalent necessary to produce a 60 dBu contour that extends at least
4.7 kilometers.
0
6. Section 73.816 is amended by revising paragraphs (b) and (c) to read
as follows:
Sec. 73.816 Antennas.
* * * * *
(b) Directional antennas generally will not be authorized and may
not be utilized in the LPFM service, except as provided in paragraph
(c) of this section.
(c)(1) Public safety and transportation permittees and licensees,
eligible pursuant to Sec. 73.853(a)(2), may utilize directional
antennas in connection with the operation of a Travelers' Information
Service (TIS) provided each LPFM TIS station utilizes only a single
antenna with standard pattern characteristics that are predetermined by
the manufacturer. Public safety and transportation permittees and
licensees may not use composite antennas (i.e., antennas that consist
of multiple stacked and/or phased discrete transmitting antennas).
(2) LPFM permittees and licensees proposing a waiver of the second-
adjacent channel spacing requirements of Sec. 73.807 may utilize
directional antennas for the sole purpose of justifying such a waiver.
* * * * *
0
7. Section 73.825 is amended by revising the Tables to paragraphs (a)
and (b) to read as follows:
Sec. 73.825 Protection to reception of TV channel 6.
(a) * * *
------------------------------------------------------------------------
LPFM to TV
FM channel number channel 6 (km)
------------------------------------------------------------------------
201.................................................. 140
202.................................................. 138
203.................................................. 137
204.................................................. 136
205.................................................. 135
206.................................................. 133
207.................................................. 133
208.................................................. 133
209.................................................. 133
210.................................................. 133
211.................................................. 133
212.................................................. 132
213.................................................. 132
214.................................................. 132
215.................................................. 131
216.................................................. 131
217.................................................. 131
218.................................................. 131
219.................................................. 130
220.................................................. 130
------------------------------------------------------------------------
(b) * * *
------------------------------------------------------------------------
LPFM to TV
FM channel number channel 6 (km)
------------------------------------------------------------------------
201.................................................. 98
202.................................................. 97
203.................................................. 95
204.................................................. 94
205.................................................. 93
206.................................................. 91
207.................................................. 91
208.................................................. 91
209.................................................. 91
210.................................................. 91
211.................................................. 91
212.................................................. 90
213.................................................. 90
214.................................................. 90
215.................................................. 90
216.................................................. 89
217.................................................. 89
218.................................................. 89
219.................................................. 89
220.................................................. 89
------------------------------------------------------------------------
0
8. Section 73.827 is revised to read as follows:
Sec. 73.827 Interference to the input signals of FM translator or FM
booster stations.
(a) Interference to the direct reception of the input signal of an
FM translator station. This subsection applies when an LPFM application
proposes to operate near an FM translator station, the FM translator
station is receiving its primary station signal off-air and the LPFM
application proposes to operate on a third-adjacent channel to the
primary station. In these circumstances, the LPFM station will not be
authorized unless it is located at least 2 km from the FM translator
station. In addition, in cases where an LPFM station is located within
+/- 30 degrees of the azimuth between the FM translator station and its
primary station, the LPFM station will not be authorized unless it is
located at least 10 kilometers from the FM translator station. The
provisions of this subsection will not apply if the LPFM applicant:
(1) Demonstrates that no actual interference will occur due to an
undesired (LPFM) to desired (primary station) ratio below 34 dB at all
locations,
(2) Complies with the minimum LPFM/FM translator distance
separation calculated in accordance with the following formula:
du = 133.5 antilog [(Peu + Gru -
Grd - Ed)/20], where du = the minimum
allowed separation in km, Peu = LPFM ERP in dBW,
Gru = gain (dBd) of the FM translator receive antenna in the
direction of the LPFM site, Grd = gain (dBd) of the FM
translator receive antenna in the direction of the primary station
site, Ed = predicted field strength (dBu) of the primary
station at the translator site, or
(3) Reaches an agreement with the licensee of the FM translator
regarding an alternative technical solution.
Note to paragraph (a): LPFM applicants may assume that an FM
translator station's receive and transmit antennas are collocated.
