Order on Reconsideration

First Order on Reconsideration
Document Information
Type	Memorandum Opinion and Order
Docket Number(s)	MM 99-25
Related RM(s)	RM-9208, RM-9242
FCC Number	00-349
FCC Record	15 FCC Rcd 19208
Federal Register Citation(s)	65 FR 67289
Relevant Dates
Adoption Date	September 20, 2000
Release Date	September 28, 2000
Rules Effective	December 11, 2000
Commissioner Statements
Approve	Kennard, Ness
Dissent	Furchtgott-Roth
Approve in part	Powell

When the FCC adopted the Report and Order to create the LPFM service, there were 17 Petitions for Reconsideration and requests for clarification filed by many parties for the FCC to reconsider various aspects of that Order.

Petitions filed

National Public Radio

National Public Radio (NPR) sought reconsideration on the FCC's decision to not apply a third-adjacent channel protection requirement on LPFM stations, especially for the protection of FM stations that carry radio reading services for the blind and other persons with disabilities as well as providing protection to cable headends and also the impacts to future In Band On Channel (IBOC) digital operations and LPFM's status in respect to FM translator stations. NPR and the National Translator Association are seeking reconsideration to address potential interference to the "inputs" of FM translators by LPFM stations. NPR and Alan W. Jurison allege that the rules do not adequately protect the service areas of full-service licensees questioning the FCC's use of the 70 dBu contour for the interference standard if a full-power station modifies their facility and NPR further raises concerns over protections to noncommercial stations, which use the 60 dBu contour for community coverage. Jurison also addresses the issue of grandfathered "super power" FM stations in the commercial portion of the broadcast band.

Original LPFM petitioners

RM-9242 petitioner Rodger Skinner and the United Church of Christ asked for reconsideration of the decision to require second-adjacent channel protections. Skinner also seeks reconsideration on the FCC's decision to not provide the LP-1000 service as well as the decision to make LPFM only a noncommercial service. UCC also asked for the Commission to extend the time when only local community based applicants will be eligible for stations from the two years adopted in the Report and Order as well as the decision to not require LPFM stations to maintain a public file or file ownership reports. RM-9208 co-petitioner Don Schellhardt requests that the FCC allows unlicensed broadcasters if the unauthorized broadcaster has challenged the legality of an FCC order to cease operations and/or sought an injunction to bar the FCC from enforcing such an order and the court "allowed" the unlicensed broadcaster to continue operating while the legal challenge was pending.

Other petitioners

David S. Black, a station manager at the student station at the University of Wisconsin requested reconsideration on the decision to make LPFM a secondary service as opposed to a primary service; Black, along with Michael Camarillo on behalf of KAMP Student Radio at the University of Arizona requests that universities that have full-service licensees should also be allowed to operate student LPFM stations. Craig Fox stated that LPFM stations should be required to use calibrated modulation monitors; and Amherst Alliance wanted the "cut off date" used to determine when full-service stations would be protected to be either February 29, 1999 or January 20, 2000 instead of 30 days prior to the opening of the filing window. The Order will also address reconsideration sought by the New York State Thruway Authority and the engineering firm of Lohnes and Culver to permit LPFM stations to be able to use directional antennas and the ability for government agencies to be subject to the same ownership caps as an educational licensee.

Lawson and Langford asked the FCC to allow AM licensees to be able to apply for LPFM licenses; Cohn and Marks requested clarification of the rules for educational licensees that also hold Instructional Television Fixed Service (ITFS) licenses. Kenneth Bowles seeks clarification of the local program origination point pledge. The Minority Media and Telecommunications Council (MMTC) filed a supplementary pleading contending that the FCC should award the first LPFM licenses to minority broadcast training institutions and to include a preference point for educational institutions in the point system.

FCC decisions in response to the petitions

Third adjacent channel protection

The FCC generally affirms the decisions reached in the Order but makes some changes to address issues raised on reconsideration:

Complaint and license modification procedure

In response to concerns by NPR, the FCC will consider interference to occur whenever the reception of a full power station is impaired by the operation of an LPFM station operating on a third-adjacent channel. The process may be invoked where an LPFM station is located inside the 60 dBu contour of an existing full power station operating on a third-adjacent channel (the 60 dBu contour of the station facilities that existed at the time construction of the LPFM station was authorized. Complaints will be limited to receivers located at fixed, identifiable locations within the 60 dBu contour and within 1 kilometer from the LPFM site. The complaint must be received by either tha LPFM or full-power station within one year of the date on which the LPFM station commenced operation.

