Washington, D.C. 20554
‘January 14, 2013
DA 13-42
Small Entity Compliance Guide
Auction No. 83 Translator Dismissal Policy
Fifth Order on ReconsiderationFCC 12-144
MM Docket No. 99-25
MB Docket No. 07-172
RM-11338
Released: December 4, 2012
This Guide is prepared in accordance with the requirements of Section 212 of the
Small Business Regulatory Enforcement Fairness Act of 1996. It is intended to help
small entities—small businesses, small organizations (non-profits), and small
governmental jurisdictions—comply with the new rules adopted in the above-
referenced FCC rulemaking docket(s). This Guide is not intended to replace the
rules and, therefore, final authority rests solely with the rules. Although we have
attempted to cover all parts of the rules that might be especially important to small
entities, the coverage may not be exhaustive. This Guide may, perhaps, not apply in
a particular situation based upon the circumstances, and the FCC retains the
discretion to adopt approaches on a case-by-case basis that may differ from this
Guide, where appropriate. Any decisions regarding a particular small entity will be
based on the statute and regulations.
In any civil or administrative action against a small entity for a violation of rules,
the content of the Small Entity Compliance Guide may be considered as evidence of
the reasonableness or appropriateness of proposed fines, penalties or damages.
Interested parties are free to file comments regarding this Guide and the
appropriateness of its application to a particular situation; the FCC will consider
whether the recommendations or interpretations in the Guide are appropriate in
that situation. The FCC may decide to revise this Guide without public notice to
reflect changes in the FCC’s approach to implementing a rule, or to clarify or
update the text of the Guide. Direct your comments and recommendations, or calls
for further assistance, to the FCC’s Consumer Center:
TTY: 1-888-TELL-FCC (1-888-835-5322)
Fax: 1-866-418-0232
fccinfo@fcc.govObjectives of the proceeding
On March 19, 2012, the Commission adopted the Fourth Report and Order and Third Order onReconsideration (Fourth Report and Order) in the low power FM (LPFM) proceeding. The Commission
proposed to facilitate the processing of the 6,500 FM translator applications then-remaining from the 2003
Auction No. 83 filing window by imposing on applicants that filed in that window a national cap of 50
applications and a market-based1 cap of one application per applicant per market for markets identified in
Appendix A to the Fourth Report and Order (“Appendix A Markets”).2 Translator applicants with more
than 50 pending applications and/or more than one pending application in the identified Appendix A Markets
were required to comply with these limits by filing a letter requesting the dismissal of applications that
exceed the limits.
In the Fifth Order on Reconsideration, the Commission modified the applications caps in response to
several petitions for reconsideration filed against the Fourth Report and Order. Specifically, the Fifth Order
on Reconsideration revises the applications caps and allows (but does not require) applicants to pursue up to
70 applications nationally provided that: (a) no more than 50 applications are in Appendix A Markets; (b)
those applications that are not in Appendix A Markets: (i) must protect from interference at least one
potential LPFM channel at the proposed transmitter site; (ii) cannot overlap with the contour of any other
pending translator application or authorization held by that applicant; and (iii) granted translator
authorizations in non-Appendix A markets cannot be moved within the first four years of operation unless
the 60 dBu contour at the new location overlaps with the 60 dBu contour proposed in the application as of
the release date of the Fifth Order on Reconsideration.3 The translator policy is applicant-specific and does
not require applicants to determine if their applications overlap or interfere with pending applications or
authorizations held by other parties.
The Fifth Order on Reconsideration also allows (but does not require) translator applicants to
prosecute up to 3 translator applications in Appendix A Markets, rather than only 1 application, subject to the
following conditions: (a) the 60 dBu of the proposed translator station may not overlap the 60 dBu contour
of any other translator application filed by that applicant or translator authorization held by that applicant, as
of the date of the release of the Fifth Order on Reconsideration; and (b) the proposed translator station
cannot preclude approval of a future LPFM application in the studied grid4 for that market, under the
processing policy delineated in Section II.B of the Fourth Report and Order,5 or at the proposed out of grid
transmitter site.
