[Federal Register: January 17, 2008 (Volume 73, Number 12)]
[Rules and Regulations]
[Page 3202-3218]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja08-9]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MB Docket No. 99-25; FCC 07-204]
Creation of a Low Power Radio Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, the Commission adopts rules and provides
guidance to efforts to promote the operation and expansion of the low
power FM (LPFM) service. The Commission solicited and reviewed comments
regarding the status of LPFM service, and found that to promote the
service, it was necessary to make rule changes related to ownership and
technical issues.
DATES: The rules will become effective March 17, 2008.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Holly Saurer, Holly.Saurer@fcc.gov of the Media
Bureau, Policy Division, (202) 418-2120.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Third
Report and Order, FCC 07-204, adopted on November 27, 2007, and
released on December 11, 2007. The full text of this document is
available for public inspection and copying during regular business
hours in the FCC Reference Center, Federal Communications Commission,
445 12th Street, SW., CY-A257, Washington, DC 20554. These documents
will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/).
(Documents will be available electronically in ASCII, Word 97, and/or
Adobe Acrobat.) The complete text may be purchased from the
Commission's copy contractor, 445 12th Street, SW., Room CY-B402,
Washington, DC 20554. To request this document in accessible formats
(computer diskettes, large print, audio recording, and Braille), send
an e-mail to fcc504@fcc.gov or call the Commission's Consumer and
[[Page 3203]]
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Summary of the Third Report and Order
I. Introduction
1. In March 2005, the Commission released a Second Order on
Reconsideration (Second Order), 70 FR 39182, July 7, 2005 and Further
Notice of Proposed Rulemaking (FNPRM), 70 FR 39217, July 7, 2005 as
part of its ongoing efforts to promote the operation and expansion of
the low power FM (LPFM) service. In the Second Order, the Commission
made minor changes to the LPFM rules. The accompanying FNPRM sought
comment on a number of issues related to ownership and eligibility
restrictions for LPFM licensees, as well as technical matters related
to the LPFM service. This Third Report and Order resolves the issues
raised in the FNPRM. In so doing, this Order advances the Commission's
goal ``to ensure that we maximize the value of LPFM service without
harming the interests of full-power FM stations or other Commission
licensees.'' In light of changed circumstances since we last considered
the issue of protection rights for LPFM stations from subsequently
authorized full-service stations, we also find it necessary to consider
certain rule changes to avoid the potential loss of LPFM stations.
Accordingly, we issue a Second Further Notice of Proposed Rulemaking
(Second FNPRM) to seek comment on these changes.
II. Background
2. In January 2000, the Commission adopted rules to establish two
classes of LPFM facilities: (a) The LP100 class, consisting of stations
with a maximum power of 100 Watts effective radiated power (ERP) at 30
meters antenna height above average terrain (HAAT), providing an FM
service radius (1 mV/m or 60 dB[mu]) of approximately 3.5 miles (5.6
kilometers); and (b) the LP10 class, consisting of stations with a
maximum of 10 Watts ERP at 30 meters HAAT, providing an FM service
radius of approximately one to two miles (1.6 to 3.2 kilometers). The
Report and Order, 65 FR 7615, February 15, 2000 announcing those
classes imposed separation requirements for LPFM stations to protect
full-power FM stations operating on the co-, first-, and second-
adjacent channels, as well as stations operating on intermediate
frequency (IF) channels. The Report and Order concluded, however, that
imposition of a third-adjacent channel separation requirement would
restrict unnecessarily the number of LPFM stations that could be
authorized, and therefore declined to impose that requirement.
3. The Report and Order also established ownership and eligibility
rules for the LPFM service. The Commission restricted LPFM service to
noncommercial educational (NCE) operations, restricted licensee
eligibility to applicants with no attributable interests in any other
broadcast station or other media subject to our ownership rules, and
prohibited the assignment or transfer of LPFM stations. The Commission
also determined that, during the two years following the first LPFM
filing window, no entity would be permitted to own more than one LPFM
station and that ownership should be restricted to local entities. To
choose among entities filing mutually exclusive applications for LPFM
licenses, the Report and Order set forth a point system that favors
local ownership and locally-originated programming, with ties between
competing applicants resolved by either voluntary time-sharing
agreements between such applicants or, in the event that they cannot so
agree, the imposition of ``involuntary time-sharing,'' with each tied
and grantable applicant awarded an equal, successive and non-renewable
license term of no less than one year, for a combined total eight-year
term. Finally, the Report and Order directed the then-Mass Media Bureau
to establish filing windows for LP100 applications.
4. The Commission revised and clarified some of its LPFM rules in a
September 2000 Memorandum Opinion and Order on Reconsideration
(Reconsideration Order), 65 FR 67289, November 9, 2000. The
Reconsideration Order declined to adopt the more restrictive channel
separation requirements urged by certain petitioners. Instead, the
Commission adopted complaint and license modification procedures to
address unexpected third-channel interference problems caused by LPFM
stations. The Reconsideration Order modified spacing standards to
require LPFM stations to protect radio reading services. Beyond the
issue of interference, the Commission increased ownership flexibility
for universities, state and local governments, and entities operating
public safety or transportation services. Finally, the Reconsideration
Order addressed a number of technical and ownership issues and
clarified the eligibility rules for certain groups.
5. After the Commission declined to impose third-adjacent channel
separation requirements in the Reconsideration Order, Congress directed
the agency to do so in the Making Appropriations for the Government of
The District of Columbia for FY 2001 Act (2001 DC Appropriations Act).
In that legislation, Congress instructed the Commission to prescribe
third-adjacent channel spacing standards for LPFM stations and to deny
LPFM applications of applicants that previously had engaged in the
unlicensed operation of a radio station. The 2001 DC Appropriations Act
also directed the Commission to evaluate the likelihood of interference
to existing FM stations if LPFM stations were not subject to the third-
adjacent channel spacing requirement.
6. As a result of the spacing requirement imposed by the 2001 DC
Appropriations Act, a number of facilities proposed in otherwise
technically grantable applications became short-spaced to existing
full-power FM stations or translators, leading to the eventual
dismissal of those applications. To evaluate the likelihood of
interference in the absence of a third-adjacent channel separation
requirement, the Commission selected an independent third party--the
Mitre Corporation--to conduct field tests. The Commission then sought
public comment on Mitre's reported findings. In February 2004, the
Commission submitted its report to Congress, recommending that, based
on the Mitre study, Congress ``modify the statute to eliminate the
third-adjacent channel distan[ce] separation requirements for LPFM
stations.''
7. In the March 2005 Second Order, the Commission reexamined some
of the rules governing the LPFM service, noting that the rules might
need adjustment in light of the experiences of LPFM applicants and
licensees. The Commission also took into account comments made at a
February 2005 forum on LPFM that had addressed ``achievements by LPFM
stations and the challenges faced as the service mark[ed] its fifth
year.'' The Second Order clarified that ``local program origination,''
as that term is used in Sec. 73.872(b)(2) of the Commission's rules,
does not include the airing of satellite-fed programming. The Second
Order also modified slightly the definitions of ``minor change'' and
``minor amendment.''
8. In the accompanying FNPRM, the Commission sought comment on a
number of issues with respect to LPFM ownership restrictions and
eligibility. The Commission asked whether LPFM licenses should be
assignable or transferable and whether the temporary restrictions on
multiple ownership of
[[Page 3204]]
LPFM stations and on non-local ownership should be extended or allowed
to sunset. Because ``introducing some level of transferability to the
LPFM service is critical,'' the Commission delegated to the Media
Bureau the authority to waive the prohibition on the assignment or
transfer of a LPFM station contained in Sec. 73.865 of the rules on a
case-by-case basis and cited examples of circumstances in which the
grant of such a waiver might be appropriate:
a sudden change in the majority of a governing board with no
change in the organization's mission; development of a partnership
or cooperative effort between local community groups, one of which
is the licensee; and transfer to another local entity upon the
inability of the current licensee to continue operation. * * *
The Commission noted, however, that ``until we have further considered
the transferability issue, we do not believe that waiver is appropriate
to permit the for-profit sale of an LPFM station to any entity or the
transfer of an LPFM station to a non-local entity or an entity that
owns another LPFM station.''
9. The Commission also proposed certain changes to the rules
governing the formation and duration of voluntary and involuntary time-
sharing arrangements among mutually exclusive LPFM applicants. The
FNPRM also considered a number of changes to the LPFM technical rules.
The Commission proposed to extend the construction period for LPFM
stations and to allow time-sharing applicants greater flexibility to
amend their applications to relocate the transmitter to a central
location. The FNPRM also sought comment on the relationship between the
LPFM and full-power FM services. Noting that thousands of FM translator
applications remained pending from the 2003 filing window, the
Commission froze the processing of those applications and sought
comment on possible adjustments to the co-equal status of LPFM stations
and FM translators with regard to interference between them. The
Commission also sought comment on whether LPFM stations should be
protected from interference from subsequently authorized FM stations.
Finally, the Commission denied a request by the Media Access Project
(MAP) to schedule ``regular'' filing windows for LPFM new station
applications and major modification applications.
10. During the seven years since we created the LPFM service, that
service has flourished for the most part, but also has encountered
unique obstacles. To date, the Media Bureau has received 3236
applications for new LPFM construction permits, of which 1,286 have
been granted. Currently, there are 809 LPFM stations operating
throughout the country. At the same time, the Media Bureau was
compelled to cancel 17 station licenses and 95 construction permits for
failure by the holder to satisfy certain procedural and/or technical
requirements. In view of this practical experience with LPFM service,
we now turn to the issues raised in the FNPRM. In resolving those
issues, we seek to increase the number of LPFM stations that are on the
air and providing service to the public, and to promote the continued
operation of LPFM stations already broadcasting, while avoiding
interference to existing FM service.
III. Discussion
A. Ownership and Eligibility
1. Alienability of Authorizations
a. Changes in Board Membership
11. Section 73.865 of the rules provides that ``[a]n LPFM
authorization may not be transferred or assigned except for a transfer
or assignment that involves: (1) Less than a substantial change in
ownership or control; or (2) An involuntary assignment of license or
transfer of control.'' The Reconsideration Order clarified that the
gradual change of a licensee's governing board or membership body is a
permissible ``insubstantial change,'' even if the majority of current
members joined after the station's authorization was granted. As the
FNPRM noted, however, ``[o]ur rules * * * do not permit a sudden change
in the board or membership of an LPFM licensee, which would constitute
an impermissible transfer of control.'' Panelists at the February 2000
LPFM forum and other parties concerned with the viability of LPFM
stations remarked that the proscription of sudden changes in governing
board membership causes unnecessary complications for LPFM licensees.
Responding to that concern, the FNPRM proposed to amend our rules to
permit sudden changes of more than 50 percent of the membership of
governing boards.
