Further Notice of Proposed Rulemaking

Issued together with the Second Order on Reconsideration, this Notice of Proposed Rulemaking is mainly the byproduct of various ex parte meetings, filings and of a forum hosted by the FCC on February 8, 2005. This forum was intended to inform the FCC of achievements by LPFM stations and the challenges faced as the service marks its fifth year. During the pendency of this proceeding, the FCC delegated the Media Bureau to allow for interim waivers of the rules, with restrictions to allow for transfers of control, assignments of licenses and the extension of construction permit deadlines. They also imposed a 6-month freeze on the grant of any new FM translator application filed during the Auction 83 filing window in 2003.

Further Notice of Proposed Rulemaking

Document Information
Type	Notice of Proposed Rulemaking
Docket Number(s)	MM 99-25
FCC Number	05-75
FCC Record	20 FCC Rcd 6763
Federal Register Citation(s)	70 FR 39217
Federal Register Date(s)	July 7, 2005
Relevant Dates
Adoption Date	March 17, 2005
Release Date	March 17,2005
Comment Deadline	August 8, 2005
Extended to	August 22, 2005
Reply Deadline	August 22, 2005
Extended to	September 21, 2005
Commissioner Statements
Approve	Copps, Adelstein

Ownership and Eligibility

Transferability

Background

When the FCC established the LPFM service, they originally determined that in order to implement the service quickly and in a manner free of speculation that there would be a prohibition on the assignments and transfers with the exception of involuntary transfers of control (for example, when someone dies) or when there is less than a substantial change in control.

Based on forum testimony and ex parte presentations and previous waiver requests, the FCC now has the position that the ban on assignments and transfers are unduly restrictive and may hinder, rather than promote the LPFM service. Therefore the FCC inquires whether to authorize assignments and transfers in the LPFM service and whether such assignments and transfers should be limited to special circumstances.

Transfers of control within the same organization

The FCC wanted to know if such transfers should require any restrictions beyond assuring that the license entity still meets LPFM eligibility criteria. The FCC wanted to know the types of organizational structures utilized by LPFM licensees and how transfers of control, if permitted would be effectuated. The FCC wishes more information on whether and how to amend the rules to permit a transfer of control of an LPFM licensee in the case of a sudden change in the majority of a governing board. The FCC proposes to amend the rules to permit changes of more than 50 percent of the membership of the governing boards that occur suddenly, in addition to the gradual board changes that are currently permitted under the rules. Specifically, the FCC asked:

• Should the FCC amend the rules to permit the transfer of control of LPFM entities?
• If the FCC permitted the transfer of control of LPFM licenses, should they impose any restrictions on such transfers beyond the requirement that the license entity must meet the basic LPFM criteria?
• Are LPFM licensees likely to undergo transfers of control by virtue of changes in governing boards, shifting composition of membership bodies, acquisition of a licensee by another organization, or other means?

Assignments of licenses to other organizations

The FCC requested comments on whether they should amend the rules to permit the assignment of LPFM authorizations to another entity. What consideration should be allowed? Should the FCC permit the sale of LPFM stations? The FCC asked if there should be a holding period in which the station may not be sold at all or whether the station should or should not be sold for more than the licensee's legitimate and prudent expenses. What procedures should be implemented to ensure the integrity of the process and the promotion of local service?

Filing procedures

Assuming the rules are amended to allow for assignments and transfers, the FCC asked:

• What procedures should we implement to ensure the integrity of the process and the promotion of local service?
• Can general guidelines be established for the transfer of control or assignment of LPFM stations, or should the Commission delegate to the Media Bureau authority to review proposed transfers and assignments on a case-by-case basis?
• For LPFM licensees with a traditional corporate organizational structure, should we apply our rules governing transfers of control of stock corporations?
• For a sudden change in a majority of the governing board of a membership organization or governmental entity would be otherwise considered an insubstantial transfer of control, subject to a "short form" consent procedure including the filing of Form 316, should the FCC adopt a similar approach for changes in the governing boards of LPFM licensees that are non-stock entities?

Interim waiver authorized

In the interim, the Commission has delegated to the Media Bureau the authority to consider, on a case-by case basis, requests for waivers of §73.865 in order to permit transfers in cases where the public interest would be served such as a change in a majority of the governing board with no change in the organization's mission; development of a partnership or cooperate effort between local community groups, of which one is the licensee; and to transfer to another local entity upon the inability of the current licensee to maintain operations. Cases where the LPFM station is being sold for a profit, transferred to a non-local entity or to another entity that already owns another LPFM station would not be grounds for a waiver.

Ownership and eligibility limitations

In the original rules, the FCC allowed for entities to own up to 5 LPFM stations after 2 years of the service and up to 10 stations after 3 years. Despite this, the Original Filing Window Series was limited to only local applicants. The United Church of Christ, Office for Communication (UCC) has requested that the FCC permanently prohibits multiple ownership and either permanently restrict the service to only local entities or extend the "locals only" restrictions for an additional period of time.

