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This ''Notice of Proposed Rulemaking'' implements Section 5 of the ''Local Community Radio Act of 2010'' (LCRA).  Section 5 deals with the relationship between LPFM stations, FM Translators and FM Boosters.  It also codifies the secondary status of LPFM stations, FM Translators and FM Booster Stations in respect to full-service FM broadcast stations.{{Proceeding
This ''Notice of Proposed Rulemaking'' implements Section 5 of the ''[[Local Community Radio Act of 2010]]'' (LCRA).  Section 5 addressed the relationship between LPFM stations, [[FM Translators]] and [[FM Boosters]].  It also codifies the secondary status of LPFM stations, FM Translators and FM Booster Stations in respect to full-service FM broadcast stations.{{Proceeding
|type      = Notice of Proposed Rulemaking
|type      = Notice of Proposed Rulemaking
|name      = Third Further Notice of Proposed Rulemaking
|name      = Third Further Notice of Proposed Rulemaking
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|comments  = August 29, 2011
|comments  = August 29, 2011
|reply = September 12, 2011
|reply = September 12, 2011
|approve = Genachowski, Copps, McDowell, Clyburn
}}
}}


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Prior to enactment of the LCRA, commenters raised concerns that a nationwide cap, which does not operate based on spectrum availability in specific areas would not ensure future LPFM opportunities in certain larger spectrum-limited markets. They contended that translator applicants would be able to retain their most valuable applications which propose service to densely populated areas.  They also claim that anticipated dismissals would not free up space for new LPFM stations at or near the locations specified in the dismissed translator applications because "blocking" translators would remain.  The Media Bureau reviewed the Common Frequency study, which it found to be reasonable.  The Bureau also found that "blocking" translator applications would remain following the completion of the cap dismissal process due to the very high number of pending applications and/or discrete applications in these markets raising concerns of whether the ten-cap would be a certain and effective processing policy for preserving LPFM licensing opportunities in larger markets.  The FCC requested comments on this issue.
Prior to enactment of the LCRA, commenters raised concerns that a nationwide cap, which does not operate based on spectrum availability in specific areas would not ensure future LPFM opportunities in certain larger spectrum-limited markets. They contended that translator applicants would be able to retain their most valuable applications which propose service to densely populated areas.  They also claim that anticipated dismissals would not free up space for new LPFM stations at or near the locations specified in the dismissed translator applications because "blocking" translators would remain.  The Media Bureau reviewed the Common Frequency study, which it found to be reasonable.  The Bureau also found that "blocking" translator applications would remain following the completion of the cap dismissal process due to the very high number of pending applications and/or discrete applications in these markets raising concerns of whether the ten-cap would be a certain and effective processing policy for preserving LPFM licensing opportunities in larger markets.  The FCC requested comments on this issue.


The Media Bureau undertook a nationwide LPFM spectrum availability analysis in which all top 150 Arbitron markets and smaller markets which had more than 4 translator applications pending.  The analysis established that no or limited useful spectrum is likely to remain in numerous specific radio markets unless the translator dismissals reliably results in the dismissal of all blocking translator applications.  For example, no channels would be available in 13 of the top 30 markets and only one or two channels would be available in six others if blocking translator applications remain.  Based on the record, the FCC tentatively concludes that the previous application cap of 10 for FM translators (10-cap) is inconsistent with Section 5(1) because it would not ensure that licenses will be available in spectrum congested markets for future LPFM licensing.  Moreover, using the same methodology, more LPFM licensing opportunities would be available in certain spectrum limited markets if LPFM applicants were not required to protect pending translator applications.
The Media Bureau undertook a nationwide LPFM spectrum availability analysis in which all top 150 [[Wikipedia:Nielsen Audio|Arbitron]] markets and smaller markets which had more than 4 translator applications pending.  The analysis established that no or limited useful spectrum is likely to remain in numerous specific radio markets unless the translator dismissals reliably results in the dismissal of all blocking translator applications.  For example, no channels would be available in 13 of the top 30 markets and only one or two channels would be available in six others if blocking translator applications remain.  Based on the record, the FCC tentatively concludes that the previous application cap of 10 for FM translators (10-cap) is inconsistent with Section 5(1) because it would not ensure that licenses will be available in spectrum congested markets for future LPFM licensing.  Moreover, using the same methodology, more LPFM licensing opportunities would be available in certain spectrum limited markets if LPFM applicants were not required to protect pending translator applications.


