FM Translator Interference, 13660-13664 [2020-28063]
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13660
Federal Register / Vol. 86, No. 45 / Wednesday, March 10, 2021 / Rules and Regulations
Band earth station operators to modify
these PFD limits, but it requires a 3.7
GHz Service licensee that is a party to
such an agreement to maintain a copy
of the agreement in its station files and
disclose it, upon request, to prospective
license assignees, transferees, or
spectrum lessees, and to the
Commission. The Commission also
required any 3.7 GHz Service licensee
with base stations located within the
appropriate coordination distance to
provide upon request an engineering
analysis to the TT&C operator to
demonstrate their ability to comply with
the applicable ¥6 dB I/N criteria.
The information that will be collected
under this new information collection is
designed to ensure that 3.7 GHz Service
licensees operate in a manner that
ensures incumbent C-band operations in
the upper portion of the 3.7–4.2 GHz
band and TT&C operations in the 3700–
3980 MHz band are protected. By
requiring 3.7 GHz Service licensees to
provide a copy of any private agreement
with 3.7 GHz earth station operators to
prospective license assignees,
transferees, or spectrum lessees, and to
the Commission, the Commission
ensures that such agreements continue
to protect incumbent C-band operations
in the event a 3.7 GHz service license
is subsequently transferred to a new
licensee. This collection promotes the
safety of operations in the band and
reduces the risk of harmful interference
to incumbents. It also ensures that
relevant stakeholders have access to
coordination agreements between 3.7
GHz Service licensees and entities
operating earth stations or TT&C
operations.
The information provided by the 3.7
GHz Service licensee to the TT&C
operator ensures the protection of TT&C
operations. The information collection
will facilitate an efficient and safe
transition by requiring 3.7 GHz Service
licensees to demonstrate their ability to
comply with the ¥6 dB I/N criteria,
thereby minimizing the risk of
interference.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2021–04999 Filed 3–9–21; 8:45 am]
BILLING CODE 6712–01–P
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 74
[MB Docket No. 18–119; FCC 20–141; FRS
17304]
FM Translator Interference
Federal Communications
Commission.
ACTION: Final rule; dismissal and denial
of petitions.
AGENCY:
In this document, the Federal
Communications Commission
(Commission) addresses four petitions
for reconsideration of a final rule
(Petitions) filed by: Charles M.
Anderson; the LPFM Coalition; KGIG–
LP, Salida, California/Fellowship of the
Earth; and Skywaves Communications
LLC. The Petitions seek reconsideration
of the Commission’s report and order in
the FM translator interference
proceeding (Report and Order). The
Commission dismisses or denies the
arguments set forth in the Petitions and
amends a rule to correct a crossreference.
SUMMARY:
The filing of the Petitions was
published at 84 FR 37228 on July 31,
2019. The Commission adopted the
Order on Reconsideration dismissing
and denying the Petitions and amending
part 74 on October 6, 2020. The
dismissals and/or denials of the
Petitions will be effective April 9, 2021.
The rule amendment adopted in the
Order on Reconsideration will be
effective March 9, 2021.
FOR FURTHER INFORMATION CONTACT:
Albert Shuldiner, Chief, Media Bureau,
Audio Division, (202) 418–2721; Lisa
Scanlan, Deputy Division Chief, Media
Bureau, Audio Division, (202) 418–
2704; Christine Goepp, Attorney
Advisor, Media Bureau, Audio Division,
(202) 418–7834.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration (Reconsideration
Order), MB Docket No. 18–119; FCC 20–
141, released October 6, 2020. The full
text of the Reconsideration Order is
available electronically via the FCC’s
Electronic Document Management
System (EDOCS) website at https://
fjallfoss.fcc.gov/edocs_public/ or via the
FCC’s Electronic Comment Filing
System (ECFS) website at https://
www.fcc.gov/ecfs. (Documents will be
available electronically in ASCII,
Microsoft Word, and/or Adobe Acrobat.)
Alternative formats are available for
people with disabilities (braille, large
print, electronic files, audio format), by
sending an email to fcc504@fcc.gov or
DATES:
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calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Synopsis
1. Introduction. In this
Reconsideration Order, adopted and
released on October 6, 2020, the
Commission addresses petitions for
reconsideration (Petitions) of the Report
and Order, published at 84 FR 27734
(June 14, 2019) (Report and Order) in
the FM translator interference
proceeding. The Commission dismisses
or denies the arguments raised in the
Petitions. It also corrects a cross
reference contained in the rules
established by the Report and Order.
2. Background. In the Report and
Order, the Commission adopted new
rules to improve the FM translator
interference complaint and resolution
process. Specifically, it: (1) Gave FM
translators the flexibility, upon a
showing of interference to or from any
other broadcast station, to change
channels to any available same-band
channel using a minor modification
application; (2) standardized the
information that must be compiled and
submitted by any station claiming
interference, including the minimum
number of listener complaints
proportionate to the signal coverage of
the complaining station and undesiredto-desired (U/D) data demonstrating the
relative signal strength at each listener
location (zone of potential interference);
and (3) established an outer contour
limit of 45 dBu signal strength of the
complaining station within which
interference complaints will be
considered actionable.
4. Discussion. The Commission
dismisses or denies the arguments
raised in the Petitions, as summarized
below. It also corrects a cross reference
contained in the rules established by the
Report and Order.
5. Channel Changes. The Commission
rejects the argument that it erred in the
Report and Order by not requiring that
low power FM (LPFM) preclusion
studies be submitted with each minor
change application filed by an FM
translator operator to operate on a nonadjacent channel. It affirms its earlier
conclusion that neither the plain
language of section 5(1) of the Local
Community Radio Act of 2010 (LCRA)
nor subsequent case law mandates
preclusion studies for translator minor
change applications, explaining that
LCRA section 5 pertains only to the
licensing of new rather than existing
stations. Moreover, the Commission
finds that its previous efforts to preserve
LPFM availability in the context of
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waivers for FM translator long-distance
‘‘hops’’ are not relevant to the channel
change applications at issue here.
