Digital Low Power Television and Television Translator Stations, 59455-59469 [2023-17414]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Rules and Regulations]
[Pages 59455-59469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17414]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 74

[MB Docket No. 03-185; FCC 23-58; FR ID 159756]


Digital Low Power Television and Television Translator Stations

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) adopts rules to clarify for all stakeholders the 
status of LPTV FM6 service and codify that these services may be 
provided by a group of 14 existing FM6 stations, and only by those 
stations.

DATES: Effective September 28, 2023, except for the amendments in Sec.  
74.790(o)(9) and (10), which are delayed indefinitely. The Commission 
will publish a separate document in the Federal Register announcing the 
effective date of those amendments.

FOR FURTHER INFORMATION CONTACT: Shaun Maher, Video Division, Media 
Bureau at (202) 418-2324 or [email protected], or, Mark Colombo, 
Video Division, Media Bureau at (202) 418-7611 or [email protected]. 
For additional information concerning the Paperwork Reduction Act (PRA) 
information collection requirements contained in this document, contact 
Cathy Williams at 202-418-2918, or [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's R&O, 
in MB Docket No. 03-185; FCC 23-58, adopted on July 20, 2023, and 
released on July 20, 2023. The full text of this document is available 
for download at https://docs.fcc.gov/public/attachments/FCC-23-58A1.pdf. To request materials in accessible formats (braille, large 
print, computer diskettes, or audio recordings), please send an email 
to [email protected] or call the Consumer & Government Affairs Bureau at 
(202) 418-0530 (VOICE), (202) 418-0432 (TTY).

Paperwork Reduction Act of 1995 Analysis

    This document contains a new or modified information collection 
requirement subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. It will be submitted to the Office of Management and 
Budget (OMB) for review under section 3507(d) of the PRA. OMB, the 
general public, and other Federal agencies will be invited to comment 
on the new or modified information collection requirement contained in 
the proceeding. These new or modified information collections will 
become effective after the Commission publishes a document in the 
Federal Register announcing such approval and the relevant effective 
date. In addition, the Commission notes that pursuant to the Small 
Business Paperwork Relief Act of 2002, (Pub. L. 107-198), it previously 
sought specific comment on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25

[[Page 59456]]

employees.'' (44 U.S.C. 3506(c)(4)). The Commission described impacts 
that might affect small businesses, which includes most businesses with 
fewer than 25 employees, in the Final Regulatory Flexibility Analysis 
(FRFA), attached as Appendix C.

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 this rule is ``non-major'' under the Congressional Review 
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Fifth 
Report and Order to Congress and the Government Accountability office, 
pursuant to 5 U.S.C. 801(a)(1)(A).

Synopsis

Authorizing FM6 Operations as Ancillary or Supplementary Services

    In the R&O, the Commission concludes that both the Communications 
Act of 1934 (Act) and its rules allow existing FM6 operations to be 
provided on an ancillary or supplementary basis to a channel 6 LPTV 
station's digital television operation, and that it is in the public 
interest to preserve FM6 operations by existing FM6 LPTV stations. The 
Act provides that ancillary or supplementary services must be 
``consistent with the public interest, convenience, and necessity''; 
must be ``consistent with the technology or method designated by the 
Commission for the provision of advanced television services''; and 
must ``avoid derogation of any advanced television services.'' The 
Commission concludes that existing FM6 services meet all of these 
requirements of the Act.
Existing FM6 Operations Serve the Public Interest as Required by 
Section 336(a)(2)
    The Commission concludes that existing FM6 operations are 
consistent with the mandate of section 336(a)(2) of the Act that the 
Commission allow digital television stations ``to offer such ancillary 
or supplementary services on designated frequencies as may be 
consistent with the public interest, convenience, and necessity.'' 
Specifically, the Commission notes the length of time that certain FM6 
LPTV stations have been operating and efforts they undertook to convert 
to digital operations to limit consumer impact. To preserve their 
programming (especially public safety and emergency information) that 
viewers have come to rely on, the Commission finds the public interest 
will be served by continuing existing FM6 operations. Further, the 
Commission finds that the benefits of preserving existing FM6 LPTV 
stations outweigh concerns that FM6 operations are an inefficient use 
of spectrum or could cause interference to their own television service 
or other licensed users.
    The Commission found that the record in this proceeding reflects 
widespread recognition of the long history of public interest benefits 
provided by existing FM6 LPTV stations' FM6 operations. Since the 
1980s, FM6 LPTV stations have maintained a close connection with the 
communities they serve through their FM6 programming. Listeners have 
tuned to existing FM6 LPTV stations for foreign language, religious and 
sports programming; programming intended to support historically 
underserved populations such as native Spanish speakers, immigrant 
populations; and programming designed for niche music audiences. In 
addition, existing FM6 LPTV stations provide emergency and public 
safety information that their listeners have come to rely upon in times 
of disasters. Although some commenters contend that certain FM6 LPTV 
stations are not serving the public interest because they are not 
providing any programming designed specifically for their local 
audiences but are merely airing music programming, the Commission does 
not make distinctions based on format. Therefore, the Commission finds 
that the record weighs in favor of the public interest benefits 
provided by existing FM6 LPTV stations.
    Although FM6 LPTV stations were required to discontinue analog 
television operations and convert to digital in July 2021, there were 
13 FM6 LPTV stations that were able to complete their digital 
transition and resume their FM6 operations with an FM6 STA with 
limited, if any, service interruptions. The Commission notes that more 
than half of the 13 existing FM6 LPTV stations were able to convert to 
digital and resume their FM6 operations within 2 months of terminating 
their analog operations in July 2021. The remaining stations resumed 
FM6 operations between 4 and 8 months after the July 2021 transition 
deadline mainly due to supply chain delays in obtaining the necessary 
FM6 equipment that were outside of their control. The Commission finds 
that preserving the long-time audio programming offered by these 
remaining FM6 LPTV stations aligns with one of the Commission's core 
principles guiding the digital transition--minimizing service 
disruptions. FM6 LPTV stations provide free, over-the-air synchronized 
video and audio programming using a standard-compliant ATSC 3.0 signal 
and supplement that programming with additional free, over-the-air 
analog audio broadcast services. The availability of these additional 
audio services has provided programmers with a platform on which to 
invest in programming directed to unserved or underserved audiences 
that may not be available on any other stations in their markets--all 
while continuing to provide free over-the-air video programming 
pursuant to their television licenses. To remove this service that 
radio listeners have relied on for many years would contravene the 
Commission's goal of preserving service.
    The public interest benefits of preserving existing FM6 operations 
also outweigh concerns about inefficient use of spectrum. Some analog 
FM6 LPTV stations had a history of minimal video service. With analog 
television operations, an FM6 LPTV station could not transmit a 
separate audio stream for its video programming and for radio 
reception. The rules the Commission adopted in the R&O address this 
issue. FM6 LPTV stations will be required to transmit a dual digital 
television and analog radio signal, thereby providing both new digital 
television services while maintaining existing audio services. The 
rules the Commission adopts ensure that FM6 LPTV stations are first and 
foremost LPTV stations and that their video programming stream is 
prioritized over any audio stream. Further, enhanced compression 
technologies encompassed in the ATSC 3.0 standard provide broadcasters 
even greater bandwidth capacity on their channel for television 
services than under the ATSC 1.0 standard. Therefore, the Commission 
believes the rules it adopts appropriately address previous concerns 
that FM6 LPTV stations are using their spectrum inefficiently. The 
Commission is not persuaded by commenters that suggest FM6 LPTV 
stations will abandon their current programming thereby undoing the 
public interest basis for allowing their continued FM6 operations. As 
the Commission has previously recognized, offering additional services 
on an existing television channel ``contributes to efficient spectrum 
use and can expand and enhance use of existing spectrum.''
    Further, the Commission concludes that the public interest benefits 
of preserving existing FM6 operations offset concerns about existing 
FM6 operations causing interference to an

[[Page 59457]]

