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LPFM Fifth Order on Reconsideration and Sixth Report and Order

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Released: December 4, 2012

Federal Communications Commission

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Before the

Federal Communications Commission

WASHINGTON, D.C. 20554

In the Matter of
)
)

Creation of a Low Power Radio Service
)
MM Docket No. 99-25
)
Amendment of Service and Eligibility Rules for
)
MB Docket No. 07-172, RM 11338
FM Broadcast Translator Stations
)

FIFTH ORDER ON RECONSIDERATION AND SIXTH REPORT AND ORDER

Adopted: November 30, 2012

Released: December 4, 2012

By the Commission: Chairman Genachowski and Commissioners McDowell, Clyburn, Rosenworcel and
Pai issuing separate statements.

TABLE OF CONTENTS

Heading
Paragraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. FIFTH ORDER ON RECONSIDERATION…………………………………………………..............2
A. Background………………………………………………………………………………………..2
1. Rationale for the Translator Application Caps………………………………………………...4
2. Petitions for Reconsideration………………………………………………………………...14
3. Responsive Pleadings………………………………………………………………………...22
B. Discussion………………………………………………………………………………………..25
1. Market Definitions…………………………………………………………………………...26
2. Notice of Appendix A Per-Market Cap Proposal…………………………………………….31
3. The National Cap of 50 Applications………………………………………………………...34
4. The Need for a Per-Market Cap……………………………………………………………...42
5. Revision of the Per-Market Cap……………………………………………………………...46
III. SIXTH REPORT AND ORDER.......................................................................................................... 69
A. Waiver of Second-Adjacent Channel Minimum Distance Separation Requirements.................... 72
B. Third-Adjacent Channel Interference Complaints and Remediation............................................. 86
1. LPFM Interference Protection and Remediation Requirements.............................................. 87
2. Regime Applicable to Section 7(1) Stations............................................................................ 96
3. Regime Applicable to Other LPFM Stations......................................................................... 101
4. Additional Interference Protection and Remediation Obligations......................................... 121
C. Protection of Translator Input Signals ......................................................................................... 124
D. Other Rule Changes ..................................................................................................................... 133
1. Eligibility and Ownership...................................................................................................... 134
a. Requirement That Applicants Be Local.......................................................................... 134
b. Cross-Ownership of LPFM and FM Translator Stations ................................................ 137
c. Ownership Issues Affecting Tribal Nations.................................................................... 144
d. Ownership of Student-run Stations. ................................................................................ 158
2. Selection Among Mutually Exclusive Applicants................................................................. 161
a. Point System Structure, and Elimination of Proposed Operating Hours Criterion......... 163
b. Established Community Presence................................................................................... 168

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c. Local Program Origination ............................................................................................. 175
d. Main Studio..................................................................................................................... 185
e. Tribal Nations ................................................................................................................. 188
f.
New Entrants................................................................................................................... 191
g. Tiebreakers - Voluntary and Involuntary Time Sharing ................................................. 192
3. Operating Schedule ............................................................................................................... 199
4. Classes of Service.................................................................................................................. 201
5. Removal of I.F. Channel Minimum Distance Separation Requirements .............................. 207
E. Window Filing Process ................................................................................................................ 211
III. PROCEDURAL MATTERS.............................................................................................................. 213
IV. ORDERING CLAUSES..................................................................................................................... 219
APPENDIX A -
Supplemental Final Regulatory Flexibility Analysis
APPENDIX B -
Final Regulatory Flexibility Analysis
APPENDIX C -
Final Rules

I.

INTRODUCTION

1.
In this Fifth Order on Reconsideration and Sixth Report and Order, we take various
actions to implement the Local Community Radio Act of 2010 (“LCRA”),1 safeguard the integrity of our
FM translator licensing procedures and modify licensing and service rules for the low power FM
(“LPFM”) service. In the Fifth Order on Reconsideration we affirm with slight modifications and
clarifications the comprehensive plan for licensing FM translators and LPFM stations adopted in the
Fourth Report and Order.2 In response to petitions for reconsideration, we modify the national cap to
allow each applicant to pursue up to 70 applications, so long as no more than 50 of them are in the
Appendix A markets. We also increase the per-market cap for radio markets identified in Appendix A of
the Fourth Report and Order to allow up to three applications for each market, subject to certain
conditions. We also clarify the application of the per-market cap in those Appendix A markets with
“embedded” markets. In the Sixth Report and Order we complete the implementation of the LCRA and
make a number of additional changes to promote the localism and diversity goals of the LPFM service
and a more sustainable community radio service. When effective, these orders will permit the
Commission to move forward with the long-delayed processing of over 6,000 FM translator applications
and establish a timeline for the opening of an LPFM window.

II.

FIFTH ORDER ON RECONSIDERATION

A.

Background

2.
On July 12, 2011, the Commission released a Third Further Notice of Proposed Rule
Making3 in this proceeding, seeking comment on the impact of the LCRA on the procedures previously
adopted to process the approximately 6,000 applications that remain pending from the 2003 FM non-
reserved band translator window. There, the Commission tentatively concluded that those licensing
procedures, which would limit each applicant to ten pending applications, would be inconsistent with the


1 Pub. L. No. 111-371, 124 Stat. 4072 (2011).
2 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3364 (2012)
(“Fourth Report and Order”).
3 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Third Further Notice of Proposed Rulemaking, 26 FCC Rcd 9986 (2011) (“Third Further
Notice
”).
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LCRA’s goals.4 We proposed to modify those procedures and instead adopt a market-specific translator
application dismissal process, dismissing pending translator applications in identified spectrum-limited
markets in order to preserve adequate LPFM licensing opportunities.5 At the same time, we tentatively
concluded that these new procedures would not be sufficient to address the potential for licensing abuses
with respect to the thousands of pending translator applications.6 Accordingly, we asked for comments
on appropriate processing policies for those applications, including a potential national cap of 50-75
applications and a potential cap of one or a few applications in any particular market.7
3.
The Commission released the Fourth Report and Order on March 19, 2012. The
Commission affirmed its decision to reject the prior national cap of 10 translator applications per
applicant.8 It adopted a modified market-specific translator licensing scheme which incorporated a
number of commenter proposals. To minimize the potential for speculative licensing conduct, the
Commission established a national cap of 50 applications and a local cap of one application per applicant
per market for the 156 Arbitron Metro markets identified in Appendix A of the Fourth Report and
Order
.9
1.

Rationale for the Translator Application Caps

4.
When the Commission opened the March 2003 filing window for Auction 83 FM
translator applications, there were 3,818 licensed FM translators.10 13,377 translator applications were
filed in that window – approximately three times as many applications as the number of FM translators
licensed since 1970. From that group, 3,476 new authorizations were issued before the Commission’s
freeze on further processing of applications from that window took effect. Of those 3,476 authorizations,
926 (more than 25 percent) were never constructed and 1,358 (almost 40 percent) were assigned to a party
other than the applicant. Although 97 percent of all filers filed fewer than 50 applications, the remaining
three percent accounted for a total of 8,163 applications, representing 61 percent of the total. The two
largest filers, commonly-owned Radio Assist Ministries, Inc. and Edgewater Broadcasting, Inc.
(collectively, “RAM”), filed 4,219 applications and received 1,046 grants before the processing freeze
took effect.11 When we adopted the cap of ten applications in 2007, we noted that RAM had sought to
assign more than 50 percent of the construction permits it had received and consummated more than 400
assignments of such permits.12 We based the cap of ten applications on the need to preserve spectrum for
future LPFM availability and the need to protect the integrity of our translator licensing process.13


4 The ten-application cap was adopted in Creation of a Low Power Radio Service, Third Report and Order and
Second Further Notice of Proposed Rulemaking, 22 FCC Rcd 21912 (2007) (“Third Report and Order”).
5 Third Further Notice, 26 FCC Rcd at 9996-98 ¶ 25-30.
6 Id. at 9999 ¶ 33.
7 Id. at 9999 ¶ 34.
8 Fourth Report and Order, 27 FCC Rcd at 3374 ¶ 12.
9 Id. at 3390-92 ¶¶ 54-61.
10 Third Report and Order, 22 FCC Rcd at 21933 ¶ 51. We first authorized FM translators in 1970. In the Third
Report and Order
, we noted that the historically modest demand for FM translators showed more growth in the
1990’s. In September 1990, there were 1,847 licensed translators, but that number grew to 2,881 by December
1997. Id.
11 Third Report and Order, 22 FCC Rcd at 21934 ¶ 54.
12 Id. at 21934 ¶ 55.
13 Id. at 21934-35 ¶ 55-56.
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5.
In the Third Further Notice, when we proposed to replace the cap of ten translator
applications with a market-specific processing system, we tentatively concluded that such a processing
system would not be sufficient to address the potential abuses in translator licensing and trafficking. We
noted that the vast majority of applicants hold only a few applications, but the top 20 applicants
collectively account for more than half of the pending applications. Similar imbalances exist in particular
markets and regions. For instance, one applicant holds 24 of the 24 translator applications proposing
operation within 20 kilometers of Houston’s reference coordinates and 73 applications in Texas. Two
applicants hold 66 of the 74 applications proposing service to the New York City radio market.14
6.
We also described a number of factors that create an environment which promotes the
acquisition of translator authorizations solely for the purpose of selling them. First, we expect that a
substantial portion of the remaining translator grants will be made pursuant to our settlement (i.e., non-
auction) procedures. Second, translator construction permits may be sold without any limitation on price.
Third, permittees are not required to construct or operate newly authorized facilities before they can sell
their authorizations. Collectively, these factors created an incentive for speculative filings and trafficking
in translator authorizations.15 Such behavior damages the integrity of our licensing process, which
assigns valuable spectrum rights to parties based on a system that gives priority to applications filed in
one filing window over subsequent applications based on the assumption that the applications filed in the
earlier window are filed in good faith by applicants that intend to construct and operate their proposed
stations to serve the public.16 The history of the Auction 83 translator applications strongly supports our
view that speculative applications delay the processing of bona fide applications, thereby impeding efforts
to bring new service to the public.17 These speculative translator applications have also delayed the
introduction of new LPFM service pursuant to our mandate under the LCRA to provide licensing
opportunities for both LPFM and translator stations.18
7.
The extraordinarily high number of applications filed in the Auction 83 window,
particularly by certain applicants (both nationally and in certain markets), and the significant number of
authorized stations that were either assigned to another party or never constructed are strong indicia of
applications filed for speculative purposes (either for potential sale or to game the auction system) rather
than a good faith intent to construct and operate the proposed stations.19 Based on these concerns, we
sought comment on whether a national cap of 50 or 75 applications would force filers with a large number
of applications to concentrate on those proposals and markets where they have bona fide service plans.
We also asked whether applicants should be limited to one or a few applications in a particular market,


14 Third Further Notice, 26 FCC Rcd at 9999 ¶ 33 (the numbers above are updated from those that appear in the
Third Further Notice).
15 Id. at 9999 ¶ 34.
16 See Fourth Report and Order, 27 FCC Rcd at 3391 n. 168; Dutchess Communications Corp., Decision, 101 FCC
2d 243, 254 ¶ 16 (Rev. Bd. 1985) (“The Commission has carefully laid out an application process intended to assure
fairness to all interested prospectants and expedition on behalf of all applicants and the public. See 47 CFR
§73.3511 et seq. The first principle of that process is that those filing an application for a broadcast construction
permit be ready, willing and able.”).
17 See FM Application Processing, Report and Order, 58 RR 2d 776, 779 ¶ 10 (1985) (blocking applications and
speculative applications encumber and delay the processing of bona fide applications).
18 See Fourth Report and Order, 27 FCC Rcd at 3367.
19 Under the auction system, auctions only apply where there are mutually exclusive (“MX”) applications. Filing
multiple applications in a market, either by varying the proposed frequency or varying the proposed transmitter site,
increases the odds of having a singleton application that will be granted without going to auction.
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noting that such a restriction “could limit substantially the opportunity to warehouse and traffic in
translator authorizations while promoting diversity goals.”20
8.
The Fourth Report and Order concluded that both a national cap and a per-market cap
for the 156 Appendix A markets were appropriate to limit speculative licensing conduct and necessary to
bolster the integrity of the remaining Auction 83 licensing. We stated that non-feeable application
procedures, flexible auction rules, and flexible translator settlement and transfer/assignment rules “clearly
have facilitated and encouraged the filing of speculative proposals. . . . While we recognize that high-
volume filers did not violate our rules (“Rules”), these types of speculative filings are fundamentally at
odds with the core Commission broadcast licensing policies and contrary to the public interest.”21
9.
The Fourth Report and Order rejected other potential anti-trafficking proposals offered
by commenters, stating that application caps were the most administratively feasible solution for
processing this large group of long-pending applications. We stated that we considered caps to be the
only approach that would not only limit trafficking in translator authorizations but also fulfill our mandate
under the LCRA to provide the fastest path to additional translator and LPFM licensing in areas where the
need for additional service is greatest.22
10.
We adopted a national cap of 50 additional translators per applicant.23 We found that this
cap, of itself, would affect no more than 20 of the approximately 646 total applicants in this group, and
that this was a reasonable number of stations to construct and operate as proposed and would place
restraints on trafficking of permits on the open market.24 We also noted that there was some agreement
on such a limit even among translator advocates.25
11.
We also adopted a per-market cap of one application per market in the radio markets
listed in Appendix A to the Fourth Report and Order, consisting of the top 150 Arbitron Metro markets
(per the BIA Fall 2011 database, as defined in Appendix A) plus six additional markets where more than
four translator applications are pending.26 We noted that some applicants had filed dozens of applications
for a particular market, when it was inconceivable that a single entity would construct and operate so
many stations there. We concluded that such applications were clearly filed for speculative reasons or to
skew our auction procedures. Given the volume of pending applications, we found that it was
administratively infeasible to conduct a case-by-case assessment of these applications to determine
whether they could satisfy our rule limiting the grant of additional translator authorizations to a party that
can make a “showing of technical need for such additional stations” (the “Technical Need Rule”).27
Accordingly, we adopted a cap of one translator application per market in the Arbitron Metro markets
listed in Appendix A to the Fourth Report and Order. For applications outside those markets, where only


20 Third Further Notice, 26 FCC Rcd at 9999 ¶ 34.
21 Fourth Report and Order, 27 FCC Rcd at 3390-91 ¶ 56 (footnote omitted).
22 Id. at 3391 ¶ 57.
23 As described above, many applicants received translator grants before we adopted a processing freeze. Thus, if an
applicant had received 500 grants already, the cap would result in a potential total of 550 grants.
24 See Fourth Report and Order, 27 FCC Rcd at 3391 ¶ 58. As indicated in the Third Further Notice, the cap of 50
forces high-volume filers to concentrate on the markets where they have the strongest aspirations to provide new
service. Third Further Notice, 26 FCC Rcd at 9999 ¶ 34.
25 Fourth Report and Order, 27 FCC Rcd at 3391 ¶ 58.
26 Id. at 3385 ¶ 45, 3392 ¶ 59. In referring to the names and ranks of the Arbitron markets, we will refer to them as
identified in Appendix A, which is based on the Fall 2011 Arbitron Metro markets.
27 47 C.F.R. § 74.1232(b); see Fourth Report and Order, 27 FCC Rcd at 3392 ¶ 59.
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a small number of applications will require analysis, we decided to apply the Technical Need Rule on a
case-by-case basis.28
12.
Appendix A to the Fourth Report and Order lists several “embedded” radio markets that
are part of a larger market also listed in Appendix A: (1) Nassau-Suffolk (Long Island), NY (Arbitron
Metro market #18, embedded in the New York Arbitron Metro market); (2) Hudson Valley, NY (Arbitron
Metro market #39, partially embedded in the New York Arbitron Metro market); (3) Middlesex-
Somerset-Union, NJ (Arbitron Metro market #41, embedded in the New York Arbitron Metro market);
(4) Monmouth-Ocean, NJ (Arbitron Metro market #53, partially embedded in the New York Arbitron
Metro market); (5) Morristown, NJ (Arbitron Metro market # 117, embedded in the New York Arbitron
Metro market); (6) Stamford-Norwalk, CT (Arbitron Metro market #148, embedded in the New York
Arbitron Metro market); (7) San Jose, CA (Arbitron Metro market #37, embedded in the San Francisco
Arbitron Metro market); (8) Santa Rosa, CA (Arbitron Metro market # 121, embedded in the San
Francisco Arbitron Metro market); and (9) Fredericksburg, VA (Arbitron Metro market #147, partially
embedded in the Washington, DC Arbitron Metro market). The Fourth Report and Order stated that the
one-per-market cap would apply to all markets listed in Appendix A but did not explain how this cap
would apply to the listed embedded markets.
13.
In addition to those embedded markets, there are three more embedded markets that are
not listed in Appendix A due to their smaller size: (1) New Bedford-Fall River, MA (Arbitron Metro
market #180, embedded in the Providence-Warwick-Pawtucket, RI Arbitron Metro market); (2)
Frederick, MD (Arbitron Metro market #195, embedded in the Washington, DC Arbitron Metro market);
and (3) Manchester, NH (Arbitron Metro market #196, partially embedded in the Portsmouth-Dover-
Rochester, NH Arbitron Metro market). The Fourth Report and Order did not explain whether
applications filed in those embedded markets would be subject to the per-market cap imposed on the
larger markets within which they are embedded.
2.

Petitions for Reconsideration

14.
Five petitions for reconsideration were filed following Federal Register publication of the
Fourth Report and Order.29 Educational Media Foundation (“EMF”) filed a Petition for Reconsideration
(“EMF Petition”) seeking reconsideration as to both the national cap of 50 applications and the per-
market cap of one application. The remaining petitions only addressed the latter cap.
15.
EMF currently has 292 pending translator applications from the Auction 83 window.
EMF received 259 translator grants from that window before we froze the processing of such
applications.
16.
EMF first contends that the Commission must clarify the definition of the term “radio
market” as used in the Fourth Report and Order. EMF argues that the term could mean census-
designated urban areas, metropolitan statistical areas, Arbitron Metro markets, or some definition
connected to the “grids” used in determining whether markets are “spectrum limited” or not.30
Additionally, EMF argues that both the national cap and the per-market cap are arbitrary and capricious.
EMF argues that the Commission did not adequately explain the “abusive” licensing activity relating to
Auction 83 filings and did not adequately explain why other “more direct” measures to combat
speculation are not being used.31 EMF also argues that the Commission did not adequately explain how
the caps square with the Commission’s own conclusion that the LCRA requires it to make available


28 Fourth Report and Order, 27 FCC Rcd at 3392 ¶ 59.
29 77 Fed. Reg. 21002 (April 9, 2012).
30 EMF Petition at 6.
31 Id. at 8.
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licensing opportunities for both translators and LPFM stations “in as many local communities as
possible.”32
17.
Hope Christian Church of Marlton, Inc. (“Hope”), Bridgelight, LLC (“Bridgelight”) and
Calvary Chapel of the Finger Lakes, Inc. (“CCFL”) (collectively, the “Joint Petitioners”) filed a joint
Petition for Partial Reconsideration (“Joint Petition”) seeking reconsideration to revise the one-per-market
cap to include a waiver process. Hope is the licensee of WVBV(FM), Medford Lakes, NJ (Philadelphia,
PA Arbitron Metro market); WWFP(FM), Brigantine, NJ (Atlantic City-Cape May, NJ Arbitron Metro
market); and WZBL(FM), Barnegat Light, NJ (Monmouth-Ocean, NJ embedded market). Hope has 46
pending translator applications from the Auction 83 window, of which 45 are in Appendix A markets and
one is outside the Appendix A markets.33 Hope received 21 translator grants before the processing freeze,
primarily in the Philadelphia and Baltimore Arbitron Metro markets. Hope constructed all of those
proposed stations. Bridgelight is the licensee of WRDR(FM), Freehold Township, NJ (Monmouth-
Ocean, NJ embedded market); and WJUX(FM), Monticello, NY (outside the Appendix A markets).
Bridgelight has 16 pending applications from the Auction 83 window.34 Bridgelight received five
translator grants before the processing freeze (primarily in the New York Arbitron Metro market), but
assigned all of them to other parties. CCFL is the licensee of WZXV(FM), Palmyra, NY (Rochester, NY
Arbitron Metro market). CCFL has 16 pending translator applications from the Auction 83 window, of
which eight are in Appendix A markets (five in the Buffalo, NY Arbitron Metro market and three in the
Rochester, NY Arbitron Metro market). CCFL received 14 translator grants before the processing freeze
(primarily in the Buffalo and Rochester Arbitron Metro markets), but assigned five of those to other
parties and cancelled another one.
18.
The Joint Petition maintains that the one-per-market cap unfairly harms local and
regional applicants that have filed applications in a limited number of markets for the purpose of reaching
distant communities in geographically large markets. The Joint Petition argues that the one-per-market
cap should be supplemented with a waiver process that allows for waivers (with no limit on the number of
authorizations in a market) under three conditions: (1) the 60 dBu contour of the translator application
cannot overlap the 60 dBu contour of any commonly-controlled application; (2) the application would not
preclude a future LPFM application in the grid for the Appendix A market or at the proposed transmitter
site; and (3) the applicant agrees to accept a condition on the construction permit that disallows sale of the
authorization for a period of four years after the station commences operation.35
19.
Conner Media, Inc. (together with the commonly-controlled Conner Media Corporation,
“Conner”) filed a Petition for Partial Reconsideration (“Conner Petition”) of the Fourth Report and
Order
. Conner is the licensee of WAVQ(AM), Jacksonville, NC (Greenville-New Bern-Jacksonville, NC
Arbitron Metro market). Conner states that it filed translator applications in five different locations to
serve the Greenville-New Bern-Jacksonville, NC Arbitron Metro market, which comprises ten diverse
counties. Conner expresses interest in assigning additional permits from its pending applications to other


32 Id. at 7.
33 Hope has the following applications affected by the one-per-market cap: (a) 24 applications in the Philadelphia
Arbitron Metro market; (b) two applications in the Monmouth-Ocean, NJ embedded market; (c) five applications in
the Wilmington, DE Arbitron Metro market; (d) three applications in the Harrisburg-Lebanon-Carlisle, PA Arbitron
Metro market; (e) three applications in the York, PA Arbitron Metro market; and (f) four applications in the Atlantic
City-Cape May, NJ Arbitron Metro market.
34 Bridgelight has the following applications affected by the one-per-market cap: (a) six applications in the New
York urban core market; (b) six applications in the Nassau-Suffolk, NY embedded market; and (c) four applications
in the Middlesex-Somerset-Union, NJ embedded market.
35 Joint Petition at 5-8.
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AM broadcasters who would benefit from the nighttime service available on a translator.36 Conner argues
that any local translator cap should be per-community, not per-market.37
20.
Western North Carolina Public Radio, Inc. (“WNC”) is the licensee of noncommercial
educational (“NCE”) stations WCQS(FM), Asheville, NC; WFSQ(FM), Franklin, NC; and WYQS(FM),
Mars Hill, NC (all in the Asheville, NC Arbitron Metro market). WNC filed a Petition for
Reconsideration (“WNC Petition”) arguing that its Arbitron Metro market, Asheville, NC, should not be
included in Appendix A or, alternatively, that the community of Black Mountain, NC, should not be
considered part of that market because it is separated by a mountain range from Asheville and therefore
requires its own translator service. WNC notes that Asheville is the 159th Arbitron Metro market, but was
included in Appendix A because more than four translator applications are pending in that market.38
21.
Kyle Magrill (“Magrill”) filed a Petition for Reconsideration (“Magrill Petition”).
Magrill is a translator applicant under the corporate name of CircuitWerkes, Inc. and the d/b/a name of
CircuitWerkes. Magrill has seven pending translator applications from the Auction 83 window in four
Appendix A markets in Florida. Magrill received three translator grants before the processing freeze took
effect. Magrill argues that the Commission did not propose per-market caps in the Third Further Notice,
but instead called for processing all translator applications in non-spectrum limited markets.39 Magrill
argues that the number of translator sales has not been so high as to present a problem.40 Magrill notes
that many markets are geographically and ethnically diverse and also notes that HD channels have
increased the need for multiple translators in certain locations.41 Magrill argues that the per-market cap
particularly hurts local service providers who did not exceed the national cap. Magrill argues that the cap
should be revisited and at least eased in markets that are not spectrum limited.42
3.

Responsive Pleadings

22.
Prometheus Radio Project (“Prometheus”) filed an Opposition (“Prometheus
Opposition”) to the petitions for reconsideration. Prometheus argues that the Commission properly
defined the “market” for the one-per-market translator caps as the Arbitron Metro market.43 Prometheus
rejects Magrill’s claim about lack of notice, noting that the Commission specifically asked for comments
on whether translator applicants should be limited to one or a few applications in any particular market
and that this material was published in the Federal Register.44 Prometheus then argues that the caps will
prevent speculation and preserve radio market diversity. Prometheus opposes any waiver process that
would delay the LPFM application window.45
23.
REC Networks (“REC”) partially opposes the petitions for reconsideration.46
REC
supports the national cap of 50 applications, but believes the per-market cap may be overly restrictive.


36 Conner Petition at 2-3.
37 Id. at 4.
38 WNC Petition at 2-3.
39 Magrill Petition at 1.
40 Id. at 2.
41 Id.
42 Id. at 3.
43 Prometheus Opposition at 1-3.
44 Id. at 3-5.
45 Id. at 5-11. Prometheus argues that the Joint Petition’s proposed waiver standard is overly broad.
46 See REC’s “Partial Opposition to Petitions for Reconsideration” (“REC Partial Opposition”).
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REC argues for adoption of a waiver standard that is more stringent than the one proposed in the Joint
Petition. REC suggests the following additional criteria: (1) the applicant must accept a condition on its
construction permit that for a four-year period after commencing operations, the translator must be
commonly owned with the primary station and must rebroadcast the primary analog output of that station;
(2) the 60 dBu contour of the translator application must not overlap (i) a 30 kilometer radius around the
center of markets 1-20, (ii) a 20 kilometer radius around the center of spectrum limited markets 21-50, or
(iii) a 10 kilometer radius around the center of spectrum limited markets 51-100; and (3) applications
grantable under this waiver must also comply with the national cap of 50 applications.47
24.
In reply comments, Conner, the Joint Petitioners and Magrill reiterate their prior
positions.48 Four Rivers Community Broadcasting Corporation filed a reply arguing for a waiver standard
similar to the standard suggested by the Joint Petition.49 One Ministries, Inc. and Life On The Way
Communications, Inc. filed reply comments arguing for separation of embedded markets from the core
market, particularly in the case of San Francisco, San Jose and Santa Rosa.50

B.

Discussion

25.
For the reasons explained below, we will grant the petitions for reconsideration in part
and clarify the treatment of translator applications in embedded markets. We will modify the national cap
to allow each applicant to pursue up to 70 applications, provided that no more than 50 of them are in the
Appendix A markets. We will also modify the per-market cap from one translator application per market
to three, subject to two conditions: (1) to avoid dismissal under the cap procedures, the 60 dBu contour of
a translator application may not overlap the 60 dBu contour of another translator application filed by that
party or translator authorization held by that party as of the release date of this decision; and (2) the
translator application may not preclude grant of a future LPFM application in the grid for that market or at
the proposed out of grid transmitter site, in accordance with the processing policy delineated in the Fourth
Report and Order
. In all other respects, we deny the petitions.
1.

Market Definitions

26.
The Fourth Report and Order adopted “both a national cap and a market-based cap for
the markets identified in Appendix A.”51 Appendix A contained a spreadsheet with eight top-level
columns.52 Appendix A also contained a paragraph entitled “Detailed Column Information” for which the
following information appeared in bold for the spreadsheet’s first three top-level columns:

Arb#/Rank – Arbitron market ranking
CF#/Rank – Common Frequency Arbitron market ranking

53


47 Id. at 2-9.
48
See Joint Petitioners Reply; Conner Reply; Magrill Reply; Magrill Partial Support for Petitions for
Reconsideration (“Magrill Partial Support”). In the latter pleading, Magrill submits an analysis of changes in FRN
numbers to argue that there are more sales of AM and commercial FM stations than translators.
49 See Four Rivers Community Broadcasting Corp. (“Four Rivers”) Reply. This pleading argues that the suggested
REC waiver standard, with its exclusion of translator applications near the core of the top 100 markets, would
unfairly constrain translators with no countervailing benefit. As noted below, we will treat Four Rivers’ pleading as
a late-filed petition for reconsideration and dismiss it, except to the extent it addresses matters raised in oppositions
to the petitions for reconsideration. See note 102 infra.
50 See One Ministries, Inc. Reply; Life On The Way Communications, Inc. Reply.
51 Fourth Report and Order, 27 FCC Rcd at 3390 ¶ 54.
52 Id. at 3400-02.
53 We provided a separate column for the Arbitron Metro market ranking identified in the study prepared by
Common Frequency, Inc., because that study was compiled in 2010, whereas the prior column showed Arbitron
(continued….)
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Fall 2011 Arbitron Rankings – Arbitron market name

54
27.
Appendix A made it clear that we were referring to Arbitron Metro markets rather than
non-Arbitron data such as census data. Although we did not describe the markets as Arbitron Metro
markets, the only alternative type of Arbitron radio market is an Arbitron Total Survey Area. Appendix
A could not be interpreted to mean Arbitron Total Survey Area, however, because there is no Arbitron
Total Survey Area for many of the markets listed in Appendix A, particularly the largest radio markets.
Accordingly, contrary to EMF’s claim, we do not believe there could reasonably have been any confusion
over the fact that Appendix A refers to Arbitron Metro markets. In any event, we clarify here that the
markets listed in Appendix A are Arbitron Metro markets.
28.
EMF also argues that the Fourth Report and Order did not spell out how an application
would be deemed to be within an Appendix A market.55 We disagree. Both the Third Further Notice and
the Fourth Report and Order consistently referred to the proposed transmitter site as the determining
factor for whether an application would be considered to be within a particular market. In fact, the Third
Further Notice
adopted a processing freeze on “any translator modification application that proposes a
transmitter site for the first time within any [spectrum-limited] market,” while allowing any translator
modification application “which proposes to move its transmitter site from one location to another within
the same spectrum-limited market.”56 Our detailed market-specific translator processing policy adopted
in the Fourth Report and Order specifically refers to the proposed transmitter site as the determining
factor,57 and the translator cap discussion in the Fourth Report and Order likewise refers to proposed
transmitter locations.58 In any event, we clarify here that a translator application is considered within an
Arbitron Metro market for purposes of the per-market translator caps if it specifies a transmitter site
within that Arbitron Metro market.
29.
On the other hand, we agree that we should clarify the treatment of “embedded” markets.
An embedded market is a unique marketing area for the buying and selling of radio air time. It is
contained, either in whole or in part, within the boundaries of a larger “parent” market. Most, but not all,
embedded markets are among the 156 radio markets listed in Appendix A.59
30.
Our intent was, and is, to treat each embedded market listed in Appendix A as a separate
radio market for purposes of the per-market cap. For example, the San Francisco market (Arbitron Metro
market #4) includes the San Jose (Arbitron Metro market #37) and Santa Rosa (Arbitron Metro market
#122) embedded markets. Accordingly, the per-market cap would apply to each of three markets: (1)
the core San Francisco market (consisting of Alameda, Contra Costa, Marin, Napa, San Francisco, San
Mateo and Solano Counties); (2) the San Jose market (consisting of Santa Clara County); and (3) the
Santa Rosa market (consisting of Sonoma County). Thus, an application for a translator in San Jose
would not count against the per-market cap for that applicant in either the core San Francisco market or
the Santa Rosa market. Accordingly, subject to the processing rules described below, an applicant could
prosecute three applications in each of those three markets. In contrast, the Washington, D.C. market
(Continued from previous page)


Metro market rankings as of the Fall 2011 ratings period. See Fourth Report and Order, 27 FCC Rcd at 3398
(“Detailed Column Information”) (emphasis in original).
54 Id. (emphasis in original).
55 EMF Petition at 6.
56 Third Further Notice, 26 FCC Rcd at 9998-99 ¶ 31.
57 See, e.g., Fourth Report and Order, 27 FCC Rcd at 3387 ¶ 48 (preclusion studies to be based on the translator’s
“proposed transmitter site”).
58 Id. at 3392 n. 173.
59 See ¶¶ 12-13 supra.
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(Arbitron Metro market #8) includes one county from the Fredericksburg, VA market (Arbitron Metro
market #147, with Stafford County being the embedded portion of that market) and all of the Frederick,
MD market (Arbitron Metro market #197). In that situation, an application proposing a site in Stafford
County would be treated as an application in the Fredericksburg, VA Arbitron Metro market rather than
an application in the Washington, D.C. Arbitron Metro Market. The per-market cap (as revised below)
will apply to all applications proposing a site in the Fredericksburg, VA Arbitron Metro market, because
that market is listed in Appendix A. On the other hand, an application proposing a site in Frederick
County, MD would be treated as an application in the Frederick, MD Arbitron Metro market rather than
the Washington, D.C. Arbitron Metro market. Because the Frederick, MD Arbitron Metro market is not
listed in Appendix A, the per-market cap does not apply to any application proposing a site there. With
the exclusion of Stafford County, VA and Frederick County, MD from the Washington, D.C. market for
the purposes of the per-market cap, the cap for the Washington, D.C. market would apply only to
applications proposing operation from a site in the core of that market, which is any part of the market
other than those two counties.60
2.

Notice of Appendix A Per-Market Cap Proposal

31.
We next address Magrill’s claim that we violated the Administrative Procedure Act’s
notice and comment requirements by failing to give notice that the per-cap limit would apply to all
Appendix A markets rather than just “spectrum limited” Appendix A markets.61 Magrill’s comments
focus on the Commission’s market-specific translator dismissal process, with its distinction between
“spectrum limited” markets and “spectrum available” markets, as delineated in Section III.B of the Third
Further Notice
.62 However, in Section III.C of the Third Further Notice, we then stated our tentative
conclusion that this translator dismissal process would not be sufficient to address the problem of
speculation among Auction 83 filers.63 We tentatively concluded that nothing in the LCRA limits the
Commission from addressing such speculation through processing policies separate from the dismissal
process discussed in Section III.B of the Third Further Notice.64 Based on those tentative conclusions,
we asked for comments on processing policies to address the potential for speculative abuses among the
remaining translator applications:
For example, we seek comment on whether to establish an application


60 Those core jurisdictions for the Washington, D.C. market are: the District of Columbia; Calvert County, MD;
Charles County, MD; Montgomery County, MD; Prince Georges County, MD; Alexandria (city), VA; Arlington
County, VA; Fairfax County, VA; Fairfax City, VA; Falls Church (city), VA; Manassas (city), VA; Manassas Park
(city), VA; and Prince William County, VA. For New York, the core market consists of Bronx, Kings, New York,
Queens and Richmond Counties, NY, and Bergen, Essex, Hudson and Passaic Counties, NJ. The remaining
counties in the New York market are embedded in the Nassau-Suffolk (Long Island), NY market (Arbitron Metro
market #18), the Hudson Valley, NY market (Arbitron Metro market #39), the Middlesex-Somerset-Union, NJ
market (Arbitron Metro market #41), the Monmouth-Ocean, NY partially embedded market (Arbitron Metro market
#53), the Morristown, NJ market (Arbitron Metro market #117), or the Stamford-Norwalk, CT market (Arbitron
Metro market #148). For Providence-Warwick-Pawtucket, RI, the core market consists of Bristol, Kent, Newport,
Providence and Washington Counties, RI; the embedded market of New-Bedford-Fall River, MA (Arbitron Metro
market #177, consisting of Bristol County, MA) is not an Appendix A market. For Portsmouth-Dover-Rochester,
NH (Arbitron Metro market #121), the core market consists of Strafford County, NH and York County, ME; the
embedded jurisdiction of Rockingham County, NH is part of the Manchester, NH market (Arbitron Metro market #
196), which is not an Appendix A market.
61 See Magrill Petition at 1 and Magrill Reply at 1.
62 Third Further Notice, 26 FCC Rcd at 9995-99 ¶¶ 21-31.
63 Id. at 9999 ¶ 33.
64 Id.at 9999 ¶ 34.
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cap for the applications that would remain pending in non-spectrum
limited markets and unrated markets
. Would a cap of 50 or 75
applications in a window force high filers to concentrate on those
proposals and markets where they have bona fide service aspirations? In
addition or alternatively, should applicants be limited to one or a few
applications in any particular market
?65
32.
Clearly, the point of Section III.C. of the Third Further Notice was to seek comments on
potential national caps and per-market caps as a processing policy separate from the market-based
translator dismissal policy discussed in Section III.B
. We specifically noted that this processing policy
could apply to applications in “non-spectrum-limited” markets and unrated markets. We received
substantial comments on the proposals for a national cap and per-market caps.66 In fact, Magrill himself
commented on the issue by proposing an alternative system that would limit applications in both
“spectrum available” markets and “spectrum limited” markets based on the total number of applications
filed nationally by a particular applicant.67 Accordingly, we reject Magrill’s claim that we failed to give
adequate notice that per-market caps might apply in “spectrum available” markets.
33.
Similarly, the Joint Petition claims that a one-per-market cap on translator applications
“had never previously been proposed prior to the Fourth Report and Order.”68 The language quoted
above from the Third Further Notice shows that this claim is unfounded. Accordingly, we reject this
claim by the Joint Petitioners.
3.

The National Cap of 50 Applications

34.
EMF is the only party to challenge the national cap of 50 applications. As we noted
above, EMF received 259 translator grants from its Auction 83 applications before our processing freeze
took effect. Approximately 20 percent of those grants were never constructed and therefore were
cancelled. Altogether, 72 out of EMF’s 259 grants (almost 30 percent of those authorizations) were sold,
were not built and therefore were cancelled, or were otherwise terminated.
35.
EMF focuses its challenge to the national cap of 50 translator applications on two claims.
First, EMF claims that the cap is based on an erroneous assumption that translator applicants with higher


65 Id. (emphasis added).
66 Fourth Report and Order, 27 FCC Rcd 3364 ¶¶ 51-53. See, e.g., RAM Comments at 8 (opposing a national cap,
but supporting a market cap of three applications); Prometheus, Future of Music Coalition, and the United Church
of Christ, OC Inc. Comments at 30-31 (supporting a national and per-market cap); REC Comments at 17 (supporting
national ownership cap of 30 translators); CSN International Comments at 3 (supporting national cap of 50
applications); National Public Radio (“NPR”) Comments at 5-6 (supporting national cap); EMF Comments at 13
(opposing caps); Letter from David Oxenford, Counsel to EMF, to Marlene Dortch, Secretary, FCC, in MM Docket
No. 99-25 and MB Docket No. 07-172 (filed Mar. 2, 2012) (opposing caps, particularly outside spectrum-limited
markets).
67 See Supplimental [sic] Reply Comments of Kyle Magrill in the Third Further Notice of Proposed Rule Making at
2. Magrill’s proposal would place no per-market cap on any applicant that filed fewer than 25 applications
nationally, then place progressive per-market caps on parties that filed 26-100 applications (4 per market), 101-500
applications (3 per market), 500-1000 applications (2 per market), and over 1000 applications (1 per market).
Magrill proposed that these per-market caps be applied to the top 200 markets, but that a rural exclusion apply to a
translator that would serve fewer than 10,000 people. Id. Thus, it appears that Magrill advocated a rural exclusion
rather than a “spectrum available” exclusion from his suggested per-market caps. Moreover, Magrill proposed to
apply the per-market caps to the top 200 markets rather than the Appendix A markets, even though few, if any, of
the additional markets in Magrill’s proposal would be “spectrum limited.”
68 Joint Petition at 1 n.1.
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numbers of pending applications do not intend to construct all of those proposed stations.69 Second, EMF
points out that the Commission chose a cap of 50 as the most “administratively feasible solution for
processing this large group of long-pending applications” instead of “more direct means” of curbing
speculation, such as limits on sales of new translator construction permits or the prices at which they can
be sold.70
36.
EMF’s first objection mischaracterizes our decision on the national cap by treating it as
an unverified assumption about the number of stations that applicants could build or wish to build. We
acknowledge that we cannot divine an applicant’s intentions based on simple statistics, but that is not
what we attempted to do. Rather, we developed a processing policy that would reasonably balance
competing goals. The cap of 50 does not assume that an applicant could only intend to construct, or be
able to construct, 50 new translator stations, but it will require applicants to prioritize their filings and
focus on applications in those locations where they have a bona fide interest in providing service and on
applications that are most likely to be grantable, while deferring their pursuit of other opportunities until a
future filing window. In this regard, we reiterate that our conclusion here about speculative filings by
high-volume applicants is supported by the data showing that an unusually large number of the translator
grants from this filing window were not constructed or were assigned to a party other than the applicant.71
We believe applicants subject to the cap are likely to choose applications that (1) they expect to be
granted, (2) they plan to construct and operate, and (3) will fill an unmet need, thereby improving
competition and diversity. EMF has not shown that this expectation is unreasonable.
37.
EMF’s second argument overlooks many relevant considerations. First, EMF fails to
note that most of the applicants subject to the cap received many grants before the processing freeze took
effect. 72 EMF itself received 259 grants, so for EMF the cap translates into 259 granted applications, plus
as many additional applications that EMF selects that result in grants.
38.
Second, as the Commission previously noted, future translator windows will provide
additional new station licensing opportunities.73 With our flexible translator licensing standards, we
expressed confidence that “comparable licensing opportunities will remain available in a future translator
filing window” with respect to applications dismissed pursuant to the application caps and our market-
based processing policy.74
39.
Third, EMF overlooks our explicit balancing of “the competing goals of deterring
speculation and expanding translator service to new communities.”75 In doing so, we selected the number
of 50 applications to affect no more than 20 applicants, representing only three percent of the pool of
Auction 83 applicants but approximately half of the pending applications.76 Thus, a national cap of 50
applications would allow 97 percent of applicants to prosecute all of their pending applications, and it will


69 EMF Petition at 7-8.
70 Id. at 8.
71 See ¶ 4 supra.
72 We noted that of the eight applicants with the greatest number of pending applications, seven had received
between 32 and 586 permits. Fourth Report and Order, 27 FCC Rcd at 3391 n. 170. We also emphasized that
because applicants will be able to choose which applications to prosecute, we expect them to choose applications
that will maximize new service to the public. Id. at 3391 ¶ 57.
73 Id.
74 Id.
75 Id. at 3391 ¶ 58.
76 Id.
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allow approximately 50 percent of all pending applications to be processed, while curbing the excessive
number of applications filed by 3 percent of the filers.
40.
With respect to the choice of an application cap over other options such as anti-
trafficking rules, EMF claims erroneously that our objective was to limit the number of applications we
had to process.77 We chose an application cap “both [to] deter trafficking and provide the fastest path to
additional translator and LPFM licensing in areas where the need for additional service is greatest.”78
This approach benefits both translator and LPFM applicants and the public they seek to serve. An
application cap provides an immediate solution to the trafficking issue and also ameliorates the impact of
translator applications on LPFM service while avoiding the lead time necessary to develop and adopt new
anti-trafficking rules or the resources needed to enforce such rules.79
This is why we described
application caps as “the most administratively feasible solution for processing this large group of long-
pending applications.”80 Advocates of anti-trafficking rules, such as EMF, have not shown that this
conclusion is flawed.
41.
We will, however, grant reconsideration with respect to the national cap of 50
applications in order to better ensure equitable distribution of radio service between urban and rural
areas.81 We recognize that parties restricted to 50 applications will tend to choose applications in urban
areas, because those applications offer potential service to the greatest number of people. We believe a
modest relaxation of this restriction can provide additional service to rural areas without sacrificing the
integrity of our licensing process or opportunities for new LPFM service. Accordingly, we will allow
applicants to prosecute up to 70 applications nationally, provided that no more than 50 of those are in
Appendix A markets.82 All selected applications outside the Appendix A markets must meet certain
conditions.83 Specifically, the applications outside the Appendix A markets must (1) comply with the


77 EMF Petition at 8.
78 Fourth Report and Order, 27 FCC Rcd at 3391 ¶ 57.
79 Even if anti-trafficking rules were applied in the form of conditions on construction permits, ensuring compliance
with such conditions would result in undue administrative burdens and could delay processing. We note that some
of the Audio Division’s most time-intensive cases in recent years involved investigations into when and whether
parties with translator construction permits had constructed those stations as proposed. See Great Lakes Community
Broadcasting, Inc.
, Memorandum Opinion and Order, 24 FCC Rcd 8239 (MB 2009), recon. dismissed, 24 FCC Rcd
13487 (MB 2009); Broadcast Towers, Inc., Order, 26 FCC Rcd 7681 (MB 2011). In addition, we believe the
suggested anti-trafficking rules would be highly subject to circumvention through contracts such as time brokerage
agreements. Finally, even if parties were to seek waivers, the process of evaluating waiver requests would unduly
burden administrative resources and could delay processing.
80 Fourth Report and Order, 27 FCC Rcd at 3391 ¶ 57.
81 See Policies to Promote Rural Radio Service, Second Report and Order, 26 FCC Rcd 2556 (2011), and Second
Order on Reconsideration, 27 FCC Rcd 12829 (2012).
82 Before we froze the processing of translator applications in 2005, a substantial portion of our translator grants
from the Auction 83 filing window involved rural, singleton applications. We think a continued effort to license
translators in rural areas is consistent with the LCRA’s mandate to ensure licensing opportunities for both LPFM
and translator services across the country. See Fourth Report and Order, 27 FCC Rcd at 3366-67 ¶ 5. We
previously stated that we expected approximately one thousand additional translator grants from this group of
applications. Id. at 3376 ¶ 26. Even assuming that all affected parties will decide to pursue 50 applications in
Appendix A markets, providing the opportunity to prosecute up to 20 additional rural translator applications would
add more than 200 potential grants in underserved rural areas.
83 Any party that prefers to prosecute only 50 applications nationally, without complying with these conditions for
applications outside the Appendix A markets, may do so. If a party prosecutes more than 50 applications nationally,
all of the non-Appendix A applications will be subject to these conditions even if fewer than 50 applications are in
(continued….)
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restriction against overlap with the applicant’s other pending translator applications and authorizations set
forth in paragraph 58 below with respect to the per-market cap, and (2) protect at least one channel for
LPFM filing opportunities at the proposed transmitter site for each short form application specifying such
site, as shown in the type of “out of grid” preclusion study described in paragraph 59 below with respect
to the per-market cap.84 In addition, to ensure that these authorizations will not be relocated to Appendix
A markets, we will impose a condition restricting their relocation. Specifically, during the first four years
of operation, none of these authorizations can be moved to a site from which (calculated in accordance
with Section 74.1204(b) of our Rules) there is no 60 dBu contour overlap with the 60 dBu contour
proposed in the application as of the release date of this Fifth Order on Reconsideration.85 Our decision
to establish a national cap is an exercise in line-drawing that is committed to agency discretion.86 Our
choice of a limit of 70 applications nationally, with no more than 50 applications in the Appendix A
markets, reasonably balances competing goals based on a careful evaluation of the record.
4.

