Fifth Order on Reconsideration

Fifth Order on Reconsideration
Document Information
Type	Order on Reconsideration
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)	77 FR 73545
Federal Register Date(s)	December 11, 2012
Relevant Dates
Adoption Date	November 30, 2012
Release Date	December 4, 2012
Commissioner Statements
Approve	Pai, Clyburn, McDowell

This Order on Reconsideration addresses various Petitions for Reconsideration filed in response to the Fourth Report and Order which addressed various issues related to FM Translators including a national cap of still pending FM translator applications of 70 (of which, up to 50 can be in metro markets) and an additional cap of one application per metro market. This Order on Reconsideration was released simultaneously with the Sixth Report and Order.

Translator application caps

History

The FCC released the Fourth Report and Order on March 19, 2012. The Commission affirmed its decision to reject the prior national cap of 10 translator applications per applicant (10-cap). It adopted a modified market-specific translator licensing scheme which incorporated a number of commenter proposals. To minimize the potential for speculative licensing conduct, the FCC established a national cap of 50 applications (50-cap) and a local cap of one application per applicant per market for the 156 Arbitron Metro markets identified in Appendix A of the Fourth Report and Order. Prior to the 2003 Auction 83 "Great Translator Invasion" filing window, there were 3,818 licensed FM translators. 13,377 translator applications were filed in the Auction 83 window. From that group, 3,476 new authorizations were issued prior to the FCC imposing a previous freeze on grants. Of those grants, over 25 percent were never constructed and almost 40 percent were assigned (sold) to a party other than the original applicant.

Trafficking of FM Translator construction permits

Although 97 percent of the filers filed fewer than 50 applications, the remaining three percent filed 8,163 applications, representing 61 percent of the total applications filed in the window. The largest filer was commonly owned Radio Assist Ministries and Edgewater Broadcasting (RAM), which filed 4,219 applications and received 1,046 grants prior to the freeze. When the FCC adopted the prior 10-cap, RAM had sought to assign more than 50 percent of the construction permits it has received and had already consummated the sale of more than 400 of those permits. The FCC based the 10-cap on the need to preserve spectrum for future LPFM availability and the need to protect the integrity of the translator licensing process.

In the Third Further Notice of Proposed Rulemaking, when the FCC proposed to replace the 10-cap with a market-specific processing system, they tentatively concluded that such a processing system would not be sufficient to address the potential abuses in translator licensing and trafficking. They noted that the vast majority of applicants hold only a few applications, but the top 20 applicants collectively account for more than half of the pending applications. Similar imbalances exist in particular markets and regions. For instance, one applicant holds 24 of the 24 translator applications proposing operation within 20 kilometers of Houston’s reference coordinates and 73 applications in Texas. Two applicants hold 66 of the 74 applications proposing service to the New York City radio market.

They also described a number of factors that create an environment which promotes the acquisition of translator authorizations solely for the purpose of selling them. First, they expected that a substantial portion of the remaining translator grants will be made pursuant to our settlement (i.e., non-auction) procedures. Second, translator construction permits may be sold without any limitation on price. Third, permittees are not required to construct or operate newly authorized facilities before they can sell their authorizations. Collectively, these factors created an incentive for speculative filings and trafficking in translator authorizations. The FCC concluded that such behavior damages the integrity of our licensing process, which assigns valuable spectrum rights to parties based on a system that gives priority to applications filed in one filing window over subsequent applications based on the assumption that the applications filed in the earlier window are filed in good faith by applicants that intend to construct and operate their proposed stations to serve the public. The history of the Auction 83 translator applications strongly supports the FCC's view that speculative applications delay the processing of bona fide applications, thereby impeding efforts to bring new service to the public. The FCC noted that these speculative translator applications have also delayed the introduction of new LPFM service pursuant to the mandate under the LCRA to provide licensing opportunities for both LPFM and translator stations.

The extraordinarily high number of applications filed in the Auction 83 window, particularly by certain applicants (both nationally and in certain markets), and the significant number of authorized stations that were either assigned to another party or never constructed are strong indicia of applications filed for speculative purposes (either for potential sale or to game the auction system) rather than a good faith intent to construct and operate the proposed stations. Based on those concerns, the FCC sought comment on whether a national cap of 50 or 75 applications would force filers with a large number of applications to concentrate on those proposals and markets where they have bona fide service plans. We also asked whether applicants should be limited to one or a few applications in a particular market, noting that such a restriction “could limit substantially the opportunity to warehouse and traffic in translator authorizations while promoting diversity goals.

