Fourth Further Notice of Proposed Rulemaking

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

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.

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

Section 7(3) of the LCRA required the FCC to modify §73.810 to require Section 7(3) Stations “to address interference complaints within the protected contour of an affected station” and encourage them to address all other interference complaints, including complaints “based on interference to a full-service FM station, an FM translator station or an 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.” The FCC tentatively concluded that Sections 7(2), (4) and (5) apply only to Section 7(3) Stations.

Unlike Section 7(1), Section 7(3) did not specifically refer to §74.1203. The FCC requested comment on whether the more lenient interference protection obligations currently set forth in §73.810 should continue to apply to fully-spaced LPFM stations. They noted that, while Section 7(1) instructs the Commission to require Section 7(1) Stations “to provide” interference protections, Section 7(3) merely instructs the Commission to require Section 7(3) Stations “to address” complaints of interference. The FCC asked what must a Section 7(3) Station do to “address” a complaint of third-adjacent channel interference. The FCC observed that Section 7(3) requires the Commission to provide notice to the licensee of a Section 7(3) Station of the existence of interference within 7 calendar days of the receipt of a complaint from a listener or another station. They requested comment on whether to establish certain basic requirements for such complaints. For instance, should the FCC require copies of such complaints to be filed with the Audio Division; whether they require such complaints to specify the call sign of the LPFM and/or affected full-service FM, FM translator or FM booster station and whether the FCC should require the complainant to provide contact information.

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. These announcements must be broadcast for a period of one year after construction. The FCC requested comments on whether they should specify the language to be used in these announcements and, if so, what to specify and whether the FCC should mandate when and how often the announcements must be aired. The FCC noted that have done so with respect to other required announcements and that ensuring uniformity may reduce listener confusion and provide regulatory certainty by allowing LPFM stations to be confident that they have satisfied the requirements of Section 7(2).

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.

Definition of a bona fide complaint

Section 7(5) of the LCRA expands the universe of interference complaints which Section 7(3) Stations must remediate. Section 7(5) states:

The Federal Communications Commission shall —(A) permit the submission of informal evidence of interference, including any engineering analysis that an affected station may commission; (B) 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 (C) accept complaints of interference to mobile reception.

The FCC requested comment on whether any of the four criteria set forth in §73.810(b)(1) of the rules remain relevant. They tentatively concluded that Section 7(5) requires them to delete Sections 73.810(b)(1) (bona fide complaint must allege interference caused by LPFM station that has its transmitter site located within the predicted 60 dBu contour of the affected station), (2) (bona fide complaint must be in form of affidavit and state the nature and location of the alleged interference) and (3) (bona fide complaint must involve a fixed receiver located within the 60 dBu contour of the affected station and not more than 1 kilometer from the LPFM transmitter site). They solicited comments on whether they should retain the remaining criterion, which requires a bona fide complaint to be received within one year of the date an LPFM station commenced broadcasts.

Technical flexibility

Section 7(4) of the LCRA required the FCC, to the extent possible, to “grant low-power FM 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.” They noted that, per Section 3 of the LCRA, they are eliminating the third-adjacent channel spacing requirements set forth in §73.807. The FCC identified no other provision of our rules that would hinder their ability to offer the flexibility specified in Section 7(4) of the LCRA. Accordingly, they tentatively concluded that we need not modify or eliminate any other provisions of our rules to implement Section 7(4).

The "New Jersey Rule"

LCRA Section 7(6) required the FCC to impose additional interference protection and remediation obligations on one class of LPFM stations. Specifically, Section 7(6) of the LCRA directs the FCC to create special interference protections for “full-service FM stations that are licensed in significantly populated States with more than 3,000,000 population and a population density greater than 1,000 people per square mile land area.” The obligations apply only to LPFM stations licensed after the enactment of the LCRA. Such stations must remediate actual interference to full-service FM stations licensed to the significantly populated states specified in Section 7(6) and “located on third-adjacent, second-adjacent, first-adjacent or co-channels” to the LPFM station and must do so under the interference and complaint procedures set forth in §74.1203 of the rules. However, Congress has created an outer limit to the interference protection obligations in Section 7(6). That outer limit is the co-channel spacing distance set forth in Section 73.807 of the rules for the affected full-service station's class.

