Federal Communications Commission
FCC 12-28
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
)
)
FIFTH REPORT AND ORDER, FOURTH FURTHER NOTICE OF PROPOSED
RULEMAKING AND FOURTH ORDER ON RECONSIDERATION
Adopted: March 19, 2012
Released: March 19, 2012
Comment Date: [30 days after date of publication in the Federal Register
]Reply Comment Date: [45 days after date of publication in the Federal Register]
By the Commission:
TABLE OF CONTENTS
HeadingParagraph #
I.
INTRODUCTION .................................................................................................................................. 1
II. BACKGROUND .................................................................................................................................... 2
III. FIFTH REPORT AND ORDER........................................................................................................... 10
A. Third-Adjacent Channel Minimum Distance Separation Requirements........................................ 11
B. Protection of Radio Reading Services............................................................................................ 12
IV. FOURTH FURTHER NOTICE OF PROPOSED RULEMAKING .................................................... 15
A. Changes to Technical Rules Required by the LCRA..................................................................... 15
1. Waiver of Second-Adjacent Channel Minimum Distance Separation Requirements ............. 16
2. Third-Adjacent Channel Interference Complaints and Remediation ...................................... 21
a. LPFM Interference Protection and Remediation Requirements ....................................... 26
b. Regime Applicable to Section 7(1) Stations ..................................................................... 31
c. Regime Applicable to Section 7(3) Stations ..................................................................... 33
d. Additional Interference Protection and Remediation Obligations .................................... 40
3. Translator Input Signals Complaint Procedure ....................................................................... 42
B. Other Rule Changes ....................................................................................................................... 47
1. Classes of Service.................................................................................................................... 48
2. Removal of I.F. Channel Minimum Distance Separation Requirements ................................ 52
3. Eligibility and Ownership........................................................................................................ 53
a. Requirement That Applicant Be Community-Based ........................................................ 53
b. Eligibility of Native Nations ............................................................................................. 54
c. Cross-Ownership............................................................................................................... 56
d. Multiple Ownership .......................................................................................................... 58
4. Selection Among Mutually Exclusive Applicants................................................................... 59
a. Point System ..................................................................................................................... 60
(i) Established Community Presence .............................................................................. 60
(ii) Local Program Origination......................................................................................... 63
(iii) Additional Selection Criteria...................................................................................... 64
b. First Tiebreaker, Voluntary Time Sharing........................................................................ 65
Federal Communications Commission
FCC 12-28
5. Operating Schedule, Time Sharing.......................................................................................... 66V. FOURTH ORDER ON RECONSIDERATION .................................................................................. 67
VI. TERMINATION OF SECOND FURTHER NOTICE.......................................................................... 72
VII.ADMINSTRATIVE MATTERS.......................................................................................................... 73
A. Filing Requirements....................................................................................................................... 73
B. Initial Regulatory Flexibility Analysis........................................................................................... 79
C. Paperwork Reduction Act Analysis ............................................................................................... 81
D. Congressional Review Act............................................................................................................. 82
VIII.
ORDERING CLAUSES ................................................................................................................ 83
APPENDIX A - Final Rules
APPENDIX B - Proposed Rules
APPENDIX C - Initial Regulatory Flexibility Act Analysis
I.
INTRODUCTION
1. In this Fifth Report and Order, we modify our rules to implement certain provisions of theLocal Community Radio Act of 2010 (“LCRA”),1 which unambiguously require the Commission to
eliminate its third-adjacent channel spacing requirements and to maintain the spacing requirements
currently in place to protect radio reading services. In the Fourth Further Notice of Proposed Rule
Making (“Fourth Further Notice”), we seek comment on proposals to amend our rules to implement the
remaining provisions of LCRA and to promote a more sustainable community radio service.2 These
changes are intended to advance the LCRA’s core goals of localism and diversity while preserving the
technical integrity of all of the FM services. In addition, we seek comment on proposals to reduce the
potential for licensing abuses. Lastly, in the Fourth Order on Reconsideration, we dismiss in part and
deny in part a petition for reconsideration of the Third Report and Order in this docket, which the
Commission released in 2007, and terminate the Second Further Notice of Proposed Rulemaking that
accompanied that order.3
1 Pub. L. No. 111-371, 124 Stat. 4072 (2011). We also dismiss the Petition for Rulemaking (“Petition”) filed by
REC Networks on July 16, 2004, which proposes changes to the Commission’s LPFM rules, and terminate
Proceeding No. PRM-04-MB, which the Media Bureau opened in response to the Petition. The Petition is moot in
light of the LCRA’s enactment and our adoption of this item to implement its provisions.
2 The Commission already has taken steps to implement Section 5 of the LCRA, which establishes a framework for
future FM translator and LPFM licensing activities. See LCRA, § 5; Creation of a Low Power Radio Service, Third
Further Notice of Proposed Rulemaking, 26 FCC Rcd 9986 (2011); Creation of a Low Power Radio Service, Fourth
Report and Order and Third Order on Reconsideration, MM Docket No. 99-25, FCC 12-29 (rel. Mar. 19, 2012)
(“Fourth Report and Order”). Likewise, the Media Bureau (“Bureau”) has taken steps to implement Section 8 of
the LCRA, which requires the Commission “to conduct an economic study on the impact that low-power FM
stations will have on full-service commercial FM stations” and to provide a report to Congress on that study within
one year of the LCRA’s enactment. See LCRA, § 8; Media Bureau Seeks Comment on the Economic Impact of Low
Power FM Stations on Full-Service Commercial FM Stations, Public Notice, 26 FCC Rcd 6565 (MB 2011);
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, MB Docket No. 11-83, DA 12-2 (MB rel. Jan. 5, 2012).
3 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” or “Second Further Notice”).
2
Federal Communications Commission
FCC 12-28
II.
BACKGROUND
2. In January 2000, the Commission adopted a Report and Order establishing the LPFMservice.4 In doing so, the Commission sought “to create a class of radio stations designed to serve very
localized communities or underrepresented groups within communities.”5 The Commission created two
classes of LPFM facilities. The LP100 class consists of stations with a maximum power of 100 watts
effective radiated power (“ERP”) at 30 meters antenna height above average terrain (“HAAT”), providing
an FM service radius (1 mV/m or 60 dBu) of approximately 3.5 miles.6 The LP10 class consists of
stations with a maximum of 10 watts ERP at 30 meters HAAT, providing an FM service radius of
approximately one to two miles. “[T]o preserve the integrity and technical excellence of existing FM
radio service,” the Commission adopted separation requirements for LPFM stations operating on co-,
first- and second-adjacent channels to full-service FM, FM translator and FM booster stations.7 The
Commission, however, declined to impose third adjacent channel distance separation requirements,8 and
declined to adopt special protections for radio reading services.9 The Commission specified that LPFM
stations operate on a “secondary” basis.10 In other words, LPFM stations generally cannot cause
interference to existing and future full-service FM and other “primary” stations and are not protected
against interference from these stations.
3. To ensure that any new LPFM service included the voices of community-based schools,
churches and civic organizations, the Commission established ownership and eligibility rules for the
LPFM service. Specifically, the Commission restricted LPFM service to noncommercial educational
(“NCE”) operations,11 and restricted licensee eligibility to applicants with no attributable interests in any
other broadcast station or other media subject to the Commission’s ownership rules.12 The Commission
also limited eligibility to local entities during the first two years LPFM licenses were available.13 To
choose among entities filing mutually exclusive applications for LPFM licenses, the Commission adopted
a point system that favors local ownership and locally-originated programming, with ties between
competing applicants resolved by either voluntary time-sharing agreements between such applicants or, in
the event that the applicants cannot agree, the imposition of “involuntary time-sharing,” with each tied
and grantable applicant awarded an equal, successive and non-renewable license term of no less than one
year, for a combined total eight-year term.14
4 Creation of Low Power Radio Service, Report and Order, 15 FCC Rcd 2205 (2000) (“Report and Order”).
5 Report and Order, 15 FCC Rcd at 2206, ¶ 1.
6 Id. at 2206, ¶ 2, 2211, ¶ 13, 2212, ¶ 14.
7 Id. at 2233-34, ¶¶ 70-71; 47 C.F.R. § 73.807.
8 Report and Order, 15 FCC Rcd at 2206, ¶ 2.
9 Id. at 2250, ¶ 115.
10 Id. at 2229-32, ¶¶ 60-67.
11 Id. at 2206, ¶ 1, 2208-09, ¶ 5, 2213-15, ¶¶ 17-20, 2215, ¶¶ 21-23.
12 Id. at 2206, ¶ 1, 2217-18, ¶¶ 29-30.
13 Id. at 2207. ¶ 1, 2215-16, ¶ 24.
14 Id. at 2258-60, ¶¶ 134-149.
3
Federal Communications Commission
FCC 12-28
4. In September 2000, the Commission adopted a Memorandum Opinion and Order onReconsideration.15 In the Reconsideration Order, the Commission revised and clarified some of its
LPFM rules, including the local program origination criterion adopted for the point system.16 The
Commission again declined to impose third-adjacent channel separation requirements.17 Instead, it
adopted complaint and license modification procedures to address any unexpected, significant third-
adjacent channel interference problems caused by LPFM stations.18 It also modified the spacing
standards to protect radio reading services and adopted procedures for addressing any interference caused
by an LPFM station to the input signal of an FM translator or FM booster station.19
5. Shortly thereafter, in December 2000, Congress enacted the Making Appropriations for the
Government of the District of Columbia for FY 2001 Act (“2001 D.C. Appropriations Act”).20 Therein,
Congress directed the Commission to prescribe third-adjacent channel spacing requirements for LPFM
stations, which the Commission did in April 2001.21 Congress also directed the Commission to conduct
an experimental program to evaluate the likelihood of interference to existing full-service FM stations and
FM translator stations if LPFM stations were not subject to third-adjacent channel spacing requirements,
and to submit a report that included the Commission’s recommendations regarding reduction or
elimination of the spacing requirements for third-adjacent channels. The Commission selected an
independent third party, the Mitre Corporation (“Mitre”), to conduct field tests. Mitre submitted a report
to the Commission, which, in turn, sought comment on the report.22 In February 2004, the Commission
submitted a report to Congress on this issue. Based on the Mitre study, the Commission recommended
that Congress “modify the statute to eliminate the third-adjacent channel distan[ce] separation
requirements for LPFM stations.”23
6. In March 2005, the Commission adopted a Second Order on Reconsideration and Further
Notice of Proposed Rulemaking.24 In the Second Order, the Commission modified some of the rules
governing the LPFM service, noting that the rules needed adjustment in light of the experiences of LPFM
applicants and licensees.25 In the accompanying Further Notice, the Commission sought comment on a
number of issues with respect to LPFM ownership restrictions and eligibility.26 The Commission also
15 Creation of a Low Power Radio Service, Memorandum Opinion and Order on Reconsideration, 15 FCC Rcd
19208 (2000) (“Reconsideration Order”).
16 Id. at 19246-47, ¶¶ 97-100.
17 Id. at 19212-19, ¶¶ 7-24.
18 Id. at 19232-35, ¶¶ 58-68.
19 Id. at 19218-19, ¶¶ 23-24, 19224, ¶ 41.
20 Pub. L. No. 106-553, 114 Stat. 2762 (2000).
21 Creation of a Low Power Radio Service, Second Report and Order, 16 FCC Rcd 8026 (2001) (“Second Report
and Order”).
22 See Comment Sought on the Mitre Corporation’s Technical Report, “Experimental Measurements of the Third-
Adjacent-Channel Impacts of Low-Power FM Stations,” Public Notice, 18 FCC Rcd 14445 (2003).
23 Report to the Congress on the Low Power FM Interference Testing Program, Pub. L. No. 106-553, 2004 FCC
LEXIS 842 (2004).
24 Creation of a Low Power Radio Service, Second Order on Reconsideration and Further Notice of Proposed
Rulemaking, 20 FCC Rcd 6763 (2005) (“Second Order” or “Further Notice”).
25 Id. at 6763, ¶ 1.
26 Id. at 6769-73, ¶¶ 16-23.
4
Federal Communications Commission
FCC 12-28
proposed certain changes to the rules governing the formation and duration of voluntary and involuntarytime-sharing arrangements among mutually exclusive LPFM applicants.27 Finally, the Commission
sought comment on a number of changes to the LPFM technical rules.28
7. In December 2007, the Commission released the Third Report and Order and Second Further
Notice. In the Third Report and Order, the Commission resolved the issues raised in the Further Notice.
Among other things, the Commission set forth an interim processing policy that it would use to consider
requests for waiver of the second-adjacent channel spacing requirements from certain LPFM stations,29
reinstated the local ownership requirement,30 and clarified its definition of local origination.31 The
Commission also modified the rules governing the formation and duration of voluntary and involuntary
time-sharing arrangements among mutually exclusive LPFM applicants.32 In the Second Further Notice,
the Commission proposed certain rule changes designed to avoid the potential loss of LPFM stations.
The Commission made these proposals “[i]n light of changed circumstances since [it] last considered the
issue of protection rights for LPFM stations from subsequently authorized full-service stations.”33 The
Commission sought comment on whether to codify the procedures for LPFM stations seeking a waiver of
the second-adjacent channel spacing requirements, whether rule changes were warranted to provide
additional flexibility to propose LPFM station modifications, whether to require full-service new station
and modification applicants to provide technical and/or financial assistance to potentially impacted LPFM
stations, whether to adopt contour protection-based licensing standards for LPFM stations, and whether to
modify the LPFM-FM translator protection priorities.
8. On January 4, 2011, President Obama signed the LCRA into law. Through the LCRA,
Congress expanded LPFM licensing opportunities. Specifically, Congress repealed the requirement that
LPFM stations operate a minimum distance from nearby stations operating on third-adjacent channels,34
and required the Commission to eliminate its third-adjacent channel minimum distance separation
requirements.35 Congress also authorized the Commission to waive the second-adjacent channel spacing
requirements if an LPFM station demonstrates that its proposed operations will not result in interference
to any authorized radio service.36 Further, it set forth criteria that the Commission must take into account
27 Id. at 6774, ¶¶ 24-25.
28 Id. at 6774- 81, ¶¶ 26-39.
29 Id. at 21939-40, ¶¶ 64-67
30 Id. at 21922, ¶ 24. See also 47 C.F.R. § 73.853(b). In so doing, the Commission noted that, “[a]lthough growing
in both usage and recognition, LPFM service is still in its nascence and doing away with the locality restriction
could threaten its predominantly local character, in particular the hallmark of a LPFM station’s local character, its
local origination of programming.” Id.