Given the FCC's tentative conclusion that the 10-cap processing policy is inconsistent with the statutory mandate to ensure some minimum number of LPFM licensing opportunities, they must now consider how to best process the remaining translator applications in a manner that is consistent with the LCRA.  The FCC requested comments on whether they should take into account existing translator and LPFM licenses to determine if licenses are available.  In this regard, since the word "new" appears in the first clause of Section 5 but not in subparagraph (1), they should consider the availability of new and existing stations.  Alternatively, Section 5(1) could be interpreted as a gong forward standard, limited to assure a future balance between new translator and new LPFM licenses.  Under this interpretation, the presence of a licensed translator or LPFM station would not enter into a licensing decision under Section 5(1).  The FCC requested comments on these and other possible interpretations of Section 5(1) and their impact on the treatment of pending translator applications.
Given the FCC's tentative conclusion that the 10-cap processing policy is inconsistent with the statutory mandate to ensure some minimum number of LPFM licensing opportunities, they must now consider how to best process the remaining translator applications in a manner that is consistent with the LCRA.  The FCC requested comments on whether they should take into account existing translator and LPFM licenses to determine if licenses are available.  In this regard, since the word "new" appears in the first clause of Section 5 but not in subparagraph (1), they should consider the availability of new and existing stations.  Alternatively, Section 5(1) could be interpreted as a gong forward standard, limited to assure a future balance between new translator and new LPFM licenses.  Under this interpretation, the presence of a licensed translator or LPFM station would not enter into a licensing decision under Section 5(1).  The FCC requested comments on these and other possible interpretations of Section 5(1) and their impact on the treatment of pending translator applications.


The issue whether to take existing licenses into account may be particularly significant in light of the present disparity between the two services. Currently, 1921 translators are licensed at locations within the top 200 Arbitron-rated markets. In contrast, 290 LPFM stations operate in the top 200 markets. The Commission has licensed approximately 2,700 translator stations from the 2003 window and approximately 860 LPFM stations from the 2000-01 Filing Window Series. Thus, taking into account existing translators and LPFM stations, or even just those licensed for the first time during the past decade, would militate in favor of the dismissal of translator applications, at least in markets where there is little or no remaining spectrum for future LPFM stations or where substantially fewer licensing opportunities remain.  The FCC asks whether an interpretation that could have that effect conflict with Section 5(3) which states that translator and LPFM stations remain equal in status.  
The issue whether to take existing licenses into account may be particularly significant in light of the present disparity between the two services. Currently, 1,921 translators are licensed at locations within the top 200 Arbitron-rated markets. In contrast, 290 LPFM stations operate in the top 200 markets. The Commission has licensed approximately 2,700 translator stations from the 2003 window and approximately 860 LPFM stations from the 2000-01 Filing Window Series. Thus, taking into account existing translators and LPFM stations, or even just those licensed for the first time during the past decade, would militate in favor of the dismissal of translator applications, at least in markets where there is little or no remaining spectrum for future LPFM stations or where substantially fewer licensing opportunities remain.  The FCC asks whether an interpretation that could have that effect conflict with Section 5(3) which states that translator and LPFM stations remain equal in status.  