This statutory requirement is different than current policy. Today, if an LPFM station meets the spacing requirements, it is “not required to eliminate interference caused to existing FM stations.” With the enactment of LCRA, at least with respect to full-service FM stations licensed to the significantly populated states that meet the criteria set forth in Section 7(6), LPFM stations licensed after its effective date must remediate any actual interference that occurs. They noted that the Section 7(6) interference requirements are, with one exception, unambiguous. They requested comment on how to interpret the term – “States.” Only New Jersey and Puerto Rico satisfy the population and population density thresholds set forth in Section 7(6). This raises the question of whether Congress intended the term “States” to include the territories and possessions of the United States.

FM Translator input signals complaint procedure

Section 6 of the LCRA required the FCC to “modify its rules to address the potential for predicted interference to FM translator input signals on third-adjacent channels set forth in Section 2.7 of the technical report entitled ‘Experimental Measurements of the Third-Adjacent Channel Impacts of Low Power FM Stations, Volume One—Final Report (May 2003)’”, also known as the MITRE Report.. Section 2.7 of the MITRE Report finds that significant interference to translator input signals does not occur for undesired/desired ratio values below 34 dB at the translator input. Section 2.7 sets out a formula that allows calculation of the minimum LPFM-to-translator separation that will ensure a undesired/desired ratio of 34 dB.

The FCC currently requires LPFM stations to remediate actual interference to the input signal of an FM translator station but has not established any minimum distance separation requirements or other preventative measures. Based on the language of Section 6, which requires the FCC to “address the potential for predicted interference,” the FCC tentatively concluded that the existing requirements regarding remediation of actual interference must be recast as licensing rules designed to prevent any predicted interference.

We propose to adopt a basic threshold test. This test is designed to closely track the interference standard developed by MITRE, without necessarily requiring LPFM applicants to obtain the receive antenna technical characteristics that are incorporated into the MITRE Formula. They proposed that any application for a new or modified LPFM station construction permit may not use a transmitter site within the “potential interference area” of any FM translator station that receives directly off-air, the signal of a third-adjacent channel FM station. For these purposes, the FCC defined the “potential interference area” to be any area within 2 km of the translator site or any area within 10 km of the translator site within the azimuths from -30 degrees to +30 degrees of the azimuth from the translator site to the site of the station being rebroadcast by the translator. For example, if the primary station is located at 280 degrees true (from the translator site), the LPFM station must not be within 10 km of the translator between the azimuths 250 to 310 degrees true (from the translator site), and must be at least 2 km from the translator tower site in all other directions. If an LPFM application proposes a transmitter site within the potential interference area and fails to include an exhibit demonstrating lack of interference to the off-air reception, the FCC would dismiss the application as defective.

The FCC proposed two ways for an LPFM applicant within the potential interference area to show lack of interference to the input signal of a potentially affected translator. First, they proposed, as indicated in Section 2.7 of the MITRE Report, that LPFM applicants may show that the ratio of the signal strength of the LPFM (undesired) proposal to the signal strength of the FM (desired) station is below 34 dB at all locations. Second, they proposed to allow use of the equation provided in Section 2.7 of the MITRE Report to demonstrate lack of interference to the reception of the FM station at the translator transmitter site. Because the FCC does not authorize translator receive antenna locations, they propose to assume that the translator receive antenna is co-located with its associated translator transmit antenna. In addition, this equation would require the horizontal plane pattern of the translator’s receive antenna. This information is not typically available publicly or in the Consolidated Database System (“CDBS”). Therefore, the FCC proposed to allow the use of a “typical” pattern in situations where an LPFM applicant is not able to obtain information from the translator licensee, despite reasonable efforts to do so.

