Fourth Further Notice of Proposed Rulemaking

This Notice of Proposed Rulemaking (NPRM) is intended to collect comments regarding implementation the remainder of Section 3 of the Local Community Radio Act of 2010 (LCRA) addressing the waiver of distance separation requirements for second-adjacent channels, a third-adjacent channel interference complaint and remediation process as required by LCRA Section 7 and a FM Translator input signal complaint procedure as required by LCRA Section 6. This NPRM also proposes to eliminate the LP-10 class of service, create a new 250 watt "LP-250" service, eliminate LPFM protection requirements to intermediate frequency channels, clarifying the local ownership requirements, open a new eligibility category for Native Nations, permit cross-ownership with FM translators, permit Native Nations to own multiple LPFM stations and make changes to the point system for mutually exclusive applicants including the replacement of sequential licensing with involuntary time share schedules. This NPRM was released together with the Fifth Report and Order and Fourth Order on Reconsideration and was issued on the same day as the Fourth Report and Order and Third Order on Reconsideration.

Fourth Further Notice of Proposed Rulemaking

Document Information
Type	Notice of Proposed Rulemaking
Docket Number(s)	MM 99-25
FCC Number	12-28
FCC Record	27 FCC Rcd 3315
Federal Register Citation(s)	77 FR 20756
Federal Register Date(s)	April 6, 2012
Relevant Dates
Adoption Date	March 19, 2012
Release Date	March 19, 2012
Comment Deadline	May 7, 2012
Reply Deadline	May 21, 2012

Changes to technical rules required by the LCRA

Second-adjacent channel waivers

In 2007, the FCC established an interim waiver processing program that permitted an LPFM station that will receive increased interference or be displaced by a new or modified full-service FM application to seek a waiver of the second-adjacent channel spacing requirements to move an LPFM station to a new channel. This came in the wake of streamlined full-service licensing procedures and a lifting of a freeze on community of license modification applications.

Section 3(b)(2)(A) of the LCRA grants the FCC with authority to waive second-adjacent channel spacing requirements. The FCC tentatively concluded that this law supersedes the interim waiver policy. The significant difference between the interim policy and the wording in the LCRA was that second-adjacent channel waivers could not cause any interference to any existing radio service. This is important because under the old policy, the FCC permitted second-adjacent waivers in a manner that could result in potential interference to a small number of full-service station listeners in order to meet a public interest goal of maintaining LPFM service. The law now requires that second-adjacent channel waivers not have that risk of potential interference.

The FCC currently provides waivers of second and third-adjacent channel contour overlap to FM Translator stations under the Living Way policy where it can be shown that in the area where the overlap takes place, that based on the contours and/or antenna design and height, that there is no listeners or potential listeners of the overlapped station within the area predicted to receive the interference.

The FCC proposed to apply this translator policy for LPFM second-adjacent channel waivers and requested comments on this. The FCC asked:

• Are such showings consistent with the statutory mandate to accept showings that a proposed LPFM service “will not result in interference to any authorized radio service”?
• Should we permit the use of directional antennas in conjunction with proposals attempting to protect second-adjacent stations?
• Should we require a showing that there are no fully-spaced channels available to the LPFM applicant?
• Should we take into account that the proposal would eliminate or reduce the interference received by the LPFM applicant?
• Should we consider whether the proposal would avoid a short-spacing between the proposed LPFM facilities and a full-service FM station, FM translator or FM booster station on a third-adjacent channel?
• Should we also take into account the interference protection and remediation obligations such short-spacing would trigger?
• Should we consider whether the proposal would result in superior spacing to full-service FM, FM translator or FM booster stations operating on co- and first-adjacent channels?
• Are there other factors or showings that we should consider?

Section 3(b)(2)(B) of the LCRA sets out a framework for handling complaints when an LPFM station operating pursuant to a second-adjacent channel waiver has caused interference to the reception of any existing or modified full-service FM station “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 channel 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 comments on how to incorporate this framework for handling complaints into the rules. They also requested comments won what constitutes a bona fide complaint to trigger the process and how to specify the showing of an LPFM station operating pursuant to a second-adjacent channel waiver must make to demonstrate that it was not the source of the interference at issue.