Finally, it appears that it will be significantly easier to ensure that licenses will be available for future translator stations than for LPFM stations. As previously noted, licensing asymmetries between the translator and LPFM services make it unlikely that LPFM licensing will preclude translator licensing opportunities, even in spectrum-limited markets. The translator protection rule, Section 74.1204, which is substantially more flexible than the minimum spacing requirements governing the LPFM service, facilitates the filing of technically acceptable applications in a window. It also facilitates the resolution of technical conflicts among competing applications, thereby permitting numerous grants from individual mutually exclusive groups under the translator auction settlement procedures. We tentatively conclude that these considerations establish that the FCC's primary focus in effectuating Section 5(1) must be to ensure translator licensing procedures do not foreclose or unduly limit future LPFM licensing. the FCC requested comments on that conclusion.
Finally, it appears that it will be significantly easier to ensure that licenses will be available for future translator stations than for LPFM stations. As previously noted, licensing asymmetries between the translator and LPFM services make it unlikely that LPFM licensing will preclude translator licensing opportunities, even in spectrum-limited markets. The translator protection rule, Section 74.1204, which is substantially more flexible than the minimum spacing requirements governing the LPFM service, facilitates the filing of technically acceptable applications in a window. It also facilitates the resolution of technical conflicts among competing applications, thereby permitting numerous grants from individual mutually exclusive groups under the translator auction settlement procedures. We tentatively conclude that these considerations establish that the FCC's primary focus in effectuating Section 5(1) must be to ensure translator licensing procedures do not foreclose or unduly limit future LPFM licensing. the FCC requested comments on that conclusion.
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Section 5(3) requires that translator and LPFM stations “remain equal in status and secondary to existing and modified full-service FM stations.”  The FCC requested comments on whether and how this requirement impacts the treatment of pending FM translator applications.  Can the FCC waive the cut-off rules in order to give priority to a later-filed LPFM application over a pending FM translator application?  Section 5(3) refers to "stations" and not "applications".  If Section 5(3) is interpreted to only apply to stations, the FCC would be able to defer action on any pending FM translator applications that it determines must make way for LPFM opportunities and then process those applications later.
Section 5(3) requires that translator and LPFM stations “remain equal in status and secondary to existing and modified full-service FM stations.”  The FCC requested comments on whether and how this requirement impacts the treatment of pending FM translator applications.  Can the FCC waive the cut-off rules in order to give priority to a later-filed LPFM application over a pending FM translator application?  Section 5(3) refers to "stations" and not "applications".  If Section 5(3) is interpreted to only apply to stations, the FCC would be able to defer action on any pending FM translator applications that it determines must make way for LPFM opportunities and then process those applications later.


On the other hand, a number of factors argue in favor of interpreting Section 5(3) to prohibit cut-off rule waivers in this context. Under current Commission rules, stations in these two services are “co-equal” in this licensing context in one principal way. Specifically, under the FCC's “cut-off” rules, a prior filed application in one service “cuts off” a subsequently filed application in the other service.  Given that the cut-off rules are a principal characteristic of the two services’ co-equal status and that “stations” and “applications” were used interchangeably in the FCC proceeding before the LCRA was adopted, it seems reasonable to assume that Congress intended the same meaning when it used the term “station” in the LCRA. If so interpreted, the Commission would lack authority to adopt a processing policy which includes the dismissal of prior-filed translator applications in conflict with subsequently filed LPFM applications.
On the other hand, a number of factors argue in favor of interpreting Section 5(3) to prohibit cut-off rule waivers in this context. Under current FCC rules, stations in these two services are “co-equal” in this licensing context in one principal way. Specifically, under the FCC's “cut-off” rules, a prior filed application in one service “cuts off” a subsequently filed application in the other service.  Given that the cut-off rules are a principal characteristic of the two services’ co-equal status and that “stations” and “applications” were used interchangeably in the FCC proceeding before the LCRA was adopted, it seems reasonable to assume that Congress intended the same meaning when it used the term “station” in the LCRA. If so interpreted, the Commission would lack authority to adopt a processing policy which includes the dismissal of prior-filed translator applications in conflict with subsequently filed LPFM applications.


* Alternatively, does Section 5(3) merely require that the FCC not favor either service in developing translator and LPFM new station licensing rules?
* Alternatively, does Section 5(3) merely require that the FCC not favor either service in developing translator and LPFM new station licensing rules?
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=== Open a joint FM Translator/LPFM application window ===
=== Open a joint FM Translator/LPFM application window ===
Even though no party to the proceeding brought up the idea, the FCC did consider dismissing all FM translator applications from the 2003 window and to make plans to have a joint filing window for both LPFM and FM translator stations at the same time.  While such a plan could advance the three Section 5 mandates, there would be overwhelming practical and legal difficulties in attempting to implement such a novel licensing process.  If the translator and LPFM services were each limited to commercial services, then §309(j) of the ''Communications Act'' would require the use of auctions.  However, because there would be a mix of commercial and noncommercial applications in the window, the FCC would need to devise an alternate method of selecting among these mixed groups of applications.
Even though no party to the proceeding brought up the idea, the FCC did consider dismissing all FM translator applications from the 2003 window and to make plans to have a joint filing window for both LPFM and FM translator stations at the same time.  While such a plan could advance the three Section 5 mandates, there would be overwhelming practical and legal difficulties in attempting to implement such a novel licensing process.  If the translator and LPFM services were each limited to commercial services, then §309(j) of the ''Communications Act'' would require the use of [[Competitive bidding|auctions]].  However, because there would be a mix of commercial and noncommercial applications in the window, the FCC would need to devise an alternate method of selecting among these mixed groups of applications.