FM6 LPTV station's own digital television service or to FM radio 
licensees. To date, existing FM6 LPTV stations that have been operating 
under the technical limitations in the FM6 STAs and using ATSC 3.0 for 
their digital television signal have an established track record of not 
causing interference to adjacent channel FM stations or their own 
television signal. Existing FM6 LPTV stations have been operating for 
almost two years via engineering STAs without any legitimate 
interference complaints from either adjacent channel FM radio stations 
or their own TV viewers. Moreover, the Commission notes that no 
commenter has presented credible evidence in the record that any of the 
existing FM6 LPTV stations have caused interference.
    To the extent that there have been interference-free FM6 
operations, the Commission observes that such record is limited to the 
anecdotal history of the 13 existing FM6 LPTV stations. Based on co-
existence concerns raised throughout this proceeding, the Commission 
has sought to develop a comprehensive record on the potential for FM6 
operations to cause interference. One area of potential interference is 
to the ``host'' channel 6 LPTV station's own digital operations. A 
``host'' station is a channel 6 LPTV station that provides a digital 
television service, but also provides an analog FM radio operation over 
the same channel. The Commission has asked if an FM6 LPTV station would 
be able to operate an analog transmitter without interfering or 
derogating its co-channel digital operation. Some commenters argued 
that an FM6 LPTV station operating in digital could experience so-
called ``host interference''--a phenomena where a new signal interferes 
with a station's existing signal, in this case an LPTV station 
operating both digital television and analog FM radio signals. 
Similarly, the Commission sought comment on the potential of 
interference to adjacent channel FM radio stations on 88.1 and 88.3 
MHz. Some commenters raised concerns that higher power FM6 operations 
on 87.75 MHz could interfere with lower power adjacent channel FM radio 
stations operating on 88.1 MHz and 88.3 MHz. Despite repeated requests, 
commenters have failed to produce detailed interference studies that 
show that FM6 operations will not cause interference to either host 
digital television operations or adjacent channel FM radio stations in 
all circumstances. Therefore, because the Commission has only anecdotal 
evidence involving specific unmodified stations, it is unable to 
conclusively state that no interference will occur from prospective new 
FM6 LPTV stations that do not have a track record of interference-free 
operations.
    For prospective new FM6 operations, such interference concerns 
outweigh any benefits from adopting rules allowing new FM6 operations 
to commence, thus leading us to conclude that adopting rules to allow 
all channel 6 LPTV stations to offer new FM6 services would not serve 
the public interest as required by section 336(a)(2) of the Act. Even 
though some TV6 LPTV stations may have previously provided FM6 service 
while operating in analog before the digital transition (i.e., legacy 
analog FM6 stations), the Commission again does not have sufficient 
technical analysis to say for certain that there would be no 
interference to their own television operations or adjacent FM radio 
stations were it to allow them to recommence FM6 operations. 
Accordingly, the Commission believes it prudent to proceed cautiously 
and establish rules in this Order only for existing FM6 stations, which 
have an established track record of non-interference and a history of 
providing FM6 service to the public. Commenters support limiting FM6 
operations to the existing LPTV stations, provided the Commission take 
steps to ensure that the existing stations (and WVOA-LD) will continue 
to provide FM6 service without causing interference. To that end, the 
Commission adopts specific FM6 operational rules, such as limiting 
modifications and explicitly requiring that FM6 operations be conducted 
only on a non-interference basis.
    The Commission also concludes that the record in this proceeding 
demonstrates that there are no reasonable alternatives for existing FM6 
operations that provide the same level of accessibility to existing 
audiences. The Commission is persuaded that the additional expense and/
or lack of access make other options impractical as reasonable 
substitutes for established audiences and services. As commenters point 
out, to receive a digital audio stream on an LPTV station's multicast 
channel, the listener would need to purchase a digital television 
receive antenna in order to access the audio stream. Further, listeners 
would lose the portability of an existing FM6 LPTV station's audio 
signal as it would only be available on a television set, which is 
generally a fixed device. Instead of having to take these additional, 
potentially costly steps to continue receiving this established audio 
programming, permitting existing FM6 operations to continue as they are 
currently offered will allow listeners to utilize existing FM radio 
receivers, including in cars and using other portable radio devices, 
and continue to obtain FM6 audio programming in the manner that radio 
listeners are accustomed to receiving such audio content.
    Similarly, the Commission finds that relocating FM6 programming to 
digital subchannels on local FM or LPFM stations could also be a more 
costly option because it too would potentially involve the purchase of 
new equipment for some consumers instead of relying on existing 
receivers. Additionally, FM6 LPTV stations would have to negotiate 
programming agreements with FM and LPFM radio stations and pay to air 
their programming on other stations instead of simply airing their 
programming on their own station. Further, given the unique types of 
programming often provided by FM6 LPTV stations, it may be difficult to 
find an entity interested in carrying their streams that is different 
from the entity's programming. As for making the programming available 
through the internet, this would create significant barriers for 
listeners who do not have internet access, may only have fixed internet 
access (thus losing portability of the existing FM6 audio signal), or 
may not have mobile internet access with sufficient data plans or a 
device capable of streaming audio.
    Finally, the Commission finds that obtaining a separate FM or LPFM 
radio license provides an unlikely alternative. In particular, because 
LPFM stations must be operated on a noncommercial educational basis, 
they are not an option for FM6 LPTV stations that historically have 
operated as commercial stations. The Commission believes most if not 
all FM6 LPTV stations are operating on a commercial basis as evidenced 
by the fact that most FM6 LPTV stations submitted Annual DTV Ancillary/
Supplementary Services Reports (LMS Form 2100--Schedule 317) indicating 
that they have had revenues from their FM6 operations. Further, in the 
case of either LPFM or full power FM, acquiring a station could be an 
expensive and time consuming proposition for many FM6 LPTV stations, 
especially for those in larger markets. Therefore, for all of the 
foregoing reasons, the Commission concludes that the public interest is 
best served by allowing existing FM6 operations to continue as an 
ancillary or supplementary service.

[[Page 59458]]

Existing FM6 Operations Satisfy Section 336(b)(1)
    As required by section 336(b)(1), the Commission concludes that 
existing FM6 operations are ``consistent with'' the ``technology or 
method designated by the Commission for the provision of advanced 
television services . . . .'' As an initial matter, the Commission 
interprets the phrase ``consistent with'' to allow for a degree of 
flexibility by requiring ancillary or supplementary services to be 
compatible with the technology or method for providing advanced 
television services. A more narrow reading of the phrase ``consistent 
with'' that affords less flexibility would unreasonably constrain the 
types of ancillary or supplementary services stations can provide, 
thereby frustrating Congressional intent to ``[p]ermit[ ] broadcasters 
more flexibility in using their spectrum assignments [ ] consistent 
with the public policy goal of providing additional services to the 
public.'' The Commission has most recently interpreted this provision 
of the Act broadly, observing that ``Congress recognized that the 
transition from analog to digital broadcast technology would enable DTV 
licensees to provide new and innovative services . . . over their 
additional spectrum capacity and wanted to provide licensees with the 
flexibility necessary to utilize fully that new potential.'' In 
addition, the Commission interprets the phrase ``technology or method 
designated by the Commission for the provision of advanced television 
services'' to mean the transmission standards required for digital 
television stations that have been adopted by the Commission and 
incorporated in the rules. While the Commission's rules allow LPTV 
stations to comply with either the ATSC 1.0 or 3.0 standard in 
providing advanced television services, the Commission analyzes here 
compatibility of analog FM6 with only ATSC 3.0 consistent with the 
rules the Commission adopts below.
    The Commission finds that existing analog FM6 radio operations are 
compatible with the ATSC 3.0 standard, and therefore satisfy section 
336(b)(1). The ATSC 3.0 standard allows for configurability, permitting 
FM6 LPTV stations to make their television signal narrower and/or have 
the signals settings modified to have increased error correction 
intended to prevent co-channel interference between the stations' 
digital television and analog radio signals. Existing FM6 LPTV stations 
operating in ATSC 3.0 have been able to continue to deliver free over-
the-air ATSC 3.0 television signals configured to occupy approximately 
5.5 MHz of their digital channel capacity while at the same time 
providing analog FM6 on a frequency within their 6 MHz channel. 
Television channel 6 encompasses the 82-88 MHz band. The Act and the 
rules do not require a licensee to use its entire 6 MHz channel solely 
for the provision of advanced television services. In fact, in adopting 
the ancillary or supplementary provisions of the rules, the Commission 
provided numerous examples of non-television services as being 
permissible ancillary or supplementary services including: ``computer 
software distribution, data transmissions, teletext, interactive 
materials, aural messages, paging services, audio signals, subscription 
video'' whether offered on a ``broadcast, point-to-point, or point-to-
multipoint basis.'' For these reasons, including the configurability 
afforded by ATSC 3.0, the Commission finds that existing analog FM6 
radio operations are compatible with the ATSC 3.0 standard.
    The Commission disagrees with commenters suggesting that the 
definition of ``advanced television services'' should apply to all 
services that are incorporated into a digital television station's 6 
MHz digital bitstream. Such a finding would be in complete 
contradiction with the flexibility afforded to broadcasters under the 
Act, and implemented by the rules, to offer ancillary or supplementary 
services. A digital LPTV station may offer ancillary or supplementary 
services on its assigned frequencies as long as such services are 
``consistent with the technology or method designated by the Commission 
for the provision of advanced television services'' and, as discussed 
in greater detail below, ``avoid derogation of any advanced television 
services . . . that the Commission may require using such 
frequencies.'' Based on these facts, the Commission concludes that FM6 
LPTV stations operations are consistent with the technology or method 
designated by the Commission for the provision of advanced television 
systems, as required by section 336(b)(1) of the Act and defined by the 
rules.
    The Commission rejects arguments that FM6 operations are precluded 
by section 336(b)(1) of the Act because FM6 stations are providing 
separate audio and visual offerings or that FM6 operations are not 
``consistent with technology or method designated by the Commission for 
the provision of advanced television services'' because neither the 
ATSC 3.0 standard nor the rules specifically refer to analog audio 
signals. As an initial matter, neither section 336 nor the rules 
mandate that particular ancillary or supplementary services must be 
specifically integrated into or mentioned within the pertinent digital 
television transmission standard (in this case, ATSC 3.0) or in the 
rules. Rather, the Commission's rules require only that a digital 
television station transmit at least one over-the-air video program 
signal at no charge to viewers as a precondition to offering ancillary 
and supplementary services. The rules also permit digital LPTV 
broadcasters to transmit separate aural and visual program material as 
long as the visual signal can be viewed on a receiver based on the ATSC 
standard. Here, FM6 stations comply with this rule by providing a 
television signal while the analog audio stream is transmitted through 
a separate analog audio carrier.
Existing FM6 Operations Satisfy Section 336(b)(2)
    As required by section 336(b)(2), the Commission next finds that 
existing FM6 operations do not ``derogat[e] any advanced television 
services.'' One commenter claims that, by providing an FM6 operation 
that uses a portion of an LPTV station's bandwidth, it is ``denying 
advanced television services to the entire 6 MHz band as required by 
statute'' and that this ``derogate[s] the NextGen ATSC 3.0 experience 
and therefore does not meet the statutory test.'' The Commission 
disagrees. The derogation prong of section 336(b)(2) prohibits 
derogation of ``any advanced television services . . . that the 
Commission may require using such frequencies.'' The derogation 
standard does not address what hypothetical advanced television 
services a station could offer; rather, it addresses the advanced 
television services a station actually offers and are otherwise 
required by the Commission. Under the rules broadcasters are only 
required to provide one free over-the-air video programming stream. 
Further, as discussed above, broadcasters are not required to utilize 
their entire 6 MHz stream solely for television services and are 
authorized by the Act and the rules to offer ancillary or supplementary 
services over a portion of their spectrum. The record demonstrates that 
the use of ATSC 3.0 to broadcast a station's television stream(s) is 
intended to prevent interference between the station's digital 
television and analog radio signals and thereby does not run afoul of 
the derogation provision of section 336(b)(2) of the Act or Sec.  
73.624(c) of the rules.

