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Fourth Report and Order: Difference between revisions
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This ''Report and Order'' is the first of three that implements the provisions of the ''[[Local Community Radio Act of 2010]]'' (LCRA). This ''Order'' addresses LCRA Section 5 which relates to the relationship between LPFM stations, [[FM Translator stations]] and [[FM booster stations]]. This ''Order'' also addresses the use use of FM translators to rebroadcast AM stations and addresses the trafficking of FM Translator construction permits following the end of the [[Auction 83]] "Great Translator Invasion" filing window. {{Proceeding | This ''Report and Order'' is the first of three that implements the provisions of the ''[[Local Community Radio Act of 2010]]'' (LCRA). This ''Order'' addresses LCRA Section 5 which relates to the relationship between LPFM stations, [[FM Translator stations]] and [[FM booster stations]]. This ''Order'' also addresses the use use of FM translators to rebroadcast AM stations and addresses the trafficking of FM Translator construction permits following the end of the [[Auction 83]] "Great Translator Invasion" filing window. This ''Report and Order'' was released together with the ''[[Third Order on Reconsideration]]'' and released on the same day as the ''[[Fifth Report and Order]]'', the ''[[Fourth Order on Reconsideration]]'' and the ''[[Fourth Further Notice of Proposed Rulemaking]].'' {{Proceeding | ||
|type = Report and Order | |type = Report and Order | ||
|name = Fourth Report and Order | |name = Fourth Report and Order | ||
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The FCC did, however, revise their processing approach with regard to certain translator applications in both “spectrum limited” and “spectrum available” markets. As an initial matter, they recognized that their use of the 21x21 grid in certain markets has turned some “spectrum available” markets into “spectrum limited” markets. They found that translators serve community needs, especially those in rural or underserved areas. As such, they agreed with NAB that translator applicants in “spectrum limited” markets should be given an opportunity to demonstrate that their applications, if granted, would not preclude any LPFM opportunities. They would also will permit minor amendments to meet this “no preclusion” test. Translator applicants proposing “move-in” modifications and modification applications that propose to move into a “spectrum limited” market will also be allowed to make such a showing. This approach is also consistent with their combined reading of Sections 5(1) and 5(2) because it furthers the statutory goal of ensuring that the Commission provide licensing opportunities for both services in as many communities as possible. Prometheus and others fail to explain how this narrow exception to allow continued translator processing in a “spectrum limited” market will preclude LPFM opportunities, given that, as described in more detail below, we will require translator applicants to protect all channel/point combinations with the assumption that all LPFM applicants in these markets will be eligible for second-adjacent channel waivers. We likewise agree that translator applicants in “spectrum available” markets should be afforded some opportunity to amend their applications. As noted by many translator advocates, circumstances have changed since 2003, and transmitter sites may no longer be available. The FCC provided applicants with a limited opportunity to amend their applications so long as their proposals do not eliminate any LPFM channel/point combination in any of the 156 market grids and, where applicable, satisfy the Top 50 Market Preclusion Showing. They did not believe that allowing translator applicants these limited opportunities to amend their applications would impede the FCC's ability to guarantee licensing opportunities equivalent to the LPFM channel floors being adopted. | The FCC did, however, revise their processing approach with regard to certain translator applications in both “spectrum limited” and “spectrum available” markets. As an initial matter, they recognized that their use of the 21x21 grid in certain markets has turned some “spectrum available” markets into “spectrum limited” markets. They found that translators serve community needs, especially those in rural or underserved areas. As such, they agreed with NAB that translator applicants in “spectrum limited” markets should be given an opportunity to demonstrate that their applications, if granted, would not preclude any LPFM opportunities. They would also will permit minor amendments to meet this “no preclusion” test. Translator applicants proposing “move-in” modifications and modification applications that propose to move into a “spectrum limited” market will also be allowed to make such a showing. This approach is also consistent with their combined reading of Sections 5(1) and 5(2) because it furthers the statutory goal of ensuring that the Commission provide licensing opportunities for both services in as many communities as possible. Prometheus and others fail to explain how this narrow exception to allow continued translator processing in a “spectrum limited” market will preclude LPFM opportunities, given that, as described in more detail below, we will require translator applicants to protect all channel/point combinations with the assumption that all LPFM applicants in these markets will be eligible for second-adjacent channel waivers. We likewise agree that translator applicants in “spectrum available” markets should be afforded some opportunity to amend their applications. As noted by many translator advocates, circumstances have changed since 2003, and transmitter sites may no longer be available. The FCC provided applicants with a limited opportunity to amend their applications so long as their proposals do not eliminate any LPFM channel/point combination in any of the 156 market grids and, where applicable, satisfy the Top 50 Market Preclusion Showing. They did not believe that allowing translator applicants these limited opportunities to amend their applications would impede the FCC's ability to guarantee licensing opportunities equivalent to the LPFM channel floors being adopted. | ||
