Fourth Report and Order: Difference between revisions

The FCC adopted the interpretations of the three Section 5 licensing standards proposed in the ''Third Further Notice''. In its broadest terms, Section 5(1) clearly requires the Commission to ensure that some minimum number of FM translator and LPFM “licenses are available” throughout the nation when licensing new FM translator and LPFM stations. We also find that Section 5 is most reasonably interpreted to require consideration of existing licenses. As we observed in the ''Third Further Notice'', the word “new” appears in the first clause of Section 5 but not in subparagraph 1, suggesting that we should consider the availability of both new and existing stations in ensuring that “licenses are available” for both services. In addition, our interpretation is consistent with the title of Section 5, “Ensuring Availability of Spectrum for Low-Power FM Stations,” as well as the Commission’s longstanding license allocation policies under §307(b) of the Communications Act, which directs the Commission to ensure “a fair, efficient, and equitable distribution of radio service” “among the several States and communities.” In contrast, interpreting Section 5 to require the FCC to license new translator and LPFM stations without regard to the number of operating stations in each service, as EMF advocates, would be inconsistent with ensuring the availability of spectrum for both services, as well as §307(b)’s direction. The FCC concluded that the mandate of Section 5(1) to ensure that “licenses are available” is reasonably interpreted to require consideration of both existing and future licenses in the translator and LPFM services when licensing new stations in those services.

The FCC also adopted their proposed interpretation of Sections 5(1) and (2) together to require that LPFM and translator licenses be available in as many “local communit[ies]” as possible, according to their needs. They recognized that translators and LPFM stations both serve the needs of communities, albeit in different ways, and conclude that they must take those factors into consideration in implementing Section 5(2). In particular, translators, which are inexpensive to construct and operate, can effectively bring service to rural and under-served areas. LPFM stations, on the other hand, which typically utilize volunteer staffs, operate under great budget constraints, and serve smaller geographic areas, may be less effective in meeting the needs of small communities and areas of low population density. Translators also are essential components of local and regional transmission systems that efficiently deliver valued programming to listeners. Nevertheless, as explained in the ''Third Further Notice'', the FCC has historically accorded no weight to translators in assessing the comparative needs of a community for radio service under its §307(b) licensing policies. In contrast, the LPFM service was created “to foster a program service responsive to the needs and interests of small community groups, particularly specialized community needs that have not been well served by commercial broadcast stations.” Numerous LPFM service and comparative licensing criteria are designed to promote these goals. These criteria include a requirement that licensees be local, a licensing preference for those applicants with an established community presence, and a licensing preference for those applicants that pledge to locally originate at least eight hours of programming per day. In addition, ownership restrictions and time-share rules necessarily result in expanded ownership diversity.  Based on those factors, the FCC found that LPFM stations are uniquely positioned to meet local needs, particularly in areas of higher population density where LPFM service is practical and sustainable.

 

The FCC also adopted their tentative conclusion that the primary focus under Section 5 must be to ensure that translator licensing procedures do not foreclose or unduly limit future LPFM licensing, because the more flexible translator licensing standards will make it much easier to license new translator stations in spectrum-limited markets than new LPFM stations. The FCC's market-specific analyses establish that few LPFM licenses have been issued and limited LPFM licensing opportunities remain in many markets due to the relatively inflexible LPFM technical rules and high spectrum utilization. In contrast, given the more flexible translator licensing standards and the limited LPFM licensing opportunities in many markets, the next round of LPFM licensing will have only a modest impact on licensing opportunities for future translator stations. Thus, our principal challenge in effectuating the mandates of Sections 5(1) and 5(2) is to identify and preserve LPFM licensing opportunities where few or no LPFM stations currently operate. The FCC notes that this goal is fully consistent with Congress’s decisions to eliminate third adjacent channel distance separation requirements and to permit second adjacent channel spacing waivers, and thereby, expand the LFPM service.

 

Their interpretation of Section 5 has clear implications for the translator processing and dismissal procedures that they adopted in this proceeding. These procedures must be responsive to two different situations. The first concerns markets where, taking into account both licensed stations and the potential for additional stations, ample LPFM licensing opportunities are present. Procedures in these markets must balance translator and LPFM licensing in a manner that “ensures” a level of future LPFM licensing that the Commission determines is sufficient to satisfy statutory requirements. Secondly, in markets where insufficient spectrum remains to satisfy these requirements, the translator processing and dismissal procedures, including amendment and settlement procedures, should preserve all identified LPFM licensing opportunities, i.e., should facilitate the grant of only those translator applications that would not diminish or “block” future LPFM licensing in these markets.

 

On the other hand, the FCC agreed with NAB that, consistent with its statutory interpretation, our policies should seek to avoid the dismissal of translator applications where LPFM stations “cannot” be licensed. The FCC noted that, however, that capacity to identify such situations is limited. The FM database is dynamic, with LPFM filing opportunities being created, eliminated or modified daily due to FM application and allotment filings. Moreover, revised LPFM technical licensing rules that are now under consideration will materially affect licensing opportunities. Given the limited LPFM licensing opportunities in many markets, the modest impact that LPFM licensing will have on future translator licensing in those markets and the difficulties in establishing with certainty that a translator application “cannot“ preclude an LPFM filing, the FCC concluded that adoption of a conservative processing regime that fully protects scarce spectrum for future LPFM stations would be consistent with Section 5, read as a whole.