Normally, when there is a conflict between a commercial and a noncommercial application, it would require the dismissal of the noncommercial application in favor of the commercial application.  This would favor FM translators over LPFM and would be inconsistent with the cross-service balancing principle of Section 5.  Also, because FM translators and LPFM stations provide fundamentally different types of radio services, it adds additional complexities in developing a comparative standard.  
Normally, when there is a conflict between a commercial and a noncommercial application, it would require the dismissal of the noncommercial application in favor of the commercial application.  This would favor FM translators over LPFM and would be inconsistent with the cross-service balancing principle of Section 5.  Also, because FM translators and LPFM stations provide fundamentally different types of radio services, it adds additional complexities in developing a comparative standard.  
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=== Establish a priority for future LPFM applications ===
=== Establish a priority for future LPFM applications ===
Some parties urged the FCC to not dismiss any translator applications immediately but instead defer consideration of all translator applications until after the next LPFM window. In this scenario, only those translator applications that conflict with new LPFM filings would ultimately be dismissed.  The FCC would need to determine if waiving the distance separation rules between LPFM stations and FM translators would be in conflict with Section 5(3).  This approach would further delay the processing of FM translator applications, which at the time of this ''Notice'', was already frozen for six years. It is also possible that this approach would increase the disparity between the number of LPFM and FM translator licenses in larger markets where spectrum exists for both services and where the number of pending translators is likely to substantially outnumber LPFM licensing opportunities.  The FCC requested comments on whether such a licensing outcome is consistent with Sections 5(1) and 5(2) and for those commenters who favor this approach, to address its impact on the timing of future translator and LPFM licensing.
Some parties urged the FCC to not dismiss any translator applications immediately but instead defer consideration of all translator applications until after the next LPFM window. In this scenario, only those translator applications that conflict with new LPFM filings would ultimately be dismissed.  The FCC would need to determine if waiving the [[distance separation]] rules between LPFM stations and FM translators would be in conflict with Section 5(3).  This approach would further delay the processing of FM translator applications, which at the time of this ''Notice'', was already frozen for six years. It is also possible that this approach would increase the disparity between the number of LPFM and FM translator licenses in larger markets where spectrum exists for both services and where the number of pending translators is likely to substantially outnumber LPFM licensing opportunities.  The FCC requested comments on whether such a licensing outcome is consistent with Sections 5(1) and 5(2) and for those commenters who favor this approach, to address its impact on the timing of future translator and LPFM licensing.


=== Adopt a market-specific translator application dismissal processing policy ("Channel Floors" approach) ===
=== Adopt a market-specific translator application dismissal processing policy ("Channel Floors" approach) ===
Given the competing goals, the FCC tentatively concludes that a market-specific, spectrum availability-based translator application dismissal policy would most faithfully implement Section 5.  This approach would ensure LPFM licensing opportunities in spectrum limited markets while also ensuring the immediate licensing of translator stations in communities in which ample spectrum remains for both services, including many major markets. It is axiomatic that community groups and niche audiences are more plentiful in larger, more densely populated markets and, therefore, that there is a need for greater numbers of LPFM stations in such markets. Moreover, the FCC thought that it is important that our translator processing policy, to the extent possible, ensure that there is sufficient spectrum to establish a robust, dynamic and permanent LPFM service in larger markets. In this regard, they believed that the NCE FM service, the radio service most similar to the LPFM service, provides one measure of the relative needs of communities for LPFM service and a point of reference for setting LPFM licensing availability goals. Both economics and Commission requirements support the notion that if a radio station exists, it is meeting the needs of its listeners. Establishing an LPFM service floor which would limit the scale of potential LPFM licensing levels to a small fraction of the number of licensed NCE FM stations in a market would appear to be inconsistent with Section 5(2)’s requirement to consider local community needs for LPFM service in licensing new FM translators, especially when the limited ability of LPFM station signals to reach audiences is taken into account.
Given the competing goals, the FCC tentatively concludes that a market-specific, spectrum availability-based translator application dismissal policy would most faithfully implement Section 5.  This approach would ensure LPFM licensing opportunities in spectrum limited markets while also ensuring the immediate licensing of translator stations in communities in which ample spectrum remains for both services, including many major markets. It is axiomatic that community groups and niche audiences are more plentiful in larger, more densely populated markets and, therefore, that there is a need for greater numbers of LPFM stations in such markets. Moreover, the FCC thought that it is important that our translator processing policy, to the extent possible, ensure that there is sufficient spectrum to establish a robust, dynamic and permanent LPFM service in larger markets. In this regard, they believed that the NCE FM service, the radio service most similar to the LPFM service, provides one measure of the relative needs of communities for LPFM service and a point of reference for setting LPFM licensing availability goals. Both economics and Commission requirements support the notion that if a radio station exists, it is meeting the needs of its listeners. Establishing an LPFM service floor which would limit the scale of potential LPFM licensing levels to a small fraction of the number of licensed NCE FM stations in a market would appear to be inconsistent with Section 5(2)’s requirement to consider local community needs for LPFM service in licensing new FM translators, especially when the limited ability of LPFM station signals to reach audiences is taken into account.