As with similar situations involving dismissals for violation of interference protection requirements, the FCC proposed to permit LPFM applicants to seek reconsideration of a dismissal and reinstatement nunc pro tunc by demonstrating that their proposals will not cause any actual interference to the input signal of any FM translator station using either the ratio or the MITRE Formula. Furthermore, the FCC requested comment on whether this process should be applicable to only translators receiving FM station signals, or also include those that receive third-adjacent channel translator signals directly off-air.

Other LPFM rule changes proposed

Elimination of LP-10

In the original Report and Order, the FCC authorized both the 100-watt LPFM service that exists to this day and a 10-watt service referred to as LP-10. LP-10, originally referred to as "microradio" was created as a result of the Petition for Rulemaking RM-9208 filed by Nickolaus Leggett and Don Schellhardt to create a very low power radio service for neighborhoods. During the first LPFM Filing Window Series in 2000 and 2001, the FCC only authorized LP-100 stations and then at the time, they had planned to come back to have an LP-10 filing window. Due to the complications that arose mainly around the Auction 83 "Great Translator Invasion" window, there was never a filing window for LP-10 stations. In this NPRM, the FCC seeks comments on whether the LP-10 service should be eliminated.

Proposal to add a new 250-watt LPFM service (LP-250)

The FCC requested comments based on previous suggestions made by the Amherst Alliance and the Catholic Radio Association (CRA) to permit LPFM stations in rural areas to operate at 250 watts effective radiated power (ERP). Amherst and CRA argued that rural LPFM stations are challenged to maintain economically viable stations in areas where population densities are low and larger coverage areas are possible.

This FCC requested comments on this proposal to expand radio service to areas where full-service operations may not be economically feasible. Such an approach would be consistent with the FCC's decision to adopt a more flexible definition of “local” applicant in non-urban areas where local applicants can be up to 20 miles from the transmitter. This would also put LPFM on a more equal footing with FM Translators.

Currently, distance separations between LP-100 stations and full-service stations on co-channel and first-adjacent channel stations include a 20 kilometer buffer zone. The LCRA states that distance separations cannot be reduced. The FCC proposed to use the same LP-100 distance separation requirements for co-channel and first-adjacent channel full-service stations for the new LP-250 service as the additional spacing would be absorbed by a portion of the buffer zone. Required distances to second-adjacent full-service stations, all LPFM stations, all FM Translator stations, all TV Channel 6 stations and all foreign allotments would increase for the new LP-250 service class.

The FCC asked whether geographic restrictions should be restricted in the following manner:

Markets 1 to 20: more than 30 kilometers from the center city.
Markets 21 to 50: more than 20 kilometers from the center city.
Markets 51 to 100: more than 10 kilometers from the center city.
Markets 101 and up and areas outside of metro markets: no geographic restrictions.

The FCC also suggested just an outright prohibition on LP-250 in all areas inside of the Top 50 markets.

The FCC asked that commenters address whether they should limit eligibility to operate in excess of the current 100 watts/30 meters maximum to previously licensed LPFM facilities in order to provide those LPFM licensees that have demonstrated their ability to construct and operate a limited opportunity to expand their listenership. They also asked commenters address whether increasing the maximum LPFM power level could result in an increased potential for interference. Specifically, should eligibility to increase power to 250 watts be limited to only those stations that can fully satisfy co-, first-, and second-adjacent channel spacing requirements?

Removal of intermediate frequency protection requirements

LPFM stations are currently required to protect full-service stations on their intermediate frequencies (+/- 53 or 54 channels, 10.6 or 10.8 MHz) while translator stations operating with less than 100 watts ERP are not. The FCC recognizes this disparity and propose to remove I.F. protection requirements for LPFM stations operating with less than 100 watts. The FCC believes the same reasoning that the Commission applied in exempting FM translator stations operating with less than 100 watts ERP from the I.F. protection requirements applies for LPFM stations operating at less than 100 watts ERP. These stations too are the equivalent of Class D FM stations, which are not subject to I.F. protection requirements. FM allotments would continue to be protected on the I.F. channels based on existing international agreements.