Fourth Report and Order

The Fourth Report and Order concluded that both a national cap and a per-market cap for the 156 identified metro markets were appropriate to limit speculative licensing conduct and necessary to bolster the integrity of the remaining Auction 83 licensing. The FCC stated that non-feeable application procedures, flexible auction rules, and flexible translator settlement and transfer/assignment rules clearly have facilitated and encouraged the filing of speculative proposals. The FCC acknowledged that while high-volume filers did not violate the rules, these types of speculative filings are fundamentally at odds with the core FCC broadcast licensing policies and contrary to the public interest.

The Fourth Report and Order rejected other potential anti-trafficking proposals offered by commenters, stating that application caps were the most administratively feasible solution for processing this large group of long-pending applications. The FCC stated that we considered caps to be the only approach that would not only limit trafficking in translator authorizations but also fulfill their mandate under the LCRA to provide the fastest path to additional translator and LPFM licensing in areas where the need for additional service is greatest.

The FCC adopted the 50-cap, which they found would affect no more than 20 of the approximately 646 total applicants in this group, and that this was a reasonable number of stations to construct and operate as proposed and would place restraints on trafficking of permits on the open market. The FCC also noted that there was some agreement on such a limit even among translator advocates. The FCC also adopted a per-market cap of one application per market in the top 150 Arbitron Metro markets plus six additional markets where more than four translator applications are pending. They noted that some applicants had filed dozens of applications for a particular market, when it was inconceivable that a single entity would construct and operate so many stations there. They concluded that such applications were clearly filed for speculative reasons or to skew our auction procedures. Given the volume of pending applications, they found that it was administratively infeasible to conduct a case-by-case assessment of these applications to determine whether they could satisfy our rule limiting the grant of additional translator authorizations to a party that can make a “showing of technical need for such additional stations” pursuant to §74.1232(b). Accordingly, the FCC adopted a cap of one translator application per market in the identified Arbitron markets. For applications outside those markets, where only a small number of applications will require analysis, the FCC decided to apply the Technical Need Rule on a case-by-case basis.

Petitions for Reconsideration filed and responsive pleadings

Educational Media Foundation (K-Love, Air1)

Educational Media Foundation (EMF) filed a Petition for Reconsideration seeking reconsideration as to both the 50-cap and the per-market cap of one application. EMF was the only one who filed against the 50-cap. EMF had at the time, 292 pending translator applications from the Auction 83 window. EMF received 259 translator grants from that window before the grant freeze.

EMF first contends that the Commission must clarify the definition of the term “radio market” as used in the Fourth Report and Order. EMF argues that the term could mean census-designated urban areas, metropolitan statistical areas, Arbitron Metro markets, or some definition connected to the “grids” used in determining whether markets are “spectrum limited” or not. Additionally, EMF argues that both the national cap and the per-market cap are arbitrary and capricious. EMF argues that the Commission did not adequately explain the “abusive” licensing activity relating to Auction 83 filings and did not adequately explain why other “more direct” measures to combat speculation are not being used. EMF also argues that the Commission did not adequately explain how the caps square with the Commission’s own conclusion that the LCRA requires it to make available licensing opportunities for both translators and LPFM stations “in as many local communities as possible.”