 

We adopt our tentative conclusion that the 10-cap dismissal policy we established prior to the LCRA’s enactment is inconsistent with Section 5 because it would not provide a certain and effective way to ensure that LPFM “licenses are available” for local communities in many markets. Under that policy, translator applications that prevent or “block” LPFM licensing opportunities would likely be eligible for processing in markets where the need for LPFM licensing opportunities is greatest and spectrum most limited. Based on the market-specific analyses that will be used, the FCC also concluded that no or limited useful spectrum for LPFM stations is likely to remain in numerous specific radio markets where typically few or no LPFM stations now operate unless translator dismissal procedures reliably result in the dismissal of all “blocking” translator applications.

 

With regard to Section 5(3), the FCC asked in the ''Third Further Notice'' whether the requirement that translator and LPFM stations remain “equal in status” prohibits waivers of the LPFM cut-off rule, which prioritizes pending FM translator applications over later-filed LPFM applications, explaining that such an interpretation would require the Commission to dismiss any pending FM translator applications that it determines must make way for LPFM licensing opportunities, rather than deferring action on such applications and later processing any that remain pending after the completion of dismissal and settlement procedures adopted to implement Section 5. The FCC identified several factors that support such an interpretation. The cut-off rules are a principal characteristic of the two services, establishing their “equal” status as to each other. While acknowledging that Section 5(3) refers to “stations,’” they noted in the ''Third Further Notice'' that the Commission has used “stations” and “applications” interchangeably in considering whether to give priority to applications filed in the upcoming LPFM window, a central issue in this proceeding since 2005. Thus, the FCC explained, Section 5(3) could be reasonably interpreted to prohibit waivers of the LPFM cut-off rule.

Having tentatively concluded that the ten-application cap dismissal policy would run contrary to the LCRA’s mandate, the FCC considered three alternative processing regimes and tentatively concluded that a market-specific, spectrum availability-based translator application dismissal policy would most faithfully implement Section 5 of the LCRA. To determine LPFM opportunities in major markets, the Media Bureau undertook a nationwide LPFM spectrum availability analysis. The Media Bureau studied all top 150 radio markets, as defined by [[Wikipedia:Nielsen Audio|Arbitron]], and smaller markets where more than four translator applications are pending. It centered a thirty-minute latitude by thirty-minute longitude grid over the center-city coordinates of each studied market. Each grid consisted of 961 points – 31 points running east/west by 31 points running north/south. The Media Bureau analyzed each of the 100 FM channels (88.1 mHz – 107.9 mHz) at each grid point to determine whether any channels remained available for future LPFM stations at that location. Only channels that fully satisfied co-, first- and second adjacent channel LPFM spacing requirements to all authorizations and applications, including pending translator applications, were treated as available. The area encompassed by the grid was designed to approximate “core” market locations that could serve significant populations. The results of that analysis were presented in the Third Further Notice, and identified the number of channels (“LPFM Channels”) currently available for LPFM use in each studied market.84 In calculating “available” LPFM channels, it included both the identified vacant channels and those channels currently licensed to LPFM stations which are authorized to operate at locations within each market’s thirty-minute latitude by thirty-minute longitude grid.

The FCC did, however, revise their processing approach with regard to certain translator applications in both “spectrum limited” and “spectrum available” markets. As an initial matter, they recognized that their use of the 21x21 grid in certain markets has turned some “spectrum available” markets into “spectrum limited” markets. For the reasons discussed above, they found that translators serve community needs, especially those in rural or underserved areas. As such, they agreed with NAB that translator applicants in “spectrum limited” markets should be given an opportunity to demonstrate that their applications, if granted, would not preclude any LPFM opportunities.  They would also will permit minor amendments to meet this “no preclusion” test. Translator applicants proposing “move-in” modifications and modification applications that propose to move into a “spectrum limited” market will also be allowed to make such a showing. This approach is also consistent with their combined reading of Sections 5(1) and 5(2) because it furthers the statutory goal of ensuring that the Commission provide licensing opportunities for both services in as many communities as possible. Prometheus and others fail to explain how this narrow exception to allow continued translator processing in a “spectrum limited” market will preclude LPFM opportunities, given that, as described in more detail below, we will require translator applicants to protect all channel/point combinations with the assumption that all LPFM applicants in these markets will be eligible for second-adjacent channel waivers. We likewise agree that translator applicants in “spectrum available” markets should be afforded some opportunity to amend their applications. As noted by many translator advocates, circumstances have changed since 2003, and transmitter sites may no longer be available. As described in more detail below, we will provide applicants with a limited opportunity to amend their applications so long as their proposals do not eliminate any LPFM channel/point combination in any of the 156 market grids and, where applicable, satisfy the Top 50 Market Preclusion Showing. We do not believe that allowing translator applicants these limited opportunities to amend their applications will impede our ability to guarantee licensing opportunities equivalent to the LPFM channel floors we adopt herein.