(b) An authorized LPFM station will not be permitted to continue to
operate if an FM translator or FM booster station demonstrates that the
LPFM station is causing actual interference to the FM booster station's
input signal, provided that the same input signal was in use at the
time the LPFM station was authorized.
(c) Complaints of actual interference by an LPFM station subject to
paragraph (b) of this section must be served on the LPFM licensee and
the Federal Communications Commission, Attention: Audio Division, Media
Bureau. The LPFM station must suspend operations upon the receipt of
such complaint unless the interference has been resolved to the
satisfaction of the complainant on the basis of suitable techniques.
Short test transmissions may be made during the period of suspended
operations to check the efficacy of remedial measures. An LPFM station
may only resume full operation at the direction of the Federal
Communications Commission. If the Commission determines that the
complainant has refused to permit the LPFM station to apply remedial
techniques that demonstrably will eliminate the interference without
impairment of the original reception, the licensee of the LPFM station
is absolved of further responsibility for the complaint.
0
9. Section 73.850 is amended by adding paragraph (c) to read as
follows:
Sec. 73.850 Operating schedule.
* * * * *
(c) All LPFM stations, including those meeting the requirements of
paragraph (b) of this section, but which do not operate 12 hours per
day each day of the year, will be required to share use of the
frequency upon the grant of an appropriate application proposing such
share time arrangement. Such applications must set forth the intent to
share time and must be filed in the same manner as are applications for
new stations. Such applications may be filed at any time after an LPFM
station completes its third year of licensed operations. In cases where
the licensee and the prospective licensee are unable to agree on time
sharing, action on the application will be taken only in connection
with a renewal application for the existing station filed on or after
June 1, 2019. In order to be considered
[[Page 2107]]
for this purpose, an application to share time must be filed no later
than the deadline for filing petitions to deny the renewal application
of the existing licensee.
(1) The licensee and the prospective licensee(s) shall endeavor to
reach an agreement for a definite schedule of periods of time to be
used by each. Such agreement must be in writing and must set forth
which licensee is to operate on each of the hours of the day throughout
the year. Such agreement must not include simultaneous operation of the
stations. Each licensee must file the same in triplicate with each
application to the Commission for initial construction permit or
renewal of license. Such written agreements shall become part of the
terms of each station's license.
(2) The Commission desires to facilitate the reaching of agreements
on time sharing. However, if the licensees of stations authorized to
share time are unable to agree on a division of time, the prospective
licensee(s) must submit a statement with the Commission to that effect
filed with the application(s) proposing time sharing.
(3) After receipt of the type of application(s) described in
paragraph (c)(2) of this section, the Commission will process such
application(s) pursuant to Sec. Sec. 73.3561 through 73.3568 of this
Part. If any such application is not dismissed pursuant to those
provisions, the Commission will issue a notice to the parties proposing
a time-sharing arrangement and a grant of the time-sharing
application(s). The licensee may protest the proposed action, the
prospective licensee(s) may oppose the protest and/or the proposed
action, and the licensee may reply within the time limits delineated in
the notice. All such pleadings must satisfy the requirements of Section
309(d) of the Act. Based on those pleadings and the requirements of
Section 309 of the Act, the Commission will then act on the time-
sharing application(s) and the licensee's renewal application.
(4) A departure from the regular schedule set forth in a time-
sharing agreement will be permitted only in cases where a written
agreement to that effect is reduced to writing, is signed by the
licensees of the stations affected thereby, and is filed in triplicate
by each licensee with the Commission, Attention: Audio Division, Media
Bureau, prior to the time of the proposed change. If time is of the
essence, the actual departure in operating schedule may precede the
actual filing of the written agreement, provided that appropriate
notice is sent to the Commission in Washington, DC, Attention: Audio
Division, Media Bureau.
0
10. Section 73.853 is amended by adding paragraph (a)(3), revising
paragraph (b) introductory text, and adding paragraphs (b)(4) and (c)
to read as follows:
Sec. 73.853 Licensing requirements and service.