31 Id. at 21922-23, ¶ 24.
32 Id. at 21923-27, ¶¶ 26-36.
33 Second Further Notice, 22 FCC Rcd at 21913, ¶ 1.
34 LCRA, § 2 (modifying Section 632 of the 2001 D.C. Appropriations Act to eliminate the requirement that the
Commission prescribe third-adjacent channel spacing requirements).
35 LCRA, § 3(a) (“The Federal Communications Commission shall modify its rules to eliminate third-adjacent
minimum distance separation requirements between—(1) low-power FM stations; and (2) full-service FM stations,
FM translator stations, and FM booster stations.”).
36 LCRA, § 3(b)(2).
5
Federal Communications Commission
FCC 12-28
when licensing FM translator, FM booster and LPFM stations.379. As Congress expanded LPFM licensing opportunities, it also took steps to provide enhanced
interference protection to existing full-service FM, FM translator and FM booster stations. Specifically,
while Congress eliminated the third-adjacent channel spacing requirements, it required the Commission to
retain the spacing requirements that apply to LPFM stations operating on a third-adjacent channel to FM
stations that broadcast radio reading services.38 Congress also required the Commission to modify its
rules to “address the potential for predicted interference to FM translator input signals on third-adjacent
channels,”39 and to modify the interference protection and remediation requirements applicable to LPFM
stations operating on third-adjacent channels.40
III.
FIFTH REPORT AND ORDER
10. The LCRA unambiguously requires the Commission to eliminate its third-adjacent channelspacing requirements and to maintain the spacing requirements currently in place to protect radio reading
services. We do so in this Fifth Report and Order. We take these steps without providing prior public
notice and comment because they involve no discretion. We merely are revising our rules in the manner
specified in the legislation. Notice and comment would serve no purpose and thus are unnecessary. Our
actions fall within the “good cause” exception of the Administrative Procedure Act (“APA”).41
A.
Third-Adjacent Channel Minimum Distance Separation Requirements
11. Section 2 of the LCRA amends Section 632 of the 2001 D.C. Appropriations Act to delete therequirements that the Commission establish and maintain minimum distance separations for third-
37 LCRA, § 5 (“The Federal Communications Commission, when licensing new FM translator stations, FM booster
stations, and low-power FM stations, shall ensure that—(1) licenses are available to FM translator stations, FM
booster stations, and low-power FM stations; (2) such decisions are made based on the needs of the local
community; and (3) FM translator stations, FM booster stations, and low-power FM stations remain equal in status
and secondary to existing and modified full-service FM stations.”). Concurrent with the adoption of this decision,
the Commission is adopting a Fourth Report and Order in this docket, which, among other things, seeks to interpret
the Section 5 licensing standards. See supra note 2. Accordingly, we do not address Section 5 of the LCRA herein.
38 LCRA, § 4.
39 LCRA, § 6.
40 LCRA, § 7.
41 5 U.S.C. § 553(b)(B). See Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 (D.C.
Cir. 1982) (agency order, issued pursuant to congressional waiver of certain provisions of federal law that would
otherwise have governed construction and operation of Alaskan natural gas pipeline, was appropriately issued
without notice and comment as a nondiscretionary ministerial action). See also Implementation of the Satellite
Home Viewer Extension and Reauthorization Act of 2004; Procedural Rules, Order, 20 FCC Rcd 7780, 7780, ¶ 1
(2005) (finding good cause to adopt statutorily-mandated rule changes without prior notice and comment under
section 553(b)(B) of the APA where changes involved no agency discretion); Implementation of Section 505 of the
Telecommunications Act of 1996 (Scrambling of Sexually Explicit Adult Video Service Programming), Order and
Notice of Proposed Rulemaking, 11 FCC Rcd 5386, 5387, ¶ 3 (1996) (same); Implementation of Sections 204(A)
and 204(C) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), Order, 11 FCC Rcd
6363, 6364, ¶ 6 (1996) (same); Implementation of Sections 202(A) and 202(B)(1) of the Telecommunications Act of
1996 (Broadcast Radio Ownership), Order, 11 FCC Rcd 12368, 12371, ¶ 5 (1996) (same); Implementation of
Sections 202(c)(1) and 202(e) of the Telecommunications Act of 1996 (National Broadcast Television Ownership
and Dual Network Operations), Order, 11 FCC Rcd 12374, 12377, ¶ 7 (1996) (same).
6
Federal Communications Commission
FCC 12-28
adjacent channels.42 It essentially lays the groundwork for Section 3(a) of the LCRA, which requires theCommission to “modify its rules to eliminate third-adjacent minimum distance separation requirements
between—(1) low-power FM stations; and (2) full service FM stations, FM translator stations, and FM
booster stations.” Section 73.807 of the Commission’s rules currently sets forth these spacing
requirements.43 We hereby delete the provisions requiring protection of third-adjacent channel stations
set forth in that section, with the exception of Sections 73.807(a)(2), (b)(2) and (g).44
B.
Protection of Radio Reading Services
12. Radio reading services provide access to printed news and other information sources for blindor print-disabled persons.45 They are transmitted on one of several standardized subcarrier frequencies
within a 200 kHz FM channel.46 These transmissions cannot be received on a standard radio.47 Listeners
must use special radios that tune subcarrier signals to receive these services.48 When the Commission
established the LPFM service in 2000, it initially did not adopt any additional interference protections for
radio reading services.49 The Commission reasoned that subcarrier programming is transmitted within a
broadcast station’s assigned frequency and thus receives the same protection from interference as the
main broadcast programming of the station.50
42 While the LCRA amended Section 632, it did not alter that section’s requirement that the Commission “prescribe
protection for co-channels and first- and second-adjacent channels.” 2001 D.C. Appropriations Act, § 632. Indeed,
Section 3(b) of the LCRA bars the Commission from “amend[ing] its rules to reduce the minimum co-channel and
first- and second-adjacent channel distance separation requirements” in effect on the date of its enactment. LCRA, §
3(b).
43 47 C.F.R. § 73.807.
44 We retain the international third-adjacent channel protection requirements applicable to LPFM stations in border
areas. See 47 C.F.R. § 73.807(g). The bilateral broadcast treaties between the United States and Mexico and the
United States and Canada require their retention and nothing in the LCRA indicates that Congress intended to
amend these international agreements. See Agreement between the Government of Canada and the Government of
the United States of America Relating to the FM Broadcasting Service (available at
http://transition.fcc.gov/ib/sand/agree/files/can-bc/can-fm.pdf and http://transition.fcc.gov/ib/sand/agree/files/can-
bc/can-fm-r.pdf); Agreement between the Government of the United States of America and the Government of the
United Mexican States Relating to the FM Broadcasting Service in the Band 88-108 MHz (available at
http://transition.fcc.gov/ib/sand/agree/files/mex-bc/fmbc.pdf). As discussed infra Part III.B, per Section 4 of the
LCRA, we also retain the requirements set forth in Section 73.807(a)(2) and (b)(2), 47 C.F.R. §§ 73.807(a)(2) &
(b)(2), which require LPFM stations to comply with the second-adjacent channel spacing requirements with respect
to any third-adjacent channel FM station that broadcasts a radio reading service on its subcarrier frequency. In
addition, we seek comment below on whether to retain the third-adjacent channel distance separations specified in
Section 73.807(a)(1), (b)(1), (c), (d) and (g), 47 C.F.R. §§ 73.807(a)(1), (b)(1), (c), (d) & (g), in some form in order
to implement Section 7 of the LCRA. See discussion infra Part IV.A.2. Section 7 sets forth interference obligations
for LPFM stations that vary depending on whether an LPFM station would be considered short-spaced or fully-
spaced under the current third-adjacent channel spacing requirements. LCRA, §§ 7(1) & (3).
45 See Allowable Costs for Noncommercial FM Licensees to Charge Radio Reading Services, Policy Statement, 3
FCC Rcd 6323, 6323, ¶ 3 (1988) (“Radio Reading Services Policy Statement”).
46 Id.
47 Report and Order, 15 FCC Rcd at 2250, ¶ 115.
48 Radio Reading Services Policy Statement, 3 FCC Rcd at 6323, ¶ 3.
49 Report and Order, 15 FCC Rcd at 2250, ¶ 115.
50 Id.
7
Federal Communications Commission
FCC 12-28
13. The Commission reconsidered this decision shortly thereafter due to concerns about thegreater vulnerability of radio reading service receivers to third-adjacent channel interference. It noted
that, because of their designs, the subcarrier receivers used for radio reading services are more susceptible
to interference than mass marketed receivers.51 The Commission therefore modified the spacing
standards set forth in Section 73.807 of the rules to require LPFM stations to satisfy the second-adjacent
channel spacing requirements with respect to any third-adjacent channel FM station that broadcasts a
radio reading service via a subcarrier frequency.52
14. The Commission took this step because, at the time, it had declined to adopt generally
applicable third-adjacent channel spacing requirements. It later adopted such requirements at the
direction of Congress. These spacing requirements were identical to the second-adjacent channel spacing
requirements. Accordingly, while the Commission did not delete the protections specific to FM stations
providing radio reading services from the rules, the protections became redundant. Now, however, with
the elimination of the third-adjacent spacing requirements, these provisions again have relevance. In this
regard, Section 4 of the LCRA directs the Commission to “comply with existing minimum distance
separation requirements” for stations that broadcast radio reading services.53 Accordingly, we conclude
that we must retain without modification Sections 73.807(a)(2) and (b)(2) of our rules to implement
Section 4.
IV.
FOURTH FURTHER NOTICE OF PROPOSED RULEMAKING
A.
Changes to Technical Rules Required by the LCRA
15. A number of other provisions of the LCRA require Commission action. We seek commentbelow on how to amend our rules to most faithfully implement these remaining provisions of the LCRA
1.
Waiver of Second-Adjacent Channel Minimum Distance Separation
Requirements
LPFM station that will receive increased interference or be displaced by a new or modified full-service
FM station to seek waiver of the second-adjacent channel spacing requirements in connection with an
application to move the LPFM station to a new channel.54 The Commission found that circumstances had
changed considerably since it last considered the issue of protection rights for LPFM stations from
subsequently authorized full-service stations.55 Specifically, in late 2006, the Commission had
streamlined its licensing procedures, and announced the lifting of its freeze on the filing of community of
license modification applications.56 These actions resulted in “increased filings” that the Media Bureau
(“Bureau”) estimated could force approximately 40 LPFM stations to cease operations.57 For many of the
LPFM stations at risk of displacement, the Bureau had identified alternate channels that would require
51 Reconsideration Order, 15 FCC Rcd at 19219, ¶ 23.
52 Id. at 19219, ¶ 24. 47 C.F.R. §§ 73.807(a)(2) (LP100 stations), (b)(2) (LP10 stations).
53 See LCRA, § 4.
54 Third Report and Order, 22 FCC Rcd at 21939-40, ¶¶ 64-67.
55 Id. at 21938, ¶ 63.
56 Revision of Procedures Governing Amendments To FM Table of Allotments and Changes of Community of
License in the Radio Broadcast Services, Report and Order, 21 FCC Rcd 14212 (2006).
57 Third Report and Order, 22 FCC Rcd at 21938, ¶ 63.
8
Federal Communications Commission
FCC 12-28
waivers of the second-adjacent channel spacing requirements.58 To avoid “potential harm to this smallbut not insignificant number of LPFM stations,” the Commission adopted the waiver processing policy.59
In adopting this policy, the Commission relied on the general waiver provisions set forth in Section 1.3 of
the rules.60
17. Section 3(b)(2)(A) of the LCRA explicitly grants the Commission the authority to waive the
second-adjacent channel spacing requirements. Section 3(b)(2)(A) permits 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.”61
18. We tentatively conclude that the waiver standard set forth in Section 3(b)(2)(A) of the LCRA
supersedes the interim waiver processing policy adopted by the Commission in 2007. We note that,
under the interim waiver processing policy, when the Commission considers a waiver request, it
“balance[s] the potential for new interference to the full-service station at issue against the potential loss
of an LPFM station.”62 Section 3(b)(2)(A) of the LCRA, on the other hand, clearly requires an LPFM
station to establish that its proposed operations “will not result in interference to any authorized radio
service.” It leaves no room for balancing of the potential for interference with the potential for loss of
service. We seek comment on our tentative conclusion and our reasoning. We also seek comment on
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.”63 Section 74.1204(d) of the rules
permits a translator applicant to demonstrate that “no actual interference will occur” due to “lack of
population”64 and we have permitted translator applicants to use an undesired/desired signal strength ratio
methodology to narrowly define areas of potential interference when proposing to operate near another
station operating on a second- or third-adjacent channel.65 Are such showings consistent with the
statutory mandate to accept showings that a proposed LPFM service “will not result in interference to any
authorized radio service”? Should we permit the use of directional antennas in conjunction with
proposals attempting to protect second-adjacent stations?
19. We request comment on the factors that we should take into account and the showings we
should require when considering requests for waiver of the second-adjacent channel spacing
requirements. Should we require a showing that there are no fully-spaced channels available to the LPFM
applicant? Should we take into account that the proposal would eliminate or reduce the interference
received by the LPFM applicant? Should we consider whether the proposal would 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? Should we also take into account the interference protection and remediation
58 Id. at 21939, ¶ 64
59 Id.
60 The U.S. Court of Appeals for the D. C. Circuit upheld the Commission’s authority to adopt this policy under the
former statutory scheme. See FCC v. National Ass’n of Broadcasters, 569 F.3d 416 (D.C. Cir. 2009).
61 LCRA, § 3(b)(2)(A).
62 Third Report and Order, 22 FCC Rcd at 21939, ¶ 65.
63 47 C.F.R. § 74.1204(d).
