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.

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

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.

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?

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. 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?

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 agreements. In the past, such arrangements were not renewable.

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.