(a) * * *
(3) Tribal Applicants, as defined in paragraph (c) of this section
that will provide non-commercial radio services.
(b) Only local organizations will be permitted to submit
applications and to hold authorizations in the LPFM service. For the
purposes of this paragraph, an organization will be deemed local if it
can certify, at the time of application, that it meets the criteria
listed below and if it continues to satisfy the criteria at all times
thereafter.
* * * * *
(4) In the case of a Tribal Applicant, as defined in paragraph (c)
of this section, the Tribal Applicant's Tribal lands, as that term is
defined in Sec. 73.7000, are within the service area of the proposed
LPFM station.
(c) A Tribal Applicant is a Tribe or an entity that is 51 percent
or more owned or controlled by a Tribe or Tribes. For these purposes,
Tribe is defined as set forth in Sec. 73.7000.
0
11. Section 73.855 is revised to read as follows:
Sec. 73.855 Ownership limits.
(a) No authorization for an LPFM station shall be granted to any
party if the grant of that authorization will result in any such party
holding an attributable interest in two or more LPFM stations.
(b) Notwithstanding the general prohibition set forth in paragraph
(a) of this section, Tribal Applicants, as defined in Sec. 73.853(c),
may hold an attributable interest in up to two LPFM stations.
(c) Notwithstanding the general prohibition set forth in paragraph
(a) of this section, not-for-profit organizations and governmental
entities with a public safety purpose may be granted multiple licenses
if:
(1) One of the multiple applications is submitted as a priority
application; and
(2) The remaining non-priority applications do not face a mutually
exclusive challenge.
0
12. Section 73.860 is revised to read as follows:
Sec. 73.860 Cross-ownership.
(a) Except as provided in paragraphs (b), (c) and (d) of this
section, no license shall be granted to any party if the grant of such
authorization will result in the same party holding an attributable
interest in any other non-LPFM broadcast station, including any FM
translator or low power television station, or any other media subject
to our broadcast ownership restrictions.
(b) A party that is not a Tribal Applicant, as defined in Sec.
73.853(c), may hold attributable interests in one LPFM station and no
more than two FM translator stations provided that the following
requirements are met:
(1) The 60 dBu contours of the commonly-owned LPFM station and FM
translator station(s) overlap;
(2) The FM translator station(s), at all times, synchronously
rebroadcasts the primary analog signal of the commonly-owned LPFM
station or, if the commonly-owned LPFM station operates in hybrid mode,
synchronously rebroadcasts the digital HD-1 version of the LPFM
station's signal;
(3) The FM translator station(s) receives the signal of the
commonly-owned LPFM station over-the-air and directly from the
commonly-owned LPFM station itself; and
(4) The transmitting antenna of the FM translator station(s) is
located within 16.1 km (10 miles) for LPFM stations located in the top
50 urban markets and 32.1 km (20 miles) for LPFM stations outside the
top 50 urban markets of either the transmitter site of the commonly-
owned LPFM station or the reference coordinates for that station's
community of license.
(c) A party that is a Tribal Applicant, as defined in Sec.
73.853(c), may hold attributable interests in no more than two LPFM
stations and four FM translator stations provided that the requirements
set forth in paragraph (b) of this section are met.
(d) Unless such interest is permissible under paragraphs (b) or (c)
of this section, a party with an attributable interest in a broadcast
radio station must divest such interest prior to the commencement of
operations of an LPFM station in which the party also holds an
interest. However, a party need not divest such an attributable
interest if the party is a college or university that can certify that
the existing broadcast radio station is not student run. This exception
applies only to parties that:
(1) Are accredited educational institutions;
(2) Own an attributable interest in non-student run broadcast
stations; and
(3) Apply for an authorization for an LPFM station that will be
managed and operated on a day-to-day basis by students of the
accredited educational institution.
[[Page 2108]]
(e) No LPFM licensee may enter into an operating agreement of any
type, including a time brokerage or management agreement, with either a
full power broadcast station or another LPFM station.
0
13. Section 73.870 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 73.870 Processing of LPFM broadcast station applications.