A listener who believes that an LPFM station signal is interfering with the reception of a full power station may initiate the complaint procedure by providing the full power station with an affidavit that describes the nature and location of the alleged interference. LPFM stations receiving the listener complaints must promptly forward those complaints to the affected full power FM station. The full power FM station will be required to identify those complaints and provide copies of all such bona fide complaints to the LPFM station. The LPFM station will have the opportunity to resolve individual interference complaints.

In the event that the LPFM station concludes that it is not the source of the interference and the number of unresolved complaints equals at least 1 percent of households or 30 households, whichever is less, in the complaint area, the LPFM and full power station must cooperate in an "on off" test to determine whether the interference is traceable to the LPFM station. The FCC will consider a complaint resolved if the full power station does not reasonable cooperate with the LPFM's investigatory and remedial efforts. If licensees fail to reach an agreement and the requisite number of complaints remain unresolved, the full power station may request the FCC to initiate a proceeding to consider whether the LPFM station's license should be modified or cancelled.

A new Section 73.810 has been added to the Rules to reflect this policy.

Radio Reading Services

A vulnerability was identified by NPR in respect to FM stations operating a Radio Reading Service because radios designed to receive subcarrier (or Subsidiary Communications Authority or SCA) broadcasts are more vulnerable to interference than mass marketed receivers. As a result, the FCC has identified a list of FM broadcast stations that are reported to be operating SCAs for Radio Reading Services. The FCC has extended third-adjacent channel protection requirements to any full-service FM station that is carrying a radio reading service.

Interference caused by an LPFM after modification of a full-service FM facility

NPR and Alan W. Jurison argued that while the FCC had designated that LPFM stations must continue to protect the 70 dBu community coverage contour of a full power station that modified their facility, the 70 dBu contour is not used in the noncommercial educational (NCE) FM service for community coverage. NCE stations in the 88.1~91.9 reserved band must provide community coverage to at least 50% of the community of license. The FCC agrees and amends §73.809 to state that in addition to the 70 dBu contour, interference to a modified full-service FM station by an LPFM will take place if there is interference into the community of license of the full-service station where the community is within the 60 dBu contour of the affected NCE FM station.

LPFM interference to the input of an FM translator

While the FCC denied the National Translator Association's request that interference to the input channel of an FM translator should be considered during the application process, the FCC agreed that any actual interference issues should be addressed. Therefore, if it turns out that the LPFM station causes interference with a translator's input signal in use at the time when the LPFM station is authorized, the LPFM must immediately cease operations until appropriate remedial action is taken.

Directional antennas for public safety and transportation

At the suggestion of the New York State Thruway Authority, the FCC will permit LPFM stations operated for public safety reasons to be use directional antennas. NYSTA argued that the use of directional antennas will prevent signal energy from reaching unpopulated areas. The FCC amended §73.816 to reflect this. §74.1204(a) will be amended to clarify that FM translator stations will still protect these LPFM stations as they are nondirectional.

Ownership limits for public safety agencies

On reconsideration, the FCC will allow public safety and transportation agencies to be able to apply for and own more than one LPFM station as long as there are no other mutually exclusive applications filed in the window. During a filing window, when a public safety agency files for multiple stations, they must specify one of their applications as a "priority" application. The priority application will be able to compete with other applications in a group of mutually exclusive applications. Those that are not marked as priority will be dismissed right off the top if there are competing applications. §73.855 has been amended to reflect this change.

University licensed LPFM stations

In response to two reconsiderations on the issue, the FCC will permit limited cross-ownership by a university that holds full-power broadcast licenses that are not student run for LPFM stations that would be managed and operated on a day-to-day basis by students, provided they do not face any competing applications. §73.860 was amended to reflect this rule change.

Clarifications to the Report and Order

FM Translator protection to LP-100 stations

The FCC clarified that until an LP-100 station is on the air and licensed, it must be protected by FM Translator stations at the maximum ERP permitted to the LPFM station. This is because when LP-100 stations are authorized, they will be assigned a minimum and maximum ERP. For example, an LPFM station authorized to operate a maximum 100 watts ERP will be authorized at a minimum of 50 watts ERP. Once the LPFM station is licensed, then translators will protect the LPFM station at the actual ERP the station is operating. The FCC amended §74.1204(a) in order to clarify this.

Instructional Television Fixed Service (ITFS) cross-ownership

ITFS is a fixed microwave service that is intended to transmit video programming to distant campuses. The FCC clarified that ITFS is not a broadcast service so it would have no impact on LPFM ownership.

Alien ownership

The FCC clarifies that the same alien ownership policies and rules that apply to full power stations also apply to LPFM.

Local Programming (for the preference point)

The FCC defined local programming as the production of programming by the licensee within 10 miles of the proposed transmitting site.

