Third Further Notice of Proposed Rulemaking

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.

Third Further Notice of Proposed Rulemaking

Document Information
Type	Notice of Proposed Rulemaking
Docket Number(s)	MM 99-25
FCC Number	11-105
FCC Record	26 FCC Rcd 9986
Federal Register Citation(s)	76 FR 4549
Federal Register Date(s)	July 29, 2011
Relevant Dates
Adoption Date	July 12, 2011
Release Date	July 12, 2011
Comment Deadline	August 29, 2011
Reply Deadline	September 12, 2011

LCRA Section 5 analysis

Text of law

SEC. 5. ENSURING AVAILABILITY OF SPECTRUM FOR LOW POWER FM STATIONS

The Federal Communications Commission, when licensing new FM translator stations, FM booster stations, and low-power FM stations, shall ensure that –

(1) licenses are available to FM translator stations, FM booster stations,17 and low-power FM stations;

(2) such decisions are made based on the needs of the local community; and

(3) FM translator stations, FM booster stations, and low-power FM stations remain equal in status and secondary to existing and modified FM stations.

Section 5(1) - Ensuring that licenses are available

This subsection mandates that the FCC adopts licensing procedures that ensure some minimum number of licensing opportunities exist for each service throughout the nation. When read together with Section 5(2), the FCC also interprets that Section 5(1) requires that the FCC provides to the extent possible, license opportunities for both services in as many local communities as possible.

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 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.

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.

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.

Section 5(2) - Assessing the needs of the local community

The Section 5(2) directive to base translator and LPFM licensing decisions on the “needs of the local community” could be interpreted to concern solely the needs of communities for additional LPFM service on the theory that translators cannot be expected to provide meaningful local service, at least in larger markets. The FCC requested comments on whether, based on a consideration of Section 5 in its entirety, the obligation to make decisions based on the “needs of the local community” reflects a Congressional finding that both translators and LPFM stations can be expected to serve community needs.

The FCC requested comments on whether and how to compare the two services in assessing local community needs citing significant differences that exist in translator and LPFM eligibility, licensing and service rule, differences that can dramatically affect the ability of these stations to serve the needs of their communities. For example, translators can't originate programming and it is not required to provide a certain certain signal strength over a community of license, meet minimum operating schedules, broadcast programs that provide significant treatment of community issues, maintain issues/program lists nor do translator rules limit eligibility to nor favor local applicants.

In contrast, the LPFM service was specifically created to fill a perceived gap in the way that full-power stations meet community needs – “to foster a program service responsive to the needs and interests of small community groups, particularly specialized community needs that have not been well served by commercial broadcast stations.” Thus, under the Commission’s rules, LPFM stations may originate programming; those that pledge to do so receive a licensing preference. LPFM stations must be locally owned. No party may hold an attributable interest in an LPFM station and another broadcast station. This restriction ensures that each licensed LPFM station necessarily expands ownership diversity in its community of license. The LPFM licensing rules promote share-time settlements between or among competing local applicants, further encouraging ownership diversity where spectrum is limited. For these reasons, the Commission has concluded that LPFM eligibility, selection and service rules “will ensure that LPFM licensees will meet the needs and interests of their communities.”

The FCC requests comments on whether they should take cognizance of the differing eligibility, licensing, and service rules for the translator and LPFM services in assessing the “needs of a community” for additional radio service:

• If so, how heavily should this directive weigh in favor of future LPFM licensing?
• What specific translator application procedures should the Commission adopt to give effect to Section 5(2)?
• Are there any alternate interpretations of Section 5(2) and their impacts on licensing procedures for pending translator applications.

Section 5(3) - Equal in Status

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.

• Alternatively, does Section 5(3) merely require that the FCC not favor either service in developing translator and LPFM new station licensing rules?
• If this alternative interpretation is adopted, what criteria are relevant in assessing whether such rules maintain a “co-equal” status between the services, especially when the current technical licensing rules, which provide substantially greater opportunities for future translator licensing in many markets, are taken into account?