64 Id.
65 Living Way Ministries, Inc., Memorandum Opinion and Order, 17 FCC Rcd 17054, 17056, ¶ 5 (2002), recon.
denied 23 FCC Rcd 15070 (2008).
9
Federal Communications Commission
FCC 12-28
obligations such short-spacing would trigger? Should we consider whether the proposal would result insuperior spacing to full-service FM, FM translator or FM booster stations operating on co- and first-
adjacent channels? Are there other factors or showings that we should consider?
20. Section 3(b)(2)(B) of the LCRA also sets out a framework for handling complaints when an
LPFM station operating pursuant to a second-adjacent channel waiver has caused interference to the
reception of any existing or modified full-service FM station “without regard to the location of the station
receiving interference.” Upon receipt of a complaint of interference caused by an LPFM station operating
pursuant to a second-adjacent channel waiver, the Commission must notify the LPFM station “by
telephone or other electronic communication within 1 business day.”66 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.”67 It may not resume operations “until such
interference has been eliminated or it can demonstrate . . . that the interference was not due to [its]
emissions.”68 The LPFM station, however, may “make short test transmissions during the period of
suspended operation to check the efficacy of remedial measures.”69 We propose to incorporate this
framework for handling complaints into the rules. We seek comment on this proposal. We also request
comment on whether and how we should define what constitutes a bona fide complaint that would trigger
the Commission’s obligation to notify the LPFM station at issue and that station’s obligation to suspend
operations. Finally, we solicit comment on whether and how to specify the showing an LPFM station
operating pursuant to a second-adjacent channel waiver must make to demonstrate that it was not the
source of the interference at issue.
2.
Third-Adjacent Channel Interference Complaints and Remediation
21. When the Commission created the LPFM service in 2000, it declined to impose third-adjacent channel distance separation requirements, stating “our own technical studies and our review of
the record persuade us that 100-watt LPFM stations operating without [third]-adjacent channel separation
requirements will not result in unacceptable new interference to the service of existing FM stations.”70
The Commission also noted that “imposing [third]-adjacent channel separation requirements on LPFM
stations would unnecessarily impede the opportunities for stations in this new service, particularly in
highly populated areas where there is a great demand for alternative forms of radio service.”71
22. Subsequently, on reconsideration, the Commission again declined to impose third-adjacent
channel separation requirements.72 However, it did establish complaint and license modification
procedures for third-adjacent channel interference. In doing so, the Commission stated:
Although we expect it to be the rare case where an LPFM station
operating on a [third-]adjacent channel causes more than a de minimis
level of interference within the service area of a full power station
protected by the distance separation requirements for other channel
66 LCRA, § 3(b)(2)(B)(iii).
67 LCRA, § 3(b)(2)(B)(i).
68 LCRA, § 3(b)(2)(B)(ii).
69 Id.
70 Report and Order, 15 FCC Rcd at 2206-07, ¶ 2.
71 Id. at 2207, ¶ 2.
72 Reconsideration Order, 15 FCC Rcd at 19212-19, ¶¶ 7-24.
10
Federal Communications Commission
FCC 12-28
relationships, such a result would be unacceptable if it were to occur.Accordingly, we conclude on reconsideration that it would be prudent to
establish procedures that would encourage cooperation between the
parties and permit the Commission to take prompt remedial action where
a significant level of interference can be traced to the commencement of
broadcasts by a new LPFM station.73
The procedures are set forth in Section 73.810 of the rules.74
23. As noted, in 2001, we adopted third-adjacent channel spacing requirements at the direction of
Congress. While we did not delete the third-adjacent channel complaint and license modification
procedures from our rules, with the adoption of the spacing requirements, the procedures became
irrelevant.75 Now, however, with the elimination of the third-adjacent spacing requirements under
Section 3 of the LCRA, a process for handling complaints of third-adjacent channel interference again has
relevance. Congress has recognized this.
24. Rather than simply utilize the procedures set forth in Section 73.810 of the rules, though,
Congress has opted to impose broader remediation obligations, which are set forth in Section 7 of the
LCRA. Specifically, Section 7 sets forth the following requirements:
·
Section 7(1) of the LCRA requires 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.”76 These obligations apply to LPFM stations that would be considered
short-spaced under the existing third-adjacent channel spacing requirements (“Section 7(1)
Stations”).77
73 Id. at 19232, ¶ 61.
74 47 C.F.R. § 73.810. Under Section 73.810, an LPFM station must address bona fide complaints of interference to
reception of the signal of a full-service FM station operating on a third-adjacent channel. The first stage of the
complaint process is designed to facilitate cooperative efforts between LPFM and full-service FM licensees to
identify and resolve bona fide interference complaints. The full-service FM station is required to provide copies of
bona fide complaints to the LPFM station believed to be the source of the interference. 47 C.F.R. §§ 73.810(a) &
(b). At that point, the LPFM station has the opportunity to resolve the individual interference complaints. 47 C.F.R.
§ 73.810(c). If the LPFM station concludes it is not the source of the interference at issue but the number of
unresolved complaints exceeds the lesser of one percent of the households within one kilometer of the LPFM
transmitter site or thirty households, the LPFM station and the full-service FM station must cooperate in “on-off”
testing to determine whether the LPFM station is the cause of the interference. 47 C.F.R. § 73.810(d). If the LPFM
and full-service stations fail to reach agreement and the number of unresolved complaints still exceeds the lesser of
one percent of the households within one kilometer of the LPFM transmitter site or thirty households, the full-
service FM station may request that the Commission initiate a proceeding to consider modifying or cancelling the
LPFM station’s license. 47 C.F.R. § 73.810(e).
75 If an LPFM station complied with the third-adjacent channel spacing requirements, it had no obligation to
remediate interference caused by its lawful operations. Report and Order, 15 FCC Rcd at 2231, ¶ 64.
76 LCRA, § 7(1). We note that Sections 74.1203(c) and (d) of the rules, 47 C.F.R. §§ 74.1203(c) & (d), contain
exemptions from the remediation requirements set forth in Sections 74.1203(a) and (b), 47 C.F.R. §§ 74.1203(a) &
(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. We do not discuss these provisions of Section 74.1203 further herein.
77 47 C.F.R. § 74.1203. Section 74.1203 of the rules provides that an FM translator station or FM booster station
“will not be permitted to continue to operate if it causes any actual interference” to an authorized broadcast station.
11
Federal Communications Commission
FCC 12-28
·Section 7(2) requires that a new LPFM station “constructed on a third-adjacent channel” must
“broadcast periodic announcements” that alert listeners that any interference they are
experiencing could be the result of the station’s operations and that instruct affected listeners to
contact the station to report any interference.78
·
Section 7(3) directs the Commission to modify Section 73.810 of the rules to require “[LPFM]
stations on third-adjacent channels … to address interference complaints within the protected
contour of an affected station” and encourage them to address “all other interference
complaints.”79
·
Section 7(4) 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 collocation
of the transmission facilities of the low-power FM station and any stations on third-adjacent
channels.”80
·
Section 7(5) requires the Commission to “permit the submission of informal evidence of
interference, including any engineering analysis that an affected station may commission,”
“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 “accept complaints of interference to mobile reception.”81
·
Section 7(6) requires the Commission to impose additional interference protection and
remediation obligations on one class of LPFM stations.82
25. Below, we discuss certain preliminary issues and tentatively 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 third-adjacent channel spacing requirements, and
one for LPFM stations that would not be considered short-spaced under those requirements. Then, we
proceed to discuss each of those regimes. Given the comprehensive nature of the regimes created by
Section 7, we propose to eliminate the existing interference complaint and remediation procedures set
forth in Section 73.810 of the rules and replace them with those set forth below.
a.
LPFM Interference Protection and Remediation Requirements
26. Section 7(1) and 7(3) of the LCRA both address the interference protection and remediationobligations 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 . . . .”83 With regard to such 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.”84 Section 7(3), in contrast, directs the Commission to
78 LCRA, § 7(2).
79 LCRA, § 7(3).
80 LCRA, § 7(4).
81 LCRA, § 7(5).
82 LCRA, § 7(6).
83 LCRA, § 7(1).
84 LCRA, § 7(1).
12
Federal Communications Commission
FCC 12-28
modify Section 73.810 of the rules to require “[LPFM] stations on third-adjacent channels … to addressinterference complaints within the protected contour of an affected station” and encourage them to
address “all other interference complaints.”85 We tentatively conclude that, through these two provisions,
Congress has created 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”).86 We seek
comment on this tentative conclusion.
27. We note that, 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), LPFM stations that would be considered short-spaced under third-adjacent channel spacing
requirements must “eliminate” any actual interference they cause to the signal of any authorized station in
areas where that station’s signal is “regularly used.”87 This requirement encompasses locations beyond
the authorized station’s protected contour. In contrast, Section 7(3) merely requires LPFM stations to
“address” complaints of interference occurring within a full-service FM station’s protected contour.88 To
conclude that Sections 7(1) and (3) both apply to Section 7(1) Stations would run afoul of one of the
cardinal rules of statutory construction – a statute should be read as a harmonious whole.89 We believe
our conclusion that Congress has created two different interference protection and remediation regimes is
the most reasonable reading of Section 7 of the LCRA as a whole. It makes sense that Congress would
impose more stringent interference protection and remediation obligations on stations that are located
nearest to full-service FM stations and have the greatest potential to cause interference. Moreover, our
reading is consistent with the general rule that, where a protection approach offers greater flexibility, that
flexibility is counter-balanced by more stringent interference remediation and protection requirements.90
The LCRA provides greater flexibility by eliminating third-adjacent channel spacing requirements for
LPFM stations, but counter-balances that flexibility with a prohibition on LPFM stations that would be
short-spaced under such requirements causing any actual interference to other stations.
28. Based on the text of Section 7(1) of the LCRA, we tentatively conclude that, although Section
3(a) of the LCRA mandates the elimination of the third-adjacent channel spacing requirements, we should
retain them solely for purposes of reference in order to implement that section. We seek comment on this
tentative conclusion and also on whether ultimately to retain the third-adjacent channel spacing
requirements in Section 73.807 for purposes of reference or transfer them to another section of the rules.
29. Sections 7(4) and (5) of the LCRA establish a number of requirements related to interference
protection and remediation. These range from a requirement that the Commission allow LPFM stations
85 LCRA, § 7(3).
86 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 are short-spaced to any full-service FM, FM translator or FM booster stations under the third-adjacent channel
spacing requirements that we eliminate in the Fifth Report and Order.
87 See 47 C.F.R. § 74.1203(a)(3) (emphasis added).
88 LCRA, § 7(3) (emphasis added).
89 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.”).
90 Further Notice, 20 FCC Rcd at 6779, ¶ 36.
13
Federal Communications Commission
FCC 12-28
on third-adjacent channels to remediate interference through collocation91 to requirements related to whatconstitutes a bona fide complaint of interference.92 We tentatively conclude these sections apply only to
Section 7(3) Stations. We seek comment on our tentative conclusion. We believe this is the most
reasonable reading of these provisions. We note that these provisions 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) subjects LPFM stations licensed at
locations that would be considered short-spaced under third-adjacent channel spacing requirements to the
interference protection and remediation regime set forth in Section 74.1203 of the rules. Thus, Section
7(1) Stations must remediate any actual interference caused by their operations or go off the air; must
respond to all complaints meeting the specifications set forth in Section 74.1203; and, must do so in the
manner described in that section. That Congress required our wholesale adoption of the well-established
and comprehensive regime in Section 74.1203 of the rules bolsters our tentative conclusion that Sections
7(4) and 7(5), which establish discrete requirements inconsistent with the Section 74.1203 regime, do not
apply to Section 7(1) stations.
30. Finally, we tentatively conclude that Sections 7(1), (2), (3), (4) and (5) of the LCRA apply
only to third-adjacent channel interference. While Congress did not specify the type of interference to
which these provisions apply, we believe this is the most reasonable reading of them. We note that, 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 those stations located on third-adjacent channels to LPFM stations and any interference
caused to them, which necessarily would be third-adjacent channel interference. We believe that 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. We seek comment on our tentative conclusion.
b.
Regime Applicable to Section 7(1) Stations
31. Section 7(1) Stations are subject to the same interference protection regime applicable to FMtranslator and booster stations, which is set forth in Section 74.1203 of the rules.93 As indicated above,
this regime is more stringent than that currently set forth in Section 73.810. 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 . . . .”94 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.95
An interfering FM translator station must remedy the interference or cease operation.96 The rule has been
interpreted broadly. It places no geographic or temporal limitation on complaints.97 It covers all types of
91 LCRA, § 7(4).
92 LCRA, § 7(5).
93 47 C.F.R. § 74.1203.
94 47 C.F.R. § 74.1203(a).
95 47 C.F.R. § 74.1203(a)(3). Today, an LPFM station must remedy only interference that occurs within the
predicted contour of an affected full-service FM station and within one kilometer of the LPFM station’s transmitter
site. See 47 C.F.R. §§ 73.810(b)(1) & (3).
96 47 C.F.R. § 74.1203(b).
97 See Association for Community Education, Inc., Memorandum Opinion and Order, 19 FCC Rcd 12682, 12688, ¶
15 (2004) (“Association for Community Education”).
14
Federal Communications Commission
FCC 12-28
interference. The reception affected can be that of a fixed or mobile receiver.98 The Commission also hasinterpreted “direct reception by the public” to limit actionable complaints to those that are made by bona
fide listeners.99 Thus, it has declined to credit claims of interference100 or lack of interference101 from
station personnel involved in an interference dispute. More generally, the Commission requires that a
complainant “be ‘disinterested,’ e.g., a person or entity without a legal stake in the outcome of the
translator station licensing proceeding.”102 The staff has routinely required a complainant to provide
his/her name, address, location(s) at which interference occurs, and a statement that the listener is, in fact,
a listener of the affected station. Moreover, as is the case with other types of interference complaints,103
the staff has considered only those complaints where the complainant cooperates in efforts to identify the
source of interference and accepts reasonable corrective measures.104 Accordingly, when the Commission
concludes that a bona fide listener has made an actionable complaint of uncorrected interference, it will
notify the station that “interference is being caused” and direct the station to discontinue operations.105
We seek comment on whether it would be appropriate to modify the regime set forth in Section 74.1203
in any way in order to apply it to Section 7(1) Stations and, if so, whether we have authority to make any
such changes in light of the statutory mandate 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.”