Requirements that LPFM applicants be community-based

There was confusion around the localism policies that an organization applying for an LPFM station must be local, as in having a headquarters, campus or 75 percent of the board members residing within 20 miles of the transmitter site (10 miles in Markets 1-50). The confusion was around whether the localism provision only applied at the time of application and what would happen if an LPFM station's licensee organization was to become non-local. To clarify this issue, the FCC proposes to amend §73.853(b) to read : “Only local applicants will be permitted to submit applications. For the purposes of this paragraph, an applicant will be deemed local if it can certify, at the time of application, that it meets the criteria listed below and if such applicant continues to satisfy the criteria at all times thereafter ….”.

Native Nations

Eligibility

The current version of §73.853 of the rules does not include federally recognized American Indian Tribes and Alaska Native Villages (“Native Nations”), consortia of Native Nations, or entities majority owned by Native Nations or consortia, among the categories of eligible applicants for stations in the LPFM service. In the recently adopted Rural Radio proceeding, the FCC has expressed their commitment to assisting Native Nations in establishing radio service to their members living on tribal lands, including a Tribal Priority that we incorporated into the threshold fair distribution analysis performed pursuant to Section 307(b) of the Communications Act of 1934, as amended (“Act”), when comparing mutually exclusive applications for permits to construct new or modified full-service NCE FM stations that propose service to different communities. In keeping with this commitment, the FCC requested comments on whether to modify the LPFM point system to award a point to a Native Nation proposing LPFM service to its community, but first, the FCC requested comments on Native Nation participation in LPFM application proceedings so they can first ensure that, under the rules, Native Nations are eligible to apply for stations in the LPFM service.

The FCC proposes to revise §73.853(a) of the rules by adding the following: “(3) Tribal Applicants, as defined in §73.7000 of this Part, that will provide non-commercial radio services.” They further proposed to revise §73.853(b) of the rules by adding the following: “(4) In the case of a Tribal Applicant, as defined in Section 73.7000 of this Part, the proposed site for the transmitting antenna is located on that Tribal Applicant’s ‘Tribal Lands,’ as defined in Section 73.7000 of this Part.” The FCC believed that allowing Native Nations to hold LPFM licenses will be consistent with the localism and diversity goals of the LPFM service and will further our goal of assisting Native Nations in establishing radio service to their members on tribal lands.

Multiple ownership of LPFM stations

The FCC requested comment on whether they should permit Native Nations and entities owned or controlled by Native Nations to seek more than one LPFM construction permit to ensure adequate coverage of tribal lands. For instance, they could permit this when Native Nations and entities owned or controlled by Native Nations seek to serve large, irregularly shaped or rural areas. Where this is the case, an applicant may be unable to ensure adequate coverage of tribal members and tribal lands with one LPFM station. They also could permit multiple ownership only when there are available channels for other applicants. In such instances, there would be no risk that a new entrant would be precluded from offering service. They believed permitting Native Nations to hold more than one LPFM license would advance the Commission’s efforts to enhance the ability of Native Nations not only to receive radio service tailored to their specific needs and cultures, but to increase ownership of such radio stations by Native Nations and entities owned or controlled by Native Nations. They requested comment on whether to accomplish this through amendment of Section 73.855(a) of the rules or through waiver.

Cross-ownership of FM Translators by LPFM stations

Since the creation of LPFM, the FCC had prohibited common ownership of an LPFM station and any other broadcast station, as well as other media subject to the FCC's ownership rules.This prohibition furthers one of the most important purposes of establishing the LPFM service – “to afford small, community-based organizations an opportunity to communicate over the airwaves and thus expand diversity of ownership.” The FCC requested comment on whether to revise our rules to permit cross-ownership of an LPFM station and an FM translator or translators. They noted that this revision could enable LPFM stations to expand their listenership and provide another way in which translators could serve the needs of a community. They did not believe allowing limited cross-ownership of LPFM stations and FM translators will have a negative effect on the diversity of ownership. However, they did solicit comment on this issue. They requested comment on how cross-ownership of an LPFM station and an FM translator station would impact the extremely localized service that LPFM stations provide. They solicited input on whether to authorize such cross-ownership only if the FM translator rebroadcasts the programming of its co-owned LPFM station; whether they should require some overlap of the 60 dBu contours of the cross-owned stations; whether to set some distance or geographic limits on the cross-ownership; and whether to permit an LPFM station to use an alternative signal delivery mechanism to deliver its signal to a commonly owned FM translator.