12. As commenters have since observed, frequent elections and
changes in governing board membership are common among volunteer
organizations and other entities that operate LPFM stations. As LPFM
station KVLP-LP noted, experience on the board of an LPFM station can
confer valuable leadership experience to community members, leading
community groups to encourage frequent shuffling of board membership.
Unsurprisingly, then, most commenters favor amending our rules to
permit transfers of control in the case of a sudden change in a
majority of a governing board's membership so long as the overall
mission of the organization remains unchanged.
13. We agree. In crafting our LPFM rules, the Commission intended
to preserve the integrity of the LPFM service and of the local
organizations operating LPFM stations. We did not intend, however, to
hamper the customary governance procedures of those organizations or to
make LPFM less ``accessible to community groups.'' To the extent that
our rules have blocked that access, we now remove that inadvertent
barrier and adopt the FNPRM's proposal to allow sudden changes of more
than 50 percent of the membership of governing boards. Accordingly, we
will amend Sec. 73.865 of our rules to clarify that transfers of
control involving a sudden change of more than 50 percent of an LPFM
licensee's governing board shall not be deemed ``a substantial change
in ownership and control.''
b. Assignments and Transfers
14. The FNPRM sought comment on whether the rules should permit the
sale of LPFM authorizations, for some or no consideration, and whether
they should impose a holding period by the initial permittee and
licensee. Noting that at least 221 construction permits have lapsed due
to the permittee's failure to construct facilities, REC Networks (REC)
argues that an LPFM permittee or licensee should be able to convey its
authorization when doing so would prevent the loss of the permit.
Indeed, most commenters support amending the rules to permit sales in
at least some circumstances, although they express diverse views with
respect to when such transactions should be allowed. At one extreme are
those commenters who maintain that LPFM stations should be transferable
without restriction because there is little risk of manipulation or
take-over in the ``market'' for LPFM authorizations. At the opposite
end of the spectrum are those who contend that transfers of control or
assignments should be limited to those situations in which the assignee
or transferee ``represents the community'' and no consideration is
involved. Prometheus argues that the Commission should not allow
transfers or assignments to be made in exchange for consideration, as
such a rule could lead to speculation by those with substantial
resources, at the expense of local community groups that lack funding.
[[Page 3205]]
15. The for-profit sale of LPFM authorizations to any buyer is
fundamentally inconsistent with the Commission's desire to promote
local, community based use and ownership of LPFM stations. Transfers of
control or assignments for consideration will create a market for LPFM
licenses and may facilitate trafficking in licenses by those who have
no interest in providing LPFM services to the public. Such a state of
affairs would likely interfere with, rather than spur development of,
community-based programming and hamper the ability of community-based
entities to obtain LPFM authorizations. Therefore, we will not permit
the sale of LPFM licenses for consideration exceeding the depreciated
fair market value of the physical equipment and facilities of the
station, and will not allow under any circumstances the transfer or
assignment of construction permits.
16. With respect to the imposition of eligibility restrictions on a
transferee or assignee of an LPFM license, some commenters suggest that
we permit the sale of an LPFM authorization to any willing buyer.
Others suggest that we limit the universe of eligible assignees and
transferees to other local nonprofits. We conclude that the appropriate
balance is struck by requiring the assignee or transferee of an LPFM
license to satisfy ownership and eligibility criteria existing at the
time of the assignment or transfer. That restriction will prevent
entities from using intermediaries to circumvent our LPFM eligibility
requirements and will further address our concern about potential
trafficking in LPFM authorizations by ensuring that future LPFM
licensees meet the Commission's criteria for LPFM service. At the same
time, permitting assignments or transfers among qualified parties will
allow newly-``merged'' local entities, consisting of several eligible
organizations, to pool their resources to provide the necessary
financial support for quality local programming when, standing alone,
those entities would be otherwise incapable of constructing and
operating an LPFM station.
17. For all transfers and assignments, we will require a three year
holding period from the issuance of license, during which a licensee
cannot transfer or assign the license, and must operate the station, as
suggested by Prometheus. That restriction will prevent entities from
using the LPFM assignment and transfer process to undermine the
Commission's LPFM policies and will ensure that the benefits to the
public which were the basis for the license grant will be realized.
c. Procedures
18. The FNPRM asked what procedures would be appropriate to allow
assignments and transfers while ensuring the integrity of the LPFM
service. Because many LPFM permittees and licensees are entities that
do not issue ownership shares, the Commission drew attention to the
Non-Stock Transfer NOI for guidance in establishing the procedures for
transfers of control of such licensees. The Non-Stock Transfer NOI
proposed to treat a sudden change of a governing board's majority as an
insubstantial transfer for which approval must be sought on an FCC Form
316 (short form) broadcast application. The FNPRM sought comment on
adopting a similar approach for changes in the governing boards of LPFM
permittees and licensees that are non-stock entities. The FNPRM also
sought comment on the process by which LPFM stations should seek
approval of assignments and transfers of control.
19. Few commenters addressed the issue of the appropriate
procedures for transfers of control or assignments of LPFM
authorizations. Christian Community Broadcasters proposed using a
modified FCC Form 318 LPFM construction permit application to cover all
instances of ownership changes or changes in board membership.
Limestone Community Radio suggested instead that entities use a
modified FCC Form 316 for ``typical'' changes in station ownership.
Still other commenters suggest that the Commission should take a more
active role in overseeing any LPFM ownership changes to ensure
``ethical use'' of LPFM licenses.
20. We will use existing FCC forms for the conveyance of LPFM
licenses, rather than adopting new forms and filing procedures. We see
no reason to depart from the filing procedures that currently are used
for other broadcasting services. Accordingly, we direct LPFM licensees
to use modified FCC Forms 314 and 315 for assignments and transfers of
control, respectively, and FCC Form 316 for pro forma changes in
ownership. We will apply the Non-Stock Transfer NOI to appropriate LPFM
licensees, and thus, will interpret a sudden change of a governing
board's majority as an insubstantial transfer for which approval must
be sought on an FCC Form 316 (``short form'') broadcast application.
Use of these forms offers many advantages, particularly to smaller
entities that have few resources to dedicate to the application
process, such as the ability to retrieve and submit the forms
electronically.
2. Ownership and Eligibility Limitations
21. As discussed above, the rules required that, during the two
years following the first LPFM filing window, no entity was permitted
to own more than one LPFM station, and ownership was restricted to
local entities. The rules gradually relaxed these restrictions.
Currently, the rules limit the number of LPFM stations a single entity
may own up to ten stations and the rule that allows only local entities
to apply for LPFM licenses has sunsetted. As we explained in the FNPRM,
the Commission's intention in gradually increasing the ownership
limitation from one to ten stations and in allowing the local entity
restriction to sunset ``was to make it more likely that local entities
would operate this service, but to ensure that if no local entities
came forward, the available spectrum would not go unused.'' In
connection with its query of whether to allow the sale of LPFM
stations, the FNPRM asked if either the ownership limitation or the
restriction to local entities should be extended or reinstated.
22. Several organizations urge the Commission to maintain ``strict
local and multiple ownership requirements,'' to ensure that LPFM
service continues to advance the public's interest in localism and
diversity. According to some of these commenters, any relaxation of
either the multiple ownership restriction or the locality-based
restriction is fundamentally at odds with the ``community radio''
rationale that justifies the existence of LPFM stations. Prometheus
Radio Project argues that, even when no local entity applies for an
LPFM authorization, non-local entities should be barred from applying,
because ``LPFM is not a goal in itself, rather it is a means to promote
localism.''
23. We agree. As emphasized in our Report and Order, our two
primary goals in establishing the LPFM service were to ``create
opportunities for new voices on the airwaves and to allow local groups,
including schools, churches, and other community-based organizations,
to provide programming responsive to local community needs and
interests.'' The Report and Order also stated that the potential
benefit of allowing multiple ownership--increased efficiency--was
clearly outweighed by ``the benefit to a community of multiple
community-based voices.'' By amending the rules to permanently limit
LPFM eligibility, we protect the public interest in localism and foster
greater diversity of programming from community sources. Thus, we will
reinstate the prohibition
[[Page 3206]]
on the ownership of more than one LPFM station.
24. In addition, we agree with those parties that suggest that we
reinstate the local ownership restrictions. Although growing in both
usage and recognition, LPFM service is still in its nascence and doing
away with the locality restriction could threaten its predominantly
local character, in particular the hallmark of a LPFM station's local
character, its local origination of programming. In upholding the local
origination selection criterion for mutually exclusive applications,
our Second Order emphasized that local origination is ``intended to
encourage licensees to maintain production facilities and a meaningful
staff presence within the community served by the station.'' Even
outside the limited context of mutually exclusive applications, we view
local origination as a central virtue of the LPFM service and therefore
will reinstate the eligibility restriction contained in Sec. 73.853(b)
of the rules to encourage local origination. We also wish to clarify
our definition of local origination. According to Prometheus, a
licensee could theoretically create one program, continually repeat it
on a tape loop, and still claim it meets the definition of local
origination. Prometheus asserts that in order to meet the local
origination requirement, programming cannot be automated, including
randomized songs or long blocks of locally produced programming run
multiple times, and cannot be aired more than two times. We agree that
there is room for abuse here, and as such, we clarify that repetitious
automated programming does not meet the local origination requirement.
We will only allow a program to be broadcast twice in order to meet the
local origination requirement. After its initial broadcast a program
can be rebroadcast once and still meet our requirement. After that, the
program cannot count toward the local origination requirement.
25. Finally, we adopt the suggestion by Prometheus that we extend
the local standard for rural markets. Pursuant to Sec. 73.853(b) of
the rules, an LPFM applicant is deemed local if it is physically
headquartered or has a campus within ten miles of the proposed LPFM
transmitter site, or if 75 percent of its board members reside within
ten miles of the proposed LPFM transmitter site. The ten-mile limit was
adopted based on the ``station's likely effective reach.'' Prometheus'
comments express concern that this ten-mile local entity standard is
difficult to meet for rural applicants, especially in finding board
members who reside within ten miles of the proposed transmitter site.
Prometheus states that people in rural communities often listen to and
participate in stations that are outside of their home coverage area,
because they listen to the station while driving to and from work. As
such, Prometheus requests modifying the ten-mile requirement to twenty
miles for all LPFM applicants for proposed facilities in other than the
top fifty urban markets, for both the distance from transmitter and
residence of board member standards. We agree with Prometheus that
applicants for stations located in rural communities find it
particularly challenging to meet the current ten-mile standard. We also
agree that the concept of ``local'' should be more expansive in rural
areas. Accordingly, we will revise Sec. 73.853(b) of the rules to
reflect Prometheus' proposal.
3. Time-Sharing
26. The Report and Order established a comparative point system for
determining which among mutually exclusive LPFM applicants should
receive the authorization that they commonly seek. If such applicants
have the same point total, two or more of the tied applicants may
propose to share use of the LPFM frequency by submitting a time-share
proposal within 30 days of the release of a public notice announcing
their tie. If the tie among the applicants is not resolved through a
voluntary time-sharing agreement, the tied applicants submitting
grantable applications are placed in an involuntary time-sharing
arrangement, and granted equal, successive, non-renewable license terms
for the applied-for facility of no less than one year each, for a total
combined term of eight years. The FNPRM proposed amending the rules
governing mutually exclusive LPFM applications in two key respects.
