II. Background (2-10)

2. In January 2000, the Commission adopted rules to establish two classes of LPFM facilities: (a) the LP100 class, consisting of stations with a maximum power of 100 Watts effective radiated power (“ERP”) at 30 meters antenna height above average terrain (“HAAT”), providing an FM service radius (1 mV/m or 60 dBμ) of approximately 3.5 miles (5.6 kilometers); and (b) the LP10 class, consisting of stations with a maximum of 10 Watts ERP at 30 meters HAAT, providing an FM service radius of approximately one to two miles (1.6 to 3.2 kilometers).[1]  The Report and Order announcing those classes imposed separation requirements for LPFM stations to protect full-power FM stations operating on the co-, first-, and second-adjacent channels, as well as stations operating on intermediate frequency (“IF”) channels.[2]  The Report and Order concluded, however, that imposition of a third-adjacent channel separation requirement would restrict unnecessarily the number of LPFM stations that could be authorized, and therefore declined to impose that requirement.[3]
3. The Report and Order also established ownership and eligibility rules for the LPFM service.  The Commission restricted LPFM service to noncommercial educational (“NCE”) operations, restricted licensee eligibility to applicants with no attributable interests in any other broadcast station or other media subject to our ownership rules, and prohibited the assignment or transfer of LPFM stations.[4] The Commission also determined that, during the two years following the first LPFM filing window, no entity would be permitted to own more than one LPFM station and that ownership should be restricted to local entities.[5]  To choose among entities filing mutually exclusive applications for LPFM licenses, the Report and Order set forth a point system that favors local ownership and locally-originated programming, with ties between competing applicants resolved by either voluntary time-sharing agreements between such applicants or, in the event that they cannot so agree, the imposition of “involuntary time-sharing,” with each tied and grantable applicant awarded an equal, successive and non-renewable license term of no less than one year, for a combined total eight-year term.[6]  Finally, the Report and Order directed the then-Mass Media Bureau to establish filing windows for LP100 applications.[7]   
4. The Commission revised and clarified some of its LPFM rules in a September 2000 Memorandum Opinion and Order on Reconsideration.[8]  The Reconsideration Order declined to adopt the more restrictive channel separation requirements urged by certain petitioners.  Instead, the Commission adopted complaint and license modification procedures to address unexpected third-channel interference problems caused by LPFM stations.[9]  The Reconsideration Order modified spacing standards to require LPFM stations to protect radio reading services.[10]  Beyond the issue of interference, the Commission increased ownership flexibility for universities, state and local governments, and entities operating public safety or transportation services.[11]  Finally, the Reconsideration Order addressed a number of technical and ownership issues and clarified the eligibility rules for certain groups.[12] 
5. After the Commission declined to impose third-adjacent channel separation requirements in the Reconsideration Order, Congress directed the agency to do so in the Making Appropriations for the Government of The District of Columbia for FY 2001 Act (“2001 DC Appropriations Act”).[13]  In that legislation, Congress instructed the Commission to prescribe third-adjacent channel spacing standards for LPFM stations and to deny LPFM applications of applicants that previously had engaged in the unlicensed operation of a radio station.[14]   The 2001 DC Appropriations Act also directed the Commission to evaluate the likelihood of interference to existing FM stations if LPFM stations were not subject to the third-adjacent channel spacing requirement. 
6. As a result of the spacing requirement imposed by the 2001 DC Appropriations Act, a number of facilities proposed in otherwise technically grantable applications became short-spaced to existing full-power FM stations or translators, leading to the eventual dismissal of those applications.[15]  To evaluate the likelihood of interference in the absence of a third-adjacent channel separation requirement, the Commission selected an independent third party – the Mitre Corporation – to conduct field tests.  The Commission then sought public comment on Mitre’s reported findings.[16]  In February 2004, the Commission submitted its report to Congress, recommending that, based on the Mitre study, Congress “modify the statute to eliminate the third-adjacent channel distan[ce] separation requirements for LPFM stations.”[17]      
7. In the March 2005 Second Order, the Commission reexamined some of the rules governing the LPFM service, noting that the rules might need adjustment in light of the experiences of LPFM applicants and licensees.[18]  The Commission also took into account comments made at a February 2005 forum on LPFM that had addressed “achievements by LPFM stations and the challenges faced as the service mark[ed] its fifth year.”[19]  The Second Order clarified that “local program origination,” as that term is used in Section 73.872(b)(2) of the Commission’s Rules (the “Rules”), does not include the airing of satellite-fed programming.  The Second Order also modified slightly the definitions of “minor change” and “minor amendment.”[20] 
8. In the accompanying FNPRM, the Commission sought comment on a number of issues with respect to LPFM ownership restrictions and eligibility.  The Commission asked whether LPFM licenses should be assignable or transferable and whether the temporary restrictions on multiple ownership of LPFM stations and on non-local ownership should be extended or allowed to sunset.[21]  Because “introducing some level of transferability to the LPFM service is critical,” the Commission delegated to the Media Bureau the authority to waive the prohibition on the assignment or transfer of a LPFM station contained in Section 73.865 of the Rules on a case-by-case basis and cited examples of circumstances in which the grant of such a waiver might be appropriate:

a sudden change in the majority of a governing board with no change in the organization's mission; development of a partnership or cooperative effort between local community groups, one of which is the licensee; and transfer to another local entity upon the inability of the current licensee to continue operation. . . . [22]   

The Commission noted, however, that “until we have further considered the transferability issue, we do not believe that waiver is appropriate to permit the for-profit sale of an LPFM station to any entity or the transfer of an LPFM station to a non-local entity or an entity that owns another LPFM station.”[23]

9. The Commission also proposed certain changes to the Rules governing the formation and duration of voluntary and involuntary time-sharing arrangements among mutually exclusive LPFM applicants.[24]  The FNPRM also considered a number of changes to the LPFM technical rules.  The Commission proposed to extend the construction period for LPFM stations and to allow time-sharing applicants greater flexibility to amend their applications to relocate the transmitter to a central location.[25]  The FNPRM also sought comment on the relationship between the LPFM and full-power FM services.  Noting that thousands of FM translator applications remained pending from the 2003 filing window, the Commission froze the processing of those applications and sought comment on possible adjustments to the co-equal status of LPFM stations and FM translators with regard to interference between them.[26]  The Commission also sought comment on whether LPFM stations should be protected from interference from subsequently authorized FM stations.[27]  Finally, the Commission denied a request by the Media Access Project (“MAP”) to schedule “regular” filing windows for LPFM new station applications and major modification applications.[28]
10. During the seven years since we created the LPFM service, that service has flourished for the most part, but also has encountered unique obstacles.  To date, the Media Bureau has received 3236 applications for new LPFM construction permits, of which 1,286 have been granted.  Currently, there are 809 LPFM stations operating throughout the country.  At the same time, the Media Bureau was compelled to cancel 17 station licenses and 95 construction permits for failure by the holder to satisfy certain procedural and/or technical requirements.  In view of this practical experience with LPFM service, we now turn to the issues raised in the FNPRM.  In resolving those issues, we seek to increase the number of LPFM stations that are on the air and providing service to the public, and to promote the continued operation of LPFM stations already broadcasting, while avoiding interference to existing FM service.