The Need for a Per-Market Cap

42.
EMF characterizes the per-market cap as arbitrary and capricious.87 However, the record
here clearly demonstrates that speculative translator filing activity was not only a national problem but
also a local market problem. In the Third Further Notice, we described exactly this situation, noting that
one applicant held 25 of the 27 translator applications proposing locations within 20 kilometers of
Houston’s center city coordinates and 75 applications in Texas. We also noted that two applicants held
66 of the 74 applications proposing service to the New York City Arbitron Metro market.88 EMF has not
shown that our analysis as to speculative filings activity within Appendix A markets is incorrect.
43.
Non-top 150 Markets in Appendix A. Appendix A to the Fourth Report and Order
includes six non-top 150 markets, including Asheville, NC, because they have more than four translator
applications pending.89 Such a large number of applications for markets outside the top 150 markets
suggests speculative filing activity. Although WNC claims that it filed multiple applications to serve
"various clusters of communities"90 in the Asheville market, it has not explained how its proposed service
would achieve that result with respect to Black Mountain, NC, which is the focus of the WNC Petition.
All of WNC’s applications there specify Black Mountain as the community of license and, with only one
(Continued from previous page)


Appendix A markets. For example, if a party prosecutes 30 applications in Appendix A markets and 30 applications
outside those markets, all of the 30 non-Appendix A applications will be subject to the conditions.
84 To satisfy this condition, applicants must submit an LPFM preclusion study demonstrating that grant of the
proposed translator station will not preclude approval of a future LPFM application at the specified transmitter site.
The study must assume the continued prosecution of all other pending short form FM translator applications.
85 This four-year condition is analogous to the four-year condition imposed on NCE permittees that receive a
decisive preference for fair distribution of service. See 47 C.F.R. § 73.7005(b). In both cases, permittees that
receive grants based on their service proposals are required to effectuate those proposals for at least four years.
86 The D.C. Circuit has held that “the Commission has wide discretion to determine where to draw administrative
lines.” WorldCom, Inc. v. FCC, 238 F.3d 449, 462 (D.C. Cir. 2001) (quoting AT&T Corp. v. FCC, 220 F.3d 607,
627 (D.C. Cir. 2000)); see also Covad Comm. Co. v. FCC, 450 F.3d 528, 541 (D.C. Cir. 2006) (explaining that
courts are “generally unwilling to review line-drawing performed by the Commission unless a petitioner can
demonstrate that lines drawn... are patently unreasonable, having no relationship to the underlying regulatory
problem”) (internal quotation marks omitted).
87 EMF Petition at 9-11.
88 Third Further Notice, 26 FCC Rcd at 9999 ¶ 33.
89 See Fourth Report and Order, 27 FCC Rcd at 3400.
90 See WNC Petition at 2-3.
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exception, propose the same transmitter site.91 In addition, WNC fails to show any error in the
Commission’s analysis of the need to apply the market cap to those markets listed in Appendix A that are
outside of the top 150 markets, or any valid justification for departing from Arbitron Metro market
definitions. Arbitron Metro market definitions are based on multiple demographic/geographic factors,
including terrain issues. Accordingly, we deny WNC’s request to exclude Asheville, NC from Appendix
A or in the alternative exclude the community of Black Mountain from the Asheville market.
44.
Proposed Alternative. Conner argues that any local application cap on translators should
be per-community, based on the number of service-restricted AM stations in any given community.92
Magrill similarly points out that there is increased demand for FM translators, both to rebroadcast AM
stations and to rebroadcast HD radio streams.93 However, we have an obligation to address abusive
application conduct, as described above, regardless of the supply/demand balance in the marketplace. In
fact, trafficking in translator authorizations could only occur where there is demand, so the existence of
such demand supports, rather than undercuts, our rationale for curbing speculation. With respect to
Conner’s suggested cap based on the proposed community of license rather than the Arbitron Metro
market, this would be impractical from an administrative standpoint.94
45.
The record in this proceeding strongly supports a limit on translator applications within
each Arbitron Metro market identified in Appendix A to protect the integrity of our licensing process.
We recognize that EMF proposes anti-trafficking restrictions as an alternative approach, but our rationale
for rejecting those restrictions in favor of a national cap applies equally to the per-market cap.95
Accordingly, we reject the claim that a per-market cap is arbitrary and capricious.
5.

Revision of the Per-Market Cap

46.
Based on the information presented in the reconsideration petitions and responsive
pleadings, we conclude that an adjustment of the per-market cap will improve competition and diversity
in the Appendix A markets without sacrificing LPFM filing opportunities or the policy objectives behind
the per-market cap. As discussed below, we are increasing the per-market cap for radio markets
identified in Appendix A of the Fourth Report and Order to allow up to three applications for each
market, subject to certain conditions.
47.
Although the petitioners do not challenge our conclusion that it is infeasible to apply the
Technical Need Rule to the thousands of pending translator applications,96 they argue that one translator
can only serve a small portion of most markets in Appendix A. The Joint Petition focuses on the Joint
Petitioners’ attempts to build regional networks of translators to rebroadcast the signals of their NCE


91
See FCC File Nos. BNPFT-20030317GNH, BNPFT-20030317GOI, BNPFT-20030317GRI, BNPFT-
20030317GRN, BNPFT-20030317GRO, BNPTF-20030317GUS (same site as WNC’s existing translator,
W298AY), and BNPFT-20030317GRU (different site).
92 Conner Petition at 3.
93 Magrill Petition at 2.
94 There are only 156 Arbitron Metro markets identified in Appendix A, versus the thousands of communities across
the country. The Arbitron Metro market is an established standard commonly used in the radio industry and it is a
simple matter for us to identify and process applications based on that standard. It would be much more difficult for
us to do so under a community-by-community standard. From a policy standpoint, the political boundaries of
communities and distances between communities are variables that would lead to unpredictable outcomes. In fact,
Conner’s proposal is likely to reward applicants that filed multiple applications at varying locations within a market
for speculative reasons or to skew auction results. Use of Arbitron Metro markets as the determinative factor is far
more likely to lead to consistent results that will restrain applicants engaged in such speculative efforts.
95 See ¶ 40 supra.
96 Fourth Report and Order, 27 FCC Rcd at 3392 ¶ 59.
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stations.97 REC independently analyzed the applications of the Joint Petitioners and agrees that many of
these applications propose operations very distant from the center of the Arbitron Metro market. REC
agrees that, with appropriate limits, allowing such applications to be processed would improve diversity
and competition in underserved areas, without impinging on LPFM filing opportunities.98
48.
We believe the Joint Petition and the REC Partial Opposition raise a valid point as to
whether the one-per-market cap is overly restrictive. The Joint Petition states that the Joint Petitioners are
prosecuting their pending translator applications not to speculate in translator permits or to manipulate the
auction process, but in hopes of increasing the reach of their NCE stations.99 Based on its analysis of
Joint Petitioners’ applications, REC agrees that the Joint Petition demonstrates that the one-per-market
cap is overly restrictive.100
49.
Prometheus urges that the one-per-market cap be retained as “a crucial way to address the
existing disparity” between the number of authorized translators and the number of authorized LPFM
stations.101 This argument appears to assume that any expansion in FM translator licensing will reduce
opportunities for LPFM licensing. Clearly, that is not the case. With our market-based translator
processing policy, as well as our national and per-market caps on translator applications, we have put
strong limits in place to preserve LPFM filing opportunities. The expansion of the per-market cap will
not reduce opportunities for LPFM licensing because, as we explain below, all translator applicants taking
advantage of that change will need to protect LPFM filing opportunities when they do so. Our adjustment
of the per-market cap in this order will not negatively affect LPFM licensing opportunities.
50.
The Joint Petition proposes a waiver process under which the one-per-market cap would
remain in place, but waivers would be available for applications meeting certain criteria: (1) the 60 dBu
contour of the translator station would not overlap the 60 dBu contour of any commonly controlled
application; (2) the application will not preclude the approval of a future LPFM application in the grid or
at the proposed facility’s transmitter site; and (3) the applicant agrees to accept a condition on its
construction permit that disallows the for-profit sale of the authorization for four years after the station
begins operation. REC agrees with these conditions, but proposes additional requirements: (1) the
translator station, for four years after beginning operation, must be co-owned with the primary station and
rebroadcast that station’s primary analog signal; (2) the 60 dBu contour of the translator must not overlap
the central core of the market; and (3) additional applications being prosecuted under this waiver would
remain subject to the national cap.102


97 Joint Petition at 2-6.
98 REC Partial Opposition at 4-5.
99 Joint Petition at 2.
100 See REC Partial Opposition at 3-5.
101 Prometheus Opposition at 8-9.
102 One translator licensee filed reply comments advocating that translator applicants should be able to prosecute one
translator application per market, plus any additional applications that do not preclude LPFM filing opportunities or
overlap with any other translator application filed by that party in the 2003 window, other than fill-in translator
applications. See Four Rivers Reply at 2-3. This pleading will be treated as a late-filed petition for reconsideration
of the Fourth Report and Order, and we will dismiss it except to the extent it addresses matters argued in the
opposition pleadings, Four Rivers Reply at 1-2 and 3-4 (addressing matters raised in oppositions). See 47 U.S.C. §
405(a) (petitions for reconsideration must be filed no later than 30 days after public notice of Commission decision);
47 C.F.R. § 1.429(d) (same). Four Rivers does not seek waiver of the deadline for seeking reconsideration or give
any reason why it was unable to submit its proposal by the deadline. See Reuters Ltd. v. FCC, 781 F.2d 946, 951-52
(D.C. Cir. 1986) (Commission may not waive the deadline absent extraordinary circumstances).
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51.
We agree with certain elements of the Joint Petition and the REC Partial Opposition, but
our revised per-market cap will vary in certain respects. First, we will not rely on an anti-trafficking
condition. As we explained above, we believe such conditions are subject to circumvention, and
monitoring compliance with an anti-trafficking condition would be unduly resource-intensive and could
delay processing.103
52.
Second, we believe it is unnecessary to allow parties to prosecute a large number of
translator applications within an Appendix A market, as would be possible under the waiver procedures
advocated in the Joint Petition. As we have shown above,104 the Joint Petitioners and other applicants
already have received a significant number of translator grants from the Auction 83 application process.
Further, our clarification of embedded markets will help these parties prosecute more applications within
embedded markets. As we have previously stated, we also expect that translator applicants will not be
foreclosed from comparable application opportunities in the next translator filing window.
53.
Based on our analysis of pending applications, we believe that a limit of three
applications per applicant in the Appendix A markets is appropriate, subject to the conditions described
below. With those conditions, we believe this relaxation in the per-market cap will improve diversity and
competition in under-served areas of the Appendix A markets without precluding LPFM filing
opportunities or increasing significantly the potential for licensing abuses.
54.
The relaxed limit of three applications per market will only apply to an applicant that
shows that its applications meet the conditions described in paragraphs 58-59. As we indicate below,105
we instruct the Media Bureau to issue a public notice asking any applicant that is subject to the national
cap or the per-market cap to identify the applications they wish to prosecute consistent with the caps and
to show that those applications comply with the caps. If a party has more than one application in an
Appendix A market but fails to submit a showing pursuant to the public notice, or submits a deficient
showing, we will not analyze their applications independently to assess whether they comply with the
conditions that there be no 60 dBu overlap with that party’s other applications or authorizations and that
there be no preclusion of LPFM filing opportunities.106 Accordingly, in those situations we will process
only the first filed application for that party in that market.


103 See note 79 supra.
104 See ¶ 17 supra.
105 See ¶ 66 infra.
106 Examples of deficient showings for the purpose of implementing the national and per-market caps include, but
are not limited to: (1) an applicant with two or more applications in an Appendix A market that fails to submit
anything during the cap compliance period; (2) an applicant with two or more applications in an Appendix A market
that fails to submit evidence that the applications do not have overlapping 60 dBu contours or that none of the
applications’ 60 dBu contours overlap with the 60 dBu contour of an FM translator authorization held by that party
as of the release date of this Fifth Order on Reconsideration; (3) for an applicant with more than one application in
an Appendix A market, any application in such market which is not amended to include an LPFM preclusion study,
as delineated in paragraph 59 infra; (4) an applicant with four or more applications in an Appendix A market that
fails to specify which applications to prosecute in that market; (5) an applicant that selects applications within a
market that have overlapping 60 dBu contours; (6) an applicant that selects two or more applications within a
market, one or more of which have an overlapping 60 dBu contour with the 60 dBu contour of an FM translator
authorization held by that party as of the release date of this Fifth Order on Reconsideration; (7) an applicant that
submits an alternative contour prediction method study to establish lack of 60 dBu contour overlap between two
selected applications or between any selected application and an FM translator authorization held by that party as of
the release date of this Fifth Order on Reconsideration; (8) an applicant that selects more than 50 applications in
Appendix A markets; (9) an applicant that selects 50 applications in Appendix A markets but more than 20
additional applications in non-Appendix A markets; or (10) an applicant that selects 50 applications in Appendix A
markets and no more than 20 additional applications in non-Appendix A markets, but fails to provide the showings
(continued….)
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55.
In deciding on an adjustment to the per-market cap, we are balancing the competing
interests of adding new service to underserved areas by translators versus preserving the integrity of our
licensing process by dismissing applications filed for speculative reasons or to skew our auction
procedures. The factors cited by the petitioners and REC, particularly the limited service area of a
translator compared to the size of the Appendix A markets, weigh in favor of allowing more than one
translator application in an Appendix A market, provided that each translator would serve a different part
of the market than any of an applicant’s existing translators or other pending translator applications.107
On the other hand, the abusive filing conduct described above, combined with the considerations set forth
in paragraph 52, suggest that any relaxation be limited to a small number of applications per Appendix A
market. In addition, the need to protect LPFM filing opportunities, for the reasons delineated in the
Fourth Report and Order,108 supports a condition that none of the Appendix A translator applications
would preclude an LPFM filing opportunity. We conclude that a limited relaxation of the per-market cap,
combined with conditions that will protect LPFM filing opportunities and prevent duplicative translator
service areas, would promote competition and diversity in Appendix A markets by expanding translator
service to underserved areas without threatening the integrity of our licensing process or precluding
LPFM filing opportunities. Thus, we believe that the benefits of our action will outweigh any potential
costs.
56.
In considering the change in the per-market cap, we analyzed applicants with 1-5 pending
applications per market in all Arbitron-rated markets.109 In doing so, we have not taken certain variables
into account because it was not feasible to do so. Those variables are the impact of the national cap on
the number of pending applications and the impact of the two conditions proposed in connection with an
adjustment of the one-per-market cap.110 The cap of one would affect two-thirds of those applicants,
whereas a cap of three would affect less than one-third of those applicants, meaning that a substantial
majority of applicants could prosecute all of their pending applications. Thus, relaxation of the cap from
one to three applications per market could benefit a significant number of translator applicants who do not
have an excessive number of applications pending in any market (i.e., more than five). However, as
indicated above and in the Joint Petition and the REC Partial Opposition, any such relaxation should be
subject to certain conditions to preserve LPFM filing opportunities and the integrity of our licensing
process.
(Continued from previous page)


described in ¶ 41 supra for those additional applications. (With respect to example (7), we specifically note that this
processing policy differs from our practice under the Technical Need Rule, where we have accepted alternative
contour prediction method studies. We also note that this processing policy, which is being applied to short-form
Auction 83 applications, does not supplant the Technical Need Rule for any subsequent long-form (FCC Form 349)
application. For example, if an applicant made an appropriate showing of no contour overlap between applications
under this processing policy, but subsequently amended one or more of such applications to create substantial
contour overlap, the applicant would need to address the Technical Need Rule when it submits its Form 349
applications. See 47 C.F.R. § 74.1232(b); FCC Form 349, Section III-A, Question 14.) For additional details about
the preclusion showings to be required of translator applicants, see Fourth Report and Order, 27 FCC Rcd at 3376-
88 ¶¶ 28-49.
107 This limitation is consistent with the Technical Need Rule. See 47 C.F.R. § 74.1232(b). This limitation will also
protect against situations where an applicant filed multiple applications at one site to skew our auction procedures.
108 See ¶ 59 infra.
109 For the reasons described in paragraph 52 supra, we believe it is unnecessary to allow parties to prosecute large
numbers of applications within Appendix A markets. Accordingly, we studied situations involving 1-5 applications
per market.
110 It is not feasible to take these variables into account in the analysis because we cannot know in advance how
many applications parties will choose to prosecute in each market after taking the national cap and new conditions
into account.
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57.
With respect to the Joint Petitioners’ proposal to prohibit 60 dBu overlap between
commonly-controlled applications, we generally agree that this is an appropriate condition. For the
reasons shown above, we believe that multiple translator applications in a single area suggest an attempt
to game the auction system or to obtain permits for the purpose of selling them.111 Such a restriction also
would advance the goal of the Technical Need Rule to limit the licensing of multiple translators serving
the same area to a single licensee. As we have explained, attempting a case-by-case analysis of the
thousands of pending translator applications for compliance with that rule is not feasible.
58.
For these reasons, we adopt the following processing policies: The protected (60 dBu)
contour (calculated in accordance with Section 74.1204(b) of our Rules) of the proposed translator station
may not overlap the protected (60 dBu) contour (also calculated in accordance with Section 74.1204(b) of
our Rules) of any other translator application filed by that applicant or translator authorization held by
that applicant, as of the date of the release of this Fifth Order on Reconsideration.112 Because our goal is
to expedite the processing of applications, we will not accept an alternative contour prediction method
study to establish lack of 60 dBu contour overlap. The concern we have about service duplication applies
even more strongly when a party already has an existing translator station providing service to the same
area proposed by that party in an application. Accordingly, we are expanding the proposed condition to
include outstanding authorizations as well as applications. However, we will not extend this condition to
limit applications based on parties’ attributable interests or common control of applicant and licensee
entities. The pending Auction 83 applications lack any information about parties to the applications, and
so we lack sufficient information to make determinations about attributable interests in other applications
or common control of applicant entities. Asking applicants to amend their applications to provide this
information would delay our efforts to ensure expeditious processing of translator and LPFM
applications, and resolving disputes over whether an application is commonly controlled with another
application or authorization would further delay this effort. Accordingly, consistent with the approach
taken in the Fourth Report and Order, we are limiting this condition to applications filed by and
authorizations issued to the named applicant entity.113


111 See ¶ 7 supra.
112 The contour overlap analysis will not apply across markets. For instance, if an applicant has an application
proposing a site in Milpitas, CA (Santa Clara County, in the San Jose, CA Arbitron Metro market) that overlaps with
an application proposing a site in Fremont, CA (Alameda County, in the core San Francisco, CA Arbitron Metro
market), it would be able to prosecute each application as long as each application complied with the processing
policies for each market. We note that such an applicant could have prosecuted both applications under the original
one-per-market cap, and it is not our intention to impose a more stringent policy now. We also note that such an
applicant still will be subject to the Technical Need Rule when it files its Form 349 applications for those proposed
stations, assuming the overlap is substantial.
113 When the Commission earlier adopted a cap of 10 applications per market, it likewise did not attempt to
determine whether individual applicants were commonly owned with other applicants. See Third Report and Order,
22 FCC Rcd at 21934-35 ¶ 56. We also note that, apart from the unique situation of RAM, we have little reason to
expect overlapping ownership interests among applicants. Because there were no application limits in Auction 83
and ownership restrictions do not apply to translators, there is no reason to think that applicants would use multiple
identities in this context.
The only exception to this practice will be when there is a minor variation in a name but it is clear that the
applicant is the same. For instance, Bridgelight has filed applications both as “Bridgelight, LLC” and “Bridgelight,
L.L.C.” and Magrill has filed applications as “CircuitWerkes” and “CircuitWerkes, Inc.” However, all the
applications provide the same contact information, so we think it is reasonable to conclude that the slight name
variation does not refer to a different party. Accordingly, we will treat those as a single applicant. This is consistent
with current licensing practice, where a licensee may identify itself with slight name variations. For instance, the
Oregon State Board of Higher Education of the University of Oregon, the licensee of several radio stations, has
identified itself in our licensing database with five variations of its name that use different abbreviations.
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59.
We agree with the condition advocated by the Joint Petitioners and REC that the
proposed translator station cannot preclude approval of a future LPFM application in the grid for that
market, under the processing policy delineated in Section II.B of the Fourth Report and Order,114 or at the
proposed out of grid transmitter site. To satisfy this condition, applicants must submit an LPFM
preclusion study demonstrating that grant of the proposed translator station will not preclude approval of
a future LPFM application. As we explained in the Fourth Report and Order, one of our broad principles
for implementation of the LCRA is that our primary focus under Section 5(1) must be to ensure that
translator licensing procedures do not foreclose or unduly limit future LPFM licensing, because the more
flexible translator licensing standards will make it much easier to license new translator stations in the
future.115 This condition is consistent with that broad principle.
60.
Under the procedure proposed in the Joint Petition and the REC Partial Opposition,
compliance with the conditions described above would not be required for an applicant’s first translator
application in an Appendix A market, but instead would only be required as part of a showing for
additional applications in that market. We believe, however, that it is appropriate to impose these
conditions on all of the applications if a party chooses to prosecute more than one application in an
Appendix A market so that translator applicants will have an incentive to provide more service to
underserved areas of the Appendix A markets.
61.
If a party instead elects to prosecute only one application in an Appendix A market, then
it need not make a showing that the application complies with the conditions described in paragraphs 58
and 59 when the local cap compliance showings are submitted. (However, if a party prosecutes only one
application and it proposes substantial overlap with an existing translator authorization held by that party,
the Technical Need Rule and FCC Form 349 will require the party to show a technical need for the
second translator when the Form 349 application is due in order to justify a grant of that application.) We
are providing this flexibility so that the revised policy is not more restrictive than the original one-per-
market cap for any translator applicant. We note that none of the petitions for reconsideration or
responsive pleadings argue that the one-per-market policy should be tightened through the imposition of
conditions on a single application.116
62.
REC also proposes that applications grantable under the relaxed per-market standard be
subject to the national cap of 50 applications adopted in the Fourth Report and Order.117 We agree that
the national cap should be uniform for all applicants. The relaxation of the per-market cap leaves
undisturbed an applicant’s obligation to comply with the national cap of 70 applications, with no more
than 50 applications in Appendix A markets.
63.
With the cap of three-per-market in place, we find it unnecessary to adopt the additional
waiver conditions suggested by REC. The principal conditions suggested by REC would not preserve
LPFM filing opportunities or, in our opinion, curb speculation by translator applicants. We also believe
they would constrain competition in Appendix A markets without any countervailing public benefit.
64.
REC’s first additional waiver requirement would not allow more than one translator
application to be prosecuted within certain geographic zones around the center of the Appendix A
markets.118 However, we have already adopted a rigorous processing standard for pending translator


114 Fourth Report and Order, 27 FCC Rcd at 3376-88 ¶ 28-49.
115 Id. at 3373-74 ¶ 19.
116 Nothing in the Fourth Report and Order or this Fifth Order on Reconsideration alters the Technical Need Rule
or its application to pending FM translator applications. Thus, applying that rule to Auction 83 applicants when they
file a Form 349 application is not a new requirement or restriction.
117 Id. at 7.
118 REC Partial Opposition at 7.
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applications in Appendix A markets, and REC has not shown that this additional constraint is needed.
We believe this restriction would limit competition in the Appendix A markets without providing a
countervailing benefit.119 REC’s proposal also could be circumvented by modifications to construction
permits.
65.
REC’s second additional waiver requirement would impose a condition on the
construction permit that, for four years after beginning operation, the translator must be commonly-owned
with the primary station and must rebroadcast that station’s primary analog signal.120 REC claims that
this condition is appropriate because translator permittees in some markets have entered into time
brokerage deals with commercial broadcasters to air HD radio programming streams on NCE translator
stations. We view REC’s proposed condition as more of a programming preference than an effort to curb
speculation. We also believe diversity and competition would be better served by giving translator
applicants the flexibility to prosecute applications that meet the revised per-market application cap
described above. We expect those parties to prosecute the applications that are most likely to be granted
and most likely to provide a needed service without precluding a future LPFM filing opportunity.
Moreover, as indicated above with respect to the Joint Petition’s proposed anti-trafficking condition,
enforcement of REC’s proposed condition and processing waiver requests would be unduly resource-
intensive and could delay the processing of applications.
66.
As we indicated in the Fourth Report and Order, the burden will be on each applicant to
demonstrate compliance with the national and per-market application caps.121 Any party with (1) more
than 70 applications pending nationally, (2) more than 50 applications pending in Appendix A markets,
and/or (3) more than one pending application in any of the markets identified in Appendix A (subject to
the clarification above as to embedded markets) will be required by a forthcoming public notice to
identify and affirm their continuing interest in those pending applications for which they seek further
Commission processing, consistent first with the national cap, as revised in paragraph 41 above, and then
with the revised per-market cap of three applications. They will also be required to demonstrate that the
selected applications meet the conditions described in (1) paragraph 41 above with respect to applications
outside the Appendix A markets for purposes of the national cap of 70 applications, and (2) paragraphs 58
and 59 above if they elect to prosecute more than one application in an Appendix A market.
67.
The Fourth Report and Order described certain translator amendment opportunities in
connection with the market-based processing policy.122 However, the application caps we describe here
will be applied before any such amendment opportunity is available. This approach is consistent with our
prior approach in the Third Report and Order.123 This approach also will expedite our processing of the
large volume of translator applications, which needs to be done before we can open an LPFM filing
window.
68.
Both pending long form and short form applications will be subject to these applicant-
based caps. In the event that an applicant does not timely comply with these dismissal procedures or
submits a deficient showing, we direct the staff to (1) first apply the national cap, retaining on file the first
70 filed applications and dismissing (a) those Appendix A applications within that group of 70
applications that were filed after the first 50 Appendix A applications, and (b) those applications outside


119 See Fourth Report and Order, 27 FCC Rcd at 3391 ¶ 57 (“We emphasize that the cap procedures we adopt will
give applicants the opportunity to elect which applications will be processed toward a grant. We expect that
applicants will choose applications that maximize new service to the public.”).
120 REC Partial Opposition at 6-7.
121 Fourth Report and Order, 27 FCC Rcd at 3392 ¶ 61.
122 Id. at 3385-87 ¶ 47-48.
123 See Third Report and Order, 22 FCC Rcd at 21934-35 ¶ 56.
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the Appendix A markets for which an adequate showing pursuant to paragraph 41 has not been submitted,
and (2) then dismiss all but the first filed application by that applicant in each of the markets identified in
Appendix A. We believe that this process will give applicants an incentive to file timely and complete
showings so that they can maximize their future service to the public.124

III.

SIXTH REPORT AND ORDER

69.
On March 19, 2012, we released a Fourth Further Notice of Proposed Rule Making
(“Fourth Further Notice”)125 in this proceeding, seeking comment on proposals to amend the Rules to
implement provisions of the LCRA and to promote a more sustainable community radio service. These
proposed changes were intended to advance the LCRA’s core goals of localism and diversity while
preserving the technical integrity of all of the FM services. We also sought comment on proposals to
reduce the potential for licensing abuses.
70.
In this Sixth Report and Order, we adopt an LPFM service standard for second-adjacent
channel spacing waivers (“second-adjacent waivers”), in accordance with Section 3(b)(2)(A) of the
LCRA. We also specify the manner in which a waiver applicant can satisfy this standard and the manner
in which we will handle complaints of interference caused by LPFM stations operating pursuant to
second-adjacent waivers. As specified in Section 7 of the LCRA, we establish separate third-adjacent
channel interference remediation regimes for short-spaced and fully-spaced LPFM stations. Finally, as
mandated by Section 6 of the LCRA, we modify our Rules to address the potential for predicted
interference to FM translator input signals from LPFM stations operating on third-adjacent channels.
71.
We also make a number of other changes to our Rules to better promote the core localism
and diversity goals of LPFM service. Specifically, we modify our Rules to clarify that the localism
requirement set forth in Section 73.853(b) applies not just to LPFM applicants but also to LPFM
permittees and licensees. We revise our Rules to permit cross-ownership of an LPFM station and up to
two FM translator stations, but we adopt a number of restrictions on such cross-ownership in order to
ensure that the LPFM service retains its extremely local focus. In the interests of advancing the
Commission’s efforts to increase ownership of radio stations by federally recognized American Indian
Tribes and Alaska Native Villages (“Tribal Nations”) or entities owned or controlled by Tribal Nations,
we revise our Rules to explicitly provide for the licensing of LPFM stations to Tribal Nations or entities
owned and controlled by Tribal Nations (collectively, “Tribal Nation Applicants”), and to permit Tribal
Nation Applicants to own or hold attributable interests in up to two LPFM stations. In addition, we
modify the point system that we use to select from among MX LPFM applications. Specifically, we
revise the established community presence criterion; retain the local program origination criterion; and
add new criteria to promote the establishment and staffing of a main studio, radio service proposals by
Tribal Nation Applicants to serve Tribal lands, and new entry into radio broadcasting. Given these
changes, we revise the existing exception to the cross-ownership rule for student-run stations. We also
modify the way in which involuntary time sharing works, shifting from sequential to concurrent license
terms and limiting involuntary time sharing arrangements to three applicants. We adopt mandatory time
sharing, which previously applied to full-service NCE stations but not LPFM stations, for the LPFM
service. We also revise our Rules to eliminate the LP10 class of LPFM facilities and eliminate the


124 Although a defective per-market showing will result in dismissal of all but the first-filed application in the
relevant market, in applying the national cap, we will dismiss only those applications for which a required showing
is defective. We believe that dismissing all rural applications across the nation because of one defective filing would
be unduly harsh, whereas dismissal of all but the first-filed application, where a showing under the per-market cap is
defective, is appropriate because the applicant can still prosecute the first-filed application in that market.
125 Creation of a Low Power Radio Service, Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking
and Third Order on Reconsideration, 27 FCC Rcd 3315 (2012) (“Fourth Further Notice” or “Fifth Report and
Order
”).
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intermediate frequency (“I.F.”) protection requirements applicable to LPFM stations. Finally, we briefly
discuss administrative aspects of the upcoming filing window for LPFM stations.

A.

Waiver of Second-Adjacent Channel Minimum Distance Separation Requirements

72.
Section 3(b)(2)(A) of the LCRA explicitly grants the Commission the authority to waive
the second-adjacent channel spacing requirements set forth in Section 73.807 of the Rules.126 It permits
second-adjacent waivers where an LPFM station establishes, “using methods of predicting interference
taking into account all relevant factors, including terrain-sensitive propagation models,” that its proposed
operations “will not result in interference to any authorized radio service.”127 In the Fourth Further
Notice,
we tentatively concluded that this waiver standard supersedes the interim waiver processing
policy adopted by the Commission in 2007.128 We sought comment on this tentative conclusion. The
three commenters that addressed this tentative conclusion agreed with it.129 As we noted in the Fourth
Further Notice
, the interim waiver processing policy requires the Commission to “balance the potential
for new interference to the full-service station at issue against the potential loss of an LPFM station.”130
This balancing is inconsistent with the language of Section 3(b)(2)(A) of the LCRA described above,
which does not contemplate such a balancing.131 Accordingly, we affirm our tentative conclusion that the
waiver standard set forth in the LCRA and discussed herein supersedes the interim waiver processing
policy previously adopted by the Commission.132
73.
In the Fourth Further Notice, we sought comment on the factors relevant to and
showings appropriate for second-adjacent waiver requests.133 Some commenters express support for a
requirement that waiver applicants demonstrate there are no fully-spaced channels available, 134 a


126 47 C.F.R. § 73.807.
127 LCRA § 3(b)(2)(A).
128 Fourth Further Notice, 27 FCC Rcd at 3323 ¶ 18. Under the interim waiver processing policy, an LPFM station
that received increased interference from or was displaced by a new or modified full-service FM station could seek
waiver of the second-adjacent channel spacing requirements in connection with an application to move to a new
channel. Third Report and Order, 22 FCC Rcd at 21939-40 ¶¶ 64-67.
129 NPR Comments at 5; EMF Comments at 2; Grant County Broadcasters, Inc. (“Grant County”) Comments at 1.
130 Fourth Further Notice, 27 FCC Rcd at 3323 ¶ 18, citing Third Report and Order, 22 FCC Rcd at 21939 ¶ 65.
131 LCRA § 3(b)(2)(A).
132 There are a small number of LPFM stations operating pursuant to special temporary authority (“STA”) granted
under the interim waiver processing standard. REC urges us to grandfather the operations of these stations. See
REC Comments at 16-17; REC Reply Comments at 14. We believe that the following alternative approach is more
consistent with the requirements of the LCRA. Should one of these stations wish to continue to operate at a variance
from the second-adjacent channel spacing requirements, within 30 days following the effective date of the rule
implementing the second-adjacent waiver policy set forth in the LCRA and herein, the station may amend its
pending application for a construction permit to operate with the facilities specified in its STA and attach an exhibit
that demonstrates that its operations will not result in any interference to any authorized radio service. We note that
such a station’s history of operating at a variance from the second-adjacent channel spacing requirements without
any complaints of interference would be a relevant factor in determining whether that station’s operations will result
in any interference to any authorized radio service. We are revising the Application for Construction Permit for a
Low Power FM Broadcast Station (FCC Form 318) to specifically provide for exhibits associated with second-
adjacent waiver requests.
133 Fourth Further Notice, 27 FCC Rcd at 3323-24 ¶ 19.
134 NPR Comments at 5; National Association of Broadcasters (“NAB”) Reply Comments at 5; Entercom
Communications Corp. (“Entercom”) Reply Comments at 3.
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potential waiver standard about which we specifically sought comment.135 One commenter – the National
Association of Broadcasters (“NAB”) – proposes additional requirements for second-adjacent waivers.136
These commenters argue that the plain language of the LCRA and its legislative history require that the
Commission grant second-adjacent waivers “only in strictly defined circumstances.”137 In contrast,
Prometheus and others argue that “[b]eyond a showing of non-interference as required by the statute, no
other showing should be required for LPFM applicants seeking waivers.”138 Prometheus states that “[t]he
Commission is bound by the LCRA’s terms” and cannot “infer a wide range of additional limitations or
prescriptions that appear nowhere in the statute.”139
74.
We have reviewed both the text of the LCRA and the legislative history. The plain
language of Section 3(b)(2)(A) of the LCRA permits the Commission to grant second-adjacent waivers
where a waiver applicant demonstrates that its proposed operations “will not result in interference to any
authorized radio service.”140 Nothing in the LCRA or its legislative history suggests that Congress
intended to require that waiver applicants make any additional showings.141 The statute does not mandate
any further conditions on the grant of such waivers, and it does not prescribe the burden of proof. We
conclude that Congress intended to ensure that LPFM stations operating pursuant to second-adjacent
waivers do not cause interference to full-service FM and other authorized radio stations. We find that
additional limitations are not needed to achieve this goal.142 Indeed, to require additional showings of
waiver applicants would impose requirements that go beyond those established in the LCRA that we do
not believe are either necessary to the implementation of its interference protection goals or consistent
with the localism and diversity goals underlying the LPFM service. Accordingly, we will not further
restrict the availability of second-adjacent waivers. Likewise, we will not consider any of the other


135 Fourth Further Notice, 27 FCC Rcd at 3323 ¶ 19.
136 See NAB Reply Comments at 7-8 (proposing a presumption of interference where an applicant does not comply
with the second-adjacent spacing requirements, which an applicant must rebut with “clear and convincing evidence”
that no interference will occur; and proposing a requirement that an LPFM applicant seeking a second-adjacent
waiver certify that no other LPFM stations are located within 15 miles of the proposed transmitter site). See also
Entercom Reply Comments at 2-3 (offering support for NAB proposals).
137 NAB Comments at 4-8 (asserting that the plain language of the LCRA and its structure support adoption of a
restrictive approach to waivers); NAB Reply Comments at 3-5 (arguing that the legislative history demonstrates
Congress intended second-adjacent waivers to be granted “only in extremely limited circumstances”); NPR
Comments at 2; Entercom Reply Comments at 1-2.
138 Prometheus Comments at 19. See also REC Comments at 12; Common Frequency, Inc. (“Common Frequency”)
Comments at 3; Common Frequency Reply Comments at 4-5.
139 Prometheus Reply Comments at 3. See also Joint Reply Comments of Prometheus, Amherst Alliance
(“Amherst”), Center for Media Justice, Christian Community Broadcasters, Color of Change, Common Frequency,
Free Press, Future of Media Coalition, Media Alliance, National Hispanic Media Coalition, National Lawyers Guild
Committee on Democratic Communications (“NLG”), REC, United Church of Christ, Office of Communications,
Inc. (collectively, “LPFM Advocates”) at 1, citing LCRA § 3(b)(2)(a). The LPFM Advocates and Common
Frequency also maintain that adoption of a restrictive waiver standard would violate the requirement set forth in
Section 5(3) of the LCRA that FM translator stations and LPFM stations be “equal in status.” LPFM Advocates
Joint Reply Comments at 2; Common Frequency Reply Comments at 4-5. We disagree. We find nothing in the
LCRA or its legislative history to suggest that Congress intended the provision that FM translators and LPFM
stations remain “equal in status” to require the Commission to adopt identical rules for the two services.
140 LCRA § 3(b)(2)(A).
141 Unlike NAB, we are not concerned that second-adjacent waivers will become the exception that swallows the
second-adjacent channel spacing rule. See NAB Comments at 6 n.23.
142 NAB Reply Comments at 6-7; Entercom Reply Comments at 3.
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factors proposed in the Fourth Further Notice in determining whether to grant a waiver request, none of
which received any support in the comments.143
75.
We find unconvincing the policy arguments made by supporters of requiring additional
showings of waiver applicants. For instance, we are not persuaded that any additional limits are needed
to preserve the technical integrity of the FM service.144 Neither NAB nor any other commenter has
offered evidence to support the claim that granting second-adjacent waivers that satisfy the LCRA
requirements will harm audio quality or disrupt the expectations of listeners. Indeed, we are not sure how
any commenter could since waivers will only be granted where an applicant makes a showing that its
proposed operations will not cause interference. Moreover, we note that many FM translators
successfully operate on second-adjacent channels, often at higher effective radiated powers (“ERPs”) and
heights above average terrain (“HAAT”) than LPFM stations, under a protection scheme that permits
second-adjacent channel operations at less than LPFM distance separation requirements. We believe
LPFM stations can operate just as successfully. Should interference occur, the interference remediation
obligations set forth in Section 3(b)(2)(B) of the LCRA145 will serve as a backstop to ensure that the
technical integrity of the FM band is maintained.
76.
We find equally unpersuasive the argument that imposing additional limits on second-
adjacent waivers is in the best interest of LPFM applicants.146 LPFM applicants may lack broadcast
experience and technical expertise, and therefore, may have difficulty predicting interference issues.147
However, Commission staff will review each waiver request and will deny any request that they
determine would cause interference. In addition, while the interference remediation obligations may
prove burdensome to LPFM licensees and may require some LPFM stations to cease operations,148 we do
not see this as a reason to limit waivers. We agree with Prometheus that the potential benefit of
promoting a locally-based non-commercial radio service in potentially thousands of communities
nationwide vastly outweighs the risks that individual LPFM licensees may face.149 In this regard, we note
that, in spectrum-congested markets, few LPFM opportunities would exist without the use of second-
adjacent waivers.150 For instance, applicants will be able to select from 19 unique LPFM channels in the
Denver Arbitron Metro market and 18 in the New Haven Arbitron Metro market if second-adjacent


143 Fourth Further Notice, 27 FCC Rcd at 3323-24 ¶ 19 (2012) (requesting comment on whether to take into account
that a proposal would eliminate or reduce the interference received by the LPFM applicant, avoid a short-spacing
between the proposed LPFM facilities and a full-service FM station, FM translator or FM booster station on a third-
adjacent channel, or result in superior spacing to full-service FM, FM translator or FM booster stations operating on
co- and first-adjacent channels).
144 NAB Comments at 8-9; Entercom Reply Comments at 1-2.
145 See LCRA § 3(b)(2)(B).
146 NPR Comments at 5; Entercom Reply Comments at 2.
147 NAB Comments at 10-11 (“[G]iven the lack of resources and limited experience of many LPFM operators, it will
be challenging for LPFM stations to resume operations by making the technical modifications necessary to eliminate
the harmful interference.”); NAB Reply Comments at 6-7; Entercom Reply Comments at 2; NPR Comments at 5;
EMF Comments at 2-3, 4-5 (“In essence, this requirement poses a death sentence on any LPFM that locates its
transmitter at the wrong location, too close to a full-power station.”).
148 NAB Comments at 8-11; NPR Comments at 5; EMF Comments at 3-5.
149 Prometheus Reply Comments at 6-7.
150 Prometheus Comments at 17 (estimating that, within the Top 150 Arbitron Metro markets, the number of
frequencies available for LPFM applicants could increase by more than 100 percent if a less restrictive waiver policy
is adopted); REC Comments at 13 (stating that, in urban areas, approximately 87 percent of all new construction
permit applications will require a second-adjacent waiver).
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waivers are available. If these waivers are not available, an applicant will have a much more limited
selection – four unique LPFM channels in the Denver Arbitron Metro market and three in the New Haven
Arbitron Metro market.
77.
We turn to the manner in which waiver applicants can “establish, using methods of
predicting interference taking into account relevant factors, including terrain-sensitive propagation
models, that their proposed operations will not result in interference to any authorized radio service.”151
In the Fourth Further Notice, we asked whether we should permit LPFM applicants to make the sort of
showings we routinely accept from FM translator applicants to establish that “no actual interference will
occur.”152 A number of commenters offer general support for this proposal.153 Prometheus grounds its
support in the fact that, read together, Sections 3(b)(2)(A) and (B) of the LCRA “set out a second adjacent
waiver standard substantially identical to the rules allocating translators on the second adjacent
frequency.”154 NAB opposes the use of these showings by waiver applicants, arguing that it could lead to
“over-packing of the FM band, unwanted interference, and the degradation of listeners’ experience.”155
NAB, however, does not offer any evidence to support its claims. Nor does NAB explain why the
operations of the very large number of FM translators that have relied on these showings do not cause the
same interference and signal degradation problems they predict as a result of LPFM second-adjacent
waivers. NPR also opposes allowing LPFM applicants to make the same showings as FM translators.
NPR argues that there are “significant differences” between the LPFM and FM translator services.156