Therefore, the Commission both
dismisses this argument as previously
raised and considered and denies it on
the merits.
6. The Commission also dismisses
and, on alternative and independent
grounds, denies the argument that the
non-adjacent channel change rule
violates the Ashbacker doctrine. This
argument could have been raised earlier
in the proceeding. Moreover, the
Ashbacker right to comparative
consideration for mutually exclusive
applications does not apply to
prospective applicants, as here. Rather,
the Commission may promulgate rules
that limit the ability of parties to file
mutually exclusive applications. The
Commission finds that it is in the public
interest to do so here by allowing FM
translator stations to remediate
interference by changing channels and
treating changes as minor, thereby
foreclosing competing applications.
Doing so provides a low-cost way to
resolve interference with little or no
reduction in service area and help keep
translators on the air. The Commission
finds that to treat these changes as
major, and therefore subject to
competing applications, would
undermine the Commission’s efforts to
provide FM translator stations with an
efficient means to remediate
interference.
7. Required Contents of Translator
Interference Claims. The Commission
affirms three as the appropriate
minimum number of listener complaints
that must be submitted by an LPFM
station with fewer than 5,000 people
within its protected contours,
dismissing the argument that this limit
should be set at six. This argument was
considered and rejected earlier in the
proceeding. The Commission also
denies this argument on the alternative
and independent ground that the threelistener complaint minimum is a
targeted and proportionate requirement,
which in any case is applicable only to
a small subset of LPFM stations.
8. The Commission rejects the
arguments that it violated the
Administrative Procedure Act (APA)
and the petition clause of the U.S.
Constitution (Petition Clause) by
holding that multiple listener
complaints from the same building will
not be applied toward the listener
complaint minimum. The APA does not
prevent the Commission from adopting
a final rule that differs from a proposal
in an NPRM. To the contrary, the APA
requires that, after providing the public
with an opportunity to comment, an
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agency must then consider the relevant
matter presented. In this case, although
the NPRM proposed to allow multiple
complaints from a single building, in
the Report and Order the Commission
agreed with commenters that the new
rules should ensure that listener
complaints come from multiple, unique,
locations to demonstrate a real and
consistent interference problem. By
carefully reviewing the record and
modifying its earlier proposal in
response to it, the Commission
complied with APA requirements.
9. The Commission also denies the
argument that the Report and Order
denied radio listeners their right under
the Petition Clause to petition the
government for a redress of grievances.
Petitioners do not cite to any court or
agency precedent to support the
assertion that the Petition Clause
requires the Commission to accept and
consider all listener complaints of
translator interference. To the contrary,
the Supreme Court has held that
nothing in the First Amendment
suggests that the rights to speak,
associate, and petition require
government policymakers to listen or
respond to communications of members
of the public on public issues.
Moreover, the Commission explains,
from a practical standpoint, it is not
necessary to obtain multiple listener
complaints from a single location to
determine whether that location is
experiencing interference. It also
clarifies that although multiple listener
complaints will not count toward the
minimum number of listener
complaints, the translator operator must
still remediate all valid complaints from
the same building if all threshold
requirements are otherwise met.
10. Because the Reconsideration
Order corrects a cross-reference within
new §§ 74.1203(a)(3) and 74.1204(f) to
refer to § 74.1204(b) rather than
previously cross-referenced § 73.313,
the Commission dismisses as moot any
objection to the new rules based on
§ 73.313.
11. The Commission upholds the
requirement set out in the Report and
Order that each station submitting a
translator interference claim package
must include U/D data demonstrating
that at each listener location the ratio of
undesired to desired signal strength
exceeds ¥20 dB for co-channel
situations, ¥6 dB for first-adjacent
channel situations or 40 dB for secondor third-adjacent channel situations,
calculated using the Commission’s
standard contour prediction
methodology. The Commission declines
to allow listener complaints from
anywhere within the complaining
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station’s protected contour, even if the
listener location does not satisfy this U/
D requirement. The U/D requirement
serves as a threshold test to eliminate
obvious instances where the translator
could not be the source of the alleged
interference. Including listener
complaints from areas within the
complaining station’s protected contour
that do not satisfy the U/D test would
undermine this purpose. Moreover, the
Commission explains, the strength of
the complaining station’s signal within
its protected contour makes the
likelihood of translator interference
within the protected contour
exceedingly small. In the rare event that
a valid U/D showing could be made for
a location within a complaining
station’s protected contour, the
Commission states that it would accept
a listener complaint at that location if it
otherwise met the complaint
requirements set out in the Report and
Order. Finally, the Commission
anticipates that if a real and consistent
interference problem caused by a
translator should occur, the affected
station will be able to readily obtain the
required minimum number of listener
complaints from within the zone of
potential interference as defined in the
Report and Order.
12. In response to Skywaves
Communications LLC, who points out
that the Report and Order does not
specify F(50,50) or F(50,10) propagation
curves with respect to the 45 dBu
contour limit and the U/D zone of
potential interference test, the
Commission makes a technical change
to §§ 74.1203(a)(3) and 74.1204(f) to
cross-reference § 74.1204(b) rather than
§ 73.313. Section 74.1204(b) includes
guidance on using F(50, 50) curves for
protected contours and F(50, 10) curves
for interfering contours and is therefore
appropriate for the purpose of making a
U/D zone of potential interference
showing under the new rules.
13. Contour Limit on Translator
Interference Complaints. The
Commission dismisses as previously
raised and considered the argument that
existing translator stations will be
harmed by the establishment of an outer
contour limit of 45 dBu signal strength
of the complaining station within which
interference complaints will be
considered actionable. On alternative
and independent grounds, the
Commission denies this argument on
the merits, noting that under the
previous rules, any interference
complaint, at any distance from the
complaining station, could have forced
a translator station to cease operations.