32. We also request comment on requiring newly constructed LPFM stations that would be
considered short-spaced under third-adjacent channel spacing requirements to make the same periodic
announcements required of third-adjacent channel LPFM stations that would not be considered short-
spaced under Section 7(2) of the LCRA. We see no reason to 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. Indeed,
there will be less distance separating Section 7(1) Stations and full-service FM stations on third-adjacent
channels and thus a greater potential for these stations to cause such interference, so that we believe
requiring announcements would serve the public interest. We note, 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.” Section 74.1203 does not
require an FM translator station to notify either the Commission or an affected station of an interference
complaint within 48 hours of the receipt of such a complaint.106 Accordingly, we seek comment on
98 Today, an LPFM station must remedy interference only to fixed receivers. See 47 C.F.R. § 73.810(b)(3).
99 See Association for Community Education, 19 FCC Rcd at 12688, ¶ 16.
100 See id.
101 See Living Way Ministries, Inc., Memorandum Opinion and Order, 23 FCC Rcd 15070, 15077 n.46 (2008).
102 Association for Community Education, 19 FCC Rcd at 12688 n.37.
103 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).
104 See Radio Power, Inc., 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).
105 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 (1990), modified 6 FCC Rcd 2334 (1991), recon.
denied, 8 FCC Rcd 5093 (1993); Association for Community Education, 19 FCC Rcd at 12688, ¶ 15.
106 See LCRA, § 7(2)(A).
15
Federal Communications Commission
FCC 12-28
whether we may impose this requirement on Section 7(1) Stations and, if so, whether we should.c.
Regime Applicable to Section 7(3) Stations
33. Section 7(3) of the LCRA requires the Commission to modify Section 73.810 of the rules torequire 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.”107 As noted above, we tentatively
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 the additional provisions below.
34. General Requirements. Unlike Section 7(1), Section 7(3) does not specifically refer to
Section 74.1203 of the rules. We request comment on whether the more lenient interference protection
obligations currently set forth in Section 73.810 should continue to apply to fully-spaced LPFM stations.
We note that, 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. What must a Section 7(3) Station do to “address” a complaint of
third-adjacent channel interference? Finally, we observe that 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 from a listener or another station. We seek comment on whether to
establish certain basic requirements for such complaints. For instance, should we require copies of such
complaints to be filed with the Bureau’s Audio Division? Should we require such complaints to specify
the call sign of the LPFM and/or affected full-service FM, FM translator or FM booster station? Should
we require the complainant to provide contact information?
35. Periodic Broadcast Announcements. Section 7(2) of the LCRA directs the Commission to
amend Section 73.810 of the rules to include certain requirements related to periodic broadcast
announcements. Section 7(2) instructs the Commission to require a newly constructed Section 7(3)
Station to broadcast periodic announcements that alert listeners to the potential for interference and
instruct them to contact the LPFM station to report any interference. These announcements must be
broadcast for a period of one year after construction. We seek comment on whether we should specify
the language to be used in these announcements and, if so, what to specify. We also seek comment on
whether we should mandate when and how often the announcements must be aired. We note that we
have done so with respect to other required announcements and that ensuring uniformity may reduce
listener confusion and provide regulatory certainty by allowing LPFM stations to be confident that they
have satisfied the requirements of Section 7(2).108
36. 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 receipt of such complaint. Finally, Section 7(2)
mandates that we require newly constructed Section 7(3) Stations on third-adjacent channels to cooperate
in addressing any such interference complaints. We seek comment on whether to specify the scope of
efforts which a Section 7(3) Station must undertake, and whether to relieve newly constructed Section
7(3) Stations on third-adjacent channels of their obligations to cooperate in instances where the
107 LCRA, § 7(3).
108 See 47 C.F.R. § 73.3580.
16
Federal Communications Commission
FCC 12-28
complainant does not reasonably cooperate with the LPFM stations’ remedial efforts.10937. Bona Fide Complaints. 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.
38. We request comment on whether any of the four criteria set forth in Section 73.810(b)(1) of
the rules remain relevant. We tentatively conclude that Section 7(5) 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 solicit comment on whether
we should retain the remaining criterion, which requires a bona fide complaint to be received within one
year of the date an LPFM station commenced broadcasts.110
39. 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 collocation of the transmission facilities of the low-power FM station and any
stations on third-adjacent channels.” We note that, per Section 3 of the LCRA, we are eliminating the
third-adjacent channel spacing requirements set forth in Section 73.807. We have identified no other
provision of our rules that would hinder our ability to offer the flexibility specified in Section 7(4) of the
LCRA. Accordingly, we tentatively conclude that we need not modify or eliminate any other provisions
of our rules to implement Section 7(4). We seek comment on this tentative conclusion.
d.
Additional Interference Protection and Remediation Obligations
40. One additional provision of Section 7 – Section 7(6) – requires the Commission to imposeadditional interference protection and remediation obligations on one class of LPFM stations.
Specifically, Section 7(6) of the LCRA 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.” 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. However, Congress has created an outer limit to the interference protection obligations in Section
109 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).
110 See 47 C.F.R. § 73.810(b)(4).
17
Federal Communications Commission
FCC 12-28
7(6). That outer limit is the co-channel spacing distance set forth in Section 73.807 of the rules for theaffected full-service station's class.
41. This statutory requirement is different than current policy. Today, if an LPFM station meets
the spacing requirements, it is “not required to eliminate interference caused to existing FM stations.”111
With the enactment of LCRA, at least with respect to full-service FM stations licensed to the significantly
populated states that meet the criteria set forth in Section 7(6), LPFM stations licensed after its effective
date must remediate any actual interference that occurs. We note that the Section 7(6) interference
requirements are, with one exception, unambiguous. We seek comment on how to interpret the term –
“States.” Only New Jersey and Puerto Rico satisfy the population and population density thresholds set
forth in Section 7(6). This raises the question of whether Congress intended the term “States” to include
the territories and possessions of the United States.
3.
Translator Input Signals Complaint Procedure
42. Section 6 of the LCRA requires the Commission to “modify its rules to address the potentialfor 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)’” (“Final Report”). Section 2.7 of the
Final Report finds that significant interference to translator input signals does not occur for
undesired/desired ratio values below 34 dB at the translator input. Section 2.7 sets out a formula (the
“Mitre Formula”) that allows calculation of the minimum LPFM-to-translator separation that will ensure
a undesired/desired ratio of 34 dB.112
43. The Commission currently requires LPFM stations to remediate actual interference to the
input signal of an FM translator station113 but has not established any minimum distance separation
requirements or other preventative measures.114 Based on the language of Section 6, which requires the
Commission to “address the potential for predicted interference,” we tentatively conclude that our
existing requirements regarding remediation of actual interference must be recast as licensing rules
designed to prevent any predicted interference.
44. We propose to adopt a basic threshold test. This test is designed to closely track the
interference standard developed by Mitre, without necessarily requiring LPFM applicants to obtain the
receive antenna technical characteristics that are incorporated into the Mitre Formula.115 We propose that
any application for a new or modified LPFM station construction permit may not use a transmitter site
111 Report and Order, 15 FCC Rcd at 2231, ¶ 64.
112 To calculate the minimum separation distance using this formula, an LPFM station must have the following
information: (1) its 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.
113 See 47 C.F.R. § 73.827. This essentially is the same process used to resolve allegations of interference caused by
one FM translator to the input signal of another FM translator. See Reconsideration Order, 15 FCC Rcd at 19224, ¶
41. See also, 47 C.F.R. § 74.1203.
114 See Reconsideration Order, 15 FCC Rcd, at 19224, ¶ 41 (specifically declining to make interference to the input
signal of an FM translator “a routine consideration prior to grant of an LPFM application” and instead providing
that, should such interference occur, an LPFM station must immediately cease operation until appropriate remedial
actions have been taken).
115 See Mitre Corporation’s Technical Report, “Experimental Measurements of the Third-Adjacent-Channel
Impacts of Low-Power FM Stations,” Section 2.7 or pages 2-16, 2-17, 2-18.
18
Federal Communications Commission
FCC 12-28
within the “potential interference area” of any FM translator station that receives directly off-air, thesignal of a third-adjacent channel FM station. For these purposes, we define the “potential interference
area” to be any area within 2 km of the translator site or any area within 10 km 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
station being rebroadcast by the translator. For example, if the primary station is located at 280 degrees
true (from the translator site), the LPFM station must not be within 10 km of the translator between the
azimuths 250 to 310 degrees true (from the translator site), and must be at least 2 km from the translator
tower site in all other directions. If an LPFM application proposes a transmitter site within the potential
interference area and fails to include an exhibit demonstrating lack of interference to the off-air reception,
we would dismiss the application as defective.116
45. We propose two ways for an LPFM applicant within the potential interference area to show
lack of interference to the input signal of a potentially affected translator. First, we propose, as indicated
in Section 2.7 of the Final Report, that LPFM applicants 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, we propose to allow use of the equation provided in Section 2.7 of the Final Report to
demonstrate lack of interference to the reception of the FM station at the translator transmitter site.117
Because we do not authorize translator receive antenna locations, we propose to assume that the translator
receive antenna is co-located with its associated translator transmit antenna. In addition, this equation
would require the horizontal plane pattern of the translator’s receive antenna. This information is not
typically available publicly or in the Consolidated Database System (“CDBS”). Therefore, we propose to
allow the use of a “typical” pattern in situations where an LPFM applicant is not able to obtain
information from the translator licensee, despite reasonable efforts to do so. We seek comment on this
proposal.
46. As with similar situations involving dismissals for violation of interference protection
requirements, we propose to permit LPFM applicants to seek reconsideration of a dismissal and
reinstatement nunc pro tunc by demonstrating that their proposals will not cause any actual interference to
the input signal of any FM translator station using either the ratio or the Mitre Formula. Furthermore, we
seek comment on whether this process should be applicable to only translators receiving FM station
signals, or also include those that receive third-adjacent channel translator signals directly off-air.118
B.
Other Rule Changes
47. In this Fourth Further Notice, we also propose changes to our rules intended to promote theLPFM service’s localism and diversity goals, reduce the potential for licensing abuses, and clarify certain
rules. We discuss these proposed changes below. We seek comment on whether these proposed changes
are consistent with the LCRA and whether they will promote the public interest.
116 See 47 C.F.R. § 73.3566(a).
117 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.
118 FM translators may rebroadcast the signals of other FM translators that are received directly over the air. 47
C.F.R. § 74.1231(b).
19
Federal Communications Commission
FCC 12-28
1.Classes of Service
48. As noted above, there are two classes of LPFM facilities: LP100 and LP10.119 TheCommission permits LP100 stations to operate with a maximum power of 100 watts ERP at 30 meters
HAAT. 120 LP10 stations may operate with a maximum power of 10 watts ERP at 30 meters HAAT.121
To date, the Commission has issued construction permits and licenses only for LP100 class facilities.
Accordingly, we seek comment on whether to eliminate the LP10 class of service.
49. In addition, we seek comment on whether to permit LPFM stations in smaller communities,
rural areas or “non-core” locations (i.e., areas outside population centers) in larger markets to increase
power levels to a maximum ERP of 250 watts at 30 meters HAAT, as urged by both the Amherst Alliance
(“Amherst”) and the Catholic Radio Association (“CRA”).122 Both Amherst and CRA support permitting
LPFM stations to operate with up to 250 watts ERP. They focus on the particular challenges of
maintaining economically viable LPFM stations in rural areas where population densities are low and
larger coverage areas are possible.
50. We seek comment on whether increased power levels could offset limited potential
audiences, promote LPFM station viability and expand radio service to areas where full service operations
may not be economically feasible. Such an approach would be consistent with the Commission’s
decision to adopt a more flexible definition of “local” applicant in non-urban areas.123 We note that this
potential revised maximum operating limit would put LPFM stations on similar footing to FM translator
stations which may operate with a maximum power of 250 watts ERP.124
51. We seek comment on whether establishing a higher power level for certain LPFM stations
would allow these stations to better meet the needs of their local communities. Notwithstanding the
potential service benefits, we also seek comment on whether an increase in the maximum LPFM power
level can be implemented in a manner that would not undermine the detailed LCRA protection standards
and interference remediation procedures, which are presumably grounded on the current LPFM maximum
power level. Such an increase in power for certain LPFM stations may be possible as we will be
maintaining or increasing the spacing requirements, not decreasing them.125 We also seek comment on
119 Report and Order, 15 FCC Rcd at 2206, ¶ 2, 2211, ¶ 13, 2212, ¶ 14.
120 Id. at 2211-12, ¶¶. 13-14 (2000); see also 47 C.F.R. § 73.811.
121 Id.
122 See, e.g., Comments of Amherst Alliance at 2 (Feb. 2, 2011); Comments of Catholic Radio Association at 8 (June
10, 2011).
123 47 C.F.R. § 73.853(b)(2).
124 47 C.F.R. § 74.1235.
125 When the Commission adopted the spacing requirements that LPFM stations must satisfy with respect to full-
service FM stations, it built a 20 kilometer “buffer” into the co- and first-adjacent spacing requirements. Report and
Order, 15 FCC Rcd at 2234, ¶ 71. It did so in order to “allow[ ] full-service stations room to move while also
reducing the potential impact on existing LPFM stations” and to afford LPFM stations “an increased likelihood that
[their] operation would not cause interference within a full service station’s community of license.” Id. In all cases,
the 20 kilometer buffer provides more protection than the increase from 100 watts to 250 watts ERP would offset.
Indeed, according to our calculations, the worst case scenario involving an LPFM station operating at 250 watts
instead of 100 watts ERP involves an LP250 station operating on the same channel as a Class B FM station. This
scenario would result in an 8.8 kilometer increase in the potential interference contour, which is far less than the 20
kilometer buffer built into the current spacing requirements. We note, however, that the Commission did not build a
buffer into the FM translator spacing requirements. Accordingly, we are proposing to require greater spacing
(continued….)