151 LCRA § 3(b)(2)(A).
152 Fourth Further Notice, 27 FCC Rcd at 3323 ¶ 18, citing 47 C.F.R. § 74.1204(d).
153 Prometheus Comments at 17-19; NLG and Media Alliance Comments at 5; Common Frequency Comments at 2;
Magrill Comments at 3. REC urges us to treat waiver applicants like NCE FM stations instead, waiving protection
requirements where an applicant demonstrates that interference from its proposed operations will affect only a de
minimis
population. REC Comments at 13-15; REC Reply Comments at 14. REC argues that the Commission has
the discretion to define the term “interference” in the LCRA. Comments of REC Networks at 13. We do not
believe it would be appropriate to exercise any such discretion to adopt the broader kind of waiver analysis that
might be appropriate in other contexts. In Section 3(b)(2)(A) of the LCRA, Congress authorized the Commission to
grant second-adjacent waivers only if LPFM stations operating pursuant to such waivers would not cause
“interference.” The essential purpose of the Act was to implement a set of protections designed to avoid
interference. Congress could have incorporated instead a more flexible standard, but it did not do so. In this
particular context – as discussed below, the LCRA provides greater flexibility to LPFM stations, but
counterbalances that flexibility with strict limits on actual interference to other stations, see infra ¶ 89 – we believe
that Congress’s use of the term “interference” reasonably may be interpreted to require that no interference, de
minimis
or otherwise, would be caused by the operations of an LPFM station operating pursuant to a second-
adjacent waiver. For this same reason, we reject the proposal that we “borrow” from the NCE FM/TV-6 rules, 47
C.F.R. §§ 73.525(b) & (c), and “allow[ ] for a population minimum (with promise to ameliorate) to exist in the
‘problem’ area.” Mike Friend (“Friend”) Comments at 1. Finally, we note that Educational Information Corp.,
Memorandum Opinion and Order, 6 FCC Rcd 2207 (1991) (“EIC”), which REC cites, is inapposite. EIC addresses
the Commission’s policy to waive the prohibition on contour overlap to allow an applicant to receive – as opposed
to cause – de minimis levels of interference. In EIC, the Commission did state that, in certain very limited
circumstances, it would waive the prohibition on contour overlap to allow an applicant to cause interference within
the protected contour of another station operating pursuant to a waiver allowing it to receive a de minimis level of
interference. The balancing of “the benefit of increased noncommercial educational service” against “the potential
for interference” in EIC, 6 FCC Rcd at 2208 ¶ 10, however, is the kind of balancing that, as noted above, the LRCA
does not permit.
154 Prometheus Comments at 17-19, citing 47 C.F.R. §§ 74.1203 & 74.1204(d).
155 NAB Comments at 7 n.26.
156 NPR Reply Comments at 8-9. Grant County does not support allowing any applicant – FM translator or LPFM –
to demonstrate “no interference” by showing that there is no population within the contour overlap area. Grant
(continued….)
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However, it does not explain how these differences – the ability to originate programming or lack thereof,
the highly local nature of the LPFM service, the relative inexperience of LPFM licensees when compared
to FM translator licensees – would justify different waiver standards for FM translators and LPFM
stations. We are not persuaded that the differences that NPR cites have any impact on whether a station
will cause interference. Rather, the potential for interference is principally dependent on the propagation
characteristics of the “protected” and “interfering” FM signals and the quality of the utilized FM receiver.
78.
We will permit waiver applicants to demonstrate that “no actual interference will occur”
in the same manner as FM translator applicants. Put another way, we will permit waiver applicants to
show that “no actual interference will occur” due to “lack of population”157 and will allow waiver
applicants to use an undesired/desired signal strength ratio methodology to define areas of potential
interference when proposing to operate near another station operating on a second-adjacent channel.158
Although the LCRA does not require the Commission to incorporate for second-adjacent channels the FM
translator regime that Congress incorporated for third-adjacent channel interference protection, as
Prometheus notes the second-adjacent waiver provisions of the LCRA establish a regime similar to that
governing FM translators. Given the discretion afforded by Congress to the Commission for determining
appropriate “methods of predicting interference,” our experience in connection with methods for doing so
in the analogous context of FM translators, and the similarities between the regime established in Sections
3(b)(2)(A) and (B) and the regime applicable to FM translator stations, we believe it is appropriate to
grant waiver applicants the same flexibility as FM translator applicants to demonstrate that, despite
predicted contour overlap, interference will not in fact occur due to an absence of population in the
overlap area. We note that, like FM translator stations, LPFM stations operating pursuant to second-
adjacent waivers may not cause any actual interference.159
79.
We also will permit waiver applicants to propose use of directional antennas in making
these showings. This is consistent with our treatment of FM translator applicants and supported by the
vast majority of commenters.160 We clarify that, like FM translator applicants, waiver applicants may use
“off the shelf” antenna patterns and will not be required to submit information regarding the
characteristics of the pattern with the construction permit application.161 In addition, as requested by
(Continued from previous page)


County Comments at 1. Grant County opposes this because it prevents full-service stations from serving an area
where there might be significant growth in the future. Id. NPR made a similar argument when we first considered
and adopted the “lack of population” exception to the prohibited contour overlap rule. See Amendment of Part 74 of
the Commission's Rules Concerning FM Translator Stations
, Report and Order, 5 FCC Rcd 7212, 7229 ¶ 120 (1990)
(noting NPR’s argument that the absence of population in a given interference zone today may not be accurate in the
near future). We decline to revisit the issue here.
157 See 47 C.F.R. § 74.1204(d).
158 See Living Way Ministries, Inc., Memorandum Opinion and Order, 17 FCC Rcd 17054, 17056 ¶ 5 (2002), recon.
denied
23 FCC Rcd 15070 (2008).
159 See LCRA § 3(b)(2)(B).
160 Only du Treil, Lundin, & Rackley, Inc. (“du Treil”) opposes it. du Treil Comments at 4. We find unpersuasive
du Treil’s argument that, because the LPFM allocation methodology itself is based upon minimum distance
separations which do not take into account the effects of directional antennas, directional antennas offer no real
allocation benefit. We intend to allow waiver applicants to demonstrate that there will be no interference through
the use of interference contours. Use of a directional antenna may offer some benefit in making such a showing.
Because the second-adjacent channel interfering contour for LPFM stations will generally encompass only the area
in the immediate vicinity of an LPFM station’s transmitter site, directional antennas may be of limited assistance to
waiver applicants. We are not persuaded, however, that as a result we should refuse to consider any showings based
on proposed use of a directional antenna.
161 See Community Media and Assistance Project Comments (“CMAP”) at 6; Common Frequency Comments at 20.
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Prometheus and Common Frequency,162 we will permit waiver applicants to propose lower ERPs and
differing polarizations in order to demonstrate that their operations will not result in interference to any
authorized radio service. We expect that this flexibility will facilitate the expansion of the LPFM service
while still protecting the technical integrity of the FM band. In terms of proposals specifying lower
ERPs, we will not accept proposals to operate at less than current LPFM minimum permissible facilities
(i.e., power levels of less than 50 watts ERP at 30 meters HAAT, or its equivalent).163 Since the proposed
operating parameters of a waiver applicant will be available in our Consolidated Database System
(“CDBS”) and since we do not require other applicants seeking waivers of our technical rules to serve
their waiver requests on potentially affected stations, we will not require an LPFM applicant seeking a
second-adjacent waiver to serve its waiver request on any potentially affected station.164 We will,
however, instruct the Media Bureau to identify specifically all potentially affected second-adjacent
channel stations in the public notice that accepts for filing an application for an LPFM station that
includes a request for a second-adjacent waiver.
80.
We remind potential LPFM applicants that the LCRA permits the Commission to grant
waivers only of second-adjacent, and not co- and first-adjacent, spacing requirements.165 The flexibility
discussed above regarding lower power, polarization and directional patterns extends only to waiver
applicants seeking to demonstrate that their proposed operations will not result in any second-adjacent
channel interference. We also caution LPFM applicants against using this technical flexibility to limit the
already small service areas of LPFM stations to such an extent that, while their LPFM applications are
grantable, the LPFM stations will not be viable. As the Media Bureau noted recently “the limitations on
the maximum power of LPFM stations substantially reduce the number of potential listeners they can
serve.”166 The Media Bureau went on to note that “[t]he low power of an LPFM station affects not only
its geographic reach and coverage area, but also the quality of its signal and the ability of listeners to
receive its signal consistently inside the station’s coverage area.”167 Finally, we take this opportunity to
make clear the protection obligations of FM translators toward LPFM stations operating with lower
powers, differing polarizations and/or directional antennas. To simplify matters and provide clear
guidance to FM translator applicants, we will require FM translator modification applications and
applications for new FM translators to treat such LPFM stations as operating with non-directional
antennas at their authorized power.168
81.
We turn now to what happens if an LPFM station operating pursuant to a second-adjacent
channel waiver causes interference. Section 3(b)(2)(B) provides a framework for handling an interference
complaint resulting from an LPFM station operating pursuant to a second-adjacent waiver “without
regard to the location of the station receiving interference.”169 Upon receipt of a complaint of interference


162 Prometheus Comments at 20-21; Prometheus Reply Comments at 4; Common Frequency Comments at 3.
163 See 47 C.F.R. § 73.811(a)(2). As discussed infra Part III.D.4, we eliminate the LP10 class of LPFM facilities,
which could operate at ERPs as low as one watt.
164 See EMF Comments at 5; NAB Reply Comments at 8.
165 LCRA §3(b).
166 See Economic Impact of Low-Power FM Stations on Commercial FM Radio: Report to Congress Pursuant to
Section 8 of the Local Community Radio Act of 2010
, Report, 27 FCC Rcd 3 at 64 ¶ 5 (MB 2012) (“LPFM Report”).
167 Id. at 64 ¶ 6.
168 In this context, we believe it is appropriate to protect the possibility of an LPFM station operating with non-
directional facilities. This can provide flexibility for future LPFM station service improvements similar to that
which the LPFM technical rules provide for many translator stations while also minimizing the potential for signal
degradation from subsequently licensed translator stations.
169 LCRA § 3(b)(2)(B).
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caused by an LPFM station operating pursuant to a second-adjacent waiver, the Commission must notify
the LPFM station “by telephone or other electronic communication within 1 business day.”170 The LPFM
station must “suspend operation immediately upon notification” by the Commission that it is “causing
interference to the reception of any existing or modified full-service FM station.”171 It may not resume
operations “until such interference has been eliminated or it can demonstrate . . . that the interference was
not due to [its] emissions.”172 The LPFM station, however, may “make short test transmissions during the
period of suspended operation to check the efficacy of remedial measures.”173
82.
In the Fourth Further Notice, we proposed to incorporate these provisions into our
Rules.174 We will do so. We believe including these provisions in the Rules will provide a clear
framework for the efficient resolution of interference complaints.
83.
We also requested comment on whether to define a “bona fide complaint” for the purpose
of triggering these interference remediation procedures.175 Prometheus urges us to do so and to handle
interference complaints against LPFM stations operating pursuant to second-adjacent waivers in a manner
similar to complaints against FM translators and similar to the former third adjacent channel remediation
requirements.176 As we described in the Fourth Further Notice,177 for FM translators, Section 74.1203(a)
prohibits “actual interference to … [t]he direct reception by the public of the off-the-air signals of any
authorized broadcast station . . . .”178 It specifies that “[i]nterference will be considered to occur
whenever reception of a regularly used signal is impaired by the signals radiated by” the interfering FM
translator station.179
An interfering FM translator station must remedy the interference or cease
operation.180 The Commission has interpreted this rule broadly. It places no geographic or temporal
limitation on complaints.181 It covers all types of interference. The reception affected can be that of a
fixed or mobile receiver. The Commission also has interpreted “direct reception by the public” to limit
actionable complaints to those that are made by bona fide listeners.182 Thus, it has declined to credit
claims of interference183 or lack of interference184 from station personnel involved in an interference
dispute. More generally, the Commission requires that a complainant “be ‘disinterested,’ e.g., a person or


170 LCRA § 3(b)(2)(B)(iii).
171 LCRA § 3(b)(2)(B)(i).
172 LCRA § 3(b)(2)(B)(ii).
173 Id.
174 Fourth Further Notice, 27 FCC Rcd at 3324 ¶ 20.
175 Id.
176 Prometheus Comments at 22.
177 Id. at 3328-29 ¶ 31.
178 47 C.F.R. § 74.1203(a).
179 47 C.F.R. § 74.1203(a)(3).
180 47 C.F.R. § 74.1203(b).
181 See Association for Community Education, Inc., Memorandum Opinion and Order, 19 FCC Rcd 12682, 12688 ¶
15 (2004) (“Association for Community Education”).
182 See Association for Community Education, 19 FCC Rcd at 12688 ¶ 16.
183 See id.
184 See Living Way Ministries, Inc., Memorandum Opinion and Order, 23 FCC Rcd 15070, 15077 n.46 (2008).
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entity without a legal stake in the outcome of the translator station licensing proceeding.”185 The staff has
routinely required a complainant to provide his name, address, location(s) at which FM translator
interference occurs, and a statement that the complainant is, in fact, a listener of the affected station.
Moreover, as is the case with other types of interference complaints,186 the staff has considered only those
complaints of FM translator interference where the complainant cooperates in efforts to identify the
source of interference and accepts reasonable corrective measures.187 Accordingly, when the Commission
concludes that a bona fide listener has made an actionable complaint of uncorrected interference from an
FM translator, it will notify the station that “interference is being caused” and direct the station to
discontinue operations.188
84.
We conclude that it is appropriate to handle complaints in a manner similar to that used to
handle complaints of interference caused by FM translators. As we noted above, we believe that the
LCRA affords the Commission the discretion to rely on our successful FM translator experience in
implementing the interference protection regime for second-adjacent LPFM stations. Accordingly, we
will adopt the same requirements for complaints that we apply in the FM translator context. As described
above, that means that a complaint must come from a disinterested listener189 and must include the
listener’s name and address, and the location at which the interference occurs. We are unconvinced by
NPR’s argument that a listener complaint is unnecessary. While NPR is correct that Section
3(b)(2)(B)(iii) refers simply to “a complaint of interference” and does not specify the source of such
complaint,190 we find this statutory term to be ambiguous. We conclude that it may reasonably be
interpreted to refer to listener complaints. We note that we have interpreted Section 74.1203 of the Rules
to require that complaints of interference in the FM translator context be filed by listeners.191 We also
note that the scope of the rule prohibiting translator stations from causing “actual interference to … direct
reception,” and that of Section 3(b)(2)(B) which prohibits LPFM stations from causing “interference to
the reception of an existing or modified full-service station,”192 are essentially equivalent. The
Commission previously has interpreted the “direct reception” language included in Section 73.1203(a) as
limiting actionable complaints to those that are made by bona fide listeners.193
We believe it is
appropriate to interpret the “reception” language in Section 3(b)(2)(B) of the LCRA as imposing this
same limit.
85.
Once the Commission receives a bona fide complaint of interference from an LPFM
station operating pursuant to a second-adjacent waiver and notifies the LPFM station of the complaint, the


185 Association for Community Education, 19 FCC Rcd at 12688 n.37.
186 See, e.g., Jay Ayer and Dan J. Alpert, Letter, 23 FCC Rcd 1879, 1883 (MB 2008) (requiring complainants to
cooperate fully with the station’s efforts to resolve interference and cautioning that the failure to do so could lead to
a finding that the station has fulfilled its interference remediation obligations).
187 See Radio Power, Inc., Letter, 26 FCC Rcd 14385, 14385-86 (MB 2011) (listing grounds that translator licensee
claimed are sufficient to conclude that complainant has failed to reasonably cooperate and finding that a listener may
reasonably reject a non-broadcast technology to resolve interference claim).
188 See 47 C.F.R. § 74.1203(e); see also Amendment of Part 74 of the Commission’s Rules Concerning FM
Translator Stations
, Report and Order, 5 FCC Rcd 7212, 7230 ¶ 131 (1990), modified, 6 FCC Rcd 2334 (1991),
recon. denied, 8 FCC Rcd 5093 (1993); Association for Community Education, 19 FCC Rcd at 12688 ¶ 15.
189 Association for Community Education, 19 FCC Rcd at 12688 n.37.
190 NPR Reply Comments at 4-5.
191 47 C.F.R. § 74.1203.
192 LCRA § 3(b)(2)(B).
193 See Association for Community Education, 19 FCC Rcd at 12688 ¶ 16.
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LPFM station must “suspend operation immediately” and stay off the air until it eliminates the
interference or demonstrates that the interference was not due to its emissions.194 We conclude that an
LPFM station may demonstrate that it is not the source of the interference at issue by conducting an “on-
off” test. “On-off” tests have been used by the FM translator and other services to determine whether
identified transmissions are “the source of interference.”195 In addition, the Commission specifically
authorized LPFM stations to use “on-off” tests for determining “whether [third-adjacent interference] is
traceable to [an] LPFM station.”196 As the Commission did in that context, we require the full-service
station(s) involved to cooperate in these tests.197

B.

Third-Adjacent Channel Interference Complaints and Remediation

86.
As instructed by Section 3 of the LCRA, in the Fifth Report and Order, we eliminated the
third-adjacent channel spacing requirements. We then sought comment on the associated interference
remediation obligations, set forth in Section 7 of the LCRA, that Congress paired with this change.198
We conclude that Section 7 of the LCRA creates two different LPFM interference protection and
remediation regimes, one for LPFM stations that would be considered short-spaced under the third-
adjacent channel spacing requirements in place when the LCRA was enacted, and one for LPFM stations
that would be considered fully spaced under those requirements. We discuss this conclusion and each of
the regimes below.
1.

LPFM Interference Protection and Remediation Requirements

87.
Two Distinct Regimes. Sections 7(1) and 7(3) of the LCRA both address the interference
protection and remediation obligations of LPFM stations on third-adjacent channels. Only Section 7(1)
specifies requirements for “low-power FM stations licensed at locations that do not satisfy third-adjacent
channel spacing requirements . . . .”199 With regard to such stations (“Section 7(1) Stations”), Section
7(1) instructs the Commission to adopt “the same interference protections that FM translator stations and
FM booster stations are required to provide as set forth in Section 74.1203 of [the] rules.”200 Section 7(3),
in contrast, directs the Commission to require “[LPFM] stations on third-adjacent channels … to address
interference complaints within the protected contour of an affected station” and encourages such LPFM


194 LCRA §§ 3(b)(2)(B)(i) & (ii). We note that Section 7(4) of the LCRA expressly requires the Commission, to the
extent possible, to permit LPFM FM stations on third-adjacent channels to remediate interference through
colocation. We believe we should also offer such flexibility to stations operating pursuant to second-adjacent
waivers. Nothing in Section 3(b)(2)(B) of the LCRA deprives the Commission of discretion to adopt such a
remediation policy with regard to second-adjacent waivers. Accordingly, we will entertain requests to waive
Section 73.871 of our Rules, 47 C.F.R. § 73.871, to permit stations operating pursuant to second-adjacent waivers to
file applications outside of LPFM filing windows that are designed to remediate interference and that propose
colocation with or moves closer to short-spaced stations operating on second-adjacent channels.
195 See, e.g., Educational Communications of Colorado Springs, Inc., Notice of Violation, 2007 FCC LEXIS 1635,
*2 ¶ 2 (EB 2007). See also Amendment of Parts 1, 21 and 74 to Enable Multipoint Distribution Service and
Instructional Television Fixed Service Licensees to Engage in Fixed Two-Way Transmissions
, Report and Order on
Reconsideration, 14 FCC Rcd 12764, 12772 ¶ 17 (noting that “in most cases a simple on-off test will demonstrate
whether a facility is causing harmful interference” and explaining that “such a test can be performed very quickly”).
196 47 C.F.R. § 73.810(d).
197 Id.
198 See Fourth Further Notice, 27 FCC Rcd at 3327-32 ¶¶ 26-41. See also LCRA § 7.
199 LCRA § 7(1).
200 Id.
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stations to address “all other interference complaints.”201 In the Fourth Further Notice, we tentatively
concluded that, through these two provisions, Congress intended to create two different interference
protection and remediation regimes – one that applies to Section 7(1) Stations and one that applies to all
other LPFM stations (“Section 7(3) Stations”).202 We explained that the intended regimes differed both
with respect to the locations at which an affected station’s signal is protected from third-adjacent
interference from an LPFM station and the extent of the remediation obligations applicable when
interference occurs at these locations.203 We sought comment on our tentative conclusion.
88.
Commenters addressing this question support our tentative conclusion.204 Accordingly,
we find that Section 7 of the LCRA creates two different interference protection and remediation regimes
– one that applies to Section 7(1) Stations and one that applies to Section 7(3) Stations. As we noted in
the Fourth Further Notice, were we to conclude otherwise, Section 7(1) Stations would be subject to
different and conflicting interference protection and remediation obligations. Specifically, under Section
7(1), which incorporates the requirements for FM translators and boosters, Section 7(1) Stations must
“eliminate” any actual interference they cause to the signal of any authorized station in areas where that
station’s signal is “regularly used.”205 Section 7(3), on the other hand, would obligate such stations only
to “address” complaints of interference occurring within an affected station’s protected contour.206 We
conclude that this statutory interpretation is necessary to read Section 7 as a harmonious whole.207
89.
As we noted in the Fourth Further Notice, we can also reasonably conclude that
Congress intended to impose more stringent interference protection and remediation obligations on LPFM
stations that are located nearest to full-service FM stations and, therefore, have a greater potential to cause
interference.208 The LCRA provides greater flexibility by eliminating third-adjacent channel spacing


201 LCRA § 7(3).
202 Fourth Further Notice, 27 FCC Rcd at 3326 ¶ 26. Until amended by the LCRA, Section 632 of the 2001 D.C.
Appropriations Act barred the Commission from granting waivers of the third-adjacent channel spacing
requirements. Thus, there currently are no LPFM stations that would be considered short-spaced to any full-service
FM, FM translator or FM booster stations under the third-adjacent channel spacing requirements that we eliminated
in the Fifth Report and Order.
203 Fourth Further Notice, 27 FCC Rcd at 3326-27 ¶¶ 26-27.
204 See REC Comments at 5; Prometheus Comments at 7, 23; Athens Community Radio Foundation (“ACRF”)
Comments at 2; NAB Comments at 8 (supporting the Commission’s view that the LCRA creates two different
interference protection and remediation schemes, and finding that the Commission “has proposed a reasonable,
practical approach to resolving these third-adjacent channel interference complaints.”); NPR Comments at 5-6. See
also
Southwestern Ohio Public Radio (“SOPR”) Comments at 2 (expressing a belief “that sections 7(1) and 7(3) of
the LCRA contain conflicting direction, and a preference that a single standard apply to all stations” but noting that
“the proposed Commission solution may make the best of this bad situation by applying [separate standards]”).
205 See 47 C.F.R. § 74.1203(a)(3).
206 LCRA § 7(3).
207 See, e.g., United Savings Ass’n v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371 (1988) (“Statutory
construction is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its
meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible
with the rest of the law.”).
208 Common Frequency questions this reasoning and asserts that our statement that “Section 7(1) stations are located
nearest to full-service FM stations and have the greatest potential to cause interference” runs contrary to broadcast
engineering theory. See Common Frequency Comments at 6-7. Common Frequency asserts that “U/D methodology
predicts LPFM stations proposed closer to full power stations have less interference to the full power station than
ones proposed further away.” See Common Frequency Comments at 6-7. It is true that an LPFM station that would
be considered short-spaced to another station operating on a third-adjacent channel may reduce (or eliminate) its
(continued….)
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requirements for LPFM stations, but counterbalances that flexibility with a prohibition on LPFM stations
that would be short-spaced under such requirements causing any actual interference to other stations.
Accordingly, our reading is consistent with the general licensing rule of counterbalancing flexible
technical standards with more stringent interference remediation requirements.209
90.
Retention of Third-Adjacent Channel Spacing Requirements for Reference. We
tentatively concluded that, although Section 3(a) of the LCRA mandates the elimination of the third-
adjacent channel spacing requirements, we should retain them solely for reference purposes in order to
implement Section 7(1) of the LCRA.210 We sought comment on this tentative conclusion and also on
whether, if the spacing tables are retained in the Rules, to include them in Section 73.807 or a different
rule section.
91.
Commenters addressing this issue agree that the rules should reference the former third-
adjacent channel distance separation requirements, but are divided on the best approach.211
REC
expresses concern that references to third-adjacent spacing in Section 73.807 could confuse new
applicants.212 Common Frequency asserts that it would be confusing to eliminate the third-adjacent
spacing provisions, rename them, and then insert them in a table elsewhere in the Rules.213

92.
We will retain the third-adjacent channel spacing provisions in Section 73.807 for
reference purposes only. It is necessary to reference the former third-adjacent channel spacing
requirements in order to clarify which stations must adhere to the Section 7(1) regime.214 We are
sympathetic to commenters’ concerns of confusion. However, we believe that licensees will find it easier
and more convenient to have all the spacing standards (reference or otherwise) in one section of the
Rules. We make clear in the new version of Section 73.807 that LPFM stations need not satisfy these
standards, and that they are included solely to determine which third-adjacent interference regime applies.
93.
Applicability of Sections 7(4) and (5) of the LCRA. Sections 7(4) and (5) of the LCRA
establish a number of protection and interference remediation requirements. These provisions mandate
that the Commission allow LPFM stations on third-adjacent channels to collocate215 and establish certain
(Continued from previous page)


area of predicted interference, as defined by the ratio of the two stations’ signal strengths, by moving closer to the
other station. However, in all instances, the proposed operations of an LPFM station that would be considered fully-
spaced under the now non-binding third-adjacent spacing requirements would never generate an area of predicted
interference as defined by the ratio methodology. Thus, Section 7(1) Stations have a greater potential to cause
interference, and it is reasonable to assume that Congress intended to recognize that distinction.
209 Fourth Further Notice, 27 FCC Rcd at 3327 ¶ 27, citing Further Notice, 20 FCC Rcd at 6779 ¶ 36.
210 Fourth Further Notice, 27 FCC Rcd at 3327 ¶ 28.
211 See REC Comments at 4; Common Frequency Comments at 11; SOPR Comments at 2.
212 REC Comments at 4.
213 Common Frequency Comments at 11.
214 REC suggests that, because third-adjacent channel spacing is the same as second-adjacent channel spacing for
full-service domestic FM stations, we could eliminate the column for third-adjacent channel spacings in Section
73.807, and instead, refer to the second-adjacent channel values. REC Comments at 4. We decline to adopt this
approach because we believe such a cross-reference to unrelated rules is more likely to create confusion than the
retention of the third-adjacent spacing requirements in Section 73.807 with the clarification of their limited purpose.
215 LCRA § 7(4).
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complaint procedures and standards.216 In the Fourth Further Notice, we tentatively concluded these
sections apply only to Section 7(3) Stations.217
94.
We affirm our tentative conclusion, which was supported by Prometheus, the sole
commenter on this issue.218 We believe this is the most reasonable reading of these provisions. Sections
7(4) and (5) use the same “low-power FM stations on third-adjacent channels” language as Section 7(3),
not the more specific “low-power FM stations licensed at locations that do not satisfy third-adjacent
channel spacing requirements” language set forth in Section 7(1). In addition, as discussed above,
Section 7(1) Stations are subject to the well-established and comprehensive interference protection and
remediation regime set forth in Section 74.1203 of the Rules. We therefore will not apply Sections 7(4)
and 7(5), which establish discrete requirements inconsistent with the Section 74.1203 regime, to Section
7(1) stations.
95.
Third-Adjacent Channel Interference Only. We tentatively concluded that Sections 7(1),
(2), (3), (4) and (5) of the LCRA apply only to third-adjacent channel interference. We affirm our
conclusion, which commenters support.219 Although Congress did not specify the type of interference to
which these provisions apply, we believe this is the most reasonable reading. In each of these provisions,
Congress refers specifically to LPFM stations on third-adjacent channels or LPFM stations that do not
satisfy the third-adjacent channel spacing requirements. These references reflect a focus on LPFM
stations causing interference to stations located on third-adjacent channels. Our conclusion is further
supported by the fact that Congress separately addressed the possibility of second-adjacent channel
interference in Section 3 of the LCRA.
2.

Regime Applicable to Section 7(1) Stations

96.
General Requirements. Section 7(1) Stations are subject to the same interference
protection and remediation regime applicable to FM translator and booster stations. These requirements,
set forth in Section 74.1203 of the Rules,220 are more stringent than those currently applicable to LPFM
stations. Section 74.1203(a) prohibits “actual interference to … [t]he direct reception by the public of the
off-the-air signals of any authorized broadcast station . . . .”221 It specifies that “[i]nterference will be
considered to occur whenever reception of a regularly used signal is impaired by the signals radiated by”
the interfering FM translator station.222 An interfering FM translator station must remedy the interference
or cease operation.223 As previously noted, the rule has been interpreted broadly.224
97.
Southwestern Ohio Public Radio (“SOPR”), the only commenter to address this issue,
comments that “it appears that the requirements in Section 7(1) give the Commission very little leeway in
its interpretation.”225 Section 7(1) is explicit in its direction to “provide the same interference protections


216 LCRA § 7(5).
217 Fourth Further Notice, 27 FCC Rcd at 3328 ¶ 30.
218 See Prometheus Comments at 23.
219 Two commenters support this conclusion; no commenter objects. See REC Comments at 5; Prometheus
Comments at 23.
220 47 C.F.R. § 74.1203.
221 47 C.F.R. § 74.1203(a).
222 47 C.F.R. § 74.1203(a)(3).
223 47 C.F.R. § 74.1203(b).
224 See supra ¶ 83.
225 SOPR Comments at 2.
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that FM translator stations and FM booster stations are required to provide as set forth in Section
74.1203.”226 There is no evidence in the statute or legislative history that Congress intended the Section
74.1203 requirements to be merely a list of minimum criteria that could be supplemented or modified;
indeed, the statute expressly says that the interference protections must be “the same.” Further, the
LCRA refers to the particular version of Section 74.1203 “in effect on the date of enactment of this Act”
(i.e., January 4, 2011). Accordingly, we will apply the relevant sections of Section 74.1203, without
modification, to Section 7(1) Stations.227 We will interpret these provisions in the same manner as we
have in the FM translator context. In addition, we will consider directional antennas, lower ERPs and/or
differing polarizations to be suitable techniques for eliminating third-adjacent channel interference. FM
translators have the flexibility to employ all of these options in their operations.228 Thus, permitting
LPFM stations to use these same remedial techniques is consistent with Congress’ decision to require the
wholesale adoption of the well-established and comprehensive regime in Section 74.1203 of the Rules.229
98.
Periodic Announcements. We also requested comment on requiring newly constructed
Section 7(1) Stations to make the same periodic announcements required of Section 7(3) Stations under
Section 7(2) of the LCRA. We questioned whether we could reasonably distinguish between listeners of
stations that may experience interference as a result of the operations of Section 7(1) Stations and those
that may experience interference as a result of the operations of Section 7(3) Stations for such purposes.
We noted, however, that Section 7(1) explicitly requires the Commission to “provide the same [LPFM]
interference protections that FM translator stations … are required to provide as set forth in section
74.1203 of its rules,” and that Section 74.1203 does not require an FM translator station to broadcast
periodic announcements that alert listeners to the potential for interference.230 Thus, we asked
commenters to address whether we could and, if so, whether we should impose the periodic
announcement requirement on Section 7(1) Stations.
99.
Commenters addressing this issue were divided. SOPR states that the Commission must
strictly adhere to the requirements of Section 74.1203, in accordance with the Section 7(1) mandate, and
therefore, periodic announcements should not be required of Section 7(1) Stations.231 Similarly, Common
Frequency highlights the inconsistency of the Commission finding distinctions between Section 7(1) and
7(3) Stations, but then conversely stating that there is no reason to distinguish between Section 7(1)
Stations and Section 7(3) Stations for purposes of periodic announcements.232 REC, on the other hand,
argues that the Section 7(2) periodic announcement requirement applies to Section 7(1) Stations.233 It


226 LCRA § 7(1).
227 The regime set forth in Section 74.1203(a), (b), and (e) will apply to Section 7(1) Stations. See 47 C.F.R. §
74.1203(a), (b), and (e). We note that Sections 74.1203(c) and (d) of the rules, 47 C.F.R. §§ 74.1203(c) and (d),
contain exemptions from the remediation requirements set forth in Sections 74.1203(a) and (b) for FM booster and
fill-in FM translator stations causing interference to their primary stations' signals. These provisions are irrelevant
to LPFM stations, which originate their own programming and, therefore, do not have primary stations.
228 See 47 C.F.R. §§ 74.1235(b) & (i) (discussing use of both non-directional and directional antennas), (g)
(specifically permitting use of horizontal, vertical, circular or elliptical polarizations). Unlike Section 73.811, 47
C.F.R. § 73.811, Section 74.1235 does not specify the minimum facilities with which an FM translator may operate.
229 Although LCRA Section 7(1) refers only to Section 74.1203, and not Section 73.1235, the former section’s
reference to “suitable techniques” for eliminating interference is intended to include these established techniques set
forth in the latter section.
230 See LCRA § 7(1); 47 C.F.R. § 74.1203.
231 SOPR Comments at 2.
232 Common Frequency Comments at 10.
233 REC Comments at 5-6.
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believes “that the differences in references to how a LPFM station operating on a third adjacent channel
in respect to a full-service FM station may be due to how the 2010 version of the LCRA was marked-up
by Congress,”234 and that Congress intended the periodic announcement requirement to apply to all LPFM
stations constructed on third-adjacent channels.
100.
We believe that Congress, in framing Section 7, did not intend to apply the periodic
announcement requirement to Section 7(1) Stations. If it had wished to apply this requirement to Section
7(1) Stations, it could have done so explicitly in the LCRA. Instead, Congress required our wholesale
adoption of the well-established and comprehensive Section 74.1203 regime for Section 7(1) Stations.
That regime does not include any form of periodic announcements. We agree with Common Frequency
that it is incongruous to find clear distinctions between the Section 7(1) and 7(3) Station interference
protection and remediation regimes, as we have done, but then to ignore these distinctions in this context.
Accordingly, for the reasons discussed above, we will not impose a periodic announcement requirement
on Section 7(1) Stations.
3.

Regime Applicable to Other LPFM Stations

101.
Section 7(3) of the LCRA requires the Commission to modify Section 73.810 of the
Rules to require Section 7(3) Stations “to address interference complaints within the protected contour of
an affected station” and encourage them to address all other interference complaints, including complaints
“based on interference to a full-service FM station, an FM translator station or an FM booster station by
the transmitter site of a low-power FM station on a third-adjacent channel at any distance from the full-
service FM station, FM translator station or FM booster station.”235 As noted above, we conclude that
Sections 7(2), (4) and (5) apply only to Section 7(3) Stations. We discuss the general interference
remediation requirements set forth in Section 7(3) and these other provisions below.
102.
“Addressing” Complaints of Third-Adjacent Channel Interference. Unlike Section 7(1),
Section 7(3) does not specifically refer to Section 74.1203 of the Rules. While Section 7(1) instructs the
Commission to require Section 7(1) Stations “to provide” interference protections, Section 7(3) merely
instructs the Commission to require Section 7(3) Stations “to address” complaints of interference.
Section 7(2) of the LCRA – which we conclude applies only to Section 7(3) Stations – further mandates
that we require newly constructed Section 7(3) Stations on third-adjacent channels to cooperate in
“addressing” any such interference complaints.236 Therefore, in the Fourth Further Notice, we sought
comment on (1) what a Section 7(3) Station must do to “address” a complaint of third-adjacent channel
interference; (2) whether to specify the scope of efforts which a Section 7(3) Station must undertake; (3)
whether to relieve a Section 7(3) Station of its obligations in instances where the complainant does not
reasonably cooperate with the Section 7(3) Station’s remedial efforts;237 and (4) whether the more lenient
interference protection obligations currently set forth in Section 73.810 should continue to apply to
Section 7(3) Stations.


234 Id. at 5, citing 111 Cong. 1 HR 1147 at § 8. REC notes that the proposed Local Community Radio Act of 2009
only had references to “low-power FM stations [constructed] on third-adjacent channels” and did not contain the
language in the 2010 LCRA that referred to “low power FM stations that do not satisfy third-adjacent channel
spacing requirements under Section 73.807 of the Commission’s Rules.”
235 LCRA § 7(3).
236 Section 7(2) also directs the Commission to require newly constructed Section 7(3) Stations to notify the
Commission and all affected stations on third-adjacent channels of an interference complaint by electronic
communication within 48 hours of the receipt of such complaint.
237 Section 73.810(c) currently specifies that “[a] complaint will be considered resolved where the complainant does
not reasonably cooperate with an LPFM station’s remedial efforts.” 47 C.F.R. § 73.810(c).
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103.
Commenters offer varied interpretations of the actions a Section 7(3) Station must take to
“address” a complaint of third-adjacent channel interference. SOPR argues that “to address” means “to
respond to the complaint with reasonable effort to remediate the interference based on accepted
engineering practices and with the cooperation of the complainant.”238 It urges the Commission to clearly
specify the scope of required efforts. Common Frequency proposes that “addressing” interference
complaints “could mean visiting the impacted area, turning on the receiver in question, and shutting down
temporarily.”239 NPR, in contrast, contends that this phrase imposes the full scope of Section 7(1)
remediation requirements on Section 7(3) stations when interference occurs within the protected contour
of the affected station.240 Notwithstanding these divergent interpretations, we find unanimous support for
relieving Section 7(3) Stations of their obligations in instances where a complainant does not reasonably
cooperate with an LPFM station’s remedial efforts.241 Finally, in lieu of applying the interference
protection obligations currently set forth in Section 73.810 to Section 7(3) Stations, one commenter
suggests that we instead employ the current FM translator rules, which, it asserts, “have worked for
decades and [are] seen as ‘tried and tested.’”242
104.
We find that it is most reasonable to conclude that the substantial differences between the
language of Sections 7(1) and 7(3) reflect Congress’s intention to establish differing remediation regimes
for these two classes of stations. Moreover we find a clear difference in meaning between the Section
74.1203 obligation to “eliminate” interference and the lesser Section 7(3) obligation to “address . . .
interference complaints.” Accordingly, we will define “address” in accordance with the current version
of Section 73.810 of the Rules, meaning “an LPFM station will be given a reasonable opportunity to
resolve all interference complaints.” We will not require Section 7(3) Stations to cease operations while
resolving interference complaints, and we decline to specify the scope of remedial efforts Section 7(3)
Stations must undertake. Section 7(3) Stations fully comply with the Commission’s former third-adjacent
spacing requirements, a stringent licensing standard, which is based on a proven methodology for
ensuring interference-free operations between nearby stations. Accordingly, similarly stringent
interference remediation obligations are unnecessary. We expect Section 7(3) Stations, however, to make
good faith and diligent efforts to resolve any complaints received. For example, a Section 7(3) Station
may agree to provide new receivers to impacted listeners or to install filters at the receiver site. Section
7(3) Stations also may wish to consider colocation, a power reduction and/or other facility modifications
(e.g., use of directional antennas or differing polarizations) to alleviate the interference. Finally, we will
continue to consider a complaint resolved if the complainant does not reasonably cooperate with a Section
7(3) Station’s investigatory and remedial efforts.
105.
Complaints. Section 7(3) requires the Commission to provide notice to the licensee of a
Section 7(3) Station of the existence of interference within 7 calendar days of the receipt of a complaint


238 SOPR Comments at 2.
239 Common Frequency Comments at 11.
240 See NPR Comments at 7-8. Specifically, NPR argues that the only distinction between the regimes applicable to
Section 7(1) and 7(3) Stations relates to the location of the interference that must be remediated, not the extent of
interference remediation required. NPR asserts that there is no significance to the phrasing used in Section 7(1) (“to
provide the same interference protections … as set forth in Section 74.1203”) compared to the phrasing employed in
Section 7(3) (“to address complaints of interference”). According to NPR, in both cases, the LPFM station is
obligated to “effectively remediate the interference” and, accordingly, “there is no effective difference between the
methods required to remediate interference.”
241 SOPR Comments at 2; Prometheus Comments at 23; ACRF Comments at 2.
242 MonsterFM.com, LPFMRadio.com, Broadcast Technical Services Comments (collectively “MonsterFM.com”) at
4.
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from a listener or another station. Further, Section 7(5) of the LCRA expands the universe of interference
complaints which Section 7(3) Stations must remediate. Section 7(5) states:
The Federal Communications Commission shall —(A) permit the
submission of informal evidence of interference, including any
engineering analysis that an affected station may commission; (B) accept
complaints based on interference to a full-service FM station, FM
translator station, or FM booster station by the transmitter site of a low-
power FM station on a third-adjacent channel at any distance from the
full-service FM station, FM translator station, or FM booster station; and
(C) accept complaints of interference to mobile reception.243
106.
We requested comment on whether any of the four criteria for bona fide complaints set
forth in Section 73.810(b) of the Rules remain relevant.244 We tentatively concluded that Section 7(5) of
the LCRA requires us to delete Sections 73.810(b)(1) (bona fide complaint must allege interference
caused by LPFM station that has its transmitter site located within the predicted 60 dBu contour of the
affected station), (2) (bona fide complaint must be in form of affidavit and state the nature and location of
the alleged interference) and (3) (bona fide complaint must involve a fixed receiver located within the 60
dBu contour of the affected station and not more than 1 kilometer from the LPFM transmitter site). We
asked commenters to address whether we should retain the remaining criterion set forth in Section
73.810(b)(4), which requires a bona fide complaint to be received within one year of the date an LPFM
station commenced broadcasts.245
We also sought comment on whether to establish certain basic
requirements for complaints.
107.
No commenter opposes our conclusion that Section 7(5) of the LCRA mandates that we
delete Sections 73.810(b)(1) and (b)(3) from our Rules. One commenter, however, proposes that we add
a provision limiting complaints to those involving interference within the 100 dBu contour of the affected
station.246 With respect to Section 73.810(b)(2) (bona fide complaint must be in form of affidavit and
state the nature and location of the alleged interference), several commenters recommend that we retain
some semblance of the former rule and also establish additional basic requirements for complaints. For
instance, Athens Community Radio Foundation asserts that bona fide complaints should state the nature
and location of the alleged interference, the call letters of the stations involved, and accurate contact
information.247 Similarly, Common Frequency argues that an actionable complaint must specify the
location and date of interference, the type of receiver, channel, time/day of interference, whether ongoing
or intermittent, and contact information for the complainant.248 Several commenters also assert that the
Commission should require complainants to file copies of their complaints with the Audio Division,249


243 LCRA § 7(5).
244 Fourth Further Notice, 27 FCC Rcd at 3331 ¶ 38.
245 See 47 C.F.R. § 73.810(b)(4).
246 Jeff Sibert (“Sibert”) Comments at 2. Sibert suggests that, outside the 100 dBu contour, we require the
complainant to prove the LPFM station is not operating within its technical requirements.
247 ACRF Comments at 2; see also Prometheus Comments at 23 (complaints should list the call signs of the LPFM
and affected station, the complainant’s contact information, the receiver type, and the location and date of
interference); SOPR Comments at 3 (complaints should contain specific information including the affected station
call sign and proper contact information for the complainant); Sibert Comments at 2 (complaint should list the
specific areas of interference, type of receiver experiencing interference, audio samples of interference received, and
name/address of the listener).
248 Common Frequency Comments at 11.
249 Prometheus Comments at 23; SOPR Comments at 3; REC Comments at 18.
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and that the Commission should consider only complaints from bona fide listeners who are
“disinterested.”250 Finally, those discussing it unanimously agree that we should retain the criterion set
forth in Section 73.810(b)(4), which requires a bona fide complaint to be received within one year of the
date an LPFM station commenced broadcasts.251
108.
We will, as proposed, eliminate Sections 73.810(b)(1) and (b)(3) from our Rules. These
distance restrictions conflict with the explicit mandate of Section 7(5) of the LCRA to “accept complaints
based on interference … at any distance from the full-service FM station, FM translator station, or FM
booster station.”252 In addition, the Section 73.810(b)(3) fixed receiver limitation is inconsistent with
Section 7(5)(C) of the LCRA, which requires us to accept complaints of interference at fixed locations
and to mobile reception.253
109.
In this same vein, we decline to adopt the proposal to limit complaints to those occurring
within the 100 dBu contour of the affected station. We agree, however, with commenters’ suggestions
that we impose explicit, basic requirements for complaints. A list of minimum criteria likely will help
LPFM stations quickly address issues while also curbing the risk of frivolous filings.254 Accordingly,
while we will delete the Section 73.810(b)(2) criterion that the complaint be in the form of an affidavit,
we retain the requirement that the complaint state the nature and location of the alleged interference. We
will also require complainants to specify: (1) the call signs of the LPFM station and the affected full-
service FM, FM translator or FM booster station; (2) the type of receiver; and (3) current contact
information. We strongly encourage listeners to file copies of the complaints with the Media Bureau’s
Audio Division to ensure proper oversight. LPFM stations also must promptly forward copies of
complaints to the Audio Division for resolution. However, an affected station may forward copies of
complaints that it receives to the Audio Division as a courtesy to the complainant listeners. When
complainants fail to include all the necessary information listed above, Audio Division staff will take
efforts to correct any deficiencies. We also limit actionable listener complaints to those that are made by
bona fide “disinterested” listeners255 (e.g., persons or entities without legal, economic or familial stakes in
the outcome of the LPFM station licensing proceeding). Finally, we will preserve the Section
73.810(b)(4) criterion, which requires a bona fide complaint to be received within one year of the date an
LPFM station commenced broadcasts with its currently authorized facilities. Any interference caused by
a Section 7(3) Station should be detectable within one year after it commences such operations. This time
restriction will reasonably limit uncertainty regarding the potential modification or cancellation of an
LPFM station’s license and such station’s financial obligation to resolve interference complaints. We
believe that the efficient, limited complaint procedure that we are adopting is fully consistent with the
LCRA and fairly balances the interests of full-service broadcasters against the benefits of fostering the
LPFM radio service.
110.
Periodic Broadcast Announcements. Section 7(2) of the LCRA directs the Commission
to amend Section 73.810 of the Rules to require a newly constructed Section 7(3) Station to broadcast