[[Page 59459]]

Limiting FM6 Operations to Existing Operators

    The Commission adopts its proposal to allow only FM6 LPTV stations 
with ``active'' FM6 STAs to continue to provide FM6 service. The 
Commission will define ``active'' FM6 STAs to be initial FM6 STAs that 
were either granted and unexpired, or a request for extension of an STA 
that was granted or pending on June 7, 2022 of the release date of the 
adopted Amendment of Parts 73 and 74 of the Commission's Rules to 
Establish Rules for Digital Low Power Television and Television 
Translator Stations, Fifth Notice of Proposed Rulemaking, MB Docket No. 
03-185, FCC 22-40 (87 FR 36440) (Further Notice of Proposed Rulemaking 
(FNPRM)). The Commission also requires that to be considered an 
``active'' FM6 STA, the STA must remain unexpired (i.e., through grant 
of subsequent extension(s)) or have a pending extension request on file 
as of the effective date of this R&O.
    Eligible FM6 LPTV Stations. The Commission concludes that the 
public interest benefits of preserving the existing programming of the 
13 FM6 LPTV stations with active FM6 STAs outweighs the risk of 
potential interference to other licensed users by these 13 FM6 LPTV 
stations. The Commission also finds that limiting the class of stations 
eligible to provide FM6 services is consistent with both section 
336(a)(2) of the Act, which states that the Commission shall adopt 
regulations authorizing ancillary or supplementary services that ``may 
be consistent with the public interest, convenience, and necessity,'' 
and section 336(b)(5) of the Act, which states that in adopting 
regulations authorizing ancillary or supplementary services the 
Commission shall ``prescribe such other regulations as may be necessary 
for the protection of the public interest, convenience, and 
necessity.'' These 13 stations (as well as WVOA-LD), present unique 
circumstances that weigh in favor of permitting continued FM6 
operations as an ancillary or supplementary service. Some commenters 
maintain that limiting the class of entities that can provide FM6 
service is inconsistent with the requirement under section 307(b) of 
the Act to ``provide a fair, efficient, and equitable distribution of 
radio service.'' As an initial matter, section 307(b) applies only when 
the Commission is ``considering applications for licenses, and 
modifications and renewals thereof.'' In this R&O, however, no 
applications are before us; rather, the Commission establishes rules 
for existing licensees to provide certain ancillary or supplementary 
services, so section 307(b) does not apply. In addition, given their 
lower power and secondary nature, the Commission has not considered the 
mandate of section 307(b) of the Act when deciding how to allocate LPTV 
stations.
    The Commission finds the 13 FM6 LPTV stations with active FM6 STAs 
are distinguishable from other channel 6 LPTV stations that have either 
never provided FM6 service or were legacy FM6 stations when they were 
operating in analog, but are no longer providing such service. As an 
initial matter, the 13 FM6 LPTV stations with active FM6 STAs have a 
history of providing consistent FM6 service both prior to and following 
the July 13, 2021 LPTV digital television transition. These stations 
not only promptly transitioned to digital operations, but they also 
converted to ATSC 3.0 and obtained an FM6 STA within a reasonable 
period following their digital transition. As a result, listeners have 
maintained their reliance on these stations, and preserving access to 
programming on which listeners have come to rely weighs heavily in 
favor of permitting these 13 FM6 LPTV stations to continue their 
existing FM6 operations. Second, permitting only the existing FM6 LPTV 
stations to provide FM6 service presents a solution to the interference 
concerns raised by adjacent-band FM stations. Existing FM6 LPTV 
stations' facilities have been ``frozen'' in place and were not 
permitted to be modified. While such stations have been operating 
without any verified complaints of interference, the Commission has 
established rules to ensure that such interference-free operations 
continue into the future with no negative impact on other licensees or 
their own digital television service. The same cannot be said of FM6 
operations from prospective new FM6 LPTV stations for which the 
Commission does not have a track record of non-interference since the 
LPTV digital television transition.
    WVOA-LD. The Commission concludes that WVOA-LD, Westvale, New York, 
licensed to Metro TV, Inc., should be permitted to provide FM6 
operations. The station previously provided FM6 service while an analog 
station, and was prepared to operate an FM6 station prior to the 
release of the FNPRM. However, the station was unable to complete its 
conversion to ATSC 3.0 digital operations and initiate FM6 operations 
pursuant to an FM6 STA due to a delay in grant of an application for 
minor modification. Grant of the application was delayed because the 
requisite international coordination clearance from Canada had not been 
received by the Commission prior to release of the FNPRM. WVOA-LD 
indicates that such minor modification was necessary in order to 
adequately implement their digital television service and recommence 
its FM6 operation. Because this proceeding was ongoing at the time of 
the grant, the license was granted with a condition stating that WVOA-
LD was not permitted to conduct FM6 operations, subject to the outcome 
of this proceeding. Given the Commission's decision to permit WVOA-LD 
to offer FM6 services, the Commission instructs the Media Bureau to add 
a notation to the WVOA-LD license indicating that FM6 operations are 
permitted pursuant to Sec.  74.790(o) of the Commission's rules and 
this R&O. The Commission finds the delay in obtaining international 
coordination was truly outside of WVOA-LD's control, and good cause to 
permit WVOA-LD to provide FM6 operations. The Commission has recognized 
certain delays in international coordination as truly beyond the 
control of the station. Here, WVOA-LD took all steps necessary to 
secure Canadian approval and the delays in approval were truly outside 
the control of WVOA. No commenter opposes this finding.
    In order to confirm that no interference will occur, the Commission 
requires that WVOA-LD initially commence FM6 operations under special 
temporary authority and operate under such authority for a period of 
one-year. Although WVOA-LD argues that such a requirement is 
unnecessary, the Commission disagrees because unlike the 13 existing 
FM6 LPTV stations, the Commission does not have a record of WVOA-LD 
operating in digital while providing FM6 service. Therefore, within 85 
days of the effective date of this R&O, the Commission requires WVOA-LD 
to commence both ATSC 3.0 and FM6 operations by filing an application 
to convert its facility to ATSC 3.0, and request for engineering STA. 
The period of 85 days represents the amount of time WVOA-LD would have 
had to resume FM6 operations in order to have been included in the 
group of 13 FM6 LPTV stations with ``active'' FM6 STAs if its minor 
modification application did not require international coordination and 
was actionable upon filing when filed on March 11, 2022. WVOA-LD must 
notify the Bureau no more than 10 days after it commences FM6 
operations by filing a written letter with the Secretary's office, to 
the attention of the Chief, Video Division, Media Bureau

[[Page 59460]]

and by providing an electronic version of that letter to the Chief of 
the Video Division, Media Bureau. The letter must provide the date the 
Station completed its transition to ATSC 3.0 and the date that it 
commenced FM6 operations. During the one-year period the station is 
operating pursuant to an FM6 STA, WVOA-LD will be required to comply 
with all rules adopted in this R&O that would otherwise pertain to an 
LPTV station conducting FM6 operations. In addition, WVOA-LD is 
required to file status reports of interference, as required for FM6 
STAs, disclosing whether it has received any complaints of 
interference. During the initial six-month STA, status reports will be 
required after 90 days and 180 days of operation. WVOA-LD's status 
reports must be filed with the Secretary's office, to the attention of 
the Chief of the Video Division, Media Bureau. An electronic copy must 
also be sent via electronic mail to the Chief of the Video Division, 
Media Bureau. Upon extension of its STA, if granted, WVOA-LD must file 
one final status report disclosing whether it has received any 
interference complaints within five days of expiration of the STA. It 
must also state whether it intends to continue to provide FM6 service 
on a permanent basis following expiration of the STA. If no 
interference is found and WVOA-LD states it wishes to continue FM6 
operations permanently, then WVOA-LD will be permitted to continue FM6 
operations on the same basis as the other 13 stations discussed herein 
without the need for an STA.
    New Entrants and Other ``Legacy'' Analog FM6 LPTV Stations. In 
contrast, the Commission cannot make similar conclusions about legacy 
analog FM6 LPTV stations that ceased FM6 operations or LPTV channel 6 
stations that have never provided FM6 services. In the FNPRM, the 
Commission recognized that there may be a limited number of legacy 
analog FM6 LPTV stations that discontinued their FM6 operations at the 
time of the LPTV digital transition in July 2021, but intended to 
resume their FM6 operations once their new digital facilities were 
completed. The Commission asked if it should permit these stations to 
begin providing FM6 operations under the same conditions as existing 
FM6 LPTV stations. In response, the Commission received comments from 
two legacy FM6 LPTV stations--WJMF-LD, Jackson, Mississippi, licensed 
to KTL, and KBFW-LD, Arlington, Texas, licensed to Benavides. The 
Commission finds that these stations are distinguishable from the 13 
FM6 LPTV stations with active FM6 STAs and WVOA-LD.
    WJMF-LD terminated its analog television operations in July 2021 to 
comply with the LPTV digital transition deadline and completed its 
conversion to ATSC 1.0 digital operations in January 2022. Although it 
was a legacy FM6 LPTV station, the station, at a minimum, has not 
provided FM6 service since at least July 13, 2021, nor (unlike WVOA-LD) 
did it take steps to preserve FM6 operations. As such the Commission is 
unable to conclude that there is an audience that relies on WJMF-LD's 
FM6 operations, in contrast to the 13 existing operators that have been 
providing service and submitting periodic reporting demonstrating a 
lack of interference from their operations. There is also no record of 
FM6 operations upon which to determine if the station could operate 
without causing interference. While the station's current digital 
license largely mirrors the contour of its former analog facility, in 
May 2022 WJMF-LD was granted a construction permit to increase its 
coverage area. Such a modification could significantly alter the 
potential interference profile of the station and remains unbuilt, 
unlike the 13 existing operators about whose FM6 operations the 
Commission does have a record of non-interference. WJMF-LD also failed 
to provide any circumstances, as in the case of WVOA-LD, that prevented 
it from taking steps to maintain its FM6 operations, as the 13 other 
stations did, following the digital television transition deadline. The 
Commission finds that KTL had ample time following the digital 
transition deadline and prior to release of the FNPRM to pursue steps 
to preserve its FM6 operations, but for its own independent reasons 
chose not to take action.
    As for KBFW-LD, it was a legacy analog FM6 LPTV station that did 
not convert to digital ATSC 1.0 until September 1, 2021. Unlike WJMF-
LD, however, it continued its FM6 analog operation, without Commission 
authority, until sometime in May 2022 when the station was instructed 
by the Enforcement Bureau to cease and desist its FM6 analog 
operations. The station did not seek to convert to ATSC 3.0 until July 
2022. KBFW-LD has pending before the Bureau an application to convert 
its station to ATSC 3.0. The Commission provides KBFW-LD 30 days 
following release of this R&O to notify the Video Division (Division) 
of its intent to proceed with transitioning its facility to ATSC 3.0 
operations. If KBFW-LD intends to proceed with transitioning to ATSC 
3.0, it must amend its pending application to identify its new 
transition date. Alternatively, KBFW-LD may withdraw its application. 
Should KBFW-LD fail to amend its request or seek withdrawal of its 
application within 30 days, the Bureau is instructed to dismiss the 
pending application. Benavides contends that Bureau staff assured him 
that he would be permitted to obtain an FM6 STA. This appears to be an 
inaccurate characterization of the guidance provided. In a series of 
emails dating back to August 2021, Bureau staff provided both Benavides 
and his counsel detailed instructions on how to proceed with filing an 
FM6 STA. Benavides and his counsel failed to follow these instructions 
and instead proceeded to continue to provide, at minimum, analog FM 
service, without a valid authorization. Notwithstanding any potential 
misunderstanding about obtaining an FM6 STA, Benavides still was not 
prepared to convert to ATSC 3.0 and commence FM6 operations pursuant to 
FM6 STA until July 2022.
    Similar to WJMF-LD, the station has not provided FM6 service for an 
extended period of time--having last engaged in authorized operations 
nearly two years ago. As such, the Commission is unable to conclude 
there is an audience that has continued to rely on KBFW-LD's FM6 
operations, as the Commission has for the 13 FM6 stations that have 
continued to provide FM6 service, with limited or no interruption. 
Further, as was the case with WJMF-LD, there is no record of the 
station operating as an FM6 LPTV station pursuant to an FM6 engineering 
STA upon which to determine if the station could operate without 
causing interference. KBFW-LD did operate in digital ATSC 1.0 with an 
FM6 operation for several months but such operation was not authorized 
and the Commission will not recognize it for purposes of determining 
the station's operational record. KBFW-LD also fails to provide any 
circumstances truly beyond its control, as in the case of WVOA-LD, that 
prevented it from taking steps to maintain its FM6 operations, as 13 
other stations did following the LPTV digital television transition 
deadline. Like KTL, Benavides had ample time following the digital 
transition deadline and prior to release of the FNPRM to pursue steps 
to preserve its FM6 operations, but did not take the necessary steps in 
time. In light of all these facts, the Commission rejects KTL and 
Benavides' calls to be permitted to provide FM6 services on their 
channel 6 LPTV stations.
    Likewise, channel 6 LPTV stations that are seeking to be new 
entrants to FM6 operations do not have similar equities at play as the 
13 FM6 LPTV