Because the new contour limit protects
translator stations from specious
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interference complaints, it reduces the
risk to translator stations rather than
increasing it. In this respect, the
Commission clarifies that the 45 dBu
contour limit does not affect any
station’s existing protected contour
under the rules, including LPFM
stations. It affirms that the 45 dBu
contour limit represents a carefully
considered balance between protecting
translator stations from specious
interference claims on one hand while
preserving existing protections for other
broadcast stations on the other.
14. The Commission dismisses as
already raised and rejected the argument
that the Commission relied on
misleading data when it determined that
there is significant listenership beyond
many stations’ 54 dBu signal strength
contours. In doing so, the Commssion
considered all arguments on this point
and concluded that the data presented
in the record formed an adequate basis
for approximating nationwide
listenership at various signal strength
contours. On alternative and
independent grounds, the Commission
denies this argument on the merits,
noting that the Nielsen data in the
record was supplemented and
corroborated by independent
listenership data submitted by other
broadcasters from various markets
nationwide. Therefore, while
acknowledging that CUME, zip codebased, and home address-based
information may be over- or underinclusive in individual cases (for
example, when a zip code centroid is
within a certain signal strength contour
but the listening occurs outside it), the
Commission finds that this data is
sufficiently reliable with respect to
broad listenership patterns to support
the conclusion that a significant amount
of FM listening occurs beyond the
average 54 dBu contour and that setting
a limit on actionable complaints at this
signal strength would be economically
damaging to many broadcasters.
15. The Commission dismisses as
previously raised and rejected the
argument that the new rules contravene
LCRA section 5(3). The applicability of
the LCRA ‘‘equal in status’’ provision
was raised by other commenters earlier
in the proceeding and addressed in the
Report and Order. The Commission
affirms its conclusion that LCRA does
not prohibit the establishment of an
outer contour limit on translator
interference claims.
16. The Commission denies the
argument that it acted with bias against
the LPFM services by rejecting
objections filed by LPFM advocates to
pending translator applications in other
proceedings. This complaint ignores the
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Commission’s longstanding stewardship
of this valuable and unique service as
well as the fact that many of the
measures taken in the Report and Order
have equivalent rules already applicable
to the LPFM service, such as the ability
to change channels to resolve
interference and the contour limitation
on listener complaints. Thus, the new
rules do not prioritize translator service
over LPFM service but bring the two
services into closer harmony with each
other. Finally, the Commission explains
that improving the translator
interference process benefits all parties
concerned, including LPFM stations, by
providing a clearly defined, expeditious,
and fair process for resolving translator
interference complaints.
17. Pending Proceedings. The
Commission affirms the holding in the
Report and Order that the rules adopted
therein apply to any pending
applications or complaints that have not
been acted upon as of the date the new
rules became effective. It rejects the
argument that doing so imposes
‘‘impermissible retroactive burdens’’ on
those with pending translator
interference complaints. None of the
three ways in which a rule can be
retroactive are demonstrated here. First,
applying the new rules to pending
translator interference complaints does
not increase complainants’ liability for
past conduct. Second, applying the new
rules to pending translator interference
complaints does not impose new duties
with respect to transactions already
completed. Third, applying the new
rules to pending translator interference
complaints does not impair rights a
party possess when it acted. In this
respect, the Commission finds that
Petitioners do not demonstrate or
provide support for the position that the
mere filing of an interference complaint
endows the complainant with vested
rights, or that such rights, if established,
would be impaired by application of the
new rules. The Commission explains
that the purpose of the interference
complaint regime addressed in the
Report and Order is to resolve
complaints that FM translators are
causing interference to listeners of FM
and LPFM stations. Nothing in the
Report and Order eliminated the ability
of complainants, including those with
pending complaints, to avail themselves
of the Commission’s processes to
resolve such interference concerns.
Rather, the rules adopted in the Report
and Order changed only the way in
which these claims are adjudicated by
requiring more specific evidence.
Moreover, pending complainants were
provided with the opportunity to
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supplement their complaints to meet the
new requirements. If a pending
complaint is dismissed for failure to
comply with the new rules, nothing
precludes that same complainant from
pursuing a new interference complaint
in the future that complies with the new
rules. Therefore, the Commission
concludes, applying the new rules to
pending complaints does not impair
rights a party possessed when it acted
because both before and after the
effective date of the new rules, FM
translators are prohibited from causing
interference to listeners of FM and
LPFM stations and the Commission
provides a complaint process for
resolving such interference complaints.
It therefore denies the contention that
applying the new rules to interference
complaints pending against translator
stations had an impermissible
retroactive effect.
Procedural Matters
18. Paperwork Reduction Act
Analysis. This document does not
contain new or modified information
collection requirements subject to the
Paperwork Reduction Act of 1995,
Public Law 104–13. Therefore, it does
not contain any new or modified
information collection burdens for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198.
19. Congressional Review Act. The
Commission has determined, and the
Administrator of the Office of
Information and Regulatory Affairs,
Office of Management and Budget,
concurs that these rules are ‘‘non-major’’
under the Congressional Review Act, 5
U.S.C. 804(2). The Commission will
send a copy of this Order on
Reconsideration to Congress and the
Government Accountability Office
pursuant to 5 U.S.C. 801(a)(1)(A).
20. Final Regulatory Flexibility
Certification. The Regulatory Flexibility
Act of 1980, as amended (RFA), requires
that a regulatory flexibility analysis be
prepared for notice-and-comment rule
making proceedings, unless the agency
certifies that ‘‘the rule will not, if
promulgated, have a significant
economic impact on a substantial
number of small entities.’’ The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 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)
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is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA.
21. This Order on Reconsideration
disposes of petitions for reconsideration
in MB Docket No. 18–119. In the Report
and Order in this proceeding, the
Commission issued a Final Regulatory
Flexibility Analysis (FRFA) that
conforms to the RFA, as amended. The
Commission received no petitions for
reconsideration of that FRFA. This
Order on Reconsideration does not alter
the Commission’s previous analysis
under the RFA.