The FCC proposed a plan using "LPFM Channel Floors", which was intended to address those concerns and satisfy licensing goals.  The FCC requested comment on whether a market-tier approach would be a reasonable means to effectuate both Section 5(1) and 5(2) directives.  In most cases, the number of NCE FM stations exceeds, frequently by a wide margin, the proposed market-specific LPFM channel floors. We note that the number of licensed FM translator stations and pending translator applications are each significantly greater than these proposed floors in most markets. In proposing these floors, the FCC recognized that they had no assurance that these identified channels would result in LPFM station licensing. The identified channels are, to some extent, theoretical markers. The FCC would not know until the LPFM window whether interested applicants exist at the locations where LPFM channels are available. Moreover, these channels are at risk every day from full power FM station modification filings. Finally, the FCC was mindful of the fact that the next LPFM window may provide the last best opportunity to create a vital and sustainable community radio service in major metropolitan areas. Given the very limited licensing opportunities that the Media Bureau has identified in a number of major markets and the far more restrictive technical rules for LPFM station licensing, the FCC tentatively concluded that these floors are essential to the development of the LPFM service in spectrum-limited markets, as intended by the LCRA. Comments were requested on this tentative conclusion.
The FCC proposed a plan using "[[LPFM Channel Floors]]", which was intended to address those concerns and satisfy licensing goals.  The FCC requested comment on whether a market-tier approach would be a reasonable means to effectuate both Section 5(1) and 5(2) directives.  In most cases, the number of NCE FM stations exceeds, frequently by a wide margin, the proposed market-specific LPFM channel floors. We note that the number of licensed FM translator stations and pending translator applications are each significantly greater than these proposed floors in most markets. In proposing these floors, the FCC recognized that they had no assurance that these identified channels would result in LPFM station licensing. The identified channels are, to some extent, theoretical markers. The FCC would not know until the LPFM window whether interested applicants exist at the locations where LPFM channels are available. Moreover, these channels are at risk every day from full power FM station modification filings. Finally, the FCC was mindful of the fact that the next LPFM window may provide the last best opportunity to create a vital and sustainable community radio service in major metropolitan areas. Given the very limited licensing opportunities that the Media Bureau has identified in a number of major markets and the far more restrictive technical rules for LPFM station licensing, the FCC tentatively concluded that these floors are essential to the development of the LPFM service in spectrum-limited markets, as intended by the LCRA. Comments were requested on this tentative conclusion.
{| class="wikitable"
{| class="wikitable"
|+Proposed LPFM Channel Floors
|+Proposed LPFM Channel Floors
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The FCC tentatively concluded that a three-pronged licensing process would promote Section 5 goals. Under this approach, immediately following the resolution of the matters at issue in this ''NPRM'' the FCC would resume the processing of those translator applications where there remains sufficient spectrum for LPFM based on the channel floors proposed above, i.e., only at locations at which translator licensing will not undermine the Section 5(1) directive to ensure future LPFM licensing opportunities. Following the adoption of rules implementing the other provisions of the LCRA, the FCC would open an LPFM-only window. Thereafter, following the substantial completion of LPFM application processing, the Commission would open a translator-only window. Under this approach, the FCC could immediately resume the processing of the thousands of translator applications which propose service in markets where ample spectrum remains for both services. Thus, it appears that this approach, if adopted, would provide the most expeditious path to expanded translator and LPFM station licensing and would permit the opening of an LPFM window by the summer of 2012. The FCC requested that any commenter who proposes an alternative licensing approach to explain how such approach would better implement Section 5 and to address the timing, resource and legal issues that any such approach would pose.
The FCC tentatively concluded that a three-pronged licensing process would promote Section 5 goals. Under this approach, immediately following the resolution of the matters at issue in this ''NPRM'' the FCC would resume the processing of those translator applications where there remains sufficient spectrum for LPFM based on the channel floors proposed above, i.e., only at locations at which translator licensing will not undermine the Section 5(1) directive to ensure future LPFM licensing opportunities. Following the adoption of rules implementing the other provisions of the LCRA, the FCC would open an LPFM-only window. Thereafter, following the substantial completion of LPFM application processing, the Commission would open a translator-only window. Under this approach, the FCC could immediately resume the processing of the thousands of translator applications which propose service in markets where ample spectrum remains for both services. Thus, it appears that this approach, if adopted, would provide the most expeditious path to expanded translator and LPFM station licensing and would permit the opening of an LPFM window by the summer of 2012. The FCC requested that any commenter who proposes an alternative licensing approach to explain how such approach would better implement Section 5 and to address the timing, resource and legal issues that any such approach would pose.