First, in response to a request by MAP, the FNPRM proposed to extend,
from 30 to 90 days, the period allowed for applicants to submit a
voluntary time-sharing agreement. Second, the FNPRM proposed to amend
the rules to permit the renewal of licenses granted under the
involuntary time-sharing successive licensing procedures. We address
those proposals in turn.
a. Deadline for Submission of Voluntary Time-Sharing Agreements
27. In its Petition for Reconsideration of the Report and Order,
MAP observed that ``LPFM applicants are largely comprised of small
organizations with few administrative resources,'' and that few
applicants ``have access to the expertise of professional engineers.''
Accordingly, few applicants are able to identify mutually exclusive
applications before receiving notice from the Commission that they are
tied with others, leaving them only 30 days to contact the other
applicants, complete negotiations and execute and file their agreements
with the Commission. Because those negotiations likely will be
conducted by inexperienced volunteers, MAP argues, reaching a
successful compromise within that time frame is very unlikely. Finding
MAP's argument persuasive, the FNPRM proposed to extend to 90 days the
time period within which mutually exclusive LPFM applicants must reach
and file a voluntary time-sharing arrangement.
28. All commenters who addressed the issue favor adoption of the
proposal to so extend the negotiation and filing period to 90 days.
NPR, ``recogniz[ing] the fundamental importance of a diversity of
programming services and station ownership,'' observes that allowing
LPFM applicants more time to enter into voluntary time-sharing
arrangements will promote that diversity. Similarly, REC contends that
30 days is not enough time in which to reach and file a viable time-
sharing agreement. REC sought to assist applicants with negotiations of
universal settlements, but found that often basic contact information
supplied on the applications was inaccurate. Drawing from that
experience and similar considerations, REC urges the Commission to
extend the period of time in which mutually exclusive applicants may
negotiate and file time-sharing agreements.
29. We agree with the views of NPR, REC, and others, and therefore
adopt the FNPRM's proposal to extend the negotiating and filing period
to 90 days. Mutually exclusive LPFM applicants should be given every
opportunity to arrive at a negotiated time-sharing arrangement before
the LPFM rules impose a successive-term licensing scheme on the
applicants. To the extent that the 30-day time period in Sec. 73.872
of the rules has impeded the successful negotiation of time-sharing
arrangements, we remove that impediment and hope that this will reduce
considerably the likelihood that involuntary time-sharing arrangements
with multiple successive license terms will be necessary.
b. License Renewal Procedures for Parties to Time-Sharing Arrangements
30. Section 73.872(d) of the rules provides that an LPFM
authorization issued under involuntary time-sharing arrangements, under
which mutually exclusive applicants are granted
[[Page 3207]]
successive license terms, is not renewable. The FNPRM also proposed
that we change this provision and make such authorizations renewable.
The FNPRM sought comment on how the renewal process should operate,
given that increased flexibility in the rules governing assignments and
transfers of control may lead licensees under such arrangements to
negotiate voluntary time-sharing agreements among themselves.
31. REC is one of the few commenters to respond to our queries
about involuntary time-sharing arrangements. In its submission, REC
suggests that if licensees under an involuntary time-sharing
arrangement ``come up with a universal settlement to engage in a
conventional time-share arrangement * * * the Commission should grant
such an arrangement and remove the non-renewable condition of the
permit and/or license.'' REC further proposes that, at the end of the
eight-year term, all licensees in a successive license term group
should each be permitted to file a renewal application.
32. The FNPRM tentatively proposed to make renewable all viable
licenses under both voluntary and involuntary time-sharing
arrangements. Making renewable only the authorizations of those
organizations that can reach a mutually acceptable agreement with
respect to scheduling, however, will provide a powerful incentive to
licensees that thus far have been unable to reach such agreement. This
will lead to more efficient use of the spectrum. Accordingly, we agree
with REC that when organizations subject to an involuntary time-sharing
arrangement reach a ``universal settlement'' with respect to the
allocation of time on the relevant frequency, the non-renewable
condition of their authorizations should be removed.
33. For the same reasons, we also agree with REC that stations
subject to involuntary time-sharing under successive license terms that
subsequently enter into a voluntary time-sharing agreement should be
permitted to file a renewal application. However, we are not persuaded
that we should accommodate those licensees with successive license
terms that fail to reach a universal voluntary agreement with the
ability to renew. By doing this, we would be rewarding such applicants'
unwillingness or inability to reach such agreements. We note that, of
the more than 1,200 construction permits granted in the LPFM service,
currently no stations hold authorizations for involuntary time sharing.
In this Order, we have extended the 30-day time period in Sec. 73.872
of the rules for applicants to negotiate and file universal voluntary
time-share agreements to 90 days. We have also enabled those applicants
originally issued involuntary time-share permits that reach such
agreements to ultimately acquire renewable licenses. We believe that
these measures will greatly reduce the likelihood that involuntary
time-sharing arrangements will be necessary. Therefore, we decline to
provide a renewal expectancy for involuntary time-share licensees. We
strongly encourage any such permittees and licensees and future
mutually exclusive applicants to enter into universal voluntary time-
share agreements.
34. Making renewable the authorizations of parties who time-share
who have reached voluntary time-sharing agreements raises a number of
practical questions with respect to how and when those arrangements
will supersede involuntary ones. First, we must determine when a
voluntary time-sharing agreement should replace the successive-term
structure of the involuntary arrangement. As we noted in the FNPRM, it
is likely that licensees will reach universal time-sharing agreements
prior to seeking renewal. We will therefore construe the superseding
agreement as a ``minor change,'' allowing the licensees who seek to
operate under a universal voluntary time-sharing agreement to file the
minor change application as soon as the agreement is reached, rather
than having to wait for a filing window. Expediting our approval of
voluntary time-sharing arrangements in this manner will encourage
prompt negotiations among licensees operating under involuntary time-
sharing arrangements and, it is hoped, promote a more efficient use of
scarce LPFM spectrum than that under the successive licensing terms
that apply to involuntary time-sharing arrangements. Accordingly, we
will revise the rules to facilitate those voluntary agreements. We
stress, however, that voluntary time-sharing agreements must be
genuinely universal, involving all permittees and licensees of a
particular LPFM facility. That is, to give rise to a renewal
expectancy, all of those in a time-share group must be parties to the
time-sharing agreement.
35. To ensure that voluntary time-sharing arrangements will result
in the most efficient use of LPFM spectrum, we also must address how to
apportion unused airtime among licensees in a time-share group. This
circumstance may arise in a number of ways. For example, a permittee in
that group could fail to construct its facilities, decide to cease
operations, or have its authorization revoked for a serious violation
of the rules. There might also be situations in which no permittee or
licensee has come forward requesting to operate during a certain part
of the day or week. REC points to an example in Visalia, California,
where one licensee, KFSC-LP, broadcasts from 5 to 9 a.m. Monday through
Saturday and a second licensee, KQOF-LP, broadcasts from 5 to 9 p.m.
Monday through Saturday. No licensee broadcasts other than those times.
REC proposes that, prior to the opening of a new filing window, new
entrants who can reach a universal settlement with existing stations
should be allowed to do so. REC also argues that new entrants should be
allowed to apply for periods of unused time once a window for new
applications has opened.
36. We agree with REC that, during filing windows for new
applications, new parties should be permitted to apply for unused and
unwanted time on a particular frequency. We will not entertain such
applications outside of an open filing window, however, even when the
potential new entrant could successfully negotiate a universal
settlement with existing licensees. Aside from the administrative
burden that such out-of-window filings could create, allowing a new
entrant to act before a formally-announced filing window could
prejudice unfairly other potential applicants who, under the
comparative criteria set forth in Sec. 73.872(b) of the rules, would
be entitled to a preference over the would-be new entrant's mutually
exclusive application. Restricting applications for unwanted time to
new filing windows does raise a potential concern in that the
restriction will leave periods of time on a particular frequency vacant
until the Commission elects to open a filing window for new
applications. To alleviate that concern, and to promote a more
efficient use of available LPFM frequency, we will allow existing
stations in a voluntary time-share group to apportion among themselves
any time that, for any reason, becomes unused. As with the negotiation
and execution of voluntary time-sharing agreements by parties in an
involuntary time-share arrangement, we will deem amendments to a
voluntary time-sharing agreement to account for unused time requests to
be minor modifications that may be filed at any time.
B. Technical Rules
1. Construction Period
37. The Report and Order established an 18-month construction
period for all LPFM facilities, stating that deadlines
[[Page 3208]]
would be strictly enforced. However, as a temporary measure, the FNPRM
adopted an interim waiver policy to allow permittees with soon-to-
expire permits to request additional time to construct their
facilities. Under that policy, the Media Bureau has the authority to
consider and grant requests for an additional 18 months to construct
facilities, upon a showing that the permittee reasonably can be
expected to complete construction within the extended period.
38. As a permanent solution, the FNPRM proposed extending the
construction period for LPFM stations to 36 months, the construction
period afforded to all other broadcast permittees. During the six years
since the release of the 2000 Report and Order, our assumption that
LPFM facilities would require significantly less time to build than
that required to construct full-power FM facilities has proven to be
overly optimistic. LPFM licensees have encountered varying difficulties
in locating suitable transmitter sites, raising sufficient funds for
the proposed facilities, and obtaining the necessary zoning permits.
The FNPRM thus proposed extending the construction period in order ``to
maximize the likelihood that LPFM permittees will get on the air.''
39. Many commenters favor extending the construction period. Some
state that the blanket adoption of a 36-month construction period has
administrative advantages over a conditional extension or case-by-case
review of individual waiver requests. Moreover, extending the
construction period to 36 months would put the LPFM and full-power FM
services on equal footing and avoid disenfranchising able, willing, but
inexperienced, LPFM permittees. Prometheus Radio Project and others
contend that the better approach is to grant an 18-month extension to
complete construction, but only upon demonstration of good cause.
Prometheus argues that such a procedure would give able and willing
LPFM permittees a total of 36 months to construct their facilities but
prevent unable or unwilling LPFM permittees from warehousing valuable
spectrum, without service to the public, for an extended period of
time.
40. We seek to encourage permittees to construct their facilities
within 18 months, and therefore, decline to adopt a blanket 36-month
construction period for LPFM. We agree with Prometheus that this
approach will prevent unwilling/unable applicants from sitting on
valuable spectrum. We recognize, however, that some permittees may face
difficulties in meeting this deadline. Therefore, we will amend the
rules to allow all permittees, including current ones whose
construction permits have yet to expire, the opportunity to seek an 18-
month extension to complete construction of their facilities upon a
showing of good cause. Because any such extension should account
adequately for the delays resulting from the potential inexperience of
the permittee, as well as for potential obstacles that may arise during
the zoning or permitting processes, that extended construction deadline
will be strictly enforced, as it is with all other radio broadcast
stations; we do not expect to entertain, and most likely will not
grant, waiver requests or those for further extensions.
