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Third Further Notice of Proposed Rulemaking: Difference between revisions
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Third Further Notice of Proposed Rulemaking (view source)
Revision as of 10:57, 12 August 2022
, 2 years ago→Proposed FM Translator processing plan
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Prior to enactment of the LCRA, commenters raised concerns that a nationwide cap, which does not operate based on spectrum availability in specific areas would not ensure future LPFM opportunities in certain larger spectrum-limited markets. They contended that translator applicants would be able to retain their most valuable applications which propose service to densely populated areas. They also claim that anticipated dismissals would not free up space for new LPFM stations at or near the locations specified in the dismissed translator applications because "blocking" translators would remain. The Media Bureau reviewed the Common Frequency study, which it found to be reasonable. The Bureau also found that "blocking" translator applications would remain following the completion of the cap dismissal process due to the very high number of pending applications and/or discrete applications in these markets raising concerns of whether the ten-cap would be a certain and effective processing policy for preserving LPFM licensing opportunities in larger markets. The FCC requested comments on this issue. | Prior to enactment of the LCRA, commenters raised concerns that a nationwide cap, which does not operate based on spectrum availability in specific areas would not ensure future LPFM opportunities in certain larger spectrum-limited markets. They contended that translator applicants would be able to retain their most valuable applications which propose service to densely populated areas. They also claim that anticipated dismissals would not free up space for new LPFM stations at or near the locations specified in the dismissed translator applications because "blocking" translators would remain. The Media Bureau reviewed the Common Frequency study, which it found to be reasonable. The Bureau also found that "blocking" translator applications would remain following the completion of the cap dismissal process due to the very high number of pending applications and/or discrete applications in these markets raising concerns of whether the ten-cap would be a certain and effective processing policy for preserving LPFM licensing opportunities in larger markets. The FCC requested comments on this issue. | ||
The Media Bureau undertook a nationwide LPFM spectrum availability analysis in which all top 150 Arbitron markets and smaller markets which had more than 4 translator applications pending. The analysis established that no or limited useful spectrum is likely to remain in numerous specific radio markets unless the translator dismissals reliably results in the dismissal of all blocking translator applications. For example, no channels would be available in 13 of the top 30 markets and only one or two channels would be available in six others if blocking translator applications remain. Based on the record, the FCC tentatively concludes that the 10-cap is inconsistent with Section 5(1) because it would not ensure that licenses will be available in spectrum congested markets for future LPFM licensing. Moreover, using the same methodology, more LPFM licensing opportunities would be available in certain spectrum limited markets if LPFM applicants were not required to protect pending translator applications. | The Media Bureau undertook a nationwide LPFM spectrum availability analysis in which all top 150 Arbitron markets and smaller markets which had more than 4 translator applications pending. The analysis established that no or limited useful spectrum is likely to remain in numerous specific radio markets unless the translator dismissals reliably results in the dismissal of all blocking translator applications. For example, no channels would be available in 13 of the top 30 markets and only one or two channels would be available in six others if blocking translator applications remain. Based on the record, the FCC tentatively concludes that the previous application cap of 10 for FM translators (10-cap) is inconsistent with Section 5(1) because it would not ensure that licenses will be available in spectrum congested markets for future LPFM licensing. Moreover, using the same methodology, more LPFM licensing opportunities would be available in certain spectrum limited markets if LPFM applicants were not required to protect pending translator applications. | ||
Given the FCC's tentative conclusion that the 10-cap processing policy is inconsistent with the statutory mandate to ensure some minimum number of LPFM licensing opportunities, they must now consider how to best process the remaining translator applications in a manner that is consistent with the LCRA. The FCC requested comments on whether they should take into account existing translator and LPFM licenses to determine if licenses are available. In this regard, since the word "new" appears in the first clause of Section 5 but not in subparagraph (1), they should consider the availability of new and existing stations. Alternatively, Section 5(1) could be interpreted as a gong forward standard, limited to assure a future balance between new translator and new LPFM licenses. Under this interpretation, the presence of a licensed translator or LPFM station would not enter into a licensing decision under Section 5(1). The FCC requested comments on these and other possible interpretations of Section 5(1) and their impact on the treatment of pending translator applications. | Given the FCC's tentative conclusion that the 10-cap processing policy is inconsistent with the statutory mandate to ensure some minimum number of LPFM licensing opportunities, they must now consider how to best process the remaining translator applications in a manner that is consistent with the LCRA. The FCC requested comments on whether they should take into account existing translator and LPFM licenses to determine if licenses are available. In this regard, since the word "new" appears in the first clause of Section 5 but not in subparagraph (1), they should consider the availability of new and existing stations. Alternatively, Section 5(1) could be interpreted as a gong forward standard, limited to assure a future balance between new translator and new LPFM licenses. Under this interpretation, the presence of a licensed translator or LPFM station would not enter into a licensing decision under Section 5(1). The FCC requested comments on these and other possible interpretations of Section 5(1) and their impact on the treatment of pending translator applications. | ||