Hope Christian/Bridgelight/Calvary Finger Lakes joint petition

Hope Christian Church of Marlton, Inc. (Hope), Bridgelight, LLC (Bridgelight) and Calvary Chapel of the Finger Lakes, Inc. (CCFL) filed a joint Petition for Partial Reconsideration (Joint Petition) seeking reconsideration to revise the one-per-market cap to include a waiver process. Hope is the licensee of WVBV(FM), Medford Lakes, NJ (Philadelphia, PA Arbitron Metro market); WWFP(FM), Brigantine, NJ (Atlantic City-Cape May, NJ Arbitron Metro market); and WZBL(FM), Barnegat Light, NJ (Monmouth-Ocean, NJ embedded market). Hope has 46 pending translator applications from the Auction 83 window, of which 45 are in the identified markets and one outside. Hope received 21 translator grants before the processing freeze, primarily in the Philadelphia and Baltimore Arbitron Metro markets. Hope constructed all of those proposed stations. Bridgelight is the licensee of WRDR(FM), Freehold Township, NJ (Monmouth-Ocean, NJ embedded market); and WJUX(FM), Monticello, NY (outside the identified markets). Bridgelight has 16 pending applications from the Auction 83 window. Bridgelight received five translator grants before the processing freeze (primarily in the New York Arbitron Metro market), but assigned all of them to other parties. CCFL is the licensee of WZXV(FM), Palmyra, NY (Rochester, NY Arbitron Metro market). CCFL has 16 pending translator applications from the Auction 83 window, of which eight are in identified markets (five in the Buffalo, NY Arbitron Metro market and three in the Rochester, NY Arbitron Metro market). CCFL received 14 translator grants before the processing freeze (primarily in the Buffalo and Rochester Arbitron Metro markets), but assigned five of those to other parties and cancelled another one.

Their Joint Petition maintained that the one-per-market cap unfairly harms local and regional applicants that have filed applications in a limited number of markets for the purpose of reaching distant communities in geographically large markets. The Joint Petition argued that the one-per-market cap should be supplemented with a waiver process that allows for waivers (with no limit on the number of authorizations in a market) under three conditions:

The 60 dBu contour of the translator application cannot overlap the 60 dBu contour of any commonly-controlled application;
The application would not preclude a future LPFM application in the grid for the identified market or at the proposed transmitter site; and
The applicant agrees to accept a condition on the construction permit that disallows sale of the authorization for a period of four years after the station commences operation.

Conner Media, Inc.

Conner Media, Inc. filed a Petition for Partial Reconsideration. Conner is the licensee of WAVQ(AM), Jacksonville, NC (Greenville-New Bern-Jacksonville, NC Arbitron Metro market). Conner states that it filed translator applications in five different locations to serve the Greenville-New Bern-Jacksonville, NC Arbitron Metro market, which comprises ten diverse counties. Conner expresses interest in assigning additional permits from its pending applications to other AM broadcasters who would benefit from the nighttime service available on a translator. Conner argues that any local translator cap should be per-community, not per-market.

Western North Carolina Public Radio, Inc.

Western North Carolina Public Radio, Inc. is the licensee of noncommercial educational stations WCQS(FM), Asheville, NC; WFSQ(FM), Franklin, NC; and WYQS(FM), Mars Hill, NC (all in the Asheville, NC Arbitron Metro market). WNC filed a Petition for Reconsideration arguing that its Arbitron Metro market, Asheville, NC, should not be included in the identified markets or, alternatively, that the community of Black Mountain, NC, should not be considered part of that market because it is separated by a mountain range from Asheville and therefore requires its own translator service. WNC notes that Asheville is the 159th Arbitron Metro market, but was considered an identified market because more than four translator applications are pending in that market.

CircuitWerkes/Kyle Magrill

Magrill has seven pending translator applications from the Auction 83 window in four identified markets in Florida. Magrill received three translator grants before the processing freeze took effect. Magrill argues that the Commission did not propose per-market caps in the Third Further Notice, but instead called for processing all translator applications in non-spectrum limited markets. Magrill argues that the number of translator sales has not been so high as to present a problem. Magrill notes that many markets are geographically and ethnically diverse and also notes that HD channels have increased the need for multiple translators in certain locations. Magrill argues that the per-market cap particularly hurts local service providers who did not exceed the national cap. Magrill argues that the cap should be revisited and at least eased in markets that are not spectrum limited.

Prometheus Radio Project's opposition

Prometheus Radio Project argued that the Commission properly defined the “market” for the one-per-market translator caps as the Arbitron Metro market. Prometheus rejects Magrill’s claim about lack of notice, noting that the Commission specifically asked for comments on whether translator applicants should be limited to one or a few applications in any particular market and that this material was published in the Federal Register. Prometheus then argues that the caps will prevent speculation and preserve radio market diversity. Prometheus opposes any waiver process that would delay the LPFM application window

REC Networks' partial opposition

REC Networks supported the national cap of 50 applications, but believes the per-market cap may be overly restrictive. REC argued for adoption of a waiver standard that is more stringent than the one proposed in the Joint Petition. REC suggests the following additional criteria:

The applicant must accept a condition on its construction permit that for a four-year period after commencing operations, the translator must be commonly owned with the primary station and must rebroadcast the primary analog output of that station;
The 60 dBu contour of the translator application must not overlap (i) a 30 kilometer radius around the center of markets 1-20, (ii) a 20 kilometer radius around the center of spectrum limited markets 21-50, or (iii) a 10 kilometer radius around the center of spectrum limited markets 51-100; and
Applications grantable under this waiver must also comply with the national cap of 50 applications.