250 REC Comments at 18; Sibert Comments 2; SOPR Comments at 2.
251 Sibert Comments at 2; SOPR Comments at 2; ACRF Comments at 2 (noting that “a station must have the
confidence that their license is relatively secure, otherwise additional investments may never take place”).
252 LCRA § 7(5)(B) (emphasis added).
253 LCRA § 7(5)(C).
254 See, e.g., Sibert Comments at 2 (stating that “a single interference complaint could require a LPFM station to
cease broadcasting … too low of a bar for complaints will deprive the local listening audience of programming and
drain the lpfm station’s financial resources”).
255 See Association for Community Education, 19 FCC Rcd at 12688 ¶ 16; see also Richard J. Bodorff, Esq. et al.,
Letter, 27 FCC Rcd 4870, 4873 (MB 2012)
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periodic announcements that alert listeners to the potential for interference and instruct them to contact
the station to report any interference.256 These announcements must be broadcast for a period of one year
after construction. We sought comment on whether we should adopt specific announcement language
and whether we should mandate the timing and frequency of these announcements.257
111.
Commenters agree that the Commission should provide some guidance regarding the text
of the announcements. One commenter recommends that the Commission specify explicit uniform
language.258 Other commenters state that the Commission should merely suggest language and allow
operators of Section 7(3) Stations the flexibility to modify the wording.259
REC emphasizes that
broadcasters need to have “latitude to word the message in a way to get the points across without
overwhelming listeners with technical jargon.”260
112.
With respect to the timing and frequency of the mandatory announcements, REC argues
that we should aim to achieve “a balance between educating radio listeners of changes in the ‘dialscape’
as a result of the new [LPFM] station while … not confus[ing] the listener or excessively burden[ing] the
[LPFM] broadcaster.”261
Jeff Sibert (“Sibert”) and Prometheus each urge us to address the
announcements in a manner that is simple, flexible and imposes a minimum burden on new Section 7(3)
Stations.262 One commenter suggests that we allow the affected full-power station to waive the Section
7(3) Station’s periodic announcement requirement. 263
113.
Several commenters recommend that we use the pre-filing and post-filing license renewal
announcement schedule as a template.264 REC, in particular, suggests a very detailed schedule based on a
modified version of the renewal announcement schedule.265 It argues that any bona fide interference will
be discovered in the first month of the Section 7(3) Station’s operation, and accordingly, it is necessary to
air the highest frequency of announcements during the first month.266 Sibert asserts that the requirement


256 LCRA § 7(2).
257 Fourth Further Notice, 27 FCC Rcd at 3330 ¶ 35.
258 SOPR Comments at 3.
259 REC Comments at 7-8; Sibert Comments at 3; Prometheus Reply Comments at 10.
260 REC Comments at 7-8. REC suggests the following text: “WXXX-LP is broadcasting under a special
arrangement with the Federal Communications Commission. If you are normally a listener of WZZZ-FM [or
WAAA-FM] and are currently having difficulty receiving WZZZ-FM [or WAAA-FM], please contact our offices at
555-1212 or visit our website at wxxx.org.”
261 Id. at 6-7.
262 Sibert Comments at 3; Prometheus Reply Comments at 10.
263 Friend Comments at 3.
264 Common Frequency Comments at 11; SOPR Comments at 3; REC Comments at 6-7.
265 REC Comments at 6-7. Specifically, REC proposes that, in the first 15 days of operation on a third-adjacent
channel, the LPFM station broadcast one announcement between the following hours: 7 and 9 a.m.; 9 a.m. and
noon; noon and 4 p.m.; and 7 p.m. and midnight. In days 16 to 30 of operation, REC proposes that the LPFM
station broadcast one announcement between the hours of 7 a.m. and 9 a.m. and the hours of 4 p.m. and 6 p.m.
Between days 31 and 365 of operation, REC proposes that the LPFM station broadcast the announcement once per
day between 7 a.m. and midnight.
266 Id.
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to broadcast the announcement should be no greater than once per day between the hours of 6 a.m. and
midnight for the first three months, and once per week during the same hours for the last nine months.267
114.
We agree that we should provide licensees of newly constructed Section 7(3) Stations
explicit guidance on the language to be used in the periodic announcements. Therefore, we will amend
our Rules to specify sample language that may be used in the announcements. Specific language will
make it easier for licensees of new Section 7(3) Stations to comply with this Section 7(2) requirement.
We will not, however, mandate that licensees of Section 7(3) Stations follow the sample text verbatim,
but rather, allow licensees the discretion to modify the exact wording, as the vast majority proposed. To
ensure consistency, the announcement must, however, at a minimum: (1) alert listeners of a potentially
affected third-adjacent channel station of the potential for interference; (2) instruct listeners to contact the
Section 7(3) Station to report any interference; and (3) provide contact information for the Section 7(3)
Station. Further, the message must be broadcast in the primary language of both the newly constructed
Section 7(3) Station and any third-adjacent station that could be potentially affected.
115.
We will, as the commenters suggest, dictate the timing and frequency of the required
announcements. We believe that an explicit schedule will promote compliance with this requirement.
We also believe that the schedule specified below achieves the benefits of effectively notifying listeners
of the potential for interference while minimizing the costs of doing so for the new Section 7(3) Station.
116.
We agree with REC that any interference is likely to be detected within the first month of
the new Section 7(3) Station’s operation. Accordingly, during the first thirty-days after a new Section
7(3) Station is constructed, we direct such station to broadcast the announcements at least twice daily.
One of these daily announcements shall be made between the hours of 7 a.m. and 9 a.m. or 4 p.m. and 6
p.m.268 The second daily announcement shall be made outside of these time slots.269 Between days 31
and 365 of operation, the station must broadcast the announcements a minimum of twice per week. The
required announcements shall be made between the hours of 7 a.m. and midnight.
117.
Finally, we decline to allow an affected full-power station to waive the newly constructed
Section 7(3) Station’s periodic announcement obligation, as one commenter suggests. Section 7(2) of the
LCRA explicitly mandates that newly constructed Section 7(3) Stations broadcast periodic
announcements. The announcement is intended to benefit listeners, by alerting them of the potential for
interference. Allowing potentially affected stations to waive the announcements would be inconsistent
with Section 7(2) of the LCRA and deprive listeners of its intended benefits.
118.
Technical Flexibility. Section 7(4) of the LCRA requires the Commission, to the extent
possible, to “grant low-power FM stations on third-adjacent channels the technical flexibility to remediate
interference through the colocation of the transmission facilities of the low-power FM station and any
stations on third-adjacent channels.” In the Fourth Further Notice, we tentatively concluded that, other


267 Sibert Comments at 3. To ensure announcements air during the times of greatest listenership, Sibert recommends
that we require: (1) one-third of the announcements to air between 7 a.m. and 9 a.m.; (2) one-third to air between 4
p.m. and 6 p.m.; and (2) the remaining one-third of announcements to air at the LPFM station’s discretion.
268 New Section 7(3) Stations must vary the time slot in which they air this daily announcement, airing it between 7
a.m. and 9 a.m. some days and between 4 p.m. and 6 p.m. other days. We note that, for stations which neither
operate between 7 a.m. and 9 a.m. nor between 4 p.m. and 6 p.m., this daily announcement shall be made during the
first two hours of broadcast operation.
269 New Section 7(3) Stations must vary the times of day at which they broadcast this second daily announcement in
order to ensure that the announcements reach all listeners potentially affected by the new Section 7(3) station’s
operation.
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than eliminating the third-adjacent channel spacing requirements as mandated by Section 3(a) of the
LCRA, we need not modify or eliminate any other provisions of our Rules to implement Section 7(4).270
119.
Two commenters propose additional modifications to our Rules in order to implement
Section 7(4). REC argues that LPFM stations should have the flexibility to co-locate with or operate
from a site “very close to the third-adjacent full-service station as long as no new short spacing is created,
even if this means moving the transmitter site to a location that may be outside the current service contour
of the LPFM station.”271 REC points out that, under existing rules, such a change would constitute a
“major change” and an applicant seeking authority to make such a change would have to do so during a
filing window.272 We infer that REC would like us to modify our Rules to clarify that we will treat as a
“minor change” a proposal to move a Section 7(3) Station’s transmitter site, including a move outside its
current service contour, in order to co-locate or operate from a site close to a third-adjacent channel
station and remediate interference to that station. We will adopt REC’s proposed modification. We note
that Section 7(4) of the LCRA explicitly requires the Commission to grant “low-power FM stations on
third-adjacent channels the technical flexibility to remediate interference through the colocation of the
transmission facilities of the low-power FM station and any stations on third-adjacent channels.” We
believe that REC’s suggested expansion of the definition of “minor change” will provide Section 7(3)
Stations the sort of “technical flexibility” that Congress intended. We also will treat as a “minor change”
an LPFM proposal to locate “very close” to a third-adjacent channel station. Although the LCRA does
not explicitly direct the Commission to employ “flexible” licensing standards in this context, colocation
and “very close” locations can eliminate the potential for interference for exactly the same reason (i.e.,
they result in acceptable signal strength ratios between the two stations at all locations). Generally, this
will limit LPFM site selections and relocations pursuant to this policy to transmitter within 500 meters of
stations operating on third-adjacent channels. The approach we adopt will advance the overarching goal
of Section 7 to prevent third-adjacent channel interference by LPFM stations. Accordingly, we will
modify Section 73.870(a) of our Rules to treat these moves as “minor changes,” and we will routinely
grant applications for authority to make these moves, upon a showing of potential interference from the
authorized site, and provided that the licensee would continue to satisfy all eligibility requirements and
maintain any comparative attributes on which the grant of the station’s initial construction permit was
predicated.273
120.
If interference is remediated through colocation, Common Frequency recommends that
we consider allowing “flexible operating proposals,” such as upgrades to LP250 if the colocation takes
the LPFM transmitter far from the existing transmitter site, the use of different or directional antennas,
and the use of close-by towers instead of colocation.274 We decline to permit Section 7(3) Stations
seeking to remediate interference by co-locating their transmission facilities with those of an affected full-
service FM station to operate at powers exceeding 100 watts ERP at 30 meters HAAT. We will,
however, permit Section 7(3) Stations to propose lower powers, use of directional antennas and use of
differing polarizations to remediate interference. This is consistent with our decision to afford applicants
seeking second-adjacent waivers the flexibility to employ these methods.275


270 Fourth Further Notice, 27 FCC Rcd at 3331 ¶ 39.
271 REC Comments at 8.
272 See 47 C.F.R. § 73.870(b).
273 We do not, however, adopt the proposal, see William Spry Comments (“Spry”) at 2, to otherwise expand the
definition of “minor change.”
274 Common Frequency Comments at 11-12.
275 See supra ¶ 79.
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4.

Additional Interference Protection and Remediation Obligations

121.
One additional provision of Section 7 – Section 7(6) – requires the Commission to
impose additional interference protection and remediation obligations on one class of LPFM stations. It
directs the Commission to create special interference protections for “full-service FM stations that are
licensed in significantly populated States with more than 3,000,000 population and a population density
greater than 1,000 people per square mile land area.”276 The obligations apply only to LPFM stations
licensed after the enactment of the LCRA. Such stations must remediate actual interference to full-
service FM stations licensed to the significantly populated states specified in Section 7(6) and “located on
third-adjacent, second-adjacent, first-adjacent or co-channels” to the LPFM station and must do so under
the interference and complaint procedures set forth in Section 74.1203 of the Rules. In the Fourth
Further Notice
, we found that the Section 7(6) interference requirements are, with one exception,
unambiguous.277 We sought comment on whether to interpret the term “States” to include the territories
and possessions of the United States. We noted that only New Jersey and Puerto Rico satisfy the
population and population density thresholds set forth in Section 7(6).
122.
Commenters are divided how we should construe the term “States.” REC and SOPR
argue that Congress did not intend to include Puerto Rico as a “State” for purposes of Section 7(6).278
REC contends that, following lobbying from the New Jersey Broadcasters Association (“NJBA”),
Congress amended the Act to include the current Section 7(6),279 and that Congress intended this section
to apply solely to the state of New Jersey.280 Arso Radio Corporation (“Arso”), in contrast, asserts that
“States” should include the territories and possessions of the United States, and therefore, the more
restrictive Section 7(6) interference protections should apply to both New Jersey and Puerto Rico.281
Although Arso acknowledges that an examination of the legislative history “does not yield any clues as to
congressional intent regarding use of the word ‘States,’” it insists that Congress intended to define the
words “States” in the same way as it defined “States” in Section 153(47) of the Communications Act of
1934, as amended (“Act”), which provides that the term “State” includes the District of Columbia and the
Territories and possessions.282
123.
We recognize that the term “States” is susceptible to different interpretations. It is
unclear from the statutory text whether Congress intended the term “States” to mean the definition of
“States” as it appears in the Act, which includes all territories and possessions, or whether Congress
intended to use the word “State” in its literal sense.283 We believe, however, that the best construction of


276 LCRA § 7(6).
277 Fourth Further Notice, 27 FCC Rcd at 3332 ¶ 41.
278 REC Comments at 9; SOPR Comments at 3.
279 Id. Senator Lautenburg of New Jersey proposed the amendment to Section 7 to include the current Section 7(6)
provision, which retains third-adjacent channel protection for full-power FM stations licensed in significantly
populated states with more than 3,000,000 housing units and a population density greater than 1,000 people per
square mile land area. See S. 1675, S. Rep. No. 110-271 (March 4, 2008).
280 REC Comments at 9.
281 Arso Radio Corp. (“Arso”) Comments at 3.
282 Arso Comments at 2-3, citing 47 U.S.C. § 153(47). Arso argues that “inasmuch as the LCRA directed the FCC
to take certain actions to modify its rules relating to ‘Wire or Radio Communication’ under Title 47, Chapter 5, it
would be consistent with the definition of ‘States’ in the context of regulatory authority for Congress to intend to
encompass … the territories or possessions in which the Commission regulates ‘wire or radio communications.’”
283 See, e.g., Puerto Rico v. Shell Co., 302 U.S. 253, 258 (1937) (determining a statute's applicability to Puerto Rico
is a question of congressional intent).
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this term, based on context and the current record before us, is that “State” means one of the 50 states.
Congress knows how to implement its directives as amendments to the Communications Act, and chose
not to do so in the LCRA. Thus, there is no basis for expanding on the common meaning of the term
“states” here to include territories. We also agree with REC that New Jersey is “in a unique situation
where there are two significant out-of-state metro markets (New York and Philadelphia) on each side of
the state.”284 With the New York and Philadelphia Arbitron Metro markets dominating much of the state,
full power radio stations in New Jersey generally operate with lower powers and smaller protected
contours than other full power radio stations.285
This could make them uniquely susceptible to
interference from LPFM and FM translator stations. Moreover, we note that this provision of the LCRA
was introduced by Senator Lautenburg, the senior Senator from New Jersey.286 This legislative history
provides additional support for our conclusion that the term “States” in Section 7(6) was not intended to
include territories.

C.

Protection of Translator Input Signals

124.
Section 6 of the LCRA requires the Commission to “modify its rules to address the
potential for predicted interference to FM translator input signals on third-adjacent channels set forth in
Section 2.7 of the technical report entitled ‘Experimental Measurements of the Third-Adjacent Channel
Impacts of Low Power FM Stations, Volume One—Final Report (May 2003).’”287 Section 2.7 of this
report finds that “significant interference to translator input signals does not occur for [desired/undesired
ratio] values of -34 dB or higher at the translator input.”288 Section 2.7 sets out a formula (“Mitre
Formula”) that allows calculation of the minimum LPFM-to-translator separation that will ensure a
desired/undesired ratio equal to or greater than -34 dB.289
125.
In the Fourth Further Notice, we noted that the Commission requires LPFM stations to
remediate actual interference to the input signal of an FM translator station but has not established any
minimum distance separation requirements or other protection standards.290 Based on the language of
Section 6, which requires the Commission to “address the potential for predicted interference,” we
tentatively concluded that our existing requirements regarding remediation of actual interference must be
recast as licensing rules designed to prevent any predicted interference.291 No commenter suggested
another interpretation of Section 6 of the LCRA. Thus, we affirm our tentative conclusion that Section 6
of the LCRA requires us to adopt rules designed to prevent predicted interference to FM translator input
signals on third-adjacent channels.
126.
In the Fourth Further Notice, we sought comment on whether we should require LPFM
applicants to protect the input signals of only those translators receiving third-adjacent channel full-


284 REC Comments at 9.
285 NJBA Comments, CG Docket No. 12-39, at 3 (filed April 5, 2012).
286 Id. at 4 (referencing a reasonable legislative compromise on the siting of LPFM stations in New Jersey).
287 LCRA § 6.
288 See Mitre Corporation’s Technical Report, “Experimental Measurements of the Third-Adjacent-Channel Impacts
of Low-Power FM Stations
,” Section 2.7 or pp. 2-16, 2-17, 2-18 (“Mitre Report”).
289 Id. To calculate the minimum separation distance using this formula, an LPFM station applicant must have the
following information: (1) its own proposed ERP, (2) the gain of the translator’s receive antenna in the direction
from which the LPFM signal would be received, (3) the gain of the translator’s receive antenna in the direction from
which the primary FM station’s signal would be received, and (4) the predicted field strength of the primary FM
station’s signal entering the translator receiver’s antenna.
290 Fourth Further Notice, 27 FCC Rcd at 3332 ¶ 43.
291 Id.
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service FM station signals, or whether we also should require them to protect the input signals of
translators that receive third-adjacent channel translator signals directly off-air.292 Commenters’ opinions
vary on this issue. Prometheus argues that the protections should be limited to translators receiving input
signals from FM stations.293 Prometheus believes that any protections beyond those to translators
receiving off-air signals from FM stations would violate Section 5 of the LCRA, which requires the
Commission to ensure that LPFM stations and FM translators remain “equal in status.”294 NPR and
Western Inspirational, on the other hand, assert that the protections should extend to translators receiving
input signals from other FM translators.295 NPR claims that, by its plain terms, Section 6 of the LCRA
requires protection of all signal inputs to translators.296 NPR notes that this interpretation is consistent
with the Commission’s current rule protecting translator input signals.297 Western Inspirational asserts
that, with increased spectrum congestion, it has found it necessary for many of its translators to use an
off-air input from another translator, not the originating FM station, in order to obtain a reliable input
signal.298
127.
After considering the comments and reviewing the text of the LCRA, we conclude that
LPFM applicants must protect the reception directly, off-air of third-adjacent channel input signals from
any station, including full-service FM stations and FM translator stations. Section 6 of the LCRA asks
the Commission to address predicted interference to “FM translator input signals on third adjacent
channels.”299 This unqualified mandate is consistent with our rules, which require LPFM stations to
operate without causing actual interference to the input signal of an FM translator or FM booster
station.300
128.
We turn next to the issue of a predicted interference standard for processing LPFM
applications. We adopt the basic threshold test proposed in the Fourth Further Notice, 301 which received


292 FM translators may rebroadcast the signals of other FM translators that are received directly over the air. 47
C.F.R. § 74.1231(b).
293 Prometheus Comments at 25. REC raises a slightly different issue related to digital audio streams broadcast by
the FM station that a translator is rebroadcasting. See REC Comments at 12. REC asserts that LPFM applicants
should not be required to protect the reception of a primary FM station’s digital main or secondary channels by an
FM translator. It notes that these digital sidebands are broadcasting at reduced power and are more vulnerable to
interference. We disagree with this proposal. The signal, though digital, is from a full power station, to which
LPFM service remains secondary. See Digital Audio Broadcasting Systems and Their Impact on the Terrestrial
Radio Broadcast Service,
Order, 25 FCC Rcd 1182, 1191 ¶ 22 (MB 2010) (stating, in response to a similar proposal,
“Analog LPFM and FM translator stations are secondary services, and, as such, are not currently entitled to
protection from existing full-service analog FM stations. Moreover, this digital audio broadcasting proceeding has
not created any additional rights for these secondary services vis a vis digital hybrid operations by full-service
stations.”). Thus, an LPFM applicant must protect a full power station digital signal.
294 Prometheus Comments at 25; Prometheus Reply Comments at 11, citing LCRA § 5.
295 Western Inspirational Broadcasters, Inc. (“Western Inspirational”) Comments at 1.
296 NPR Reply Comments at 5.
297 Id. See 47 C.F.R. § 73.827.
298 Western Inspirational Comments at 1. Western Inspirational asks the Commission to permit non-off-air delivery
means to feed non-reserved band FM translators. Western Inspirational Comments at 2. We will not consider such
a proposal here because it is outside the scope of this proceeding.
299 LCRA § 6.
300 Section 73.827 mandates that LPFM stations must operate without actual interference to the input signal of FM
translator or FM booster stations. 47 C.F.R. § 73.827.
301 Fourth Further Notice, 27 FCC Rcd. at 3332-33 ¶ 44.
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overwhelming support from commenters. 302 This threshold test closely tracks the interference standard
developed by Mitre but for the reasons stated below does not require an LPFM applicant to obtain the
receive antenna technical characteristics that are incorporated into the Mitre Formula.303 It provides that
an applicant for a new or modified LPFM construction permit may not propose a transmitter site within
the “potential interference area” of any FM translator station that receives its input signal directly off-air
from a full-service FM or FM translator station on a third-adjacent channel. For these purposes, we
define the “potential interference area” as both the area within 2 kilometers of the translator site and also
the area within 10 kilometers of the translator site within the azimuths from -30 degrees to +30 degrees of
the azimuth from the translator site to the site of the FM station being rebroadcast by the translator.
129.
As proposed in the Fourth Further Notice304 and supported by commenters,305 we will
permit an LPFM applicant proposing to locate its transmitter within the “potential interference area” to
use either of two methods to demonstrate that LPFM station transmissions will not cause interference to
an FM translator input signal. First, as indicated in Section 2.7 of the Mitre Report, an LPFM applicant
may show that the ratio of the signal strength of the LPFM (undesired) proposal to the signal strength of
the FM (desired) station is below 34 dB at all locations. Second, an LPFM applicant may use the
equation provided in Section 2.7 of the Mitre Report.306 As requested by Prometheus, we also will permit
an LPFM applicant to reach an agreement with the licensee of the potentially affected FM translator
regarding an alternative technical solution. 307
130.
We do not authorize FM translator receive antenna locations. However, we believe that
most receive and transmit antennas are co-located on the same tower. Accordingly, we proposed to
assume that the translator receive antenna is co-located with its associated translator transmit antenna.308
We received no comment on this proposal. We continue to believe that assuming colocation of translator
receive and transmit antennas will facilitate the use of the methods described above. We noted that the
Mitre Formula would require the horizontal plane pattern of the FM translator’s receive antenna –
information that is not typically available publicly or in CDBS. Therefore, we also proposed to allow the


302 See Common Frequency Comments at 12; Western Inspirational Comments at 1; REC Comments at 11.
303 See Mitre Report, Section 2.7 or pp. 2-16, 2-17, 2-18.
304 Fourth Further Notice, 27 FCC Rcd at 3333 ¶ 45.
305 REC Comments at 11; Common Frequency Comments at 12.
306 This equation is as follows: du = 133.5 antilog [(Peu + Gru – Grd – Ed) / 20], where du = the minimum allowed
separation in km, Peu = LPFM ERP in dBW, Gru = gain (dBd) of the translator receive antenna in the direction of the
LPFM site, Grd = gain (dBd) of the translator receive antenna in the direction of the FM site, and Ed = predicted field
strength (dBu) of the FM station at the translator site.
307 Prometheus Comments at 25 (discussing the use of filters or, where permitted by the Commission’s rules,
alternative signal delivery mechanisms); Prometheus Reply Comments at 10. We do not adopt any of the other
alternative showings proposed by commenters. We will not allow an LPFM applicant to obtain a release from the
licensee of the FM translator station. See Western Inspirational Comments at 2. This would violate our long-
standing prohibition against negotiated or otherwise consensual interference in the FM broadcast band. See 1998
Biennial Regulatory Review - Streamlining of Radio Technical Rules in Parts 73 and 74 of the Commission's Rules
,
Second Report and Order, 15 FCC Rcd 21649, 21651 ¶5 (2000). In addition, we will not adopt REC’s proposal that
we permit an LPFM applicant to submit an engineering study that demonstrates a lack of interference in the
“potential interference area.” See REC Comments at 11. REC does not offer sufficient detail for us to evaluate its
proposal. Finally, we will not, as Sibert proposes, allow LPFM operators to pledge that they will mitigate any
interference to the input signals of potentially affected translators within the first full year of operations. Sibert
Comments at 3. As discussed supra ¶ 125, the LCRA requires the Commission to address the potential for
interference. LCRA § 6. Sibert’s proposal, however, focuses on remediating actual interference.
308 Fourth Further Notice, 27 FCC Rcd at 3333 ¶ 45.
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use of a “typical” pattern in situations where an LPFM applicant is not able to obtain this information
from the FM translator licensee, despite reasonable efforts to do so. Both Prometheus and Common
Frequency support this proposal.309 No commenter opposes it. Accordingly, we adopt our proposal to
allow use of a “typical” pattern when an LPFM station makes reasonable efforts but is unable to obtain
the horizontal plane pattern of an FM translator station from that station.
131.
Prometheus proposes that we relieve an LPFM applicant of its obligation to protect an
FM translator’s input signal if, despite reasonable efforts to do so, the applicant is unable to determine the
delivery method or input channel for that translator.310 We will not adopt this proposal because the
LCRA requires us to “address the potential for predicted interference” in this context.311 We lack
authority to adopt a processing rule that abdicates this responsibility. For this same reason, we also reject
Prometheus’ proposal to relieve an LPFM station applicant from this protection obligation if a translator
licensee fails to maintain accurate and current Commission records regarding its primary station and input
signal.312 In any event, we note that we specify the primary station call sign, frequency and community of
license in FM translator authorizations. In addition, we require each FM translator licensee to identify its
primary station when filing its renewal application. We strongly recommend that FM translator licensees
update the Commission if they have changed their primary stations since they last filed renewal
applications.313
132.
We proposed to dismiss as defective an LPFM application that specifies a transmitter site
within the third-adjacent channel “potential interference area” but fails to include an exhibit
demonstrating lack of interference to the off-air reception by that translator of its input signal.314 We
proposed to permit an LPFM applicant to seek reconsideration of the dismissal of its application and to
request reinstatement nunc pro tunc. We also proposed that an LPFM applicant seeking reconsideration
and reinstatement nunc pro tunc demonstrate that its proposal would not cause any predicted interference
using either the undesired/desired ratio or the Mitre Formula discussed above. Commenters support these
proposals.315 We continue to believe it is appropriate to treat an application dismissed on these grounds
the same as an application dismissed for violation of other interference protection requirements.
Accordingly, we adopt our proposal to allow an applicant to seek reconsideration and reinstatement nunc
pro tunc
by making one of the showings discussed herein. In addition, consistent with our decision to
permit applicants to do so at the application filing stage, we will permit applicants to reach an agreement
with the licensee of the potentially affected FM translator regarding alternative technical solutions.316


309 Prometheus Comments at 24; Common Frequency Comments at 12.
310 Prometheus Comments at 24-25.
311 LCRA §6.
312 Prometheus Comments at 25. Common Frequency makes a similar proposal. Common Frequency Comments at
12-13.
313 See Application for Renewal of Broadcast Station License, FCC Form 303-S, Section V, Question 2.b. We
recognize that there are situations in which an LPFM station, despite best efforts, could interfere with a translator
input signal on a third-adjacent channel. If a translator licensee seeks protection from such interference, we will
require the FM translator licensee to show proof that it provided notice to the Commission of the change in its
primary station prior to the LPFM station application filing. See 47 C.F.R. 74.1251(c) (changes in the primary FM
station being retransmitted must be submitted to the FCC in writing). We believe this approach is consistent with
Section 5 of the LCRA, which requires that FM translator stations and LPFM stations “remain equal in status.”
LCRA § 5.
314 Fourth Further Notice, 27 FCC Rcd at 3333 ¶ 46.
315 Common Frequency Comments at 12; Western Inspirational Comments at 1.
316 See supra ¶ 129.
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D.

Other Rule Changes

133.
The Fourth Further Notice proposed changes to our Rules intended to promote the LPFM
service’s localism and diversity goals, reduce the potential for licensing abuses, and clarify certain rules.
We sought comment on whether the proposed changes were consistent with the LCRA and whether they
would promote the public interest. We discuss each proposed change in turn below.
1.

Eligibility and Ownership

a.

Requirement That Applicants Remain Local

134.
The LPFM service is reserved solely for non-profit, local organizations.317 In the Fourth
Further Notice, we expressed concern that, because our Rules define “local” in terms of “applicants” and
their eligibility to “submit applications,” applicants and licensees might not understand that the localism
requirement extends beyond the application stage. We proposed to clarify this by revising Section
73.853(b) to read: “Only local applicants will be permitted to submit applications. For the purposes of
this paragraph, an applicant will be deemed local if it can certify, at the time of application, that it meets
the criteria listed below and if such applicant continues to satisfy the criteria at all times thereafter ….”
135.
Prometheus and SOPR support our proposal.318
Prometheus notes that to require
otherwise (i.e., to require that an organization be local only at the time it submits its application) “would
controvert the LCRA and the policies of the Commission.”319 SOPR asserts that this clarification may
prevent abuse.320 Catholic Radio Association (“CRA”) suggests language it believes will better achieve
our policy objective.321
136.
Given the limited reach of LPFM stations, we continue to believe that LPFM entities
must be local at all times and we will clarify that requirement by amending Section 73.853(b). At CRA’s
suggestion, we will adopt language slightly different from that originally proposed. Our revised rule
(with the new language in italics) will read: “Only local organizations will be permitted to submit
applications and to hold authorizations in the LPFM service. For the purposes of this paragraph, an
organization will be deemed local if it can certify, at the time of application, that it meets the criteria
listed below and if it continues to satisfy the criteria at all times thereafter ….” We address changes we
proposed to the criteria used to define “local,” later in this decision.322


317 See 47 C.F.R. § 73.853(b). Creation of Low Power Radio Service, Report and Order, 15 FCC Rcd 2205, 2220 ¶
34 (2000) (“Report and Order”) (“local entities with their roots in the community will be more attuned and
responsive to the needs of that community, which have heretofore been underserved by commercial broadcasters”).
318 LPFMhelp.com, on the other hand, argues that we should not require an LPFM applicant to be local at the time it
files its application. LPFMhelp.com Comments at 2. LPFMhelp.com would allow a non-local organization to apply
if it pledged to form a new local organization prior to licensure. Id. LPFMhelp.com also appears to advocate
elimination of Section 73.853(b)(1) of our rules, which provides that an applicant will be deemed “local” if it, its
local chapter or branch is physically headquartered within 10 miles of the proposed site for the transmitting antenna
for applicants in the top 50 urban markets, and 20 miles for applicants outside the top 50 urban markets. Id. Both of
these proposals are outside of the scope of this proceeding. Accordingly, we do not consider them further.
319 Prometheus Comments at 47.
320 SOPR Comments at 4.
321 Catholic Radio Association (“CRA”) Comments at 7-8. CRA also expresses its opposition to the localism
requirement but acknowledges that, “with respect to this particular policy question, the ‘ship may have sailed.’” Id.
at 6-7.
322 See infra Part III.D.2.b.
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b.

Cross-Ownership of LPFM and FM Translator Stations

137.
From the outset, the Commission has prohibited common ownership of an LPFM station
and any other media subject to the Commission’s ownership rules.323 This prohibition fosters one of the
most important purposes of establishing the LPFM service – “to afford small, community-based
organizations an opportunity to communicate over the airwaves and thus expand diversity of
ownership.”324 In the Fourth Further Notice, we sought comment on whether to allow LPFM station
licensees to own or hold attributable interests in one or more FM translator stations.325 We noted that this
could enable LPFM stations to expand their listenership and provide another way for FM translators to
serve the needs of communities. We asked whether it was possible to achieve such benefits without
changing the extremely local nature of the LPFM service. We further asked whether we should limit
cross-ownership of FM translators and LPFM stations by, for example, requiring that (1) any cross-owned
FM translator rebroadcast the programming of its co-owned LPFM station; (2) the 60 dBu contours of the
co-owned LPFM and FM translator stations overlap; and/or (3) the co-owned LPFM and FM translator
stations be located within a set distance or geographic limit of each other. Finally, we asked whether to
permit an LPFM station to use alternative methods to deliver its signal to a commonly owned FM
translator.326
138.
A few commenters oppose cross-ownership. These commenters express concerns about
the impact of LPFM/FM translator cross-ownership on the local character of the LPFM service and the
availability of spectrum for new LPFM stations.327 NPR points out that the Commission, in creating the
LPFM service, considered but ultimately rejected the option of allowing cross-ownership of LPFM and
other broadcast stations, finding that its interest in providing for new voices to speak to the community
and providing a medium for new speakers to gain broadcasting experience would be best served by
barring cross-ownership.328
139.
In contrast, many commenters support LPFM/FM translator cross-ownership.329 REC
and Nexus/Conexus assert that cross-ownership would enable LPFM stations to better reach their
intended communities.330 REC observes that FM translator stations owned by unrelated entities have
been rebroadcasting LPFM signals for over a decade.331 REC does not believe that limited common
ownership of FM translator and LPFM stations would change the nature of the LPFM service.332 National
Lawyers Guild and Media Alliance state that translators might be useful if a terrain obstruction blocks an


323 47 C.F.R. § 73.860.
324 Report and Order, 15 FCC Rcd at 2217-18 ¶ 29.
325 Fourth Further Notice, 27 FCC Rcd at 3335 ¶ 56.
326 Id.
327 See NPR Comments at 11 (asserting cross-ownership “is inconsistent with the ‘highly local’ nature of the LPFM
service”); Grant County Comments at 2-3 (predicting that the LPFM service will become more regionalized as
licensees form “daisy chained” “mini-networks” consisting of multiple translators and a single LPFM originator, in
an attempt to “leapfrog” toward more populated areas); Sibert Comments at 5 (arguing that the use of multiple
frequencies by a single LPFM licensee is an inefficient use of spectrum that could limit opportunities for other
LPFM applicants).
328 NPR Comments at 11, citing Report and Order, 15 FCC Rcd at 2217-18 ¶ 29.
329 Nexus/Conexus Comments at 2; Magrill Comments at 3; Amherst Comments at 15; CRA Comments at 8-9;
Braulick Comments at 4 (each supporting LPFM/FM translator cross-ownership).
330 REC Comments at 34-35; Nexus/Conexus Comments at 2.
331 REC Comments at 34.
332 Id.
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LPFM signal within the LPFM station’s primary contour.333 Several commenters contend that cross-
ownership could enhance localism because many communities are larger than the typical reach of an
LPFM station’s signal. They contend that FM translators could allow stations to serve their entire
intended service area, such as a single county.334
140.
Most commenters qualify their support for cross-ownership, suggesting various limits or
restrictions to ensure that any co-owned FM translator enhances an LPFM station’s local mission.335
Commenters support (1) establishing a distance or geographic limit on FM translator cross-ownership,336
(2) requiring the service contours of co-owned LPFM and FM translator stations to overlap;337 (3) limiting
the number of FM translators an LPFM licensee may own to a “modest” number, such as one or two;338
and/or (4) requiring co-owned translators to rebroadcast only the LPFM station.339 Commenters also
support requiring an LPFM station to feed the FM translator with an off-air signal, the same delivery
restriction that applies to non-reserved band FM translators.340


333 NLG and Media Alliance Comments at 9. Matt Tuter (“Tuter”) would allow LPFM stations to use booster
stations to address such difficulties as well. Tuter Comments at 1. We believe that the purported need for booster
stations to overcome terrain obstructions within an LPFM station’s 60 dBu service area is overstated. A booster
station cannot expand service beyond a station’s 60 dBu contour, which for an LFPM station covers a maximum of
5.5 kilometers. There would be extremely limited situations in which a booster station could operate within such a
small area without causing interference to the LPFM station’s own signal. Moreover, terrain obstructions are rarely
the primary cause of signal degradation within an LPFM station’s 60 dBu contour. A much more frequent cause is
receipt of signals from distant higher-powered stations on first-adjacent channels. Accordingly, while we appreciate
Tuter’s desire to re-use spectrum efficiently, we will not modify our rules to allow LPFM stations to use boosters.
334 REC Comments at 34; LPFMhelp.com Comments at 1; Nexus/Conexus Comments at 2; MonsterFM.com
Comments at 3; Braulick Comments at 4; Magrill Comments at 3.
335 See, e.g., Prometheus Comments at 48.
336 Their specific suggestions include limiting cross-ownership to: (1) coverage of the defined boundaries of the
market, community, or county, particularly if that region has unusual geography; (2) locations within ten miles of
either the LPFM station’s transmitter site or the reference coordinates of the LPFM station’s community of license,
except to serve areas with no other local service; and (3) transmitter locations within the Standard Metropolitan
Statistical Area as defined by the U.S. Census Bureau or, in areas not so defined, to within 50 km of the main
station. See Tuter Comments at 1; Friend Comments at 2.
337 SOPR Comments at 4; REC Comments at 35; Prometheus Comments at 48.
338 NLG and Media Alliance Comments at 9; SOPR Comments at 4; Friend Comments at 2; Amherst Comments at
16.
339 NLG and Media Alliance Comments at 9; Amherst Comments at 16; REC Comments at 35; Prometheus
Comments at 48. Other commenters suggest proposals that are either contrary to our Rules or outside the scope of
this proceeding. See, e.g., SOPR Comments at 4; Amherst Comments at 15 (suggesting that the Commission allow
a cross-owned FM translator to originate its own programming); Otha Lee Melton Comments at 1; Tuter Comments
at 1 (each arguing that applicants should be able to acquire FM translators to convert into LPFM stations and vice-
versa). The LPFM and FM translator services, while sharing some characteristics, were designed for different
purposes and, thus, have different engineering, programming, and ownership requirements. See also REC
Comments at 35 (urging the Commission to adopt a new class of FM translators with technical characteristics
designed to be especially compatible with LPFM stations); Tuter Comments at 1; Monsterfm.com Comments at 2
(stating that FM translators affiliated with LPFM stations should be secondary to the operations of new LPFM
stations rather than coequal). We will not consider them further.
340 Common Frequency, for example, argues that FM translators should only be allowed to rebroadcast an LPFM
signal that can be received terrestrially via an FM tuner, without alternative means such as internet or satellite. See
Common Frequency Comments at 20. REC, on the other hand, would allow some alternate forms of transmission,
but only if an FM translator was unable to receive the primary LPFM station. See REC Comments at 36.
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141.
We believe that commenters on both sides of this issue raise valid points. As many
observe, use of FM translators to rebroadcast LPFM stations could be beneficial, improving local service
to oddly-shaped communities and to rural communities that could receive, at best, only partial LPFM
coverage. However, as others aptly note, cross-ownership without adequate safeguards poses a potential
danger to the local character of the LPFM service. On balance, we believe that the benefits of FM
translator ownership by LPFM licensees will outweigh any disadvantages, provided that we take steps to
limit potential risks.
142.
Accordingly, we will amend Section 73.860 of our Rules to allow LPFM/FM translator
cross-ownership. We will limit cross-ownership, however, in order to prevent large-scale chains and
“leapfrogging” into unconnected, distant communities. We adopt the following five limits on cross-
ownership, which are intended to ensure that the LPFM service retains its extremely local focus. First, we
will permit entities – other than Tribal Nation Applicants – to own or hold attributable interests in one
LPFM station and a maximum of two FM translator stations.341 Second, we will require that the 60 dBu
contours of a commonly-owned LPFM station and FM translator station(s) overlap. Third, we will
require that an FM translator receive the signal of its co-owned LPFM station off-air and directly from the
LPFM station, not another FM translator station. Fourth, we will limit the distance between an LPFM
station and the transmitting antenna of any co-owned translator to 10 miles for applicants in the top 50
urban markets and 20 miles for applicants outside the top 50 urban markets. An LPFM station may use
either its transmitter site or the reference coordinates of its community of license to satisfy these distance
restrictions. Fifth, we will require the FM translator station to synchronously rebroadcast the primary
analog signal of the commonly-owned LPFM station (or for “hybrid” stations, the digital HD-1 program-
stream) at all times.
143.
We believe that allowing cross-ownership of an LPFM station and up to two FM
translator stations will provide maximum flexibility, while the requirement that these translators link
directly to their commonly-owned LPFM station rather than to each other will prevent the type of
chained-networks of concern to commenters. To keep the service provided by the LPFM/FM translator
combinations locally focused, we will limit the placement of co-owned FM translators to conform to the
same ten- and twenty-mile distances which define “local” applicants in the top 50 and all other markets,
respectively.342
We believe that such a requirement is more easily understood and achieved than
alternatives phrased in terms of a signal’s ability to stay within political boundaries of a county or city.
Our requirement that an FM translator rebroadcast the primary signal of its co-owned LPFM station
addresses Grant County’s concern that LPFM stations may begin to broadcast multiple digital streams
and that stations operating in such a hybrid mode might use translators to network secondary, less locally-
oriented programming rather than the station’s primary program stream.343 We are aware of only one
LPFM station currently operating in hybrid mode, so this issue is currently of limited applicability.
Nevertheless, we adopt Grant County’s suggestion that co-owned translators simultaneously rebroadcast
the LPFM station’s analog programming, as a forward-looking protection to preserve the service’s local
nature as more LPFM stations avail themselves of technological advances. We further agree with
commenters that alternative signal delivery of LPFM signals to FM translators could regionalize LPFM
service. Accordingly, we will require that an FM translator receive the signal of its co-owned LPFM
station off-air and directly from the LPFM station itself in order to maintain the service’s local character.


341 See infra Part III.D.1.c. (considering separate proposal that Tribal Nation Applicants be permitted to own
additional stations to cover Tribal lands).
342 See infra ¶ 171.
343 See Grant County Comments at 2-3.
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c.

