Second Further Notice of Proposed Rulemaking

Document Information
Type	Termination of Proceeding
Docket Number(s)	MM 99-25
FCC Number	12-28
FCC Record	27 FCC Rcd 3315
Federal Register Citation(s)	77 FR 20555
Federal Register Date(s)	April 5, 2012
Relevant Dates
Adoption Date	March 19, 2012
Release Date	March 19, 2012

Second Further Notice of Proposed Rulemaking
Document Information
Type	Notice of Proposed Rulemaking
Docket Number(s)	MM 99-25
FCC Number	07-204
FCC Record	22 FCC Rcd 21912
Federal Register Citation(s)	73 FR 12061
Federal Register Date(s)	March 6, 2008
Relevant Dates
Adoption Date	November 27, 2007
Release Date	December 11, 2007
Comment Deadline	April 7, 2008
Reply Deadline	April 21, 2008

This Notice of Proposed Rulemaking (NPRM) was issued at the same time as the Third Report and Order (Third R&O). This NPRM expands on some of the issues discussed in the Third R&O including the making more permanent, the use of second-adjacent channel waivers to address full-service encroachment, the eligibility standards for LPFM stations receiving such waivers, whether full-service stations need to take LPFM stations into consideration on modification applications for community of license changes, the use of contour-based interference criteria in the LPFM service and the status of LPFM stations in respect to FM translators.

Nearly four years after collecting comments on this NPRM and following the enactment of the Local Community Radio Act of 2010, the FCC terminated this proceeding at the same time it issued the Fourth Further Notice of Proposed Rulemaking.

Issues up for consideration

Second-adjacent channel waiver standard

In the Third R&O, The FCC developed an interim processing plan to consider waiver requests of §73.807 from certain LPFM stations when a community of license modification of a full-service FM station would result in increased interference to an LPFM station or its displacement. The FCC asks whether they should codify that interim processing plan into the rules and further asks:

Would modifications to these policies better balance the interests of LPFM and full-service stations?
Should the procedures be narrowed to apply only when the LPFM station is subject to displacement pursuant to Section 73.809 of the Rules?
Should the Rules provide a deadline for the filing of the LPFM alternate channel application and waiver request and, if so, what should the deadline be?
Should waivers be limited to second-adjacent channel shortspacings?
Should waivers be granted only when the LPFM station can demonstrate no actual interference due to lack of population, terrain, or other factors, as we allow in the FM translator service?
Should continued LPFM operations be subject to the resolution of all bona fide actual interference complaints?
Should the “encroaching” full-service station be responsible for providing technical assistance and assuming financial responsibility for all direct expenses associated with resolving all bona fide actual interference complaints, e.g., the purchase of radio filters, etc.?
Do the orders to show cause procedures fully protect impacted stations’ due process rights?
Would additional procedures help ensure that the Commission has a full record on which to evaluate waiver requests?
Should these procedures be expanded to include co- and first-adjacent channel situations?
Are the rule changes warranted to provide maximum flexibility to propose LPFM station modifications?

Full service FM modification protection of LPFM facilities

In the Third R&O, the FCC developed an interim processing plan to address LPFM stations that would receive increased interference or displacement as a result of modifications made by full-service FM facilities. This can include the denial of the full-service modification if it can be shown that the LPFM station is unable to change to a fully-spaced channel or to a channel in which a second-adjacent channel waiver is needed. The FCC requested comments on each aspect of the current processing policy and further asks:

Should the presumption be limited to those LPFM stations that have regularly provided eight hours of locally originated programming daily?
What criteria should the Commission use to determine whether an LPFM station has “regularly” satisfied the eight-hour programming requirement?
Should the presumption be extended to protect LPFM stations against subsequently filed petitions for rulemaking for new FM allotments and/or modification applications not proposing community of license changes?
Are there any different approaches to resolve LPFM station displacement and conflicts and the reasons why such alternative approaches would more appropriately balance the interest of these services.

Obligations of Full-Service new station and modification applicants to potentially impacted LPFM stations

Currently, full-service FM station applicants have no obligations to assist with an LPFM station potentially impacted by implementation of its new station or modification proposal. The FCC believes this policy is inconsistent with the comity and respect to which LPFM stations are entitled and with certain reimbursement policies established for full-service stations which are involuntarily required to change channels. As part of the interim process, the FCC tentatively concluded that the full-service station needs to give notice to the LPFM station of its filing and that the full-service station should identify the results of its search to find an alternative channel fro the LPFM station. It should also be required to cooperate in good faith with the LPFM station in developing the best technical approach including possible relocation of the LPFM station and that the full-service station should reimburse the LPFM station for physical changes to the LPFM station's transmission system. The FCC seeks comments on each of these conclusion and on other measures to ensure the equitable treatment of LPFM stations.

The FCC believes these procedures should apply if the LPFM authorization was issued or if a pending application was filed prior to the filing of the full-service station application for a construction permit or license, including those that involve a change in the full-service FM community of license. The FCC tentatively concluded these procedures should be limited to situations in which implementation of the full-service proposal would result in the full-service and LPFM stations operating at less than minimum distance separation requirements or the permanent displacement of the LPFM station. The FCC requested comments on these issues.