Transfers of Control

The FCC clarified that a gradual change of a governing board or membership body to a point that a majority of members are new since the authorization was granted will not, by itself, constitute a prohibited transfer of control.

Changes made by the Commission on their own motion

Protection to low-power TV stations on Channel 6

In this Order, the FCC recognized that no distance separation chart was put in for low power TV (LPTV) stations and TV translator stations operating on Channel 6. As a result, §73.825 was amended to add a second set of distance separation charts for LP-100 and LP-10 towards LPTV Channel 6 stations.

LP-10 distance separation tables

Contours are normally based on a group of curves which looks at the ERP and HAAT. When the ERP is at such low level and the field strength is so strong that the distances are so short, that a "free space" calculation is used as opposed to the curves. If computing a distance using free-space results in a distance longer than 1.6 kilometers, then the distance is considered 1.6 kilometers. When the FCC did the distance separation charts for protections to Canada, it turned out that the second-adjacent channel requirements for LP-10 stations was longer than the distances for LP-100. This was because staff used the full free-space distance instead of capping at 1.6 km. The FCC amends §73.807(g) to address this anomaly.

Protection to foreign low power facilities

The original Report and Order did not take into consideration any protections to low power FM facilities in Canada and Mexico. The FCC amends §73.807(g) to address this.

Denied reconsideration requests

In addition to the issues already discussed, the FCC denied reconsideration on various issues including:

The decision to continue protecting second-adjacent channel stations.
The decision to not adopt a third-adjacent channel protection requirement except in the case of Radio Reading Services.
The decision to not authorize any LP-1000 stations.
The decision to not authorize any LPFM service classes as primary service.
The decision to not authorize a commercial LPFM service.
The decision to not authorize AM stations being able to own LPFM stations.
The decision to not require main studios, ownership reports and public inspection files.
Adopting a new requirement for modulation monitors to prevent overmodulation.
Changing the cut-off date used for the protection of other stations for applications filed in the window.
Added protection requirements for LPFM stations located near cable TV headend facilities.
Extending "super power" protections to grandfathered FM stations in the commercial (92.1~107.9) portion of the FM band.
Extending the time period (beyond 2 years) from when licenses would be limited to local applicants.
Giving license priority to Minority Broadcasting Training Institutions.
Don Schellhardt's requests for allowing unlicensed broadcasters if they seek in injunction enjoining the FCC from enforcement and while the case is still pending.
Giving an additional preference point for being an educational institution (as opposed to an educational organization or government agency).
The establishment of a "Low Power Advisory Committee".
The establishment of an "Automatic Program Review".

Commissioner statements

FCC Chairman William Kennard was very pleased that they have taken the next step in creating room on the dial for real community radio of, for, and by the people, noting that the FCC had already received close to 1,200 LPFM applications from the first 20 states to file. Addressing NPR's concerns, he stated that the FCC has established an enforcement procedure (which in a separate statement, Commissioner Susan Ness refers to as a "rocket docket") that will allow for the expedited resolution of any unexpected significant interference. According to Kennard, full-power and LPFM are "important to America" and he believes that these services can "co-exist and flourish to the benefit of American communities.

Harold Furchtgott-Roth maintains his dissent, disagreeing with the FCC's decision to uphold the overall decision to not require third-adjacent channel protections. "In addition, I note that the Commission continues to forge relentless ahead on this issue, notwithstanding the expression of substantial Congressional disapproval of its approach to the creation of this service and the serious interference questions for existing broadcasters and their listeners that remain unresolved to this day. A higher regard for Congress, and those broadcasters who today serve their communities ably and well, would counsel a more serious reconsideration of this issue than that performed today." While Michael Powell was approving of the addition of a third-adjacent complaint procedure, he remains concerned about the economic consequences to small broadcast stations resulting from the introduction of LPFM.

Rule sections amended by this decision

§73.209 - Protection from interference. (Commercial FM rule)
§73.514 - Protection from interference. (NCE FM rule)
§73.807 - Minimum distance separation between stations.
§73.809 - Interference protection to full service FM stations.
§73.810 - Third adjacent channel complaint and license modification procedure. (New section added)
§73.816 - Antennas.
§73.825 - Protection to reception of TV Channel 6.
§73.854 - Unlicensed operations.
§73.855 - Ownership limits.
§73.860 - Cross ownership.
§73.870 - Processing of LPFM broadcast station applications.
§73.872 - Selection procedure for mutually exclusive applications.
§73.877 - Station logs for LPFM stations.
§73.1660 - Acceptability of broadcast transmitters.
§74.1204 - (FM Translator) Protection of FM broadcast, FM translator and LP100 stations.