2. Technical Amendments
41. Section 73.871 of the rules limits the ability of applicants to
propose site changes by minor amendment to relocations of 3.2
kilometers or less for an LP10 station, and 5.6 kilometers or less for
an LP100 station. That rule prevents time-sharing applicants from
relocating their transmitters to a central location unless the site
falls within those distance limits. To increase flexibility for time-
sharing applicants and thereby promote voluntary time-sharing
agreements, the FNPRM proposed to allow time-sharing applicants to file
minor amendments to relocate their transmitters to a central location,
notwithstanding the site relocation limits imposed by Sec. 73.871 of
the rules.
42. Few commenters have responded to our queries about technical
amendments by time-sharing applicants under Sec. 73.871 of the rules.
In 2001, UCC requested that we amend the rules to allow applicants that
submit a voluntary time-share agreement to relocate the transmitter to
a central location, provided that one is available. The Commission has
a long-standing policy of providing mutually exclusive applicants with
maximum flexibility to enter into time-share agreements in order to
facilitate rapid licensing in the service. For instance, in 2003, the
Commission by public notice waived Sec. 73.871 of the rules for a time
to permit all LPFM settling applicants the ability to file major change
amendments specifying new FM channels. Permitting parties to file time-
share agreements to specify a ``central location'' beyond the current
minor amendment distance limitations would remove one more potential
impediment to such agreements. Accordingly, we amend Sec. 73.871 of
the rules to permit time-sharing applicants to specify a central
transmitter location with a minor amendment without regard to the
respective 3.2 and 5.6 kilometer limitations on such amendments. These
agreements, which permit a number of different organizations to reach
local audiences, promote diversity. Providing applicants additional
flexibility and the opportunity to avoid the construction of duplicate
facilities also serves the public interest. For the same reason, we
amend that rule to allow permittees and licensees that reach a
voluntary time-sharing agreement after their permits have been granted
to submit such site change applications by minor submission. We
anticipate that this rule change will encourage time-share applicants,
permittees and licensees to consolidate transmission and studio
facilities.
3. LPFM-FM Translator Interference Priorities
43. The FNPRM identified several possible ways to modify the LPFM-
FM translator interference protection requirements. Currently, stations
in these two services operate on a substantially co-equal basis, with a
facility proposed in an application having ``priority'' over one
specified in any subsequently filed application. The FNPRM sought
comment on whether, and if so, under what circumstances LPFM
applications should be treated as having priority status over prior-
filed FM translator applications and granted authorizations. In
particular, the Commission sought comment on how to overcome the
significant preclusive impact of the 2003 Auction No. 83 translator
filing window, asking among other things whether all pending
applications for new FM translator stations filed during the window
should be dismissed. The FNPRM explained that the staff already had
granted approximately 3,500 new station construction permit
applications from the singleton filings, ``a number nearly equal to the
total number of FM translator stations licensed and operating prior to
the filing window,'' that 7,000 applications remained on file, that
very few opportunities for LPFM stations in major markets remained
prior to the 2003 translator filing window, and that the Auction No. 83
filing would have a ``significant preclusive impact on future LPFM
licensing opportunities.'' The voluminous comments submitted in
response to the priority issue focus on two possible theories
supporting modification of the current rule: (1) That LPFM provides a
``preferred'' radio service to that offered by translators; and (2)
that priority status for LPFM applications is necessary to overcome
[[Page 3209]]
the preclusive impact of the over 13,000 technical proposals filed
during the 2003 Auction No. 83 FM translator window.
44. LPFM advocates contend that their service is preferable to
translator service. They note that the rules require LPFM stations to
be locally owned and permit local program origination. They note that,
in contrast, many translators merely rebroadcast satellite-distributed
national programming. Some LPFM advocates request priority status for
only those LPFM stations that originate programming. Others request
priority status over all ``distant'' translators, i.e., translators
that rebroadcast the signals of non-local stations.
45. NAB, NPR, the various state broadcast associations, and
virtually all full-service commercial and NCE broadcasters support
retention of the current interference protection rules. They argue that
there are no simple ways to distinguish preferred stations or
programming. They also claim that there is no such thing as a typical
LPFM or FM translator station. They reject as unfounded the contention
that program origination or local ownership correlates to more
desirable programming. They note that LPFM licensees have limited
service responsibilities with regard to their communities of license:
LPFM stations need not originate programming; many serve the needs of
niche interest groups rather than their entire communities of license;
they are not required to maintain a main studio or public file; and
they are required to operate for only 35 hours per week. Many
broadcasters contend that, because the LPFM service is still in its
infancy, it is premature to reassess the ``co-equal'' status of LPFM
and FM translator stations. NCE and public radio broadcasters argue
that giving LPFMs priority over operating FM translator stations would
significantly disrupt established and valued translator service to
millions of listeners, particularly those in rural areas and in
situations in which broadcasters rely on ``chains'' of translators to
distribute programming. The public radio commenters note that
translators are a critical component of the public radio
infrastructure. A number of other commenters urge that a ``fill-in''
translator should be treated as the equivalent of its associated
primary full-service station and, therefore, always preferred to an
LPFM station.
46. With regard to the potentially preclusive impact of the over
13,000 FM translator applications filed in 2003, some commenters argue
that the LPFM service is not entitled to any special consideration
because LPFM applicants had the first opportunity during the 2000-2001
national LPFM windows to apply for new stations. Translator advocates
note that their last opportunity for non-reserved band FM translators
occurred in 1997. Edgewater Broadcasting, Inc. (Edgewater) submits an
extensive analysis of the preclusive impact of the construction permits
issued out of the 2003 translator filing window and the more limited
impact of the over 1,000 permits issued to it and its commonly-owned
Radio Assist Ministries. Edgewater contends that the preclusive impact
has been ``miniscule,'' notes that the Commission received no LPFM
applications to serve many of the areas specified in its translator
filings, and argues that its studies demonstrate that vast areas in the
country remain available for new LPFM stations. REC also submits both
national and market-specific analyses and identifies several
communities in which 2003 window filings have allegedly precluded or
diminished LPFM station licensing opportunities.
47. The Station Resource Group, an alliance of 45 public radio
broadcasters that operate 168 radio stations, contends that the chief
contributor to LPFM station preclusion is a ``maxed out spectrum
situation'' which prevents any broadcasters, NCE or commercial,
translators or LPFM stations, from obtaining new licenses in virtually
all major markets and many medium-sized markets. Several commenters
argue that the statutory third-adjacent channel LPFM protection
requirement blocks many otherwise-licensable LPFM opportunities.
48. A number of commenters argue that the Commission's concern is
misdirected. They urge the Commission to instead move vigorously
against alleged FM translator filing abuses, speculators, and deficient
application filings. They suggest imposing numerical application filing
limits, either on a prospective basis or with regard to the still-
pending translator applications. Several contend that the high demand
for new FM translators is unsurprising, given the extended freeze on
non-reserved band licensing.
49. As demonstrated by the comments filed on this issue, the LPFM
and FM translator services are each valuable components of the nation's
radio infrastructure. We agree with the advocates for each of these
services regarding the important programming that these stations can
provide to their local communities. We do not reach the merits of the
priority rules between these two services here. Instead, we seek
further comment in the attached Second FNPRM to develop a better record
on whether and how our current rule affects our core goals of localism,
diversity and competition. The current rules will remain in effect
until the Commission resolves the issue in that proceeding.
50. We also must consider the question of whether Auction No. 83
filing activity has adversely impacted our goal to provide to both LPFM
and translator applicants reasonable access to limited FM spectrum in a
manner which promotes the ``fair, efficient, and equitable distribution
of radio service * * *. '' This issue has taken on much greater
significance over the past few years as demand for new radio stations
has increased dramatically while the spectrum for such stations has
become increasingly scarce, particularly in many mid-sized communities
and in virtually all urbanized areas. Station Resource Group is
correct--the primary licensing impediment is the nation's ``maxed out''
spectrum situation. New Jersey LPFM licensing activity is illustrative
of the limited new station opportunities in spectrum-congested areas.
Only 29 New Jersey LPFM applications were filed during that state's
June 2001 window. Of those submissions, the Media Bureau has issued
only eleven construction permits and only one additional authorization
possibly may be granted. Only seven LPFM stations are currently
operating in the state. We find these statistics more probative of the
LPFM service's growth potential than the studies completed by Edgewater
because LPFM stations, due to their limited service area potential,
generally require higher population densities to be viable. It seems
unlikely that the availability of spectrum in the vast rural portions
of the nation will generate significant levels of LPFM station
licensing.
51. Demand for radio spectrum is, if anything, increasing. The
number of applications filed during the AM new and major change windows
jumped from 258 in 2000 to more than 1,300 in 2004. Competitive bidding
activity for FM new station construction permits has been robust since
the commencement of open FM auctions in 2004. The 2003 FM translator
window provides further evidence of this trend, especially when
compared to historic licensing levels for this service. As of September
30, 1990, a total of 1,847 licensed FM translators and (co-channel)
boosters operated throughout the nation. As of December 31, 1997,
shortly after the date on which the Commission imposed a freeze on new
non-reserved band translator filings (but not on new boosters or new
reserved band stations), a total of 2,881 FM
[[Page 3210]]
translators operated nationally. The number of licensed stations
continued to grow modestly over the next six years, chiefly as a result
of ongoing reserved band filing activity. A total of 3,818 licensed
stations were in operation in March 2003 when the Commission opened the
FM translator window, a total of 3,897 licensed stations when the
Commission imposed the Auction No. 83 construction permit freeze in
March 2005.
52. Measured against this historical licensing record, Auction No.
83 window filing activity was significant. Proposals exceeded
authorized stations by a factor of three in a service in which little
licensing was done before the 1980s. The 2003 window already has nearly
doubled the total number of authorized stations. To date, three times
more translator stations have been authorized out of this one window
than LPFM stations authorized through the initial LPFM window filing
process. Approximately 7,000 translator applications remain pending.
The Commission faces two chief difficulties in trying to balance
spectrum allocations for LPFM stations and translators. First, FM
translators are licensed under substantially more flexible technical
rules. Thus, some of the Auction No. 83 filing activity involves
spectrum which is unavailable for LPFM use. By the same token, LPFM
station proponents have far fewer licensing opportunities in spectrum-
congested markets because LPFM technical rules are substantially less
flexible. Second, it is impossible to accurately predict future demand
for LPFM station licenses. While engineering studies can identify areas
in which additional licensing is technically permissible, the interest
of local organizations to apply for, construct, and operate new LPFM
stations can only be determined at the time a window is opened.