Now that two years as passed since the Original Filing Window Series, the FCC questions whether they should amend the rules to reinstate the locals only rule for a longer period of time or to make the restriction permanent. They also asked:

• Would a continued limitation on multiple ownership foster diversity of programming or viewpoint or would it prevent LPFM licensees from achieving economies of scale?
• Does an eligibility for entities assure local service for listeners or night it result in some communities losing LPFM service because no local entity seeks to provide it?
• Should we permanently restrict eligibility to local entities but grant a waiver of such restriction in cases in which the applicant can demonstrate that no local entity has sought to provide service?
• If we make permanent the local entity eligibility restriction and the prohibition on multiple ownership, how should such limitations be considered in the context of applications for assignment or transfer of control of LPFM stations?

Time-sharing

In the original rules, the FCC set up a 30 day settlement period in which applicants that are mutually exclusive can attempt to reach a time sharing settlement agreement. Media Access Project stated that because LPFM stations have minimal resources, 30 days is too short. MAP had requested the deadline be 90 days instead. The FCC proposes a 90 day period instead of 30.

The FCC also proposed expectancy of renewal for viable involuntary time share through the use of successive license terms. In the past, such arrangements were not renewable. The FCC is now considering whether to make those renewable. They requested comments on this approach and whether licenses should be renewed in the same order they were granted (in the same sequence in which parties filed their applications to cover their construction permits). They also noted that with the increased flexibility in the transferability of LPFM licenses, involuntary time-share licensees may modify their time sharing arrangements prior to seeking renewal and questioned how to best accommodate such developments in the renewal process.

Technical Rules

Construction period

When the FCC first authorized LPFM, construction permits were allowed for 18 months without any extension. The FCC would eventually recognize that zoning and other issues could delay construction and some applicants were not able to meet the 18 month construction period. Media Access Project asked the FCC to waive or extend construction deadlines to avoid forfeit of LPFM construction permits. Current guidelines at the time allowed for tolling of a construction permit but only under certain situations such as natural disasters, administrative reviews or judicial reviews. The FCC proposes to extend the construction period to 36 months, the same period allowed to other broadcast permittees.

In the interim, the Commission delegated authority to the Media Bureau to provide waivers of the construction period even if it is not qualified for tolling if the issues are beyond the control of the permittee.

Technical amendments

Although the FCC extended the minor move distances in the Second Order on Reconsideration, the amended rule will preclude time sharing applicants from relocating to a central location.

UCC has requested that the rules be amended to allow time share applicants to be able to relocate multiple time share proponents to a single transmitter site as long as it meets minimum distance separation requirements. The FCC proposes to permit a time share agreement that includes a move to a central location, notwithstanding the site relocation limits in §73.871.

Interference protection requirements

LPFM advocates requested that the FCC reassess the relationship between FM Translators and LPFM stations for licensing purposes. Prometheus Radio Project stated that because NCE translators may be fed by satellite, such translators are used to retransmit distant signals, contrary to the intended purpose of the translator service to merely extend the reach of local stations. They further contend that every new translator that does not expand the reach of a station originating local programming takes the place of a potential LPFM station that will originate local programming. Prometheus cites the Auction 83 "Great Translator Invasion" filing window where they claimed that virtually all opportunities for new LPFM stations in the top-25 markets have been eliminated. They stated that translator applications not being filed by local members of the community, but instead by non-local organizations applying for a large number of translator licenses. To overcome the preclusive impact of the 2003 translator window, Prometheus requests that the FCC give locally controlled and operated LPFM stations priority over translators.

With this in mind, the FCC did inquire:

• Should LPFM applications be treated as having "primary" status over prior-filed FM translator applications and authorized FM translator stations?
• Should all LPFM applications have primary status because LPFM stations are permitted to originate local programming?
• Should primary status be given to LPFM stations that pledge to run 8 hours of local programming per day?
• Should the FCC provide "grandfathered" protection to certain classes of FM Translators such as currently licensed, fill-in but not other area translators, etc.?
• Should the FCC dismiss all pending applications and make potential refilings subject to the resolution of the licensing issues in this proceeding?
• Should the FCC dismiss mutually exclusive FM translator applications?

As an interim measure, the FCC will stop granting FM translator new station construction permits for a period of 6 months from the release of this Further Notice of Proposed Rulemaking.

Some have recommended the use of contours for protection of FM translators instead of distance separation. As a result of the Radio Broadcast Preservation Act of 2001, the use of distance separation has been statutorily mandated. Even if there was no statutory ban, the FCC still favors distance separation as it is modeled similar to that for commercial FM stations and that it is more "simple and reliable".

The Commission also cites §74.1203(a) as a method to address interference to LPFM stations by FM translators.