20
Federal Communications Commission
FCC 12-28
appropriate geographical restrictions for the higher powered LPFM operations. 126 For example, shouldwe permit increased power levels anywhere outside the top 100 markets and limit higher powered
operations in the top 20 markets to transmitter locations more than thirty kilometers from the center city
coordinates, in markets 21-50, to locations more than twenty kilometers from center city coordinates and
in markets 51-100, to locations more than ten kilometers from center city coordinates. Alternatively, we
seek comment on whether power limit increases should not be permitted anywhere in the top 50 markets
where we believe that licensing opportunities to be limited because of spectrum constraints and where
there may be population centers outside core market locations. We ask that commenters address whether
we should limit eligibility to operate in excess of the current 100 watts/30 meters maximum to previously
licensed LPFM facilities in order to provide those LPFM licensees that have demonstrated their ability to
construct and operate a limited opportunity to expand their listenership. Finally, we ask that commenters
address whether increasing the maximum LPFM power level could result in an increased potential for
interference. Specifically, should eligibility to increase power to 250 watts be limited to only those
stations that can fully satisfy co-, first-, and second-adjacent channel spacing requirements?
2.
Removal of I.F. Channel Minimum Distance Separation Requirements
52. LPFM stations are currently required to protect full-service stations on their intermediatefrequencies (“I.F.”), while translator stations operating with less than 100 watts ERP are not.127 We
recognize this disparity and propose to remove I.F. protection requirements for LPFM stations operating
with less than 100 watts. We believe the same reasoning that the Commission applied in exempting FM
translator stations operating with less than 100 watts ERP from the I.F. protection requirements applies
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.128 We note that FM allotments would
continue to be protected on the I.F. channels based on existing international agreements. We seek
comment on this proposal.
3.
Eligibility and Ownership
a.Requirement That Applicant Be Community-Based
53. The LPFM service is reserved solely to non-profit, community-based entities.129 However,we believe that the wording of Section 73.853 of the rules is unclear and could be read to require that an
applicant be “local” only at the time of application. Such a reading would contravene our intent in
adopting – and reinstating – the local ownership requirement, which rested on our predictive judgment
that “local entities with their roots in the community will be more attuned and responsive to the needs of
(Continued from previous page)
between LP250 stations and FM translator stations than we require between LP100 stations and FM translator
stations.
126 See Commencement of Rural First-Come, First-Served Digital Licensing for Low Power Television and TV
Translators Beginning August 25, 2009 and Commencement of Nationwide, First-Come, First-Served Digital
Licensing for Low Power Television and TV Translator Services Beginning January 25, 2010, Public Notice, 24
FCC Rcd 8911 (MB 2009) (restricting filing opportunity to applications specifying transmitter sites more than 121
kilometers from reference coordinates for top-100 television markets).
127 See 47 C.F.R. §§ 73.807, 74.1204(g).
128 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
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.”).
129 See 47 C.F.R. § 73.853.
21
Federal Communications Commission
FCC 12-28
that community, which have heretofore been underserved by commercial broadcasters.”130 We thereforepropose to clarify this requirement 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 ….” We seek comment on this proposed
requirement.
b.
Eligibility of Native Nations
54. The current version of Section 73.853 of the rules does not include federally recognizedAmerican Indian Tribes and Alaska Native Villages (“Native Nations”), consortia of Native Nations, or
entities majority owned by Native Nations or consortia, among the categories of eligible applicants for
stations in the LPFM service.131 We have recently expressed our commitment to assisting Native Nations
in establishing radio service to their members living on tribal lands, 132 including a Tribal Priority that we
incorporated into the threshold fair distribution analysis performed pursuant to Section 307(b) of the
Communications Act of 1934, as amended (“Act”), 133 when comparing mutually exclusive applications
for permits to construct new or modified full-service NCE FM stations that propose service to different
communities. 134 In keeping with this commitment, we seek comment in this Fourth Further Notice, inter
alia, on whether to modify the LPFM point system to award a point to a Native Nation proposing LPFM
service to its community.135 However, before we seek comment on Native Nation participation in LPFM
application proceedings, we must first ensure that, under our rules, Native Nations are eligible to apply
for stations in the LPFM service.
55. Accordingly, we propose to revise Section 73.853(a) of the rules by adding the following:
“(3) Tribal Applicants, as defined in Section 73.7000 of this Part, that will provide non-commercial radio
services.” We further propose to revise Section 73.853(b) of the rules by adding the following: “(4) In
the case of a Tribal Applicant, as defined in Section 73.7000 of this Part, the proposed site for the
transmitting antenna is located on that Tribal Applicant’s ‘Tribal Lands,’ as defined in Section 73.7000 of
this Part.” We believe that allowing Native Nations to hold LPFM licenses will be consistent with the
localism and diversity goals of the LPFM service and will further our goal of assisting Native Nations in
establishing radio service to their members on tribal lands.
130 Report and Order, 15 FCC Rcd at 2220, ¶ 34. See also, Third Report and Order, 22 FCC Rcd at 21923, ¶ 24
(“We view local origination as a central virtue of the LPFM service and therefore will reinstate the eligibility
restriction … to encourage local origination.”).
131 We use the term “Native Nations” herein. We note that in some previous decisions, the Commission has used
the term “Tribes” to denote federally recognized American Indian Tribes and Alaska Native Villages. See, e.g.,
Policies to Promote Rural Radio Service and to Streamline Allotment and Assignment Procedures, First Report and
Order, 25 FCC Rcd 1583, 1584, ¶ 1 (2010) (“Rural Radio First Report and Order”) (defining “Tribes” to mean
“federally recognized American Indian Tribes and Alaska Native Villages”).
132 See Rural Radio First Report and Order, 25 FCC Rcd at 1584-85, ¶¶ 4-5, modified, 26 FCC Rcd 2556 (2011)
(“Rural Radio Second Report and Order”), recon. pending.
133 47 U.S.C. § 307(b).
134 See 47 C.F.R. § 73.7002(b).
135 See infra paragraph 55. See also infra, paragraphs 57, 58 & 64.
22
Federal Communications Commission
FCC 12-28
c.Cross-Ownership
56. From the outset, the Commission has prohibited common ownership of an LPFM station andany other broadcast station, as well as other media subject to the Commission’s ownership rules.136 This
prohibition furthers 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.”137 We seek comment on whether to revise our rules to permit cross-ownership of
an LPFM station and an FM translator or translators. We note that this revision could enable LPFM
stations to expand their listenership and provide another way in which translators could serve the needs of
a community. We do not believe allowing limited cross-ownership of LPFM stations and FM translators
will have a negative effect on the diversity of ownership. However, we solicit comment on this issue. In
addition, we request comment on how cross-ownership of an LPFM station and an FM translator station
would impact the extremely localized service that LPFM stations provide. Finally, we solicit input on
whether to authorize such cross-ownership only if the FM translator rebroadcasts the programming of its
co-owned LPFM station; whether we should require some overlap of the 60 dBu contours of the cross-
owned stations; whether to set some distance or geographic limits on the cross-ownership; and whether to
permit an LPFM station to use an alternative signal delivery mechanism to deliver its signal to a
commonly owned FM translator.138
57. We also seek comment on whether to modify our cross-ownership rule to permit a full-
service radio station permittee or licensee that is a Native Nation or an entity owned or controlled by a
Native Nation to apply for an LPFM station and to hold an attributable interest in such station. We
believe this modification would enhance the ability of Native Nations to provide communications services
to their members on tribal lands without significantly undermining diversity of ownership. We seek
comment on whether this exception to the general cross-ownership prohibition should be limited to
situations where the Native Nation or Native Nation-controlled applicant demonstrates that it will serve
currently unserved tribal lands or populations.
d.
Multiple Ownership
58. To further its diversity goals and foster local, community-based service, the Commissionprohibits entities from owning more than one LPFM station in the same community.139 We seek
comment on whether we should permit Native Nations and entities owned or controlled by Native
Nations to seek more than one LPFM construction permit to ensure adequate coverage of tribal lands. For
instance, we could permit this when Native Nations and entities owned or controlled by Native Nations
seek to serve large, irregularly shaped or rural areas. Where this is the case, an applicant may be unable
to ensure adequate coverage of tribal members and tribal lands with one LPFM station. We also could
permit multiple ownership only when there are available channels for other applicants. In such instances,
there would be no risk that a new entrant would be precluded from offering service. We believe
permitting Native Nations to hold more than one LPFM license would advance the Commission’s efforts
to enhance the ability of Native Nations not only to receive radio service tailored to their specific needs
and cultures, but to increase ownership of such radio stations by Native Nations and entities owned or
136 47 C.F.R. § 73.860.
137 Report and Order, 15 FCC Rcd at 2217, ¶ 29.
138 See 47 C.F.R. § 74.1231(b) (discussing permissible signal delivery mechanisms for FM translators).
139 Report and Order, 15 FCC Rcd at 2216, ¶ 24. See also 47 C.F.R. § 73.855.
23
Federal Communications Commission
FCC 12-28
controlled by Native Nations.140 We seek comment on whether to accomplish this through amendment ofSection 73.855(a) of the rules or through waiver.
4.
Selection Among Mutually Exclusive Applicants
59. The Commission accepts applications for new LPFM stations or major changes to authorizedLPFM stations only during filing windows.141 After the close of an LPFM filing window, the
Commission makes mutual exclusivity determinations with regard to all timely and complete filings.142
The staff then processes and ultimately grants, dismisses or denies any applications not in conflict with
any other application filed during the window, and offers applicants identified as mutually exclusive with
other applicants the opportunity to settle their conflicts.143 If conflicts remain, the Commission applies
the point system it adopted when it established the LPFM service.144 Specifically, 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. In the event of a tie, the
Commission employs voluntary time-sharing as the initial tie-breaker. 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.145 Below, we propose certain changes to the manner
in which we process mutually exclusive LPFM applications. These changes are intended to better ensure
that we award LPFM licenses to those organizations most capable of serving the very localized
communities and underrepresented groups the LPFM service was designed to serve, and to improve the
efficiency of the selection process.
a.
Point System
(i)Established Community Presence
60. Currently, under the LPFM selection procedures for mutually exclusive LPFM applicationsset 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 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.146 In adopting this criterion, the Commission intended to “favor organizations that have
been operating in the communities where they propose to construct an LPFM station and thus have ‘track
records’ of community-service and established constituencies in their communities.”147 The Commission
believed that, because of their longstanding organizational ties to their communities, applicants with
established community presences were likely to be “more attuned to, and have organizational experience
addressing, the needs and interests of their communities.”
140 See, e.g., Rural Radio First Report and Order, 25 FCC Rcd at 1584-85, ¶¶ 4-5. See also Rural Radio Second
Report and Order, 26 FCC Rcd at 2557-58, ¶ 1, 2559-63, ¶¶ 6-11, 2584-87, ¶¶ 54-59 (modifying priority).
141 47 C.F.R. § 73.870(b).
142 47 C.F.R. § 73.870(d).
143 47 C.F.R. § 73.872(e).
144 47 C.F.R. § 73.872. See also, Report and Order, 15 FCC Rcd 2258-2264, ¶¶ 136-149.
145 Report and Order, 15 FCC Rcd at 2263-64, ¶ 149 .
146 47 C.F.R. § 73.872(b)(1).
147 Report and Order, 15 FCC Rcd at 2260, ¶ 140.
24
Federal Communications Commission
FCC 12-28
61. We propose to revise the language of Section 73.872(b)(1) to clarify that an applicant musthave 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 note that, while Section 73.872(b)(1)
currently does not include the requirement that an applicant maintain its local presence, we believe that is
the only reasonable interpretation of the rule. We seek comment on this proposed change to Section
73.872(b)(1).
62. In addition, we seek comment on three additional changes to the rule. First, we request
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. While this
change in the rules would result in a smaller pool of organizations that could earn this comparative point,
we believe it would better ensure that LPFM licensees are attuned to the local interests of the
communities they seek to serve. Alternatively, should we maintain the two-year threshold but also award
an additional point to applicants that have a substantially longer established community presence (e.g.,
four years)? Second, we solicit 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 note that such a change
would bring Section 73.872(b)(1) in line with Section 73.853(b).148 Finally, we seek 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. If we were to revise Section
73.872(b)(1) in this fashion, should we cap the number of points awarded to consortia at three? We note
that, currently, applicants tied with the highest number of points may enter into time-share agreements. In
such a situation, their points are aggregated. This proposal would operate in a similar fashion, except that
it would precede and potentially preclude post-filing point aggregation settlements. We believe this
proposed change could significantly promote diversity, speed the licensing process and provide further
incentive for applicants to enter into voluntary time-sharing arrangements in spectrum-limited areas.
However, we seek comment on whether there is any potential for abuse of such a change in the rules and,
if so, how we can prevent it. For instance, could this proposed rule change lead local organizations
interested in constructing and operating an LPFM station to recruit other local organizations that have no
interest in doing so to participate in a consortium in order to inflate the consortium’s point total?
(ii)
Local Program Origination
63. The Commission currently encourages LPFM stations to locally originate programming. Itdoes so by incorporating local program origination as one of the three one-point criteria used to select
among mutually exclusive applicants.149 In adopting the local program origination criterion, the
148 Section 73.853(b), 47 C.F.R. §73.853(b), specifies that only “local applicants” may submit applications for
LPFM licenses. It also defines “local” for these purposes. An applicant is “deemed local if it can certify that: (1)
The applicant, its local chapter or branch is physically headquartered or has a campus within 16.1 km (10 miles) of
the proposed site for the transmitting antenna for applicants in the top 50 urban markets, and 32.1 km (20 miles) for
applicants outside the top 50 urban markets; or (2) It has 75% of its board members residing within 16.1 km (10
miles) of the proposed site for the transmitting antenna for applicants in the top 50 urban markets and 32.1 km (20
miles) for applicants outside the top 50 urban markets …”. 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 Radio Project, 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.
149 Report and Order, 15 FCC Rcd at 2261-62, ¶ 144 (as part of the point analysis, the Commission awards one
point to each mutually exclusive applicant that pledges to provide at least eight hours of locally originated
programming). “Local origination” is “the production of programming, by the licensee, within ten miles of the
coordinates of the proposed transmitting antenna.” 47 C.F.R. § 73.872(b)(3).
(continued….)