(a) A minor change for an LPFM station authorized under this
subpart is limited to transmitter site relocations of 5.6 kilometers or
less. These distance limitations do not apply to amendments or
applications proposing transmitter site relocation to a common location
filed by applicants that are parties to a voluntary time-sharing
agreement with regard to their stations pursuant to Sec. 73.872
paragraphs (c) and (e). These distance limitations also do not apply to
an amendment or application proposing transmitter site relocation to a
common location or a location very close to another station operating
on a third-adjacent channel in order to remediate interference to the
other station; provided, however, that the proposed relocation is
consistent with all localism certifications made by the applicant in
its original application for the LPFM station. Minor changes of LPFM
stations may include:
* * * * *
0
14. Section 73.871 is amended by revising paragraphs (c)(1), (5), and
(6) and adding paragraph (c)(7) to read as follows:
Sec. 73.871 Amendment of LPFM broadcast station applications.
* * * * *
(c) * * *
(1) Filings subject to paragraph (c)(5) of this section, site
relocations of 5.6 kilometers or less for LPFM stations;
* * * * *
(5) Other changes in general and/or legal information;
(6) Filings proposing transmitter site relocation to a common
location submitted by applications that are parties to a voluntary
time-sharing agreement with regard to their stations pursuant to Sec.
73.872 (c) and (e); and
(7) Filings proposing transmitter site relocation to a common
location or a location very close to another station operating on a
third-adjacent channel in order to remediate interference to the other
station.
* * * * *
0
15. Section 73.872 is amended by revising paragraphs (b), (c)
introductory text, (c)(4), (d), and (e) to read as follows:
Sec. 73.872 Selection procedure for mutually exclusive LPFM
applications.
* * * * *
(b) Each mutually exclusive application will be awarded one point
for each of the following criteria, based on certifications that the
qualifying conditions are met and submission of any required
documentation:
(1) Established community presence. An applicant must, for a period
of at least two years prior to application and at all times thereafter,
have qualified as local pursuant to Sec. 73.853(b). Applicants
claiming a point for this criterion must submit any documentation
specified in FCC Form 318 at the time of filing their applications.
(2) Local program origination. The applicant must pledge to
originate locally at least eight hours of programming per day. For
purposes of this criterion, local origination is the production of
programming by the licensee, within ten miles of the coordinates of the
proposed transmitting antenna. Local origination includes licensee
produced call-in shows, music selected and played by a disc jockey
present on site, broadcasts of events at local schools, and broadcasts
of musical performances at a local studio or festival, whether recorded
or live. Local origination does not include the broadcast of repetitive
or automated programs or time-shifted recordings of non-local
programming whatever its source. In addition, local origination does
not include a local program that has been broadcast twice, even if the
licensee broadcasts the program on a different day or makes small
variations in the program thereafter.
(3) Main studio. The applicant must pledge to maintain a publicly
accessible main studio that has local program origination capability,
is reachable by telephone, is staffed at least 20 hours per week
between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of
the proposed site for the transmitting antenna for applicants in the
top 50 urban markets and 32.1 km (20 miles) for applicants outside the
top 50 urban markets. Applicants claiming a point under this criterion
must specify the proposed address and telephone number for the proposed
main studio in FCC Form 318 at the time of filing their applications.
(4) Local program origination and main studio. The applicant must
make both the local program origination and main studio pledges set
forth in paragraphs (b)(2) and (3) of this section.
(5) Diversity of ownership. An applicant must hold no attributable
interests in any other broadcast station.
(6) Tribal Applicants serving Tribal Lands. The applicant must be a
Tribal Applicant, as defined in Sec. 73.853(c), and the proposed site
for the transmitting antenna must be located on that Tribal Applicant's
``Tribal Lands,'' as defined in Sec. 73.7000. Applicants claiming a
point for this criterion must submit the documentation set forth in FCC
Form 318 at the time of filing their applications.