Reply comments

In reply comments, Conner, the Joint Petitioners and Magrill reiterate their prior positions. Four Rivers Community Broadcasting Corporation filed a reply arguing for a waiver standard similar to the standard suggested by the Joint Petition. One Ministries, Inc. and Life On The Way Communications, Inc. filed reply comments arguing for separation of embedded markets from the core market, particularly in the case of San Francisco, San Jose and Santa Rosa.

Outcome

Definition of markets

Market boundaries

The FCC clarified that the appendix (Appendix A) included with the Fourth Report and Order made it clear that that they were referring to Arbitron Metro markets rather than non-Arbitron data such as census data. Although they did not describe the markets as Arbitron Metro markets, the only alternative type of Arbitron radio market is an Arbitron Total Survey Area. Appendix A could not be interpreted to mean Arbitron Total Survey Area, however, because there is no Arbitron Total Survey Area for many of the markets listed in Appendix A, particularly the largest radio markets. Accordingly, contrary to EMF’s claim, the FCC did not believe there could reasonably have been any confusion over the fact that Appendix A refers to Arbitron Metro markets. In any event, they clarified that the markets listed in Appendix A are Arbitron Metro markets.

Determination of which market a transmitter site is in

EMF also argues that the Fourth Report and Order did not spell out how an application would be deemed to be within an Appendix A market. The FCC disagreed. Both the Third Further Notice and the Fourth Report and Order consistently referred to the proposed transmitter site as the determining factor for whether an application would be considered to be within a particular market. In fact, the Third Further Notice adopted a processing freeze on “any translator modification application that proposes a transmitter site for the first time within any [spectrum-limited] market,” while allowing any translator modification application “which proposes to move its transmitter site from one location to another within the same spectrum-limited market.” The detailed market-specific translator processing policy adopted in the Fourth Report and Order specifically refers to the proposed transmitter site as the determining factor, and the translator cap discussion in the Fourth Report and Order likewise refers to proposed transmitter locations. In any event, the FCC clarified here that a translator application is considered within an Arbitron Metro market for purposes of the per-market translator caps if it specifies a transmitter site within that Arbitron Metro market.

Embedded markets

An embedded market is a unique marketing area for the buying and selling of radio air time. It is contained, either in whole or in part, within the boundaries of a larger “parent” market. For example, in the San Francisco market, there are two embedded markets for San Jose and Santa Rosa. The FCC clarified that as long as the embedded market appears in Appendix A, it will be considered a separate market for the per-market caps.

Changes to the proposed 50-cap

The need for the 50-cap

EMF was the only party to challenge the national cap of 50 applications. EMF focused its challenge to the national cap of 50 translator applications on two claims. First, EMF claimed that the cap is based on an erroneous assumption that translator applicants with higher numbers of pending applications do not intend to construct all of those proposed stations. Second, EMF pointed out that the Commission chose a cap of 50 as the most “administratively feasible solution for processing this large group of long-pending applications” instead of “more direct means” of curbing speculation, such as limits on sales of new translator construction permits or the prices at which they can be sold.

The FCC claimed that EMF's first objection mischaracterizes their decision on the national cap by treating it as an unverified assumption about the number of stations that applicants could build or wish to build. The FCC acknowledged that they could not divine an applicant’s intentions based on simple statistics, but that is not what they attempted to do. Rather, the FCC developed a processing policy that would reasonably balance competing goals. The cap of 50 does not assume that an applicant could only intend to construct, or be able to construct, 50 new translator stations, but it also required applicants to prioritize their filings and focus on applications in those locations where they have a bona fide interest in providing service and on applications that are most likely to be grantable, while deferring their pursuit of other opportunities until a future filing window. In that regard, the FCC reiterated that their conclusion here about speculative filings by high-volume applicants is supported by the data showing that an unusually large number of the translator grants from this filing window were not constructed or were assigned to a party other than the applicant. The FCC believed that applicants subject to the cap are likely to choose applications that (1) they expect to be granted, (2) they plan to construct and operate, and (3) will fill an unmet need, thereby improving competition and diversity. EMF did not show that this expectation is unreasonable.

