Second Report and Order

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The Second Report and Order was a direct result of the enactment of Section 632(a) of the Making Appropriations for the Government of the District of Columbia for FY 2001, which was also known as The Radio Broadcast Preservation Act of 2001 (RBPA).

Second Report and Order
Document Information
TypeReport and Order
Docket Number(s)MM 99-25
Related RM(s)RM-9208, RM-9242
FCC Number01-100
FCC Record16 FCC Rcd 8026
Federal Register Citation(s)66 FR 23861
Federal Register Date(s)May 10, 2001
Relevant Dates
Adoption DateMarch 22, 2001
Release DateApril 2, 2001
Rules EffectiveJune 11, 2001
Commissioner Statements
Approve in partFurchtgott-Roth

The RBPA mandated that the Commission modify its rules to require LPFM stations to enact third-adjacent channel protection requirements and prohibit any applicant from obtaining an LPFM license if the applicant has engaged in the unlicensed operation of a station in violation of Section 301 of the Communications Act, otherwise known as "pirate radio".

Because this was a Congressional mandate, there was no specific Notice of Proposed Rulemaking related to this specific Report and Order.

Third adjacent channel protection requirements

As a direct result of the legislation, the FCC revised §73.807 to require third-adjacent channel protections towards full-service FM stations and FM Translator stations using the same distances those for second-adjacent channel protection.

At the time of the legislation, the FCC had already completed two of the five windows in the Original LPFM Filing Window Series. In the order, the FCC identified hundreds of LPFM applications already filed that do not meet the third-adjacent channel protection requirements and published two lists.

The Appendix A list includes applications that could be cured through an amendment to the application. At the time, only minor changes of up to 2 kilometers were allowed, but channel changes were not allowed. The Appendix B list indicates applications that cannot be moved within 2 kilometers in order to cure the short-spacing. The Commission ordered the Mass Media Bureau to open a remedial filing window following the end of the original filing window series to permit applicants identified on either list to make "major" changes to their facilities in order to cure the third-adjacent channel deficiencies. The FCC would hold this filing window between August 28 and September 1, 2002. The applicants that were not able to cure their defects were dismissed on March 17, 2003 in a Public Notice that REC Networks coined as "The St. Patty's Day Massacre".

Unlicensed operations

The RPBA ordered that the existing unlicensed broadcasting rule §73.854 be amended to state that any party to the application who has been engaged in unlicensed broadcasting in the past would be excluded from holding an LPFM license. The Commission ordered the Mass Media Bureau to update FCC Form 318 to include a certification question where the licensee would certify that no party to the application has engaged in unlicensed broadcasting in violation of Section 301 of the Communications Act.

Commissioner statements

Commissioner Harold Furchtgott-Roth, approving in part and dissenting in part stated that the Second Report and Order is "heading in the right direction", however he felt that the FCC should have issued a Notice of Proposed Rulemaking to ask for comments on the new statutory directives. "The urgency in establishing the LPFM service, cannot and does not, overcome the need to follow the rulemaking requirements found in the Administrative Procedures Act". "In addition, the Commission should have suspended its current LPFM requirements as it examines the meaning of the statue. This step would have allowed the Commission to reconsider its LPFM rules in light of Congress' recent actions. A more harmonious LPFM regime would have resulted."

Rule sections amended by this decision

  • §73.807 - Minimum distance separation between stations.
  • §73.854 - Unlicensed operations.
  • §73.871 - Amendment of LPFM broadcast applications. (new section)

Related links