Third-adjacent channel interference complaints and remediation

Overview

Third-adjacent channel interference remediation policies have existed since the early days of LPFM and first appeared in the Order on Reconsideration. This process became irrelevant after the passage of the RBPA, but now with the passage of the LCRA, it has become relevant again. However, because the LCRA includes a much broader remediation obligation, the FCC needed to reexamine this legacy third-adjacent remediation policy.

LCRA Section 7

The LCRA included some extensive requirements regarding LPFM stations on third-adjacent channels:

• Section 7(1) requires the FCC to adopt the same interference protections that FM translator stations and FM booster stations are required to provide as set forth in Section 74.1203 of the rules. These obligations apply to LPFM stations that would be considered short-spaced under the existing third-adjacent channel spacing requirements.
• Section 7(2) requires that a new LPFM station “constructed on a third-adjacent channel” must “broadcast periodic announcements” that alert listeners that any interference they are experiencing could be the result of the station’s operations and that instruct affected listeners to contact the station to report any interference.
• Section 7(3) directs the FCC to modify §73.810 of the rules to require LPFM stations on third-adjacent channels to address interference complaints within the protected contour of an affected station and encourage them to address all other interference complaints.
• Section 7(4) requires the FCC, to the extent possible, to grant LPFM stations on third-adjacent channels the technical flexibility to remediate interference through the collocation of the transmission facilities of the low-power FM station and any stations on third-adjacent channels.
• Section 7(5) requires the FCC to permit the submission of informal evidence of interference, including any engineering analysis that an affected station may commission, accept complaints based on interference to a full-service FM station, FM translator station, or FM booster station by the transmitter site of a low-power FM station on a third-adjacent channel at any distance from the full-service FM station, FM translator station, or FM booster station, and accept complaints of interference to mobile reception.
• Section 7(6) requires the Commission to impose additional interference protection and remediation obligations on one class of LPFM stations.

Two regimes of third-adjacent situations

The FCC interpreted the law to divide LPFM's relationship to third-adjacent stations into two regimes. Section 7(1) LPFM stations would be those that do not meet the minimum distance separations to other facilities on a third-adjacent channel (using the required distances for second-adjacent channels, which have always been the same), and Section 7(3) LPFM stations which would be those that do meet the minimum distance separation requirements to all third-adjacent channel facilities. The FCC requested comments on those designations.

Section 7(1) Regime - Not meeting third-adjacent protection requirements

Section 7(1) Stations are subject to the same interference protection regime applicable to FM Translator and Booster stations, which is set forth in §74.1203 of the rules. This regime is more stringent than that currently set forth in §73.810. §74.1203(a) prohibits “actual interference to the 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 rule has been interpreted 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 FCC also has 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/her name, address, location(s) at which interference occurs, and a statement that the listener 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 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, it will notify the station that “interference is being caused” and direct the station to discontinue operations. The FCC requested comments on this procedure for LPFM stations and whether they had the authority to make changes to it in light of the statutory mandate to adopt “the same interference protections that FM translator stations and FM booster stations are required to provide as set forth in Section 74.1203 of [the] rules.”

Section 7(3) Regime - Meeting third-adjacent protection requirements

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Periodic announcements

Section 7(2) requires that LPFM stations constructed on a third-adjacent channel make "periodic announcements" by LPFM stations to alert listeners that interference that they may be experiencing could be from the result of a an LPFM station on a third-adjacent channel and instructs listeners to contact the LPFM station of any interference complaints. The LPFM station shall notify the FCC and all affected stations on third-adjacent channels within 48 hours and to cooperate in addressing any such interference.

The FCC originally drew the conclusion that these announcements would apply to Section 7(3) stations (meeting the distance separation requirements), but also queried whether it should also apply to Section 7(1) stations not meeting distance separation.