Second Further Notice of Proposed Rulemaking

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.

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

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

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