25
Federal Communications Commission
FCC 12-28
Commission reasoned that “local program origination can advance the Commission’s policy goal ofaddressing 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.”150 We seek comment on whether to place greater
emphasis on this selection factor by awarding two points – instead of the one point currently awarded – to
an applicant that pledges to originate at least eight hours of programming each day. Do the limited
licensing opportunities for LPFM stations in major markets support giving greater weight to this
criterion? Does the potential for awarding up to three points to a consortium under the established
community presence criterion151 justify an increase in the points awarded under this criterion? Should we
modify the definition of local program origination for LPFM stations that serve rural areas? We request
that commenters specifically address whether increasing the weight of this criterion is warranted in light
of our previous finding that local programming is not the only programming of interest or value to
listeners in a particular locale.152 Alternately, should we impose a specific requirement that all new
LPFM licensees provide locally-originated programming? Parties supporting this proposal are requested
to show that the Commission’s prior finding is no longer valid and identify problems or short-comings in
the current LPFM licensing and service rules that this change would remedy. Parties supporting this
proposal also are requested to address any constitutional issues that it raises.
(iii)
Additional Selection Criteria
64. We seek comment on whether to develop additional selection criteria for the LPFM pointsystem in order to limit the number of involuntary time-share licensing outcomes. Specifically, we seek
comment on whether we should modify our point system to award a point to Native Nations and entities
owned or controlled by Native Nations, when they propose to provide LPFM service to Native Nation
communities. We note that this criterion would be similar to the “Tribal Priority”153 that we incorporated
into the threshold fair distribution analysis that we perform pursuant to Section 307(b) of the Act,154 when
we are faced with mutually exclusive applications for permits to construct new or modified full-service
FM, AM or NCE FM stations that propose service to different communities. That priority applies to
Native Nations and entities owned or controlled by Native Nations, when they propose new radio services
that primarily would serve Native Nation lands.155 We also note that we believe adoption of a Native
Nation selection criterion would further our efforts to increase ownership of radio stations by Native
Nations and entities owned or controlled by Native Nations and to enable Native Nations and such entities
to serve the unique needs and interests of their communities. Finally, in addition to seeking comment on
this “Native Nation” criterion, we invite the submission of additional proposals for new selection criteria,
provided they are (a) specifically linked to Commission policy, and (b) structured to withstand scrutiny
under applicable legal standards.
(Continued from previous page)
149 Report and Order, 15 FCC Rcd at 2262, ¶ 144.
150 Id.
151 See supra ¶ 62.
152 Report and Order, 15 FCC Rcd at 2272, ¶ 171.
153 Rural Radio First Report and Order, 25 FCC Rcd at 1585-97, ¶¶ 4-27. See also Rural Radio Second Report and
Order, 26 FCC Rcd at 2584-87, ¶¶ 54-59 (modifying priority).
154 47 U.S.C. § 307(b).
155 Rural Radio First Report and Order, 25 FCC Rcd at 1586, ¶ 5, 1597, ¶ 27.
26
Federal Communications Commission
FCC 12-28
b.First Tiebreaker, Voluntary Time Sharing
65. As noted above, in the event the point analysis results in a tie, the Commission employsvoluntary time-sharing as the initial tie-breaker. In these circumstances, the Commission releases a public
notice announcing the tie and gives the tied applicants the opportunity to propose voluntary time-sharing
arrangements.156 Currently, following the award of voluntary time-share construction permits, if one of
the participants in a voluntary time-sharing arrangement does not construct or surrenders its station
license after commencing operations, the remaining time-share participants are free to apportion the
vacant air-time as they see fit. We seek comment on the procedures we should adopt to address the
surrender or expiration of a construction permit – or the surrender of a license – issued to a participant in
a voluntary time-sharing arrangement. We note that the current policy regarding air-time
reapportionment presents the potential for abuse in the LPFM licensing process. For instance, out of a
group of tied mutually exclusive applicants, some could enter into a time-share arrangement in order to
aggregate their points and prevail over others with the knowledge that not all of the prevailing applicants
intend to build and operate their LPFM stations. We solicit comment on ways to reduce the potential for
abuse of the air-time reapportionment policy. Should we open a “mini-window” for the filing of
applications for the abandoned air-time? Could we limit eligibility to unsuccessful applicants from the
same mutually exclusive group in the initial window? Is such an approach consistent with Ashbacker
requirements?157 We believe limiting the applicant pool for a “mini-window” to unsuccessful
applications from the same mutually exclusive group will provide organizations with an incentive to
participate in the LPFM licensing process at the earliest opportunity (i.e., during the initial filing
window). It also will expedite the filling of dead air-time and promote the goal of reducing the potential
for abuse of the air-time reapportionment policy while minimizing the administrative complexities
involved. In this regard, we believe that the procedures we develop to select successor permittees and
licensees must operate efficiently. The air-time being filled will cover only a limited portion of each
broadcast day. We must balance our desire fill air-time with the need for administrative efficiency,
particularly as we anticipate the considerable licensing burdens that are likely to result from the upcoming
LPFM window. Under another approach, a non-prevailing applicant could express its interest in being
selected as a successor time share permittee in the event that the tentatively selected applications are
granted and either a permittee fails to construct or a licensee abandons its time. One option would be to
require the filing of such expressions of interest by the deadline for filing of petitions to deny the
applications of the tentative selectees. The staff then could identify the applicant with the highest point
total among those filing an expression of interest and retain this application in pending status. If we
modify our air-time reapportionment policy in voluntary time sharing situations to reduce the potential for
abuse, we propose that the changes would apply only during the first four years of licensed station
operations, as they do in the NCE FM licensing context. 158 If a time share licensee abandons its air-time
after the first four years of licensed station operations, we propose to allow the remaining time-share
participants to apportion the vacant air-time as they see fit just as they do under the current air-time
reapportionment policy. We seek comment on these proposals. Finally, we seek comment on whether, if
156 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 mutually exclusive 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.
157 Ashbacker Radio Corp. v. FCC, 326 U.S. 327 (1945).
158 Cf. 47 C.F.R. § 73.7005 (requiring permittees and licensees of new NCE stations to fulfill four-year “holding
period” commitments for construction permits awarded pursuant to comparative criteria).
27
Federal Communications Commission
FCC 12-28
we modify the established community presence criterion to award additional points to consortia,159 thesenew procedures also should apply to permits awarded under this modified criterion.
5.
Operating Schedule, Time Sharing
66. Currently, the Commission requires LPFM stations to meet the same minimum operatinghour requirements as full-service NCE FM stations.160 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.161 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,162 it has not done so for LPFM stations. We seek comment on whether we should extend this
mandatory time-sharing to the LPFM service. We believe that doing so could increase the number of
broadcast voices and promote additional diversity in radio voices and program services.
V.
FOURTH ORDER ON RECONSIDERATION
67. As noted above, in the Third Report and Order, the Commission adopted an interim waiverprocessing policy. The Commission also revised Section 73.809 and other provisions of the rules in order
to protect and preserve the LPFM service. Ace Radio Corporation (“Ace Radio”) filed a petition for
reconsideration (“Ace Radio Petition”) of the Third Report and Order, which opposed both the interim
waiver processing policy and the revisions made to Section 73.809.163 For the reasons discussed below,
we deny in part the Petition and defer consideration of the remainder of the Ace Radio’s arguments.
68. Ace Radio challenges the interim waiver processing policy. However, as discussed supra
IV.A.1, we tentatively conclude that Section 3(b)(2) of the LCRA supersedes this policy. We believe it is
appropriate to defer consideration of Ace Radio’s arguments regarding the interim waiver processing
policy until we have resolved this issue. To the extent Ace Radio’s arguments remain relevant, we will
consider them at that time.
69. We reject Ace Radio’s arguments regarding our revisions to Section 73.809 of the rules to
remove second-adjacent channels from the interference complaint procedures set forth therein. Ace
Radio first argues that it did not have an opportunity to comment on the Commission’s proposal to
modify Section 73.809 of the rules to remove second-adjacent channels from the rule. It also asserts that
the revisions to Section 73.809 are not justified by the record and, when coupled with the Commission’s
interim waiver processing policy, will allow LPFM stations to operate within a full-service station’s 70
dBu contour, resulting in interference holes, otherwise known as the “swiss cheese” effect.
70. The Commission provided ample public notice that it was considering modification of
Section 73.809 of the rules to remove second-adjacent channels. In the Further Notice, the Commission
explicitly raised the issue of “encroachment” and whether a relaxation of the second-adjacent channel
interference restrictions found in Section 73.809 of the rules was necessary to prevent LPFM stations
from being displaced.164 While Ace Radio argues that “the number of city of license applications filed
159 See supra ¶ 62.
160 Id. at 2276, ¶ 182. See also 47 C.F.R. §§ 73.561 & 73.850.
161 47 C.F.R. § 73.850(b).
162 47 C.F.R. § 73.561(b).
163 See Petition for Reconsideration of Ace Radio Corp. et al., filed Feb. 19, 2008. 47 C.F.R. § 73.809; Third Report
and Order, 22 FCC Rcd at 21938, ¶ 63
164 Further Notice, 20 FCC Rcd at 6780-81, ¶ 38(noting that “the public interest may favor continued LPFM second-
and third-adjacent channel operations over a subsequently authorized upgrade or new full-service station” and
(continued….)
28
Federal Communications Commission
FCC 12-28
does not justify [the Commission’s] action,”165 it fails to raise any facts or questions of law showing thatthe Commission's decision was incorrect. Contrary to Ace Radio’s suggestion that the number of LPFM
stations at risk of displacement is insignificant, the Bureau identified 44 LPFM stations that could be
forced to cease operations as a result of the filing activity resulting from the January 2007 lifting of the
freeze on the filing of FM community of license modification proposals combined with the
implementation of new streamlined licensing procedures.166
71. We also note that Ace Radio has mischaracterized the effects this rule modification will have
on signal reception within a full-service station’s 70 dBu contour. The diagram provided by Ace Radio
portrays the full 60 dBu contour of 118 hypothetical LPFM stations within the 70 dBu contour of a full-
service station.167 The fact that an LPFM station has a 60 dBu contour on a second- or third-adjacent
channel inside the 70 dBu contour of a full-service station does not establish that the LPFM station would
cause interference. Any potential interference received by the full-service station would be only in the
immediate vicinity of the low-power transmitter site, and can be substantially reduced or eliminated
through various technical measures.168 Finally, contrary to Ace Radio’s assertion, the Commission did
not, in its modification of Section 73.809, remove the second-adjacent restriction for the general
allocation processes for LPFMs. Rather, this rule change is limited to situations involving a full-service
station that is authorized subsequent to an LPFM station. As such, Ace Radio’s concerns are without
merit.
VI.
TERMINATION OF SECOND FURTHER NOTICE
72. As noted above, the Commission issued a Second Further Notice in 2007. We find that all ofthe proposals made in the Second Further Notice are either inconsistent with or otherwise mooted by the
LCRA. Specifically, the Commission proposed to codify the interim processing policy for second-
adjacent channel waiver requests that it adopted in the Third Report and Order.169 However, supra
Section IV.A.1, we conclude that the second-adjacent channel waiver provisions of the LCRA supersede
this interim policy. Accordingly, we find the Commission’s proposal to codify the interim policy to be
moot and will not pursue it further. Similarly, we find the Commission’s proposal to adopt a contour
(Continued from previous page)
stating “[w]e believe … that it would be useful to consider whether to limit the Section 73.809 interference
procedures to situations involving co- and first-adjacent channel predicted interference, where the predicted
interference areas are substantially greater than for second- and third-adjacent channel interference. Although the
effective service area of an LPFM station could be diminished as a result of a second- or third-adjacent channel full
service station ‘move-in,’ the predicted interference area to the full service station would be limited to a small area
in the immediate vicinity of the LPFM station transmitter site. In these circumstances, the public interest may favor
continued LPFM second- and third-adjacent channel operations over a subsequently authorized upgrade or new full
service station. We seek comment on whether to amend Section 73.809.”).
165 See Ace Radio Petition at 7. Ace Radio also questions our alleged reliance on a study prepared by REC
Networks. Id. at 4. In 2005, REC prepared a study that claimed that 134 LPFM stations were at risk of being
cancelled due to pending full-power station modification applications for vacant allotments. Third Report and
Order, 22 FCC Rcd at 21936-37, ¶ 60. While we cited to this study and its subsequent updates, we did not rely on
this claim to make our determination. To the contrary, we disagreed with REC as to the number of stations at risk
of displacement and we explicitly rejected REC’s argument that we should consider “signal degradation” as a basis
for modifying our rules. Id. at 21941-42, ¶ 72. Based on application filings, the Media Bureau estimated (and we
continue to believe) that about 40 stations are at risk of displacement. Id. at 21938, ¶ 63.
166 Third Report and Order, 22 FCC Rcd at 21938, ¶ 63.
167 Ace Radio Petition, Exhibit A.
168 Third Report and Order, 22 FCC Rcd at 21938, ¶ 63.
169 Second Further Notice, 22 FCC Rcd at 21942-43, ¶ 74.
29
Federal Communications Commission
FCC 12-28
overlap interference protection approach170 to be statutorily barred by Section 3(b)(1) of the LCRA, whichprohibits the Commission from modifying the current co-channel and first- and second-adjacent channel
distance separation requirements.171 We will not pursue this proposal either. Finally, the Commission
proposed certain rule changes related to LPFM station displacement,172 the obligations of full-service new
station and modification applicants to potentially impacted LPFM stations,173 and LPFM-FM translator
protection priorities.174 We believe that Congress’s adoption of the LCRA renders pursuit of those earlier
proposals unnecessary at this time. Thus, we will not move forward with any of them. Given our
findings regarding each of the proposals set forth by the Commission in the Second Further Notice, we
consider the Second Further Notice to have been concluded.
VII.
ADMINSTRATIVE MATTERS
A.
Filing Requirements
73. Ex Parte Rules. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission’s ex parte rules. Persons making ex parte
presentations must file a copy of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting
at which the ex parte presentation was made, and (2) summarize all data presented and arguments made
during the presentation. If the presentation consisted in whole or in part of the presentation of data or
arguments already reflected in the presenter’s written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or arguments in his or her prior comments,
memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or
arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given
to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be
filed consistent with Section 1.1206(b) of the rules.175 In proceedings governed by Section 1.49(f) of the
rules or for which the Commission has made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must
be filed through the electronic comment filing system available for that proceeding, and must be filed in
their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should
familiarize themselves with the Commission’s ex parte rules.