The FCC also claimed that EMF’s second argument overlooks many relevant considerations. First, EMF failed to note that most of the applicants subject to the cap received many grants before the processing freeze took effect. EMF itself received 259 grants, so for EMF the cap translates into 259 granted applications, plus as many additional applications that EMF selects that result in grants. Second, as the FCC previously noted, future translator windows will provide additional new station licensing opportunities. With their flexible translator licensing standards, the FCC expressed confidence that “comparable licensing opportunities will remain available in a future translator filing window” with respect to applications dismissed pursuant to the application caps and their market-based processing policy. Third, EMF overlooked the FCC's explicit balancing of “the competing goals of deterring speculation and expanding translator service to new communities.” In doing so, the FCC selected the number of 50 applications to affect no more than 20 applicants, representing only three percent of the pool of Auction 83 applicants but approximately half of the pending applications. Thus, a national cap of 50 applications would allow 97 percent of applicants to prosecute all of their pending applications, and it will allow approximately 50 percent of all pending applications to be processed, while curbing the excessive number of applications filed by 3 percent of the filers.

With respect to the choice of an application cap over other options such as antitrafficking rules, EMF claims erroneously that the FCC's objective was to limit the number of applications they had to process. The FCC chose an application cap “both [to] deter trafficking and provide the fastest path to additional translator and LPFM licensing in areas where the need for additional service is greatest.” That approach benefits both translator and LPFM applicants and the public they seek to serve. An application cap provides an immediate solution to the trafficking issue and also ameliorates the impact of translator applications on LPFM service while avoiding the lead time necessary to develop and adopt new anti-trafficking rules or the resources needed to enforce such rules. This is why the FCC described application caps as “the most administratively feasible solution for processing this large group of long-pending applications.” Advocates of anti-trafficking rules, such as EMF, have not shown that this conclusion is flawed

Increase of the 50-cap to a "70-cap"

The FCC did, however, grant reconsideration with respect to the national cap of 50 applications in order to better ensure equitable distribution of radio service between urban and rural areas. The FCC recognized that parties restricted to 50 applications will tend to choose applications in urban areas, because those applications offer potential service to the greatest number of people. The FCC believed that a modest relaxation of this restriction can provide additional service to rural areas without sacrificing the integrity of our licensing process or opportunities for new LPFM service. Accordingly, the FCC allowed applicants to prosecute up to 70 applications nationally, provided that no more than 50 of those are in Appendix A markets. All selected applications outside the Appendix A markets must meet certain conditions. Specifically, the applications outside the Appendix A markets must:

comply with the restriction against overlap with the applicant’s other pending translator applications and authorizations set forth in paragraph 58 below with respect to the per-market cap, and
protect at least one channel for LPFM filing opportunities at the proposed transmitter site for each short form application specifying such site, as shown in the type of “out of grid” preclusion study described below with respect to the per-market cap.

In addition, to ensure that these authorizations will not be relocated to Appendix A markets, the FCC imposed a condition restricting their relocation. Specifically, during the first four years of operation, none of these authorizations can be moved to a site from which (calculated in accordance with Section 74.1204(b) of our Rules) there is no 60 dBu contour overlap with the 60 dBu contour proposed in the application as of the release date of this Fifth Order on Reconsideration.

The FCC stated that their decision to establish a national cap is an exercise in line-drawing that is committed to agency discretion. Their choice of a limit of 70 applications nationally, with no more than 50 applications in the Appendix A markets (70-cap), reasonably balances competing goals based on a careful evaluation of the record.

Changes to the proposed 1-per-market cap

The need for a per-market cap

The FCC stated that EMF characterizes the per-market cap as arbitrary and capricious. However, the record here clearly demonstrates that speculative translator filing activity was not only a national problem but also a local market problem. In the Third Further Notice, the FCC described exactly this situation, noting that one applicant held 25 of the 27 translator applications proposing locations within 20 kilometers of Houston’s center city coordinates and 75 applications in Texas. We also noted that two applicants held 66 of the 74 applications proposing service to the New York City Arbitron Metro market. The FCC concluded that EMF did not show that their analysis as to speculative filings activity within Appendix A markets was incorrect.