22. In this Order on Reconsideration,
the Commission corrects a crossreference in the rules to direct broadcast
applicants and licensees to a more
comprehensive set of guidelines for
calculating undesired-to-desired (U/D)
signal strength ratios in the context of a
translator interference claim.
Specifically, although both the original
cross-reference (47 CFR 73.313) and the
new cross-reference (47 CFR 74.1204(b))
accurately describes the Commission’s
standard contour prediction
methodology, the amended crossreference includes specific instructions
for calculating interfering as well as
protected contours, both of which are
used when calculating U/D ratios. Thus,
the amended cross-reference is
substantially similar to the original
cross-reference but provides additional
useful information and is more
technically accurate for the type of
calculation involved. This change is
minor and is not anticipated to have any
economic effect on broadcast licensees,
including small entities. Therefore, we
certify that the requirements of the
Order on Reconsideration will not have
a significant economic impact on a
substantial number of small entities.
The Commission will send a copy of the
Order on Reconsideration, including a
copy of this Final Regulatory Flexibility
Certification, in a report to Congress
pursuant to the Congressional Review
Act. In addition, the Order on
Reconsideration and this final
certification will be sent to the Chief
Counsel for Advocacy of the SBA and
will be published in the Federal
Register.
Ordering Clauses
14. It is ordered that, pursuant to
sections 1, 2, 4(i), 4(j), 301, 303, 307,
308, 309, 319, and 405 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i),
154(j), 301, 303, 307, 308, 309, 319, and
405, and § 1.429 of the Commission’s
rules, 47 CFR 1.429, this Order on
Reconsideration in MB Docket No. 18–
119 is adopted and shall be effective 30
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days after publication in the Federal
Register.
15. It is further ordered that part 74
of the Commission rules is amended as
set forth in Appendix A and that such
rule amendment shall be effective 30
days after publication in the Federal
Register.
16. It is further ordered that the
Petition for Reconsideration filed by
Louis P. Vito on July 16, 2019, is
dismissed in its entirety.
17. It is further ordered that the
Petition for Reconsideration filed by
Charles M. Anderson on July 11, 2019,
is dismissed to the extent set out in
paragraphs 9, 17, 20, and 21, supra, and
is denied to the extent set out in
paragraphs 9 and 19, supra.
18. It is further ordered that the
Petition for Reconsideration filed by the
LPFM Coalition on July 15, 2019, is
dismissed to the extent set out in
paragraphs 4, and 21, supra, and is
denied to the extent set out in
paragraphs 7, 10–13, 21, and 23–25
supra.
19. It is further ordered that the
Petition for Reconsideration filed by
KGIG–LP, Salida, California/Fellowship
of the Earth on July 15, 2019, is
dismissed to the extent set out in
paragraphs 4 and 8, supra, and is denied
to the extent set out in paragraphs 5–6,
8 and 22, supra.
20. It is further ordered that the
Petition for Reconsideration filed by
Skywaves Communications LLC on July
15, 2019, is dismissed to the extent set
out in paragraph 17 and 19, supra, and
is denied to the extent set out in
paragraphs 15 and 18, supra.
21. It is further ordered that the Stay
Request filed by the LPFM Coalition on
July 15, 2019, is dismissed as moot.
22. It is further ordered that, should
no further petitions for reconsideration
or petitions for judicial review be timely
filed, MB Docket No. 18–119 shall be
terminated, and its docket closed.
23. It is further ordered that the
Commission shall send a copy of this
Order on Reconsideration, including the
Final Regulatory Flexibility
Certification, 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).
24. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Order on Reconsideration,
including the Final Regulatory
Flexibility Certification, to the Chief
Counsel for Advocacy of the Small
Business Administration.
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Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 74 as
follows:
■ 1. The authority citation for part 74
continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307,
309, 310, 336, and 554.
2. Amend § 74.1203 by revising
paragraph (a)(3) to read as follows:
■
§ 74.1203
Interference.
(a) * * *
(3) The direct reception by the public
of the off-the-air signals of any fullservice station or previously authorized
secondary station. Interference will be
considered to occur whenever reception
of a regularly used signal is impaired by
the signals radiated by the FM translator
or booster station, regardless of the
channel on which the protected signal
is transmitted; except that no listener
complaint will be considered actionable
if the alleged interference occurs outside
the desired station’s 45 dBu contour.
Interference is demonstrated by:
(i) The required minimum number of
valid listener complaints as determined
using Table 1 of this section and defined
in § 74.1201(k) of this part;
(ii) A map plotting the specific
location of the alleged interference in
relation to the complaining station’s 45
dBu contour;
(iii) A statement that the complaining
station is operating within its licensed
parameters;
(iv) A statement that the complaining
station licensee has used commercially
reasonable efforts to inform the relevant
translator licensee of the claimed
interference and attempted private
resolution; and
(v) U/D data demonstrating that at
each listener location the undesired to
desired signal strength exceeds ¥20 dB
for co-channel situations, ¥6 dB for
first-adjacent channel situations or 40
dB for second- or third-adjacent channel
situations, calculated using the
methodology set out in § 74.1204(b).
TABLE 1 TO § 74.1203(a)(3)
Population within protected
contour
1–199,999 .............................
200,000–299,999 ..................
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Minimum
listener
complaints
required
for
interference
claim
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(f) An application for an FM translator
station will not be accepted for filing
even though the proposed operation
would not involve overlap of field
Minimum
listener
strength contours with any other station,
complaints
as set forth in paragraph (a) of this
Population within protected
required
contour
section, if grant of the authorization will
for
result in interference to the reception of
interference
claim
a regularly used, off-the-air signal of any
authorized co-channel, first, second or
300,000–399,999 ..................
8 third adjacent channel broadcast station,
400,000–499,999 ..................
9
500,000–999,999 ..................
10 including previously authorized
1,000,000–1,499,999 ............
15 secondary service stations within the 45
1,500,000–1,999,999 ............
20 dBu field strength contour of the desired
2,000,000 or more ................