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== Proposed FM Translator processing plan == | == Proposed FM Translator processing plan == | ||
Given that the FCC had concluded that the 10-cap was not a viable means of balancing the competing goals of introducing new FM translator service and preserving LPFM spectrum availability, the FCC needed to consider alternative options in light of the requirements of Section 5. | |||
=== Open a joint FM Translator/LPFM application window === | === Open a joint FM Translator/LPFM application window === | ||
Even though no party to the proceeding brought up the idea, the FCC did consider dismissing all FM translator applications from the 2003 window and to make plans to have a joint filing window for both LPFM and FM translator stations at the same time. While such a plan could advance the three Section 5 mandates, there would be overwhelming practical and legal difficulties in attempting to implement such a novel licensing process. If the translator and LPFM services were each limited to commercial services, then §309(j) of the ''Communications Act'' would require the use of auctions. However, because there would be a mix of commercial and noncommercial applications in the window, the FCC would need to devise an alternate method of selecting among these mixed groups of applications. | |||
Normally, when there is a conflict between a commercial and a noncommercial application, it would require the dismissal of the noncommercial application in favor of the commercial application. This would favor FM translators over LPFM and would be inconsistent with the cross-service balancing principle of Section 5. Also, because FM translators and LPFM stations provide fundamentally different types of radio services, it adds additional complexities in developing a comparative standard. | |||
The FCC tentatively concluded that they should not pursue this option, but instead to focus on processing the pending FM translator applications in an alternate manner that is consistent with the LCRA. The FCC requested comments on this conclusion. | |||
=== Establish a priority for future LPFM applications === | === Establish a priority for future LPFM applications === | ||
Some parties urged the FCC to not dismiss any translator applications immediately but instead defer consideration of all translator applications until after the next LPFM window. In this scenario, only those translator applications that conflict with new LPFM filings would ultimately be dismissed. The FCC would need to determine if waiving the distance separation rules between LPFM stations and FM translators would be in conflict with Section 5(3). This approach would further delay the processing of FM translator applications, which at the time of this ''Notice'', was already frozen for six years. It is also possible that this approach would increase the disparity between the number of LPFM and FM translator licenses in larger markets where spectrum exists for both services and where the number of pending translators is likely to substantially outnumber LPFM licensing opportunities. The FCC requested comments on whether such a licensing outcome is consistent with Sections 5(1) and 5(2) and for those commenters who favor this approach, to address its impact on the timing of future translator and LPFM licensing. | |||
=== Adopt a market-specific translator application dismissal processing policy ("Channel Floors" approach) === | |||
Given the competing goals, the FCC tentatively concludes that a market-specific, spectrum availability-based translator application dismissal policy would most faithfully implement Section 5. This approach would ensure LPFM licensing opportunities in spectrum limited markets while also ensuring the immediate licensing of translator stations in communities in which ample spectrum remains for both services, including many major markets. It is axiomatic that community groups and niche audiences are more plentiful in larger, more densely populated markets and, therefore, that there is a need for greater numbers of LPFM stations in such markets. Moreover, the FCC thought that it is important that our translator processing policy, to the extent possible, ensure that there is sufficient spectrum to establish a robust, dynamic and permanent LPFM service in larger markets. In this regard, they believed that the NCE FM service, the radio service most similar to the LPFM service, provides one measure of the relative needs of communities for LPFM service and a point of reference for setting LPFM licensing availability goals. Both economics and Commission requirements support the notion that if a radio station exists, it is meeting the needs of its listeners. Establishing an LPFM service floor which would limit the scale of potential LPFM licensing levels to a small fraction of the number of licensed NCE FM stations in a market would appear to be inconsistent with Section 5(2)’s requirement to consider local community needs for LPFM service in licensing new FM translators, especially when the limited ability of LPFM station signals to reach audiences is taken into account. | |||