Rules That the Commission Amended
§
The Fourth Report and Order adopted a market-specific, spectrum availability-based translator
application processing policy. The Fifth Order on Reconsideration slightly revises this policy by
increasing the number of applications that applicants can pursue both nationally and in Appendix A
Markets, subject to certain conditions.
1 The “market-based” approach outlined in Fourth Report and Order and Fifth Order on Reconsideration relies on radio
markets as defined by Arbitron, a consumer research company that collects listener data on radio audiences.
2 “Appendix A Markets” are the top 150 Arbitron markets and 6 additional markets where 4 or more translator
applications from Auction 83 are pending
3 These conditions apply to non-Appendix A Markets only if an applicant chooses to prosecute more than 50
applications nationally.
4 The Media Bureau studied all top 150 radio markets, as defined by Arbitron, and smaller markets where more than
four translator applications are pending. It centered a thirty-minute latitude by thirty-minute longitude grid over the
center-city coordinates of each studied market. Each grid consisted of 961 points – 31 points running east/west by 31
points running north/south. The Bureau analyzed each of the 100 FM channels (88.1 mHz – 107.9 mHz) at each grid
point to determine whether any channels remained available for future LPFM stations at that location. See Fourth
Report and Order, ¶ 28-29.
5 Fourth Report and Order, ¶ 28-49.
§
Specifically, the Fifth Order on Reconsideration, sets forth a processing policy in which the
Commission will impose a national application cap of 70 applications, provided (a) no more than 50
are in the Appendix A Markets, and (b) those applications that are not in Appendix A markets meet
the conditions described above. It also imposes a market-based cap of three applications per market
for Appendix A Markets, provided that the applications meet the conditions described above. It
directs the Media Bureau to issue a Public Notice asking applicants affected by the caps to identify
applications for continued processing, consistent with these limits and to submit showings, on or
before the deadline identified in the Public Notice, that demonstrate that the applications are in
compliance with the conditions set forth in the order, as described above. After applicants identify
those applications they wish to pursue and submit the required showings, or after the Bureau applies
default application selection procedures6 in cases where the applicant fails to submit a timely
selection/dismissal letter or files a defective letter, the Bureau will process the remaining
applications to determine whether they can be granted
§
Applicants with proposals remaining in Appendix A Markets after the Bureau dismisses applications
for which the applicant does not seek further processing, or after the Bureau applies default dismissal
procedures, will also be given one opportunity to modify their proposals to eliminate all preclusive
impacts on certain protected LPFM channel/point combinations. An application will be considered
to have a preclusive impact if authorization of the requested translator would prevent an LPFM
station from operating on a given channel in a given market.7 Applications that conflict with
protected channel/point combinations (assessments of LPFM licensing opportunities at a given
location at each individual FM channel) and that are not amended to eliminate all such conflicts will
be dismissed. Applicants with proposals remaining in Appendix A Markets after the Bureau
dismisses applications for which the applicant does not seek further processing, or after the Bureau
applies default dismissal procedures, will also be given one opportunity to modify their proposals to
eliminate all preclusive impacts on certain protected LPFM channel/point combinations.
Impact on Small Business
The changes in the Fifth Order on Reconsideration benefit small entities by enabling them toprosecute more FM translator applications, while preserving future LPFM filing opportunities for small
entities. The Fifth Order on Reconsideration also benefits small entities because it protects the integrity of
the broadcast application licensing system by dismissing applications that were likely filed for speculative
reasons and by preventing trafficking of unbuilt construction permits. The Fifth Order on Reconsideration
requires any applicant seeking to prosecute more than one FM translator application in a market and/or more
than 50 applications nationally to show that the applications satisfy conditions identified in the order,8 but
these conditions are intended to preserve LPFM filing opportunities and improve diversity and competition
in local radio markets. The order rejects additional suggested conditions meant to deter the trafficking of
construction permits (such as conditions on those permits) that would not have offered such benefits.