Non top-150 markets identified in the Fourth Report and Order

Appendix A to the Fourth Report and Order included six non-top 150 markets, including Asheville, NC, because they have more than four translator applications pending. Such a large number of applications for markets outside the top 150 markets suggests speculative filing activity. Although Western North Carolina Public Radio, Inc. (WNC) claimed that it filed multiple applications to serve "various clusters of communities" in the Asheville market, it did not explain how its proposed service would achieve that result with respect to Black Mountain, NC, which is the focus of the WNC Petition. All of WNC’s applications there specify Black Mountain as the community of license and, with only one exception, propose the same transmitter site. In addition, the FCC stated that WNC failed to show any error in the Commission’s analysis of the need to apply the market cap to those markets listed in Appendix A that are outside of the top 150 markets, or any valid justification for departing from Arbitron Metro market definitions. Arbitron Metro market definitions are based on multiple demographic/geographic factors, including terrain issues. Accordingly, the FCC denied WNC’s request to exclude Asheville, NC from Appendix A or in the alternative exclude the community of Black Mountain from the Asheville market.

Addressing the concerns of Conner and Magrill

Conner Media argued that any local application cap on translators should be per-community, based on the number of service-restricted AM stations in any given community. Kyle Magrill similarly pointed out that there is increased demand for FM translators, both to rebroadcast AM stations and to rebroadcast HD radio streams. However, the FCC had an obligation to address abusive application conduct, as described above, regardless of the supply/demand balance in the marketplace. In fact, trafficking in translator authorizations could only occur where there is demand, so the existence of such demand supports, rather than undercuts, the FCC's rationale for curbing speculation. With respect to Conner’s suggested cap based on the proposed community of license rather than the Arbitron Metro market, the FCC determined it to be impractical from an administrative standpoint.

The FCC stated that the record in this proceeding strongly supports a limit on translator applications within each Arbitron Metro market identified in Appendix A to protect the integrity of the licensing process. They recognized that EMF proposed anti-trafficking restrictions as an alternative approach, but the FCC's rationale for rejecting those restrictions in favor of a national cap applies equally to the per-market cap. Accordingly, the FCC rejects the claim that a per-market cap is arbitrary and capricious.

Addressing the Joint Petitioners and the oppositions by Prometheus and REC

Although the petitioners do not challenge the FCC's conclusion that it is infeasible to apply the Technical Need Rule to the thousands of pending translator applications, they did argue that one translator can only serve a small portion of most markets in Appendix A. The Joint Petition focuses on the Joint Petitioners’ attempts to build regional networks of translators to rebroadcast the signals of their NCE stations. REC independently analyzed the applications of the Joint Petitioners and agrees that many of these applications propose operations very distant from the center of the Arbitron Metro market. REC agrees that, with appropriate limits, allowing such applications to be processed would improve diversity and competition in underserved areas, without impinging on LPFM filing opportunities. The FCC believed the Joint Petition and the REC Partial Opposition raise a valid point as to whether the one-per-market cap is overly restrictive. The Joint Petition states that the Joint Petitioners are prosecuting their pending translator applications not to speculate in translator permits or to manipulate the auction process, but in hopes of increasing the reach of their NCE stations. Based on its analysis of Joint Petitioners’ applications, REC agrees that the Joint Petition demonstrates that the one-per-market cap is overly restrictive.

Prometheus Radio Project urged the FCC that the one-per-market cap be retained as “a crucial way to address the existing disparity” between the number of authorized translators and the number of authorized LPFM stations. This argument appears to assume that any expansion in FM translator licensing will reduce opportunities for LPFM licensing. Clearly, that is not the case. With the FCC's market-based translator processing policy, as well as their national and per-market caps on translator applications, they have put strong limits in place to preserve LPFM filing opportunities. The expansion of the per-market cap will not reduce opportunities for LPFM licensing because all translator applicants taking advantage of that change will need to protect LPFM filing opportunities when they do so. The FCC concluded that their adjustment of the per-market cap in this order will not negatively affect LPFM licensing opportunities.