53. Although precise preclusionary calculations are not possible,
we believe that processing all of the approximately remaining 7,000
translator applications would frustrate the development of the LPFM
service and our efforts to promote localism. Several factors support
the adoption of some remedial measures. The sheer volume of Auction No.
83 filings, when compared to historic translator and LPFM licensing
levels, is a significant concern. We recognize that LPFM proponents had
the ``first'' opportunity to file for the spectrum which Auction No. 83
filers now propose to use. However, it is apparent that the translator
filings have precluded or diminished LPFM filing opportunities in many
communities. For example, a REC national study found that 16 percent of
all census designated communities that otherwise would have LPFM
channels available in their communities have been precluded by the
translator filings and that the greatest preclusionary impact has been
in the largest such communities. Moreover, the Media Bureau has found
that its efforts to identify alternative channels for LPFM stations
either causing or receiving interference have been significantly
limited in numerous cases by the requirement to protect pending FM
translator applications and authorizations granted out of the 2003
window. The licensing asymmetries between these two services also
support this finding. Translator filings can materially impact LPFM new
station options which are far more limited than FM translator filing
opportunities. In contrast, it is unlikely that LPFM filings will
materially affect translator licensing options. FM translator contour-
based station licensing is substantially more flexible than the strict
distance separation requirements which LPFM stations must satisfy. This
difference is tied in part to the fact that unlike an LPFM station, an
FM translator station must cease broadcast operations if it is causing
``actual interference'' to any authorized broadcast station. In short,
any translator station construction is at the risk of the permittee.
The level of Auction No. 83 filing activity and the fact that many
applications were filed for facilities in the top 100 markets both
illuminate the significant difference in the licensing opportunities
between these two services. The next LPFM window may provide the last
meaningful opportunity to expand the LPFM service in spectrum-congested
areas. In contrast, we expect significant filing activity in many
future translator windows.
54. Certain equitable considerations also tilt in favor of adopting
remedial measures to limit the preclusive impact of Auction No. 83
filings. Each applicant filing in Auction No. 83 submitted one Form 175
Application to Participate in an FCC Auction and a separate Form 349
``Tech Box'' for each translator proposal. 861 filers submitted 13,377
such proposals in the window. Applicant filing activity divided between
the hundreds of applicants who filed a limited number of applications
and a very small number of applicants who filed for hundreds or
thousands of construction permits. For example, approximately half the
filers submitted one or two proposals. Approximately 80 percent of
filers submitted 10 or fewer proposals. 97 percent filed 50 or fewer
proposals. In contrast, the two most active filers, commonly-owned
Radio Assist Ministries and Edgewater (collectively, RAM), filed 4,219
proposals, constituting almost one-third of all Auction No. 83 filings.
The fifteen most active filers were responsible for one-half of all
Tech Box submissions.
55. We are concerned that the heavily skewed filing activity in
Auction No. 83 raises concerns about the integrity of our FM translator
licensing procedures. Even if lawful, it is fair to question whether
the acquisition of unprecedented numbers of FM translator
authorizations by a handful of entities through our window filing
application procedures promotes either diversity or localism. The rapid
flipping of hundreds of permits acquired through the window process for
substantial consideration does suggest that our current procedures may
be insufficient to deter speculative conduct. Some commenters have been
critical of RAM's business strategy. ``The [National Translator
Association] considers those applicants who intend to obtain
construction permits and then sell those permits to be simply
speculators for profit.'' Most fundamentally, it appears that our
assumption that our competitive bidding procedures would deter
speculative filings has proven to be unfounded in the Auction No. 83
context. RAM, alone, has sought to assign more than 50 percent of the
1,046 construction permits it has been awarded through the window and
has consummated assignments for over 400 of all such permits.
56. In order to further our twin goals of increasing the number of
LPFM stations and promoting localism, we find it necessary to take
action. Accordingly, we will limit further processing of applications
submitted during the Auction No. 83 filing window to ten proposals per
applicant. Applicants with more than ten proposals pending will be
provided an opportunity to identify those applications which they wish
to have processed and those for which they seek voluntary dismissal.
The Media Bureau is directed to complete its processing of the
approximately 100 pending but frozen singleton long-form applications
without regard to the ten application limit. However, construction
permits granted from this group will count toward the limit for future
Auction No. 83 licensing purposes. This cap will only apply to short-
form applications, and will not impact the ability of Auction No. 83
filers with granted construction permits or pending long-form
applications to obtain licenses to
[[Page 3211]]
cover. This limit will not have an adverse impact on the more than 80
percent of those who filed ten or fewer proposals in the Auction No. 83
filing window. It will require certain filers to identify priority
proposals. This cut-off will limit the preclusive impact of Auction No.
83 filings on LPFM licensing opportunities by barring the processing of
thousands of applications filed by a very small number of applicants,
without impacting the approximately 80 percent of filers who filed ten
or fewer applications. Although we recognize the equitable interests of
the remaining 20 percent of filers in the processing of all of their
short-form applications, on balance we conclude that the public
interest requires a bar on the processing of more than ten applications
per filer. We are hopeful that as a result of this cap the Media Bureau
will be able to shorten the period between windows for both new LPFM
and FM translator stations. We direct the Media Bureau to issue a
public notice announcing the opening of the settlement window required
by Sec. Sec. 73.5002(c) and (d) of the rules. Applicants must select
the ten applications they wish to preserve before the settlement window
opens. With the imposition of this cap, we direct the Media Bureau to
resume the processing of Auction No. 83 filings. Specifically, the
Media Bureau is to expeditiously process the applications of any
applicant that is now in compliance or brings itself into compliance
with the ten proposal cap.
57. We are mindful of the expenses that translator applicants have
incurred in preparing their non-feeable Form 175 short-form
applications and Form 349 Tech Box submissions but believe that the
imposition of this cap treats all applicants equitably. We have
attempted to accommodate applicants to the greatest extent possible,
consistent with statutory requirements and competing Commission goals.
All applicants will benefit from expedited processing and the Media
Bureau's ability to open future windows more quickly. Thus, this action
is entirely consistent with Commission's rules and precedent for the
dismissal of pending applications as a necessary adjunct of efficient
and effective rulemaking. Finally, we note that there is ample
precedent for the mass dismissal of applications based on a rule or
policy change. This procedural change is a reasonable exercise of the
Commission's administrative discretion. Accordingly, we conclude that
the imposition of a cap in these circumstances is lawful.
4. Interference Protection From Subsequently Authorized Full-Service FM
Stations
58. Background. The Report and Order establishing the LPFM service
set minimum distance separation requirements to ensure that LPFM
stations protect existing commercial and NCE full-service FM stations,
as well as FM translator and booster stations. The Report and Order
also concluded that existing full-service stations would not be
required to protect proposed LPFM facilities. Moreover, ``operating
LPFM stations will not be protected against interference from
subsequently authorized full-service facility modifications, upgrades,
or new FM stations.'' Conversely, an LPFM station is not permitted to
cause interference within the 3.16 mV/m (70 dB[mu]) contour of a full-
service FM station. An LPFM station generally may continue to operate
within that contour so long as it can demonstrate that actual
interference is unlikely to occur. Section 73.809 of the rules sets
forth detailed complaint procedures to resolve disputes over the
likelihood of actual interference and the sufficiency of actions taken
by LPFM stations to eliminate that interference.
59. In September 2000, the Commission dismissed a motion to
reconsider the regulatory status of LPFM stations. In the FNPRM,
however, the Commission stated that ``it would be useful to consider
whether to limit the Sec. 73.809 interference procedures to situations
involving co- and first-adjacent channel predicted interference, where
the predicted interference areas are substantially greater than for
second and third-adjacent channel interference.'' The Commission also
asked whether an LPFM station should be permitted to remain on the air
if the full-power FM station did not serve the area of predicted
interference prior to the facilities modification (in the case of an
existing station) or the grant of the construction permit (in the case
of a new station). Similarly, the Commission sought comment on whether
an LPFM station should be permitted to remain on the air if the full-
service station's community of license would not be subject to
interference. Finally, the Commission asked whether an amendment to
Sec. 73.809 of the rules would be consistent with Congress' directive
mandating third-adjacent channel interference protection from LPFM
stations.
60. Although, to date, only one LPFM station has been forced off
the air pursuant to the requirements of Sec. 73.809 of the rules, some
commenters believe that numerous LPFM stations are under a significant
threat of such ``encroachment.'' On March 5, 2007, the Commission
received a petition for rulemaking requesting: (1) Immediate issuance
of a moratorium on the displacement of licensed LPFM stations and Class
D Educational stations by new, relocating and/or upgrading full-power
radio stations, and (2) a proposed rule permanently prohibiting or
otherwise restricting such displacement. See Petition for Rulemaking of
the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media,
Providence Community Radio and Nickolaus E. Leggett N3NL at 1. In light
of the discussion herein, we dismiss this petition. In 2005, REC
released a study claiming that 134 LPFM construction permits and
licenses were then at risk of being cancelled due to pending full-power
station modification applications for vacant allotments. The study also
claimed that hundreds of LPFM stations faced less significant levels of
increased interference. REC has updated this analysis to assess the
impact of applications filed under the recently-adopted rules that
established streamlined community of license modification procedures.
This study claims that 257 LPFM stations could suffer at least some
signal degradation as a result of these facility changes and that 38 of
these LPFM stations might be required to cease operations. Prometheus
and other commenters call for the Commission to grant LPFM stations co-
equal protection status with full-power stations. Alternatively, they
suggest that a full-power station proposing to eliminate or seriously
degrade the listening area of an LPFM station be required to receive
full Commission approval for such a modification. At a minimum, these
commenters request that impacted LPFM stations be provided with the
ability to make major engineering changes to preserve service.
61. Conversely, many other commenters believe that no changes to
Sec. 73.809 of the rules are warranted. Instead, NAB proposes that
flexible procedures be put in place to encourage LPFM stations to
relocate. NPR contends that the Commission should maintain the current
interference protections between FM and LPFM stations. Indeed, NPR and
others suggest that the Commission lacks statutory authority to
eliminate second and third-adjacent channel protections. Educational
Media Foundation states that relaxing Sec. 73.809 of the rules would
be harmful to listener-supported NCE stations. Finally, NSBA contends
that
[[Page 3212]]
there is a strong likelihood of harmful interference to full-service FM
stations if the rule is changed and that harm outweighs any speculative
benefit to the public interest that would result from a rule change.
