Sixth Report and Order

The Sixth Report and Order was the last of three orders that implemented provisions of the Local Community Radio Act of 2010 (LCRA). This Order implements LCRA section 7, and portions of Section 3 in respect to protection to the inputs of FM translators, third-adjacent channel interference remediation, second-adjacent channel waivers. This Order also implemented changes to the ownership rules including extending eligibility to Native Nations. It also made substantial changes to the point system used to select mutually exclusive applicants and made some additional technical rule changes. This Order was released simultaneously with the Fifth Order on Reconsideration.

Sixth Report and Order

Document Information
Type	Report and Order
Docket Number(s)	MM 99-25, MB 07-172
Related RM(s)	11338
FCC Number	12-144
FCC Record	27 FCC Rcd 15402
Federal Register Citation(s)	78 FR 2077, 78 FR 23854
Federal Register Date(s)	January 9, 2013, April 23, 2013 (OMB)
Relevant Dates
Adoption Date	November 30, 2012
Release Date	December 4, 2012
Commissioner Statements
Approve	Pai, Clyburn, Genachowski, Rosenworcel, McDowell

Implementation of the LCRA

Second adjacent channel waivers

Introduction

Section 3(b)(2)(A) of the LCRA explicitly grants the FCC the authority to waive the second-adjacent channel spacing requirements set forth in §73.807. It permits second-adjacent waivers where an LPFM station establishes, “using methods of predicting interference taking into account all relevant factors, including terrain-sensitive propagation models,” that its proposed operations “will not result in interference to any authorized radio service.” In the Fourth Further Notice, the FCC tentatively concluded that this waiver standard supersedes the interim waiver processing policy adopted by the Commission in 2007. We sought comment on this tentative conclusion. The three commenters that addressed this tentative conclusion agreed with it. As noted in the Fourth Further Notice, the interim waiver processing policy requires the Commission to “balance the potential for new interference to the full-service station at issue against the potential loss of an LPFM station.” This balancing is inconsistent with the language of Section 3(b)(2)(A) of the LCRA described above, which does not contemplate such a balancing. Accordingly, the FCC affirmed their tentative conclusion that the waiver standard set forth in the LCRA and discussed herein supersedes the interim waiver processing policy previously adopted by the Commission.

NAB's comments

In the Fourth Further Notice, the FCC sought comment on the factors relevant to and showings appropriate for second-adjacent waiver requests. Some commenters express support for a requirement that waiver applicants demonstrate there are no fully-spaced channels available. The National Association of Broadcasters argued that the plain language of the LCRA and its legislative history require that the Commission grant second-adjacent waivers “only in strictly defined circumstances.” In contrast, Prometheus Radio Project and others argued that beyond a showing of non-interference as required by the statute, no other showing should be required for LPFM applicants seeking waivers. Prometheus stated that the Commission is bound by the LCRA’s terms and cannot infer a wide range of additional limitations or prescriptions that appear nowhere in the statute.

The FCC reviewed reviewed both the text of the LCRA and the legislative history. The plain language of Section 3(b)(2)(A) of the LCRA permits the FCC to grant second-adjacent waivers where a waiver applicant demonstrates that its proposed operations “will not result in interference to any authorized radio service.” Nothing in the LCRA or its legislative history suggested that Congress intended to require that waiver applicants make any additional showings. The statute does not mandate any further conditions on the grant of such waivers, and it does not prescribe the burden of proof. The FCC concluded that Congress intended to ensure that LPFM stations operating pursuant to second-adjacent waivers do not cause interference to full-service FM and other authorized radio stations. The FCC found that additional limitations are not needed to achieve this goal. Indeed, to require additional showings of waiver applicants would impose requirements that go beyond those established in the LCRA that we do not believe are either necessary to the implementation of its interference protection goals or consistent with the localism and diversity goals underlying the LPFM service. Accordingly, the FCC did not further restrict the availability of second-adjacent waivers.

The FCC found unconvincing the policy arguments made by supporters of requiring additional showings of waiver applicants. They were not persuaded that any additional limits are needed to preserve the technical integrity of the FM service. Neither NAB nor any other commenter has offered evidence to support the claim that granting second-adjacent waivers that satisfy the LCRA requirements will harm audio quality or disrupt the expectations of listeners. Indeed, they were not sure how any commenter could since waivers will only be granted where an applicant makes a showing that its proposed operations will not cause interference. Moreover, we note that many FM translators successfully operate on second-adjacent channels, often at higher effective radiated powers and heights above average terrain (HAAT) than LPFM stations, under a protection scheme that permits second-adjacent channel operations at less than LPFM distance separation requirements. The FCC believed LPFM stations can operate just as successfully. Should interference occur, the interference remediation obligations set forth in Section 3(b)(2)(B) of the LCRA145 will serve as a backstop to ensure that the technical integrity of the FM band is maintained.