Ownership Issues Affecting Tribal Nations

144.
We posed additional ownership-related questions in the Fourth Further Notice, including
whether Tribal Nations are eligible and, if not, whether they should be eligible to own LPFM stations.
We also sought comment on whether they should be permitted to own more than one LPFM station
and/or to own or hold an attributable interest in an LPFM station in addition to a full-power station. We
address each of these proposals below.
145.
Basic Eligibility. Section 73.853 of the Rules currently provides for the licensing of an
LPFM station to a state or local government, but does not explicitly establish the eligibility of a Tribal
Nation Applicant. Notwithstanding this omission, it is well established that Tribal Nations are inherently
sovereign Nations, with the obligation to “maintain peace and good order, improve their condition,
establish school systems, and aid their people in their efforts to acquire the arts of civilized life,” within
their jurisdictions.344 The Commission, as an independent agency of the United States Government, has
an historic federal trust relationship with Tribal Nations, and a longstanding policy of promoting Tribal
self-sufficiency and economic development.345 To this end, the Commission has taken steps to aid in
their efforts to provide educational and other programming to their members residing on Tribal Lands, as
well as to assist them in acquiring stations for purposes of business and commercial development.
146.
In view of our commitment to assist Tribal Nations in establishing radio service on
Tribal lands and our consideration of whether to include a Tribal Nation selection criterion in the LPFM
comparative analysis, in the Fourth Further Notice we proposed to recognize explicitly the eligibility of
Tribal Nation Applicants to hold LPFM licenses.346 We proposed to rely on the definitions of the terms
“Tribal applicant”347 and “Tribal lands”348 as they are currently defined in our rules governing full-power
NCE FM licensing.349 By specifically cross-referencing the definition of “Tribal applicant” set forth in
Section 73.7000 of the rules, which includes a reference to the term “Tribal coverage,” we implicitly
proposed to incorporate the definition of “Tribal coverage” set forth therein.350


344 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 140 (1981), quoting S.Rep. No. 698, 45th Cong., 3d Sess. 1-2
(1879).
345 See Statement of Policy on Establishing A Government-to-Government Relationship with Indian Tribes, Policy
Statement, 16 FCC Rcd 4078, 4080-01 (2000) (“Tribal Policy Statement”).
346 Fourth Further Notice, 27 FCC Rcd at 3336 ¶¶ 54-55.
347 “Tribal applicant” is defined as “(1) A Tribe or consortium of Tribes, or (2) An entity that is 51 percent or more
owned or controlled by a Tribe or Tribes that occupy Tribal Lands that receive Tribal coverage.” 47 C.F.R. §
73.7000.
348 “Tribal lands” are defined as “[b]oth reservations and Near reservation lands.” Id. The term “Near reservation
lands” also is defined in Section 73.7000.
349 Fourth Further Notice, 27 FCC Rcd at 3359 ¶ 55. In discussing these proposals, we highlighted that the
Commission had recently begun to use the term “Native Nations” to describe groups the Commission had previously
called “Tribes.” We, however, proposed that the LPFM rules cross-reference terms of art from existing NCE FM
rules in order to maintain consistency. Id.. Native Public Media (“NPM”) and National Congress of American
Indians (“NCAI”), which submitted joint comments, were the only commenters to address use of “Native Nation”
versus “Tribal” nomenclature. They generally prefer the term “Native Nation” because it better conveys the concept
of sovereignty, but they also believe that a change in terminology in Commission rules could be confusing and
create uncertainty as to whether one term is more comprehensive than another. NPM and NCAI Comments at 4. As
proposed, we will use “Tribal” terminology in the LPFM context. We agree with NPM and NCAI that this will
prevent confusion and uncertainty.
350 Section 73.7000 defines “Tribal coverage” as “(1) Coverage of a Tribal Applicant’s or Tribal Applicants’ Tribal
Lands by at least 50 percent of a facility’s 60 dBu (1 mV/m) contour, or (2) The facility’s 60 dBu (1 mV/m)
contour—(i) Covers 50 percent or more of a Tribal Applicant’s or Tribal Applicants’ Tribal Lands, (ii) Serves at
(continued….)
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147.
Commenters, including NPM and NCAI, supported without significant discussion the
proposal to expand the LPFM eligibility rule to include Tribal Nation Applicants.351 No commenter
opposed this proposal. Accordingly, we will amend Section 73.853(a) to clarify that Tribal Nation
Applicants are eligible to hold LPFM licenses. This rule amendment further underscores the
Commission’s commitment to recognize the sovereignty of Tribal Nations and to ensure their equal
treatment under our Rules.352 However, we will not, as originally proposed, rely on the definition of
“Tribal applicant” or “Tribal coverage” currently used in the NCE FM context. The definition of “Tribal
coverage” set forth in the NCE FM rules includes a coverage requirement and a requirement that the
proposed station serve at least 2,000 people living on Tribal Lands. As NPM and NCAI note, the limited
scope of LPFM coverage and the scattered populations on lands occupied by Tribal Nations warrant a
departure from the definition of “Tribal coverage” set forth in Section 73.7000. Unlike NPM and NCAI,
however, we believe that not only the 2,000 person threshold but also the coverage requirements are
unsuitable for the LPFM context. Instead, for LPFM licensing purposes, we will define a “Tribal
applicant” by retaining the requirement that the applicant be a Tribe or entity that is 51 percent or more
owned or controlled by a Tribe. Such action is consistent with the localism and diversity goals of the
LPFM service and will better achieve our goal of assisting Tribal Nations in establishing radio service to
their members on Tribal Lands. Tribal stations currently account for less than one-third of one percent of
the more than 14,000 radio stations in the United States. Thus, it is self-evident that expanding Tribal
radio ownership opportunities will help bring needed new service to chronically underserved
communities. Moreover, restricting ownership to Tribes and Tribally controlled entities, which are
obligated to preserve their histories, languages, cultures and traditions, will promote the licensing of
stations to entities that are uniquely capable of providing radio programming tailored to local community
needs and interests.353
148.
Finally, as NPM and NCAI propose,354 we will consider a Tribal Nation Applicant local
throughout its Tribal lands, so long as such lands are within the LPFM’s station’s service area. We are
persuaded that this better recognizes the sovereign status of Tribal Nations than our original proposal to
consider a Tribal Nation Applicant local only if it proposed to locate the transmitting antenna of the
proposed LPFM station on its Tribal lands. Moreover, this is consistent with the rules applicable to Tribal
Nations and state and local governments operating full-service NCE-FM and Public Safety land mobile
services.
149.
Ownership of Multiple LPFM stations. The Commission currently prohibits entities from
owning more than one LPFM station unless they are “[n]ot-for-profit organizations with a public safety
purpose.”355 This prohibition is intended to further diversity of ownership and foster a local, community-
(Continued from previous page)


least 2,000 people living on Tribal Lands, and (iii) The total population on Tribal Lands residing within the station’s
service contour constitutes at least 50 percent of the total covered population.”
351 See, e.g., NPM and NCAI Comments at 5; Prometheus Comments at 47; Common Frequency Comments at 20;
REC Comments at 9-10.
352 See Tribal Policy Statement, 16 FCC Rcd at 4080.
353 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, First
Report and Order, 25 FCC Rcd 1583, 1587-88 ¶ 8 (2010) (“Rural Radio First Report and Order”) (quoting a
National Congress of American Indians Resolution stating that “[n]ative radio stations play an important role in
supporting the Native American communities by providing programming and information that is critically important
to the residents of various reservations . . . the important role of Native radio in relaying critical messages cannot be
overstated.”).
354 NPM and NCAI Comments at 3-4.
355 Report and Order, 15 FCC Rcd at 2216 ¶ 24. See also 47 C.F.R. § 73.855.
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based LPFM service.356 In the Fourth Further Notice, we sought comment on whether to permit Tribal
Nation Applicants to seek more than one LPFM construction permit to ensure adequate coverage of
Tribal lands.357 For instance, we noted that ownership of multiple LPFM stations might be appropriate if
Tribal Nation Applicants seek to serve large, irregularly shaped or rural areas that could not be covered
adequately with one LPFM station. We explained that we believed that permitting Tribal Nations to hold
more than one LPFM license could advance the Commission’s efforts to enhance the ability of Tribal
Nations to produce programming tailored to their specific needs and cultures, and expand Tribal Nation
LPFM station ownership opportunities.358 We questioned, however, whether we should limit ownership
of multiple LPFM stations by a Tribal Nation Applicant to situations where channels also are available for
other applicants, thereby eliminating the risk that a new entrant would be precluded from offering service.
Finally, we sought comment on whether to implement this policy through amendment of Section
73.855(a) of the Rules or by rule waivers.
150.
A number of commenters support Tribal Nation ownership of multiple LPFM stations on
Tribal lands to permit more complete coverage than would be achieved with a single LPFM station.359
NPM and NCAI note that Tribal Nations already are eligible to own multiple LPFM stations as
governmental entities under the public safety exception to our ban on multiple ownership of LPFM
stations.360 They and REC believe Tribal Nations should also be able to own multiple LPFM stations for
other noncommercial purposes.361
151.
Common Frequency, NLG and Media Alliance believe that multiple ownership by Tribal
Nations is appropriate on Tribal lands, and in rural areas and small towns where there would be few other
organizations interested in applying for LPFM stations. REC, however, would allow Tribal Nation
Applicants to own or hold attributable interests in multiple LPFM stations only if Tribal lands constitute
at least 50 percent of the land area covered by each additional LPFM station licensed to a Tribal Nation
Applicant.362
152.
CRA, Matt Tuter (“Tuter”) and William Spry (“Spry”) urge us to eliminate the ban on
multiple ownership of LPFM stations altogether. CRA and Tuter contend that maintaining multiple
ownership restrictions for all applicants except for Tribal Nation Applicants is mistaken “because it
proceeds from a false notion that only Tribal governments can serve the interests of Tribal Americans.” 363
Spry, on the other hand, argues that allowing multiple ownership of LPFM stations is no different than


356 Report and Order, 15 FCC Rcd at 2216 ¶ 24.
357 Fourth Further Notice, 27 FCC Rcd at 3337-38 ¶ 58.
358 See, e.g., Rural Radio First Report and Order, 25 FCC Rcd at 1584-85 ¶¶ 4-5. See also Policies to Promote
Rural Radio Service and to Streamline Allotment and Assignment Procedures
, Second Report and Order, 26 FCC
Rcd 2556, 2557-58 ¶ 1, 2559-63 ¶¶ 6-11, 2584-87 ¶¶ 54-59 (2011) (modifying priority).
359 NPM and NCAI Comments at 7; Common Frequency Comments at 20; Amherst Comments at 16 (noting that the
Fort Berthold Indian Reservation in North Dakota, governed by the Mandan, Haradatsa, and Arikara Nation, could
benefit from multiple ownership because the reservation is larger than the state of Rhode Island but has fewer than
6,000 residents and a population density of only four people per square mile); NLG and Media Alliance Comments
at 9; REC Comments at 33-34.
360 NPM and NCAI Comments at 8. See also REC Comments at 33-34, citing 47 C.F.R. §§ 73.855(b) & 90.20(a).
361 NPM and NCAI Comments at 8; REC Comments at 34.
362 REC Comments at 34.
363 CRA Comments at 9; Tuter Comments at 1 (asserting that, if multiple LPFM stations are necessary to serve
Tribal lands, different Tribal Nation Applicants can apply for the stations needed).
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permitting cross-ownership of an LPFM station and FM translator stations. According to Spry, “Multiple
licenses are multiple licenses. The service should not matter.”364
153.
We will allow Tribal Nation Applicants to seek up to two LPFM construction permits to
ensure adequate coverage of Tribal lands. Our Rules already permit governments, including Tribal
Nations, to own multiple LPFM stations for public safety purposes, provided that they designate one
application as a priority and provided that non-priority applications do not face MX applications.365
Consistent with our decision above, we will permit each such co-owned LPFM station to retransmit its
signal over two FM translator stations, creating the potential for a Tribal Nation Applicant to have
attributable interests in a total of two LPFM stations and four FM translator stations. We believe that this
action will significantly further opportunities for LPFM service by Tribal Nations to their members. We
will not eliminate our prohibition on multiple ownership altogether as CRA, Tuter and Spry urge. In the
Fourth Report and Order in this proceeding we found that limited licensing opportunities remain for
future LPFM stations in many larger markets while abundant spectrum is available in the more sparsely
populated areas where Tribal Nation stations would operate predominantly.366 Moreover, the voluminous
record of this proceeding testifies to the unmet demand for community radio stations. Given the
imbalance between spectrum supply and applicant demand in larger markets, eliminating the current
prohibition entirely could undermine the LPFM service goal to promote diversity of ownership. Nor will
we restrict Tribal Nation ownership of multiple LPFM stations as proposed by REC. Tribal Nation
Applicants will need to satisfy our localism requirement in order to be eligible to hold LPFM licenses.
We believe this will provide adequate assurance that Tribal Nation ownership of multiple LPFM stations
furthers our goal of promoting service to Tribal lands and members.
154.
Finally, we note that, in the past, the Commission has prohibited an LPFM applicant from
filing more than one application in a filing window.367 In doing so, it relied upon the fact that “no one
may hold an attributable interest in more than one LPFM station”368 and noted that “a second application
filed by an applicant in [a] window would be treated as a ‘conflicting’ application subject to dismissal
under Section 73.3518.”369 As discussed above, we are creating a limited exception to the ban on
multiple ownership of LPFM stations for Tribal Nation Applicants. Accordingly, we will permit Tribal
Nation Applicants to file up to two applications in a filing window.
155.
Cross-Ownership of LPFM and Full Power Stations. We also sought comment on
whether to permit a full-service radio station permittee or licensee that is a Tribal Nation Applicant to file
for an LPFM station and hold an attributable interest in such station.370 As discussed previously, our
Rules prohibit cross-ownership in order “to afford small, community-based organizations an opportunity
to communicate over the airwaves and thus expand diversity of ownership.”371 We stated that we
believed that adding an exception for Tribal Nations would enhance their ability to provide


364 Spry Comments at 2.
365 47 C.F.R. § 73.855.
366 See Fourth Report and Order, 27 FCC Rcd at 3382-85 ¶¶ 39-44.
367 Low Power FM Filing Window Instructions, Public Notice, 15 FCC Rcd 9201 (MMB 2000).
368 Id., citing 47 C.F.R. § 73.855(b)(1).
369 Id., citing 47 C.F.R. § 73.3518. See also 47 C.F.R. § 73.801 (making Section 73.3518 applicable to LPFM
stations); Wisconsin Academy, Letter, 22 FCC Rcd 7724 (MB 2007) (finding staff properly dismissed the LPFM
application of an applicant on the grounds that a party to that application was also listed as a party to another LPFM
application).
370 Fourth Further Notice, 27 FCC Rcd at 3337 ¶ 57.
371 Report and Order, 15 FCC Rcd at 2217 ¶ 29. See also 47 C.F.R. § 73.860.
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communications services to their members on Tribal lands without significantly undermining diversity of
ownership. We asked commenters to discuss whether such an exception should be limited to situations
where the Tribal Nation Applicant demonstrates that it would serve currently unserved Tribal lands or
populations.372
156.
Few commenters discussed this proposal. NPM, NCAI and Common Frequency express
general support.373 CRA supports cross-ownership of LPFM and full-power stations but believes this
option should be available to all applicants.374 REC supports the proposal but would impose certain
cross-ownership restrictions.375
157.
After considering the comments, we do not believe that there is a sufficient record on
which to modify our Rules to provide for Tribal Nation cross-ownership of LPFM and full-service
stations. The record at this time does not demonstrate that this is necessary or would provide significant
public interest benefit. A Tribal Nation with an LPFM authorization may file at any time a rulemaking
petition for a Tribal allotment, provided that it pledges to divest the LPFM station.376 Although we
recognize that cross-ownership could permit a Tribal Nation to program separately for different
audiences, we remain concerned that this type of cross-ownership might undermine the diversity goals of
the LPFM service. It is also not clear, on the record before us, how it would advance our goal of
expanding service to Tribal lands and members. Finally, the record did not identify a demonstrated need
unique to Tribal Nations that this change would address. Accordingly, we decline at this time to adopt a
cross-ownership exception that would allow a Tribal Nation Applicant to hold both LPFM and full-power
radio station authorizations. A Tribal Nation Applicant that can demonstrate that a waiver would advance
our LPFM goals, and advance our goal of expanding service to Tribal lands and members or is otherwise
in the public interest, may seek a waiver of this ownership restriction. Moreover, in light of the trust
relationship we share with federally recognized Tribal Nations, the Commission will endeavor, through
efforts coordinated by the Office of Native Affairs and Policy and the Audio Division, to engage in
further consultation with Tribal Nations and coordination with inter-Tribal government organizations on
this cross-ownership issue.
d.

Ownership of Student-Run Stations

158.
Two commenters ask us to make changes to the exception to the cross-ownership
prohibition for student-run stations, which is set forth in Section 73.860(b) of the Rules.377 Currently, we
permit an accredited school that has a non-student-run full power broadcast station also to apply for an
LPFM station that will be managed and operated by students of that institution, provided that the LPFM
application is not subject to competing applications. The Commission dismisses the student-run LPFM
application if competing applications are filed.


372 Fourth Further Notice, 27 FCC Rcd at 3337 ¶ 57.
373 NPM and NCAI Comments at 7; Common Frequency Comments at 20.
374 CRA Comments at 8.
375 REC Comments at 32-33.
376 See Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, Third
Report and Order, 26 FCC Rcd 17642, 17645 ¶¶ 7-9 (2011); Comparative Consideration of 59 Groups of Mutually
Exclusive Applications for Permits to Construct New or Modified Noncommercial Educational FM Stations filed in
the October 2007 Filing Window
, Memorandum Opinion and Order, 25 FCC Rcd 1681, 1686 ¶ 14 (2010).
377 47 C.F.R. § 73.860(b). While we did not explicitly seek comment on this aspect of our ban on cross-ownership
of LPFM stations and other broadcast stations, we believe it constitutes a “logical outgrowth” of the Fourth Further
Notice
, which sought comment on a wide range of topics related to cross-ownership and the process we use to select
among MX LPFM applications.
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159.
REC and Common Frequency propose that we consider applications for student-run
stations even if there are competing applications, so that all applicants can participate in settlements and
time sharing negotiations.378 We agree that it would serve the public interest to eliminate this automatic
dismissal requirement. When the Commission first adopted this exception to the general prohibition on
cross-ownership, it was seeking to strike a balance between an LPFM service comprised entirely of new
entrants and one which would enable new speakers including students to gain experience in the broadcast
field, even if their universities held other broadcast interests.379 The Commission believed that the
exception properly balanced the interests of local groups in acquiring a first broadcast facility and of
university licensees in providing a distinct media outlet for students.380 Our decision today, however,
alters the LPFM comparative process by adding a selection criterion for applicants with no other
broadcast interests. Given this change, we believe it is appropriate to eliminate our limitation on
eligibility for student-run LPFM applications by schools with non-student run full power broadcast
stations.
160.
Common Frequency also proposes that we allow university systems with multiple
campuses serving distinct regions, such as those in New York, Georgia, and California, to apply for
student-run LPFM stations at any campus without another station, provided that the 60 dBu service
contours do not overlap.381 For example, Common Frequency argues that the newest campus of the
University of California at Merced could benefit from a student-run LPFM station but cannot apply
because the university owns full-power stations at other campuses.382 We do not believe that a rule
change is needed, however, concerning multiple campuses. Under our Rules, a local chapter of a national
or other large organization is not attributed with the interests of the larger organization, provided that the
local chapter is separately incorporated and has a distinct local presence and mission.383 In 2000, the
Commission clarified that this LPFM attribution exception for “local chapters” applies to schools that are
part of the same school system, including university systems with multiple campuses, provided that the
“local chapter” seeks its own licenses.384 Thus, in Common Frequency’s example, the University of
California’s ownership of full power broadcast stations licensed to separate campus institutions would not
prevent the University of California at Merced from applying for an LPFM new station construction
permit for a student-run station. We note, however, that “local chapters” of larger organizations that hold
broadcast interests will not qualify for a “new entrant” point, as discussed below. Any broadcast interests
held by the “parent” organization will be considered attributable for the purposes of this criterion only.
2.

Selection Among Mutually Exclusive Applicants

161.
The Commission accepts applications for new LPFM stations or major changes to
authorized LPFM stations only during filing windows.385 After the close of an LPFM filing window, the
Commission makes mutual exclusivity determinations with regard to all timely and complete filings.386
The staff then processes any applications not in conflict with any other application filed during the


378 REC Comments at 36-37; Common Frequency Comments at 25.
379 See Creation of Low Power Radio Service, Memorandum Opinion and Order on Reconsideration, 15 FCC Rcd
19208, 19241¶ 84 (2000) (“LPFM Memorandum Opinion and Order”).
380 Id.
381 Common Frequency Comments at 24-25.
382 Id.
383 47 C.F.R. § 73.858(b).
384 LPFM Memorandum Opinion and Order, 15 FCC Rcd at 19240 ¶ 81.
385 47 C.F.R. § 73.870(b).
386 47 C.F.R. § 73.870(d).
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window, and offers applicants identified as MX with other applicants the opportunity to settle their
conflicts.387 If conflicts remain, the Commission applies the LPFM point system.388 Specifically, under
our current Rules, the Commission awards one point to each applicant that has an established community
presence, one point to each applicant that pledges to operate at least twelve hours per day, and one point
to each applicant that pledges to originate locally at least eight hours of programming per day. The
Commission takes the pledges made by applicants seriously. We will consider complaints that a licensee
is not making good on a pledge it made during the application process and take appropriate enforcement
action if we find a licensee has not followed through on its pledge. Moreover, as we noted in establishing
the point system, “As with other broadcast applications, the Commission will rely on certifications but
will use random audits to verify the accuracy of the certifications.”389 In the event of a tie, the
Commission employs voluntary time sharing as the initial tie-breaker.390 As a last resort, the Commission
awards each tied and grantable applicant an equal, successive and non-renewable license term of no less
than one year, for a combined total eight-year term.391
162.
In the Fourth Further Notice, we proposed certain changes to our existing criteria,
suggested that we award a point to Tribal Nation Applicants, and requested suggestions for new selection
criteria that would improve the efficiency of the selection process. As discussed in more detail below, we
adopt a revised point system. We will award one point to applicants for each of the following: (1)
established community presence; (2) local program origination; (3) main studio/staff presence (with an
extra point going to those applicants making both the local program origination and main studio pledges);
(4) service to Tribal lands by a Tribal Nation Applicant; and (5) new entry into radio broadcasting. We
will continue to accept voluntary timeshare arrangements, and will continue to accept partial settlements
not involving timeshare arrangements, as an additional means to eliminate ties, discourage gamesmanship
in timesharing arrangements, and reduce involuntary timeshare outcomes. We eliminate successive
timeshare arrangements as the last resort, and will instead allow remaining qualified applicants to share
time designated in the manner described below. Finally, we revise our Rules to extend mandatory time
sharing to LPFM stations that meet the Commission’s minimum operating requirements but do not
operate 12 hours per day each day of the year.
a.

Point System Structure, and Elimination of Proposed Operating
Hours Criterion

163.
REC and Prometheus each offer modifications to the current point system, but also
submit alternative or enhanced methods by which to resolve MX groups. Each party maintains that the
purpose of its proposed structure is to decrease the number of potential timeshares and successive
licensees.392 Prometheus proposes a multistage “waterfall evaluation process” in which there are multiple
opportunities for a single winner to emerge. It notes that, under this system, the Commission would be
able to emphasize its “top priority” criteria by placing them in the first tier, and explains the process as
follows:393


387 47 C.F.R. § 73.872(e). This rule requires all competing applicants in an MX group to reach a universal
settlement.
388 47 C.F.R. § 73.872. See also Report and Order, 15 FCC Rcd at 2258-2264 ¶¶ 136-149.
389 LPFM Memorandum Opinion and Order, 15 FCC Rcd at 2261 ¶ 142.
390 47 C.F.R. § 73.872(c).
391 Report and Order, 15 FCC Rcd at 2263-64 ¶ 149.
392 Prometheus Comments at 61; REC Comments at 40.
393 Prometheus Comments at 61.
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In this system, each criterion would be worth a single point and would be placed – according to
priority—into one of several tiers. The Commission would first compare applications using only
the criteria in “Tier 1.” If, after relying only on the criteria in Tier 1, a single applicant receives
more points than any of its competitors, that winning applicant becomes the tentative selectee.
However, in the event of a tie between two or more applicants with the most points, those tied
applicants would then advance to Tier 2. Applicants with fewer points would be dismissed.
These procedures would then be repeated to evaluate the remaining applicants using Tier 2 and, if
necessary, Tier 3 criteria.394
164.
REC, on the other hand, suggests that we retain the established community presence and
local programming criteria, and award additional points as follows:

one point to any applicant that is a municipal or state agency eligible under Part 90395 of the
Rules and provides emergency service; 396

one point to any applicant that is an accredited school and will use the proposed LPFM
station for a “hands on” educational experience in broadcasting;397

one point to any applicant proposing to broadcast children’s programming for at least 3 hours
per week;398

one point to any applicant that will maintain a main studio staff presence for at least 40 hours
per week;399

one point to any applicant volunteering to maintain an online public file;400

one point to any applicant that is owned or controlled by a recognized Tribal Nation that
currently has no attributable interests in any other broadcast facility, proposes a transmitter
site located within the boundaries of a Tribal Nation, and has not received a point under this
criterion in connection with another LPFM station for which the applicant holds a
construction permit or license;401

one point to any applicant that pledges to create a public access broadcasting regime that
solicits and presents programming created by and directly submitted by members of the
public within the proposed LPFM station’s service contour;402 and


394 Id.
395 Part 90 of the Commission’s rules pertains to the licensing of private land mobile radio communications to
governmental entities and individuals providing various public safety services, such as medical or rescue services,
disaster relief, etc. See 47 C.F.R. § 90.20(a).
396 REC Comments at 42-44. REC proposes that organizations that are not eligible under Part 90 of the rules also
may claim this point by submitting an affidavit from a state, county or municipal agency that attests to their
participation in public safety activities. Id. at 43-44.
397 Id. at 44.
398 Id. at 45-46.
399 Id. at 46-47. REC proposes to require this of LPFM stations operating 24 hours per day, seven days per week.
REC also proposes to award one point under this criterion to stations operating less than 24 hours per day if these
stations maintain a main studio staff presence at least 25 percent of the hours that they are authorized to broadcast
each week. Id. at 47.
400 Id. at 47-49.
401 Id. at 49-50.
402 Id. at 50-51.
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one point to any applicant willing to accept a time share agreement in lieu of being allowed to
broadcast full time.403
165.
We continue to believe that our basic points structure remains the most effective and
efficient method of resolving mutual exclusivities. This conclusion is based in part on our recent
experience with NCE applications filed during the 2007 and 2010 windows, where we have successfully
resolved hundreds of groups of MX applications based on a very similar point system process. We
decline to adopt Prometheus’ proposed “waterfall” system. While doing so may reduce the likelihood of
involuntary timesharing outcomes, we do not believe, as Prometheus suggests, that it would “reduce the
administrative complexity” of the comparative process generally.404 Indeed, we believe that it would
have the opposite effect, as it would also create the potential for “waterfall” levels of comparative
analysis and re-analysis. For example, for every successful challenge to the tentative selection of an
applicant in a tiered category, the Commission would be forced to re-evaluate the group as a whole to
determine which applicant, if any, should proceed to the next tier. If the new applicant in the next tier
was successfully challenged, the Commission would have to repeat the evaluation process. This outcome
is much less efficient than the current points system, which allows the Commission to weigh all points
claimed by all applicants simultaneously. Even if we were to conclude that this approach was
administratively feasible, we believe that we would need a far more comprehensive record, developed
through a supplemental rulemaking, before we could attempt to “rank” the LPFM selection criteria into
“tiers.”
166.
As discussed below, however, we adopt some of the new criteria suggested by REC,
which we believe will enhance the localism and diversity policies underlying the LPFM service and
anticipate will reduce the number of involuntary timesharing outcomes. We reject the remaining criteria
suggested by REC and others, as they fail to demonstrate any unmet need that warrants preferences for
particular types of programming,405 would be difficult and time-consuming to administer406 or enforce,407
or would not substantially further the Commission’s localism goals.408
167.
Finally, REC, Prometheus and others suggest that we eliminate the proposed operating
hours criterion, noting that, because of automation software, “even one-person LPFM stations easily meet
this standard.”409 We agree with the commenters that this criterion does not meaningfully distinguish
among applicants. Thus, we eliminate it.
b.

Established Community Presence

168.
Currently, under the LPFM selection procedures for MX LPFM applications set forth in
Section 73.872 of the Rules, the Commission awards one point to an applicant that has an established
community presence. The Commission deems an applicant to have such a presence if, for at least two


403 This point would only be reviewed in the event of a tie in an MX group involving the other nine points. At that
point, any applicants claiming this point would proceed to a time share process and the other applicants would be
dismissed. Id. at 51-52.
404 Prometheus Comments at 61,
405 Id. at 56-58 (suggesting a point for local news); REC Comments at 45-46 (suggesting a point for children’s
programming).
406 REC Comments at 51-53 (suggesting a point for applicants that consent to an involuntary time sharing
arrangement). We discuss timesharing arrangements in more detail in Section III.D.2.g., infra.
407 Id. at 47 (suggesting a point for voluntarily maintaining a public file and a point for maintaining a public access
regime).
408 Id. at 42-44 (suggesting a public safety point and a point to provide “hands-on” student learning).
409 Prometheus Comments at 55.
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years prior to application filing, the applicant has been headquartered, has maintained a campus or has
had three-quarters of its board members residing within ten miles of the proposed station’s transmitter
site.410 In the Fourth Further Notice, we proposed to revise the language of Section 73.872(b)(1) to
clarify that an applicant must have had an established local presence for a specified period of time prior to
filing its application and must maintain that local presence at all times thereafter. We noted that while
Section 73.872(b)(1) currently does not include the requirement that an applicant maintain a local
presence, we believed that was the only reasonable interpretation of the rule. Commenters that addressed
this proposal agreed that this was a reasonable interpretation.411 Accordingly, we adopt this proposed
revision.
169.
In addition, we sought comment on other changes to the rule. First, we requested
comment on whether to revise our definition of established community presence to require that an
applicant have maintained such a presence for a longer period of time, such as four years. Commenters
largely disagreed with this proposal, asserting that the duration of a nonprofit organization’s existence is
not indicative of its level of responsiveness to local concerns.412 Others noted that the proposal could
“shut out” suitable applicants413 or have “unintended discriminatory consequences.”414
A few
commenters, however, generally embraced our proposal to maintain the two-year threshold but supported
an award of an additional point to applicants that have a substantially longer established community
presence (e.g., four years).415
170.
We continue to believe that established local organizations are more likely to be aware of
community needs and better able to “hit the ground running” upon commencement of broadcast
operations. However, we are persuaded by commenters that organizations that have been established in
the community for four years will not necessarily be more responsive to community needs or likely to
establish a viable community radio station than those who have been present for two. We likewise agree
that extending the length to four years may unnecessarily limit the pool of qualified organizations.
Finally, parties supporting a “bonus” point for applicants with more established ties to the community
failed to offer any demonstration of greater responsiveness supporting its adoption. Accordingly, we will
retain the current two-year standard.
171.
We also solicited comment on whether we should modify Section 73.872(b)(1) to extend
the established community presence standard to 20 miles in rural areas. We will adopt this modification
as proposed. We note that the Commission extended the “local” standard in Section 73.853(b) to 20
miles only for rural areas, based on a record indicating special challenges for rural stations.416 While
many commenters support an extension of the established community presence standard to 20 miles in all
areas, not just rural areas,417 we are unconvinced that limiting our extension of the standard to rural areas
only is unduly harsh or will create disadvantages to applicants with geographically dispersed board


410 47 C.F.R. § 73.872(b)(1).
411 See, e.g., Common Frequency Comments at 21; SOPR Comments at 5.
412 See REC Comments at 40-41; Prometheus Comments at 52-53; Common Frequency Comments at 21.
413 See Joint Center for Political and Economic Studies (“JCPES”) Comments at 4-5.
414 Common Frequency Comments at 22; CRA Comments at 10, 11.
415 See JCPES Comments at 4-5; SOPR Comments at 5.
416 Prior to 2007, Section 73.853(b) did not contain a different local standard for rural areas. Third Report and
Order
, 22 FCC Rcd at 21923 ¶ 25. At the urging of Prometheus, the Commission extended the local standard for
these areas. Id. In doing so, the Commission noted that “stations located in rural communities find it particularly
challenging to meet the current ten-mile standard” and concluded that the concept of local should be “more
expansive in rural areas.” Id.
417 REC Comments at 40-41; Prometheus Comments at 52; Common Frequency Comments at 22.
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member residences, as some commenters suggest.418
172.
Finally, we sought comment on whether to allow local organizations filing as consortia to
receive one point under the established community presence criterion for each organization that qualifies
for such a point. Most commenters rejected this proposal, noting that it would encourage gamesmanship
and unethical behavior.419 Amherst Alliance and others state that they are “deeply concerned that
unethical LPFM applicants could manufacture ‘paper partners’ in order to gain a dramatic advantage over
their rivals,” predicting that the paper partners would eventually either leave the scene or simply “rubber
stamp” the station operator’s actions.420 Prometheus notes that the proposal could lead to discrimination,
and potentially lead to a contest “favoring the best connected, best resourced groups” in a given
community.421 It further notes that non-consortium applicants competing with consortium applicants
would almost always lose, even if the non-consortium applicants have received points that are arguably
more “directly related” to a licensee’s potential to serve its community.422 Finally, Common Frequency
notes that the proposal would “discourage diversity,” effectively rewarding consortia organizations that
hold similar viewpoints over single minority groups, such as foreign-language speakers and LGBT
organizations.423
173.
The few commenters supporting the proposal note that the consortia proposal could speed
up the licensing process by lessening the Commission’s burden of sorting out MX applications, and
would help avoid involuntary time sharing by applicants whose proposed programming formats are
incompatible and likely to confuse potential audiences.424 To help deter potential abuse, Cynthia Conti
(“Conti”) suggests that the Commission require consortia applicants to submit with their applications
proof of their intention to coexist at their future station, such as a “joint plan of action” that would include
descriptions of the participating organizations, their individual and collective intentions for the station,
and a proposed programming schedule.425
174.
We are persuaded by commenters that the risk of licensing abuses and the potential for
excluding unrepresented or underrepresented niche communities far outweigh potential service benefits or
mere administrative efficiencies. Even if we were to require supporting documentation at the application
stage, we would still have no reliable mechanism, given our limited administrative resources, to
ultimately ensure that such consortia relationships are being meaningfully maintained throughout the
license period. Thus, we do not adopt the consortia proposal.
c.

Local Program Origination

175.
The Commission currently encourages LPFM stations to originate programming locally
by awarding one point to each MX applicant that pledges to provide at least eight hours per day of locally


418 Prometheus Comments at 52; Common Frequency Comments at 22.
419 See REC Comments at 38-41; Prometheus Comments at 53-55; Amherst Comments at 13-14; Sibert Comments
at 6.
420 Amherst, Nexus LPFM Advocacy and Nexus Broadcast Joint Reply Comments at 2.
421 See Prometheus Comments at 54.
422 Id. at 55.
423 Common Frequency Comments at 23.
424 See CRA Comments at 11; Conti Comments at 2; NLG and Media Alliance Comments at 8. But see Prometheus
Comments at 53-54 (noting that if multiple consortia are also MX applicants for a given channel, the current
proposal may actually result in more ties and could result in complex timeshares that are unsustainable); Common
Frequency Comments at 22 (noting that the proposal could spawn “mega-MX’s”).
425 Conti Comments at 2.
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originated programming.426 The Rules define “local origination” as “the production of programming, by
the licensee, within ten miles of the coordinates of the proposed transmitting antenna.”427 In adopting the
local program origination criterion, the Commission reasoned that “local program origination can advance
the Commission’s policy goal of addressing unmet needs for community-oriented radio broadcasting” and
concluded that “an applicant’s intent to provide locally-originated programming is a reasonable gauge of
whether the LPFM station will function as an outlet for community self-expression.”428
176.
In the Fourth Further Notice, we sought comment on whether to place greater emphasis
on this selection factor by awarding two points for this criterion instead of the current one point.429
Alternatively, we sought comment on whether to impose a specific requirement that all new LPFM
licensees provide locally-originated programming.430 We asked parties supporting such a requirement to
explain why our prior finding that it was not necessary to impose specific requirements for locally
originated programming no longer is valid and to identify problems or short-comings in the current LPFM
licensing and service rules that such a change would remedy. We also asked parties supporting a locally-
originated programming requirement to address potential constitutional issues.
177.
Many commenters generally support the adoption of a locally originated programming
obligation, but provide little or no analysis.431 Prometheus, which devotes the most significant discussion
to this issue, would require every LPFM station to air at least 20 hours per week of locally originated
programming,432 maintaining that such a requirement would more effectively ensure that a station would
serve community needs, would be consistent with the Commission’s policy goal of promoting localism,433
and would help remediate the “drastic decline” of local programming in the media.434 Prometheus asserts
that today, approximately 20 percent of all licensed LPFM stations produce no local programming
whatsoever,435 and states that, without such a requirement, a “significant number” of LPFM stations will


426 47 C.F.R. § 73.872(b)(3).
427 Id.
428 See Report and Order, 15 FCC Rcd at 2262 ¶ 144.
429 We received few or no comments on the following issues: whether the limited licensing opportunities for LPFM
stations in major markets or the potential for applicants to receive up to three points as consortia justified an increase
in the points awarded for local program origination, whether such action was not warranted in view of our previous
finding that local programming is not the only programming of interest or value to listeners in a particular locale,
and whether we should modify the definition of local program origination for LPFM stations that serve rural areas.
In the absence of any definitive record on any of these issues, we will not consider them further.
430 Fourth Further Notice, 27 FCC Rcd at 3340 ¶ 63.
431 Approximately 150 individuals submitted short form letters to express support for requiring “a minimum amount
of locally-originated programming each week.” See also Amherst Alliance Comments at 14; NLG and Media
Alliance Comments at 8;Leadership Conference on Civil and Human Rights Comments at 5.
432 Prometheus Comments at 44.
433 Prometheus notes that, in establishing the LPFM service, the Commission stated that “local program origination
can advance the Commission’s policy goal of addressing unmet needs for community oriented radio broadcasting.”
Id. at 37, citing Report and Order, 15 FCC Rcd at 2261-62 ¶ 144.
434 See Prometheus Comments at 38, citing Information Needs of Communities, Report, 2011 WL 2286864 (2011)
(“INC Report”). See also JCPES Comments at 6 (asserting that greater emphasis on locally originated programming
will encourage discourse on local issues affecting communities of color); Braulick Comments at 5 (stating that it is
appropriate to place a greater emphasis on local program origination criterion because local programming arguably
can better serve local needs).
435 Prometheus Comments at 41-42 (citing a telephone survey study conducted by researchers at Penn State
University, which found that approximately 20 percent of LPFM stations provide little or no local programming).
(continued….)
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not offer any local programming.436 It further maintains that a local program origination requirement is
constitutionally sound, pointing to the fact that “federal legislation, Commission decisions and Supreme
Court precedent support the importance of local programming … and support Commission actions to
adopt content-neutral broadcaster obligations that embrace substantial broadcaster discretion.”437 In
particular, Prometheus cites proceedings in which the Commission has regulated children’s television and
network programming.
178.
Several commenters do not agree with Prometheus’ position, instead arguing that local
program origination should remain a comparative criterion. REC fears that “during tough times,” stations
may not have the financial resources to generate 20 hours weekly of local programming.438 Other
commenters observe that local program origination is “an easily manipulated requirement,”439 is of
“limited value”440 with no enforcement mechanism in place, and is not necessarily more responsive to
community needs than non-local content.441
Conti states that, “given the concern over the
constitutionality of requiring programming, the addition of a locally-originated programming requirement
could make LPFM rules vulnerable to complaints” and does not “think it is worth the risk considering that
the criterion does not necessarily result in its stated goal.”442
179.
After careful consideration of the record, we decline to impose a local program
origination requirement. When we first created the LPFM service, we sought comment on whether to
impose a local program origination requirement.443 We noted that listeners benefit from locally originated
programming because it often reflects needs, interests, circumstances or perspectives that may be unique
to a community. However, we also found that programming need not be locally originated to be
responsive to local needs. Ultimately, we concluded that the nature of the LPFM service, combined with
eligibility criteria and preferences, would ensure that LPFM licensees would provide locally originated
programming or programming that would otherwise respond to local needs.
180.
Nothing in the record persuades us that these findings are no longer valid. The
Commission has consistently maintained that non-local programming can serve community needs.444
(Continued from previous page)


Connolly-Ahern, C., Schejter, A., Obar, J., & Martinez-Carrillo, N.I. A slice of the pie: Examining the state of the
Low Power FM Radio Service in 2009
, Presented to the Research Conference on Communication, Information and
Internet Policy (TPRC), Arlington, VA (Sept 27, 2009).
436 Prometheus Comments at 35. Prometheus notes that most LPFM stations could afford to offer locally originated
programming. Prometheus Reply Comments at 19.
437 Prometheus Comments at 46-47, citing Turner Broadcasting Co. v. FCC, 512 U.S. 622 (1994); National
Broadcasting Co., Inc., v. United States
, 319 U.S. 190 (1943) (“NBC”), and Policies and Rules Concerning
Children’s Television Programming
, Report and Order, 11 FCC Rcd 10660, 10732 (1996) (“Children’s Television
Order
”).
438 REC Comments at 42.
439 Grant County Comments at 3.
440 SOPR Comments at 5.
441 CRA Comments at 12.
442 Conti Comments at 3.
443 See Creation of a Low Power Radio Service, Notice of Proposed Rulemaking, 14 FCC Rcd 2471 (1999) (“LPFM
Notice
”).
444 See Broadcast Localism, Notice of Inquiry, 19 FCC Rcd 12425, 12431 n.43 (2004) (“[P]rogramming that
addresses local concerns need not be produced or originated locally to qualify as ‘issue-responsive’ in connection
with a licensee's program service obligations”), citing The Revision of Programming and Commercialization
Policies
, Report and Order, 98 FCC 2d 1076, n.28 (1984) (“[T]he coverage of local issues does not necessarily have
to come from locally produced programming); Amendment of Sections 73.1125 and 73.1130 of the Commission’s
(continued….)
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While Prometheus points to a decline in the production of local programming as support for a local
program origination requirement, it has failed to counter the argument that non-locally produced
programming can serve community needs.445 Indeed, as commenters have noted, non-local programming
can serve the unique needs of a community. For instance, a foreign language station may carry
programming “from home,”446 other LPFM stations may broadcast public affairs programming from a
neighboring county,447 and still other LPFM stations may broadcast religious programming.448
181.
We also continue to believe that the nature of the service inherently ensures that LPFM
stations will be responsive to community needs. The record supports this conclusion. Last year, in the
INC Report, we noted several LPFM “success” stories in which LPFM stations were serving their
communities.449 Moreover, while Prometheus points to the fact that 20 percent of all LPFM licensees
currently produce no locally originated programming as evidence of a local media crisis, we believe this
is a “glass half empty” perspective, and are instead encouraged by the fact that 80 percent of all LPFM
licensees are producing some local programming.
182.
Moreover, given the current economic climate, we believe a local program origination
requirement could unnecessarily restrict LPFM licensees and jeopardize their financial health. Many, if
not all, of these stations are run by volunteers and operate on a shoestring budget. LPFM licensees often
have difficulty finding underwriters to support their stations.450 Prometheus argues that LPFM stations
could arguably afford to produce locally originated programming.451 However, our own records show
that, as a whole, the LPFM service remains financially vulnerable. This is evidenced by the fact that, of
(Continued from previous page)


Rules, the Main Studio and Program Origination Rules for Radio and Television Broadcast Stations, Report and
Order, 2 FCC Rcd 3215, 3218-19 ¶ 39(1987) (finding that the Commission “can no longer presume that location
alone is relevant to the provision of programming which is responsive to the interests and needs of the community”
and noting that a local program origination requirement “may actually preclude the presentation of responsive
programming”); WPIX, Inc., Decision, 68 F.C.C.2d 381, 402-3 ¶ 11 (1978) (“premise that local needs can be met
only through programming produced by a local station has not only been rejected by the Commission …, but it also
lacks presumptive validity”) (citations omitted).
445 Prometheus cites to the INC Report’s finding that there has been a decline in local news reporting. See
Prometheus Comments at 38-39. However, we note that a local program origination requirement would not
necessarily remedy this shortfall of local news because an LPFM station would still remain free to choose its own
format.
446 REC Comments at 41.
447 Grant County Comments at 3 (arguing that a public affairs show produced two counties away could be valuable
to the community).
448 CRA Comments at 12 (noting that locally originated programming is not necessarily more responsive than
programming originated elsewhere).
449 See INC Report, 2011 WL at *197 (noting that anecdotal evidence suggests that LPFMs play an important role in
reaching underserved communities, providing, for example, news and information to non-English speaking
communities, and public affairs programming for senior citizens).
450 See LPFM Report, 27 FCC Rcd at 64 ¶ 7. These challenges are compounded by the fact that the LPFM service,
by its very nature, has an extremely limited reach. See id. at 15 (noting that LPFM stations are listened to by less
than 0.2 percent of the radio-listening population and that LPFM listening represents less than 0.1 percent of total
radio listening).
451 See Prometheus Reply Comments at 18-19 (citing LPFM survey demonstrating that stations producing more than
20 hours of locally originated programming per week had an average budget of $20,000, while those who produced
less than 20 hours of locally originated programming per week had an average budget of $10,000). We find this
limited data to be inconclusive. It may be that the stations with larger budgets produce locally originated
programming because they have more funding available to them.
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the 1,286 LPFM construction permits granted out of the last LPFM application filing window, only 903
LPFM stations ultimately became fully licensed. Moreover, 84 of these station licenses now have either
expired or been cancelled, with nearly half of these expirations/cancellations occurring in the last two
years.452 Of the remaining 819 licensed stations, 26 are currently silent. Given these alarming statistics,
we believe it is essential to provide LPFM licensees with maximum flexibility to choose their own
programming as a measure to ensure their continued viability.
183.
Finally, we recognize that Prometheus’ support of a local program origination
requirement is based on its belief that this option will most effectively further the Commission’s goal of
ensuring that the LPFM service will “enhance locally focused community-oriented radio broadcasting.”453
We agree that this goal is one of the bedrocks of the LPFM service. However, we find that there are
better, alternative ways of furthering this goal without imposing further regulatory restrictions.
Specifically, as discussed in more detail below, we believe we can better effectuate our localism goals by
retaining a one-point preference for local program origination and supplementing that preference with two
additional selection criteria that award points to those applicants best positioned to locally originate
programming. 454 Accordingly, given the lack of a clear record basis to support its adoption, we decline to
adopt a program origination requirement for LPFM stations. In short, while our selection criteria seek to
promote local origination, we believe the benefits of imposing it as a requirement are far outweighed by
the costs to a financially vulnerable fledgling sector of the industry.
184.
That said, we note that the comments filed in this proceeding reflect some
misunderstanding of what constitutes “locally originated programming” under our previous orders, and
we take this opportunity to provide additional guidance to current and prospective LPFM licensees. In
the Second Order on Reconsideration in this docket, the Commission held that time-shifted, non-local,
satellite-fed programming does not qualify toward the local origination pledge.455 Commenters indicate


452 Notably, this uptick in license cancellations has coincided with the current license renewal cycle, which
commenced in 2011. As part of the renewal process, each LPFM licensee must file an application for license
renewal four months prior to the expiration date of the station's license. If a renewal application is not filed prior to
the expiration of the station’s license, the license automatically expires as a matter of law. See 47 C.F.R. §§
73.1020, 73.3539(a). In such cases, the Bureau will notify the licensee by letter that its license has expired and its
call sign has been deleted from the Commission's database. As a courtesy, the Bureau staff routinely attempts to
contact licensees that have not filed renewal applications by their respective filing deadlines. Some LPFM licensees
have surrendered their licenses or informed the staff that they would allow their licenses to expire. In many cases,
licensees cannot be reached with the contact information they have previously provided to the Commission, or
through public record searches. Many of these licensees have simply failed to file their renewal applications. The
Bureau believes that, in such cases, the licensee has shut down its station and abandoned its license.
453 Prometheus Comments at 37. Prometheus also maintains that a local program origination requirement will deter
the filing of applications by national networks seeking to create de facto programming networks. See Letter from
Angela Campbell, Counsel to Prometheus Radio Project, to Marlene Dortch, Secretary, FCC, in MB Docket 99-25
(filed Oct. 11, 2012). Prometheus, in effect, appears to be taking aim at a small handful of national religious
organizations that provide religious content to local LPFM stations. Id. Again, this argument presupposes that non-
local programming does not serve community needs. In any event, we find that the additional selection criteria we
adopt today adequately ensure that, in MX situations, those applicants pledging to originate programming will
prevail. We fail to see how, as Prometheus suggests, a singleton LPFM applicant that plans to provide non-local
programming would “squelch” local voices. Id. at Appendix C-27.
454 We reject Prometheus’s suggestion to require LPFM licensees to put their programming schedules online for the
purpose of disclosing which programs are intended to count toward the local programming requirement. We believe
that this approach would impose significant burdens on LPFM licensees without providing any clear public interest
benefits to listeners.
455 Creation of a Low Power Radio Service, Second Order on Reconsideration and Further Notice of Proposed
Rulemaking, 20 FCC Rcd 6763, 6766 ¶ 10 (2005) (“Second Order”).
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that some licensees believe that such programming is local provided that it is delivered in a way other
than satellite.456 This inference is incorrect. Any non-local programming, whether delivered by satellite,
over the Internet or other means, does not qualify as locally originated programming. Similarly, in the
Third Report and Order, we clarified that repetitious automated programming does not meet the
definition of local origination, and specifically stated that once a station has broadcast a program twice it
can no longer count it as locally originated.457 According to commenters, some LPFM licensees believe
that this is a daily restriction (i.e., cannot repeat programming more than twice in one day),458 while others
believe that a program becomes “new” for local purposes if musical selections within a program are re-
shuffled.459 Again, these inferences are incorrect. Once a station has broadcast a program twice it can
never again be counted toward the local program origination pledge. Likewise, programs that have been
“tweaked” or reorganized do not count toward the requirement if the underlying program has already
been played twice. Generally speaking, locally originated programming – whether locally created content
(e.g., live call-in shows or news programs), or locally curated content (e.g., a music program reflecting
non-random song choices) – must involve a certain level of local production (i.e., creation of new content,
in order for the programming to be considered locally originated).460 Each of the examples discussed
above lacks this critical element. Our deliberations in this proceeding, including the clarification we
provide today, have been consistent with this underlying principle. Accordingly, we will revise Section
73.872 of our Rules, as well as the FCC Form 318, to incorporate these clarifications.
d.