The FCC also determined that certain temporary restrictions on the modification of translator stations authorized out of the Auction 83 filings are necessary to preserve LPFM licensing opportunities in identified spectrum-limited markets. They were concerned that translator modifications during the pendency of the rulemaking could undermine the statutory mandate to ensure future LPFM licensing opportunities in these markets. Accordingly, they directed the Media Bureau to suspend the processing of any translator modification application that proposes a transmitter site for the first time within any market which has fewer LPFM channels available than the proposed channel floor. The FCC proposed to dismiss any such application should the FCC adopt the market by market licensing approach proposed in this ''NPRM''. The FCC also imposed an immediate freeze on the filing of translator “move-in” modification applications and directed the Media Bureau to dismiss any such application filed after the adoption of this ''NPRM''. This freeze shall continue until the close of the upcoming LPFM filing window. This processing freeze did not apply to any translator modification application which proposes to move its transmitter site from one location to another within the same spectrum-limited market.
The FCC also determined that certain temporary restrictions on the modification of translator stations authorized out of the [[Auction 83]] filings are necessary to preserve LPFM licensing opportunities in identified spectrum-limited markets. They were concerned that translator modifications during the pendency of the rulemaking could undermine the statutory mandate to ensure future LPFM licensing opportunities in these markets. Accordingly, they directed the Media Bureau to suspend the processing of any translator modification application that proposes a transmitter site for the first time within any market which has fewer LPFM channels available than the proposed channel floor. The FCC proposed to dismiss any such application should the FCC adopt the market by market licensing approach proposed in this ''NPRM''. The FCC also imposed an immediate freeze on the filing of translator “move-in” modification applications and directed the Media Bureau to dismiss any such application filed after the adoption of this ''NPRM''. This freeze shall continue until the close of the upcoming LPFM filing window. This processing freeze did not apply to any translator modification application which proposes to move its transmitter site from one location to another within the same spectrum-limited market.