Method of predicting interference

In the Fourth Further Notice, the FCC asked whether the should permit LPFM applicants to make the sort of showings we routinely accept from FM translator applicants to establish that “no actual interference will occur.” A number of commenters offer general support for this proposal. Prometheus grounds its support in the fact that, read together, Sections 3(b)(2)(A) and (B) of the LCRA “set out a second adjacent waiver standard substantially identical to the rules allocating translators on the second adjacent frequency.” NAB opposes the use of these showings by waiver applicants, arguing that it could lead to “over-packing of the FM band, unwanted interference, and the degradation of listeners’ experience.” NAB, however, does not offer any evidence to support its claims. Nor does NAB explain why the operations of the very large number of FM translators that have relied on these showings do not cause the same interference and signal degradation problems they predict as a result of LPFM second-adjacent waivers. NPR also opposes allowing LPFM applicants to make the same showings as FM translators. NPR argues that there are “significant differences” between the LPFM and FM translator services. However, it does not explain how these differences – the ability to originate programming or lack thereof, the highly local nature of the LPFM service, the relative inexperience of LPFM licensees when compared to FM translator licensees – would justify different waiver standards for FM translators and LPFM stations. The FCC was not persuaded that the differences that NPR cites have any impact on whether a station will cause interference. Rather, the potential for interference is principally dependent on the propagation characteristics of the “protected” and “interfering” FM signals and the quality of the utilized FM receiver.

The FCC permitted waiver applicants to demonstrate that “no actual interference will occur” in the same manner as FM translator applicants. Put another way, they permitted waiver applicants to show that “no actual interference will occur” due to “lack of population” and will allow waiver applicants to use an undesired/desired signal strength ratio methodology to define areas of potential interference when proposing to operate near another station operating on a second-adjacent channel. Although the LCRA did not require the Commission to incorporate for second-adjacent channels the FM translator regime that Congress incorporated for third-adjacent channel interference protection, as Prometheus notes the second-adjacent waiver provisions of the LCRA establish a regime similar to that governing FM translators. Given the discretion afforded by Congress to the Commission for determining appropriate “methods of predicting interference,” the FCC's experience in connection with methods for doing so in the analogous context of FM translators, and the similarities between the regime established in Sections 3(b)(2)(A) and (B) and the regime applicable to FM translator stations, they believed it is appropriate to grant waiver applicants the same flexibility as FM translator applicants to demonstrate that, despite predicted contour overlap, interference will not in fact occur due to an absence of population in the overlap area. They noted that, like FM translator stations, LPFM stations operating pursuant to second-adjacent waivers may not cause any actual interference.

Directional antennas

The FCC also permitted waiver applicants to propose use of directional antennas in making these showings. This was consistent with their treatment of FM translator applicants and supported by the vast majority of commenters. They clarified that, like FM translator applicants, waiver applicants may use “off the shelf” antenna patterns and will not be required to submit information regarding the characteristics of the pattern with the construction permit application. In addition, as requested by Prometheus and Common Frequency, the FCC permitted waiver applicants to propose lower ERPs and differing polarizations in order to demonstrate that their operations will not result in interference to any authorized radio service. We expect that this flexibility will facilitate the expansion of the LPFM service while still protecting the technical integrity of the FM band. In terms of proposals specifying lower ERPs, the FCC would not accept proposals to operate at less than current LPFM minimum permissible facilities (i.e., power levels of less than 50 watts ERP at 30 meters HAAT, or its equivalent). Since the proposed operating parameters of a waiver applicant will be available in the Consolidated Database System (CDBS) and since they do not require other applicants seeking waivers of our technical rules to serve their waiver requests on potentially affected stations, the FCC did not require an LPFM applicant seeking a second-adjacent waiver to serve its waiver request on any potentially affected station. The FCC will, however, instruct the Media Bureau to identify specifically all potentially affected second-adjacent channel stations in the public notice that accepts for filing an application for an LPFM station that includes a request for a second-adjacent waiver.

The FCC reminded potential LPFM applicants that the LCRA permits the Commission to grant waivers only of second-adjacent, and not co- and first-adjacent, spacing requirements. The flexibility regarding lower power, polarization and directional patterns extends only to waiver applicants seeking to demonstrate that their proposed operations will not result in any second-adjacent channel interference. They cautioned LPFM applicants against using this technical flexibility to limit the already small service areas of LPFM stations to such an extent that, while their LPFM applications are grantable, the LPFM stations will not be viable. As the Media Bureau previously noted, “the limitations on the maximum power of LPFM stations substantially reduce the number of potential listeners they can serve.” The Media Bureau went on to note that “[t]he low power of an LPFM station affects not only its geographic reach and coverage area, but also the quality of its signal and the ability of listeners to receive its signal consistently inside the station’s coverage area.”