Main Studio

185.
REC, Common Frequency and Prometheus each suggest that we modify our Rules to
award one point to applicants that pledge to maintain a main studio with a staff presence. 461 They assert
that an organization that maintains a staffed main studio within the community served by its LPFM
station will be better resourced to serve its community’s needs.462 We agree. The local program
origination selection criterion was created in part “to encourage licensees to maintain production facilities
and a meaningful staff presence within the community served by the station.”463 The Commission has
long held that the maintenance of a main studio is integral to a station’s ability to serve community needs
and produce programming that is responsive to those needs.464 As indicated by commenters, however,


456 CMAP Comments at 4.
457 Third Report and Order, 22 FCC Rcd at 21922-23 ¶ 24.
458 Prometheus Comments at 45.
459 Id.
460 For example, CMAP would count local live call-in shows; rebroadcasts of lectures from local schools; local radio
theater whether live or recorded; and music performed in the local studio or as part of a locally produced remote
performance, such as at a local festival. CMAP Comments at 4-5. We believe that these examples are consistent
with the letter and the spirit of our regulations. Conversely, broadcasting an iPod set to “shuffle” for 8 hours daily
would not count as locally originated programming because there is little or no level of production involved. See
Sibert Comments at 6 (arguing that “local origination” is so poorly defined that an applicant can currently meet the
threshold simply by using an mp3 player as a program source for eight hours a day).
461 REC Comments at 46-47; Prometheus Comments at 59-60; Common Frequency Comments at 26. See also
LPFMhelp.com Comments at 2.
462 REC Comments at 47; Prometheus Comments at 59.
463 Creation of a Low Power Radio Service, Memorandum Opinion and Order on Reconsideration, 15 FCC Rcd
19208, 19247 ¶ 98 (2000) (“LPFM Memorandum Opinion and Order”).
464 See Promulgation of Rules and Regulations Concerning the Origination Point of Programs, Report and Order,
43 FCC 570, 571 (1950) (“1950 Main Studio Order”) (stating that “a station cannot serve as a medium for local self
expression unless it provides a reasonably accessible studio for the origination of local programs”). See also Main
(continued….)
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some licensees have chosen not to maintain a main studio and have instead originated programming using
automated software, iPods, or CD players.465 While applicants claiming the local program origination
point will retain the discretion to determine the origination point of their programming, we believe that a
separate main studio criterion will better effectuate the intent underlying the creation of the local program
origination pledge. Accordingly, we will award one point to any organization that pledges to maintain a
meaningful staff presence (i.e., staffed by persons whose duties relate primarily to the station and not to
non-broadcast related activities of licensee) in a publicly accessible main studio location that has local
program origination capability466 for at least 20 hours per week between 7 a.m. and 10 p.m.467 Staff may
be paid or unpaid, and staffing may alternate among individuals.468 We will not require stations to have
“management” staff present during main studio hours. The main studio should be located within 10 miles
of the proposed site for the transmitting antenna for applicants in the top 50 urban markets, and 20 miles
for applicants outside the top 50 urban markets. We will require applicants to list the proposed main
studio address in their applications, as well as the local telephone number to be maintained by the main
studio at all times. Applicants failing to include this information will not receive credit for this point.
186.
In addition, we will revise Section 73.872 of our Rules to provide that applicants that
claim both the local program origination point and the main studio point will receive a total of three
points. We find that the creation of this “bonus” point will more effectively foster the production of
focused community-oriented radio programming than would a general local program origination
requirement, as it will reward those applicants best situated to further this goal in a meaningful way.469
We believe that an applicant that plans to originate programming from a main studio will be in a better
position to provide programming reflecting community needs and interests than an applicant that will
originate programming elsewhere. As the Commission has noted previously, the maintenance of a main
studio in the station’s community can help “promote the use of local talent and ideas,”470 can “assure
meaningful interaction between the station and the community,”471 and can “increase the ability of the
(Continued from previous page)


Studio and Program Origination Rules, Report and Order, 2 FCC Rcd 3215, 3217-18 ¶¶ 29-38 (1987) (“1987 Main
Studio Order
”) (relaxing the main studio rule to adjust for advances in technology, but noting the studio’s continued
importance in helping stations to identify community needs and interests) and Main Studio and Program
Origination Rules
, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026 ¶ 24 (1988) (“1988 Main Studio
Order
”) (noting that maintenance of production facilities with a meaningful staff presence would expose the station
to community activities and enable stations to produce locally responsive programming at their option).
465 Sibert Comments at 6; Prometheus Comments at 45; Grant County Comments at 3; Conti Comments at 3.
466 This requirement is consistent with our current main studio rules for full-service stations. See 1988 Main Studio
Order
, 3 FCC Rcd at 5026 ¶ 24 (finding that a main studio must have “production and transmission facilities that
meet applicable standards” that would enable it to originate programming).
467 REC advocates for a commitment of 40 hours per week. See REC Comments at 47. However, given that many
LPFM stations are volunteer-run and operate on shoestring budgets, we feel that a 20 hour per week commitment is
more reasonable and sustainable.
468 Applicants that have claimed the main studio point and are in time share situations must maintain their main
studios for at least 50 percent of their authorized broadcast time or 20 hours per week, whichever is less.
469 This preference is consistent with Prometheus’ suggestion that, “in lieu of a [local program origination]
mandate,” the Commission create “a dispositive point allotment” to ensure that “ applicants willing to commit to
locally-originated programming … be preferred over other applicants.” See Letter from Brandy Doyle, Policy
Director to Prometheus Radio Project, to Marlene Dortch, Secretary, FCC, in MB Docket 99-25 (filed July 24,
2012).
470 1987 Main Studio Order, 2 FCC Rcd at 3219 ¶ 39.
471 Id. at 3219 ¶ 46.
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station to provide information of a local nature to the community of license.”472 Indeed, both our main
studio rules and the LPFM service were created for the same purpose: to ensure that stations would serve
as an outlet for community self-expression.473 The Commission implicitly recognized this nexus when it
created the local program origination criterion as a way to “advance the Commission’s policy goal of
addressing unmet needs for community oriented radio broadcasting”474 and as a means to encourage
licensees to maintain production facilities.475 Moreover, these attributes, of themselves, reflect our core
vision of and animating purpose for community radio: licensees that make their stations accessible to
their local communities and that are committed to responding to unmet local programming needs.
187.
Many LPFM stations fulfill their local program origination commitments without the
benefit of equipment and facilities that could be reasonably characterized as “main studios.” We also
anticipate that some applicants in the upcoming LPFM window may conclude that maintaining and
staffing a main studio is not feasible or necessary. On the other hand, the “bonus” point will provide a
substantial incentive to applicants to assume these responsibilities notwithstanding the associated costs. It
is also likely to permit resolution of mutual exclusivities based on Commission policy goals rather than
complex tie-breaking procedures and also avoid voluntary and involuntary time sharing arrangements –
outcomes that many commenters view negatively.476
Given commenters’ general support of local
program origination, our longstanding policy goal of ensuring that the LPFM service provides an outlet
for local community voices, and the benefits that would result from implementation of a more robust
point system that promotes this goal, we conclude that the record supports our award of a total of three
points to those applicants that make both the local program origination and main studio pledges.477
e.

Tribal Nations

188.
In the Fourth Further Notice, we sought comment on whether to give a point to Tribal
Nation Applicants when they propose new radio services that primarily would serve Tribal lands.478 We
proposed to modify Section 73.872(b) of our Rules to include a Tribal Nations criterion. As with our
proposed revisions to the LPFM eligibility requirements set forth at Section 73.853 of the Rules, we
proposed to rely on the definitions of the terms “Tribal Applicant,” “Tribal Coverage,” and “Tribal
Lands” as they are currently defined in our Rules for this comparative criterion.479
189.
Commenters largely supported the creation of a Tribal Nation criterion.480 As we stated
in the Fourth Further Notice, we believe that adding this criterion will further our efforts to increase


472 Broadcast Localism, Report on Broadcast Localism and Notice of Proposed Rulemaking, 23 FCC Rcd 1324,
1338 ¶ 29 (2008).
473 See 1950 Main Studio Order, 43 FCC at 570 (noting the main studio’s function as an outlet for local self-
expression) and LPFM Memorandum Opinion and Order, 15 FCC Rcd at 19246 ¶ 98 (noting that LPFM stations
providing locally originated programming could serve as an “outlet for community self-expression”).
474 Report and Order, 15 FCC Rcd at 2262 ¶ 144.
475 Second Order, 20 FCC Rcd at 6767 ¶ 10.
476 See Part III.D.2.g., infra.
477 While we did not explicitly seek comment on this added criterion, we believe it constitutes a “logical outgrowth”
of the Fourth Further Notice, which sought comment on whether to increase the allocation of points for the local
program origination criterion from one to two, and generally solicited suggestions for new selection criteria.
478 Fourth Further Notice, 27 FCC Rcd at 3340 ¶ 64.
479 Id. See also 47 C.F.R. § 73.7000.
480 See Prometheus Comments at 47; REC Comments at 49-50; MonsterFM Comments at 3; Common Frequency
Comments at 20. Sibert and Tyson Wynn (“Wynn”) express general opposition to the proposed Tribal Nations
criterion, preferring a “level playing field.” Sibert Comments at 5; Wynn Comments at 2.
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ownership of radio stations by Tribal Nation Applicants and enable Tribal Nation Applicants to serve the
unique needs and interests of their communities. We find unpersuasive the argument of NPM and NCAI
that we should create a “Tribal Priority,” i.e., a dispositive preference, for LPFM Tribal Applicants as the
Rules now provide for in the full power NCE and commercial radio services.481 The expansion of Tribal
stations unquestionably advances our Section 307(b) policies. However, as we have explained, Tribes,
which hold sovereign responsibilities for the welfare and improvement of their Members, are well-
positioned to advance the localism and diversity goals of the LPFM service. Thus, it is reasonable to treat
this factor as we have the other comparative factors that also advance these same LPFM goals. Finally,
we find no basis in the record for elevating this criterion to a dispositive factor. Accordingly, we adopt
our proposal to create a Tribal Nation point criterion.
190.
We will not, as originally proposed, rely on the definitions of “Tribal Applicant” or
“Tribal Coverage.” For the reasons discussed above, we instead will define a “Tribal Applicant” as a
Tribe or entity that is 51 percent or more owned and controlled by a Tribe.482 We will, however, require
that any Tribal Nation Applicant claiming a point under the Tribal Nation criterion propose to locate the
transmitting antenna for its proposed station on its Tribal lands.483 While NPM and NCAI oppose the
imposition of such a requirement, arguing “it is easy to imagine circumstances in which the site which
delivers the best, most affordable service to Tribal Lands is a developed antenna site located near, but not
on, Tribal Lands,”484 we are not persuaded that this requirement will hinder the provision of LPFM
service on Tribal lands. Many Tribal Nations occupy unserved or underserved areas. We believe it is
highly unlikely that there will be developed antenna sites located near most Tribal lands. However, in the
event that there is a developed antenna site near, but not on, the Tribal lands of a Tribal Nation Applicant
and the Tribal Nation Applicant can demonstrate that the use of such site will better promote our goals of
increasing ownership of radio stations by Tribal Nations and enabling Tribal Nations to serve the unique
needs and interests of their communities, we will entertain requests to waive the requirement that the
transmitting antenna for the proposed LPFM station be located on the Tribal lands of the Tribal Nation
Applicant. Finally, we note that we will not, as REC proposes, 485 require a Tribal Nation Applicant to
have no attributable interests in any other broadcast facility in order to qualify for a point under the Tribal
Nation criterion. We believe our adoption of a new entrant criterion adequately addresses the concerns
underlying REC’s proposal.486 At bottom, through its proposal, REC seeks to ensure that diversity of
ownership remains an important goal underlying the LPFM service. By adopting a new entrant criterion,
which awards a point to applicants with no attributable interests in other broadcast facilities, we retain an
emphasis on diversity of ownership without deemphasizing the importance of promoting the provision of
service by Tribal Nation Applicants to Tribal lands and citizens of Tribal Nations.
f.

New Entrants

191.
As discussed above, we are relaxing our ownership rules to allow LPFM licensees to own
or apply for other broadcast interests. Among other things, we are allowing Tribal Nation Applicants to
own up to two LPFM stations. In response to this revision, REC suggests that we only allow a Tribal


481 NPM and NCAI Comments at 6.
482 See supra ¶ 147.
483 For a Tribal Nation Applicant that is a Tribal Nation, this means proposing to locate the transmitting antenna on
its Tribal lands. For a Tribal Nation Applicant that is a Tribal organization, this means proposing to locate the
transmitting antenna on the Tribal lands of the Tribal Nation that owns or controls more than 51 percent of the
organization.
484 NPM and NCAI Comments at 6.
485 REC Comments at 50.
486 See infra Part III.D.2.f.
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Nation Applicant to claim a point under the Tribal Nations criterion if it is applying for its first LPFM
station.487 We agree with REC’s proposal to the extent that it suggests that multiple ownership should be
a relevant factor in our analysis. Indeed, we raised this issue in the Fourth Further Notice.488 However,
we believe that a Tribal Nation Applicant should be eligible to receive a point under the Tribal Nation
criterion regardless of whether or not it owns or has applied for other LPFM stations, and that any
restriction of a Tribal Nation Applicant’s eligibility to claim this point would run contrary to our
commitment to increase the ownership of radio stations by Tribal Nations and to increase service to Tribal
lands and citizens of Tribal Nations. However, we also believe that our selection process should
encourage new entrants to broadcasting and foster a diverse range of community voices. We find that
allocating a point to new entrants strikes the appropriate balance between these two competing goals.
Likewise, adding a new entrants criterion addresses concerns raised by REC and Common Frequency
regarding student-run stations.489 Accordingly, we will award one point to an applicant that can certify
that it has no attributable interest in any other broadcast station.
g.

Tiebreakers - Voluntary and Involuntary Time Sharing

192.
As noted above, in the event the point analysis results in a tie, the Commission releases a
public notice announcing the tie and gives the tied applicants the opportunity to propose voluntary time
sharing arrangements.490 Some or all parties in an MX group may enter into a timeshare agreement and
aggregate their points. Where applicants cannot reach either a universal settlement or a voluntary time
sharing arrangement, the Commission awards each tied and grantable applicant in the MX group an equal,
successive and non-renewable license term of no less than one year, for a combined total eight-year
term.491
193.
Several commenters voiced dissatisfaction with both the voluntary and involuntary
timesharing processes. REC asserts that we should eliminate point aggregation in voluntary time sharing
because it “can lead to discriminatory behavior intended to silence [other] voices ….”492
As an
alternative, it suggests that applicants move straight to an involuntary time sharing process in cases where
parties cannot agree on a voluntary time share (without aggregating points) or other settlement
arrangement. Under REC’s proposed process, an applicant would have the option to select an
“involuntary time share trigger point” as a points criterion. In the event of a tie in an MX group, the
involuntary time share point would be reviewed. At this point, one of the following scenarios could take
place: (1) if all or no applicants claim the point, then they would all proceed to the time share process; or
(2) if one or some applicants claim the trigger point, then those claiming the point would proceed to the
time share process and remaining applications would be dismissed.493 Under REC’s proposal, applicants
reaching the time sharing process would either voluntarily agree on a time sharing arrangement, or be


487 REC Comments at 50. See also CRA Comments at 9 (proposing to eliminate multiple ownership restrictions
altogether and to instead consider multiple ownership as a comparative factor).
488 See Fourth Further Notice, 27 FCC Rcd at 3337 ¶ 58 (asking whether we should permit multiple ownership only
when there are available channels for other applicants, noting that under such circumstances, “there would be no risk
that a new entrant would be precluded from offering service”).
489 See Part III.D.1.d., supra.
490 These time-share proposals may function as tie-breakers in two different ways. 47 C.F.R. § 73.872(c); Report
and Order
, 15 FCC Rcd at 2263 ¶ 147. First, all of the tied applicants in a MX group may propose a time-share
proposal, in which case the staff reviews and processes all of the tied applications. Id. Second, some of the tied
applicants may submit a time-share proposal, in which case the time-sharers’ points are aggregated. Id.
491 Report and Order, 15 FCC Rcd at 2263-64 ¶ 149.
492 REC Comments at 54.
493 Id.
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subject to a “last resort” method that would allocate time to the top three applicants based on the date of
the organization’s establishment in the community (i.e., the applicant with the oldest community presence
date would get the first opportunity to select its time share slot). REC notes that “an effective time share
group should have no more than three members.”494
194.
Brown Student Radio also argues that allowing a “partial settlement” for the purposes of
aggregating points invites the potential for abuse in the LPFM licensing process,495 where dominant
applicants can effectively “squeeze out” fellow timeshare applicants by forcing them to accept minimal
and suboptimal air time. It cites two examples from the last LPFM filing window in which the dominant
applicant in a timesharing arrangement claimed virtually all of the shared air time and left only the
required minimum of 10 hours a week (during suboptimal air time) for the other applicants. As such, it
urges the Commission to allow parties to partially settle, but without the benefit of aggregating points, or
otherwise revise the share-time rules to increase the minimum number of hours that must be awarded to
each party to a settlement.496 Brown Broadcast Services notes that settlements involving less than all of
the MX parties were explicitly allowed for in the full-power NCE filing window of 2007, when the action
resulted in a grantable singleton application and no new mutual exclusivities were created.497 Common
Frequency likewise supports the use of partial settlements involving technical changes, and additionally
suggests that the Commission set up an online settlement process that will allow competing applicants to
monitor for potential gamesmanship.498
195.
While we are cognizant of the potential for gamesmanship in the voluntary timesharing
process, we continue to believe that it is one of the most efficient and effective means of resolving mutual
exclusivity among tied LPFM applicants. We are not persuaded that REC’s proposal, which essentially
eliminates voluntary timesharing as a tie breaker and replaces it with an involuntary time sharing regime,
will better serve the public interest. We are doubtful that a group of unaffiliated applicants with different
formats, budgets and levels of broadcast experience would work together to operate a station under a
forced time sharing arrangement as successfully as a group of applicants that have voluntarily agreed to
share time. We further believe that we must allow as much flexibility as possible for LPFM stations,
especially those subject to time sharing arrangements, to allow them to build and maintain audiences. It
is possible that some LPFM applicants may not desire to operate for more than a few hours a week, and in
such cases, pooling resources with a timeshare applicant wishing to use more time would result in more
diversity and more efficient use of spectrum. Accordingly, we will not revise our time sharing rules, and
will continue to allow existing time share participants to reach voluntary arrangements that allow them to
apportion the time as they see fit, subject to our requirements under Section 73.872(c) of the Rules.499
While we will not set up an online process designed specifically to monitor settlements, as Common
Frequency suggests, we note that the Commission has recently upgraded CDBS to permit the electronic
filing of pleadings.500 This feature makes electronically filed pleadings promptly available to the general


494 Id. at 55.
495 Brown Student Radio Comments at 1-2.
496 Id. at 5 (noting that if no participant were permitted to have more than 150% of the total number of hours divided
by the number of participants, no permittee would have unreasonable expectations of controlling virtually all the air
time).
497 Brown Broadcast Services Comments at 4. See also CRA Comments at 13 (noting that the Commission should
allow for post time-sharing settlement agreements whereby withdrawing applicants can be reimbursed for their
reasonable and prudent expenses).
498 Common Frequency Comments at 27-28.
499 See 47 C.F.R. § 73.872(c).
500 See Media Bureau Expands Certain CDBS Features to Permit the Electronic Filing of Pleadings, Public Notice,
27 FCC Rcd 7579 (MB 2012).
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public, thereby increasing the transparency of the broadcast licensing processes. We will require a party
submitting a timeshare agreement or other settlement agreement to file it through CDBS. As such, parties
to an MX group should be able to sufficiently monitor competing applications for any developments
within their respective group.
196.
We turn next to the suggestion that we entertain partial settlements. During the last
LPFM filing window, we accepted partial “technical” settlements (i.e., technical amendments that
eliminated all conflicts between at least one application and all other applications in the same MX group).
Thus, through a technical settlement, the Commission can grant one or more applications immediately,
with the remaining applicants in that MX group considered separately under the LPFM comparative
criteria. These partial settlements worked well during the 2007 NCE FM filing window, where we
granted dozens of settlements that resulted in the disposal of hundreds of applications. 501
We will
continue to accept such settlements in the upcoming LPFM window, as they provide an additional means
for applicants to resolve mutual exclusivities. To provide increased flexibility to this process, we will
also, as suggested by Brown Broadcast Services, temporarily waive our Rules to allow MX applicants to
move to any available channel during the prescribed settlement period. Amendments proposing new
channels will be processed in accordance with established first-come, first-served licensing procedures.
197.
We agree with commenters that the system of serial license terms as a tie breaker of last
resort has proven unworkable.502 Of the more than 1,200 construction permits granted in the LPFM
service, not a single station currently holds an authorization for involuntary time sharing.503 While we
have little historical data on involuntary timesharing outcomes from the last LPFM window, we presume
this is the case either because (1) involuntary time share permittees did not want to invest in building out
facilities that would be used by them for as little as one year, or (2) involuntary time share situations
proved to be unworkable.504 To promote more efficient use of available LPFM frequencies, time shares
under the final tie breaker will run concurrently and not serially. As suggested by CMAP and, to some
extent REC, each party to the involuntary time share will be assigned an equal number of hours per
week.505 We agree with REC that time share situations involving more than three parties may prove
cumbersome. As REC proposes, we will limit involuntary time sharing arrangements under this final tie
breaker to the three applicants that have been “established” in their respective communities for the longest
periods of time. Accordingly, each applicant will be required to provide, as part of its application, its date
of establishment. If more than three applications are tied and grantable, we will dismiss the applications
of all but the three longest “established” applicants. We will offer these applicants an opportunity to
voluntarily reach a time sharing arrangement. If they are unable to do so, we will ask these applicants to


501
See, e.g., Reexamination of the Comparative Standards for Noncommercial Educational Applicants,
Memorandum Opinion and Order, 16 FCC Rcd 5074, 5107 ¶ 98 (2001) (noting that settlements could be beneficial
both to applicants and to the Commission, finding that “applicants are able to achieve a solution that is most
acceptable to the parties, and the Commission is able to conserve the resources we would spend to select among
them”).
502 CRA Comments at 12 (mandatory time sharing is an inherently unstable outcome and should be avoided where
possible); CMAP Comments at 6 (the present system of successive non-renewable licenses “just doesn’t work”).
503 Third Report and Order, 22 FCC Rcd at 21926 ¶ 33.
504 47 C.F.R. § 73.872(d). Our experiences in the full-service NCE context likewise demonstrate that involuntary
timesharing outcomes are suboptimal. Under our NCE rules, tied applicants have 90 days to submit voluntary time
share arrangements. If applicants are unable to reach a voluntary time-sharing agreement, the staff must designate
the applications for hearing on the sole issue of an appropriate time-sharing arrangement. Of the sixteen MX groups
in the 2010 NCE reserved allotment application filing window that resulted in mandatory time sharing outcomes,
thirteen of them have been unable to reach timesharing arrangements.
505 CMAP Comments at 6; REC Comments at 55.
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simultaneously and confidentially submit their preferred time slots to the Commission.506 To ensure that
there is no gamesmanship, we will require that these applicants certify that they have not colluded with
any other applicants in the selection of time slots. We will use the information provided by the applicants
to assign time slots to them. The staff will give preference to the applicant with the longest “established
community presence.” However, it will award time in units as small as four hours per day to
accommodate competing demands for airtime to the maximum extent possible.507 We believe these
procedures are a more sustainable and practical solution to involuntary time share arrangements than our
previous measures, and will revise our Rules and FCC Form 318 accordingly.
198.
Turning to the final issues raised in the Fourth Further Notice on share time
arrangements, we asked whether we should open a “mini-window” for the filing of applications for the
abandoned air-time in such arrangements, rather than allowing remaining time share licensees to re-
apportion the remaining air time. We did not receive any substantive comments voicing strong opinions
on this proposal.508 We believe that opening such mini-windows would pose a great administrative
burden on Commission staff. Such a burden would significantly outweigh the modest benefits that would
be realized by filling such limited portions of a broadcast day with additional programming provided by a
new timeshare licensee. Moreover, we believe that our adoption of the mandatory timesharing procedures
discussed below will provide adequate opportunities to applicants that wish to apply for abandoned
airtime. Accordingly, we do not adopt this proposal.
3.

Operating Schedule

199.
Currently, the Commission requires LPFM stations to meet the same minimum operating
hour requirements as full-service NCE FM stations.509 Like NCE FM stations, LPFM stations must
operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of
the week.510 However, while the Commission has mandated time sharing for NCE FM stations that meet
the Commission’s minimum operating requirements but do not operate 12 hours per day each day of the
year,511 it has not done so for LPFM stations. We sought comment on whether we should extend such
mandatory time sharing to the LPFM service. We noted that we believe that doing so could increase the
number of broadcast voices and promote additional diversity in radio voices and program services.
200.
Only CRA commented on this proposal. It urges the Commission to “reject this
impulse,” noting that LPFM applicants need as much flexibility as possible to ensure the viability of these


506 If there are two applicants, each applicant must indicate their preference for the following 12-hour time slots: (1)
3:00 am – 2:59 pm, or (2) 3:00 pm – 2:59 am If there are three applicants, each applicant must rank their preference
for the following 8-hour time slots: (1) 2:00 am – 9:59 am; (2) 10:00 am- 5:59 pm, and (3) 6:00 pm-1:59 am. If any
applicant fails to submit its preferred time slots to the Commission, the Commission reserves the right to select a
time slot for that applicant.
507 We note that the applicants may reallocate the hours allotted to them, provided that all time share participants
agree to the reallocation. See 47 C.F.R. § 73.872(c).
508 SOPR voiced general support for this proposal, see SOPR Comments at 5, while Brown Student Radio separately
suggested a similar proposal. See Brown Student Radio Comments at 6-7 (suggesting that the Commission require
aggregating parties “to stand or fall on their own proposal,” maintaining that if the proposal is not fully implemented
in practice, with all participants remaining active, then the situation should revert to where it stood prior to the
settlement, and that any applicants in the same MX group that were dismissed but still wish to prosecute their
applications should be evaluated in the original group without point aggregation).
509 Report and Order, 15 FCC Rcd at 2276 ¶ 182. See also 47 C.F.R. §§ 73.561 & 73.850.
510 47 C.F.R. § 73.850(b).
511 47 C.F.R. § 73.561(b).
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small stations.512 We continue to believe that this measure will increase the number of broadcast voices
and promote additional diversity in radio voices and program services in the most administratively
efficient manner. However, we find merit to CRA’s concerns and will adopt this proposal with
safeguards designed to ensure that LPFM licensees have as much opportunity and flexibility as needed to
ensure their success. Specifically, in order to provide sufficient “ramp up” time, we will not accept
applications to share time with any LPFM licensee that has been licensed and operating its station for less
than three years. Accordingly, we adopt this proposal, with the modification just described.
4.

Classes of Service

201.
Currently, there are two classes of LPFM facilities: LP100 and LP10.513 To date, we
have licensed only LP100 stations. In the Fourth Further Notice, we proposed to eliminate the LP10
class.514 We also sought comment on whether to create a new, higher power LP250 class.515 We
specifically sought comment on how the creation of an LP250 class of LPFM facilities could be
harmonized with the LCRA, which was “presumably grounded on the current LPFM maximum power
level.”516
202.
A number of LPFM proponents urge us to retain the LP10 class of service, arguing that it
is needed to ensure that LPFM opportunities are available in urban areas.517 Other commenters advocate
eliminating the LP10 class.518 They point out that, from an engineering standpoint, the LP10 class is
spectrally inefficient.519 We agree that the existing LP10 class is an inefficient utilization of spectrum.
LP10 stations offer more limited service but are more susceptible to interference than LP100 stations.
Given the increasingly crowded nature of the FM band, we find it appropriate to take this into account.520
We also are concerned that the reach of LP10 stations would be too small for the stations to be
economically viable. As the Media Bureau recently noted, even higher-powered LP100 stations have
small service areas and are constrained in “their ability to gain listeners” and “appeal to potential
underwriters.”521 Because we find that licensing LP10 stations would be an inefficient use of available


512 CRA Comments at 13.
513 Report and Order, 15 FCC Rcd at 2211-12 ¶¶ 13-14.
514 Fourth Further Notice, 27 FCC Rcd at 3315 ¶ 48.
515 Id. at 3315 ¶ 49.
516 Id. at 3315 ¶ 51.
517 See REC Comments at 18-20; JCPES Comments at 3; Don Schellhardt Reply Comments at 2.
518 CRA Comments at 3; du Treil Comments at 4; Spry Comments at 1.
519 See du Treil Comments at 4 (noting that LP10 stations generally would be proposed in heavily urbanized areas
and that, due to the presence of many other radio stations in these areas, the service area of the LP10 stations would
likely be adversely impacted by interference received from other stations”); New Jersey Broadcasters Association
Comments at 1-2 (asserting that “an LP10 carves out an area of interference that is almost 2000% larger” than its
service area). Even supporters of the LP10 class of service acknowledge this. See REC Comments at 18-19. They
also recognize the issues with indoor reception of such a weak signal. See Common Frequency Comments at 15;
Prometheus Reply Comments at 13; REC Comments at 21.
520
Indeed, a similar concern led the Commission to cease accepting applications for Class D FM stations and
require Class D FM stations to either upgrade to Class A facilities or migrate from the reserved to the non-reserved
portion of the FM band or to Channel 200, where they would be considered secondary operations. See Changes in
the Rules Relating to Noncommercial Educational FM Broadcast Stations
, Second Report and Order, 69 FCC 2d
240, 244-51 ¶¶ 23-32 (1978).
521 See LPFM Report, 27 FCC Rcd at 64 ¶¶ 5, 6.
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spectrum and are concerned that LP10 stations would have an even higher failure rate than LP100
stations, we eliminate the LP10 station class.522
203.
Faced with the loss of the LP10 class, some commenters propose that we create other
classes that would transmit at less than 100 watts.523 Many in the LPFM community support a proposal to
replace the LP10 class with an LP50 class, which would allow licensees to transmit at any ERP from 1 to
50 watts.524 In support, they argue that LP50 stations would offer higher quality service525 than LP10
stations and may permit station locations closer to city centers.526 In contrast, NAB opposes creation of
an LP50 class, arguing that such action would exceed the intent of Congress.527 NAB also asserts that the
proposal is not a logical outgrowth of the Fourth Further Notice and, therefore, is untimely.528 Finally,
NAB asserts that, like the LP10 class of stations, an LP50 class would be “technically inefficient.”529
204.
We will not create an LP50 class. In the Fourth Further Notice, we proposed to
eliminate the LP10 class, retain the LP100 class and introduce a new LP250 class.530 We proposed these
changes in order to address our concerns with the efficiency and viability of stations operating at powers
at or below those authorized for LP100 stations. We agree with NAB that a decision to introduce a new
LP50 class could not have been reasonably anticipated by all interested parties. Moreover, we believe
that LP50 stations would suffer many of the same technical deficiencies as LP10 stations. Accordingly,
we have decided not to adopt the proposed LP50 class.531


522 While the Commission has granted 1320 applications for new LPFM stations to date, only about 820 LPFM
stations currently are licensed.
523 See, e.g., REC Comments at 21 (proposing an LP50 class of service); Prometheus Comments at 26 (same);
Common Frequency Comments at 15 (same); NLG and Media Alliance Comments at 6 (proposing LP50 and LP75
classes of service in addition to the LP10 and LP100 classes); LPFM Advocates Joint Reply Comments at 2
(supporting LP50 proposal); Prometheus Reply Comments at 12-13 (same).
524 See, e.g., REC Comments at 21 (proposing an LP50 class of service); Prometheus Comments at 27 (same);
Common Frequency Comments at 15 (same); LPFM Advocates Joint Reply Comments at 2 (supporting LP50
proposal).
525 REC Comments at 21 (noting that an LP50 station would have “a more solid signal” and that “[t]his additional
field strength will improve indoor listening when compared to an LP10 facility at the same distance”); Common
Frequency Comments at 15 (noting that the main problem with LP10 stations is “inability to penetrate ground cover
and walls”).
526 REC Comments at 23-24 (asserting that 87.2 percent of the population of the United States has access to the
LP100 class of station while 93.4 percent would have access to an LP50 class of stations); Prometheus Comments at
26 (noting that, according to a REC study, “the number of LPFM opportunities in the top ten Arbitron markets
would go from 90 to 193”); LPFM Advocates Joint Reply Comments at 2 (“An LP50 class would permit the
licensing of LPFM stations in many urban communities where LP100 opportunities are limited or unavailable.”).
527 NAB Reply Comments at 15-16.
528 Id. at 16-17.
529 Id. at 18.
530 Fourth Further Notice, 27 FCC Rcd at 3334 ¶¶ 48-49.
531 NAB also had argued that creation of an LP50 class would be inconsistent with the LCRA. NAB Reply
Comments at 15-16. As discussed infra at paragraph 206, the LCRA does not contain any language limiting the
power levels at which LPFM stations may be licensed.
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205.
The LPFM community offers broad support for the creation of a new LP250 class.532
These commenters cite benefits including improved LPFM station viability through better access to
underwriting,533 more consistent signal coverage throughout the community served by the LPFM
station,534 and the ability to serve areas of low population density535 and/or more distant communities.536
Several commenters, however, strenuously oppose the creation of an LP250 class. These commenters do
not dispute the benefits cited by those supportive of an LP250 class. Instead, they argue that an LP250
class would pose a greater interference risk to full power stations, is unnecessary given the availability of
250 watt Class A licenses, would be a departure from the local character of the LPFM service, and goes
beyond the intent of Congress in enacting the LCRA.537
206.
At this time, we will not adopt our proposal to create an LP250 class. Given the
disagreement among commenters about, among other things, LP250 station location restrictions538 and
technical parameters,539 we believe the issue of increasing the maximum facilities for LPFM stations
requires further study. We note, however, that the LCRA does not contain any language limiting the
power levels at which LPFM stations may be licensed. We also find unpersuasive NAB’s and NPR’s
reliance on certain statements in the legislative history.540 These statements merely describe the rules
governing LPFM service at the time Congress was considering the LCRA. Since we have decided not to
adopt the proposal, we need not definitively resolve the question.
5.

Removal of I.F. Channel Minimum Distance Separation Requirements

207.
In the Fourth Further Notice, we noted that LPFM stations are currently required to
protect full-service stations on I.F. channels while translator stations operating with less than 100 watts
are not.541 To address this disparity, we proposed to remove I.F. protection requirements for LPFM
stations operating with less than 100 watts. We noted that we believe the same reasoning that the
Commission applied in exempting FM translator stations operating with less than 100 watts ERP from
I.F. protection requirements would apply for LPFM stations operating at less than 100 watts ERP. These
stations too are the equivalent of Class D FM stations, which are not subject to I.F. protection
requirements.542 We further noted that FM allotments would continue to be protected on the I.F. channels
based on existing international agreements. We sought comment on this proposal.


532 See Prometheus Comments at 30-31; CRA Comments at 5, 7; Amherst Comments at 12; Sibert Comments at 1;
Brown Broadcast Services Comments at 2-3; Friend Comments at 1; JCPES Comments at 3.
533 See, e.g., Conti Comments at 1; Friend Comments at 1.
534 See, e.g., Conti Comments at 1; Wet Mountain Broadcasting Corporation Comments at 1-2.
535 See, e.g., Prometheus Comments at 30.
536 Prometheus Comments at 31. The increased range of the LP250 class could thus increase service to urban
communities where spacing requirements and potential waiver showings would limit potential transmitter locations.
537 NPR Comments at 2-4, 8-11; NAB Reply Comments at 9-15. See also Grant County Comments at 2 (claiming
LP250 proposal is a slippery slope and would regionalize LPFM).
538 See, e.g., NLG and Media Alliance Comments at 7 (LP250 should not be permitted in inner city areas);
Prometheus Comments at 30-31 (LP250 would serve needs of inner cities).
539 Some, for instance, advocate increasing the proposed HAAT limits imposed on LP250 stations. See, e.g., Sibert
Comments at 4 (proposing increased HAAT limits west of the Mississippi).
540 See NPR Comments at 9-10; NAB Reply Comments at 10-11.
541 See 47 C.F.R. §§ 73.807, 74.1204(g); Fourth Further Notice, 27 FCC Rcd at 3335 ¶ 52.
542 See Amendment of Part 74 of the Commission's Rules Regarding FM Booster Stations, Order, 6 FCC Rcd 6060,
6060 n.7 (1991) (“A Class D station is one operating with no more than 10 watts TPO. However, most FM boosters
(continued….)
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208.
Commenters generally support removal of the I.F. protection requirements applicable to
LPFM stations. Some ground their support in the need to put LPFM stations and translators on an “equal
footing”543 while others assert that improvements in receiver technology render I.F. protection
requirements unnecessary.544
NPR is the lone commenter urging retention of I.F. protection
requirements.545 NPR infers an intent to retain the I.F. protections from the fact that Congress specifically
addressed minimum distance separations but did not eliminate those related to I.F. We find NPR’s
argument unpersuasive.546 In the absence of explicit direction in the LCRA regarding I.F. protection
requirements, and in light of the fact that Congress explicitly required retention of the co-channel and
first- and second-adjacent channel spacing requirements, we believe that it is reasonable to read the
statute not to require the Commission to retain I.F. protection requirements. Had Congress wished to
ensure that the I.F. protections remained in place, we believe that it would have done so in the text of the
LCRA.547
209.
NPR also requests that the Commission study the impact of its decision “roughly 20 years
ago” to exempt from I.F. protection requirements FM translator stations operating with less than 100
watts ERP.548 NPR urges us to complete this study prior to acting on our proposal.549 Common
Frequency asserts, however, that the Commission would have investigated I.F. interference by now if it
had proved a problem.550 Common Frequency is correct. We have not received any recent complaints
regarding I.F. interference from FM translators exempted from the I.F. protection requirements. Indeed, it
is telling that NPR has not cited a single instance of such interference. Therefore, and in light of the fact
that a receiver does not distinguish between the signal of an LPFM station or an FM translator, we find
that the proposed change will not result in significant I.F. interference.
210.
Accordingly, we adopt this proposal.551 We find this change necessary to ensure parity
between LPFM stations and FM translator stations, which, for I.F. interference purposes, are
indistinguishable. As requested by commenters, we will eliminate these requirements for LPFM stations
operating at or below 100 watts ERP. We had originally proposed to exempt only LPFM stations
(Continued from previous page)


and translators use a transmitting antenna with sufficient gain to produce an ERP that is between two and ten times
their TPO. Therefore, 100 watts ERP is the equivalent of 10 watts TPO operating with a high gain antenna.”).
543 See LPFM Advocates Joint Reply Comments at 3-4; CRA Comments at 10; Common Frequency Comments at
19; Sibert Comments at 5; Justin Braulick (“Braulick”) Comments at 3.
544 MonsterFM.com Comments at 2; Nexus/Conexus Comments at 2; duTreil Comments at 5. du Treil suggests that
I.F. protection requirements may be unnecessary for stations operating with up to 250 watts ERP and recommends
that the Commission study the susceptibility of modern receivers to I.F. interference. du Treil Comments at 5.
545 NPR also points out an inconsistency between the language used in the text of the Fourth Further Notice – “less
than 100 watts ERP” – and the language used in the proposed changes to Section 73.809(a) – “more than 100 watts
ERP.” NPR Comments at 4. We find that the inclusion of the “more than 100 watts ERP” in the proposed changes
to Section 73.809(a) was error. However, below, we conclude that we should exempt LPFM stations operating at or
below 100 watts ERP from the I.F. protection requirements. Accordingly, we retain the “more than 100 watts ERP”
language in our final rule because it accurately implements the policy we adopt herein.
546 NPR Comments at 4. See also LCRA § 3(b)(1).
547 See Common Frequency Reply Comments at 4. See also Iselin v. United States, 270 U.S. 245, 250-51 (1926)
(particular statutory language “preclude[s] an extension of any provision by implication to any other subject”).
548 NPR Comments at 4.
549 Id.
550 Common Frequency Reply Comments at 4.
551 As proposed in the Fourth Further Notice, FM allotments will continue to be protected on I.F. channels to the
extent required by existing international agreements. Fourth Further Notice, 27 FCC Rcd at 3335 ¶ 52.
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operating at less than 100 watts ERP from the I.F. protection requirements.552 However, commenters
pointed out that, if we adopted the proposal set forth in the Fourth Further Notice, LP100 stations would
remain subject to I.F. protection requirements.553 These commenters argue that there is little difference
between LPFM stations operating at 99 versus 100 watts ERP and urge us to eliminate the I.F. protection
requirements for LPFM stations operating at 100 watts or less ERP. We agree. Moreover, since going
forward we will license LPFM stations to operate at ERPs ranging from 50 watts to 100 watts,554 we find
that eliminating the I.F. protection requirements for stations operating at 100 watts or less ERP is the
more sensible choice.