[[Page 59461]]

stations, as they have no established listener base that relies upon 
them, and the Commission therefore finds that there are insufficient 
public interest reasons to outweigh the interference concerns brought 
on by new FM6 operations. The Commission also finds that WVOA-LD is 
distinguishable from potential ``new entrants'' because WVOA-LD had an 
established audience prior to the digital transition and was prepared 
to proceed with FM6 operations, but was prevented from doing so because 
approval of its application was pending international coordination. 
Even to the extent that there are licensees that obtained channel 6 
LPTV stations with the expectation that they may be able to provide FM6 
operations, the public interest rationale--maintaining service on which 
an audience has come to rely--does not apply to hypothetical scenarios 
about service a licensee might provide. In addition, these new entrant 
stations have no record regarding interference because they have not 
been providing FM6 service, unlike the 13 existing FM6 operators which 
have an established track record of no interference. For the foregoing 
reasons, the Commission also rejects these stations' requests to be 
permitted to provide FM6 services in the future.
    The Commission also rejects arguments that its decision to limit 
FM6 operations to certain stations is arbitrary and capricious. As 
discussed above, the Commission concludes that the public interest is 
served by maintaining existing FM6 services provided by stations that 
have actively taken steps to ensure continuity of service to their 
listeners. The Commission is also limiting the class of stations based 
on concerns of potential interference to other licensed users in areas 
where FM6 services are not currently provided or to their own digital 
channel 6 television operations. The 13 existing FM6 LPTV stations have 
a proven record of not causing interference to either other licensed FM 
station operations or to their own digital channel 6 operations. While 
the same cannot currently be said for WVOA-LD, as discussed above WVOA 
presents a unique circumstance in which the station was prepared to 
proceed with FM6 operations, but was prevented from doing so due to 
reasons truly outside of its control. It has subsequently completed 
construction of its facility and the Commission is adopting 
requirements herein to determine if the Station can establish a track 
record of no interference to other licensed operations. The Commission 
has no such record of interference-free FM6 operations by new stations 
or legacy FM6 stations no longer operating. The Commission concludes 
that the risk of upsetting the current, interference-free environment 
outweighs the benefit of permitting new FM6 LPTV stations and is 
contrary to the public interest rationale by which the Commission has 
determined that continued operation of current analog FM6 operations 
following the stations' digital television transition is justified.
    The Commission is not persuaded by the argument that not all 
potential FM6 operators had the opportunity to convert to digital 
operations and obtain an FM6 STA. As discussed above, the Commission's 
examination of whether to permit the continuation of such services has 
extended nearly a decade. As such, the Commission believes that all 
channel 6 LPTV stations have had adequate notice of a potential change 
in Commission rules. In fact, a significant number of stations did take 
note and have been providing FM6 service following their conversion to 
digital, thus undermining arguments by some commenters that FM6 LPTV 
stations were not able to continue operations in the face of regulatory 
uncertainty.

Establishing Rules Governing FM6 Operations

Codifying Certain FM6 STA Conditions
    Existing FM6 LPTV stations will be permitted to continue their FM6 
operations subject to a new rule the Commission adopts that codifies 
certain conditions that are currently contained in the FM6 STAs. FM6 
LPTV stations will be required to keep current their FM6 STAs until the 
rules the Commission adopts become final. The Commission disagrees with 
commenters that suggest that no rules are necessary. The Commission 
finds that rules are needed to ensure that FM6 LPTV stations continue 
to operate in a manner that is consistent with the public interest 
rationale for allowing FM6 operations to continue, to prevent 
interference with other licensees, and to prevent the derogation of 
their television signal as required by the Act and the rules.
    The Commission codifies the following requirements based the 
current conditions set forth in the FM STAs: (1) FM6 LPTV stations must 
operate in ATSC 3.0 digital format; (2) FM6 LPTV stations must provide 
their FM6 operations on 87.75 MHz; (3) FM6 operations must be conducted 
on a non-interference basis to any other licensed primary or secondary 
user; (4) FM6 LPTV stations must provide at least one stream of 
synchronized video and audio programming on the ATSC 3.0 portion of the 
spectrum at any time the station is operating; (5) FM6 operations may 
not exceed the coverage area of the FM6 LPTV station's ATSC 3.0 
synchronized video/audio programming stream; and (6) FM6 LPTV stations 
may make modifications to their technical facilities, as otherwise 
permitted under Part 74 of the Rules, so long as the contour of the 
station's modified facilities remains within its current protected 
contour. The Commission declines to require that FM6 LPTV station 
licenses be prohibited from being assigned or transferred or that they 
be subject to periodic reporting requirements, though the Commission 
does require that FM6 LPTV stations notify us of their intent to 
continue to or cease to provide FM6 operations and provide an ongoing 
certification as part of their license renewal application.
    Requirement to Operate in ATSC 3.0 Format. The Commission requires 
FM6 LPTV stations operate using the ATSC 3.0 digital standard. 
Commenters unanimously support this requirement as a condition of being 
able to provide FM6 operations. The Commission recognizes that this is 
a departure from its policy of a voluntary transition for television 
stations to the ATSC 3.0 digital format; however, the Commission finds 
in this unique circumstance it is a necessary requirement in order to 
address concerns that FM6 operations will derogate the FM6 LPTV 
station's television service. LPTV stations may choose to operate in 
ATSC 3.0 but are not required to. Some commenters argue that previous 
studies show the potential for interference from FM6 operations to the 
LPTV station's own digital operation. However, these studies were 
conducted while FM6 LPTV stations were operating in ATSC 1.0. As 
evidenced by the ``Perry Priestly'' study and more recently through 
real-world operations under the FM6 STAs, because the ATSC 3.0 digital 
format is more configurable the existing FM6 LPTV stations have been 
able to make their television signal narrower and/or have the signals 
settings modified to have increased error correction intended to 
prevent co-channel interference between the stations' digital 
television and analog radio signals. Accordingly, in the case of the 13 
existing FM6 LPTV stations, operating in ATSC 3.0 appears to have 
addressed concerns that FM6 operations will interfere with or derogate 
their own digital television operation. Therefore, in order to ensure 
that FM6 LPTV stations comply with the derogation standard set forth in 
the

[[Page 59462]]