Section among mutually exclusive applicants

Proposed changes to the point system

Established community presence

The FCC proposed to revise the language of §73.872(b)(1) to clarify that an applicant must have had an established local presence for a specified period of time prior to filing its application and must maintain that local presence at all times thereafter. They noted that, while §73.872(b)(1) currently does not include the requirement that an applicant maintain its local presence, they believed that is the only reasonable interpretation of the rule. They requested comment on this proposed change to §73.872(b)(1).

The FCC requested comment on three additional changes to the rule:

Extend local presence length. They requested comment on whether to revise the definition of “established community presence” to require that an applicant have maintained such a presence for a longer period of time, such as four years. While this change in the rules would result in a smaller pool of organizations that could earn this comparative point, they believed it would better ensure that LPFM licensees are attuned to the local interests of the communities they seek to serve. Alternatively, should the FCC maintain the two-year threshold but also award an additional point to applicants that have a substantially longer established community presence (e.g., four years)?
Extend distance of local area. They requested comment on whether they should modify §73.872(b)(1) to extend the “established community presence” standard to 20 miles in rural areas. They noted that such a change would bring §73.872(b)(1) in line with §73.853(b).
Consortiums. They requested comment on whether to allow local organizations filing as consortia to receive one point under the established community presence criterion for each organization that qualifies for such a point. If they were to revise §73.872(b)(1) in this fashion, should they cap the number of points awarded to consortia at three? They noted that, currently, applicants tied with the highest number of points may enter into time-share agreements. In such a situation, their points are aggregated. This proposal would operate in a similar fashion, except that it would precede and potentially preclude post-filing point aggregation settlements. We believe this proposed change could significantly promote diversity, speed the licensing process and provide further incentive for applicants to enter into voluntary time-sharing arrangements in spectrum-limited areas. However, they requested comment on whether there is any potential for abuse of such a change in the rules and, if so, how the FCC can prevent it. For instance, could this proposed rule change lead local organizations interested in constructing and operating an LPFM station to recruit other local organizations that have no interest in doing so to participate in a consortium in order to inflate the consortium’s point total?

Local program origination

The FCC requested comment on whether to place greater emphasis on this selection factor by awarding two points – instead of the one point currently awarded – to an applicant that pledges to originate at least eight hours of programming each day.

Do the limited licensing opportunities for LPFM stations in major markets support giving greater weight to this criterion?
Does the potential for awarding up to three points to a consortium under the established community presence criterion justify an increase in the points awarded under this criterion? Should we modify the definition of local program origination for LPFM stations that serve rural areas?
The FCC requested that commenters specifically address whether increasing the weight of this criterion is warranted in light of their previous finding that local programming is not the only programming of interest or value to listeners in a particular locale.
Alternately, should they impose a specific requirement that all new LPFM licensees provide locally-originated programming? Parties supporting this proposal are requested to show that the Commission’s prior finding is no longer valid and identify problems or short-comings in the current LPFM licensing and service rules that this change would remedy. Parties supporting this proposal also are requested to address any constitutional issues that it raises.

Native Nations and other additional selection criteria

The FCC requested comment on whether to develop additional selection criteria for the LPFM point system in order to limit the number of involuntary time-share licensing outcomes. Specifically, they requested comment on whether they should modify our point system to award a point to Native Nations and entities owned or controlled by Native Nations, when they propose to provide LPFM service to Native Nation communities. They noted that this criterion would be similar to the “Tribal Priority” that was incorporated into the threshold fair distribution analysis that they perform pursuant to Section 307(b) of the Communications Act, when they are faced with mutually exclusive applications for permits to construct new or modified full-service FM, AM or NCE FM stations that propose service to different communities. That priority applies to Native Nations and entities owned or controlled by Native Nations, when they propose new radio services that primarily would serve Native Nation lands. They also noted that we believe adoption of a Native Nation selection criterion would further our efforts to increase ownership of radio stations by Native Nations and entities owned or controlled by Native Nations and to enable Native Nations and such entities to serve the unique needs and interests of their communities. Finally, in addition to seeking comment on this “Native Nation” criterion, the FCC invited the submission of additional proposals for new selection criteria, provided they are (a) specifically linked to Commission policy, and (b) structured to withstand scrutiny under applicable legal standards.