== Other issues ==
== Other issues ==


=== Prevention of trafficking in translator station construction permits and licenses ===
=== Prevention of trafficking in translator station construction permits and licenses ===
Having tentatively concluded that the FCC must process the remaining translator applications differently, they must consider whether a market-specific spectrum-based dismissal policy is sufficient to safeguard the integrity of the translator licensing process. The ''[[Third Report and Order]]'' raised concerns about the integrity of the FCC's translator licensing procedures. They focused on the skewed applicant filing behavior in Auction 83. Based on their analysis of the then-pending applications, the FCC found that 80 percent of the 861 filers held ten or fewer proposals. In contrast, the top 15 filers held one half of the 13,377 applications. They also noted that several applicants had engaged in the active marketing and sale of hundreds of translator construction permits, including efforts by Radio Assist Ministries and Edgewater Broadcasting (RAM) to assign more than one-half of the 1,046 construction permits it had been awarded from the 2003 window filings. The FCC concluded that their assumption that their competitive bidding procedures would deter speculative filings had proven to be unfounded in the Auction 83 context. The 10-cap was intended, in part, to address these concerns
The FCC tentatively concluded that their proposed translator application processing policy would not be sufficient to deter speculative licensing conduct because we face essentially identical licensing concerns with the remaining translator filings. RAM alone holds 1,563 of the remaining 6,475 applications. Each of the top 20 applicants continues to hold more than 20 applications and, cumulatively, more than one-half of all applications. In contrast, the vast majority of applicants continue to hold only a few applications. For example, 501 of the 646 (78%) remaining applicants hold five or fewer applications. Similar filing imbalances occur in particular markets and regions. One applicant holds 25 of the 27 translator applications proposing locations within 20 kilometers of Houston’s center city coordinates and 75 applications in Texas. Two applicants hold 66 of the 74 applications proposing service to the New York City market.
A number of factors may create an environment which promotes the acquisition of translator authorizations solely for the purpose of selling them. It is likely that a substantial portion of the remaining grants will be made pursuant to our settlement, that is, non-auction, procedures. Translator construction permits may be sold on a “for profit” basis. Permittees are not required to construct or operate newly authorized facilities. Absent translator licensing rule changes, it appears that limiting the number of permits that any applicant receives from the processing of the remaining applications is the only effective tool to deter speculative activity. The FCC tentatively concluded that nothing in the LCRA limits the Commission’s ability to address the potential for licensing abuses by any applicant in Auction 83. The FCC requested comment on this issue. The also requested comment on processing policies to deter the potential for speculative abuses among the remaining translator applicants. For example, whether to establish an application cap for the applications that would remain pending in non-spectrum limited markets and unrated markets. They questioned whether a cap of 50 or 75 applications in a window force high filers to concentrate on those proposals and markets where they have bona fide service aspirations? In addition or alternatively, should applicants be limited to one or a few applications in any particular market? A limitation of this sort could limit substantially the opportunity to warehouse and traffic in translator authorizations while promoting diversity goals. They also asked for comment on alternative approaches to protect against abuses in the translator licensing process.