The FCC required FM translator modification applications and applications for new FM translators to treat such LPFM stations as operating with non-directional antennas at their authorized power.

Interference remediation

Section 3(b)(2)(B) provides a framework for handling an interference complaint resulting from an LPFM station operating pursuant to a second-adjacent waiver “without regard to the location of the station receiving interference.” Upon receipt of a complaint of interference caused by an LPFM station operating pursuant to a second-adjacent waiver, the Commission must notify the LPFM station “by telephone or other electronic communication within 1 business day.” The LPFM station must “suspend operation immediately upon notification” by the Commission that it is “causing interference to the reception of any existing or modified full-service FM station.” It may not resume operations “until such interference has been eliminated or it can demonstrate . . . that the interference was not due to [its] emissions.” The LPFM station, however, may “make short test transmissions during the period of suspended operation to check the efficacy of remedial measures.”.

The FCC requested comment on whether to define a “bona fide complaint” for the purpose of triggering these interference remediation procedures. Prometheus urges us to do so and to handle interference complaints against LPFM stations operating pursuant to second-adjacent waivers in a manner similar to complaints against FM translators and similar to the former third adjacent channel remediation requirements. As the FCC described in the Fourth Further Notice, for FM translators, Section 74.1203(a) prohibits “actual interference to … [t]he direct reception by the public of the off-the-air signals of any authorized broadcast station . . . .” It specifies that “interference will be considered to occur whenever reception of a regularly used signal is impaired by the signals radiated by” the interfering FM translator station. An interfering FM translator station must remedy the interference or cease operation. The Commission had interpreted this rule broadly. It places no geographic or temporal limitation on complaints. It covers all types of interference. The reception affected can be that of a fixed or mobile receiver. The Commission also had interpreted “direct reception by the public” to limit actionable complaints to those that are made by bona fide listeners. Thus, it has declined to credit claims of interference or lack of interference from station personnel involved in an interference dispute. More generally, the Commission requires that a complainant “be ‘disinterested,’ e.g., a person or entity without a legal stake in the outcome of the translator station licensing proceeding.” The staff has routinely required a complainant to provide his name, address, location(s) at which FM translator interference occurs, and a statement that the complainant is, in fact, a listener of the affected station. Moreover, as is the case with other types of interference complaints, the staff has considered only those complaints of FM translator interference where the complainant cooperates in efforts to identify the source of interference and accepts reasonable corrective measures. Accordingly, when the Commission concludes that a bona fide listener has made an actionable complaint of uncorrected interference from an FM translator, it will notify the station that “interference is being caused” and direct the station to discontinue operations.

The FCC concluded that it is appropriate to handle complaints in a manner similar to that used to handle complaints of interference caused by FM translators. They believed that the LCRA affords the Commission the discretion to rely on their successful FM translator experience in implementing the interference protection regime for second-adjacent LPFM stations. Accordingly, they adopted the same requirements for complaints that we apply in the FM translator context. As described above, that means that a complaint must come from a disinterested listener and must include the listener’s name and address, and the location at which the interference occurs. The FCC was unconvinced by NPR’s argument that a listener complaint is unnecessary. While NPR is correct that Section 3(b)(2)(B)(iii) refers simply to “a complaint of interference” and does not specify the source of such complaint, the FCC found this statutory term to be ambiguous. The FCC concluded that it may reasonably be interpreted to refer to listener complaints. The FCC had interpreted Section 74.1203 of the Rules to require that complaints of interference in the FM translator context be filed by listeners. They also noted that the scope of the rule prohibiting translator stations from causing “actual interference to … direct reception,” and that of Section 3(b)(2)(B) which prohibits LPFM stations from causing “interference to the reception of an existing or modified full-service station,” are essentially equivalent. The Commission previously has interpreted the “direct reception” language included in Section 73.1203(a) as limiting actionable complaints to those that are made by bona fide listeners. The FCC believed it is appropriate to interpret the “reception” language in Section 3(b)(2)(B) of the LCRA as imposing this same limit.

Once the Commission receives a bona fide complaint of interference from an LPFM station operating pursuant to a second-adjacent waiver and notifies the LPFM station of the complaint, the LPFM station must “suspend operation immediately” and stay off the air until it eliminates the interference or demonstrates that the interference was not due to its emissions. The FCC concluded that an LPFM station may demonstrate that it is not the source of the interference at issue by conducting an “on-off” test. “On-off” tests have been used by the FM translator and other services to determine whether identified transmissions are “the source of interference.” In addition, the Commission specifically authorized LPFM stations to use “on-off” tests for determining “whether [third-adjacent interference] is traceable to [an] LPFM station.”196 As the Commission did in that context, they will require the full-service station(s) involved to cooperate in these tests.

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