25 station. Interference is demonstrated by:
LPFM stations with fewer
(1) The required minimum number of
than 5,000 .........................
3
valid listener complaints as determined
using Table 1 to § 74.1203(a)(3) of this
*
*
*
*
*
part and defined in § 74.1201(k) of this
■ 3. Amend § 74.1204 by revising
part;
paragraph (f) to read as follows:
(2) A map plotting the specific
§ 74.1204 Protection of FM broadcast, FM
location of the alleged interference in
Translator and LP100 stations.
relation to the complaining station’s 45
*
*
*
*
*
dBu contour;
TABLE 1 TO § 74.1203(a)(3)—
Continued
VerDate Sep<11>2014
16:13 Mar 09, 2021
Jkt 253001
PO 00000
Frm 00036
Fmt 4700
Sfmt 9990
(3) A statement that the complaining
station is operating within its licensed
parameters;
(4) A statement that the complaining
station licensee has used commercially
reasonable efforts to inform the relevant
translator licensee of the claimed
interference and attempted private
resolution; and
(5) U/D data demonstrating that at
each listener location the undesired to
desired signal strength exceeds ¥20 dB
for co-channel situations, ¥6 dB for
first-adjacent channel situations or 40
dB for second- or third-adjacent channel
situations, calculated using the
methodology set out in paragraph (b) of
this section.
*
*
*
*
*
Editorial Note: The Office of the Federal
Register received this document on December
16, 2020.
[FR Doc. 2020–28063 Filed 3–9–21; 8:45 am]
BILLING CODE 6712–01–P
E:\FR\FM\10MRR1.SGM
10MRR1
Agencies
[Federal Register Volume 86, Number 45 (Wednesday, March 10, 2021)]
[Rules and Regulations]
[Pages 13660-13664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28063]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 74
[MB Docket No. 18-119; FCC 20-141; FRS 17304]
FM Translator Interference
AGENCY: Federal Communications Commission.
ACTION: Final rule; dismissal and denial of petitions.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) addresses four petitions for reconsideration of a final
rule (Petitions) filed by: Charles M. Anderson; the LPFM Coalition;
KGIG-LP, Salida, California/Fellowship of the Earth; and Skywaves
Communications LLC. The Petitions seek reconsideration of the
Commission's report and order in the FM translator interference
proceeding (Report and Order). The Commission dismisses or denies the
arguments set forth in the Petitions and amends a rule to correct a
cross-reference.
DATES: The filing of the Petitions was published at 84 FR 37228 on July
31, 2019. The Commission adopted the Order on Reconsideration
dismissing and denying the Petitions and amending part 74 on October 6,
2020. The dismissals and/or denials of the Petitions will be effective
April 9, 2021. The rule amendment adopted in the Order on
Reconsideration will be effective March 9, 2021.
FOR FURTHER INFORMATION CONTACT: Albert Shuldiner, Chief, Media Bureau,
Audio Division, (202) 418-2721; Lisa Scanlan, Deputy Division Chief,
Media Bureau, Audio Division, (202) 418-2704; Christine Goepp, Attorney
Advisor, Media Bureau, Audio Division, (202) 418-7834.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration (Reconsideration Order), MB Docket No. 18-119; FCC
20-141, released October 6, 2020. The full text of the Reconsideration
Order is available electronically via the FCC's Electronic Document
Management System (EDOCS) website at https://fjallfoss.fcc.gov/edocs_public/ or via the FCC's Electronic Comment Filing System (ECFS)
website at https://www.fcc.gov/ecfs. (Documents will be available
electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.)
Alternative formats are available for people with disabilities
(braille, large print, electronic files, audio format), by sending an
email to [email protected] or calling the Commission's Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Synopsis
1. Introduction. In this Reconsideration Order, adopted and
released on October 6, 2020, the Commission addresses petitions for
reconsideration (Petitions) of the Report and Order, published at 84 FR
27734 (June 14, 2019) (Report and Order) in the FM translator
interference proceeding. The Commission dismisses or denies the
arguments raised in the Petitions. It also corrects a cross reference
contained in the rules established by the Report and Order.
2. Background. In the Report and Order, the Commission adopted new
rules to improve the FM translator interference complaint and
resolution process. Specifically, it: (1) Gave FM translators the
flexibility, upon a showing of interference to or from any other
broadcast station, to change channels to any available same-band
channel using a minor modification application; (2) standardized the
information that must be compiled and submitted by any station claiming
interference, including the minimum number of listener complaints
proportionate to the signal coverage of the complaining station and
undesired-to-desired (U/D) data demonstrating the relative signal
strength at each listener location (zone of potential interference);
and (3) established an outer contour limit of 45 dBu signal strength of
the complaining station within which interference complaints will be
considered actionable.
4. Discussion. The Commission dismisses or denies the arguments
raised in the Petitions, as summarized below. It also corrects a cross
reference contained in the rules established by the Report and Order.
5. Channel Changes. The Commission rejects the argument that it
erred in the Report and Order by not requiring that low power FM (LPFM)
preclusion studies be submitted with each minor change application
filed by an FM translator operator to operate on a non-adjacent
channel. It affirms its earlier conclusion that neither the plain
language of section 5(1) of the Local Community Radio Act of 2010
(LCRA) nor subsequent case law mandates preclusion studies for
translator minor change applications, explaining that LCRA section 5
pertains only to the licensing of new rather than existing stations.
Moreover, the Commission finds that its previous efforts to preserve
LPFM availability in the context of
[[Page 13661]]
waivers for FM translator long-distance ``hops'' are not relevant to
the channel change applications at issue here. Therefore, the
Commission both dismisses this argument as previously raised and
considered and denies it on the merits.