The Joint Petition proposed a waiver process under which the one-per-market cap would remain in place, but waivers would be available for applications meeting certain criteria:

the 60 dBu contour of the translator station would not overlap the 60 dBu contour of any commonly controlled application;
the application will not preclude the approval of a future LPFM application in the grid or at the proposed facility’s transmitter site; and
the applicant agrees to accept a condition on its construction permit that disallows the for-profit sale of the authorization for four years after the station begins operation.

REC agrees with these conditions, but proposes additional requirements:

the translator station, for four years after beginning operation, must be co-owned with the primary station and rebroadcast that station’s primary analog signal;
the 60 dBu contour of the translator must not overlap the central core of the market; and
additional applications being prosecuted under this waiver would remain subject to the national cap.

The FCC agreed with certain elements of the Joint Petition and the REC Partial Opposition, but the FCC's revised per-market cap would vary in certain respects. First, they would not rely on an anti-trafficking condition. As we explained above, we believe such conditions are subject to circumvention, and monitoring compliance with an anti-trafficking condition would be unduly resource-intensive and could delay processing. Second, the FCC believed it was unnecessary to allow parties to prosecute a large number of translator applications within an Appendix A market, as would be possible under the waiver procedures advocated in the Joint Petition. As the FCC had shown, the Joint Petitioners and other applicants already have received a significant number of translator grants from the Auction 83 application process. Further, the FCC's clarification of embedded markets will help these parties prosecute more applications within embedded markets. As the FCC had previously stated, they will also expect that translator applicants will not be foreclosed from comparable application opportunities in the next translator filing window.

Per-market cap increased to three, with conditions

Based on their analysis of pending applications, the FCC believed that a limit of three applications per applicant in the Appendix A markets was appropriate, subject to the conditions described below. With those conditions, the FCC believed this relaxation in the per-market cap will improve diversity and competition in under-served areas of the Appendix A markets without precluding LPFM filing opportunities or increasing significantly the potential for licensing abuses.

The relaxed limit of three applications per market will only apply to an applicant that shows that its applications meet the conditions described below. As they indicated below, the FCC instructed the Media Bureau to issue a public notice asking any applicant that is subject to the national cap or the per-market cap to identify the applications they wish to prosecute consistent with the caps and to show that those applications comply with the caps. If a party has more than one application in an Appendix A market but fails to submit a showing pursuant to the public notice, or submits a deficient showing, the FCC would not analyze their applications independently to assess whether they comply with the conditions that there be no 60 dBu overlap with that party’s other applications or authorizations and that there be no preclusion of LPFM filing opportunities. Accordingly, in those situations the FCC would process only the first filed application for that party in that market.

Translator processing policies

The FCC adopted the following processing policies: The protected (60 dBu) contour (calculated in accordance with Section 74.1204(b)) of the proposed translator station may not overlap the protected (60 dBu) contour (also calculated in accordance with Section 74.1204(b)) of any other translator application filed by that applicant or translator authorization held by that applicant, as of the date of the release of this Fifth Order on Reconsideration. Because the FCC's goal was to expedite the processing of applications, they will not accept an alternative contour prediction method study to establish lack of 60 dBu contour overlap. The concern they had about service duplication applies even more strongly when a party already has an existing translator station providing service to the same area proposed by that party in an application. Accordingly, they expanded the proposed condition to include outstanding authorizations as well as applications. However, they will not extend this condition to limit applications based on parties’ attributable interests or common control of applicant and licensee entities. The pending Auction 83 applications lack any information about parties to the applications, and so they lack sufficient information to make determinations about attributable interests in other applications or common control of applicant entities. Asking applicants to amend their applications to provide this information would delay our efforts to ensure expeditious processing of translator and LPFM applications, and resolving disputes over whether an application is commonly controlled with another application or authorization would further delay this effort. Accordingly, consistent with the approach taken in the Fourth Report and Order, the FCC limited this condition to applications filed by and authorizations issued to the named applicant entity.