(c) Voluntary time-sharing. If mutually exclusive applications have
the same point total, any two or more of the tied applicants may
propose to share use of the frequency by electronically submitting,
within 90 days of the release of a public notice announcing the tie, a
time-share proposal. Such proposals shall be treated as minor
amendments to the time-share proponents' applications, and shall become
part of the terms of the station authorization. Where such proposals
include all of the tied applications, all of the tied applications will
be treated as tentative selectees; otherwise, time-share proponents'
points will be aggregated.
* * * * *
(4) Concurrent license terms granted under paragraph (d) of this
section may be converted into voluntary time-sharing arrangements
renewable pursuant to Sec. 73.3539 by submitting a universal time-
sharing proposal.
(d) Involuntary time-sharing. (1) If a tie among mutually exclusive
applications is not resolved through voluntary time-sharing in
accordance with paragraph (c) of this section, the tied applications
will be reviewed for acceptability. Applicants with tied, grantable
applications will be eligible for equal, concurrent, non-renewable
license terms.
(2) If a mutually exclusive group has three or fewer tied,
grantable applications, the Commission will simultaneously grant these
applications, assigning an equal number of hours per week to each
applicant. The Commission will determine the hours assigned to each
applicant by first assigning hours to the applicant that has been
local, as defined in Sec. 73.853(b), for the longest uninterrupted
period of time, then assigning hours to the applicant that has been
local for the next longest uninterrupted period of time, and finally
assigning hours to any remaining applicant. The Commission will offer
applicants an opportunity to voluntarily reach a time-sharing
agreement. In the event that applicants cannot reach such agreement,
the
[[Page 2109]]
Commission will require each applicant subject to involuntary time-
sharing to simultaneously and confidentially submit their preferred
time slots to the Commission. If there are only two tied, grantable
applications, the applicants must select between the following 12-hour
time slots 3 a.m.-2:59 p.m., or 3 p.m.-2:59 a.m. If there are three
tied, grantable applications, each applicant must rank their preference
for the following 8-hour time slots: 2 a.m.-9:59 a.m., 10 a.m.-5:59
p.m., and 6 p.m.-1:59 a.m. The Commission will require the applicants
to certify that they did not collude with any other applicants in the
selection of time slots. The Commission will give preference to the
applicant that has been local for the longest uninterrupted period of
time. The Commission will award time in units as small as four hours
per day. In the event an applicant neglects to designate its preferred
time slots, staff will select a time slot for that applicant.
(3) Groups of more than three tied, grantable applications will not
be eligible for licensing under this section. Where such groups exist,
the Commission will dismiss all but the applications of the three
applicants that have been local, as defined in Sec. 73.853(b), for the
longest uninterrupted periods of time. The Commission then will process
the remaining applications as set forth in paragraph (d)(2) of this
section.
(4) If concurrent license terms granted under this section are
converted into universal voluntary time-sharing arrangements pursuant
to paragraph (c)(4) of this section, the permit or license is renewable
pursuant to Sec. Sec. 73.801 and 73.3539.
(e) Settlements. Mutually exclusive applicants may propose a
settlement at any time during the selection process after the release
of a public notice announcing the mutually exclusive groups. Settlement
proposals must comply with the Commission's rules and policies
regarding settlements, including the requirements of Sec. Sec.
73.3525, 73.3588 and 73.3589. Settlement proposals may include time-
share agreements that comply with the requirements of paragraph (c) of
this section, provided that such agreements may not be filed for the
purpose of point aggregation outside of the 90 day period set forth in
paragraph (c) of this section.
0
16. Section 73.873 is revised to read as follows:
Sec. 73.873 LPFM license period.
(a) Initial licenses for LPFM stations will be issued for a period
running until the date specified in Sec. 73.1020 for full service
stations operating in the LPFM station's state or territory, or if
issued after such date, determined in accordance with Sec. 73.1020.
(b) The license of an LPFM station that fails to transmit broadcast
signals for any consecutive 12-month period expires as a matter of law
at the end of that period, notwithstanding any provision, term, or
condition of the license to the contrary.
[FR Doc. 2012-30975 Filed 1-8-13; 8:45 am]
BILLING CODE 6712-01-P