..... | ===== Amendment of pending FM translator applications ===== | ||
The Media Bureau issued a public notice requiring all applicants affected by the national application cap and/or the one application per applicant per market limitation (discussed below) to identify applications for continued processing, consistent with these limits. The auctions anti-collusion rule will remain in effect during this process. Upon completion of this selection/dismissal process, the Bureau will process the remaining applications in “spectrum available” markets, starting with the singletons. Mutually exclusive applications from this group will then be placed on public notice and afforded a 60-90 day window to resolve their application conflicts via settlement or amendment. Any amendment of an application that precludes any LPFM channel/point combination identified in the grid studies will result in application dismissal. Amendments will be processed on a first-come, first-served basis, with all unamended applications having cut-off protection against amendments filed during the settlement period. | |||
Applicants with proposals in “spectrum limited” markets will be given one opportunity to modify their proposals to eliminate all preclusive impacts on protected LPFM channel/point combinations. An applicant in a top 50 “spectrum limited” market proposing facilities outside the studied 31x31 grid also will need to demonstrate either that no LPFM station could be licensed at the proposed transmitter site or, if an LPFM station could be licensed at the site, that an additional channel remains available for a future LPFM station at the same site. Applications that conflict with protected channel/point combinations or fail to make such a Top 50 Market Preclusion Showing and that are not amended to come into compliance with these requirements will be dismissed. As explained above, applications in 31x31 grid “spectrum limited” markets must protect all channel/point combinations within this grid. Applicants in 21x21 grid “spectrum limited” markets must protect all channel/point combinations only within this grid. The Commission limited “spectrum limited” grid protection requirements in these markets because they believed that this standard will protect those areas where LPFM stations can best serve the needs of local communities and, therefore, will most faithfully implement Sections 5(1) and 5(2). From this point, all remaining applications will generally proceed down the same singleton/MX/settlement/auction/long form path. Amendments will be processed on a first-come, first-served basis, including for the purpose of determining whether an additional LPFM channel remains available at a specific location outside the grid. The FCC terminated the freeze on the grant of pending Auction 83 translator applications and directed the Media Bureau to resume application processing in accordance with these procedures. | |||
The FCC provided guidance on translator application processing. “Protected” LPFM channel/point combinations will be determined differently in “spectrum available” and “spectrum limited” markets. In a “spectrum available” market, a channel/point combination must be protected only if LPFM operations at the site would be fully spaced to all pending translator applications on co-, first- and second-adjacent channels (and, of course, would satisfy all other spacing requirements). Thus, a translator applicant in a “spectrum available” market that does not modify its technical proposal would always qualify for further processing because the proposed translator facility cannot conflict, by definition, with any protected channel/point combinations. “Spectrum available” market amendments, however, may not conflict with protected LPFM channel/point combinations. “Spectrum limited” calculations, including Top 50 Market Preclusion Showing calculations, will assume the dismissal of all translator applications in the market. This differing treatment of pending translator applications was based on their determination that sufficient channels are/are not available if all translator applications remain pending. Moreover, the “spectrum limited” channel/point and Top 50 Market Preclusion Showing calculations, the FCC will not take into account second-adjacent channel spacings to authorized stations and other pending applications, i.e., will assume that an LPFM applicant could make a sufficient showing to obtain a second-adjacent channel spacing waiver. Finally, “spectrum limited” calculations will not take into account I.F. spacing requirements. The FCC found that these more restrictive “spectrum limited” market processing standards were necessary to safeguard LPFM licensing opportunities in these markets. As noted, the protection scheme for “spectrum available” markets 1-50 and for all other studied markets are limited to the particular grid used in each market. LPFM licensing opportunities outside the grid in these markets are not protected in either “spectrum limited” or “spectrum available” markets. Thus, a translator application specifying a site at a distance equal to or greater than the minimum LPFM-translator distance separation requirements and otherwise in compliance with licensing rules would be grantable under these processing standards in all “spectrum limited” markets 51 and smaller and all “spectrum available” markets. | |||