6. The Commission also dismisses and, on alternative and
independent grounds, denies the argument that the non-adjacent channel
change rule violates the Ashbacker doctrine. This argument could have
been raised earlier in the proceeding. Moreover, the Ashbacker right to
comparative consideration for mutually exclusive applications does not
apply to prospective applicants, as here. Rather, the Commission may
promulgate rules that limit the ability of parties to file mutually
exclusive applications. The Commission finds that it is in the public
interest to do so here by allowing FM translator stations to remediate
interference by changing channels and treating changes as minor,
thereby foreclosing competing applications. Doing so provides a low-
cost way to resolve interference with little or no reduction in service
area and help keep translators on the air. The Commission finds that to
treat these changes as major, and therefore subject to competing
applications, would undermine the Commission's efforts to provide FM
translator stations with an efficient means to remediate interference.
7. Required Contents of Translator Interference Claims. The
Commission affirms three as the appropriate minimum number of listener
complaints that must be submitted by an LPFM station with fewer than
5,000 people within its protected contours, dismissing the argument
that this limit should be set at six. This argument was considered and
rejected earlier in the proceeding. The Commission also denies this
argument on the alternative and independent ground that the three-
listener complaint minimum is a targeted and proportionate requirement,
which in any case is applicable only to a small subset of LPFM
stations.
8. The Commission rejects the arguments that it violated the
Administrative Procedure Act (APA) and the petition clause of the U.S.
Constitution (Petition Clause) by holding that multiple listener
complaints from the same building will not be applied toward the
listener complaint minimum. The APA does not prevent the Commission
from adopting a final rule that differs from a proposal in an NPRM. To
the contrary, the APA requires that, after providing the public with an
opportunity to comment, an agency must then consider the relevant
matter presented. In this case, although the NPRM proposed to allow
multiple complaints from a single building, in the Report and Order the
Commission agreed with commenters that the new rules should ensure that
listener complaints come from multiple, unique, locations to
demonstrate a real and consistent interference problem. By carefully
reviewing the record and modifying its earlier proposal in response to
it, the Commission complied with APA requirements.
9. The Commission also denies the argument that the Report and
Order denied radio listeners their right under the Petition Clause to
petition the government for a redress of grievances. Petitioners do not
cite to any court or agency precedent to support the assertion that the
Petition Clause requires the Commission to accept and consider all
listener complaints of translator interference. To the contrary, the
Supreme Court has held that nothing in the First Amendment suggests
that the rights to speak, associate, and petition require government
policymakers to listen or respond to communications of members of the
public on public issues. Moreover, the Commission explains, from a
practical standpoint, it is not necessary to obtain multiple listener
complaints from a single location to determine whether that location is
experiencing interference. It also clarifies that although multiple
listener complaints will not count toward the minimum number of
listener complaints, the translator operator must still remediate all
valid complaints from the same building if all threshold requirements
are otherwise met.
10. Because the Reconsideration Order corrects a cross-reference
within new Sec. Sec. 74.1203(a)(3) and 74.1204(f) to refer to Sec.
74.1204(b) rather than previously cross-referenced Sec. 73.313, the
Commission dismisses as moot any objection to the new rules based on
Sec. 73.313.
11. The Commission upholds the requirement set out in the Report
and Order that each station submitting a translator interference claim
package must include U/D data demonstrating that at each listener
location the ratio of undesired to desired signal strength exceeds -20
dB for co-channel situations, -6 dB for first-adjacent channel
situations or 40 dB for second- or third-adjacent channel situations,
calculated using the Commission's standard contour prediction
methodology. The Commission declines to allow listener complaints from
anywhere within the complaining station's protected contour, even if
the listener location does not satisfy this U/D requirement. The U/D
requirement serves as a threshold test to eliminate obvious instances
where the translator could not be the source of the alleged
interference. Including listener complaints from areas within the
complaining station's protected contour that do not satisfy the U/D
test would undermine this purpose. Moreover, the Commission explains,
the strength of the complaining station's signal within its protected
contour makes the likelihood of translator interference within the
protected contour exceedingly small. In the rare event that a valid U/D
showing could be made for a location within a complaining station's
protected contour, the Commission states that it would accept a
listener complaint at that location if it otherwise met the complaint
requirements set out in the Report and Order. Finally, the Commission
anticipates that if a real and consistent interference problem caused
by a translator should occur, the affected station will be able to
readily obtain the required minimum number of listener complaints from
within the zone of potential interference as defined in the Report and
Order.
12. In response to Skywaves Communications LLC, who points out that
the Report and Order does not specify F(50,50) or F(50,10) propagation
curves with respect to the 45 dBu contour limit and the U/D zone of
potential interference test, the Commission makes a technical change to
Sec. Sec. 74.1203(a)(3) and 74.1204(f) to cross-reference Sec.
74.1204(b) rather than Sec. 73.313. Section 74.1204(b) includes
guidance on using F(50, 50) curves for protected contours and F(50, 10)
curves for interfering contours and is therefore appropriate for the
purpose of making a U/D zone of potential interference showing under
the new rules.
13. Contour Limit on Translator Interference Complaints. The
Commission dismisses as previously raised and considered the argument
that existing translator stations will be harmed by the establishment
of an outer contour limit of 45 dBu signal strength of the complaining
station within which interference complaints will be considered
actionable. On alternative and independent grounds, the Commission
denies this argument on the merits, noting that under the previous
rules, any interference complaint, at any distance from the complaining
station, could have forced a translator station to cease operations.
Because the new contour limit protects translator stations from
specious
[[Page 13662]]
interference complaints, it reduces the risk to translator stations
rather than increasing it. In this respect, the Commission clarifies
that the 45 dBu contour limit does not affect any station's existing
protected contour under the rules, including LPFM stations. It affirms
that the 45 dBu contour limit represents a carefully considered balance
between protecting translator stations from specious interference
claims on one hand while preserving existing protections for other
broadcast stations on the other.