Act and the rules, the Commission will require that they transmit their 
television signal using the ATSC 3.0 standard.
    Operation on 87.75 MHz. The Commission requires FM6 transmissions 
to be conducted at 87.75 MHz. A majority of commenters supported this 
requirement. This is the frequency currently being used by all current 
FM6 LPTV stations and as a result it has been tested and shown by the 
13 existing FM6 LPTV stations through their FM6 STAs to provide a 
quality FM signal without causing interference to other FM stations. As 
a condition to their FM6 engineering STAs, FM6 LPTV stations were 
required to operate on 87.75 MHz and to report any interference that 
occurred from their operations. No such interference has been reported 
to date. Absent additional technical data supporting a shift to 87.7 
MHz, none of which has been provided in the record, the Commission 
finds taking the time now to develop a record would only serve to 
needlessly prolong an already complex proceeding. In addition, it is 
not clear what cognizable benefit to receivability there would be based 
on the documented experiences of FM6 LPTV stations that have been 
providing FM service over 87.75 MHz.
    Operation of FM6 on a Non-Interference Basis. The Commission 
requires that FM6 operations be conducted on a non-interference basis 
``to any other licensed user, including but not limited to broadcast 
television or radio users.'' The Commission agrees with commenters that 
FM6 LPTV stations must operate without causing any impermissible 
interference to other licensed users, both users with primary and 
secondary interference protection rights. The Commission disagrees with 
NAB that codification of this condition is unnecessary if FM6 
operations are restricted to just a limited number of stations. By 
codifying this condition, the Commission seeks to continue to prevent 
interference and make clear that any interference to other licensed 
users will not be permitted as these services are being offered purely 
on an ancillary or supplementary basis.
    Synchronized Video and Audio. The Commission further adopts the 
requirement that FM6 LPTV stations must provide at least one stream of 
synchronized video and audio programming on the ATSC 3.0 portion of the 
spectrum at any time the station is operating. The Commission concludes 
that adoption of this operational requirement will ensure that FM6 LPTV 
stations remain dedicated to providing the type of digital television 
service that viewers have come to expect from TV stations in addition 
to their FM6 operations. This requirement will also ensure that the 
spectrum, which has been allocated for the provision of television 
service, is being used in an efficient manner and for its primary 
purpose. A majority of commenters support this requirement. The 
Commission disagrees with the single commenter that called this 
requirement ``constitutionally dubious.'' Its decision to require one 
stream of synchronized video and audio programming is ``content 
neutral'' in that it does not reference or implement any requirements 
regarding the content of the speech. The D.C. Circuit has applied a 
``heightened rational basis'' standard of review to content-neutral 
broadcast regulation. Applied here, requiring one stream of 
synchronized video and audio programming is reasonably tailored to 
satisfying the substantial governmental interest in ensuring that 
frequencies allocated for television service continue to be used for 
the types of television services viewers have come to expect from TV 
stations.
    The synchronized video and audio programming condition was 
originally imposed on the FM6 STAs to ensure that digital LPTV stations 
providing FM6 operations continued to provide television service that 
meets viewers' expectations. Prior to the LPTV digital television 
transition in July 2021, when FM6 operations were being conducted as 
part of an LPTV station's analog channel 6 operation, most FM6 LPTV 
stations were sacrificing the extent of their television service by 
airing limited video-only programming. Because the audio signal for 
their analog TV station was dedicated to providing the FM6 service, the 
video service contained minimal video-only content, such as community 
bulletin boards. FM6 LPTV stations appeared to be focusing their 
resources on their radio FM6 operation over their television operation. 
However, digital television provides these stations a new opportunity 
to offer more substantial, independent video content synchronized with 
audio while still preserving their FM6 operations. Although other 
digital television stations are required to provide only one over-the-
air video program signal at no direct charge to viewers, and may offer 
video only or separate video and audio on their television operations, 
given FM6 LPTV stations' past practice favoring their FM6 operations at 
the expense of their television operations, the Commission continues to 
believe it is prudent to make clear that an FM6 LPTV station must offer 
at least one stream of synchronized video and audio programming. This 
will ensure that FM6 LPTV stations provide the type of digital 
television service that viewers have come to expect from TV stations 
while also preserving their FM6 operations.
    The Commission also declines to adopt the condition imposed in the 
current FM6 STAs that the synchronized audio and video programming be 
provided on a full time (24 x 7) basis. Because the rules provide that 
LPTV stations are ``not required to adhere to any regular schedule of 
operation,'' the Commission finds it more appropriate to adopt the 
revised version of this condition proposed in the FNPRM that requires 
that FM6 LPTV stations provide at least one stream of synchronized 
video and audio programming on the ATSC 3.0 portion of the spectrum 
``at any time the station is operating.'' There was no opposition to 
this proposed revision. In order to ensure that a station's FM6 
operations are not prioritized over its television service and that 
television remains its primary purpose, the Commission will consider a 
station to be ``operating'' any time it is engaged in FM6 operations 
over its channel.
    LPTV and FM6 Operational Contours. The Commission also adopts the 
requirement that the service contour of a station's FM6 operation may 
not exceed the protected contour of the LPTV station. The Commission 
defines ``service contour'' as the service contour provided for in 
Sec.  73.313 of the rules. The Commission defines ``protected contour'' 
as the protected contour provided for in Sec.  74.792 of the rules. In 
the FNPRM, it proposed that ``the FM6 coverage area must be contained 
within and may not exceed the coverage area of the LPTV station's 
synchronized video/audio programming stream . . . .'' To more 
accurately describe the coverage areas of the FM6 and TV operations and 
to reflect the language used by the rules, the Commission will use the 
term ``service contour'' to describe the FM6 station's coverage area 
and ``protected contour'' to describe the TV station's coverage area. A 
similar condition was included in the FM6 STAs to prevent FM6 LPTV 
stations from configuring their LPTV station's technical facilities in 
a manner that would favor their FM6 operation over their digital 
television operation, something that, as just discussed, occurred while 
FM6 LPTV stations were solely operating in analog. The Commission finds 
that adopting a similar provision here will help to ensure that FM6 
LPTV stations continue to focus their attention on the operation of 
their digital LPTV station--the primary purpose of their station 
license.

[[Page 59463]]

Further, it concludes that adoption of this requirement will provide a 
predictable coverage area for the FM6 signal. The Commission notes that 
currently FM6 LPTV stations operate with co-located television and FM6 
facilities. FM6 LPTV stations operate separate transmitters--one 
digital television and one analog FM radio--that are combined into one 
transmission line and broadcast with a combined antenna. The rules the 
Commission adopts today permit only this type of configuration.
    Commenters are united in their support for this requirement, 
however, there is disagreement on how to determine if the service 
contour of a station's FM6 operation is exceeding the protected contour 
of its television operation. After considering the record and further 
technical analysis, the Commission concludes that the best approach is 
to require the service contour of FM6 operations to be contained 
within, and may not exceed, the LPTV station's protected contour. The 
Commission finds the alternative approaches suggested by commenters are 
impractical and overly burdensome. It would be difficult, if not 
impossible, for an FM6 station to test all locations where both the 
synchronized video/audio and the analog FM signal can be heard. 
Further, the rules recognize different standards for measuring the 
strength of a digital LPTV signal and an FM audio signal. Rather than 
try to reconcile those differences in a single, ``one-size-fits-all 
rule,'' the Commission will allow FM6 LPTV stations to demonstrate the 
service contour of their FM6 operations and the protected contour of 
their TV operations using established methodologies for each service in 
the rules. FM6 LPTV stations have been using this approach in their 90-
day and 180-day status reports filed as a condition to their FM6 STAs. 
FM6 LPTV stations have been successfully demonstrating in these reports 
that the service contour of their FM6 operations (as determined using 
the standard Part 73 methodology) does not exceed that of the protected 
contour of their LPTV operations (as determined using the standard Part 
74 methodology). The Commission has no reason to question either the 
methodologies or results of these showings, especially as it has not 
received any evidence to the contrary.
    Technical Modifications. The Commission will permit FM6 LPTV 
stations to make modifications to their technical facilities, as 
otherwise permitted under Part 74 of the Rules, so long as the 
protected contour of the station's modified television facilities 
remains within its current protected contour and the service contour of 
the station's FM6 operations does not exceed the protected contour of 
the station's television operation. For example, LPTV stations on 
channel 6 are not authorized to operate with an ERP greater than 3 kW. 
Initially, as a condition in FM6 engineering STAs, the Bureau 
restricted modifications in order to ``lock'' the FM6 LPTV station 
facilities operations in place while it were evaluating the potential 
for interference from FM6 operations to other users. The condition 
stated: ``[d]uring the term of this STA, the technical facilities of 
(FM6 LPTV station) may not be modified.'' In the FNPRM the Commission 
sought comment on whether to maintain this condition and whether to 
provide any exceptions. Commenters felt that this restriction was too 
stringent and expressed their concerns that such a condition could 
limit FM6 LPTV stations from making modifications to better serve their 
audiences.
    Although the record reflects that there have been no reports of 
interference from the FM6 operations of the 13 existing FM6 LPTV 
stations, this has been based on their current operations which have 
been frozen for almost two years. Therefore, in order to prevent 
possible interference that could result if an FM6 LPTV station were to 
modify its facilities, the Commission finds it is appropriate to limit 
modifications that could expand an FM6 LPTV station's FM6 operations 
beyond the protected contour of its television operations as of the 
release date of this R&O. Allowing such changes could potentially upset 
the current interference free environment that serves as one basis for 
permitting continued FM6 operations. FM6 LPTV stations may seek to 
alter their protected contour if they can demonstrate that the change 
is an ``engineering necessity'' or can meet the Commission's general 
waiver standard.
    Assignment and Transfer of FM6 LPTV Stations. The Commission 
concludes that FM6 LPTV stations should be permitted to be assigned or 
transferred. The FM6 STAs included a condition that limited FM6 LPTV 
stations from being assigned or transferred while FM6 operations were 
being conducted. While licensees of FM6 LPTV stations were always free 
to transfer their stations, such action would have required the 
termination of their FM6 operation. In the FNPRM, the Commission 
questioned whether inclusion of such a limit in its final FM6 rules 
would continue to serve the public interest. The Commission now 
concludes that it would not.
    The Bureau imposed a restriction on transfers and assignments in an 
effort to maintain the status quo during the pendency of this 
proceeding and to prevent speculative transactions. This action stemmed 
from a concern that, during the pendency of this proceeding, parties 
could seek to obtain an FM6 station without any intention of continuing 
FM6 operations and for the sole purpose of immediately ``flipping'' the 
station to another party for a quick profit if continued FM6 operations 
were ultimately permitted. A small number of commenters believe it 
should be retained ``in perpetuity'' in order to prevent future 
speculation of FM6 LPTV stations. However, now that this proceeding is 
complete and the Commission has confined FM6 LPTV stations to only a 
limited number of stations that have demonstrated an interest in 
maintaining their FM6 operations into the future, the Commission 
concludes that there is no longer a risk of parties speculating in FM6 
LPTV stations. As discussed above, the steps taken by the remaining FM6 
LPTV stations to complete their digital television transition and 
quickly resume FM6 operations shows their clear desire to continue to 
provide FM6 service to their listeners. Furthermore, the Commission 
finds that prohibiting the assignment or transfer of these stations 
would undermine a key rationale by which it has based its decision to 
permit the continued operation of these stations--the preservation of 
existing service that listeners rely upon. To the extent a current 
licensee no longer wishes to operate its station it should be 
permitted, like any other licensee, to sell its station to someone that 
wants to continue to offer its television operations, along with its 
FM6 operations if they so choose. Accordingly, the Commission finds the 
limitation on transfers is no longer necessary and it concludes that 
the public interest would not be served maintaining the restriction. To 
the extent that an FM6 LPTV station is assigned or transferred and the 
new licensee intends to continue FM6 operations it must include a 
statement to that effect in its assignment or transfer application. The 
new licensee will be required to meet all the requirements in the rules 
for FM6 operations and should they choose to discontinue FM6 
operations, such discontinuation is permanent.
    The Commission finds that an FM6 LPTV station's FM6 operation is 
not severable from its digital television license and may not be 
assigned or transferred independently from the FM6

[[Page 59464]]