74. Comments and Reply Comments. Pursuant to Sections 1.415 and 1.419 of the rules,176
interested parties may file comments and reply comments on or before the dates indicated on the first
page of this document. Comments may be filed using the Commission’s Electronic Comment Filing
System (“ECFS”).177
170 Id. at 21945, ¶ 83
171 LCRA, § 3(b)(1).
172 Second Further Notice, 22 FCC Rcd at 21943, ¶ 75
173 Id. at 21943-44, ¶¶ 76-77.
174 Id. at 21946, ¶ 84
175 47 C.F.R. § 1.1206(b).
176 47 C.F.R. §§ 1.415, 1.419.
177 See Electronic Filing of Documents in Rulemaking Proceedings, Memorandum Opinion and Order, 63 Fed. Reg.
24121 (1998).
30
Federal Communications Commission
FCC 12-28
75. Electronic Filers. Comments may be filed electronically using the Internet by accessing theECFS: http://fjallfoss.fcc.gov/ecfs2/.
76. Paper Filers. Parties who choose to file by paper must file an original and one copy of each
filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or rulemaking number.
77. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by
first-class or overnight U.S. Postal. All filings must be addressed to the Commission’s Secretary, Office
of the Secretary, Federal Communications Commission.
·
All hand-delivered or messenger-delivered paper filings for the Commission’s
Secretary must be delivered to FCC Headquarters at 445 12th Street, SW, Room
TW-A325, Washington, D.C. 20554. The filing hours at this location are 8:00
a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or
fasteners. Any envelopes must be disposed of before entering the building.
·
Commercial overnight mail (other than U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD
20743.
·
U.S. Postal Service first-class, Express, and Priority Mail must be addressed to
445 12th Street, SW, Washington, D.C. 20554.
78. People with Disabilities. To request materials in accessible formats for people with
disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov, or call
the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
B.
Initial Regulatory Flexibility Analysis
79. The Regulatory Flexibility Act of 1980, as amended (“RFA”), requires that a regulatoryflexibility analysis be prepared for notice and comment rule making proceedings, unless the agency
certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial
number of small entities.” The RFA generally defines the term “small entity” as having the same
meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In
addition, the term “small business” has the same meaning as the term “small business concern” under the
Small Business Act. A “small business concern” is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the
Small Business Administration (SBA).
80. With respect to this Fourth Further Notice, an Initial Regulatory Flexibility Analysis
(“IRFA”) under the RFA178 is contained in Appendix C. Written public comments are requested in the
IRFA, and must be filed in accordance with the same filing deadlines as comments on the Fourth Further
Notice, with a distinct heading designating them as responses to the IRFA. The Commission will send a
copy of this Fourth Further Notice, including the IRFA, in a report to Congress pursuant to the
Congressional Review Act. In addition, a copy of this Fourth Further Notice and the IRFA will be sent
to the Chief Counsel for Advocacy of the SBA, and will be published in the Federal Register.
C.
Paperwork Reduction Act Analysis
81. This Fourth Further Notice seeks comment on a potential new or revised information178 See 5 U.S.C. § 603.
31
Federal Communications Commission
FCC 12-28
collection requirement. If the Commission adopts any new or revised information collection requirementthe Commission will publish a notice in the Federal Register inviting the public to comment on the
requirement, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-
3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), the Commission will seek specific comment on how it might “further reduce
the information collection burden for small business concerns with fewer than 25 employees.
D.
Congressional Review Act
82.The Commission will send a copy of this Fifth Report and Order to Congress and the
Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
VIII.
ORDERING CLAUSES
83. Accordingly, IT IS ORDERED, pursuant to the authority contained in the Local CommunityRadio Act of 2010, Pub. L. No. 111-371, 124 Stat. 4072 (2011), and Sections 1, 2, 4(i), 303, 307, and
309(j) of the Communications Act of 1934, 47 U.S.C §§ 151, 152, 154(i), 303, 307, and 309(j), that this
Fifth Report and Order, Fourth Further Notice of Proposed Rulemaking and Fourth Order on
Reconsideration IS ADOPTED.
84. IT IS FURTHER ORDERED that pursuant to the authority contained in the Local
Community Radio Act of 2010, Pub. L. No. 111-371, 124 Stat. 4072 (2011), and Sections 1, 2, 4(i), 303,
and 307 of the Communications Act of 1934, 47 U.S.C. §§ 151, 152, 154(i), 303, and 307, the
Commission’s rules ARE HEREBY AMENDED as set forth in Appendix A. It is our intention in
adopting these rule changes that, if any provision of the rules is held invalid by any court of competent
jurisdiction, the remaining provisions shall remain in effect to the fullest extent permitted by law.
85. IT IS FURTHER ORDERED that the rules as revised in Appendix A SHALL BE
EFFECTIVE 60 days after publication of the Fifth Report and Order, Fourth Further Notice of Proposed
Rulemaking and Fourth Order on Reconsideration in the Federal Register.
86. IT IS FURTHER ORDERED that the Petition for Rulemaking filed by REC Networks on
July 16, 2004, IS HEREBY DISMISSED, and Proceeding No. PRM-04-MB IS TERMINATED.
87. IT IS FURTHER ORDERED that the Petition for Reconsideration filed by Ace Radio Corp.
on February 19, 2008, IS DENIED IN PART.
88. IT IS FURTHER ORDERED that the Second Further Notice of Proposed Rulemaking in MM
Docket No. 99-25 IS TERMINATED.
89. IT IS FURTHER ORDERED that the Consumer and Governmental Affairs Bureau,
Reference Information Center, SHALL SEND a copy of this Fifth Report and Order, Fourth Further
Notice of Proposed Rulemaking and Fourth Order on Reconsideration, including the Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration, and shall
cause it to be published in the Federal Register.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
32
Federal Communications Commission
FCC 12-28
APPENDIX A
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 by revising the introductory text that precedes paragraph (a) to read as
follows:
§ 73.807 Minimum distance separation between stations.
Minimum separation requirements for LP100 and LP10 stations, as defined in §§ 73.811 and 73.853, are
listed in the following paragraphs. An LPFM station will not be authorized unless the co-channel, first-
and second-adjacent and IF channel separations are met. An LPFM station need not satisfy the third-
adjacent channel separations listed in paragraphs (a) through (d) in order to be authorized. 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 and I.F. channels, the required minimum distance separation is
sufficient to avoid interference received from other stations.
* * * * *
Federal Communications Commission
FCC 12-28
APPENDIX B
Proposed Rules
The Federal Communications Commission proposes to amend Part 73 of Title 47 of the Code of
Federal Regulations as follows:
Section 73.807 is amended to read as follows:
§ 73.807 Minimum distance separation between stations.
Minimum separation requirements for LP250 and LP100 stations, as defined in §§ 73.811 and
73.853, are listed in the following paragraphs. Except as noted below, an LPFM station will not be
authorized unless the co-channel, first- and second-adjacent and I.F. channel separations are met. An
LPFM station need not satisfy the third-adjacent channel separations listed in paragraphs (a) through (d)
in order to be authorized. These third-adjacent channel separations are included for informational
purposes only.
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 and intermediate frequency (I.F.) channels, the required
minimum distance separation is sufficient to avoid interference received from other stations.
(a)(1) An LP100 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 for LP100
stations, authorized LP250 and LP100 stations, LP250 and LP100 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.
Co-channel minimum
First-adjacent channel
Second and
separation (km)
minimum separation (km)
third
I.F. channel
adjacent
minimum
channel
separations
For no
Station class protected by LP100
For no
minimum
interference
interference
separation
received
Required
received from
Required
(km)
from
max. class
max. class
10.6 or 10.8
facility
facility
MHz
Required
LP100 ................................................
24
24
14
14
None
None
LP250
26
29
15
16
None
None
D ........................................................
24
24
13
13
6
3
A ........................................................
67
92
56
56
29
6
B1 ......................................................
87
119
74
74
46
9
B ........................................................
112
143
97
97
67
12
C3 ......................................................
78
119
67
67
40
9
C2 ......................................................
91
143
80
84
53
12
C1 ......................................................
111
178
100
111
73
20
C0 ......................................................
122
193
111
130
84
22
C ........................................................
130
203
120
142
93
28
Federal Communications Commission
FCC 12-28
(a)(2) LP100 stations must satisfy the second-adjacent channel minimum distance separationrequirements 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.
(a)(3) An LP250 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 for LP250
stations, authorized LP250 and LP100 stations, LP250 and LP100 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.
Co-channel minimum
First-adjacent channel
Second and
separation (km)
minimum separation (km)
third
I.F. channel
adjacent
minimum
channel
separations
Station class protected by LP250
For no
For no
minimum
interference
interference
separation
received
Required
received from
Required
(km)
from
max. class
max. class
10.6 or 10.8
facility
facility
Required
MHz
LP100 ................................................
29
26
16
15
None
None
LP250.................................................
31
31
17
17
None
None
D ........................................................
29
26
16
15
7
3
A ........................................................
67
92
56
56
30
6
B1 ......................................................
87
119
74
74
47
9
B ........................................................
112
143
97
97
68
12
C3 ......................................................
78
119
67
67
41
9
C2 ......................................................
91
143
80
84
54
12
C1 ......................................................
111
178
100
111
74
20
C0 ......................................................
122
193
111
130
85
22
C ........................................................
130
203
120
142
94
28
(a)(4) LP250 stations must satisfy the second-adjacent channel minimum distance separation
requirements of paragraph (a)(3) 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.
(a)(5) LP100 stations operating with less than 100 watts effective radiated power (ERP) need not
satisfy the I.F. channel minimum separations requirements.
(b)(1) In addition to meeting or exceeding the minimum separations in paragraph (a), new LP100
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:
Second and
I.F. channel
Co-channel minimum
First-adjacent channel
Station class protected by LP100
third
minimum
separation (km)
minimum separation (km)
adjacent
separations—
35
Federal Communications Commission
FCC 12-28
channel10.6 or 10.8
For no
For no
minimum
MHz
interference
interference
separation
received
Required
received from
Required
(km)—
from
max. class
required
max. class
facility
facility
A ........................................................
80
111
70
70
42
9
B1 ......................................................
95
128
82
82
53
11
B ........................................................
138
179
123
123
92
19
(b)(2) In addition to meeting or exceeding the minimum separations in paragraph (a), new LP250
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:
Co-channel minimum
First-adjacent channel
separation (km)
minimum separation (km)
Second and
third
I.F. channel
adjacent
For no
minimum
channel
Station class protected by LP250
For no
interference
separations—
interference
minimum
received
10.6 or 10.8
Required
received from
Required
separation
from
MHz
max. class
(km)—
max. class
facility
required
facility
A ........................................................
80
111
70
70
43
9
B1 ......................................................
95
128
82
82
54
11
B ........................................................
138
179
123
123
93
19
(b)(3) LP 100 stations operating with less than 100 watts ERP need not satisfy the I.F. channel
minimum separations requirements.
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 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), LP100
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.
Second and
I.F. channel
Co-channel minimum
First-adjacent channel
Distance to FM translator 60 dBu contour
third
minimum
separation (km)
minimum separation (km)
adjacent
separations
36
Federal Communications Commission
FCC 12-28
channel(km)
For no
For no
minimum
10.6 or 10.8
interference
Required
interference
Required
separation
MHz
received
received
(km)—
required
13.3 km or greater...........................................
39
67
28
35
21
5
Greater than 7.3 km, but less than 13.3 km ….
32
51
21
26
14
5
7.3 km or less
26
30
15
16
8
5
(c)(2) In addition to meeting the separations specified in paragraphs (a) and (b), LP250
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:
Second and
Co-channel minimum
First-adjacent channel
third
I.F. channel
separation (km)
minimum separation (km)
adjacent
minimum
channel
separations
Distance to FM translator 60 dBu contour
For no
For no
minimum
(km)
interference
Required
interference
Required
separation
10.6 or 10.8
received
received
(km)—
MHz
required
13.3 km or greater...........................................
44
67
30
37
22
4
Greater than 7.3 km, but less than 13.3 km ….
37
51
23
27
15
4
7.3 km or less
31
30
17
18
9
3
(c)(3) LP100 stations operating with less than 100 watts ERP need not satisfy the I.F. channel
minimum separations requirements.
(d) Existing LP250 and LP100 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) 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.
(f) International considerations within the border zones.
(1) Within 320 km of the Canadian border, LP100 stations must meet the following minimum
separations with respect to any Canadian stations:
Canadian station class
Co-channel
First-
Second-
Third-
Intermediate
(km)
adjacent
adjacent
adjacent
frequency
37
Federal Communications Commission
FCC 12-28
channelchannel
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 Canadian border, LP250 stations must meet the following minimum
separations with respect to any Canadian stations:
First-
Second-
Third-
Intermediate
Co-channel
adjacent
adjacent
adjacent
frequency
Canadian station class
(km)
channel
channel
channel
(IF) channel
(km)
(km)
(km)
(km)
A1 & Low Power …………………………….............................
54
33
22
20
4
A ………………………………………………………………...
74
53
42
40
6
B1 …………………………………………….............................
86
65
54
52
9
B ………………………………………………………………...
101
79
68
67
12
C1 …………………………………………….............................
122
101
90
88
19
C ………………………………………………………………...
132
111
100
98
26
(3) Within 320 km of the Mexican border, LP100 stations must meet the following
separations with respect to any Mexican stations:
First-
Second- and
Intermediate
Co-channel
adjacent
third-
frequency
Mexican station class
(km)
channel
adjacent
(IF) channel
(km)
channel (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
(4) Within 320 km of the Mexican border, LP250 stations must meet the following
separations with respect to any Mexican stations:
Mexican station class
Co-channel
First-
Second- and
Intermediate
38
Federal Communications Commission
FCC 12-28
(km)adjacent
third-
frequency
channel
adjacent
(IF) channel
(km)
channel (km)
(km)
Low Power …………………. …………………………….............................
