Fourth Further Notice of Proposed Rulemaking: Difference between revisions

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Fourth Further Notice of Proposed Rulemaking (view source)

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 ==== Multiple ownership of LPFM stations ====
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+The FCC requested comment on whether they should permit Native Nations and entities owned or controlled by Native Nations to seek more than one LPFM construction permit to ensure adequate coverage of tribal lands. For instance, they could permit this when Native Nations and entities owned or controlled by Native Nations seek to serve large, irregularly shaped or rural areas. Where this is the case, an applicant may be unable to ensure adequate coverage of tribal members and tribal lands with one LPFM station. They also could permit multiple ownership only when there are available channels for other applicants. In such instances, there would be no risk that a new entrant would be precluded from offering service. They believed permitting Native Nations to hold more than one LPFM license would advance the Commission’s efforts to enhance the ability of Native Nations not only to receive radio service tailored to their specific needs and cultures, but to increase ownership of such radio stations by Native Nations and entities owned or controlled by Native Nations. They requested comment on whether to accomplish this through amendment of Section 73.855(a) of the rules or through waiver.
 === Cross-ownership of FM Translators by LPFM stations ===
+Since the creation of LPFM, the FCC had prohibited common ownership of an LPFM station and any other broadcast station, as well as other media subject to the FCC's ownership rules.This prohibition furthers one of the most important purposes of establishing the LPFM service – “to afford small, community-based organizations an opportunity to communicate over the airwaves and thus expand diversity of ownership.” The FCC requested comment on whether to revise our rules to permit cross-ownership of an LPFM station and an FM translator or translators. They noted that this revision could enable LPFM stations to expand their listenership and provide another way in which translators could serve the needs of a community. They did not believe allowing limited cross-ownership of LPFM stations and FM translators will have a negative effect on the diversity of ownership. However, they did solicit comment on this issue. They requested comment on how cross-ownership of an LPFM station and an FM translator station would impact the extremely localized service that LPFM stations provide. They solicited input on whether to authorize such cross-ownership only if the FM translator rebroadcasts the programming of its co-owned LPFM station; whether they should require some overlap of the 60 dBu contours of the cross-owned stations; whether to set some distance or geographic limits on the cross-ownership; and whether to permit an LPFM station to use an alternative signal delivery mechanism to deliver its signal to a commonly owned FM translator.
 === Section among mutually exclusive applicants ===
 ==== Proposed changes to the point system ====
+===== Established community presence =====
+The FCC proposed to revise the language of §[[73.872]](b)(1) to clarify that an applicant must have had an established local presence for a specified period of time prior to filing its application and must maintain that local presence at all times thereafter. They noted that, while §[[73.872]](b)(1) currently does not include the requirement that an applicant maintain its local presence, they believed that is the only reasonable interpretation of the rule. They requested comment on this proposed change to §73.872(b)(1).
+The FCC requested comment on three additional changes to the rule:
+# '''''Extend local presence length.''''' They requested comment on whether to revise the definition of “established community presence” to require that an applicant have maintained such a presence for a longer period of time, such as four years. While this change in the rules would result in a smaller pool of organizations that could earn this comparative point, they believed it would better ensure that LPFM licensees are attuned to the local interests of the communities they seek to serve. Alternatively, should the FCC maintain the two-year threshold but also award an additional point to applicants that have a substantially longer established community presence (e.g., four years)?
+# '''''Extend distance of local area.''''' They requested comment on whether they should modify §73.872(b)(1) to extend the “established community presence” standard to 20 miles in rural areas. They noted that such a change would bring §73.872(b)(1) in line with §73.853(b).
+# '''''Consortiums.''''' They requested comment on whether to allow local organizations filing as consortia to receive one point under the established community presence criterion for each organization that qualifies for such a point. If they were to revise §73.872(b)(1) in this fashion, should they cap the number of points awarded to consortia at three? They noted that, currently, applicants tied with the highest number of points may enter into time-share agreements. In such a situation, their points are aggregated. This proposal would operate in a similar fashion, except that it would precede and potentially preclude post-filing point aggregation settlements. We believe this proposed change could significantly promote diversity, speed the licensing process and provide further incentive for applicants to enter into voluntary time-sharing arrangements in spectrum-limited areas. However, they requested comment on whether there is any potential for abuse of such a change in the rules and, if so, how the FCC can prevent it. For instance, could this proposed rule change lead local organizations interested in constructing and operating an LPFM station to recruit other local organizations that have no interest in doing so to participate in a consortium in order to inflate the consortium’s point total?
+===== Local program origination =====
+The FCC requested comment on whether to place greater emphasis on this selection factor by awarding two points – instead of the one point currently awarded – to an applicant that pledges to originate at least eight hours of programming each day.
+* Do the limited licensing opportunities for LPFM stations in major markets support giving greater weight to this criterion?
+* Does the potential for awarding up to three points to a consortium under the established community presence criterion justify an increase in the points awarded under this criterion? Should we modify the definition of local program origination for LPFM stations that serve rural areas?
+* The FCC requested that commenters specifically address whether increasing the weight of this criterion is warranted in light of their previous finding that local programming is not the only programming of interest or value to listeners in a particular locale.