=== Prevention of Trafficking of Translator Permits and Licenses === | === Prevention of Trafficking of Translator Permits and Licenses === | ||
==== Overview ==== | |||
The ''Third Further Notice'' tentatively concluded that the proposed market-based translator application processing policy would not be sufficient to deter speculative licensing conduct because the remaining translator filings present significant issues of abuse of our licensing process. It 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, and sought comment on processing policies to deter the potential for speculative abuses among the remaining translator applicants. Specifically, it sought comment on whether to establish an application cap for the applications that would remain pending in non-spectrum limited markets and unrated markets, and asked whether a cap of 50 or 75 applications in a window would force filers with a large number of applications to concentrate on those proposals and markets where they have bona fide service aspirations. The ''Third Further Notice'' also asked whether applicants should be limited to one or a few applications in any particular market, noting that a limitation of this sort could limit substantially the opportunity to warehouse and traffic in translator authorizations while promoting diversity goals. It also sought comment on alternative approaches to protect against abuses in the translator licensing process. | |||
==== Comments received ==== | |||
Manny commenters supported some form of cap. EMF opposes any cap at all, believing it will reduce translator services to smaller markets. Other commenters argue that caps fail to distinguish serious applicants from speculators and suppress competition. Some commenters simply disagree with the concerns over speculative filings described in the ''Third Further Notice''. For example, Kyle Magrill suggests that non-commercial applicants may have filed large numbers of translator applications because they believed that it was the best way to ensure they would obtain a permit, and even those permits that were sold have resulted in new facilities on the air serving the public interest. Edgewater Broadcasting, Inc., and Radio Assist Ministry, Inc., also note that applicants accused of trafficking have not in fact violated any of the Commission’s Rules. Several commenters propose alternatives to caps or additional safeguards against trafficking: placing limitations on the number of outstanding translator construction permits an applicant can have; restricting sales of permits to allow applicants to only recover costs; or preventing outright the sale of unbuilt construction permits. NPR suggests establishing a holding period obligating future translator permittees to construct and operate newly authorized translators. | |||
==== Analysis ==== | |||
The FCC concluded that both a national cap and a market-based cap would be appropriate to limit speculative licensing conduct and necessary to bolster the integrity of remaining Auction 83 licensing. Without the caps, the translator licensing process adopted could result in the prosecution of thousands of applications for the primary purpose of for-profit assignments of the issued translator authorizations. If the permits were issued in an auction, the FCC would have been less concerned, however it was expected that a substantial portion of the remaining grants would be made pursuant to settlement procedures rather than through auctions. | |||
==== National 50-cap ==== | |||
The Commission believed that a national cap of 50 applications per applicant from the pending Auction 83 applications is an appropriate limit. Because translators are relatively cheap to construct and operate, we believe it is feasible for the organizations that filed the highest volume of applications to construct and operate 50 additional stations. Accordingly, in balancing the competing goals of deterring speculation and expanding translator service to local communities, they concluded that a national cap of 50 applications is appropriate. They noted that this cap is high enough to permit all but twenty applicants to prosecute all of their pending applications. | |||
==== One-per-market cap ==== | |||
In addition to the national cap of 50 applications, the FCC believed that a per-market cap of one application in the identified markets was appropriate. The translator rules contemplate that a party may receive an authorization for a second or third FM translator serving substantially the same area as the first only after making a “showing of technical need for such additional stations.” This is a spectrum efficiency rule based on our experience that parties rarely need such multiple translators. Yet in some cases, applicants in Auction 83 submitted dozens of applications for a particular market. The FCC opined that these applications were clearly filed for speculative reasons or to skew the auction procedures, as it is inconceivable that a single entity would construct so many stations in a single market. Given the volume of pending applications, it is not administratively feasible to conduct a case-by-case assessment of technical need for such multiple applications within the markets identified. Accordingly, the FCC applied a cap of one translator application per applicant in the markets identified . For applications outside those markets, where the duplication issue is more manageable, the FCC would apply the technical need rule on a case-by-case basis. | |||
==== Implementation ==== | |||
The FCC will require parties with more than 50 pending applications nationally and/or more than one pending application in the identified markets to identify and affirm their continuing interest in those pending applications for which they seek further Commission processing, consistent with these limits. Both pending long form and short form applications will be subject to these applicant-based caps. In the event that an applicant does not timely comply with these dismissal procedures, the FCC directed the staff to first apply the national cap, retaining on file the first 50 filed applications and dismissing those that were subsequently filed. The staff will then dismiss all but the first filed application in each of the markets identified. | |||