The FCC proposed a plan using "LPFM Channel Floors", which was intended to address those concerns and satisfy licensing goals. The FCC requested comment on whether a market-tier approach would be a reasonable means to effectuate both Section 5(1) and 5(2) directives. In most cases, the number of NCE FM stations exceeds, frequently by a wide margin, the proposed market-specific LPFM channel floors. We note that the number of licensed FM translator stations and pending translator applications are each significantly greater than these proposed floors in most markets. In proposing these floors, the FCC recognized that they had no assurance that these identified channels would result in LPFM station licensing. The identified channels are, to some extent, theoretical markers. The FCC would not know until the LPFM window whether interested applicants exist at the locations where LPFM channels are available. Moreover, these channels are at risk every day from full power FM station modification filings. Finally, the FCC was mindful of the fact that the next LPFM window may provide the last best opportunity to create a vital and sustainable community radio service in major metropolitan areas. Given the very limited licensing opportunities that the Media Bureau has identified in a number of major markets and the far more restrictive technical rules for LPFM station licensing, the FCC tentatively concluded that these floors are essential to the development of the LPFM service in spectrum-limited markets, as intended by the LCRA. Comments were requested on this tentative conclusion. | |||
{| class="wikitable" | |||
|+Proposed LPFM Channel Floors | |||
!Market Ranking | |||
!Number of LPFM Channels | |||
|- | |||
|1~20 | |||
|8 | |||
|- | |||
|21~50 | |||
|7 | |||
|- | |||
|51~100 | |||
|6 | |||
|- | |||
|101~150 and smaller markets where more than 4 translator applications are pending. | |||
|5 | |||
|} | |||
To ensure that licenses are available in all markets, the FCC proposed to dismiss all pending applications for new FM translators in markets in which the number of available LPFM channels, as set forth in the Media Bureau study, are below these channel floors. In calculating “available” LPFM channels, they included both the identified vacant channels and those channels currently licensed to LPFM stations which are authorized to operate at locations within the thirty-minute latitude by thirty-minute longitude grid for each studied market. They proposed to process all pending applications for new translators in markets in which the number of available LPFM channels meets or exceeds the applicable LPFM channel floor. | |||
The FCC also requested comments on whether we should impose restrictions on the translator settlement process in the “process all” markets to ensure that engineering solutions to resolve application conflicts do not reduce the number of channels available for LPFM stations in these markets. Restricting applicants from amending their applications to specify adjacent channels and/or different transmitter locations may be necessary to safeguard the available LPFM channels identified in the ''NPRM''. As set forth therein, the Media Bureau’s channel availability analysis incorporates the proposed channels and locations of pending translator applications. The translator settlement process, however, allows mutually exclusive applicants to settle by amending their applications to propose first-, second- and third-adjacent channels and different transmitter locations. If unchecked, that process could significantly impact spectrum availability for future LPFM stations, precluding LPFM licensing opportunities on channels identified as available in the Media Bureau’s analysis. To ensure their ability to carry out the statutory mandate through the LPFM channel floor proposal or whatever approach we ultimately adopt, the FCC proposed to restrict applicants from amending applications to specify adjacent channels and/or different transmitter locations. | |||
The FCC tentatively concluded that a three-pronged licensing process would promote Section 5 goals. Under this approach, immediately following the resolution of the matters at issue in this ''NPRM'' the FCC would resume the processing of those translator applications where there remains sufficient spectrum for LPFM based on the channel floors proposed above, i.e., only at locations at which translator licensing will not undermine the Section 5(1) directive to ensure future LPFM licensing opportunities. Following the adoption of rules implementing the other provisions of the LCRA, the FCC would open an LPFM-only window. Thereafter, following the substantial completion of LPFM application processing, the Commission would open a translator-only window. Under this approach, the FCC could immediately resume the processing of the thousands of translator applications which propose service in markets where ample spectrum remains for both services. Thus, it appears that this approach, if adopted, would provide the most expeditious path to expanded translator and LPFM station licensing and would permit the opening of an LPFM window by the summer of 2012. The FCC requested that any commenter who proposes an alternative licensing approach to explain how such approach would better implement Section 5 and to address the timing, resource and legal issues that any such approach would pose. | |||
The FCC also determined that certain temporary restrictions on the modification of translator stations authorized out of the Auction 83 filings are necessary to preserve LPFM licensing opportunities in identified spectrum-limited markets. They were concerned that translator modifications during the pendency of the rulemaking could undermine the statutory mandate to ensure future LPFM licensing opportunities in these markets. Accordingly, they directed the Media Bureau to suspend the processing of any translator modification application that proposes a transmitter site for the first time within any market which has fewer LPFM channels available than the proposed channel floor. The FCC proposed to dismiss any such application should the FCC adopt the market by market licensing approach proposed in this ''NPRM''. The FCC also imposed an immediate freeze on the filing of translator “move-in” modification applications and directed the Media Bureau to dismiss any such application filed after the adoption of this ''NPRM''. This freeze shall continue until the close of the upcoming LPFM filing window. This processing freeze did not apply to any translator modification application which proposes to move its transmitter site from one location to another within the same spectrum-limited market. | |||
== Other issues == | == Other issues == | ||