Contour-based licensing for LPFM stations

The FCC uses a distance separation method. This method allows for a straight-forward standard for determining technical acceptability which permitted the use of "channel finder" websites operated by the FCC and by third parties. Prometheus Radio Project and other LPFM advocates argue that the FCC should adopt a more flexible "contour" methodology for the licensing of LPFM stations. As demonstrated by over 13,000 applications in the Auction 83 filing window, adoption of this standard would vastly expand LPFM licensing opportunities throughout the nation and create the possibility of locating new LPFM stations in a number of major and spectrum-congested markets.

The FCC states that the flexibility of FM translator licensing is based on four key factors:

Translators, like LPFM stations, may only operate with limited power. This necessarily limits distances from the proposed transmitter site to its co-channel and adjacent-channel interfering contours.
A protection method based on contours is a more flexible approach. Where distance separation is based on class maximum, contours are based on actual facilities.
Translators are licensed as secondary services and may receive interference from other facilities
Translator technical rules include a second and essential requirement, the inflexible obligation to resolve all bona fide actual interference complaints.

The Commission tentatively concluded that licensing of LPFM stations pursuant to contour based methodology is in the public interest. LPFM stations would be required to resolve actual interference complaints or cease operations. The FCC requested comments on this finding. The FCC also concluded not to use alternative terrain based propagation models such as Longley-Rice as it would impose an enormous staff processing burden and typically subject to opposition. Instead, permitting desired to undesired (D/U) ratios showings to establish lack of population in overlap areas subject to interference would provide amply license flexibility. The FCC asked for comments on whether it is appropriate to license LPFM stations to community groups, which often have limited resources or technical expertise, under standards that subjects such stations to the constant risk of being forced off the air if they cannot resolve interference complaints promptly. The FCC asked if LPFM stations should be required to use consulting engineered. The FCC tentatively concluded that the Section 73.807 (distance separation) should be retained if a contour rule is adopted in this proceeding. Stations holding licenses under the current rule would not be required to resolve actual interference cases except in accordance with Section 73.809. The FCC asked for comments on this approach which would provide differering levels of protection based on each station's choice of technical proessing methods.

LPFM-FM Translator Protection Priorities

The Third R&O did not reach a conclusion on the "co-equal" status between LPFM and FM Translator stations. Under the rules, a first filed LPFM or FM translator application must be protected by all subsequently filed LPFM and FM translator applications. As localism, diversity and competition remain the FCC's key radio broadcasting goals, they found that it would be useful to develop a better record on whether these goals would be advanced by altering the priorities for each service. They requested comments on this issue. The also asked:

Whether the FCC should distinguish FM translators based on whether they receive programming via satellite or whether they receive programming terrestrially.
Comment to the extent to which providing priority to LPFM stations could impact established listening patterns or disrupt existing translator station delivery methods that NCE stations rely on.
Whether to accept the Prometheus proposal that limits the number of translators that would have priority over subsequently filed LPFM facilities. Prometheus proposes to limit that status to 25 translator stations for each originating station but would not consider "full power repeaters" as originating stations.
In the bullet point above, what would be considered an "originating station".
Whether such an approach is administratively feasible given the fact that an FM translator, without any prior consent or notice to the FCC change its primary station.

Commissioner statements

Chairman Kevin Martin and Commissioners Michael Copps and Jonathan Adelstein made supporting statements in reference to this NPRM and the Third R&O. Commissioners Deborah Tate and Robert McDowell filed statements approving in part and dissenting in part.

Speaking specifically on the NPRM, Chairman Martin stated that he felt that the contour method would help provide LPFM stations with more flexibility, especially if Congress eliminates the protection requirements for third-adjacent channels. Commissioner Adelstein also spoke on contours and on the imbalance between LPFM and FM translators. Dissenting statements mainly focused on the Third R&O as opposed to the NPRM.

Termination of proceeding

The FCC found that all of the proposals made in the Second Further Notice are either inconsistent with or otherwise mooted by the LCRA. Specifically, the Commission proposed to codify the interim processing policy for second-adjacent channel waiver requests that it adopted in the Third Report and Order. The FCC concluded that the second-adjacent channel waiver provisions of the LCRA supersede this interim policy. Accordingly, they found that the Commission’s proposal to codify the interim policy to be moot and will not pursue it further. Similarly, they found the Commission’s proposal to adopt a contour overlap interference protection approach to be statutorily barred by Section 3(b)(1) of the LCRA, which prohibits the Commission from modifying the current co-channel and first- and second-adjacent channel distance separation requirements. They will not pursue this proposal either. Finally, the FCC proposed certain rule changes related to LPFM station displacement, the obligations of full-service new station and modification applicants to potentially impacted LPFM stations, and LPFM-FM translator protection priorities. The FCC believed that Congress’ adoption of the LCRA renders pursuit of those earlier proposals unnecessary at this time. Thus, they did not move forward with any of them. Given their findings regarding each of the proposals set forth by the Commission in the Second Further Notice, the FCC considered the Second Further Notice to have been concluded.