14. The Commission dismisses as already raised and rejected the
argument that the Commission relied on misleading data when it
determined that there is significant listenership beyond many stations'
54 dBu signal strength contours. In doing so, the Commssion considered
all arguments on this point and concluded that the data presented in
the record formed an adequate basis for approximating nationwide
listenership at various signal strength contours. On alternative and
independent grounds, the Commission denies this argument on the merits,
noting that the Nielsen data in the record was supplemented and
corroborated by independent listenership data submitted by other
broadcasters from various markets nationwide. Therefore, while
acknowledging that CUME, zip code-based, and home address-based
information may be over- or under-inclusive in individual cases (for
example, when a zip code centroid is within a certain signal strength
contour but the listening occurs outside it), the Commission finds that
this data is sufficiently reliable with respect to broad listenership
patterns to support the conclusion that a significant amount of FM
listening occurs beyond the average 54 dBu contour and that setting a
limit on actionable complaints at this signal strength would be
economically damaging to many broadcasters.
15. The Commission dismisses as previously raised and rejected the
argument that the new rules contravene LCRA section 5(3). The
applicability of the LCRA ``equal in status'' provision was raised by
other commenters earlier in the proceeding and addressed in the Report
and Order. The Commission affirms its conclusion that LCRA does not
prohibit the establishment of an outer contour limit on translator
interference claims.
16. The Commission denies the argument that it acted with bias
against the LPFM services by rejecting objections filed by LPFM
advocates to pending translator applications in other proceedings. This
complaint ignores the Commission's longstanding stewardship of this
valuable and unique service as well as the fact that many of the
measures taken in the Report and Order have equivalent rules already
applicable to the LPFM service, such as the ability to change channels
to resolve interference and the contour limitation on listener
complaints. Thus, the new rules do not prioritize translator service
over LPFM service but bring the two services into closer harmony with
each other. Finally, the Commission explains that improving the
translator interference process benefits all parties concerned,
including LPFM stations, by providing a clearly defined, expeditious,
and fair process for resolving translator interference complaints.
17. Pending Proceedings. The Commission affirms the holding in the
Report and Order that the rules adopted therein apply to any pending
applications or complaints that have not been acted upon as of the date
the new rules became effective. It rejects the argument that doing so
imposes ``impermissible retroactive burdens'' on those with pending
translator interference complaints. None of the three ways in which a
rule can be retroactive are demonstrated here. First, applying the new
rules to pending translator interference complaints does not increase
complainants' liability for past conduct. Second, applying the new
rules to pending translator interference complaints does not impose new
duties with respect to transactions already completed. Third, applying
the new rules to pending translator interference complaints does not
impair rights a party possess when it acted. In this respect, the
Commission finds that Petitioners do not demonstrate or provide support
for the position that the mere filing of an interference complaint
endows the complainant with vested rights, or that such rights, if
established, would be impaired by application of the new rules. The
Commission explains that the purpose of the interference complaint
regime addressed in the Report and Order is to resolve complaints that
FM translators are causing interference to listeners of FM and LPFM
stations. Nothing in the Report and Order eliminated the ability of
complainants, including those with pending complaints, to avail
themselves of the Commission's processes to resolve such interference
concerns. Rather, the rules adopted in the Report and Order changed
only the way in which these claims are adjudicated by requiring more
specific evidence. Moreover, pending complainants were provided with
the opportunity to supplement their complaints to meet the new
requirements. If a pending complaint is dismissed for failure to comply
with the new rules, nothing precludes that same complainant from
pursuing a new interference complaint in the future that complies with
the new rules. Therefore, the Commission concludes, applying the new
rules to pending complaints does not impair rights a party possessed
when it acted because both before and after the effective date of the
new rules, FM translators are prohibited from causing interference to
listeners of FM and LPFM stations and the Commission provides a
complaint process for resolving such interference complaints. It
therefore denies the contention that applying the new rules to
interference complaints pending against translator stations had an
impermissible retroactive effect.
Procedural Matters
18. Paperwork Reduction Act Analysis. This document does not
contain new or modified information collection requirements subject to
the Paperwork Reduction Act of 1995, Public Law 104-13. Therefore, it
does not contain any new or modified information collection burdens for
small business concerns with fewer than 25 employees, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198.
19. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget, concurs that these rules are ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of this Order on Reconsideration to
Congress and the Government Accountability Office pursuant to 5 U.S.C.
801(a)(1)(A).
20. Final Regulatory Flexibility Certification. The Regulatory
Flexibility Act of 1980, as amended (RFA), requires that a regulatory
flexibility analysis be prepared for notice-and-comment rule making
proceedings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' 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)
[[Page 13663]]
is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.
21. This Order on Reconsideration disposes of petitions for
reconsideration in MB Docket No. 18-119. In the Report and Order in
this proceeding, the Commission issued a Final Regulatory Flexibility
Analysis (FRFA) that conforms to the RFA, as amended. The Commission
received no petitions for reconsideration of that FRFA. This Order on
Reconsideration does not alter the Commission's previous analysis under
the RFA.
22. In this Order on Reconsideration, the Commission corrects a
cross-reference in the rules to direct broadcast applicants and
licensees to a more comprehensive set of guidelines for calculating
undesired-to-desired (U/D) signal strength ratios in the context of a
translator interference claim. Specifically, although both the original
cross-reference (47 CFR 73.313) and the new cross-reference (47 CFR
74.1204(b)) accurately describes the Commission's standard contour
prediction methodology, the amended cross-reference includes specific
instructions for calculating interfering as well as protected contours,
both of which are used when calculating U/D ratios. Thus, the amended
cross-reference is substantially similar to the original cross-
reference but provides additional useful information and is more
technically accurate for the type of calculation involved. This change
is minor and is not anticipated to have any economic effect on
broadcast licensees, including small entities. Therefore, we certify
that the requirements of the Order on Reconsideration will not have a
significant economic impact on a substantial number of small entities.
The Commission will send a copy of the Order on Reconsideration,
including a copy of this Final Regulatory Flexibility Certification, in
a report to Congress pursuant to the Congressional Review Act. In
addition, the Order on Reconsideration and this final certification
will be sent to the Chief Counsel for Advocacy of the SBA and will be
published in the Federal Register.