33
19
10
3
A ……………………………………………………………….......................
48
34
26
6
AA ……………………………………………………………………………
52
38
30
6
B1 …………………………………………….................................................
73
57
46
9
B ……………………………………………………………….......................
101
79
68
12
C1 …………………………………………….................................................
96
83
74
19
C ……………………………………………………………….......................
116
102
93
26
(5) 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.
(6) 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.
2.
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 and is protected from any condition of interference to the direct
reception of its signal caused by such LPFM station operating on an intermediate frequency (IF) channel
with more than 100 watts ERP, provided that the interference is predicted to occur and actually occurs
within: (i)
* * * * *
3.
Section 73.811 is amended by adding a new paragraph (a), shifting the text of existing paragraph
(a) to paragraph (b), and deleting previous paragraph (b) as follows:
§ 73.811 LPFM power and antenna height requirements.
(a) LP250 stations: (1) Maximum facilities. LP250 stations will be authorized to operate with
maximum facilities of 250 watts effective radiated power (ERP) at 30 meters antenna height above
average terrain (HAAT). An LP250 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 7.1 kilometers. In no
event will an ERP less than one watt be authorized.
(2) Minimum facilities. LP250 stations may not operate with facilities less than 101 watts
39
Federal Communications Commission
FCC 12-28
ERP at 30 meters HAAT or the equivalent necessary to produce a 60 dBu contour that extends at least 5.7kilometers.
(b) LP100 stations: (1) Maximum facilities. LP100 stations will be authorized to operate with
maximum facilities of 100 watts ERP at 30 meters HAAT. An LP100 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.
(2) Minimum facilities. LP100 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.
4.
Section 73.816(c) is amended to read as follows:
§ 73.816 Antennas.
* * * * *
(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. In no event may composite antennas
(i.e., antennas that consist of multiple stacked and/or phased discrete transmitting antennas) and/or
transmitters be employed.
(2) LPFM permittees and licensees may utilize directional antennas for the purpose of preventing
interference to a second-adjacent channel station when requesting a waiver of the second-adjacent
channel minimum distance separations set forth in Section 73.807.
* * * * *
5.
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.
Class LP100
Class LP250 to
FM channel
to TV channel 6
TV channel 6
number
(km)
(km)
201
140
143
202
138
141
203
137
139
204
136
138
205
135
136
206
133
135
40
Federal Communications Commission
FCC 12-28
207133
133
208
133
133
209
133
133
210
133
133
211
133
133
212
132
133
213
132
133
214
132
132
215
131
132
216
131
132
217
131
132
218
131
131
219
130
131
220
130
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.
Class LP100
Class LP250 to
FM channel
to TV channel 6
TV channel 6
number
(km)
(km)
201
98
101
202
97
99
203
95
97
204
94
96
205
93
94
206
91
93
207
91
92
208
91
92
209
91
92
210
91
92
211
91
92
212
90
91
213
90
91
214
90
91
215
90
90
216
89
90
217
89
90
218
89
89
219
89
89
220
89
89
6.
Section 73.827 is amended by adding new paragraph (a), revising the previous paragraph (a) to
41
Federal Communications Commission
FCC 12-28
(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 FM signals at a translator input. An LPFM station
will not be authorized unless it remains at least 2 km from a translator receiving a third-adjacent channel
FM station (as compared to the LPFM) directly off-air, and unless it remains at least 10 km from the
translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site
to the site of the station being rebroadcast by the translator. The provisions of this subsection will not
apply if it can be demonstrated that no actual interference will occur due to an undesired (LPFM) to
desired (FM) ratio below 34 dB at all locations, or due to a location at a distance from the translator that
satisfies the following: 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, Ed = predicted field strength (dBu) of the FM station at the translator site.
(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
translator or 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.
7.
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. They may be filed at any time, but in cases where the parties 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, such 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
42
Federal Communications Commission
FCC 12-28
definite schedule of periods of time to be used by each. Such agreement must be in writing and must setforth 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
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.
8.
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 Section 73.7000 of this Part, that will provide non-
commercial radio services.
(b) Only local applicants will be permitted to submit applications. For the purposes of this
paragraph, an applicant will be deemed local if it can certify, 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.
* * * * *
(4) In the case of a Tribal Applicant, as defined in Section 73.7000 of this Part, the proposed
site for the transmitting antenna is located on that Tribal Applicant’s “Tribal Lands,” as defined in Section
73.7000 of this Part.
43
Federal Communications Commission
FCC 12-28
(c) An LP250 station will be licensed only to applicants that:(1) propose transmitter sites located at least 30 kilometers from the reference coordinates for
the top 100 radio markets; and
(2) currently operate an LP100 station serving the community of license proposed to be
served by the LP250 station.
9.
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 LP250 station authorized under this subpart is limited to transmitter
site relocations of 7.1 kilometers or less. A minor change for an LP100 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). 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.
* * * * *
10.
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 LP100
stations;
(2) Filings subject to paragraph (c)(5), site relocations of 7.1 kilometers or less for LP250
stations;
* *
44
Federal Communications Commission
FCC 12-28
11.Section 73.872 is amended by revising paragraph (b) to read as follows:
§ 73.872 Selection procedure for mutually exclusive LPFM applications.
* * * * *
(b) Except as specified in subsection (b)(1) below, each mutually exclusive application will be
awarded one point for each of the following criteria, based on application certification that the qualifying
conditions are met:
(1) Established community presence. An applicant must, for a period of at least 4 years
prior to application and at all times thereafter, have been physically headquartered, have had a campus or
have had seventy-five percent of its board members residing within 16.1 km (10 miles) of the coordinates
of the proposed transmitting antenna for applicants in the top 50 urban markets, and 32.1 km (20 miles)
for applicants outside of the top 50 urban markets. If an applicant does not satisfy the requirements of the
preceding sentence but was formed jointly by two or more organizations that do meet such requirements
and maintains representation on its governing board by at least one member from each such organization,
that applicant will be awarded one point for each such formative organization. Applicants claiming a
point or more for this criterion must submit the documentation set forth in the application form at the time
of filing their applications.
* * * * *
(4) Tribal applicants serving Tribal Lands. The applicant must be a Tribal Applicant, as
defined in Section 73.7000 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.
45
Federal Communications Commission
FCC 12-28
APPENDIX C
Initial Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),1 theCommission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant
economic impact on a substantial number of small entities by the policies and rules proposed in the
Fourth Further Notice of Proposed Rulemaking (“Fourth Further Notice”). Written public comments are
requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the
deadlines for comments on the Fourth Further Notice provided in paragraph 74. The Commission will
send a copy of this entire Fourth Further Notice, including this IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration (“SBA”).2 In addition, the Fourth Further Notice and the IRFA (or
summaries thereof) will be published in the Federal Register.3
2.
Need For, and Objectives of, the Proposed Rules.
This rulemaking proceeding is initiatedto seek comment on how to implement the provisions of the Local Community Radio Act of 2010
(“LCRA”) discussed below. The Fourth Further Notice tentatively concludes that the second-adjacent
channel spacing waiver standard set forth in Section 3(b)(2) of the LCRA supersedes the interim waiver
processing policy currently in place4 and seeks comment on this tentative conclusion and on what factors
the Commission should take into account in considering waiver requests. The Fourth Further Notice also
proposes to implement Section 3(b)(2)(B), which provides a framework for handling complaints of
interference from low-power FM (“LPFM”) stations operating pursuant to second-adjacent channel
waivers. 5 Similarly the Fourth Further Notice also proposes to amend the Commission’s rules to
implement Section 7 of the LCRA, which creates two different LPFM interference protection and
remediation regimes, one for LPFM stations that would be considered short-spaced under third-adjacent
channel spacing requirements, and one for LPFM stations that would not be considered short-spaced
under those requirements. Lastly, the Fourth Further Notice takes up implementation of Section 6 of the
LCRA, which requires the Commission to modify its rules to address the potential for predicted
interference to translator input signals on third-adjacent channels. The Fourth Further Notice proposes to
adopt a basic threshold test to determine whether a proposed LPFM station will cause such predicted
interference. Specifically, the Fourth Further Notice proposes to prohibit an applicant for a new or
modified LPFM station construction permit from specifying a transmitter site within the “potential
interference area” of any FM translator station that receives directly off-air, the signal of a third-adjacent
channel FM station. The Fourth Further Notice would define the “potential interference area” to be any
area within 2 km of the translator site or any area within 10 km 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 station being
rebroadcast by the translator.
1 See 5 U.S.C. § 603. The RFA, see 5 U.S.C. §§ 601-612, has been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
2 See 5 U.S.C. § 603(a).
3 See id.
4 The current interim waiver processing policy permits an LPFM station that will receive increased interference or
be displaced by a new or modified full-service FM station to seek waiver of the second-adjacent channel spacing
requirements in connection with an application to move the LPFM station to a new channel.
5 Section 3(b)(2)(B) of the LCRA provides that, upon receipt of a complaint of interference caused by an LPFM
station operating pursuant to a second-adjacent channel waiver, the Commission must notify the LPFM station by
telephone or other electronic communication within 1 business day. The LPFM station must suspend operation
immediately upon notification by the Commission that it is causing interference. It may not resume operations until
such interference has been eliminated or it can demonstrate that the interference was not due to its operations. The
LPFM station, however, may make short test transmissions to check the efficacy of remedial measures.
Federal Communications Commission
FCC 12-28
3. The Fourth Further Notice also proposes changes to our rules intended to promote the LPFMservice’s localism and diversity goals, reduce the potential for licensing abuses, and clarify certain rules.
First, the Fourth Further Notice seeks comment on whether to increase the maximum facilities for LPFM
stations. Second, the Fourth Further Notice seeks comment on proposed rule changes that will clarify
that an LPFM applicant must satisfy the local ownership requirement at all times. Third, it also requests
comment on whether to allow cross-ownership of an LPFM station and FM translator stations and
whether to allow federally recognized Native American Tribes and Alaska Native Villages (“Native
Nations”) to own multiple LPFM stations. Fourth, the Fourth Further Notice proposes to modify the
criteria used in the point system, add an additional criterion to the point system, and revise the voluntary
time-sharing tie-breaker used for selecting among mutually exclusive LPFM applications when the point
analysis results in a tie. Fifth, the Fourth Further Notice seeks comment on whether to extend to the
LPFM service the mandatory time-sharing requirements that currently apply to FM translators that meet
the Commission’s minimum operating requirements but do not operate 12 hours per day each day of the
year. Finally, noting that LPFM stations are currently required to protect full-service stations on their
intermediate frequencies (“I.F.”), while translator stations operating with less than 100 watts ERP are not,
the Fourth Further Notice proposes to eliminate the spacing requirements related to Intermediate
Frequency channels.
4.
Legal Basis.
The authority for this proposed rulemaking is contained in the LocalCommunity Radio Act of 2010, Pub. L. No. 111-371, 124 Stat. 4072 (2011), and Sections 1, 2, 4(i), 303,
307, and 309(j) of the Communications Act of 1934, 47 U.S.C §§ 151, 152, 154(i), 303, 307, and 309(j).
5.
Description and Estimate of the Number of Small Entities to Which the Proposed Rules
Will Apply.
The RFA directs the Commission to provide a description of and, where feasible, an estimateof the number of small entities that will be affected by the proposed rules.6 The RFA generally defines the
term “small entity” as encompassing the terms ”small business,” “small organization,” and ”small
governmental entity.”7 In addition, the term “small Business” has the same meaning as the term “small
business concern” under the Small Business Act.8 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.9
6. 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.10 Business concerns included in this industry are
those primarily engaged in broadcasting aural programs by radio to the public.11 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
6 Id. § 603(b)(3).
7 Id. § 601(6).
8 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.”
9 15 U.S.C. § 632.
10 See 13 C.F.R. § 121.201, NAICS Code 515112.
11 Id.
47
Federal Communications Commission
FCC 12-28
assessing whether a business concern qualifies as small under the above definition, business (control)affiliations12 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.
7. 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. FM translator stations and low power FM stations. The proposed policies could 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 small business if such station has
no more than $7 million in annual receipts.13 Currently, there are approximately 6,131 licensed FM
translator stations and 859 licensed LPFM stations.14 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.
9.
Description of Projected Reporting, Recordkeeping and Other Compliance
Requirements.
None.10.
Steps Taken to Minimize Significant Impact on Small Entities, and Significant
Alternatives Considered.
The RFA requires an agency to describe any significant alternatives that it hasconsidered 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.15
11. The passage of the LCRA required the Commission to propose certain changes to its
technical rules. The Commission considered maintaining the status quo regarding the proposed changes
to its non-technical rules, but concluded that these proposed rule changes will benefit small businesses
and existing LPFM licensees.
12. The LPFM service has created and will continue to create significant opportunities for new
small businesses by allowing small businesses to develop LPFM service in their communities. In
addition, the Commission generally has taken steps to minimize the impact on existing small
12 “[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).
13 See 13 C.F.R. § 121.201, NAICS Code 515112.
14
See News Release, “Broadcast Station Totals as of December 31, 2010” (rel. Feb. 11, 2011)
(http://fjallfoss.fcc.gov/edocs_public/attachmatch/DOC-304594A1.pdf).
15 5 U.S.C. § 603(b).
48
Federal Communications Commission
FCC 12-28
broadcasters. To the extent that rules proposed in the Fourth Further Notice would impose any burdenson small entities, we believe that the resulting impact on small entities would be favorable because the
proposed rules, if adopted, would expand opportunities for LPFM applicants, permittees, and licensees to
commence broadcasting and stay on the air. Among other things, the Fourth Further Notice proposes to
allow FM translator licensees to own or hold attributable interests in LPFM stations. This is prohibited
under the current rules. Likewise, the Fourth Further Notice proposes to permit Native Nations and
entities owned or controlled by Native Nations to seek more than one LPFM construction permit to
ensure adequate coverage of tribal lands. Today, multiple ownership of LPFM stations is prohibited.
13.
Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission’s
Proposals.
None.49
Edoc Internal Id:
313084
Released On:
Sun, 2012-03-18 20:00
Published On:
March 19 2012
Adopted Date:
Sun, 2012-03-18 20:00
Edoc ID:
FCC-12-28