=== Restrictions on the use of FM translators to rebroadcast AM stations ===
=== Restrictions on the use of FM translators to rebroadcast AM stations ===
In 2009, the FCC authorized the use of FM translators with licenses or permits in effect as of May 1, 2009, to rebroadcast the signal of a local AM station. The limitation of [[Cross-service translators|cross-service translator]] usage to already-authorized FM translators was adopted with the intention of preserving opportunities for future LPFM licensing. Two parties filed petitions for partial reconsideration of this aspect of the 2009 Translator Order. Both petitions argue that the limitation of cross-service translators to already-authorized translators does not serve the public interest and is unfair to both AM stations and FM translator applicants. These petitions remained pending in MB Docket 07-172 at the time of this ''NPRM''.
As a result of the likely significant impact of the LCRA on the processing of the translator applications, the FCC believed it is also appropriate to consider whether to remove this limit on cross-service translators with respect to the pending FM translator applications. Notwithstanding our decision to defer other LCRA implementation issues, the FCC concluded that it is appropriate to address this issue now. The authorization of AM rebroadcasting in 2009, long after the filing of the pending applications, created an enormous new demand for FM translators, leading to numerous application modification waiver requests and other filings. The FCC believed that resolving this issue before processing of the pending translator applications will align FM translator licensing outcomes more closely with demand by enabling applicants to take the rebroadcasting option into account in the translator settlement and licensing processes, thereby advancing the goals of Section 5(2). Elimination of the date limitation at least with respect to the pending translator applications would appear consistent with the other actions which the FCC must take to ensure LPFM licensing opportunities, the same goal that the going-forward AM/FM translator rebroadcasting exclusion was intended to achieve. In addition, the new AM/FM translator service rule has proven to be a very successful deregulatory policy. Approximately 500 AM stations currently use FM translators, providing hundreds of these stations with their first nighttime authority and the opportunity to operate viably at night. Anecdotal reports from many AM licensees repeatedly emphasize their vastly increased ability to cover local community, governmental and school events, and, generally, to better serve the needs of their communities.
The FCC requested comments on the issue of whether cross-service translators should remain limited to those authorized as of May 1, 2009 or whether the limit should be extended to include those applications which were on file as of May 1, 2009. Specifically:
* Would the proposed changes in the FM translator application processing rules provide sufficient future LPFM application opportunities to support such a revision in the limitation on cross-service translators?
* Would the proposed changes in the FM translator application processing rules accomplish more effectively the goals that the FCC sought to accomplish with the original application cap and the limitation on cross-service translators?
* Should the FCC modify this exclusion to enable translator and AM station licensees to better meet the needs of their communities?
== Commissioner statements ==
Chairman [[Wikipedia:Julius Genachowski|Julius Genachowski]] declared the ''NPRM'' as an action to break a spectrum logjam, clearing the way for development of a more robust community radio service and processing thousands of FM translator applications, further calling it a "win" for communities across the nation.  "The biggest winner will be the American public – in both urban and rural areas. Radio continues to provide a very valuable service. Indeed, notwithstanding the growth of the Internet and other platforms, broadcast over-the-air radio listening has been increasing, with 93% of Americans 12 and older tuning in to radio each week."  "The recently released Information Needs of Communities report stressed the importance of local voices and local news. It noted that the LPFM service was specifically created to provide new voices on the airwaves and allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests. And LPFM has done just that. LPFM stations have done a strong job reaching underserved communities such as non-English speakers, seniors, and migrant workers, providing news and information regarding local issues and civic affairs, and serving as emergency responders."  He was also pleased that the ''NPRM'' also seeks comments on expanding opportunities to use FM translators to rebroadcast AM stations.  "Promoting these arrangements is consistent with our policy to make the most intensive use of valuable spectrum resources and to boost investment and job creation in local communities, and is yet another win for the American public."
Commissioner [[Wikipedia:Michael Copps|Michael Copps]] declared "low power for the people" and called out the various legislators as well as [[Wikipedia:Prometheus Radio Project|Prometheus Radio Project]] and [[Wikipedia:Future of Music Coalition|Future of Music Coalition]] with the work they had done to make this possible. "Thanks to the Local Community Radio Act, more than 160 million people unserved and underserved by local Low-Power FM radio will be able to reap its benefits—truly local broadcasting operated by truly diverse station operators. Now the duty falls on us to ensure this wonderful new opportunity for people’s radio on the people’s airwaves."  The ''NPRM'' gives long-delayed life to LPFM will recognizing the importance of FM translators.  "Currently in the top 50 markets there are 607 licensed FM translators fulfilling this function. In those same markets there are just 86 licensed LPFMs. I believe—and this item proposes—that the time is now to add more independent Low Power voices to the airwaves. And LPFMs should not be relegated to low-density markets where radio spectrum is in lower demand—they should serve their listeners wherever we can find room."
Commissioner [[Wikipedia:Robert M. McDowell|Robert McDowell]] is pleased to support the ''NPRM'' as the first step in implementing the LCRA.  He was delighted that the FCC is reconsidering the 10-cap, which he dissented from in the ''Third Report and Order'' stating that "it could increase the risk of harmful interference to services provided by FM translators in many unserved areas."  "In advancing a replacement licensing methodology, we improve upon our previous ten application restriction by seeking comment on a market-specific approach for processing the approximately 6,500 FM translator applications that remain pending."  He was also pleased that the FCC is seeking comment on expanding the use of FM translators to rebroadcast AM stations.
Commissioner [[Wikipedia:Mignon Clyburn|Mignon Clyburn]] stated that this ''NPRM'' inches us closer to when new and diverse voices will find their way into the ears of radio listeners, yearning for local insights and fresh flavor that has been held at bay for way too long.  "The advocates for Low Power FM radio have come a long way, have fought many battles, and today is the first step of their victory lap."  "The [LCRA] has sent a clear message that Congress wants more local radio, and we are excited and anxious to open the dial for new stations. In relaxing the station frequency spacing requirements, Congress has declared that more licenses should be made available for stations that serve the local needs of their community, and current statistics support this."  Commissioner Clyburn commended the "12-year journey" of Prometheus Radio Project and the various organizers who worked tirelessly to get the LCRA passed.
== Related links ==
* [https://www.fcc.gov/document/lpfm-third-further-notice-proposed-rulemaking-0 Third Notice of Proposed Rulemaking at FCC.]


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