62. Discussion. In the Report and Order, we declined to provide
LPFM stations with an interference protection right that could prevent
a full-service station from seeking to modify its transmission
facilities or could foreclose future new full-service radio station
licensing opportunities. Our experience to date confirms our belief
that in most instances the interests of both full-service and LPFM
stations can be accommodated. We applaud those full-service stations
that have provided technical and/or financial assistance to LPFM
stations that have been required to undertake facility modifications to
remain on the air. We are particularly appreciative of those
broadcasters that have consented to short-spacings to avoid LPFM
station displacements. We urge licensees seeking community of license
modifications or other changes that could lead to LPFM displacement or
signal degradation to continue these cooperative efforts on a going-
forward basis. The Media Bureau also has played an important role in
crafting technical solutions to preserve LPFM stations potentially at
risk from new station and facility modification proposals. It already
has taken action on dozens of LPFM modification applications that were
filed to eliminate or reduce caused interference to or received
interference from a full-service FM station. We direct the Media Bureau
to continue to attempt to resolve conflicts between full-service and
LPFM stations in ways that accommodate the interests of both services.
a. Section 73.809 Interference Procedures
63. Circumstances have changed considerably since we last
considered the issue of protection rights for LPFM stations from
subsequently authorized full-service stations. Most importantly, the
January 2007 lifting of the freeze on the filing of FM community of
license modification proposals combined with the implementation of new
streamlined licensing procedures resulted in a one-time flurry of
filing activity, with approximately 100 FM community of license
modification proposals submitted in the first week of the new rules. In
all, over 200 community of license modification applications have been
filed under the new rules. Increased filings under the new rules and
the arguments of LPFM advocates persuade us that the Commission should
put policies in place to address current and future LPFM station
displacement threats. The Media Bureau has identified approximately 40
LPFM stations that could be forced to cease operations. In these
circumstances, we find that the rules should be amended to limit Sec.
73.809 interference procedures to situations involving co- and first-
adjacent channel interference.
Thus, Sec. 73.809 will no longer apply to situations involving
predicted second-adjacent channel interference. We encourage full-
service and LPFM stations to work cooperatively to minimize or
eliminate the impact of the full-service station proposal on both
stations. In this regard, we encourage each ``encroaching'' full-
service station to provide technical and financial assistance to any
LPFM station at risk from a full-service station facility proposal and
to identify and facilitate the implementation of measures to ameliorate
any potential increase in received interference by the LPFM station. As
described in more detail below, second-adjacent channel interference to
a full service station is generally predicted to occur only in the
immediate vicinity of the LPFM station transmitter site. Predicted
interference to listeners can be substantially reduced or eliminated in
these situations by various techniques, e.g., increasing LPFM antenna
height, relocating LPFM transmission facilities away from populated
areas, etc.
b. Section 73.807 Second-Adjacent Channel Waiver Standard
64. The Media Bureau has identified for many of the stations now at
risk of displacement alternate channels that would require waivers of
Sec. 73.807 of the rules because operations on the new channels would
be short-spaced to full service stations operating on second-adjacent
channels. Based on the potential harm to this small but not
insignificant number of LPFM stations, we believe that it would be
beneficial to establish a procedural framework for the consideration of
showings from LPFM stations that may seek such waivers to avoid
displacement, as well as to avoid unnecessary disruption of LPFM
service to the public during such consideration. This procedure will
apply to both pending applications and those filed, but not disposed
of, prior to the effective date of any rule changes proposed in the
Second FNPRM. The clarification of our second-adjacent channel LPFM
waiver standards set forth below is intended to avoid the unwarranted
loss of many LPFM stations while the Commission considers certain rule
changes set forth in a Second FNPRM that we also adopt today. The
interim procedural protections we establish in connection with such
waiver standards are designed to safeguard the interests of all
affected parties and to aid the Commission in identifying those
situations in which strict compliance with our rules would not serve
the public interest. We also provide guidance below regarding
processing standards that the Commission will apply to full-service
station modification applications where the modification would place an
LPFM station at risk of displacement and no alternate channel is
available. In such circumstances, we will consider waiving the
Commission's rule making LPFM stations secondary to subsequently-
authorized full-service stations and denying the modification
application to protect an LPFM station that is demonstrably serving the
need of the public from being required to cease operations.
65. In evaluating whether the public interest would be served by
grant of a waiver of Sec. 73.807 of the rules for a second-adjacent
channel short-spacing to an LPFM station at risk of displacement, the
Commission must balance the potential for new interference to the full-
service station against the potential loss of an LPFM station. An LPFM
station operating within the 60 dB[mu] contour of a second-adjacent
channel full-service station would cause interference to the full-
service station in the immediate vicinity of the LPFM transmitter site.
Based on desired-to-undesired (D/U) signal strength ratio calculations,
in most circumstances interference would be predicted to extend from
ten to two hundred meters from the LPFM station antenna. Clearly, it
will be advantageous to an LPFM applicant's waiver showing to propose
modifications that minimize the area of predicted interference, e.g.,
by proposing maximum possible antenna heights above average terrain,
and by selecting transmitter sites not located near densely populated
areas. We encourage the encroaching full-service station licensee to
provide technical assistance to LPFM stations to develop modification
proposals that would avoid impacting current radio listening patterns.
66. The following procedures will be limited to those situations in
which implementation of the full-service new station or modification,
including community of license, proposal would result in the full-
service and LPFM stations operating at less than the minimum distance
separations set forth in Sec. 73.807 of the rules. In addition,
[[Page 3213]]
implementation of the full-service proposal must result in either an
increase in interference caused to the LPFM station or result in the
displacement, i.e., the suspension or termination of LPFM station
operations pursuant to Sec. 73.809 of the rules, of the LPFM station.
These procedures will not be available where an alternate, fully-
spaced, and rule-compliant channel is available for the LPFM licensee
or permittee. Finally, Special Temporary Authorizations (STA) will be
available pursuant to these procedures only if the LPFM station is
proposing a waiver (or waivers) of LPFM second-adjacent channel spacing
requirements.
67. We direct the Media Bureau to contact LPFM stations that are
currently, or in the future may become, eligible to seek facility
modifications under these procedures. To receive consideration, an LPFM
station must file promptly an application on Form 318 and include a
Sec. 73.807 of the rules waiver request and showing. If the Media
Bureau determines that the request falls within the scope of these
procedures, it will issue an order to show cause to the potentially
impacted full-service station(s) as to why the modification of such
station license(s) to allow a second-adjacent channel short-spacing
would not be in the public interest. In the event that the Media Bureau
concludes that the public interest would be better served by waiving
Sec. 73.807 of the rules, it will retain the LPFM station's
application in pending status and issue an STA for the proposed LPFM
station modifications. STAs issued pursuant to these procedures will be
subject to any action taken by the Commission in the Second FNPRM. The
Commission will withhold final determination of the waiver request
until action on the Second FNPRM proposals. We encourage each
``encroaching'' full-service station to provide technical and financial
assistance to any LPFM station which avails itself of these procedures.
We also direct the Media Bureau to include a condition, as appropriate,
in the ``encroaching'' full-service station's construction permit
requiring such station to provide technical assistance and assume
financial responsibility for all direct expenses associated with
resolving actual interference complaints, e.g., the purchase of radio
filters, etc.
c. LPFM Station Displacement
68. In certain circumstances no alternative channel will be
available for an LPFM station at risk of displacement. With regard to
full-service modification applications filed after the release of this
Third Report and Order, we provide the following guidance on the
standards that the Commission will use to determine whether grant of
such applications are in the public interest. Generally, the Commission
will favor grant of the full-service station modification application.
However, we believe that it is appropriate to apply a presumption that
the public interest would be better served by a waiver of the
Commission's rule making LPFM stations secondary to subsequently
authorized full-service stations and the dismissal of an
``encroaching'' community of license reallotment application when the
threatened LPFM station can demonstrate that it has regularly provided
at least eight hours per day of locally originated programming, as that
term is defined for the LPFM service. This presumption will apply only
when implementation of a community of license modification would result
in the displacement of an LPFM station or result in such a significant
increase in caused interference to the LPFM station such that continued
operations are infeasible, i.e., when the LPFM transmitter site is
located within the interfering contour of a co- or first-adjacent
channel community of license modification proposal. This presumption
will also be limited to those situations in which no ``suitable''
alternate channel is available for the LPFM station. This presumption
will not apply where opportunities are available for the impacted LPFM
station to alter operations in order to avoid conflict with a full-
service station.
69. Our evaluation of these competing demands for scarce spectrum
will take into account the benefits of the move-in proposal under
section 307(b) of the Communications Act of 1934, as amended, the
amount of locally originated programming by the LPFM station, the
extent to which other LPFM stations are licensed to and/or provide
service to the area currently served by the threatened LPFM station,
the extent to which other noncommercial educational (NCE) radio
stations are providing locally originated programming to listeners in
the LPFM station's service area, the number of LPFM stations at risk of
displacement from the proposed community of license modification
proposal, and any other public interest factors raised by the full-
service and LPFM station applicants or other parties. LPFM stations
that wish to make a showing under this waiver standard must file an
informal objection to the ``encroaching'' community of license
modification application within sixty days of the Federal Register
notice of such application filing. Oppositions and replies may be filed
in accordance with Sec. 1.45 of the rules. This presumption is
rebuttable and does not bind the Commission to a particular result. We
caution parties that even if the required showing is made, the
Commission in the exercise of its discretion may conclude that denial
of the full-service station application and grant of the waiver would
not serve the public interest.
70. We intend to narrowly limit this policy to the class of LPFM
stations that are demonstrably serving the needs of local listeners.
Moreover, this policy will not apply in a situation in which a full-
service station proposes a facility change to improve service to its
current community of license. We emphasize that we will dismiss a
community of license modification proposal only when no technically
reasonable accommodation is available and the LPFM station makes the
requisite waiver showing. We conclude that this processing policy
appropriately balances the interests of full-service and LPFM stations,
and recognizes the role that each service plays in promoting diversity
and localism. The Commission is seeking comment on the presumption in
the attached Second FNPRM and may modify it based on the comments
received in response thereto.
71. We believe that Sec. 73.807 of the rules and LPFM displacement
standards will effectively balance the interests of LPFM and full-
service broadcasters while the Commission considers the Second FNPRM
proposals. While REC has identified many LPFM stations that ultimately
may be required to modify their facilities as a result of encroachment,
we do not see this as a threat to the viability of the LPFM service,
especially with the additional protections and procedures we adopt
herein. REC's claim that many LPFM stations face interference merely
describes a basic feature of the service in today's congested FM
broadcast radio spectrum. Opportunities exist for many LPFM stations to
change locations, reduce power, or change channels in the event that a
conflict arises with a full-service station. Furthermore, the majority
of the stations identified as ``less significant risks'' by REC solely
exist today because of the flexible nature of the spacing rules under
Sec. 73.807 of the rules. Section 73.807 clearly identifies the
distance separations necessary for LPFM stations to avoid received
interference but does not require LPFM stations to meet this stringent
standard. This rule fully protects nearby full-power FM stations while
also allowing interference to
[[Page 3214]]
LPFM stations in some instances. Therefore, LPFM stations at distances
less than those specified in Sec. 73.807 of the rules in the column
labeled ``for no interference received from max. class facility'' can
expect to receive interference.