LPTV station. The Commission bases this conclusion upon the fact that 
it is not separately authorizing FM6 operations, but rather are 
allowing them as an ancillary or supplementary service to the FM6 LPTV 
station's main digital television license. An FM6 LPTV station is 
permitted to provide FM6 operations only as a result of it offering a 
free over-the-air television service.
    Reporting Requirements. The Commission adopts its tentative 
conclusion and will not require FM6 LPTV stations to undertake periodic 
reporting requirements similar to those contained in their FM6 STAs. 
The periodic reporting requirement was included as a condition to the 
FM6 STAs to monitor the ongoing STA operations of FM6 LPTV stations for 
reports of interference and to see if FM6 LPTV stations were complying 
with the condition that their digital television and analog FM radio 
operations were serving similar populations. The Commission agrees with 
the majority of commenters that the periodic reporting requirement is 
no longer necessary. In this R&O, the Commission adopts permanent rules 
to address the circumstances that the reporting requirement was 
established to monitor. Failure to comply with these rules will result 
in sanction and potentially loss of the ability to continue providing 
FM6 service.
    Other parties argue that the submission of written reports is still 
needed in order to confirm system operation and to gather data to 
confirm that the FM6 service can be implemented and operated in the 
public interest. The Commission disagree. The record, which includes 
real-world information collected over nearly the last two years from 
FM6 LPTV stations' FM6 STA operations demonstrates that interference 
from the 13 existing FM6 LPTV stations is not likely to occur to either 
adjacent-band FM radio operations or to the host LPTV station's channel 
6 operations. Further, there have been no legitimate reports of 
interference being caused by the 13 FM6 LPTV stations that have been 
operating under STAs. In addition, FM6 LPTV stations are permitted to 
make modifications to their facilities only under very limited 
circumstances. As a result of these facts, the Commission sees no basis 
for requiring FM6 LPTV stations to continue to submit periodic reports.
    Required FM6 Operational Notices. The Commission will require that, 
after review and approval of the information collection requirements 
adopted herein by the Office of Management and Budget (OMB), the Bureau 
will issue a Public Notice announcing the deadline for all FM6 LPTV 
stations to notify the Media Bureau whether they will continue FM6 
operations and confirm their precise FM6 operational parameters. 
Because the Commission is not licensing FM6 operations separately, this 
verification enables a confirmation of which stations' FM6 operations 
will be ongoing and provide continued certainty with regards to those 
operations. FM6 LPTV stations will also be required to include in this 
notification the current operating parameters of their FM6 operations. 
Such information must include: maximum effective radiated power (ERP); 
radiation center above ground level (RCAGL); radiation center above 
mean sea level (RCAMSL); antenna height above average terrain (HAAT); 
antenna type (directional or non-directional); directional antenna 
pattern (if applicable); antenna make and model; transmitter power 
output (TPO); and a description of the transmission system, including 
any transmission lines, connectors, combiners, etc., and their 
associated losses. Should any technical parameters of the station's FM6 
operations change, the licensee must provide written notification to 
the Media Bureau at least ten (10) days prior to such modifications 
occurring. An FM6 LPTV station that voluntarily chooses to permanently 
discontinue FM6 operations is required to notify the Media Bureau 
within 30 days of permanently ceasing FM6 operations. If an FM6 station 
permanently ceases FM6 operations either voluntarily or is deemed to 
have discontinued operations pursuant to The Commission's Part 73 
rules, it will not be permitted to resume FM6 operations in the future. 
All actions with respect to the cessation of FM6 operation will be 
final as with any action to permanently discontinue a broadcast 
operation. As part of its finding below that FM6 LPTV station's 
requirement to comply with certain analogous FM rules, the Commission 
notes that pursuant to 47 CFR 73.1740(a)(1) FM6 LPTV stations' FM6 
operations must adhere to the minimum operating schedule for FM 
stations. Failure to do so absent valid special temporary authority to 
operate at variance, will result in sanction or other actions, which 
could include consideration at renewal of whether the station has 
served the public interest. One of the primary rationales by which the 
Commission is permitting continued FM6 operations is in order to 
provide continuity service. The Commission finds that failure by an FM6 
LPTV station to adhere to the minimum operating schedule for FM 
stations, without valid special temporary authority, is presumptively 
adverse to the public interest. The Commission also notes that should 
an FM6 LPTV station's digital television operation temporarily cease 
operations, the station will be required to also discontinue its FM6 
operation until such time as the digital television operation resumes 
as engaging in FM6 operations is dependent upon it providing the 
digital television service. Cessation of FM6 operations only shall not 
affect the status of an LPTV station's license or its ability to 
continue to provide digital television service. Finally, as an 
additional measure to ensure that FM6 LPTV stations are continuing to 
serve the public, the Commission will also require that FM6 LPTV 
stations certify in their license renewal application that they have 
continued to provide FM6 operations in accordance with the FM6 rules 
during their prior license term. The Commission delegates authority to 
the Media Bureau to determine the most appropriate means for these 
stations to make such certification, be it by an attachment to the 
renewal application or some other reasonable means. All notifications 
required by this paragraph shall be made by written letter and mailed 
to the FCC Office of the Secretary, Attention: Chief, Video Division, 
Media Bureau. An electronic copy of any notification must also be sent 
via electronic mail to the Chief of the Video Division, Media Bureau. A 
copy of all notifications shall be uploaded by the Media Bureau to the 
station's LMS file.
Application of Part 73 FM Rules
    Although FM6 operations are not separately authorized or licensed, 
the Commission concludes that the public interest will be best served 
by requiring FM6 operations to be subject to appropriate Part 73 rules 
that currently apply to full service FM radio stations, including 
emergency alert and online public file requirements. The Commission 
also finds that application of certain of the rules is consistent with 
and required by section 336(b)(3) of the Act. The Commission also 
concludes that it adopts such rules and policies for FM6 operations 
under its general Title III authority. Furthermore, FM6 LPTV stations, 
as they are licensed as LPTV stations, must continue to comply with all 
applicable Part 73 and 74 rules that pertain to their digital 
television operations.
    Section 336(b)(3) of the Act provides that, in prescribing the 
regulations required by ancillary or supplementary services, the 
Commission shall ``apply

[[Page 59465]]

to any other ancillary or supplementary service such of the 
Commission's regulations as are applicable to the offering of analogous 
services by any other person . . . .'' Based on this statutory 
requirement, the Commission concludes that certain rules that pertain 
to full service FM radio stations should be applied to FM6 LPTV 
stations since FM6 LPTV stations offer services that are ``analogous'' 
to full service FM radio stations. A majority of commenters support 
this approach.
    As a practical matter, the Commission agrees that listeners are not 
necessarily able to distinguish between an FM6 LPTV station's FM 
operations and a traditional FM station. Further, viewers watching an 
FM6 LPTV station's digital television programming may not be 
simultaneously listening to the station's analog FM6 audio programming, 
and vice versa. As a result, the Commission finds it is important that 
FM6 LPTV stations continue to comply with the rules that are otherwise 
applicable to FM radio operations, including but not limited to the 
rules related to advertising/commercials, programming, and the 
Emergency Alert System (EAS). In particular, in order to prevent 
viewers and listeners from missing vital EAS alerts, the Commission 
wants to make clear that FM6 LPTV stations must maintain the capability 
to separately air EAS alerts on both their television and their FM6 
operations.
    Further, although LPTV stations are not required to maintain an 
online public inspection file (OPIF), the Commission finds it is 
appropriate to require FM6 LPTV stations to maintain one for their FM6 
operations. While some commenters argue that there is no purpose to be 
served by requiring that FM6 LPTV stations maintain an OPIF solely for 
their FM6 operations, the Commission agrees with commenters maintaining 
that such a requirement safeguards regulatory compliance with regard to 
FM operations and provides parity with other FM stations. To be clear, 
the OPIF requirement will apply only to the FM6 LPTV station's FM6 
operations. The Media Bureau will create an OPIF for each FM6 LPTV 
station in the Commission's database for all FM6 LPTV stations and to 
notify the Stations by written letter once they are able to file 
documents in their OPIF. Compliance with the OPIF requirement will take 
effect either upon effective date of the rule or 30 days following 
creation of the Stations' OPIF, whichever is later.
    The Commission disagrees with the argument that requiring FM6 LPTV 
stations to comply with both LPTV and certain Part 73 FM rules is 
unnecessary or inappropriate as a result of their secondary status or 
because all relevant regulations already apply by nature of their 
status as an LPTV station. This argument does not reflect how FM6 
operations are actually conducted in the digital context and would be 
inconsistent with section 336(b)(3) of the Act. First, the Act 
specifically mandates that the Commission apply regulations to 
ancillary or supplementary services that are analogous to other 
regulated services. The secondary nature of LPTV stations is irrelevant 
to whether the analogous services provision of the Act should apply. 
There is no exception in either the Act or the rules from this 
requirement for stations with secondary status that are providing 
ancillary or supplementary services. Second, while LPTV and FM radio 
may have some overlapping rules, they are distinct and independent 
services with different rules. For example, LPTV stations do not have 
an OPIF requirement and have different station identification 
requirements. The record is clear that the aim of these FM6 operations 
is to provide an audio service that is analogous to other FM radio 
service and received using FM radio tuners. Therefore, the Commission 
finds that such FM6 operations provided by FM6 LPTV stations is 
analogous to those of licensed FM radio operations and should be 
regulated as such.
    The Commission does, however, find that specific Part 73 technical 
rules for full service FM radio stations should not apply to FM6 
operations because FM6 LPTV stations are operating on frequencies and 
subject to certain conditions that make the application of certain FM 
technical rules unnecessary and impractical. Although FM6 LPTV stations 
operate separate television and radio transmission systems, pursuant to 
the new rules the Commission has adopted today, the FM6 operations will 
be restricted in certain respects. For example, FM6 LPTV stations are 
permitted to make changes to their FM6 station facilities only under 
very limited circumstances (without a showing of ``engineering 
necessity'' or a waiver), are limited to operating on 87.75 MHz, may 
offer FM6 service only within the LPTV station's protected contour, and 
may operate only on a non-interference basis. The Commission has also 
limited the number of FM6 LPTV stations to a finite group that have 
already proven they do not cause the interference that many of the Part 
73 technical rules for FM stations are intended to prevent. 
Accordingly, the Commission finds that applying the specific technical 
rules in Sec. Sec.  73.201-73.277, 73.310-73.312, and 73.314-73.318 in 
the context of FM6 operations are not only unnecessary, but could be 
contradictory to the specific rules it has adopted governing FM6 
operations.
Five Percent Fee For Ancillary or Supplementary Services
    Consistent with its determination to allow FM6 operations to 
continue on an ancillary or supplementary basis, the Commission finds 
that FM6 LPTV stations that offer feeable ancillary or supplementary 
services are subject to the five percent fee on the gross revenue of 
such services and must submit an Annual DTV Ancillary/Supplementary 
Services Report. Commenters unanimously agree that FM6 LPTV stations 
offering feeable ancillary or supplementary services should be subject 
to this fee and reporting requirement. The Commission also notes that 
several FM6 LPTV stations began making fee payments on their FM6 
operations.
    As the Commission observed in the FNPRM, its ancillary or 
supplementary rules provide that digital television stations (including 
digital LPTV stations) must annually remit a fee of five percent of the 
gross revenues derived from all ``feeable'' ancillary and supplementary 
services. The Commission has defined ``feeable'' ancillary or 
supplementary services as services for which payment of a subscription 
fee or charge is required in order to receive the service,'' or if no 
payment is required from consumers, the licensee ``directly or 
indirectly receives compensation from a third party in return for the 
transmission of material provided by that third party (other than 
commercial advertisements used to support broadcasting for which a 
subscription fee is not required).'' Moreover, the rules provide that 
``[t]he fee required by this provision shall be imposed on any and all 
revenues from such services, including revenues derived from 
subscription fees and from any commercial advertisements transmitted on 
the service.'' Given these rules, any FM6 LPTV station that provides 
``feeable services'' is required to comply with the Rules and both 
remit the required fee and submit an Annual DTV Ancillary/Supplementary 
Services Report to indicate that they provided feeable services, the 
amount of gross revenues of such services, and whether they have 
remitted the requisite five percent fee.