+* Alternately, should they impose a specific requirement that all new LPFM licensees provide locally-originated programming? Parties supporting this proposal are requested to show that the Commission’s prior finding is no longer valid and identify problems or short-comings in the current LPFM licensing and service rules that this change would remedy. Parties supporting this proposal also are requested to address any constitutional issues that it raises.
+===== Native Nations and other additional selection criteria =====
+The FCC requested comment on whether to develop additional selection criteria for the LPFM point system in order to limit the number of involuntary time-share licensing outcomes. Specifically, they requested comment on whether they should modify our point system to award a point to Native Nations and entities owned or controlled by Native Nations, when they propose to provide LPFM service to Native Nation communities. They noted that this criterion would be similar to the “Tribal Priority” that was incorporated into the threshold fair distribution analysis that they perform pursuant to Section 307(b) of the Communications Act, when they are faced with mutually exclusive applications for permits to construct new or modified full-service FM, AM or NCE FM stations that propose service to different communities. That priority applies to Native Nations and entities owned or controlled by Native Nations, when they propose new radio services that primarily would serve Native Nation lands. They also noted that we believe adoption of a Native Nation selection criterion would further our efforts to increase ownership of radio stations by Native Nations and entities owned or controlled by Native Nations and to enable Native Nations and such entities to serve the unique needs and interests of their communities. Finally, in addition to seeking comment on this “Native Nation” criterion, the FCC invited the submission of additional proposals for new selection criteria, provided they are (a) specifically linked to Commission policy, and (b) structured to withstand scrutiny under applicable legal standards.
 ==== Proposed changes to the tie breaker process ====
+Currently, in the event the point analysis results in a tie, the FCC employs voluntary time-sharing as the initial tie-breaker. In these circumstances, the FCC releases a public notice announcing the tie and gives the tied applicants the opportunity to propose voluntary time-sharing arrangements. Currently, following the award of voluntary time-share construction permits, if one of the participants in a voluntary time-sharing arrangement does not construct or surrenders its station license after commencing operations, the remaining time-share participants are free to apportion the vacant air-time as they see fit. The FCC requested comment on the procedures we should adopt to address the surrender or expiration of a construction permit – or the surrender of a license – issued to a participant in a voluntary time-sharing arrangement. They noted that the current policy regarding air-time reapportionment presents the potential for abuse in the LPFM licensing process. For instance, out of a group of tied mutually exclusive applicants, some could enter into a time-share arrangement in order to aggregate their points and prevail over others with the knowledge that not all of the prevailing applicants intend to build and operate their LPFM stations. The FCC requested comment on ways to reduce the potential for abuse of the air-time reapportionment policy.
+* Should the FCC open a “mini-window” for the filing of applications for the abandoned air-time?
+* Could they limit eligibility to unsuccessful applicants from the same mutually exclusive group in the initial window?
+* Is such an approach consistent with Ashbacker requirements?
+The FCC believed limiting the applicant pool for a “mini-window” to unsuccessful applications from the same mutually exclusive group will provide organizations with an incentive to participate in the LPFM licensing process at the earliest opportunity (i.e., during the initial filing window). It also will expedite the filling of dead air-time and promote the goal of reducing the potential for abuse of the air-time reapportionment policy while minimizing the administrative complexities involved. In this regard, they believed that the procedures they develop to select successor permittees and licensees must operate efficiently. The air-time being filled will cover only a limited portion of each broadcast day. The FCC must balance our desire fill air-time with the need for administrative efficiency, particularly as we anticipate the considerable licensing burdens that are likely to result from the upcoming LPFM window.
+Under another approach, a non-prevailing applicant could express its interest in being selected as a successor time share permittee in the event that the tentatively selected applications are granted and either a permittee fails to construct or a licensee abandons its time. One option would be to require the filing of such expressions of interest by the deadline for filing of petitions to deny the applications of the tentative selectees. The staff then could identify the applicant with the highest point total among those filing an expression of interest and retain this application in pending status. If the FCC modifies their air-time reapportionment policy in voluntary time sharing situations to reduce the potential for abuse, they proposed that the changes would apply only during the first four years of licensed station operations, as they do in the NCE FM licensing context. If a time share licensee abandons its air-time after the first four years of licensed station operations, they propose to allow the remaining time-share participants to apportion the vacant air-time as they see fit just as they do under the current air-time reapportionment policy. We seek comment on these proposals. They FCC requested comment on whether, if they were to modify the established community presence criterion to award additional points to consortia, these new procedures also should apply to permits awarded under this modified criterion.
 === Time sharing requests for unused blocks of time ===
+Currently, the FCC requires LPFM stations to meet the same minimum operating hour requirements as full-service NCE FM stations.160 Like NCE FM stations, LPFM stations must operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week. However, while the FCC has mandated time sharing for NCE FM stations that meet the Commission’s minimum operating requirements but do not operate 12 hours per day each day of the year, it has not done so for LPFM stations. The FCC requested comment on whether they should extend this mandatory time-sharing to the LPFM service. They believed that doing so could increase the number of broadcast voices and promote additional diversity in radio voices and program services.
 == Related links ==
+[https://www.fcc.gov/document/lpfm-fifth-report-order-fourth-fnprm-and-fourth-order-recon LPFM Fifth Report & Order; Fourth NPRM and Fourth Order on Recon at FCC]
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