Third Further Notice of Proposed Rulemaking

This Notice of Proposed Rulemaking implements Section 5 of the Local Community Radio Act of 2010 (LCRA). Section 5 deals with the relationship between LPFM stations, FM Translators and FM Boosters. It also codifies the secondary status of LPFM stations, FM Translators and FM Booster Stations in respect to full-service FM broadcast stations.

Third Further Notice of Proposed Rulemaking

Document Information
Type	Notice of Proposed Rulemaking
Docket Number(s)	MM 99-25
FCC Number	11-105
FCC Record	26 FCC Rcd 9986
Federal Register Citation(s)	76 FR 4549
Federal Register Date(s)	July 29, 2011
Relevant Dates
Adoption Date	July 12, 2011
Release Date	July 12, 2011
Comment Deadline	August 29, 2011
Reply Deadline	September 12, 2011

LCRA Section 5 analysis

Text of law

SEC. 5. ENSURING AVAILABILITY OF SPECTRUM FOR LOW POWER FM STATIONS

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,17 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 FM stations.

Section 5(1) - Ensuring that licenses are available

This subsection mandates that the FCC adopts licensing procedures that ensure some minimum number of licensing opportunities exist for each service throughout the nation. When read together with Section 5(2), the FCC also interprets that Section 5(1) requires that the FCC provides to the extent possible, license opportunities for both services in as many local communities as possible.

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 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.

The issue whether to take existing licenses into account may be particularly significant in light of the present disparity between the two services. Currently, 1921 translators are licensed at locations within the top 200 Arbitron-rated markets. In contrast, 290 LPFM stations operate in the top 200 markets. The Commission has licensed approximately 2,700 translator stations from the 2003 window and approximately 860 LPFM stations from the 2000-01 Filing Window Series. Thus, taking into account existing translators and LPFM stations, or even just those licensed for the first time during the past decade, would militate in favor of the dismissal of translator applications, at least in markets where there is little or no remaining spectrum for future LPFM stations or where substantially fewer licensing opportunities remain. The FCC asks whether an interpretation that could have that effect conflict with Section 5(3) which states that translator and LPFM stations remain equal in status.

Finally, it appears that it will be significantly easier to ensure that licenses will be available for future translator stations than for LPFM stations. As previously noted, licensing asymmetries between the translator and LPFM services make it unlikely that LPFM licensing will preclude translator licensing opportunities, even in spectrum-limited markets. The translator protection rule, Section 74.1204, which is substantially more flexible than the minimum spacing requirements governing the LPFM service, facilitates the filing of technically acceptable applications in a window. It also facilitates the resolution of technical conflicts among competing applications, thereby permitting numerous grants from individual mutually exclusive groups under the translator auction settlement procedures. We tentatively conclude that these considerations establish that the FCC's primary focus in effectuating Section 5(1) must be to ensure translator licensing procedures do not foreclose or unduly limit future LPFM licensing. the FCC requested comments on that conclusion.

Section 5(2) - Assessing the needs of the local community

The Section 5(2) directive to base translator and LPFM licensing decisions on the “needs of the local community” could be interpreted to concern solely the needs of communities for additional LPFM service on the theory that translators cannot be expected to provide meaningful local service, at least in larger markets. The FCC requested comments on whether, based on a consideration of Section 5 in its entirety, the obligation to make decisions based on the “needs of the local community” reflects a Congressional finding that both translators and LPFM stations can be expected to serve community needs.

The FCC requested comments on whether and how to compare the two services in assessing local community needs citing significant differences that exist in translator and LPFM eligibility, licensing and service rule, differences that can dramatically affect the ability of these stations to serve the needs of their communities. For example, translators can't originate programming and it is not required to provide a certain certain signal strength over a community of license, meet minimum operating schedules, broadcast programs that provide significant treatment of community issues, maintain issues/program lists nor do translator rules limit eligibility to nor favor local applicants.

In contrast, the LPFM service was specifically created to fill a perceived gap in the way that full-power stations meet community needs – “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.” Thus, under the Commission’s rules, LPFM stations may originate programming; those that pledge to do so receive a licensing preference. LPFM stations must be locally owned. No party may hold an attributable interest in an LPFM station and another broadcast station. This restriction ensures that each licensed LPFM station necessarily expands ownership diversity in its community of license. The LPFM licensing rules promote share-time settlements between or among competing local applicants, further encouraging ownership diversity where spectrum is limited. For these reasons, the Commission has concluded that LPFM eligibility, selection and service rules “will ensure that LPFM licensees will meet the needs and interests of their communities.”

The FCC requests comments on whether they should take cognizance of the differing eligibility, licensing, and service rules for the translator and LPFM services in assessing the “needs of a community” for additional radio service:

• If so, how heavily should this directive weigh in favor of future LPFM licensing?
• What specific translator application procedures should the Commission adopt to give effect to Section 5(2)?
• Are there any alternate interpretations of Section 5(2) and their impacts on licensing procedures for pending translator applications.

Section 5(3) - Equal in Status

Section 5(3) requires that translator and LPFM stations “remain equal in status and secondary to existing and modified full-service FM stations.” The FCC requested comments on whether and how this requirement impacts the treatment of pending FM translator applications. Can the FCC waive the cut-off rules in order to give priority to a later-filed LPFM application over a pending FM translator application? Section 5(3) refers to "stations" and not "applications". If Section 5(3) is interpreted to only apply to stations, the FCC would be able to defer action on any pending FM translator applications that it determines must make way for LPFM opportunities and then process those applications later.

On the other hand, a number of factors argue in favor of interpreting Section 5(3) to prohibit cut-off rule waivers in this context. Under current Commission rules, stations in these two services are “co-equal” in this licensing context in one principal way. Specifically, under the FCC's “cut-off” rules, a prior filed application in one service “cuts off” a subsequently filed application in the other service. Given that the cut-off rules are a principal characteristic of the two services’ co-equal status and that “stations” and “applications” were used interchangeably in the FCC proceeding before the LCRA was adopted, it seems reasonable to assume that Congress intended the same meaning when it used the term “station” in the LCRA. If so interpreted, the Commission would lack authority to adopt a processing policy which includes the dismissal of prior-filed translator applications in conflict with subsequently filed LPFM applications.

• Alternatively, does Section 5(3) merely require that the FCC not favor either service in developing translator and LPFM new station licensing rules?
• If this alternative interpretation is adopted, what criteria are relevant in assessing whether such rules maintain a “co-equal” status between the services, especially when the current technical licensing rules, which provide substantially greater opportunities for future translator licensing in many markets, are taken into account?

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

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

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.

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.