Ordering Clauses
14. It is ordered that, pursuant to sections 1, 2, 4(i), 4(j), 301,
303, 307, 308, 309, 319, and 405 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154(i), 154(j), 301, 303, 307, 308, 309,
319, and 405, and Sec. 1.429 of the Commission's rules, 47 CFR 1.429,
this Order on Reconsideration in MB Docket No. 18-119 is adopted and
shall be effective 30 days after publication in the Federal Register.
15. It is further ordered that part 74 of the Commission rules is
amended as set forth in Appendix A and that such rule amendment shall
be effective 30 days after publication in the Federal Register.
16. It is further ordered that the Petition for Reconsideration
filed by Louis P. Vito on July 16, 2019, is dismissed in its entirety.
17. It is further ordered that the Petition for Reconsideration
filed by Charles M. Anderson on July 11, 2019, is dismissed to the
extent set out in paragraphs 9, 17, 20, and 21, supra, and is denied to
the extent set out in paragraphs 9 and 19, supra.
18. It is further ordered that the Petition for Reconsideration
filed by the LPFM Coalition on July 15, 2019, is dismissed to the
extent set out in paragraphs 4, and 21, supra, and is denied to the
extent set out in paragraphs 7, 10-13, 21, and 23-25 supra.
19. It is further ordered that the Petition for Reconsideration
filed by KGIG-LP, Salida, California/Fellowship of the Earth on July
15, 2019, is dismissed to the extent set out in paragraphs 4 and 8,
supra, and is denied to the extent set out in paragraphs 5-6, 8 and 22,
supra.
20. It is further ordered that the Petition for Reconsideration
filed by Skywaves Communications LLC on July 15, 2019, is dismissed to
the extent set out in paragraph 17 and 19, supra, and is denied to the
extent set out in paragraphs 15 and 18, supra.
21. It is further ordered that the Stay Request filed by the LPFM
Coalition on July 15, 2019, is dismissed as moot.
22. It is further ordered that, should no further petitions for
reconsideration or petitions for judicial review be timely filed, MB
Docket No. 18-119 shall be terminated, and its docket closed.
23. It is further ordered that the Commission shall send a copy of
this Order on Reconsideration, including the Final Regulatory
Flexibility Certification, 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).
24. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order on Reconsideration, including the Final Regulatory
Flexibility Certification, to the Chief Counsel for Advocacy of the
Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Final Rules
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR part 74 as follows:
0
1. The authority citation for part 74 continues to read as follows:
Authority: 47 U.S.C. 154, 302a, 303, 307, 309, 310, 336, and
554.
0
2. Amend Sec. 74.1203 by revising paragraph (a)(3) to read as follows:
Sec. 74.1203 Interference.
(a) * * *
(3) The direct reception by the public of the off-the-air signals
of any full-service station or previously authorized secondary station.
Interference will be considered to occur whenever reception of a
regularly used signal is impaired by the signals radiated by the FM
translator or booster station, regardless of the channel on which the
protected signal is transmitted; except that no listener complaint will
be considered actionable if the alleged interference occurs outside the
desired station's 45 dBu contour. Interference is demonstrated by:
(i) The required minimum number of valid listener complaints as
determined using Table 1 of this section and defined in Sec.
74.1201(k) of this part;
(ii) A map plotting the specific location of the alleged
interference in relation to the complaining station's 45 dBu contour;
(iii) A statement that the complaining station is operating within
its licensed parameters;
(iv) A statement that the complaining station licensee has used
commercially reasonable efforts to inform the relevant translator
licensee of the claimed interference and attempted private resolution;
and
(v) U/D data demonstrating that at each listener location the
undesired to desired signal strength exceeds -20 dB for co-channel
situations, -6 dB for first-adjacent channel situations or 40 dB for
second- or third-adjacent channel situations, calculated using the
methodology set out in Sec. 74.1204(b).
Table 1 to Sec. 74.1203(a)(3)
------------------------------------------------------------------------
Minimum
listener
complaints
Population within protected contour required for
interference
claim
------------------------------------------------------------------------
1-199,999............................................... 6
200,000-299,999......................................... 7
[[Page 13664]]
300,000-399,999......................................... 8
400,000-499,999......................................... 9
500,000-999,999......................................... 10
1,000,000-1,499,999..................................... 15
1,500,000-1,999,999..................................... 20
2,000,000 or more....................................... 25
LPFM stations with fewer than 5,000..................... 3
------------------------------------------------------------------------
* * * * *
0
3. Amend Sec. 74.1204 by revising paragraph (f) to read as follows:
Sec. 74.1204 Protection of FM broadcast, FM Translator and LP100
stations.
* * * * *
(f) An application for an FM translator station will not be
accepted for filing even though the proposed operation would not
involve overlap of field strength contours with any other station, as
set forth in paragraph (a) of this section, if grant of the
authorization will result in interference to the reception of a
regularly used, off-the-air signal of any authorized co-channel, first,
second or third adjacent channel broadcast station, including
previously authorized secondary service stations within the 45 dBu
field strength contour of the desired station. Interference is
demonstrated by:
(1) The required minimum number of valid listener complaints as
determined using Table 1 to Sec. 74.1203(a)(3) of this part and
defined in Sec. 74.1201(k) of this part;
(2) A map plotting the specific location of the alleged
interference in relation to the complaining station's 45 dBu contour;
(3) A statement that the complaining station is operating within
its licensed parameters;
(4) A statement that the complaining station licensee has used
commercially reasonable efforts to inform the relevant translator
licensee of the claimed interference and attempted private resolution;
and
(5) U/D data demonstrating that at each listener location the
undesired to desired signal strength exceeds -20 dB for co-channel
situations, -6 dB for first-adjacent channel situations or 40 dB for
second- or third-adjacent channel situations, calculated using the
methodology set out in paragraph (b) of this section.
* * * * *
Editorial Note: The Office of the Federal Register received this
document on December 16, 2020.
[FR Doc. 2020-28063 Filed 3-9-21; 8:45 am]
BILLING CODE 6712-01-P