IV. Conclusion
72. The rules and policies adopted herein will promote the
continued operation and expansion of LPFM service. Our actions today
further the public interest and ensure that we maximize the value of
LPFM service without harming the interests of full-power FM stations or
other Commission licensees. To further these goals, we also recommend
to Congress that it remove the requirement that LPFM stations protect
full-power stations operating on third adjacent channels.
V. Administrative Matters
A. Regulatory Flexibility Analysis
73. Final Regulatory Flexibility Analysis. The Regulatory
Flexibility Act of 1980, as amended (RFA), requires that a regulatory
flexibility analysis be prepared for notice and comment rule making
proceedings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' In
addition, the term ``small business'' has the same meaning as the term
``small business concern'' under the Small Business Act. A ``small
business concern'' is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
74. As required by the Regulatory Flexibility Act, the Commission
has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to
this Third Report and Order.
75. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was
incorporated in the FNPRM in this proceeding. The Commission sought
written public comment on the proposals in the FNPRM, including comment
on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms
to the RFA.
Need for, and Objectives of, the Third Report and Order
76. The policies and rules set forth herein are required to ensure
that the Commission advances the goal of maximizing the value of LPFM
service without harming the interests of full-power FM stations or
other Commission licensees. In this Third Report and Order, the
Commission (1) eases the paperwork burdens on LPFM licensees, by
clarifying that transfers of control involving a sudden change of more
than 50 percent of an LPFM licensee's governing board shall not be
deemed ``a substantial change in ownership and control'', as LPFM
boards can be subject to substantial turnover; (2) allows for the
transfer and assignment of LPFM stations subject to certain conditions,
such as: a cap on the sale price to the depreciated fair market value
of the physical assets of the facility; (3) the imposition of a three
year holding period during which the initial licensee must operate the
station, a requirement that the assignee or transferee of an LPFM
license is required to satisfy the ownership and eligibility criteria
existing at the time of the assignment or transfer, and a prohibition
on the assignment or transfer of construction permits; (4) reinstates
the LPFM local ownership eligibility restriction; (5) allows an 18
month extension for good cause of the LPFM construction period; and (6)
provides for additional technical amendments, such as allowing time-
sharing applications to seek authority to place their transmitter at a
central location, limiting the processing of applications submitted
during the Auction No. 83 filing window to ten proposals per applicant,
amending the rules to limit Sec. 73.809 interference procedures to
situations involving co- and first-adjacent channel interference, and a
procedural framework for the consideration of showings from LPFM
stations that may seek waivers of Sec. 73.807 of the rules to avoid
displacement, as well as to avoid unnecessary disruption of LPFM
service to the public.
Summary of Significant Issues Raised by Public Comments in Response to
the IRFA
77. None.
Description and Estimate of the Number of Small Entities to Which the
Adopted Rules Will Apply
78. 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 encompassing the terms ``small business,''
``small organization,'' and ``small governmental entity.'' In addition,
the term ``small business'' has the same meaning as the term ``small
business concern'' under the Small Business Act. A small business
concern is one which: (1) Is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(SBA).
79. LPFM Radio Stations. The proposed rules and policies
potentially will apply to all low power FM radio broadcasting licensees
and potential licensees. The SBA defines a radio broadcasting station
that has $6.5 million or less in annual receipts as a small business. A
radio broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public. Included in this
industry are commercial, religious, educational, and other radio
stations. Radio broadcasting stations which primarily are engaged in
radio broadcasting and which produce radio program materials are
similarly included. As of the date of release of this Third Report and
Order, the Commission's records indicate that more than 1,225 LPFM
construction permits have been granted. Of those permits, approximately
820 stations are on the air, serving mostly mid-sized and smaller
markets. It is not known how many entities ultimately may seek to
obtain low power radio licenses. Nor do we know how many of these
entities will be small entities. We expect, however, that due to the
small size of low power FM stations, small entities would generally
have a greater interest than large ones in acquiring them.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements
80. The rules adopted in this Third Report and Order will impose
different reporting or recordkeeping requirements on existing LPFM
stations. First, the clarification that transfers of control involving
a sudden change of more than 50 percent of an LPFM licensee's governing
board shall not be deemed ``a substantial change in ownership and
control,'' will ease paperwork burdens upon licensees. The Third Report
and Order will also involve additional paperwork burdens. First, as
this Third Report and Order will allow for the transfer and assignment
of LPFM licenses, the Commission will require the collection of
information necessary for the purposes of processing such applications.
Second, this Third Report and Order clarifies the renewal process for
time-sharing entities, and the process for the administration of such
applications. Third, Auction 83
[[Page 3215]]
applicants that filed more than 10 applications must select the ten
applications they wish to preserve, versus those that will be
automatically dismissed, after the Media Bureau issues a Public Notice
on this subject. There is no disproportionate impact on small entities
as these additional reporting and recordkeeping requirements since
these requirements are imposed equally on large and small entities.
Steps Taken To Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered
81. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
82. Consideration of alternatives methods to reduce the impact on
small entities is unnecessary. The Third Report and Order decreases
existing burdens on small entities and increases their flexibility.
First, the clarification that transfers of control involving a sudden
change of more than 50 percent of an LPFM licensee's governing board
shall not be deemed ``a substantial change in ownership and control,''
will ease paperwork burdens upon LPFM station, many of which are small
entities. Further, the changes in the ownership rules will allow
greater flexibility for LFPM licensees. Finally, the changes in the
technical rules will allow more small entity LPFM stations to exist. In
addition, the Third Report and Order does not impose different burdens
on large and small entities. The record keeping requirements will help
facilitate the transfer and assignment of licenses and clarifies the
renewal process for time-sharing entities, including the administration
of such applications.
83. LPFM service has created and will continue to create
significant opportunities for new small businesses by allowing small
businesses to develop LPFM service in their communities. In addition,
the Commission generally has taken steps to minimize any burdensome
regulation on existing small broadcasters. To the extent that the Third
Report and Order imposes any burdens on small entities, these burdens
are only incident to the benefits conferred: greater flexibility of
LPFM stations in transferring, assigning and renewing LPFM stations.
B. Report to Congress
84. The Commission will send a copy of the Third Report and Order,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act. In addition, the Commission will send a copy
of the Third Report and Order, including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the Third Report and Order,
and FRFA (or summaries thereof) will also be published in the Federal
Register.
C. Paperwork Reduction Act Analysis
85. This Third Report and Order contains new and modified
information collection requirements which were proposed in the FNPRM,
and are subject to the Paperwork Reduction Act of 1995 (PRA).
86. We have assessed the effects of requiring documentation in
relation to: (1) the proposed changes to Forms 314, 315 and 316 for the
transfer and/or assignment of LPFM licenses; and (2) the proposed
changes to Form 318 for the relocation of transmitter sites for
voluntary time-share applicants. We find that to the extent that this
Third Report and Order imposes any burdens on small entities, the
resulting impact on small entities is favorable because the rules
expand opportunities for LPFM applicants, permittees, and licensees to
transfer and assign licenses, relocate transmitter sites, and extend
construction deadlines. These information collection requirements were
submitted to the Office of Management and Budget (OMB) for review under
section 3507(d) of the PRA. In addition, the general public and other
Federal agencies were invited to comment on these information
collection requirements in the FNPRM. We further note that pursuant to
the Small Business Paperwork Relief Act of 2002, we previously sought
specific comment on how the Commission might ``further reduce the
information collection burden for small business concerns with fewer
than 25 employees.'' We received no comments concerning these
information collection requirements. On August 25 and 30, 2005, the
Commission obtained OMB approval for these information collection
requirements, encompassed by OMB Control Nos. 3060-0031 (Forms 314-
315), 3060-0009 (Form 316) and 3060-0920 (Form 318). This Third Report
and Order adopts portions of the above information collection
requirements, as proposed. Additional changes are necessary to Forms
314, 315, 316 and 318, and will be submitted to OMB for approval.
87. This document contains modified and new information collection
requirements. In this Third Report and Order, we require documentation
in relation to: (1) An optional 18-month extension of a construction
permit upon a showing of good cause; (2) the voluntary withdrawal of
Form 349 tech box proposals in order to come into compliance with the
cap of 10 proposals; (3) the voluntary filing of a request, on Form
318, for waiver of Sec. 73.807 of the rules for a second-adjacent
short-spacing to an LPFM station at risk of displacement by a full-
service station; and (4) the voluntary filing of waiver of the
Commission rule making LPFM stations secondary to subsequently
authorized full-service stations, where an LPFM station at risk of
displacement by a full-service station can demonstrate that it provides
at least eight hours a day of locally originated programming and that
no suitable alternate channel is available. As discussed above,
additional changes are necessary to Forms 314, 315, 316 and 318, and
will be submitted to OMB for review and approval under section 3507(d)
of the PRA. The Commission will publish a separate Federal Register
notice seeking these comments from the public. OMB, the general public,
and other Federal agencies are invited to comment on the modified and
new information collection requirements contained in this proceeding.
D. Congressional Review Act
88. The Commission will send a copy of this Third Report and Order
in a report to be sent to Congress and the Government Accountability
Office pursuant to the Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
E. Additional Information
89. For additional information on this proceeding, please contact
Peter Doyle, Audio Division, Media Bureau, at (202) 418-2700, or Holly
Saurer, Policy Division, Media Bureau, at (202) 418-7283. For PRA-
related questions, please contact Cathy Williams, at (202) 418-2918 or
via e-mail at Cathy.Williams@fcc.gov.
VI. Ordering Clauses
90. It is ordered that, pursuant to the authority contained in
sections 1, 2, 4(i), 303, 403 and 405 of the Communications Act of
1934, 47 U.S.C.
[[Page 3216]]
151, 152, 154(i), 303, 403, and 405, this Third Report and Order is
adopted.
91. It is further ordered that, pursuant to the authority contained
in Sections 1, 2, 4(i), 303, 303(a), 303(b), and 307 of the
Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 303, 303(a),
303(b), and 307, the Commission's rules are hereby amended as set forth
in Appendix B. It is our intention in adopting these rule changes that,
if any provision of the rules is held invalid by any court of competent
jurisdiction, the remaining provisions shall remain in effect to the
fullest extent permitted by law.
92. It is further ordered that the rules as revised in Appendix B
shall be effective March 17, 2008. Changes to FCC Forms 314, 315, 316
and 318 will be effective 60 days after Federal Register publication of
OMB approval of the forms. With respect to renewal applications, we
will evaluate compliance with these requirements in applications filed
in the next renewal cycle. Licensee performance during any portion of
the renewal term that predates the effective date of the rules in the
Third Report and Order will be evaluated under current rules, and
licensee performance that post-dates the effective date of the revised
rules will be judged under the new provisions.
93. It is further ordered that, pursuant to Sec. Sec. 0.201
through .204 of the Commission's rules, 47 CFR 0.201 through .204, and
section 5(c)(1) of the Communications Act of 1934, as amended, 47
U.S.C. 155(c)(1), the Chief, Media Bureau, is delegated authority to
act as described in paragraphs 40, 56, 62 and 67 herein.