=== FM Translators for AM Stations === | === FM Translators for AM Stations === | ||
==== Overview ==== | |||
In 2009, the Commission 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 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 does not serve the public interest and is unfair to both AM stations and FM translator applicants. | |||
The practical effect of the date limit imposed in the 2009 Translator Order was to exclude pending Auction 83 FM translator applications as well as future FM translator applications from the pool of potential cross-service translators. In the ''Third Further Notice'', the FCC asked whether it would be appropriate to remove this limit on cross-service translators with respect to those pending applications. Specifically, we asked whether the limit should be removed for those applications which were on file as of May 1, 2009. The FCC stated that resolving this issue before processing of the pending translator applications would align FM translator processing 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) of the LCRA. They also noted that allowing cross-service translators had been a very successful deregulatory policy. | |||
==== Comments received ==== | |||
Most commenters support removing the date restriction for pending FM translator applications. These commenters point to the public service benefits that FM translators have provided to AM stations. Some argue that the need for the date restriction is going away now that the Commission will be opening an LPFM window. | |||
To the extent that commenters take a contrary position, most argue for some type of restriction or limitation on cross-service translators in general. Some LPFM proponents argue for qualifying criteria for cross-service translators, such as local ownership, lack of in-market FM ownership by the AM licensee, diversity of ownership, amount of local programming, and quality of AM signal. REC Networks and Prometheus argue that the 250-watt power level allowed for “fill-in” AM translators should be reduced before cross-service translators are expanded. NPR argues that the date restriction should be kept in place unless the Commission adopts strong anti-trafficking rules so that traffickers in the current pool of Auction 83 applicants will not benefit from the change. | |||
==== Decision ==== | |||
The FCC modified the date restriction to allow pending FM translator applications that are granted to be used as cross-service translators. As we explained in the ''Third Further Notice'', the limitation of cross-service translator usage to already-authorized translators was adopted with the intention of preserving opportunities for future LPFM licensing. In the ''Third Further Notice'', the FCC decided to revisit this pre-LCRA policy. We proposed changes in the FM translator application processing rules designed to accomplish more effectively the goal of preserving spectrum for future LPFM licensing. Given those proposed changes, as stated above, the FCC indicated that removing the date limit, at least for the pending translator applications, could align FM translator licensing outcomes more closely with demand, thereby advancing the goals of Section 5(2) of the LCRA. | |||
The FCC granted reconsideration of the ''2009 Translator Order'' to the extent of allowing authorizations arising from pending FM translator applications to be used as cross-service translators. With respect to future FM translator applications, the FCC would address their potential use as cross-service translators in a future rulemaking to revise our FM translator rules. | |||
== Rule sections amended by this decision == | == Rule sections amended by this decision == | ||
§74.1232 - (Translator) Eligibility and licensing requirements. | |||
== Petitions for Reconsideration filed == | |||
The following parties filed ''Petitions for Reconsideration.'' Since both the ''Fourth Report and Order'' and the ''Fifth Report and Order'' were released on the same day. Matters under reconsideration could apply to either or both ''Orders'': | |||
* [https://www.fcc.gov/ecfs/search/search-filings/filing/6017034937 Conner Media, Inc.] | |||
* [https://www.fcc.gov/ecfs/search/search-filings/filing/6017034785 Hope Christian Church Marlton, Inc.] | |||
* [https://www.fcc.gov/ecfs/search/search-filings/filing/6017034798 Educational Media Foundation] | |||
* [https://www.fcc.gov/ecfs/search/search-filings/filing/6017034803 Western North Carolina Public Radio] | |||
* [https://www.fcc.gov/ecfs/search/search-filings/filing/6017034689 Kyle Magrill] | |||
Opposition to the ''Petitions for Reconsideration'' was filed by [https://www.fcc.gov/ecfs/search/search-filings/filing/6017039101 Prometheus Radio Project]. | |||
== Related links == | == Related links == | ||
* [https://www.fcc.gov/document/lpfm-fourth-report-and-order-and-third-order-reconsideration Fourth Report and Order and Third Order on Reconsideration at the FCC.] | |||
* [https://www.fcc.gov/document/creation-low-power-radio-service Small Entity Compliance Guide for the Auction 83 Translator Dismissal Policy at the FCC.] | |||
* [https://www.fcc.gov/document/petitions-reconsideration-filed-lpfm-docket-0 Petitions for Reconsideration filed public notice - issued May 17, 2012 at FCC.] | |||
* [https://www.fcc.gov/document/petitions-reconsideration-filed-lpfm-docket Petitions for Reconsideration filed (corrected) public notice - issued May 24, 2012 at FCC.]<br /> | |||
{{LpfmProceedings}} | {{LpfmProceedings}} | ||