[[Page 59466]]

Licensing of Additional NCE FM Stations

    The Commission declines to adopt the proposal discussed in the 
FNPRM to repurpose TV6 spectrum (82-88 MHz) for FM services nationwide 
in locations where the channels are not being used to provide 
television programming. In July 2020, NPR argued FM6 is not an 
efficient use of spectrum, the TV6 resource was not being fully 
utilized by television broadcasters and much of the spectrum was laying 
fallow, especially in the rural parts of the country. The Commission 
finds that the record does not support such a plan to remove a portion 
of the remaining spectrum allotted for television use and converting it 
to radio use. The Commission finds that the plan is neither feasible, 
because of the possibility of interference; nor efficient, because 
receivers are not capable of receiving FM stations below 87.7 FM; nor 
appropriate, because TV6 spectrum is still needed for broadcast 
television use.
    First, the Commission agrees with commenters that the interference 
implications of NPR's plan to reallocate unused TV6 spectrum have not 
been adequately considered. Further, the Commission finds that NPR's 
stated efficiency goal of adding up to 30 new FM channels cannot be 
achieved because it would not be possible to use all 30 channels in one 
place. Although in theory 30 FM channels are available in the band that 
comprises TV6, in practice it would not be possible to use all 30 
channels in one place given interference considerations. Practically 
speaking, the number of channels for use by new FM radio stations in 
any one area would be significantly fewer.
    The Commission finds that even in places where there are available 
allocations for FM stations under the proposal, listeners would not be 
able to receive most transmissions because FM radio receivers receive 
only the top-most portion of the 82-88 MHz band (87.7 or 87.9 MHz) of 
the 6 MHz channel that comprises TV6. The Commission agrees with 
commenter concerns that FM radio receivers cannot ``tune down'' to the 
rest of the spectrum--82.1-87.5 MHz. Therefore, the Commission agrees 
that it would be impractical to reallocate unused TV6 spectrum for use 
by new FM radio stations when it is unlikely that listeners would be 
able to receive most of the broadcasts from these new FM radio 
stations.
    Finally, although some commenters support NPR's proposal by 
suggesting that it is a better use of spectrum because TV6 is not ideal 
for digital television broadcasting, the Commission disagrees, and note 
that many TV stations operate on TV6. According to NAB, as of July 
2022, 98 television stations were authorized to operate on TV6 in the 
United States. Some of these stations serve large, sparsely populated 
areas where the relatively low power consumption of TV6 transmitters 
makes it economical to provide television service to rural Americans. 
Others serve densely populated urban areas where no alternative 
channels exist in more desirable spectrum. Furthermore, ATBA contends a 
number of TV6 stations could also serve as ``lighthouse'' stations for 
NextGen TV, providing a critical transition path for television 
broadcasters as they migrate to ATSC 3.0. The record persuades us that 
82-88 MHz is still needed for television, especially given that the UHF 
spectrum available for broadcast television has been dramatically 
reduced in recent years. Therefore, the Commission declines to 
repurpose TV6 spectrum in areas where there are presently no TV6 
stations to permit the construction of new FM stations that, in many 
cases, listeners will be unable to receive because their receivers 
cannot ``tune down'' to the lower portions of the 82-88 MHz frequency 
(i.e., 82.1-87.5 MHz).

Elimination of Certain TV6 Interference Protections

    Although the Commission received comments on this matter, it did 
not receive sufficient technical studies and analysis upon which to 
base any final decisions to revise its TV6 interference rules. Any 
changes to these rules, which were originally adopted when television 
was operating in analog, would need to reflect the fact that all 
television is now operating in digital. Despite asking in the FNPRM for 
commenters to analyze the existing digital television landscape and 
suggest whether and how the existing TV6 interference provisions should 
be retained, revised or updated, the Commission received little comment 
to that effect. Therefore, given the incomplete nature of the record, 
the Commission declines to revise the TV6 interference rules at this 
time. The Commission will seek additional comment about this matter at 
a future date. In addition, NPR proposed that the Commission adopt a 
narrow rule change to enable existing NCE FM radio stations to modify 
their authorizations to relocate to channel 200 (87.9 MHz). As this 
change could impact the revisions to the TV6 interference rules, the 
Commission finds that it would be more appropriate to consider NPR's 
proposal in conjunction with a future TV6 interference proceeding. The 
Commission encourages interested parties to continue to work together 
to find a solution and develop comprehensive technical studies to 
support their position. REC Networks (REC) included a petition for 
rulemaking requesting that the Commission consider the reallocation of 
television channels 5 and 6 for use with a new ``WIDE FM'' service. The 
Commission concludes that REC's proposal is outside of the scope of 
this proceeding and will not be considered in this R&O.

Final Regulatory Flexibility Act Analysis

    As required by the Regulatory Flexibility Act of 1980 (RFA), see 5 
U.S.C. 603, as amended, Public Law 104-121, Title II, 110 Stat. 847 
(1996), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the (FNPRM) released June 7, 2022 at 87 FR 36440. The 
Commission sought written public comment on the proposals in the FNPRM, 
including comment on the IRFA. No comments were filed addressing the 
IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the 
RFA, 5 U.S.C. 604.

Need For, and Objectives of, the Report and Order

    This Report and Order adopts rule changes to allow channel 6 
digital low power television stations that have been providing analog 
FM radio services, and only those stations, to continue their FM6 
operations, subject to certain conditions which will also be codified 
in the rules. Continuing to allow existing FM6 operations serves the 
public interest and minimizes service disruptions to programming on 
which listeners have relied.
    In the Report and Order, the Commission adopts rules for FM6 
operations, including that FM6 LPTV stations must operate in ATSC 3.0 
digital format, must transmit FM6 at 87.75 MHz, and FM6 operations must 
not interfere with any other licensed user. The coverage area of an FM6 
LPTV station's analog FM radio operation may not exceed the coverage 
area of the LPTV station's ATSC 3.0 synchronized video/audio 
programming stream. FM6 LPTV stations must also provide at least one 
stream of synchronized video and audio programming on the ATSC 3.0 
portion of the spectrum at any time the station is operating. FM6 LPTV 
stations may make modifications to their technical facilities, as 
otherwise permitted under Part 74 of the rules, so long as the 
protected contour of the station's modified facilities remains within 
its current protected contour.

[[Page 59467]]

    The Report and Order also adopts reporting requirements, requiring 
that if an FM6 LPTV station decides to permanently discontinue FM6 
operations, it must notify the Media Bureau within 30 days of 
permanently ceasing FM6 operations. FM6 LPTV stations must also certify 
in an attachment to their octennial license renewal application that 
they have continued to provide FM6 operations in accordance with the 
FM6 rules during their prior license term. Section 74.763(c) of the 
rules apply to FM6 operations, so that an FM6 LPTV station that does 
not provide an FM6 operation for a period of 30 days or more, absent 
circumstances beyond its control, will be deemed to have permanently 
discontinued FM6 operations. Additionally, FM6 LPTV stations must 
include all of the items required by the public inspection file (PIF) 
rule for full service FM radio stations in their LPTV station PIF.
    The Report and Order also adopts requirements for application of 
Part 73 and 74 rules to these stations and services. FM6 LPTV stations 
will continue to be subject to all applicable Part 73 and 74 rules that 
pertain to their television station operations, and their FM6 
operations will be separately subject to those Part 73 rules to which 
full service FM radio stations are currently subject, as contained in 
its new FM6 rule--74.790(o).
    Finally, the Report and Order adopts the fee requirements for FM6 
LPTV stations. Any FM6 LPTV station that receives compensation for the 
transmission of material by a third party, other than commercial 
advertisements used to support non-subscription based broadcasting, on 
its FM6 operation shall be subject to the existing rule requiring a 
five percent fee on gross revenues from such compensation. FM6 LPTV 
stations that do not receive such compensation shall not be subject to 
the five percent fee. Any FM6 LPTV station providing feeable ancillary 
or supplementary services must submit an Annual DTV Ancillary/
Supplementary Services Report and report that they provided such fee-
based services, the amount of gross revenues of such services, and 
whether they have remitted the requisite five percent fee.

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

    There were no comments filed that specifically addressed the rules 
and policies proposed in the IRFA.

Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    Pursuant to the Small Business Jobs Act of 2010, which amended the 
RFA, the Commission is required to respond to any comments filed by the 
Chief Counsel for Advocacy of the Small Business Administration (SBA), 
and to provide a detailed statement of any change made to the proposed 
rules as a result of those comments.
    The Chief Counsel did not file any comments in response to the 
proposed rules in this proceeding.

Description and Estimate of the Number of Small Entities to Which the 
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 adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small government 
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) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the Small Business 
Administration.
    Television Broadcasting. This industry is comprised of 
``establishments primarily engaged in broadcasting images together with 
sound.'' These establishments operate television broadcast studios and 
facilities for the programming and transmission of programs to the 
public. These establishments also produce or transmit visual 
programming to affiliated broadcast television stations, which in turn 
broadcast the programs to the public on a predetermined schedule. 
Programming may originate in their own studio, from an affiliated 
network, or from external sources. The SBA small business size standard 
for this industry classifies businesses having $41.5 million or less in 
annual receipts as small. 2017 U.S. Census Bureau data indicate that 
744 firms in this industry operated for the entire year. Of that 
number, 657 firms had revenue of less than $25,000,000. Based on this 
data the Commission estimates that the majority of television 
broadcasters are small entities under the SBA small business size 
standard.
    As of March 31, 2023, there were 1,375 licensed commercial 
television stations. Of this total, 1,282 stations (or 93.2%) had 
revenues of $41.5 million or less in 2021, according to Commission 
staff review of the BIA Kelsey Inc. Media Access Pro Television 
Database (BIA) on April 7, 2023, and therefore these licensees qualify 
as small entities under the SBA definition. In addition, the Commission 
estimates as of March 31, 2023, there were 383 licensed noncommercial 
educational (NCE) television stations, 381 Class A TV stations, 1,887 
LPTV stations and 3,119 TV translator stations. The Commission, 
however, does not compile and otherwise does not have access to 
financial information for these television broadcast stations that 
would permit it to determine how many of these stations qualify as 
small entities under the SBA small business size standard. 
Nevertheless, given the SBA's large annual receipts threshold for this 
industry and the nature of these television station licensees, the 
Commission presumes that all of these entities qualify as small 
entities under the above SBA small business size standard.