Protection from subsequently authorized full-service FM stations

Currently, full-service stations, including subsequently authorized new stations, facility modifications and upgrades are not required to protect LPFM applications or authorizations. LPFM stations may continue to operate however they must resolve actual interference issues on co-, first-, second and third-adjacent channels under §73.809 of the rules. The FCC states that to date, only one LPFM station has been forced off the air as a result of the §73.809 procedure.

Media Access Project proposed that the FCC adopts a processing policy that would permit the denial of a full service FM station's modification application if the grant of the application will deny local community content by reducing the coverage area available to LPFM stations. The Commission did not believe that such a policy would afford any degree of certainty to operating LPFM stations. The FCC disagrees with the basic thrust of this proposal which would afford primary status to LPFM stations with respect to subsequently filed full-service applications. LPFM stations should not be able to foreclose on full-service opportunities.

The Commission does believe however that it might be useful to limit the §73.809 interference policy to only co- and first-adjacent channels citing that any diminished coverage to LPFM stations on second- and third-adjacent channels would be small and limited to the general vicinity of the LPFM transmitter site. With that, the FCC asked:

• Should an LPFM station be permitted to continue to operate even when interference is predicted to occur within the 70 dBu contour of an “encroaching” second- or third-adjacent channel full service station?
• Should an LPFM station be permitted to remain on the air if the area of predicted interference does not receive service from the full service station prior to the grant of a construction permit for a new station or facilities modification of an existing station?
• Should the LPFM station be permitted to remain on the air if the full service station’s community of license would not be subject to predicted interference?
• It is always the case that an “encroachment” issue involves the licensing of a subsequently filed full service station application. As such, would an amendment to Section 73.809 be consistent with Congress’s directive barring the reduction of third-adjacent channel distance separations for “low-power FM radio stations”?

Filing Windows

Media Access Project requested that the FCC establish "regular" filing windows for new LPFM stations. As a general matter, the FCC agrees that the FCC should schedule windows at reasonable levels for each of the aural services. With that, the FCC feels that it is premature to schedule a window for the filing of LPFM new station and major modification applications at this time. First, it would be inefficient to open a window prior to completing consideration of the FM translator and other licensing issues raised in this Further Notice. In addition, the FCC had recently begun the process of awarding construction permits under the new NCE full-service comparative resolution of approximately 170 closed groups of mutually exclusive groups consisting of approximately 870 applications (these were applications filed prior to 2000). The FCC will then hold a nationwide NCE filing window. The FCC intends to proceed in a manner that takes into account the limited staff resources that can be devoted to processing applications for service in the FM band. This process will permit the more prompt processing of applications filed in the next LPFM window, a goal endorsed by numerous LPFM advocates.

Commissioner statements

Commissioner Michael Copps: "This proceeding is a welcome step towards addressing long outstanding questions regarding low-power FM radio service. These locally-based stations which are licensed to churches, schools, and other community organizations increase localism and diversity in our media. They are already helping in significant ways to meet the needs of under-represented communities. They are benefiting local talent by providing more outlets for airplay. They are providing community coverage in often strikingly-successful ways. As fewer and fewer conglomerates control the airwaves, there is an even greater need for low power radio. I look forward to a full record on the questions raised in this Notice and an expeditious resolution of this proceeding."

Commissioner Jonathan Adelstein: "I’m pleased to support today’s item, designed to move the ball forward in the further development of low power FM radio. LPFM provides local communities with new voices, which is so important, especially in today’s era of excessive radio consolidation. The public should have greater diversity on the radio dial. The Commission’s action today will provide immediate relief to dozens of stations that need additional time to complete construction or effect ownership changes. I look forward to addressing the issues raised in the item that are critical to the expansion of this emerging radio service, which is possible to accomplish without causing interference to existing broadcasters.

One of the most significant obstacles to further development of LPFM isn’t addressed by today’s item, however, because the Commission is currently prohibited by statute from fixing it. LPFM stations are currently required to protect full-power FM stations operating on third-adjacent channels. The Commission initially concluded that such protection isn’t necessary. The Mitre Corporation, in its independent and Congressionally-mandated study, reached the same conclusion, and the Commission has therefore recommended that Congress lift the statutory restriction. I therefore hope that Congress will act soon on Senator McCain’s bill to remove this unnecessary requirement, allowing LPFM to develop more and provide new voices to an even greater segment of the population, without causing harmful interference to existing broadcasters."

Related links

• Text of this NPRM at the FCC.
• Erratum issued on May 2, 2005. (Corrected only language related to the Paperwork Reduction Act of 1995 and did not change the substance of the proposal.)
• Extension of comment and reply comment periods. (Requested by Station Resource Group. Comment period extended from August 8, 2005 to August 22, 2005 and the reply comment from August 22, 2005 to September 6, 2005.)
• Further extension of reply comment period. (Request by REC Networks to extend reply comments by 15 days due to the large number of comments received. FCC extends reply comments to September 21, 2005.)