Proposed changes to the tie breaker process

Currently, in the event the point analysis results in a tie, the FCC employs voluntary time-sharing as the initial tie-breaker. In these circumstances, the FCC releases a public notice announcing the tie and gives the tied applicants the opportunity to propose voluntary time-sharing arrangements. Currently, following the award of voluntary time-share construction permits, if one of the participants in a voluntary time-sharing arrangement does not construct or surrenders its station license after commencing operations, the remaining time-share participants are free to apportion the vacant air-time as they see fit. The FCC requested comment on the procedures we should adopt to address the surrender or expiration of a construction permit – or the surrender of a license – issued to a participant in a voluntary time-sharing arrangement. They noted that the current policy regarding air-time reapportionment presents the potential for abuse in the LPFM licensing process. For instance, out of a group of tied mutually exclusive applicants, some could enter into a time-share arrangement in order to aggregate their points and prevail over others with the knowledge that not all of the prevailing applicants intend to build and operate their LPFM stations. The FCC requested comment on ways to reduce the potential for abuse of the air-time reapportionment policy.

Should the FCC open a “mini-window” for the filing of applications for the abandoned air-time?
Could they limit eligibility to unsuccessful applicants from the same mutually exclusive group in the initial window?
Is such an approach consistent with Ashbacker requirements?

The FCC believed limiting the applicant pool for a “mini-window” to unsuccessful applications from the same mutually exclusive group will provide organizations with an incentive to participate in the LPFM licensing process at the earliest opportunity (i.e., during the initial filing window). It also will expedite the filling of dead air-time and promote the goal of reducing the potential for abuse of the air-time reapportionment policy while minimizing the administrative complexities involved. In this regard, they believed that the procedures they develop to select successor permittees and licensees must operate efficiently. The air-time being filled will cover only a limited portion of each broadcast day. The FCC must balance our desire fill air-time with the need for administrative efficiency, particularly as we anticipate the considerable licensing burdens that are likely to result from the upcoming LPFM window.

Under another approach, a non-prevailing applicant could express its interest in being selected as a successor time share permittee in the event that the tentatively selected applications are granted and either a permittee fails to construct or a licensee abandons its time. One option would be to require the filing of such expressions of interest by the deadline for filing of petitions to deny the applications of the tentative selectees. The staff then could identify the applicant with the highest point total among those filing an expression of interest and retain this application in pending status. If the FCC modifies their air-time reapportionment policy in voluntary time sharing situations to reduce the potential for abuse, they proposed that the changes would apply only during the first four years of licensed station operations, as they do in the NCE FM licensing context. If a time share licensee abandons its air-time after the first four years of licensed station operations, they propose to allow the remaining time-share participants to apportion the vacant air-time as they see fit just as they do under the current air-time reapportionment policy. We seek comment on these proposals. They FCC requested comment on whether, if they were to modify the established community presence criterion to award additional points to consortia, these new procedures also should apply to permits awarded under this modified criterion.

Time sharing requests for unused blocks of time

Currently, the FCC requires LPFM stations to meet the same minimum operating hour requirements as full-service NCE FM stations.160 Like NCE FM stations, LPFM stations must operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week. However, while the FCC has mandated time sharing for NCE FM stations that meet the Commission’s minimum operating requirements but do not operate 12 hours per day each day of the year, it has not done so for LPFM stations. The FCC requested comment on whether they should extend this mandatory time-sharing to the LPFM service. They believed that doing so could increase the number of broadcast voices and promote additional diversity in radio voices and program services.