Specifically, the Commission rejected those suggested conditions because they could be easily circumvented
6 In the event that an applicant does not timely comply with these dismissal procedures or submits a deficient showing,
the staff will (a) first apply the national cap, retaining on file the first 70 filed applications and dismissing (1) those
Appendix A applications within that group of 70 applications that were filed after the first 50 Appendix A applications,
and (2) those applications outside the Appendix A markets for which an adequate showing pursuant to paragraph 41 has
not been submitted, and (b) then dismiss all but the first filed application by that applicant in each of the markets
identified in Appendix A.
7 The spectrum availability analysis program and data files used by the Commission to identify within-the-grid
protected channel/point combinations are available at
http://www.fcc.gov/Bureaus/MB/Databases/source_code/lpfm/lpfm6.20121206.zip. Protected channel/point
combinations consist of all those combinations identified by this program and the CDBS records used to generate the
final versions of Appendices A and B shortly prior the adoption of the Fourth Report and Order.
8 Fifth Order on Reconsideration and Sixth Report and Order, FCC 12-144, ¶¶ 58-59 (2012).
and would have limited competition in spectrum limited markets without providing a countervailing benefit
either to translator applicants or LPFM applicants. In addition, the suggested conditions would have been
unduly resource-intensive because they would have required the staff to ensure compliance through lengthy
investigations and could delay the processing of translator applications. Adoption of the application caps, as
modified in the Fifth Order on Reconsideration, benefits small entities because it will allow the Commission
to quickly act on applications by small entities that have been pending for more than eight years and to open
an LPFM application window for small entities in the near future.
Steps a Small Entity Must Take to Comply with the Translator Dismissal Policy
Auction No. 83 translator applicants must comply with the dismissal procedures in the followingmanner:
·
All parties affected by the national or market caps must identify their pending applications for which
they seek further Commission processing, and demonstrate that they comply with the conditions set
forth in the Fifth Order on Reconsideration. If an applicant fails to submit a timely letter identifying
those pending applications for which the party seeks further processing, or if a party submits a timely
letter that contains defective showings or that exceeds the caps, the Bureau will apply default
dismissal procedures that may result in dismissal of one or more applications that a party identified
for further processing.
·
Parties with applications in the Appendix A Markets subsequently must file amendments either
demonstrating that their applications will not preclude any LPFM channel/point combination
identified in the grid studies or eliminating any preclusive impacts on protected LPFM channel/point
combinations. Additionally, a translator applicant in a top 50 Appendix A Market proposing
facilities outside the studied 31x31 grid also will need to demonstrate either that no LPFM station
could be licensed at the proposed transmitter site or, if an LPFM station could be licensed at the site,
that an additional channel remains available for a future LPFM station at the same site (“Top 50
Market Preclusion Showing”).9 This will ensure that, assuming grant of the pending translator
applications, there will be opportunities for licensing LPFM stations outside the most densely
populated areas of the markets. Applications that conflict with protected channel/point combinations
or fail to make such a Top 50 Market Preclusion Showing and that are not amended to come into
compliance with these requirements will be dismissed.
Recordkeeping and Other Compliance Requirements
In the Fifth Order on Reconsideration, the Commission requires Auction No. 83 applicants to
identify which applications they wish to preserve to come into compliance with the national and market-
based caps, and to submit showings demonstrating that their selected applications comply with the conditions
set forth in the order, in a timely letter or email.
Weblinks
·The Fourth Report and Order and Third Order on Reconsideration; FCC 12-29, adopted and
released March 19, 2012.
http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0320/FCC-12-29A1.pdf
·
The Fifth Order on Reconsideration and Sixth Report and Order; FCC 12-144, adopted November
30, 2012, and released December 4, 2012.
http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-144A1.pdf
9 Fourth Report and Order, FCC 12-29, ¶ 49.
Edoc Internal Id:
318387
Released On:
Sun, 2013-01-13 19:00
Published On:
January 14 2013
Edoc ID:
DA-13-42