94. It is further ordered that the Petition for Rulemaking filed by
the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media,
Providence Community Radio, and Nickolaus E. Leggett N3NL is hereby
dismissed.
95. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Third Report and Order and Second Further Notice of
Proposed Rulemaking, including the Initial Regulatory Flexibility
Analysis and the Final Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
96. It is further ordered that the Commission shall send a copy of
this Third Report and Order and Second Further Notice of Proposed
Rulemaking in a report to be sent to Congress and the General
Accounting Office pursuant to the Congressional Review Act, see 5
U.S.C. 801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Radio.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Rule Changes
0
For reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 73 as follows:
PART 73--RADIO BROADCAST SERVICES
0
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
0
2. Section 73.809 is amended by revising paragraphs (a) and (b) to read
as follows:
Sec. 73.809 Interference protection to full service FM stations.
(a) If a full service commercial or NCE FM facility application is
filed subsequent to the filing of an LPFM station facility application,
such full service station is protected against any condition of
interference to the direct reception of its signal caused by such LPFM
station that operates on the same channel, first-adjacent channel or
intermediate frequency (IF) channel as or to such full service station,
provided that the interference is predicted to occur and actually
occurs within:
(1) The 3.16 mV/m (70 dBu) contour of such full service station;
(2) The community of license of such full service station; or
(3) Any area of the community of license of such full service
station that is predicted to receive at least a 1 mV/m (60 dBu) signal.
Predicted interference shall be calculated in accordance with the
ratios set forth in Sec. 73.215 paragraphs (a)(1) and (a)(2).
Intermediate frequency (IF) channel interference overlap will be
determined based upon overlap of the 91 dBu F(50,50) contours of the FM
and LPFM stations. Actual interference will be considered to occur
whenever reception of a regularly used signal is impaired by the signal
radiated by the LPFM station.
(b) An LPFM station will be provided an opportunity to demonstrate
in connection with the processing of the commercial or NCE FM
application that interference as described in paragraph (a) of this
section is unlikely. If the LPFM station fails to so demonstrate, it
will be required to cease operations upon the commencement of program
tests by the commercial or NCE FM station.
* * * * *
0
3. Section 73.853 is amended by revising paragraph (b) to read as
follows:
Sec. 73.853 Licensing requirements and service.
* * * * *
(b) Only local applicants will be permitted to submit applications.
For the purposes of this paragraph, an applicant will be deemed local
if it can certify that:
(1) The applicant, its local chapter or branch is physically
headquartered or has a campus within 16.1 km (10 miles) of the proposed
site for the transmitting antenna for applicants in the top 50 urban
markets, and 32.1 km (20 miles) for applicants outside of the top 50
urban markets;
(2) It has 75% of its board members residing within 16.1 km (10
miles) of the proposed site for the transmitting antenna for applicants
in the top 50 urban markets, and 32.1 km (20 miles) for applicants
outside of the top 50 urban markets; or
(3) In the case of any applicant proposing a public safety radio
service, the applicant has jurisdiction within the service area of the
proposed LPFM station.
0
4. Section 73.855 is revised to read as follows:
Sec. 73.855 Ownership limits.
(a) No authorization for an LPFM station shall be granted to any
party if the grant of that authorization will result in any such party
holding an attributable interest in two or more LPFM stations.
(b) Not-for-profit organizations and governmental entities with a
public safety purpose may be granted multiple licenses if:
(1) One of the multiple applications is submitted as a priority
application; and
(2) The remaining non-priority applications do not face a mutually
exclusive challenge.
0
5. Section 73.865 is revised to read as follows:
Sec. 73.865 Assignment and transfer of LPFM licenses.
(a) Assignment/Transfer: No party may assign or transfer an LPFM
license if:
(1) Consideration promised or received exceeds the depreciated fair
market value of the physical equipment and facilities; and/or
(2) The transferee or assignee is incapable of satisfying all
eligibility criteria that apply to a LPFM licensee.
[[Page 3217]]
(b) A change in the name of an LPFM licensee where no change in
ownership or control is involved may be accomplished by written
notification by the licensee to the Commission.
(c) Holding Period: A license cannot be transferred or assigned for
three years from the date of issue, and the licensee must operate the
station during the three-year holding period.
(d) No party may assign or transfer an LPFM construction permit at
any time.
(e) Transfers of control involving a sudden change of more than 50
percent of an LPFM's governing board shall not be deemed a substantial
change in ownership or control, subject to the filing of an FCC Form
316.
0
6. Section 73.870 is amended by revising paragraph (a) and adding
paragraph (f) to read as follows:
Sec. 73.870 Processing of LPFM broadcast station applications.
(a) A minor change for an LP100 station authorized under this
subpart is limited to transmitter site relocations of 5.6 kilometers or
less. A minor change for an LP10 station authorized under this subpart
is limited to transmitter site relocations of 3.2 kilometers or less.
These distance limitations do not apply to amendments or applications
proposing transmitter site relocation to a common location filed by
applicants that are parties to a voluntary time-sharing agreement with
regard to their stations pursuant to Sec. 73.872 paragraphs (c) and
(e). Minor changes of LPFM stations may include:
(1) Changes in frequency to adjacent or IF frequencies or, upon a
technical showing of reduced interference, to any frequency; and
(2) Amendments to time-sharing agreements, including universal
agreements that supersede involuntary arrangements.
* * * * *
(f) New entrants seeking to apply for unused or unwanted time on a
time-sharing frequency will only be accepted during an open filing
window, specified pursuant to paragraph (b) of this section.
0
7. Section 73.871 is amended by revising paragraph (c) as follows:
Sec. 73.871 Amendment of LPFM broadcast station applications.
* * * * *
(c) Only minor amendments to new and major change applications will
be accepted after the close of the pertinent filing window. Subject to
the provisions of this section, such amendments may be filed as a
matter of right by the date specified in the FCC's Public Notice
announcing the acceptance of such applications. For the purposes of
this section, minor amendments are limited to:
(1) Filings subject to paragraph (c)(5), site relocations of 3.2
kilometers or less for LP10 stations;
(2) Filings subject to paragraph (c)(5), site relocations of 5.6
kilometers or less for LP100 stations;
(3) Changes in ownership where the original party or parties to an
application retain more than a 50 percent ownership interest in the
application as originally filed;
(4) Universal voluntary time-sharing agreements to apportion vacant
time among the licensees;
(5) Other changes in general and/or legal information; and
(6) Filings proposing transmitter site relocation to a common
location submitted by applicants that are parties to a voluntary time-
sharing agreement with regard to their stations pursuant to Sec.
73.872 paragraphs (c) and (e).
* * * * *
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8. Section 73.872 is amended by revising paragraphs (c) and (d)(1),
adding paragraph (d)(3) and revising paragraph (e) to read as follows:
Sec. 73.872 Selection procedure for mutually exclusive LPFM
applications.
* * * * *
(c) Voluntary time-sharing. If mutually exclusive applications have
the same point total, any two or more of the tied applicants may
propose to share use of the frequency by submitting, within 90 days of
the release of a public notice announcing the tie, a time-share
proposal. Such proposals shall be treated as minor amendments to the
time-share proponents' applications, and shall become part of the terms
of the station authorization. Where such proposals include all of the
tied applications, all of the tied applications will be treated as
tentative selectees; otherwise, time-share proponents' points will be
aggregated to determine the tentative selectees.
(1) Time-share proposals shall be in writing and signed by each
time-share proponent, and shall satisfy the following requirements:
(i) The proposal must specify the proposed hours of operation of
each time-share proponent;
(ii) The proposal must not include simultaneous operation of the
time-share proponents; and
(iii) Each time-share proponent must propose to operate for at
least 10 hours per week.
(2) Where a station is authorized pursuant to a time-sharing
proposal, a change of the regular schedule set forth therein will be
permitted only where a written agreement signed by each time-sharing
permittee or licensee and complying with requirements in paragraphs
(c)(1)(i) through (iii) of this section is filed with the Commission,
Attention: Audio Division, Media Bureau, prior to the date of the
change.
(3) Where a station is authorized pursuant to a voluntary time-
sharing proposal, the parties to the time-sharing agreement may
apportion among themselves any air time that, for any reason, becomes
vacant.
(4) Successive license terms granted under paragraph (d) may be
converted into voluntary time-sharing arrangements renewable pursuant
to Sec. 73.3539 by submitting a universal time-sharing proposal.
(d) Successive license terms. (1) If a tie among mutually exclusive
applications is not resolved through voluntary time-sharing in
accordance with paragraph (c) of this section, the tied applications
will be reviewed for acceptability and applicants with tied, grantable
applications will be eligible for equal, successive, non-renewable
license terms of no less than one year each for a total combined term
of eight years, in accordance with Sec. 73.873. Eligible applications
will be granted simultaneously, and the sequence of the applicants'
license terms will be determined by the sequence in which they file
applications for licenses to cover their construction permits based on
the day of filing, except that eligible applicants proposing same-site
facilities will be required, within 30 days of written notification by
the Commission staff, to submit a written settlement agreement as to
construction and license term sequence. Failure to submit such an
agreement will result in the dismissal of the applications proposing
same-site facilities and the grant of the remaining, eligible
applications.
* * * * *
(3) If successive license terms granted under this section are
converted into universal voluntary time-sharing arrangements pursuant
to paragraph (c)(4) of this section, the permit or license is renewable
pursuant to Sec. Sec. 73.801 and 73.3539.
(e) Mutually exclusive applicants may propose a settlement at any
time during the selection process after the release of a public notice
announcing the mutually exclusive groups. Settlement proposals must
include all of the applicants in a group and must comply with the
Commission's rules and policies regarding settlements, including the
requirements of Sec. Sec. 73.3525, 73.3588, and 73.3589. Settlement
proposals may include time-share agreements that comply with the
[[Page 3218]]
requirements of paragraph (c) of this section, provided that such
agreements may not be filed for the purpose of point aggregation
outside of the 90 day period set forth in paragraph (c) of this
section.
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9. Section 73.3598 is amended by revising paragraph (a) to read as
follows:
Sec. 73.3598 Period of Construction.
(a) Each original construction permit for the construction of a new
TV, AM, FM or International Broadcast; low power TV; TV translator; TV
booster; FM translator; FM booster station; or to make changes in such
existing stations, shall specify a period of three years from the date
of issuance of the original construction permit within which
construction shall be completed and application for license filed. Each
original construction permit for the construction of a new LPFM station
shall specify a period of eighteen months from the date of issuance of
the construction permit within which construction shall be completed
and application for license filed. A LPFM permittee unable to complete
construction within the time frame specified in the original
construction permit may apply for an eighteen month extension upon a
showing of good cause. The LPFM permittee must file for an extension on
or before the expiration of the construction deadline specified in the
original construction permit.
* * * * *
[FR Doc. E8-783 Filed 1-16-08; 8:45 am]
BILLING CODE 6712-01-P