Description of Projected Reporting, Recordkeeping and Other Compliance 
Requirements for Small Entities

    The Report and Order contains new reporting, recordkeeping, and 
other compliance requirements for the licensing and certification for 
small entity FM6 LPTV stations that provide FM6 service.
    While the Commission is not in a position to determine whether 
small entities will have to hire professionals to comply with its 
decisions and cannot quantify the cost of compliance for small 
entities, the approaches, it has taken to implement the requirements 
have minimal or de minimis cost implications for impacted entities 
because many of these requirements are part of an existing reporting 
process.
    The Report and Order adopts four new reporting requirements for FM6 
LPTV stations that wish to continue to or cease to provide FM6 service, 
including the requirement that FM6 LPTV stations notify the Media 
Bureau within 30 days if they decide to permanently discontinue FM6 
operations. FM6 LPTV stations must certify in an attachment to their 
octennial license renewal application that they have continued to 
provide FM6 operations in accordance with the FM6 rules during their 
prior license term. FM6 LPTV stations must also include all of the 
items required by the PIF rule for full service FM radio stations in 
their LPTV station PIF. Additionally, FM6 LPTV stations that

[[Page 59468]]

provided feeable ancillary or supplementary service must submit an 
Annual DTV Ancillary/Supplementary Services Report and report that they 
provided feeable services, the amount of gross revenues of such 
services and whether they have remitted the requisite five percent fee. 
These requirements will result in a modified paperwork obligation for 
small entities and other licensees. The Commission will seek the 
requisite approval, such as those required to comply with the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13, to account for the 
increased burdens resulting from this modified reporting requirement.

Steps Taken To Minimize Significant Impact on Small Entities, and 
Significant Alternatives Considered

    The RFA requires an agency to provide, ``a description of the steps 
the agency has taken to minimize the significant economic impact on 
small entities, including a statement of the factual, policy, and legal 
reasons for selecting the alternative adopted in the final rule and why 
each one of the other significant alternatives to the rule considered 
by the agency which affect the impact on small entities was rejected.''
    The actions taken by the Commission in the Report and Order were 
considered to be the least costly and minimally burdensome for small 
and other entities impacted by the rules. As such, the Commission does 
not expect the adopted requirements to have a significant economic 
impact on small entities. Below the Commission discusses actions it 
takes in the Report and Order to minimize any significant economic 
impact on small entities and some alternatives that were considered.
    Among the alternatives considered to minimize significant impact on 
small entities, the Commission considered whether FM6 programming could 
be delivered via another delivery method such as other broadcast 
methods or internet only, and found that these methods were less 
efficient and potentially more costly to small entities than 
maintaining the existing service. The Commission also considered 
whether to preserve or alter the service contour for FM6 service. In 
deciding that the service contour not exceed the protected contour of 
the LPTV station's ATSC 3.0 synchronized video/audio programming 
stream, the Commission determined that alternative approaches presented 
where impractical and overly burdensome.
    It is anticipated that some of the new reporting requirements will 
likely result in minimal additional costs because the Commission 
adopted requirements which can be executed as part of an existing 
process and within the timeframe for certain other filing requirements. 
This includes certifying in an attachment to an existing octennial 
license renewal application that the station provided FM6 service 
during the prior license term in accordance with the FM6 rules. 
Further, FM6 LPTV stations must adhere to the requirements of licensed 
users providing similar services, including the PIF rule for full 
service FM radio stations in their LPTV station PIF, and submitting an 
Annual DTV Ancillary/Supplementary Services Report if they provide a 
feeable service, report provision of feeable services, their gross 
revenues, and whether they have remitted the requisite five percent 
fee.

Report to Congress

    Commission will send a copy of the Report and Order, including this 
FRFA, in a report to Congress pursuant to the Congressional Review Act. 
5 U.S.C. 801(a)(1)(A). In addition, the Commission will send a copy of 
the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. A copy of the Report and Order, and FRFA (or 
summaries thereof) will also be published in the Federal Register. 5 
U.S.C. 604(b).

List of Subjects in 47 CFR Part 74

    Communications equipment, Education, Mexico, Radio, Reporting and 
recordkeeping requirements, Research, Telecommunications, Television.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

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

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

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

    Authority:  47 U.S.C. 154, 302a, 303, 307, 309, 310, 325, 336 
and 554.


0
2. Amend Sec.  74.790 by adding paragraph (o) to read as follows:


Sec.  74.790  Permissible service of digital TV translator and LPTV 
stations.

* * * * *
    (o) Provision of analog FM radio operations by digital LPTV channel 
6 stations (FM6 LPTV stations). FM6 LPTV stations may provide analog FM 
radio operations (FM6 operations) on an ancillary or supplementary 
basis subject to the following:
    (1) The FM6 LPTV station must have been providing FM6 operations 
pursuant to an active engineering special temporary authority on June 
7, 2022, or as otherwise permitted by the Commission.
    (2) The FM6 LPTV station must be operating in ATSC 3.0 digital 
format, as authorized in Sec.  74.782.
    (3) FM6 operations may only be conducted on 87.75 MHz.
    (4) FM6 operations shall be conducted on a non-interference basis 
to any other licensed user, including but not limited to broadcast 
television or radio users.
    (5) The FM6 LPTV station's FM6 service contour must be contained 
within and may not exceed the protected contour of the FM6 LPTV 
station's synchronized video/audio programming stream. These contours 
shall be determined using established methodologies in Sec.  73.313 of 
this chapter (FM radio) and Sec.  74.792 (LPTV).
    (6) The FM6 LPTV station must provide at least one stream of 
synchronized video and audio programming, at any time the station is 
operating.
    (7) FM6 LPTV stations may make minor modifications to their 
technical facilities, as otherwise permitted under part 73 of this 
chapter or this part, so long as the station's proposed modified 
``protected contour,'' as defined in Sec.  74.792, does not exceed its 
protected contour as it was authorized on July 20, 2023, or where the 
station can demonstrate that such change is being made due to an 
engineering necessity such as the loss of a tower site or change in 
equipment due to malfunction and where the station can also demonstrate 
that the modification will not cause any interference to other licensed 
users.
    (8) FM6 LPTV stations may be assigned or transferred; however, an 
FM6 LPTV station's FM6 operation is not severable from its digital 
license and may not be assigned or transferred separate from the FM6 
LPTV station.
    (9)-(10) [Reserved]
    (11) FM6 LPTV stations shall continue to be subject to all rules in 
part 73 of this chapter and this part applicable to low power 
television stations. In addition, the following rules shall apply to 
FM6 LPTV stations with respect to their FM6 operations:
    (i) Part 11 of this chapter The Emergency Alert System (EAS).
    (ii) Section 73.293, Use of FM multiplex subcarriers.

[[Page 59469]]

    (iii) Section 73.295, FM subsidiary communications services.
    (iv) Section 73.297, FM stereophonic sound broadcasting.
    (v) Section 73.310, FM technical definitions.
    (vi) Section 73.313, Prediction of coverage.
    (vii) Section 73.319, FM multiplex subcarrier technical standards.
    (viii) Section 73.322, FM stereophonic sound transmission 
standards.
    (ix) Section 73.333, Engineering charts.
    (x) Section 73.1201, Station identification.
    (xi) Section 73.1206, Broadcast of telephone conversations.
    (xii) Section 73.1207, Rebroadcasts.
    (xiii) Section 73.1208, Broadcast of taped, filmed, or recorded 
material.
    (xiv) Section 73.1209, References to time.
    (xv) Section 73.1211, Broadcast of lottery information.
    (xvi) Section 73.1212, Sponsorship identification; list retention; 
related requirements.
    (xvii) Section 73.1216, Licensee-conducted contests.
    (xviii) Section 73.1217, Broadcast hoaxes.
    (xix) Section 73.1250, Broadcasting emergency information.
    (xx) Section 73.1300, Unattended station operation.
    (xxi) Section 73.1635, Special temporary authorizations (STA).
    (xxii) Section 73.1740, Minimum operating schedule.
    (xxiii) Section 73.1750, Discontinuance of operation.
    (xxiv) Section 73.1940, Legally qualified candidates for public 
office.
    (xxv) Section 73.1941, Equal opportunities.
    (xxvi) Section 73.1942, Candidate rates.
    (xxvii) Section 73.1943, Political file.
    (xxviii) Section 73.1944, Reasonable access.
    (xxix) Section 73.2080, Equal employment opportunities (EEO).
    (xxx) Section 73.3526, Online public inspection file of commercial 
stations.
    (xxxi) Section 73.4005, Advertising--refusal to sell.
    (xxxii) Section 73.4045, Barter agreements.
    (xxxiii) Section 73.4055, Cigarette advertising.
    (xxxiv) Section 73.4060, Citizens agreements.
    (xxxv) Section 73.4075, Commercials, loud.
    (xxxvi) Section 73.4095, Drug lyrics.
    (xxxvii) Section 73.4097, EBS (now EAS) attention signals on 
automated programing systems.
    (xxxviii) Section 73.4165, Obscene language.
    (xxxix) Section 73.4170, Obscene broadcasts.
    (xl) Section 73.4180, Payment disclosure: Payola, plugola, 
kickbacks.
    (xli) Section 73.4185, Political broadcasting and telecasting, the 
law of.
    (xlii) Section 73.4190, Political candidate authorization notice 
and sponsorship identification.
    (xliii) Section 73.4215, Program matter: Supplier identification.
    (xliv) Section 73.4242, Sponsorship identification rules, 
applicability of.
    (xlv) Section 73.4250, Subliminal perception.
    (xlvi) Section 73.4255, Tax certificates: Issuance of.
    (xlvii) Section 73.4260, Teaser announcements.
    (xlviii) Section 73.4265, Telephone conversation broadcasts 
(network and like sources).

0
3. Delayed indefinitely, further amend Sec.  74.790 by adding 
paragraphs (o)(9) and (10) to read as follows:


Sec.  74.790  Permissible service of digital TV translator and LPTV 
stations.

* * * * *
    (o) * * *
    (9) FM6 LPTV stations must notify the Media Bureau within 30 days 
of permanently ceasing FM6 operations. Such notification hall be made 
by written letter and mailed to the FCC Office of the Secretary, 
Attention: Chief, Video Division, Media Bureau. If an FM6 LPTV station 
permanently ceases FM6 operations, FM6 operations may not resume.
    (10) FM6 LPTV stations must certify in an attachment to their 
license renewal application that they have continued to provide FM6 
service in accordance with the FM6 rules in this section during the 
prior license term.
* * * * *
[FR Doc. 2023-17414 Filed 8-28-23; 8:45 am]
BILLING CODE 6712-01-P