LPFM anti-preclusion study

The FCC agreed with the condition advocated by the Joint Petitioners and REC that the proposed translator station cannot preclude approval of a future LPFM application in the grid for that market, under the processing policy delineated in Section II.B of the Fourth Report and Order, or at the proposed out of grid transmitter site. To satisfy this condition, applicants must submit an LPFM preclusion study demonstrating that grant of the proposed translator station will not preclude approval of a future LPFM application. As the FCC explained in the Fourth Report and Order, one of their broad principles for implementation of the LCRA is that our primary focus under Section 5(1) must be to ensure that translator licensing procedures do not foreclose or unduly limit future LPFM licensing, because the more flexible translator licensing standards will make it much easier to license new translator stations in the future. This condition is consistent with that broad principle.

Under the procedure proposed in the Joint Petition and the REC Partial Opposition, compliance with the conditions described above would not be required for an applicant’s first translator application in an Appendix A market, but instead would only be required as part of a showing for additional applications in that market. The FCC believed, however, that it was appropriate to impose these conditions on all of the applications if a party chooses to prosecute more than one application in an Appendix A market so that translator applicants will have an incentive to provide more service to underserved areas of the Appendix A markets.

If a party instead elects to prosecute only one application in an Appendix A market, then it need not make a showing that the application complies with the translator processing policies and LPFM anti-preclusion studies above, when the local cap compliance showings are submitted. (However, if a party prosecutes only one application and it proposes substantial overlap with an existing translator authorization held by that party, the Technical Need Rule and FCC Form 349 will require the party to show a technical need for the second translator when the Form 349 application is due in order to justify a grant of that application.) The FCC provided this flexibility so that the revised policy is not more restrictive than the original one-pe-rmarket cap for any translator applicant.

Summary of policy and rule changes

As the FCC indicated in the Fourth Report and Order, the burden will be on each applicant to demonstrate compliance with the national and per-market application caps. Any party with

more than 70 applications pending nationally,
more than 50 applications pending in Appendix A markets, and/or
more than one pending application in any of the markets identified in Appendix A (subject to the clarification above as to embedded markets)

will be required by a forthcoming public notice to identify and affirm their continuing interest in those pending applications for which they seek further Commission processing, consistent first with the revised national cap, and then with the revised per-market cap of three applications.

They will also be required to demonstrate that the selected applications meet the conditions described in

the application caps described above with respect to applications outside the Appendix A markets for purposes of the national cap of 70 applications, and
the translator processing conditions and LPFM anti-preclusion study described above if they elect to prosecute more than one application in an Appendix A market.

Commissioner statements

Commissioner Ajit Pai stated that "raising the per-market cap from one translator to three will provide broadcasters a better opportunity to extend their service across large metropolitan areas. Moreover, the national cap of 50 translators would have forced broadcasters into choosing between more service for rural America and more service in profitable urban areas. I am grateful to the floor for adopting my suggestion and giving broadcasters the flexibility to pursue up to 70 applications so long as no more than 50 are in the nation’s largest markets. This change fulfills the purpose of section 307(b) of the Communications Act, which calls for us to 'provide a fair, efficient, and equitable distribution of radio service' among communities.

Commissioner Mignon Clyburn stated that "both translators and LPFMs connect users in rural and underserved areas with programming that would not be available otherwise, and the compromise in today’s order will allow the vast majority of translator applicants to continue serving these communities. Indeed, during the last application window, 97% of translator applicants filed fewer than the 50-application limit we put in place today. This limit will ensure that translator and LPFM licenses go to those applicants that are committed to connecting users with content while curbing counter-productive speculative behavior. To date, over 25% of translator authorizations have not been constructed, and nearly 40% have been assigned to parties other than the original applicants. Much of this represents speculative engagement, and many of these licenses could have been granted to LPFM and translator applicants who have a vision for community use."

Commissioner Robert McDowell approves the revising of the translator licensing procedures " to allow applicants to acquire up to three FM translators, as opposed to just one, in 156 larger markets if they meet certain requirements. Allowing the acquisition of more FM translators will enable applicants to serve their entire communities. Not only is this policy common sense, but is also helpful to broadcasters and listening audiences alike, especially in light of our earlier decision to permit the use of FM translators to rebroadcast AM station’s signals." He also stated "I also support relaxing the nationwide cap to allow licensees to acquire an additional 20 translators to serve smaller markets and rural America.1 Earlier this year, I proposed edits to adopt a similar framework prior to the adoption of the March order but I fell a few votes short, so naturally I’m happy that, after further reflection, we can all agree to include those ideas this time around. Now, FM translator applicants will ultimately have this additional flexibility to better serve their listeners."