E.

Window Filing Process

211.
Several commenters voiced concern about the timing and mechanics of the upcoming
LPFM application filing window. Several LPFM advocates ask that “adequate time” be given for
applicants to prepare their applications after adoption of the revised rules.555 Prometheus urges the
Commission to give six to nine months lead time up to the filing window, maintaining that applicants
need time to raise funds, hire a consulting engineer and assess spectrum availability.556 REC, on the other
hand, opposes any “artificial” delay, stating that any delay between the issuance of final rules and the
window should occur naturally.557 To some extent, this debate is moot as there is a substantial cushion of
time organically built into the process for the final rules we adopt or modify today, as well as any related
form changes. Moreover, to maximize LPFM filing opportunities it is critical for the Media Bureau to
complete substantially all of its processing of the pending FM translator applications prior to the opening
of the LPFM window. Thus, the window will open approximately nine months from the effective date of
the Fifth Order on Reconsideration. To help potential LPFM applicants prepare for the upcoming
window, we announce a target date of October 15, 2013. However, we delegate authority to the Media
Bureau to adjust this date in the event that future developments affect window timing. In sum, there will
be ample time for all LPFM applicants to familiarize themselves with the Rules and plan accordingly
before the filing window opens.
212.
Commenters also suggest multiple windows in order to ease the demand for affordable
engineering assistance immediately before the opening of the window.558 Prometheus further suggests


552 Adoption of this proposal would have created a parallel exemption to that set forth in the rules governing FM
translators. 47 C.F.R. § 74.1204(g). We note that REC suggests that we revise the I.F. protection requirements
applicable to FM translators to exempt FM translators operating at or below 100 watts ERP. REC argues that this
would preserve parity between LPFM stations and FM translators. REC Comments at 30-31. Revisions to the FM
translator rules are beyond the scope of this Sixth Report and Order. However, we intend to consider such a change
in the future in the appropriate context.
553 Prometheus Comments at 33-34; REC Comments at 30-31; NLG and Media Alliance Comments at 9; Sibert
Comments at 5. See also LPFM Advocates Joint Reply Comments at 3-4.
554 See 47 C.F.R. § 73.811.
555 LPFM Advocates Joint Reply Comments at 4. But see Talk Radio of Pahrump, Inc., Nexus Broadcast, Conexus
LPFM Advocacy, The LPFM Store, Andy Alberti, Donna Cox, Frank J. Maurizio, Dave Richards, Creag Rowland,
Lamoyne Westerbeck, Jason Levalley, Jack Haynes, Rhonda Haynes, Margery Hanson and Robert Hanson, Reply
Comments at 3 (noting that some likely applicants are ready to file their applications within a month of adoption of
final rules); Amherst Reply Comments at 2 (target date for opening the window 2 months after issuance of final rule,
without considering OMB approval).
556 See Prometheus Comments at 13-15.
557 See REC Reply Comments at 11-12. Prometheus also opposes undue delay so long as the “natural” delay gives
applicants adequate time to prepare. See Prometheus Reply Comments at 11-12.
558 See, e.g., Prometheus Comments at 15-16; CMAP Comments at 2-4 (supporting 2011 REC proposal to split the
country into two geographic blocks for separate windows). Others suggest doing frequent, smaller windows. See
(continued….)
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that we bifurcate the application into short and long forms, with second-adjacent waiver showings
submitted in the long form.559 Prometheus argues that multiple filing windows and a short form/long
form application process would help address the scarcity issue of qualified, affordable consulting
engineers and allow more interested parties to file.560 Common Frequency echoes these concerns,
reporting that in the 2007 NCE window “[s]ome applicants could not file because they could not find
engineers, and others were priced-out from applying because an engineer and lawyer could run as much
as $5000.”561 We recognize these concerns. Thus, in order to ease upfront technical burdens and
engineering costs, we will accept a threshold second-adjacent waiver technical showing when an
applicant seeks to make a “no interference” showing based on lack of population in areas where
interference is predicted to occur. Under this procedure an applicant would use “worst-case” assumptions
about the area of potential interference in combination with a USGS map or a Google map to demonstrate
“lack of population” within this area.562 Applicants should be able to complete this simple showing
without the use of a consulting engineer. In light of our adoption of this threshold showing, we see no
need to bifurcate our application process into short and long forms or to open multiple filing windows.
We believe that this alternative showing will ease some of the technical and financial burdens of
application filing and will help ensure that new entrants in underserved communities are not “priced out”
of the opportunity to file an LPFM application in the upcoming window. We further believe that these
measures will help alleviate any obstacles applicants face due to an “engineering shortage,” as those
applicants that choose to make the threshold showing will no longer need to hire a consulting engineer.563

IV.

PROCEDURAL MATTERS

A.

Fifth Order on Reconsideration

213.
Supplemental Final Regulatory Flexibility Analysis.
Appendix A contains a
supplemental final regulatory flexibility analysis pursuant to the Regulatory Flexibility Act of 1980, as
amended (“RFA”).564
214.
Congressional Review Act. The Commission will send a copy of this Fifth Order on
Reconsideration 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).

B.

Sixth Report and Order

215.
Final Regulatory Flexibility Analysis. As required by the RFA, the Commission has
prepared a Final Regulatory Flexibility Analysis (“FRFA”) of the possible significant economic impact
on small entities of the proposals suggested in this document. The FRFA is set forth in Appendix B.
(Continued from previous page)


Tuter Comments at 1; Wynn Comments at 2.
559 Prometheus Comments at 11.
560 Id. at 11, 16.
561 CMAP Comments at 4.
562 In most cases, the “worst case” area would be the circular region within a 700 meter radius of the antenna (the
distance to the 100 dBu interfering contour for a station transmitting at 100 watts ERP at 30 meters HAAT).
However, when protecting nearby Class B or Class B1 stations in the non-reserved band, an LPFM must show no
population within the 94 dBu or 97 dBu contour, which would extend the “worst case” radius to 1.6 km or 1.0 km,
respectively. See 47 C.F.R. § 74.1204.
563 We implement these application procedures pursuant to our authority under 5 U.S.C. § 553(b)(A). See JEM
Broadcasting Co. v. FCC,
22 F.3d 320 (D.C. Cir. 1994).
564 The RFA, see 5 U.S.C. §§ 601-12, has been amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, Pub. L. No. 104-21, Title II, 110 Stat. 857 (1996).
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216.
Paperwork Reduction Act. The Sixth Report and Order contains new information
collection requirements subject to the Paperwork Reduction Act of 1995 (“PRA”). The requirements will
be submitted to the Office of Management and Budget for review under Section 3507(d) of the PRA. The
Commission will publish a separate notice in the Federal Register inviting comments on the new
information collection requirements adopted in this document. In addition, we note that pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we
previously sought specific comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25 employees. We describe impacts that
might affect small businesses, which includes most businesses with fewer than 25 employees, in the
FRFA in Appendix B, infra.
217.
Congressional Review Act. The Commission will send a copy of this Sixth 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).

V.

ORDERING CLAUSES

A.

Fifth Order on Reconsideration

218.
Accordingly, IT IS ORDERED that the Petition for Partial Reconsideration filed by Hope
Christian Church of Marlton, Inc., Bridgelight, LLC and Calvary Chapel of the Finger Lakes, Inc. on May
8, 2012, the Petition for Reconsideration of Educational Media Foundation on Fourth Report and Order
and Third Order on Reconsideration on May 8, 2012, the Petition for Partial Reconsideration of Fourth
Report and Order and Third Order on Reconsideration filed by Conner Media, Inc. on May 9, 2012, the
Comments of Kyle Magrill and Petition for Reconsideration filed by Kyle Magrill on May 7, 2012, and
the Petition for Reconsideration filed by Western North Carolina Public Radio, Inc. on May 8, 2012, ARE
GRANTED IN PART to extent set forth above and otherwise denied.
219.
IT IS FURTHER ORDERED that the Reply of Four Rivers Community Broadcasting
Corporation to Oppositions to Petitions for Reconsideration IS DISMISSED to the extent set forth above.
220.
IT IS FURTHER ORDERED that pursuant to the authority contained in Sections 4(i), 301,
302, 303(e), 303(f) and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i),
301, 302, 303(e), 303(f) and 303(r), and the Local Community Radio Act of 2010, Pub. L. No. 111-371,
124 Stat. 4072 (2011), this Fifth Order on Reconsideration is hereby ADOPTED, effective 30 days after
publication in the Federal Register.
221.
IT IS FURTHER ORDERED that the rules adopted herein will become effective thirty
(30) days after publication in the Federal Register, except for any rules or requirements involving
Paperwork Reduction Act burdens, which shall become effective on the effective date announced in the
Federal Register following Office of Management and Budget approval.
222.
IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Fifth Order on
Reconsideration
, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel
for Advocacy of the Small Business Administration.

B.

Sixth Report and Order

223.
IT IS FURTHER ORDERED that pursuant to the authority contained in Sections 1, 4(i),
4(j), 303, 307, 309(j), and 316 of the Communications Act of 1934, as amended, 47 U.S.C, 151, 154(i),
154(j), 303, 307, 309(j), and 316, and the Local Community Radio Act of 2010, Pub. L. No. 111-371,
124 Stat. 4072 (2011), this Sixth Report and Order is hereby ADOPTED and Part 73 of the Commission’s
Rules IS AMENDED as set forth in Appendix C, effective 30 days after publication in the Federal
Register, except pursuant to paragraph 224 of this Sixth Report and Order.
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224.
IT IS FURTHER ORDERED that the rules adopted herein that contain new or modified
information collection requirements that require approval by the Office of Budget and Management under
the Paperwork Reduction Act WILL BECOME EFFECTIVE after the Commission publishes a notice in
the Federal Register announcing such approval and the relevant effective date.
225.
IT IS FURTHER ORDERED that the Commission’s Consumer and Governmental
Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Sixth Report and Order,
including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX A

Supplemental Final Regulatory Flexibility Analysis

1.
As required by the Regulatory Flexibility Act (“RFA”),1 an Initial Regulatory Flexibility
Analysis (“IRFA”) was incorporated in the Third Further Notice of Proposed Rulemaking (“Third
Further Notice
”) in MM Docket No. 99-25, and MB Docket No. 07-172, RM-11338.2 The Commission
sought written public comment on the proposals in the Third Further Notice, including comment on the
IRFA.3 We received no comments specifically directed toward the IRFA. We incorporated a Final
Regulatory Flexibility Analysis (“FRFA”) in the Fourth Report and Order and Third Order on
Reconsideration
(“Fourth Report and Order”).4 In this Fifth Order on Reconsideration, we address five
petitions for reconsideration of the Fourth Report and Order. The Commission’s Supplemental Final
Regulatory Flexibility Analysis (“SFRFA”) in this Fifth Order on Reconsideration conforms to the RFA,
as amended.

A.

Need for, and Objectives of, the Fifth Order on Reconsideration

2.
This rulemaking proceeding was initiated to seek comment on how the enactment of
Section 5 of the Local Community Radio Act of 2010 (“LCRA”)5 would impact the procedures
previously adopted to process the approximately 6,500 applications which remain from the 2003 FM
translator window. The Commission previously established a processing cap of ten pending short-form
applications per applicant from FM translator Auction No. 83. To implement the LCRA, the Fourth Report
and Order
replaced that limit with a national translator application cap of 50, and market-based
application cap of one application per market for the markets listed in Appendix A to the Fourth Report
and Order
(the top 150 markets plus six additional markets with more than four pending translator
applications)6 On reconsideration, we are clarifying certain aspects of the Fourth Report and Order and
modifying the national application cap and the market-based application cap. The clarifications to the
Fourth Report and Order (a) confirm that the Appendix A markets are Arbitron Metro markets, (b)
confirm that a translator application is within such a market if it specifies a proposed transmitter site
within that market, and (c) confirm that “embedded” markets will be treated as separate Arbitron Metro
markets for purposes of the market-based application cap.7 The modification to the national application
cap allows applicants to prosecute up to 70 applications nationally, provided that no more than 50 of those
applications are in the Appendix A markets. Those applications that are outside the Appendix A markets


1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Contract With America
Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (“CWAAA”). Title II of the CWAAA is the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Third Further Notice of Proposed Rulemaking, 26 FCC Rcd 9986 (2011).
3 Id. at 10009.
4 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fourth Report and Order and Third Order on Reconsideration, 27 FCC Rcd 3364 (2012).
5 Pub. L. No. 111-371, 124 Stat. 4072.
6 See Fourth Report and Order, Appendix A, 27 FCC Rcd at 3398-3402.
7 An “embedded” market is an Arbitron Metro radio market that is contained, in whole or in part, within a larger
Arbitron Metro radio market (e.g., the San Jose, CA market – Arbitron Metro market #37 -- is embedded within the
San Francisco, CA Arbitron Metro market). This Fifth Order on Reconsideration confirms that these “embedded”
markets will be treated as separate radio markets for purposes of the market-based application cap, enabling FM
translator applicants to prosecute up to three applications in any “embedded” market listed in Appendix A as well as
in the core portion of the larger market. See ¶¶ 26-30 supra.
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must comply with the Conditions, as defined below, and will be subject to a four-year limit on site
changes. The modification to the market-based application cap allows (but does not require) each
applicant to prosecute up to three applications in a market, rather than one application, provided certain
conditions are met. Specifically, the applicant must comply with the national cap on applications, each
additional application must not preclude low power FM (“LPFM”) filing opportunities, and each
additional application must not propose service contour overlap with the service contour of any other
application or authorization for an FM translator by that applicant as of the release date of the Fifth Order
on Reconsideration
(collectively, the “Conditions”). If an applicant prosecutes more than 50 applications
nationally, all applications outside the Appendix A markets are subject to the four-year limit on site
changes, the same LPFM-preclusion showing as that required under the per-market cap, and the
restriction against contour overlaps that applies to the per-market cap.

B.

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

3.
None.

C.

Description and Estimate of the Number of Small Entities to Which the Proposed
Rules Will Apply.

4.
In the FRFA, we stated that there are approximately 646 applicants with pending
applications filed in the 2003 translator filing window. We presumed that all of these applicants qualify
as small entities under the SBA definition.8 We estimate that approximately 195 of these applicants have
two applications pending in at least one market and approximately 116 of these applicants have three
applications pending in at least one market.
5.
Radio Broadcasting. The proposed policies could apply to radio broadcast licensees, and
potential licensees of radio service. The SBA defines a radio broadcast station as a small business if such
station has no more than $7 million in annual receipts.9 Business concerns included in this industry are
those primarily engaged in broadcasting aural programs by radio to the public.10 According to
Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of
September 15, 2011, about 10,960 (97 percent) of 11,300 commercial radio station have revenues of $7
million or less and thus qualify as small entities under the SBA definition We note, however, that, in
assessing whether a business concern qualifies as small under the above definition, business (control)
affiliations11 must be included. Our estimate, therefore, likely overstates the number of small entities that
might be affected by our action, because the revenue figure on which it is based does not include or
aggregate revenues from affiliated companies.
6.
In addition, an element of the definition of “small business” is that the entity not be
dominant in its field of operation. We are unable at this time to define or quantify the criteria that would
establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate
of small businesses to which rules may apply do not exclude any radio station from the definition of a
small business on this basis and therefore may be over-inclusive to that extent. Also as noted, an
additional element of the definition of “small business” is that the entity must be independently owned
and operated. We note that it is difficult at times to assess these criteria in the context of media entities
and our estimates of small businesses to which they apply may be over-inclusive to this extent.


8 See Fourth Report and Order, Appendix C, 27 FCC Rcd at 3408-09 ¶¶ 6-8.
9 See 13 C.F.R. § 121.201, NAICS Code 515112.
10 Id.
11 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both.” 13 C.F.R. § 121.103(a)(1).
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7.
FM translator stations and low power FM stations. The proposed policies could affect
licensees of FM translator and booster stations and LPFM stations, as well as potential licensees in these
radio services. The same SBA definition that applies to radio broadcast licensees would apply to these
stations. The SBA defines a radio broadcast station as a small business if such station has no more than
$7 million in annual receipts.12 Currently, there are approximately 6,105 licensed FM translator stations
and 824 licensed LPFM stations.13 In addition, there are approximately 646 applicants with pending
applications filed in the 2003 translator filing window. Given the nature of these services, we will
presume that all of these licensees and applicants qualify as small entities under the SBA definition.

D.

Description of Projected Reporting, Record Keeping, and Other Compliance
Requirements

8.
In the Fourth Report and Order, we required Auction No. 83 applicants to identify which
applications they wish to preserve to come into compliance with the national and market-based caps. In
the Fifth Order on Reconsideration, we are providing applicants affected by the one-per-market cap the
opportunity to prosecute up to three applications in a market, provided they submit a showing that the
applications satisfy the Conditions, as described above, in a timely letter or email.

E.

Steps Taken to Minimize Significant Economic Impact on Small Entities and
Significant Alternatives Considered

9.
In the FRFA, we described the projected reporting, recordkeeping, and other compliance
requirements and significant alternatives and steps taken to minimize significant economic impact on a
substantial number of small entities consistent with stated objectives associated with the Fourth Report
and Order
.14 We believe the changes in the Fifth Order on Reconsideration will benefit small entities by
enabling them to prosecute more FM translator applications, while preserving future LPFM filing
opportunities for small entities and protecting the integrity of the broadcast application licensing system.
The Fifth Order on Reconsideration requires any applicant seeking to prosecute more than one FM
translator application in a market to show that the applications satisfy the Conditions, but the Conditions
are intended to preserve LPFM filing opportunities and improve diversity and competition in local radio
markets. The order rejects additional suggested conditions that would not have offered such benefits.15
Specifically, we rejected those suggested conditions because they would have limited competition in the
Appendix A markets without providing a countervailing benefit, either to translator applicants or LPFM
applicants. In addition, the suggested conditions would have been unduly resource-intensive and could
delay the processing of translator applications. Adoption of the application caps, as modified in the Fifth
Order on Reconsideration
, will benefit 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.

F.

Report to Congress

10.
The Commission will send a copy of the Fifth Order on Reconsideration, including this
SFRFA, in a report to be sent to Congress pursuant to the SBREFA.16 In addition, the Commission will
send a copy of the Fifth Order on Reconsideration, including the SFRFA, to the Chief Counsel for


12 See 13 C.F.R. § 121.201, NAICS Code 515112.
13 See News Release, “Broadcast Station Totals as of December 31, 2010June 30, 2012” (rel. Feb. 11, 2011Jul. 19,
2012) (http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-304594A1315231A1.pdf).
14 See Fourth Report and Order, Appendix C, 27 FCC Rcd at 3409 ¶ 10.
15 See ¶¶ 63-65 supra.
16 See 5 U.S.C. § 801(a)(1)(A).
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Advocacy of the SBA. A copy of the Fifth Order on Reconsideration and the SFRFA (or summaries
thereof) will also be published in the Federal Register.17


17 See 5 U.S.C. § 604(b).
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APPENDIX B

Final Regulatory Flexibility Analysis

1.
As required by the Regulatory Flexibility Act (“RFA”),1 an Initial Regulatory Flexibility
Analysis (“IRFA”) was incorporated in the Fourth Further Notice of Proposed Rulemaking (“Fourth
Further Notice”
) in MM Docket No. 99-25.2 The Commission sought written public comment on the
proposals in the Fourth Further Notice, including comment on the IRFA.3 We received no comments
specifically directed toward the IRFA. This Final Regulatory Flexibility Analysis (“FRFA”) conforms to
the RFA.

A.

Need For, and Objectives of, the Proposed Rules.

2.
This rulemaking proceeding was initiated to seek comment on how to implement certain
provisions of the Local Community Radio Act of 2010 (“LCRA”). The Sixth Report and Order amends
certain technical rules to implement the LCRA. The Sixth Report and Order adopts the waiver standard
for second-adjacent channel spacing waivers set forth in Section 3(b)(2)(A) of the LCRA. It specifies the
manner in which a waiver applicant can satisfy this standard4 and the manner in which the Commission
will handle complaints of interference caused by low power FM (“LPFM”) stations operating pursuant to
second-adjacent channel waivers.5 As required by Section 7 of the LCRA, the Sixth Report and Order
modifies the regimes applicable if an LPFM station causes third-adjacent channel interference. As
specified by the LCRA, the Sixth Report and Order applies the protection and interference remediation
requirements applicable to FM translator stations to those LPFM stations that would have been short-
spaced under the third-adjacent channel spacing requirements eliminated in the Fifth Report and Order in
MM Docket No. 99-25. The Sixth Report and Order states that the Commission will consider directional
antennas, lower effective radiated powers (“ERPs”) and/or differing polarizations to be suitable
techniques for eliminating third-adjacent channel interference. The Sixth Report and Order applies the
more lenient interference protection obligations currently applicable to LPFM stations that would have
been fully-spaced under the third-adjacent channel spacing requirements eliminated in the Fifth Report
and Order
(“fully-spaced LPFM stations”). The Sixth Report and Order addresses the timing, frequency
and content of the periodic broadcast announcements that newly constructed fully-spaced LPFM stations
must make pursuant to Section 7(2) of the LCRA. It revises the Commission’s rules (“Rules”) to treat as
a “minor change” a proposal to move a fully-spaced LPFM station’s transmitter outside its current service
contour in order to co-locate or operate from a site close to a third-adjacent channel station and remediate
interference to that station. Finally, the Sixth Report and Order implements Section 6 of the LCRA,
modifying the Commission’s rules to address the potential for predicted interference to FM translator
input signals from LPFM stations operating on third-adjacent channels. It adopts a basic threshold test


1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. § 601 et seq., has been amended by the Contract With America
Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
2 Creation of a Low Power Radio Service and Amendment of Service and Eligibility Rules for FM Broadcast
Translator Stations
, Fifth Report and Order, Fourth Further Notice of Rulemaking and Fourth Order on
Reconsideration, 27 FCC Rcd 3315 (2012).
3 Id. at 3345 ¶ 80.
4 The Sixth Report and Order permits LPFM applicants to make the sort of showings that the Commission routinely
accepts from FM translator applicants. LPFM applicants may show that no actual interference will occur due to
“lack of population” and may use an undesired/desired signal strength ratio methodology to define areas of potential
interference.
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designed to identify applications that are predicted to cause interference to FM translator input signals on
third-adjacent channels and states that the Commission will dismiss any application that does not satisfy
this threshold test as unacceptable for filing.
3.
The Sixth Report and Order also makes a number of other changes to the Commission’s
rules to better promote localism and diversity, which are at the very heart of the LPFM service. It
clarifies that the localism requirement set forth in Section 73.853(b) of the Rules applies not just to LPFM
applicants but also to LPFM permittees and licensees. The Sixth Report and Order revises the rules to
permit cross-ownership of an LPFM station and up to two FM translator stations but, at the same time,
establishes a number of restrictions on such cross-ownership in order to ensure that the LPFM service
retains its extremely local focus.6
4.
In the interests of advancing the Commission’s efforts to increase ownership of radio
stations by federally recognized American Indian Tribes and Alaska Native Villages (“Tribal Nations”) or
entities owned or controlled by Tribal Nations, the Sixth Report and Order amends the Commission’s
rules to explicitly provide for the licensing of LPFM stations to Tribal Nations or entities owned or
controlled by Tribal Nations (collectively, “Tribal Nation Applicants”), and to permit Tribal Nation
Applicants to own or hold attributable interests in up to two LPFM stations.
5.
In addition, the Order modifies the point system that the Commission uses to select
among mutually exclusive (“MX”) LPFM applications. Specifically, the Sixth Report and Order
eliminates the proposed operating hours criterion, revises the established community presence criterion,7
affirms the local program origination criterion, and adds new criteria related to maintenance and staffing
of a main studio, offering by Tribal Nation Applicants of new radio services that primarily serve Tribal
lands, and new entry into radio broadcasting. Given these changes, the Sixth Report and Order also
revises the existing exception to the cross-ownership rule for student-run stations. The Sixth Report and
Order
announces the Commission will continue to entertain partial “technical” settlements in the LPFM
context and modifies the way in which involuntary time sharing works, shifting from sequential to
concurrent license terms and limiting involuntary time sharing arrangements to three applicants. It adopts
mandatory time sharing, which currently applies to full-service noncommercial educational translator
stations but not LPFM stations.
6.
Finally, the Sixth Report and Order eliminates the LP10 class of LPFM facilities and
removes all of the intermediate frequency (“I.F.”) protection requirements applicable to LPFM stations
except those established by international agreements.

B.

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

7.
None.


6 Specifically, the Sixth Report and Order imposes five limits on cross-ownership. First, entities – other than Tribal
Nation Applicants – may own or hold attributable interests in one LPFM station and a maximum of two FM
translator stations. Second, the 60 dBu contours of a commonly-owned LPFM station and FM translator station(s)
must overlap. Third, an FM translator must receive the signal of its co-owned LPFM station off-air and directly
from the LPFM station not another FM translator station. Fourth, the distance between an LPFM station and the
transmitting antenna of any co-owned translator must not exceed 10 miles for applicants in the top 50 urban markets
and 20 miles for applicants outside the top 50 urban markets. Fifth, the FM translator station must synchronously
rebroadcast the primary analog signal of the commonly owned LPFM station (or for “hybrid” stations, the digital
HD-1 program-stream) at all times.
7 The Sixth Report and Order clarifies that an LPFM applicant must have had an established local presence for two
years prior to filing its application and must maintain that local presence at all times thereafter. It also extends the
established community presence standard to 20 miles in rural areas.
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C.

Description and Estimate of the Number of Small Entities to Which Rules Will
Apply.

8.
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.8 The RFA generally defines the
term “small entity” as encompassing the terms “small business,” “small organization,” and “small
governmental entity.”9 In addition, the term “small Business” has the same meaning as the term “small
business concern” under the Small Business Act.10 A small business concern is one which: (1) is
independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the SBA.11
9.
Radio Broadcasting. The policies apply to radio broadcast licensees, and potential
licensees of radio service. The SBA defines a radio broadcast station as a small business if such station
has no more than $7 million in annual receipts.12 Business concerns included in this industry are those
primarily engaged in broadcasting aural programs by radio to the public.13 According to Commission
staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of September 15,
2011, about 10,960 (97 percent) of 11,300 commercial radio stations have revenues of $7 million or less
and thus qualify as small entities under the SBA definition We note, however, that, in assessing whether
a business concern qualifies as small under the above definition, business (control) affiliations14 must be
included. Our estimate, therefore, likely overstates the number of small entities that might be affected by
our action, because the revenue figure on which it is based does not include or aggregate revenues from
affiliated companies.
10.
In addition, an element of the definition of “small business” is that the entity not be
dominant in its field of operation. We are unable at this time to define or quantify the criteria that would
establish whether a specific radio station is dominant in its field of operation. Accordingly, the estimate
of small businesses to which the rules apply does not exclude any radio station from the definition of a
small business on this basis and therefore may be over-inclusive to that extent. Also as noted, an
additional element of the definition of “small business” is that the entity must be independently owned
and operated. We note that it is difficult at times to assess these criteria in the context of media entities
and our estimates of small businesses to which they apply may be over-inclusive to this extent.
11.
FM translator stations and low power FM stations. The policies adopted in the Sixth
Report and Order affect licensees of FM translator and booster stations and low power FM (LPFM)
stations, as well as potential licensees in these radio services. The same SBA definition that applies to
radio broadcast licensees would apply to these stations. The SBA defines a radio broadcast station as a


8 Id. § 603(b)(3).
9 Id. § 601(6).
10 Id. § 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15
U.S.C. § 632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a small business applies “unless an agency,
after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public
comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and
publishes such definition(s) in the Federal Register.”
11 15 U.S.C. § 632.
12 See 13 C.F.R. § 121.201, NAICS Code 515112.
13 Id.
14 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other
or a third party or parties controls or has to power to control both.” 13 C.F.R. § 121.103(a)(1).
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small business if such station has no more than $7 million in annual receipts.15 Currently, there are
approximately 6,105 licensed FM translator stations and 824 licensed LPFM stations.16 In addition, there
are approximately 646 applicants with pending applications filed in the 2003 translator filing window.
Given the nature of these services, we will presume that all of these licensees and applicants qualify as
small entities under the SBA definition.

D.

Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements.

12.
The Sixth Report and Order modifies existing requirements and imposes additional
paperwork burdens. The Sixth Report and Order modifies the Commission’s policy regarding waivers
(“second-adjacent waivers”) of the second-adjacent channel minimum distance separations set forth in
Section 73.807 of the rules. As required by the LCRA, the Sixth Report and Order requires an applicant
seeking a second-adjacent waiver to submit a showing that demonstrates that its proposed operations will
not result in interference to any authorized radio service. The Sixth Report and Order specifies that a
waiver applicant can make this showing in the same manner as an FM translator applicant (i.e., by
showing that no interference will occur due to lack of population and using undesired/desired signal
strength ratio methodology to narrowly define areas of potential interference). The Sixth Report and
Order
also permits certain applicants to propose to use directional antennas and/or differing antenna
polarizations to make the required showing. The Sixth Report and Order mandates that complaints about
interference from stations operating pursuant to second-adjacent waivers include certain information. For
instance, a complaint must include the listener’s name and address and the location at which the
interference occurs. The Sixth Report and Order specifies that the Commission will treat as a “minor
change” a proposal to move the transmitter site of an LPFM station operating pursuant to a second-
adjacent waiver outside its current service contour in order to co-locate or operate from a site close to a
second-adjacent channel station and remediate interference to that station.
13.
The Sixth Report and Order modifies the regime governing complaints about and
remediation of third-adjacent channel interference caused by LPFM stations. As required by the LCRA,
the Sixth Report and Order modifies the requirements applicable to complaints about third-adjacent
channel interference caused by stations that do not satisfy the third-adjacent minimum distance
separations set forth in Section 73.807 of the rules. It also permits such stations to propose to use
directional antennas and/or differing antenna polarizations in order to eliminate third-adjacent channel
interference caused by their operations. The Sixth Report and Order modifies the requirements applicable
to complaints about third-adjacent interference caused by LPFM stations that satisfy the third-adjacent
minimum distance separations set forth in Section 73.807 of the rules and strongly encourages that such
complaints be filed with the Media Bureau’s Audio Division. As in the second-adjacent channel context,
the Sixth Report and Order explains that the Commission will treat proposals from LPFM stations
seeking to remediate third-adjacent channel by co-locating or operating from a site close to a third-
adjacent channel station as “minor changes.” As required by the LCRA, the Sixth Report and Order
requires newly constructed LPFM stations that satisfy the third-adjacent minimum distance separations
set forth in Section 73.807 of the rules to make periodic announcements. It also adopts requirements
related to the timing and content of these announcements.
14.
The Sixth Report and Order adopts certain New Jersey-specific provisions regarding
complaints of interference. The Sixth Report and Order also adopts a threshold test to determine whether
an LPFM applicant adequately protects translator input signals. In order to ensure that an LPFM
applicant protects the correct input signal for an FM translator, the Sixth Report and Order recommends


15 See 13 C.F.R. § 121.201, NAICS Code 515112.
16 See News Release, “Broadcast Station Totals as of December 31, 2010June 30, 2012” (rel. Feb. 11, 2011July. 19,
2012) (http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-304594A1 315231A1.pdf).
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that FM translator licensees update the Commission if they have changed their primary station since they
last filed a renewal application. If an applicant proposes to locate its transmitter within the “potential
interference area” for another station, the applicant must demonstrate that it will not cause interference by
making one of three showings. The Sixth Report and Order provides that an applicant can make these
same showings in the context of a petition for reconsideration and reinstatement nunc pro tunc.
15.
The Sixth Report and Order modifies the rules governing eligibility to hold licenses for
LPFM stations. Specifically, it alters the eligibility rule to authorize issuance of an LPFM license to a
Tribal Nation Applicant. The Sixth Report and Order also revises the localism requirement to clarify that
an LPFM applicant must certify that, at the time of application, it is local and must pledge to remain local
at all times thereafter. In addition, the Sixth Report and Order revises the definition of “local” to specify
that a Tribal Nation Applicant is considered “local” throughout its Tribal lands.
16.
The Sixth Report and Order revises the rules to permit multiple ownership of LPFM
stations by Tribal Nation Applicants and cross-ownership of LPFM and FM translator stations. As a
result, the Commission is revising the ownership certifications set forth in FCC Form 318.
17.
The Sixth Report and Order makes a number of changes to the point system used to
select among MX applications for LPFM stations. It extends the established community presence
standard from 10 to 20 miles in rural areas. The Commission is revising FCC Form 318 to reflect this
change. The Sixth Report and Order also adopts four new points criteria. Specifically, it adopts a new
main studio criterion and requires an applicant seeking to qualify for a point under this criterion to submit
certain information (i.e., an address and telephone number for its proposed main studio) on FCC Form
318. In addition, the Sixth Report and Order specifies that the Commission will award a point to an
LPFM applicant that makes both the local program origination and main studio pledges and adopts Tribal
Nations and new entrant criteria. The Commission is revising FCC Form 318 to reflect these new criteria.
18.
The Sixth Report and Order makes a number of changes related to time sharing. It
adopts a requirement that parties submit voluntary time sharing agreements via the Commission’s
Consolidated Database System. It also revises the Commission’s involuntary time sharing policy, shifting
from sequential to concurrent license terms and limiting involuntary time sharing arrangements to three
applicants. As a result of these changes, an LPFM applicant must submit, on FCC Form 318, the date on
which it qualified as having an “established community presence” and may be required to submit
information to the Commission regarding the time slots it prefers. Finally, the Sixth Report and Order
adopts a mandatory time sharing policy similar to that applicable to full-service NCE FM stations.
Applicants seeking to time-share pursuant to this policy must submit applications on FCC Form 318 and
include an exhibit related to mandatory time sharing.

E.

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

19.
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.17
20.
Consideration of alternative methods to reduce the impact on small entities is
unnecessary because the passage of the LCRA required the Commission to make changes to a number of
its technical rules. Moreover, the changes made to the Commission’s non-technical rules benefit small


17 5 U.S.C. § 603(b).
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businesses and existing LPFM licensees, offering them greater flexibility and additional licensing
opportunities.
21.
The LPFM service has created and will continue to create significant opportunities for
small businesses, allowing them to develop LPFM service in their communities. To the extent that any
modified or new requirements set forth in the Sixth Report and Order impose any burdens on small
entities, we believe that the resulting impact on small entities would be favorable because the rules would
expand opportunities for LPFM applicants, permittees, and licensees to commence broadcasting and stay
on the air. Among other things, the Sixth Report and Order allows limited cross-ownership of LPFM and
FM translator stations. This is prohibited under the current rules. Likewise, the Sixth Report and Order
permits Tribal Nation Applicants to own or hold attributable interests in up to two LPFM stations to
ensure adequate coverage of Tribal lands. Today, multiple ownership of LPFM stations is prohibited.
The Sixth Report and Order also modifies the point system that the Commission uses to select among MX
LPFM applications to award a point to an applicant that can certify that it has no attributable interest in
any other broadcast station. Finally, the Sixth Report and Order extends mandatory time sharing to the
LPFM service. If the licensee of an LPFM station does not operate the station 12 hours per day each day
of the year, another organization may file an application to share-time with that licensee.

F.

Report to Congress

22.
The Commission will send a copy of the Sixth Report and Order, including this FRFA, in
a report to be sent to Congress pursuant to the SBREFA.18 In addition, the Commission will send a copy
of the Sixth Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the SBA. A
copy of the Sixth Report and Order and the FRFA (or summaries thereof) will also be published in the
Federal Register.19


18 See 5 U.S.C. § 801(a)(1)(A).
19 See 5 U.S.C. § 604(b).
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APPENDIX C

Final Rules

Part 73 of the Code of Federal Regulations is amended as follows:

PART 73 – RADIO BROADCAST SERVICES

1.
The authority for Part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303, 334, 336, and 339.
2.
Section 73.807 is amended to read as follows:
§ 73.807 Minimum distance separation between stations.
Minimum separation requirements for LPFM stations are listed in the following paragraphs.
Except as noted below, an LPFM station will not be authorized unless the co-channel, and first- and
second-adjacent channel separations are met. An LPFM station need not satisfy the third-adjacent
channel separations listed in paragraphs (a) through (c) in order to be authorized. The third-adjacent
channel separations are included for use in determining for purposes of Section 73.810 which third-
adjacent channel interference regime applies to an LPFM station.
Minimum distances for co-channel and first-adjacent channel are separated into two columns.
The left-hand column lists the required minimum separation to protect other stations and the right-hand
column lists (for informational purposes only) the minimum distance necessary for the LPFM station to
receive no interference from other stations assumed to be operating at the maximum permitted facilities
for the station class. For second-adjacent channel, the required minimum distance separation is sufficient
to avoid interference received from other stations.
(a)(1) An LPFM station will not be authorized initially unless the minimum distance separations
in the following table are met with respect to authorized FM stations, applications for new and existing
FM stations filed prior to the release of the public notice announcing an LPFM window period, authorized
LPFM stations, LPFM station applications that were timely-filed within a previous window, and vacant
FM allotments. LPFM modification applications must either meet the distance separations in the
following table or, if short-spaced, not lessen the spacing to subsequently authorized stations.
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First-adjacent channel
Second
Co-channel minimum
minimum separation
and
separation (km)
(km)
third
adjacent
For no
For no
channel
Station class protected by LPFM
interference
interference
minimum
received
received
Required
Required
separation
from max.
from
(km)
class
max. class
facility
facility
Required
LPFM ................................................
24
24
14
14
None
D ........................................................
24
24
13
13
6
A ........................................................
67
92
56
56
29
B1 ......................................................
87
119
74
74
46
B ........................................................
112
143
97
97
67
C3 ......................................................
78
119
67
67
40
C2 ......................................................
91
143
80
84
53
C1 ......................................................
111
178
100
111
73
C0 ......................................................
122
193
111
130
84
C ........................................................
130
203
120
142
93
(a)(2) LPFM stations must satisfy the second-adjacent channel minimum distance separation
requirements of paragraph (a)(1) of this section with respect to any third-adjacent channel FM station that,
as of September 20, 2000, broadcasts a radio reading service via a subcarrier frequency.
(b)(1) In addition to meeting or exceeding the minimum separations in paragraph (a), new LPFM
stations will not be authorized in Puerto Rico or the Virgin Islands unless the minimum distance
separations in the following tables are met with respect to authorized or proposed FM stations:
First-adjacent channel
Second
Co-channel minimum
minimum separation
and
separation (km)
(km)
third
For no
For no
adjacent
Station class protected by LPFM
interference
interference
channel
received
received
minimum
Required
Required
from max.
from
separation
class
max. class
(km)—
facility
facility
required
A ........................................................
80
111
70
70
42
B1 ......................................................
95
128
82
82
53
B ........................................................
138
179
123
123
92
NOTE TO PARAGRAPHS (a) AND (b): Minimum distance separations towards “grandfathered”
superpowered Reserved Band stations are as specified.
Full service FM stations operating within the reserved band (Channels 201-220) with facilities in
excess of those permitted in § 73.211(b)(1) or § 73.211(b)(3) shall be protected by LPFM stations in
accordance with the minimum distance separations for the nearest class as determined under § 73.211.
For example, a Class B1 station operating with facilities that result in a 60 dBu contour that exceeds 39
kilometers but is less than 52 kilometers would be protected by the Class B minimum distance
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separations. Class D stations with 60 dBu contours that exceed 5 kilometers will be protected by the Class
A minimum distance separations. Class B stations with 60 dBu contours that exceed 52 kilometers will be
protected as Class C1 or Class C stations depending upon the distance to the 60 dBu contour. No stations
will be protected beyond Class C separations.
(c)(1) In addition to meeting the separations specified in paragraphs (a) and (b), LPFM
applications must meet the minimum separation requirements in the following table with respect to
authorized FM translator stations, cutoff FM translator applications, and FM translator applications filed
prior to the release of the Public Notice announcing the LPFM window period.
First-adjacent channel
Second
Co-channel minimum
minimum separation
and
separation (km)
(km)
third
adjacent
Distance to FM translator 60 dBu
For no
channel
contour
For no
interference
minimum
Required interference Required
received
separation
received
(km)—
required
13.3 km or
greater...........................................
39
67
28
35
21
Greater than 7.3 km, but less than
13.3 km ….
32
51
21
26
14
7.3 km or less
26
30
15
16
8
(d) Existing LPFM stations which do not meet the separations in paragraphs (a) through (c) of
this section may be relocated provided that the separation to any short-spaced station is not reduced.
(e)(1) Waiver of the second-adjacent channel separations. The Commission will entertain
requests to waive the second-adjacent channel separations in paragraphs (a) through (c) of this section on
a case-by-case basis. In each case, the LPFM station must establish, using methods of predicting
interference taking into account all relevant factors, including terrain-sensitive propagation models, that
its proposed operations will not result in interference to any authorized radio service. The LPFM station
may do so by demonstrating that no actual interference will occur due to intervening terrain or lack of
population. The LPFM station may use an undesired/desired signal strength ratio methodology to define
areas of potential interference.
(2) Interference.
(A) Upon receipt of a complaint of interference from an LPFM station operating
pursuant to a waiver granted under paragraph (e)(1) of this section, the Commission shall notify the
identified LPFM station by telephone or other electronic communication within one business day.
(B) An LPFM station that receives a waiver under paragraph (e)(1) of this section shall
suspend operation immediately upon notification by the Commission that it is causing interference to the
reception of an existing or modified full-service FM station without regard to the location of the station
receiving interference. The LPFM station shall not resume operation until such interference has been
eliminated or it can demonstrate to the Commission that the interference was not due to emissions from
the LPFM station. Short test transmissions may be made during the period of suspended operation to
check the efficacy of remedial measures.
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(f) Commercial and noncommercial educational stations authorized under subparts B and C of
this part, as well as new or modified commercial FM allotments, are not required to adhere to the
separations specified in this rule section, even where new or increased interference would be created.
(g) International considerations within the border zones.
(1) Within 320 km of the Canadian border, LPFM stations must meet the following minimum
separations with respect to any Canadian stations:
Co-
First-
Second-
Third-
Intermediate
channel adjacent adjacent adjacent
frequency
Canadian station class
(km)
channel channel channel (IF) channel
(km)
(km)
(km)
(km)
A1 & Low Power
45
30
21
20
4
A
66
50
41
40
7
B1
78
62
53
52
9
B
92
76
68
66
12
C1
113
98
89
88
19
C
124
108
99
98
28
(2) Within 320 km of the Mexican border, LPFM stations must meet the following
separations with respect to any Mexican stations:
Second-
First-
Intermediate
Co-
and third-
Mexican station class
adjacent
frequency
channel
adjacent
channel
(IF) channel
(km)
channel
(km)
(km)
(km)
Low Power
27
17
9
3
A
43
32
25
5
AA
47
36
29
6
B1
67
54
45
8
B
91
76
66
11
C1
91
80
73
19
C
110
100
92
27
(3) The Commission will notify the International Telecommunications Union (ITU) of any
LPFM authorizations in the US Virgin Islands. Any authorization issued for a US Virgin Islands LPFM
station will include a condition that permits the Commission to modify, suspend or terminate without
right to a hearing if found by the Commission to be necessary to conform to any international regulations
or agreements.
(4) The Commission will initiate international coordination of a LPFM proposal even where
the above Canadian and Mexican spacing tables are met, if it appears that such coordination is necessary
to maintain compliance with international agreements.
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3. Section 73.809(a) is amended to read as follows:
§ 73.809 Interference protection to full service FM stations.
(a) If a full service commercial or NCE FM facility application is filed subsequent to the filing of
an LPFM station facility application, such full service station is protected against any condition of
interference to the direct reception of its signal that is caused by such LPFM station operating on the same
channel or first-adjacent channel provided that the interference is predicted to occur and actually occurs
within:
* * * * *
4. Section 73.810 is amended to read as follows:
§ 73.810 Third adjacent channel interference.
(a) LPFM Stations Licensed at Locations That Do Not Satisfy Third-Adjacent Channel Minimum
Distance Separations. An LPFM station licensed at a location that does not satisfy the third-adjacent
channel minimum distance separations set forth in Section 73.807 is subject to the following provisions:
(1) Such an LPFM station will not be permitted to continue to operate if it causes any actual
third-adjacent channel interference to:
(a) The transmission of any authorized broadcast station; or
(b) The reception of the input signal of any TV translator, TV booster, FM translator or
FM booster station; or
(c) The direct reception by the public of the off-the-air signals of any authorized
broadcast station including TV Channel 6 stations, Class D (secondary) noncommercial educational FM
stations, and previously authorized and operating LPFM stations, FM translators and FM booster stations.
Interference will be considered to occur whenever reception of a regularly used signal on a third-adjacent
channel is impaired by the signals radiated by the LPFM station, regardless of the quality of such
reception, the strength of the signal so used, or the channel on which the protected signal is transmitted.
(2) If third-adjacent channel interference cannot be properly eliminated by the application of
suitable techniques, operation of the offending LPFM station shall be suspended and shall not be resumed
until the interference has been eliminated. Short test transmissions may be made during the period of
suspended operation to check the efficacy of remedial measures. If a complainant refuses to permit the
licensee of the offending LPFM station to apply remedial techniques which demonstrably will eliminate
the third-adjacent channel interference without impairment to the original reception, the licensee is
absolved of further responsibility for that complaint.
(3) Upon notice by the Commission to the licensee that such third-adjacent channel
interference is being caused, the operation of the LPFM station shall be suspended within three minutes
and shall not be resumed until the interference has been eliminated or it can be demonstrated that the
interference is not due to spurious emissions by the LPFM station; provided, however, that short test
transmissions may be made during the period of suspended operation to check the efficacy of remedial
measures.
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(b) LPFM Stations Licensed at Locations That Satisfy Third-Adjacent Channel Minimum
Distance Separations. An LPFM station licensed at a location that satisfies the third-adjacent channel
minimum distance separations set forth in Section 73.807 is subject to the following provisions:
(1) Interference Complaints and Remediation.
(a) Such an LPFM station is required to provide copies of all complaints alleging that its
signal is causing third-adjacent channel interference to or impairing the reception of the signal of a full
power FM, FM translator or FM booster station to such affected station and to the Commission.
(b) A full power FM, FM translator or FM booster station shall review all complaints it
receives, either directly or indirectly, from listeners regarding alleged third-adjacent channel interference
caused by the operations of such an LPFM station. Such full power FM, FM translator or FM booster
station shall also identify those that qualify as bona fide complaints under this section and promptly
provide such LPFM station with copies of all bona fide complaints. A bona fide complaint:
(i) Must include current contact information for the complainant;
(ii) Must state the nature and location of the alleged third-adjacent channel
interference and must specify the call signs of the LPFM station and affected full power FM, FM
translator or FM booster station, and the type of receiver involved; and
(iii) Must be received by either the LPFM station or the affected full power FM, FM
translator or FM booster station within one year of the date on which the LPFM station commenced
broadcasts with its currently authorized facilities.
(c) The Commission will accept bona fide complaints and will notify the licensee of the
LPFM station allegedly causing third-adjacent channel interference to the signal of a full power FM, FM
translator or FM booster station of the existence of the alleged interference within 7 calendar days of the
Commission’s receipt of such complaint.
(d) Such an LPFM station will be given a reasonable opportunity to resolve all
complaints of third-adjacent channel interference within the protected contour of the affected full power
FM, FM translator or FM booster station. A complaint will be considered resolved where the
complainant does not reasonably cooperate with an LPFM station’s remedial efforts. Such an LPFM
station also is encouraged to address all other complaints of third-adjacent channel interference, including
complaints based on interference to a full power FM, FM translator or FM booster station by the
transmitter site of the LPFM station at any distance from the full power, FM translator or FM booster
station.
(e) In the event that the number of unresolved complaints of third-adjacent channel
interference within the protected contour of the affected full power FM, FM translator or FM booster
station plus the number of complaints for which the source of third-adjacent channel interference remains
in dispute equals at least one percent of the households within one kilometer of the LPFM transmitter site
or thirty households, whichever is less, the LPFM and affected stations must cooperate in an “on-off” test
to determine whether the third-adjacent channel interference is traceable to the LPFM station.
(f) If the number of unresolved and disputed complaints of third-adjacent channel
interference within the protected contour of the affected full power, FM translator or FM booster station
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exceeds the numeric threshold specified in subsection (b)(4) following an “on-off” test, the affected
station may request that the Commission initiate a proceeding to consider whether the LPFM station
license should be modified or cancelled, which will be completed by the Commission within 90 days.
Parties may seek extensions of the 90-day deadline consistent with Commission rules.
(g) An LPFM station may stay any procedures initiated pursuant to paragraph (b)(5) of
this section by voluntarily ceasing operations and filing an application for facility modification within
twenty days of the commencement of such procedures.
(2) Periodic Announcements.
(a) For a period of one year from the date of licensing of a new LPFM station that is
constructed on a third-adjacent channel and satisfies the third-adjacent channel minimum distance
separations set forth in Section 73.807, such LPFM station shall broadcast periodic announcements. The
announcements shall, at a minimum, alert listeners of the potentially affected third-adjacent channel
station of the potential for interference, instruct listeners to contact the LPFM station to report any
interference, and provide contact information for the LPFM station. The announcements shall be made in
the primary language(s) of both the new LPFM station and the potentially affected third-adjacent channel
station(s). Sample announcement language follows:
On (date of license grant), the Federal Communications Commission granted (LPFM
station’s call letters) a license to operate. (LPFM station’s call letters) may cause
interference to the operations of (third-adjacent channel station’s call letters) and (other
third-adjacent channel stations’ call letters). If you are normally a listener of (third-
adjacent channel station’s call letters) or (other third-adjacent channel station’s call
letters) and are having difficulty receiving (third-adjacent channel station call letters) or
(other third-adjacent channel station’s call letters), please contact (LPFM station’s call
letters) by mail at (mailing address) or by telephone at (telephone number) to report this
interference.
(b) During the first thirty days after licensing of a new LPFM station that is constructed
on a third-adjacent channel and satisfies the third-adjacent channel minimum distance separations set
forth in Section 73.807, the LPFM station must broadcast the announcements specified in paragraph
(b)(2)(a) at least twice daily. The first daily announcement must be made between the hours of 7 a.m. and
9 a.m., or 4 p.m. and 6 p.m. The LPFM station must vary the time slot in which it airs this
announcement. For stations that do not operate at these times, the announcements shall be made during
the first two hours of broadcast operations each day. The second daily announcement must be made
outside of the 7 a.m. to 9 a.m. and 4 p.m. to 6 p.m. time slots. The LPFM station must vary the times of
day in which it broadcasts this second daily announcement in order to ensure that the announcements air
during all parts of its broadcast day. For stations that do not operate at these times, the announcements
shall be made during the first two hours of broadcast operations each day. For the remainder of the one
year period, the LPFM station must broadcast the announcements at least twice per week. The
announcements must be broadcast between the hours of 7 a.m. and midnight. For stations that do not
operate at these times, the announcements shall be made during the first two hours of broadcast
operations each day.
(c) Any new LPFM station that is constructed on a third-adjacent channel and satisfies
the minimum distance separations set forth in Section 73.807 must:
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(i) notify the Audio Division, Media Bureau, and all affected stations on third-
adjacent channels of an interference complaint. The notification must be made electronically within 48
hours after the receipt of an interference complaint by the LPFM station; and
(ii) cooperate in addressing any third-adjacent channel interference.
5. Section 73.811 is amended to read as follows:
§ 73.811 LPFM power and antenna height requirements.
(a) Maximum facilities. LPFM stations will be authorized to operate with maximum facilities of
100 watts ERP at 30 meters HAAT. An LPFM station with a HAAT that exceeds 30 meters will not be
permitted to operate with an ERP greater than that which would result in a 60 dBu contour of 5.6
kilometers. In no event will an ERP less than one watt be authorized. No facility will be authorized in
excess of one watt ERP at 450 meters HAAT.
(b) Minimum facilities. LPFM stations may not operate with facilities less than 50 watts ERP at
30 meters HAAT or the equivalent necessary to produce a 60 dBu contour that extends at least 4.7
kilometers.
6. Section 73.816 is amended to read as follows:
§ 73.816 Antennas.
(a) Permittees and licensees may employ nondirectional antennas with horizontal only
polarization, vertical only polarization, circular polarization or elliptical polarization.
(b) Directional antennas generally will not be authorized and may not be utilized in the LPFM
service, except as provided in paragraph (c) of this section.
(c)(1) Public safety and transportation permittees and licensees, eligible pursuant to §
73.853(a)(ii), may utilize directional antennas in connection with the operation of a Travelers’
Information Service (TIS) provided each LPFM TIS station utilizes only a single antenna with standard
pattern characteristics that are predetermined by the manufacturer. Public safety and transportation
permittees and licensees may not use composite antennas (i.e., antennas that consist of multiple stacked
and/or phased discrete transmitting antennas).
(2) LPFM permittees and licensees proposing a waiver of the second-adjacent channel
spacing requirements of Section 73.807 may utilize directional antennas for the sole purpose of justifying
such a waiver.
(d) LPFM TIS stations will be authorized as nondirectional stations. The use of a directional
antenna as provided for in paragraph (c) of this section will not be considered in the determination of
compliance with any requirements of this part.
7. Section 73.825 is amended to read as follows:
§ 73.825 Protection to reception of TV channel 6.
(a) LPFM stations will be authorized on Channels 201 through 220 only if the pertinent minimum
separation distances in the following table are met with respect to all full power TV Channel 6 stations.
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LPFM
FM channel
to TV
number
channel 6
(km)
201
140
202
138
203
137
204
136
205
135
206
133
207
133
208
133
209
133
210
133
211
133
212
132
213
132
214
132
215
131
216
131
217
131
218
131
219
130
220
130
(b) LPFM stations will be authorized on Channels 201 through 220 only if the pertinent minimum
separation distances in the following table are met with respect to all low power TV, TV translator, and
Class A TV stations authorized on TV Channel 6.
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LPFM
FM channel
to TV
number
channel 6
(km)
201
98
202
97
203
95
204
94
205
93
206
91
207
91
208
91
209
91
210
91
211
91
212
90
213
90
214
90
215
90
216
89
217
89
218
89
219
89
220
89
8. Section 73.827 is amended by adding new paragraph (a), revising the previous paragraph (a) to (b),
and revising the previous paragraph (b) to (c) as follows:
§ 73.827 Interference to the input signals of FM translator or FM booster stations.
(a) Interference to the direct reception of the input signal of an FM translator station. This
subsection applies when an LPFM application proposes to operate near an FM translator station, the FM
translator station is receiving its primary station signal off-air and the LPFM application proposes to
operate on a third-adjacent channel to the primary station. In these circumstances, the LPFM station will
not be authorized unless it is located at least 2 km from the FM translator station. In addition, in cases
where an LPFM station is located within +/- 30 degrees of the azimuth between the FM translator station
and its primary station, the LPFM station will not be authorized unless it is located at least 10 kilometers
from the FM translator station. The provisions of this subsection will not apply if the LPFM applicant:
(1) demonstrates that no actual interference will occur due to an undesired (LPFM) to desired
(primary station) ratio below 34 dB at all locations,
(2) complies with the minimum LPFM/FM translator distance separation calculated in
accordance with the following formula: du = 133.5 antilog [(Peu + Gru – Grd – Ed) / 20], where du = the
minimum allowed separation in km, Peu = LPFM ERP in dBW, Gru = gain (dBd) of the FM translator
receive antenna in the direction of the LPFM site, Grd = gain (dBd) of the FM translator receive antenna in
the direction of the primary station site, Ed = predicted field strength (dBu) of the primary station at the
translator site, or
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(3) reaches an agreement with the licensee of the FM translator regarding an alternative
technical solution.
NOTE TO PARAGRAPH (a): LPFM applicants may assume that an FM translator station’s receive and
transmit antennas are collocated.
(b) An authorized LPFM station will not be permitted to continue to operate if an FM translator
or FM booster station demonstrates that the LPFM station is causing actual interference to the FM booster
station’s input signal, provided that the same input signal was in use at the time the LPFM station was
authorized.
(c) Complaints of actual interference by an LPFM station subject to paragraph (b) of this section
must be served on the LPFM licensee and the Federal Communications Commission, Attention: Audio
Division, Media Bureau. The LPFM station must suspend operations upon the receipt of such complaint
unless the interference has been resolved to the satisfaction of the complainant on the basis of suitable
techniques. Short test transmissions may be made during the period of suspended operations to check the
efficacy of remedial measures. An LPFM station may only resume full operation at the direction of the
Federal Communications Commission. If the Commission determines that the complainant has refused to
permit the LPFM station to apply remedial techniques that demonstrably will eliminate the interference
without impairment of the original reception, the licensee of the LPFM station is absolved of further
responsibility for the complaint.
9. Section 73.850 is amended by adding a new paragraph (c) that reads as follows:
§73.850 Operating schedule.
* * * * *
(c) All LPFM stations, including those meeting the requirements of paragraph (b) of this section,
but which do not operate 12 hours per day each day of the year, will be required to share use of the
frequency upon the grant of an appropriate application proposing such share time arrangement. Such
applications must set forth the intent to share time and must be filed in the same manner as are
applications for new stations. Such applications may be filed at any time after an LPFM station
completes its third year of licensed operations. In cases where the licensee and the prospective licensee
are unable to agree on time sharing, action on the application will be taken only in connection with a
renewal application for the existing station filed on or after June 1, 2019. In order to be considered for
this purpose, an application to share time must be filed no later than the deadline for filing petitions to
deny the renewal application of the existing licensee.

(1) The licensee and the prospective licensee(s) shall endeavor to reach an agreement for a
definite schedule of periods of time to be used by each. Such agreement must be in writing and must set
forth which licensee is to operate on each of the hours of the day throughout the year. Such agreement
must not include simultaneous operation of the stations. Each licensee must file the same in triplicate with
each application to the Commission for initial construction permit or renewal of license. Such written
agreements shall become part of the terms of each station's license.
(2) The Commission desires to facilitate the reaching of agreements on time sharing.
However, if the licensees of stations authorized to share time are unable to agree on a division of time, the
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prospective licensee(s) must submit a statement with the Commission to that effect filed with the
application(s) proposing time sharing.
(3) After receipt of the type of application(s) described in subsection (c)(2), the Commission
will process such application(s) pursuant to Sections 73.3561-3568 of this Part. If any such application is
not dismissed pursuant to those provisions, the Commission will issue a notice to the parties proposing a
time-sharing arrangement and a grant of the time-sharing application(s). The licensee may protest the
proposed action, the prospective licensee(s) may oppose the protest and/or the proposed action, and the
licensee may reply within the time limits delineated in the notice. All such pleadings must satisfy the
requirements of Section 309(d) of the Act. Based on those pleadings and the requirements of Section 309
of the Act, the Commission will then act on the time-sharing application(s) and the licensee’s renewal
application.
(4) A departure from the regular schedule set forth in a time-sharing agreement will be
permitted only in cases where a written agreement to that effect is reduced to writing, is signed by the
licensees of the stations affected thereby, and is filed in triplicate by each licensee with the Commission,
Attention: Audio Division, Media Bureau, prior to the time of the proposed change. If time is of the
essence, the actual departure in operating schedule may precede the actual filing of the written agreement,
provided that appropriate notice is sent to the Commission in Washington, D.C., Attention: Audio
Division, Media Bureau.
10. Section 73.853 is amended by revising paragraphs (a) and (b) and adding a new paragraph (c) as
follows:
§ 73.853 Licensing requirements and service.
(a) An LPFM station may be licensed only to:
* * * * *
(3) Tribal Applicants, as defined in paragraph (c) of this section that will provide non-
commercial radio services.
(b) Only local organizations will be permitted to submit applications and to hold authorizations
in the LPFM service. For the purposes of this paragraph, an organization will be deemed local if it can
certify, at the time of application, that it meets the criteria listed below and if it continues to satisfy the
criteria at all times thereafter.
* * * * *
(4) In the case of a Tribal Applicant, as defined in paragraph (c) of this section, the Tribal
Applicant’s Tribal lands, as that term is defined in Section 73.7000 of this Part, are within the service area
of the proposed LPFM station.
(c) A Tribal Applicant is a Tribe or an entity that is 51 percent or more owned or controlled by a
Tribe or Tribes. For these purposes, Tribe is defined as set forth in Section 73.7000 of this Part.
11. Section 73.855 is amended by revising paragraph (a), inserting a new paragraph (b), and renaming
paragraph (b) as paragraph (c) and revising it as follows:
§ 73.855 Ownership limits.
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(a) No authorization for an LPFM station shall be granted to any party if the grant of that
authorization will result in any such party holding an attributable interest in two or more LPFM stations.
(b) Notwithstanding the general prohibition set forth in paragraph (a) of this section, Tribal
Applicants, as defined in Section 73.853(c) of this Part, may hold an attributable interest in up to two
LPFM stations.
(c) Notwithstanding the general prohibition set forth in paragraph (a) of this section, not-for-
profit organizations and governmental entities with a public safety purpose may be granted multiple
licenses if:
(1) One of the multiple applications is submitted as a priority application; and
(2) The remaining non-priority applications do not face a mutually exclusive challenge.
12. Section 73.860 is amended by revising paragraph (a), inserting new paragraphs (b) and (c), renaming
paragraph (b) as paragraph (d) and revising it, and renaming paragraph (c) as paragraph (e) as follows:
§ 73.860 Cross-ownership.
(a) Except as provided in paragraphs (b), (c) and (d) of this section, no license shall be granted to
any party if the grant of such authorization will result in the same party holding an attributable interest in
any other non-LPFM broadcast station, including any FM translator or low power television station, or
any other media subject to our broadcast ownership restrictions.
(b) A party that is not a Tribal Applicant, as defined in Section 73.853(c) of this Part, may hold
attributable interests in one LPFM station and no more than two FM translator stations provided that the
following requirements are met:
(1) The 60 dBu contours of the commonly-owned LPFM station and FM translator station(s)
overlap;
(2) The FM translator station(s), at all times, synchronously rebroadcasts the primary analog
signal of the commonly-owned LPFM station or, if the commonly-owned LPFM station operates in
hybrid mode, synchronously rebroadcasts the digital HD-1 version of the LPFM station’s signal;
(3) The FM translator station(s) receives the signal of the commonly-owned LPFM station
over-the-air and directly from the commonly-owned LPFM station itself; and
(4) The transmitting antenna of the FM translator station(s) is located within 16.1 km (10
miles) for LPFM stations located in the top 50 urban markets and 32.1 km (20 miles) for LPFM stations
outside the top 50 urban markets of either the transmitter site of the commonly-owned LPFM station or
the reference coordinates for that station’s community of license.
(c) A party that is a Tribal Applicant, as defined in Section 73.853(c) of this Part, may hold
attributable interests in no more than two LPFM stations and four FM translator stations provided that the
requirements set forth in paragraph (b) are met.
(d) Unless such interest is permissible under paragraphs (b) or (c) of this section, a party with an
attributable interest in a broadcast radio station must divest such interest prior to the commencement of
operations of an LPFM station in which the party also holds an interest. However, a party need not divest
such an attributable interest if the party is a college or university that can certify that the existing
broadcast radio station is not student run. This exception applies only to parties that:
(1) Are accredited educational institutions;
(2) Own an attributable interest in non-student run broadcast stations; and
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(3) Apply for an authorization for an LPFM station that will be managed and operated on a
day-to-day basis by students of the accredited educational institution.
(e) No LPFM licensee may enter into an operating agreement of any type, including a time
brokerage or management agreement, with either a full power broadcast station or another LPFM station.
13. Section 73.870 is amended by revising paragraph (a) to read as follows:
§ 73.870 Processing of LPFM broadcast station applications.
(a) A minor change for an LPFM station authorized under this subpart is limited to transmitter
site relocations of 5.6 kilometers or less. These distance limitations do not apply to amendments or
applications proposing transmitter site relocation to a common location filed by applicants that are parties
to a voluntary time-sharing agreement with regard to their stations pursuant to § 73.872 paragraphs (c)
and (e). These distance limitations also do not apply to an amendment or application proposing
transmitter site relocation to a common location or a location very close to another station operating on a
third-adjacent channel in order to remediate interference to the other station; provided, however, that the
proposed relocation is consistent with all localism certifications made by the applicant in its original
application for the LPFM station. Minor changes of LPFM stations may include:
(1) Changes in frequency to adjacent or I.F. 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.
* * * * *
14. Section 73.871 is amended by revising paragraph (c) to read as follows:
§ 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 5.6 kilometers or less for LPFM
stations;
* * * * *
(5) Other changes in general and/or legal information;
(6) Filings proposing transmitter site relocation to a common location submitted by
applications that are parties to a voluntary time-sharing agreement with regard to their stations pursuant to
§ 73.872 paragraphs (c) and (e); and
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(7) Filings proposing transmitter site relocation to a common location or a location very
close to another station operating on a third-adjacent channel in order to remediate interference to the
other station.
15. Section 73.872 is amended by revising paragraphs (b) through (e) to read as follows:
§ 73.872 Selection procedure for mutually exclusive LPFM applications.
* * * * *
(b) Each mutually exclusive application will be awarded one point for each of the following
criteria, based on certifications that the qualifying conditions are met and submission of any required
documentation:
(1) Established community presence. An applicant must, for a period of at least two years
prior to application and at all times thereafter, have qualified as local pursuant to Section 73.853(b) of this
Part. Applicants claiming a point for this criterion must submit any documentation specified in FCC
Form 318 at the time of filing their applications.
(2) Local program origination. The applicant must pledge to originate locally at least eight
hours of programming per day. For purposes of this criterion, local origination is the production of
programming by the licensee, within ten miles of the coordinates of the proposed transmitting antenna.
Local origination includes licensee produced call-in shows, music selected and played by a disc jockey
present on site, broadcasts of events at local schools, and broadcasts of musical performances at a local
studio or festival, whether recorded or live. Local origination does not include the broadcast of repetitive
or automated programs or time-shifted recordings of non-local programming whatever its source. In
addition, local origination does not include a local program that has been broadcast twice, even if the
licensee broadcasts the program on a different day or makes small variations in the program thereafter.
(3) Main studio. The applicant must pledge to maintain a publicly accessible main studio that
has local program origination capability, is reachable by telephone, is staffed at least 20 hours per week
between 7 a.m. and 10 p.m., and is located within 16.1 km (10 miles) of the proposed site for the
transmitting antenna for applicants in the top 50 urban markets and 32.1 km (20 miles) for applicants
outside the top 50 urban markets. Applicants claiming a point under this criterion must specify the
proposed address and telephone number for the proposed main studio in FCC Form 318 at the time of
filing their applications.
(4) Local program origination and main studio. The applicant must make both the local
program origination and main studio pledges set forth in subparagraphs (2) and (3).
(5) Diversity of ownership. An applicant must hold no attributable interests in any other
broadcast station.
(6) Tribal Applicants serving Tribal Lands. The applicant must be a Tribal Applicant, as
defined in Section 73.853(c) of this Part, and the proposed site for the transmitting antenna must be
located on that Tribal Applicant’s “Tribal Lands,” as defined in Section 73.7000 of this Part. Applicants
claiming a point for this criterion must submit the documentation set forth in FCC Form 318 at the time of
filing their applications.
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(c) Voluntary time-sharing. If mutually exclusive applications have the same point total, any two
or more of the tied applicants may propose to share use of the frequency by electronically submitting,
within 90 days of the release of a public notice announcing the tie, a time-share proposal. Such proposals
shall be treated as minor amendments to the time-share proponents’ applications, and shall become part of
the terms of the station authorization. Where such proposals include all of the tied applications, all of the
tied applications will be treated as tentative selectees; otherwise, time-share proponents’ points will be
aggregated.
* * * * *
(4) Concurrent license terms granted under paragraph (d) may be converted into voluntary
time-sharing arrangements renewable pursuant to § 73.3539 by submitting a universal time-sharing
proposal.
* * * * *
(d) Involuntary time-sharing. (1) If a tie among mutually exclusive applications is not resolved
through voluntary time-sharing in accordance with paragraph (c) of this section, the tied applications will
be reviewed for acceptability. Applicants with tied, grantable applications will be eligible for equal,
concurrent, non-renewable license terms.
(2) If a mutually exclusive group has three or fewer tied, grantable applications, the
Commission will simultaneously grant these applications, assigning an equal number of hours per week to
each applicant. The Commission will determine the hours assigned to each applicant by first assigning
hours to the applicant that has been local, as defined in Section 73.853(b) of this Part, for the longest
uninterrupted period of time, then assigning hours to the applicant that has been local for the next longest
uninterrupted period of time, and finally assigning hours to any remaining applicant. The Commission
will offer applicants an opportunity to voluntarily reach a time-sharing agreement. In the event that
applicants cannot reach such agreement, the Commission will require each applicant subject to
involuntary time-sharing to simultaneously and confidentially submit their preferred time slots to the
Commission. If there are only two tied, grantable applications, the applicants must select between the
following 12-hour time slots (1) 3:00 am – 2:59 pm, or (2) 3:00 pm – 2:59 am. If there are three tied,
grantable applications, each applicant must rank their preference for the following 8-hour time slots: (1)
2:00 am – 9:59 am, (2) 10:00 am- 5:59 pm, and (3) 6:00 pm-1:59 am. The Commission will require the
applicants to certify that they did not collude with any other applicants in the selection of time slots. The
Commission will give preference to the applicant that has been local for the longest uninterrupted period
of time. The Commission will award time in units as small as four hours per day. In the event an
applicant neglects to designate its preferred time slots, staff will select a time slot for that applicant.

(3) Groups of more than three tied, grantable applications will not be eligible for licensing
under this section. Where such groups exist, the Commission will dismiss all but the applications of the
three applicants that have been local, as defined in Section 73.853(b) of this Part, for the longest
uninterrupted periods of time. The Commission then will process the remaining applications as set forth
in paragraph (d)(2) of this section.
(4) If concurrent license terms granted under this section are converted into universal
voluntary time-sharing arrangements pursuant to paragraph (c)(4) of this section, the permit or license is
renewable pursuant to §§ 73.801 and 73.3539.
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(e) Settlements. Mutually exclusive applicants may propose a settlement at any time during the
selection process after the release of a public notice announcing the mutually exclusive groups.
Settlement proposals must comply with the Commission’s rules and policies regarding settlements,
including the requirements of §§ 73.3525, 73.3588 and 73.3589. Settlement proposals may include time-
share agreements that comply with the requirements of paragraph (c) of this section, provided that such
agreements may not be filed for the purpose of point aggregation outside of the 90 day period set forth in
paragraph (c) of this section.
16. Section 73.873 is revised by deleting paragraph (b) and renaming paragraph (c) as paragraph (b) as
follows:
§ 73.873 LPFM license period.
(a) Initial licenses for LPFM stations will be issued for a period running until the date specified
in § 73.1020 for full service stations operating in the LPFM station’s state or territory, or if issued after
such date, determined in accordance with § 73.1020.
(b) The license of an LPFM station that fails to transmit broadcast signals for any consecutive 12-month
period expires as a matter of law at the end of that period, notwithstanding any provision, term, or
condition of the license to the contrary.
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STATEMENT OF

CHAIRMAN JULIUS GENACHOWSKI

Re:
Creation of a Low Power Radio Service, MM Docket No. 99-25
We’re delighted and honored to have the two key sponsors of the LPFM bill here to speak to us,
Congressman Mike Doyle and Congressman Lee Terry. They’ve been strong advocates for this
legislation over the years and we appreciate their tremendous efforts. This is a great example of
Congress and the FCC working together, and of Democrats and Republicans working together.
It’s significant for all Americans – rural to urban.
This is a big step to empower community voices, promote media diversity, and enhance local programing.
Our order creates opportunities for thousands of new FM radio stations throughout the country.
Thanks to Congress’s work on the Local Community Radio Act, today we are taking the most far-
reaching actions in decades to empower new programmers to provide local radio programming and
expand media diversity throughout the country.
The Information Needs of Communities report we released last year found that 86 percent of the news
and public affairs programming broadcast on news-talk radio was national and not local. Low-power
community radio is intended to be a hyper-local radio service. This was the vision of my friend, former
Chairman Bill Kennard, who led the Commission in authorizing LPFM.
I have a personal connection to this item. I worked in a small radio station myself while I was in college
as a DJ. I know firsthand both the opportunities that small stations can provide, and how important they
can be to the communities they reach.
Right now, low power radio stations are already allowing diverse voices to provide valuable local service
in some communities. In Lincoln, Nebraska, the Lincoln Chinese Ministry Association provide Chinese
language programming from KJFT. In South Bend, Indiana, the League of United Latin American
Citizens operates the only Spanish-language radio station within 25 miles. WSBL airs more than 100
hours of local programming each week, including English language vocabulary shows, outreach
programming for area students, and information about health and social services available to Spanish-
speaking residents.
The Pascua Yaqui Tribe is the licensee of KPYT near Tucson. The station airs Yaqui language
programming three days a week and health and wellness education programming daily. It uses its mobile
recording studio to visit local elementary and middle schools.
I am delighted that a number of schools have seized the opportunity that the LPFM service provides to
support student-run stations. For example, the University of the Cumberland’s low power station WCCR
covers campus news and sports. The station boasts 20 separate on-air personalities who produce more
than 40 hours of programming each week.

These stations are doing fantastic things, but now only a handful of low power FM stations operate in
large markets. With today’s vote, we are fully realizing the vision of creating an opportunity to bring the
diverse voices of community radio to Americans across the country, including those in large urban areas.
I am happy that our work will enable LPFM to fulfill its original promise.
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In order to make this possible, Commission staff has completed an intensive and detailed LPFM spectrum
analysis, and is prepared to implement procedures, both for LPFM and translator applicants, that preserve
this limited spectrum. I want to thank the staff for all their hard work. These diligent efforts are creating
many more opportunities for diverse media voices to be heard. There is no way of knowing exactly who
will apply, but we expect to see literally thousands of new applicants.
This includes hundreds of registered community groups – such as Parent Teacher Associations, Girl and
Boy Scouts clubs, colleges and others. Minority and tribal groups will be empowered to participate more
widely in community radio, and their voices will enrich local programming in communities across the
country, harnessing speech to create new platforms for innovation. This is vital work and I am pleased we
can move forward.
Thank you to the FCC staff for their terrific work on this item. And, of course, none of this would have
happened without the hard work done in Congress, allowing us to create licensing opportunities in
virtually every market while protecting existing radio service. I would like to extend my personal thanks
to all the sponsors of the LCRA and especially Congressmen Mike Doyle and Lee Terry, who joined us
here today, and Senators Maria Cantwell and John McCain, and the leadership of the House Energy and
Commerce Committee and the Senate Commerce Committee.
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STATEMENT OF

COMMISSIONER ROBERT M. McDOWELL

Re:
Creation of a Low Power Radio Service, MM Docket No. 99-25
Today marks the fifth round of attempts to resolve the tensions between FM translator applicants
and the low power FM community since I joined the Commission. Yes, the fifth round. Each time, I am
reminded that these issues are complex, highly technical, and important to American radio listeners, and
seemingly intractable – especially after five rounds. After the conclusion of each round, we seem to
forget just how difficult finding a solution can be. And then, before you know it, we find ourselves in yet
another round of reconsideration. Or, to quote comedian Stephen Wright, “Right now I’m having
amnesia and déjà vu at the same time.”
Nonetheless, in today’s order, we revise the licensing process, adopted this past March, to resolve
FM translator applications that have been pending before the Commission since 2003. My hope is that
we have finally forged a workable compromise that will allow for the licensing and successful operation
of both translators and LPFM stations to benefit all Americans.
Specifically, I approve of revising our licensing procedures to allow applicants to acquire up to
three FM translators, as opposed to just one, in 156 larger markets if they meet certain requirements.
Allowing the acquisition of more FM translators will enable applicants to serve their entire communities.
Not only is this policy common sense, but is also helpful to broadcasters and listening audiences alike,
especially in light of our earlier decision to permit the use of FM translators to rebroadcast AM station’s
signals.
I also support relaxing the nationwide cap to allow licensees to acquire an additional 20
translators to serve smaller markets and rural America.1 Earlier this year, I proposed edits to adopt a
similar framework prior to the adoption of the March order but I fell a few votes short, so naturally I’m
happy that, after further reflection, we can all agree to include those ideas this time around. Now, FM
translator applicants will ultimately have this additional flexibility to better serve their listeners.
We also adopt rules regarding LPFM interference and licensing procedures. I am pleased that our
licensing rules successfully take into account the community-oriented purpose of the LPFM service,
including recognizing the importance of providing radio services to Tribal and Alaska Native lands. I am
also encouraged that the interference rules and waiver processes take into account the need to promote
viable LPFM stations while ensuring that other FM stations do not experience harmful interference.
It is of paramount importance that we put these issues to rest once and for all, dispose of the
remaining FM translator applications, and open a window to license new LPFM stations by October 15,
2013.2 In doing so, we will fulfill Congress’s mandate in the Local Community Radio Act of 2010 to
ensure that both LPFM stations and FM translators have ample licensing opportunities.


1 FM translator applicants will be restricted to prosecuting 70 applications in total; 50 of which may be for licenses
in the 156 markets defined in the order.
2 I recognize, however, that the Media Bureau may have to delay opening the licensing window if there are legal
challenges or issues with processing the translator applications.
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I thank the Chairman for his willingness to incorporate these constructive edits. Further, I would
like to acknowledge and thank Representatives Lee Terry and Mike Doyle for their leadership on these
issues.
Finally, I thank the hard-working staff of the Media Bureau, whom I have thanked during each of
my five rounds on this matter for their patience, thoughtful work and, of course, persistence. Hopefully,
we won’t have to have a sixth vote.
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STATEMENT OF

COMMISSIONER MIGNON L. CLYBURN

Re:
Creation of a Low Power Radio Service, MM Docket No. 99-25
Low power radio is truly radio of the people, by the people, and for the people.” This sentiment
was proudly exclaimed by Commissioner Michael Copps last year when we first began implementing the
Local Community Radio Act. And today, we take a major step toward the creation of a media landscape
more reflective of the greatness in nation.
Congressman Michael Doyle and Congressman Lee Terry – special thanks are due to you, for
none of this would be possible without your tireless efforts. Now, more constituents in Pittsburgh and
Omaha may have their voices heard, and their interests expressed, and I can only imagine how elated you
must be to know that your friends, family and neighbors very soon may have enhanced entertainment and
information options.
Over the past several months, we have been inundated with stories from Low-Powered FM
station supporters: tribal entities in the Southwest, Hmong communities in the Midwest, farm workers at
the Southern tip of Florida, science fiction lovers up north in Maine, high-school students and senior
citizens in Maui, liberals, conservatives, and groups across the board… making their voices heard through
discussions and advocacy for unique and interesting programs found only on these radio properties.
So it is in this order that I am pleased to affirm we will greatly increase the number of LPFM
stations to augment the airwaves through a process that waives the second-adjacent channel spacing
requirement. What this means is that in major urban markets, space will be freed up for LPFM stations
and they will soon achieve a share of the dial previously dominated mainly by larger, national entities.
Through this Order, we take a resource that has been indispensable in rural communities and bring it into
major metropolitan areas.
Extraordinary diversity can be found in major cities across this great nation, so I can only imagine
how urban communities will utilize this great resource. Ethnically and culturally-diverse people will have
a greater opportunity to unite and share their collective experiences with others. In that vein, one
proposed project that got my attention is an effort championed by the Gullah People’s Movement in
South Carolina. If granted a license, this applicant proposes to feature as its first offering a program
hosted by octogenarians who plan to convey the oral history of African-Americans in the lowcountry of
South Carolina and Georgia.
This order is a victory for applicants like them and an opportunity for those who express
themselves through other artistic means as well. The music lovers on my staff are hoping for an
explosion of “indie music” returning to the airwaves, where listeners can tap a variety of genres now
primarily found only on the Internet and satellite radio.
The FCC recognizes that radio remains a vital tool not only for niche interests but for the
communications needs of the entire nation. I am reminded of that LPFM property in New Orleans that
stayed on the air throughout the Hurricane Katrina crisis, battling rising flood waters but keeping Bayou
residents informed after every other area FM radio station went silent. In the absence of electricity,
Internet access, and cell phone coverage, many of those affected by Hurricane Sandy turned to battery-
powered radios as their sole link to the outside world. In the months ahead, there will be no shortage of
opportunities for community radio stations to unite communities, keep them connected, and help them
rebuild and move on in the event of terrible losses.
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Just over a year ago, I spoke about striking a balance between competing interests in this docket.
Today’s order represents months of working not only with LPFM supporters but with organizations
representing the interests of translator applicants as well. Through their tireless advocacy, we reached a
solution that will allow translators and LPFM stations to complement one another in what we trust will be
a richer and more vibrant media landscape.
Both translators and LPFMs connect users in rural and underserved areas with programming that
would not be available otherwise, and the compromise in today’s order will allow the vast majority of
translator applicants to continue serving these communities. Indeed, during the last application window,
97% of translator applicants filed fewer than the 50-application limit we put in place today. This limit
will ensure that translator and LPFM licenses go to those applicants that are committed to connecting
users with content while curbing counter-productive speculative behavior. To date, over 25% of
translator authorizations have not been constructed, and nearly 40% have been assigned to parties other
than the original applicants. Much of this represents speculative engagement, and many of these licenses
could have been granted to LPFM and translator applicants who have a vision for community use.

We not only make more room for LPFM stations, but this order also ensures that LPFM licenses
go to those applicants who can best contribute to this thriving landscape. Where there are multiple or
competing applicants for the same coverage area, we employ a point system which gives preference to
stations that best reflect the varied interests of their communities.
Origination of local content in this regard is key. How better to communicate the interests of a
community than by producing content in and from that community? Preference will be given to
organizations that have an established presence in those neighborhoods, by keeping a local studio staffed
regularly, and producing content locally. For then a station has a greater opportunity to stay better
connected to the community where it operates.
We also understand that there is no one voice for any geographical area, so preference will be
granted to new entrants – that is, to applicants who have no attributable interest in another broadcasting
entity. With a diversity of viewpoints and ideas, we want to ensure that citizens across the spectrum of
thoughts and ideas will remain connected and engaged with content tailored to them.
Finally, I am ecstatic that we have an actual date for the opening of the filing window. So no
matter what, my spirits will still be soaring on that day, as will those of countless entities and individuals
as we embark on an endeavor that could potentially add tremendously new dimension to our media
ecosystem.
Special thanks are due to the stakeholders involved in reaching today’s compromise, notably
REC, Common Frequency, and Prometheus. Their advocacy for the future of radio is inspiring, and this
order is a testament to their hard work and dedication. Peter “The Oracle” Doyle, Jim Bradshaw, and
others in the Media Bureau, including the engineers, thank you for an enormous amount of heavy lifting
in this proceeding and for the work which will continue after the filing window closes.
And again, Congressmen Doyle and Terry, thank you. When this Order frees up broadcast space
in the “Steel City” and the “Gateway to the West,” I’m sure your constituents will join us in praising you.
I for one can’t wait to tune in and further engage with the communities that I am committed to
serve, not only as a policymaker, but as a fellow citizen.
Thank you.
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STATEMENT OF

COMMISSIONER JESSICA ROSENWORCEL

Re:
Creation of a Low Power Radio Service, MM Docket No. 99-25
There are few things more compelling than the human voice. Think of the words of a storyteller;
the commanding sound of breaking news; the dulcet tones of a lullaby; and the wail of a singer
accompanied by a raucous band. The medium is made that much more meaningful when the voices are
local and speak directly to the needs and interests of the neighborhood. In these days of exploding global
online content, there is still great value and art in community broadcasting. That is why I am pleased to
support today’s decision.
This decision opens the door for non-profit associations, schools, religious organizations, and
public safety groups to provide new local content through low power radio broadcasting.
The road to today’s decision has been long, but that makes the arrival no less sweet.
Over a decade ago, in 2000, the Commission first authorized the creation of low power FM
(LPFM) stations to provide noncommercial, educational, and local groups with the opportunity to provide
a community-based radio service. The same year, Congress passed legislation delaying the removal of
third-adjacent channel separation requirements and also requiring the Commission to study interference
issues and report its findings. While “third- adjacent channel separation requirements” sounds technical
and small, it has had big impact, limiting the Commission’s ability to issue licenses for community
broadcasting, especially in urban areas.
However, for years, a stalwart group of legislators fought to change the law. It is an honor to
have Representative Doyle and Representative Terry join us today to celebrate this agency effort. They
are true heroes of community broadcasting who worked over multiple congresses to get the Local
Community Radio Act signed into law. They were determined. I know, because I spent quite a bit of
time during my tenure as staff on the Senate Commerce Committee assisting Senator Cantwell and
Senator McCain advance similar legislation in the Senate.
Tenacity, it turns out, has its rewards. And as a result, today we put the final pieces of
implementing the Local Community Radio Act in place. The Commission’s decision is balanced. It
protects full power stations while providing opportunities for new low power applicants. It also resolves
challenges to the procedures we adopted to process over 6000 applications that remain pending from
Auction 83—in a manner that is fair to both translator applicants and potential LPFM licensees.
Critically, we announce an October 15, 2013 target date for an open window for low power applicants,
giving them time to prepare for this new opportunity. It is an exciting time for community
broadcasting—because we can all look forward to new local voices on the FM dial.
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STATEMENT OF

COMMISSIONER AJIT PAI

Re:
Creation of a Low Power Radio Service, MM Docket No. 99-25
In the Local Community Radio Act of 2010, Congress sought to expand low-power FM while
protecting the operations of full-power broadcasters. I commend Representatives Lee Terry and Mike
Doyle for their leadership in crafting this legislation. Because today’s item reasonably maintains the
balance they and their colleagues struck in the Local Community Radio Act, I am pleased to support it.
The rules that we adopt today will enable the development of new low-power FM stations, which
can play a critical role in advancing the Commission’s diversity goals. To give one example from my
home state, there is currently a Chinese-language low-power FM station on the air in Manhattan, Kansas.
While you probably wouldn’t be surprised to hear Chinese-language radio stations on the air in the New
York City borough of Manhattan (what we Kansans refer to as “the other Manhattan”), the ability of a
Chinese-language station to broadcast in the hometown of Kansas State University is a testament to the
unique benefits that the low-power service can provide.
Perhaps the most contentious issue we face in today’s item involves second-adjacent channel
waivers. The Local Community Radio Act makes clear that in order to receive such a waiver, low-power
FM applicants must show that their operations will not “result in interference to any authorized radio
service.”1 That is the standard we codify in our rules today, and I am supporting this item with every
expectation that the Media Bureau will faithfully and firmly enforce it.
One thing missing from these rules is a requirement that a low-power station seeking a second-
adjacent waiver serve its request on potentially affected FM stations. Such a requirement would impose a
minimal burden and would make it easier for those FM broadcasters to weigh in early with any concerns.
I nonetheless encourage low-power applicants and full-power broadcasters to work together to address
potential interference problems before low-power stations commence operations, and I hope the Media
Bureau will alert full-power stations of second-adjacent waiver requests that may affect their operations.
Prolonged interference disputes will not serve anyone’s interests: not low-power operators, not full-power
broadcasters, and certainly not the listening public.
I would like to thank the Chairman and my colleagues for incorporating many of my other
suggestions into this item. For example, I am pleased that we are announcing October 15, 2013 as the
target date when the low-power filing window will open. This will encourage community organizations
to begin preparing applications and allow them to engage in more focused planning for establishing new
low-power stations.
Two other aspects of today’s order are notable. First, it resolves petitions for reconsideration
addressing thousands of pending Auction 83 FM translator applications. These applications were filed
way back in 2003, and it is time for the Commission to finish processing them.
Second, today’s item raises the per-market translator cap and relaxes the national cap. Raising
the per-market cap from one translator to three will provide broadcasters a better opportunity to extend
their service across large metropolitan areas. Moreover, the national cap of 50 translators would have
forced broadcasters into choosing between more service for rural America and more service in profitable
urban areas. I am grateful to the floor for adopting my suggestion and giving broadcasters the flexibility
to pursue up to 70 applications so long as no more than 50 are in the nation’s largest markets. This
change fulfills the purpose of section 307(b) of the Communications Act, which calls for us to “provide a


1 Local Community Radio Act of 2010, § 3(b)(2)(A).
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fair, efficient, and equitable distribution of radio service” among communities.
Finally, I would like to thank Peter Doyle, Tom Hutton, James Bradshaw, Heather Dixon, and
Kelly Donohue for their exemplary work on this item. The Bureau’s Audio Division has much work
ahead of it to implement today’s order, from processing thousands of pending translator applications to
addressing the large number of low-power applications I hope we will soon receive. I am confident that
the staff of the Audio Division will continue to discharge their responsibilities in a manner that makes us
all proud.
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