B. Technical Rules (37-71)

1.Construction Period

  1. The Report and Order established an 18-month construction period for all LPFM facilities, stating that deadlines would be strictly enforced.[1]  However, as a temporary measure, the FNPRM adopted an interim waiver policy to allow permittees with soon-to-expire permits to request additional time to construct their facilities.  Under that policy, the Media Bureau has the authority to consider and grant requests for an additional 18 months to construct facilities, upon a showing that the permittee reasonably can be expected to complete construction within the extended period.[2] 
  2. As a permanent solution, the FNPRM proposed extending the construction period for LPFM stations to 36 months, the construction period afforded to all other broadcast permittees.[3]  During the six years since the release of the 2000 Report and Order, our assumption that LPFM facilities would require significantly less time to build than that required to construct full-power FM facilities has proven to be overly optimistic.  LPFM licensees have encountered varying difficulties in locating suitable transmitter sites, raising sufficient funds for the proposed facilities, and obtaining the necessary zoning permits.[4]  The FNPRM thus proposed extending the construction period in order “to maximize the likelihood that LPFM permittees will get on the air.”[5]
  3. Many commenters favor extending the construction period.[6]  Some state that the blanket adoption of a 36-month construction period has administrative advantages over a conditional extension or case-by-case review of individual waiver requests.[7]  Moreover, extending the construction period to 36 months would put the LPFM and full-power FM services on equal footing and avoid disenfranchising able, willing, but inexperienced, LPFM permittees.  Prometheus Radio Project and others contend that the better approach is to grant an 18-month extension to complete construction, but only upon demonstration of good cause.[8]  Prometheus argues that such a procedure would give able and willing LPFM permittees a total of 36 months to construct their facilities but prevent unable or unwilling LPFM permittees from warehousing valuable spectrum, without service to the public, for an extended period of time.[9]
  4. We seek to encourage permittees to construct their facilities within 18 months, and therefore, decline to adopt a blanket 36-month construction period for LPFM. We agree with Prometheus that this approach will prevent unwilling/unable applicants from sitting on valuable spectrum. We recognize, however, that some permittees may face difficulties in meeting this deadline. Therefore, we will amend the Rules to allow all permittees, including current ones whose construction permits have yet to expire, the opportunity to seek an 18-month extension to complete construction of their facilities upon a showing of good cause.  Because any such extension should account adequately for the delays resulting from the potential inexperience of the permittee, as well as for potential obstacles that may arise during the zoning or permitting processes, that extended construction deadline will be strictly enforced, as it is with all other radio broadcast stations; we do not expect to entertain, and most likely will not grant, waiver requests or those for further extensions.[10]  

2.Technical Amendments

  1. Section 73.871 of the Rules limits the ability of applicants to propose site changes by minor amendment to relocations of 3.2 kilometers or less for an LP10 station, and 5.6 kilometers or less for an LP100 station.[11]  That Rule prevents time-sharing applicants from relocating their transmitters to a central location unless the site falls within those distance limits.  To increase flexibility for time-sharing applicants and thereby promote voluntary time-sharing agreements, the FNPRM proposed to allow time-sharing applicants to file minor amendments to relocate their transmitters to a central location, notwithstanding the site relocation limits imposed by Section 73.871 of the Rules.[12]     
  2.  Few commenters have responded to our queries about technical amendments by time-sharing applicants under Section 73.871 of the Rules.[13]  In 2001, UCC requested that we amend the Rules to allow applicants that submit a voluntary time-share agreement to relocate the transmitter to a central location, provided that one is available.[14] The Commission has a long-standing policy of providing mutually exclusive applicants with maximum flexibility to enter into time-share agreements in order to facilitate rapid licensing in the service.  For instance, in 2003, the Commission by public notice waived Section 73.871 of the Rules for a time to permit all LPFM settling applicants the ability to file major change amendments specifying new FM channels.[15] Permitting parties to file time-share agreements to specify a “central location” beyond the current minor amendment distance limitations would remove one more potential impediment to such agreements.  Accordingly, we amend Section 73.871 of the Rules to permit time-sharing applicants to specify a central transmitter location with a minor amendment without regard to the respective 3.2 and 5.6 kilometer limitations on such amendments.  These agreements, which permit a number of different organizations to reach local audiences, promote diversity.  Providing applicants additional flexibility and the opportunity to avoid the construction of duplicate facilities also serves the public interest.  For the same reason, we amend that Rule to allow permittees and licensees that reach a voluntary time-sharing agreement after their permits have been granted to submit such site change applications by minor submission.  We anticipate that this rule change will encourage time-share applicants, permittees and licensees to consolidate transmission and studio facilities.     

3.  LPFM - FM Translator Interference Priorities

  1. The FNPRM identified several possible ways to modify the LPFM-FM translator interference protection requirements.  Currently, stations in these two services operate on a substantially co-equal basis, with a facility proposed in an application having “priority” over one specified in any subsequently filed application.  The FNPRM sought comment on whether, and if so, under what circumstances LPFM applications should be treated as having priority status over prior-filed FM translator applications and granted authorizations.  In particular, the Commission sought comment on how to overcome the significant preclusive impact of the 2003 Auction No. 83 translator filing window, asking among other things whether all pending applications for new FM translator stations filed during the window should be dismissed.  The FNPRM explained that the staff already had granted approximately 3,500 new station construction permit applications from the singleton filings, “a number nearly equal to the total number of FM translator stations licensed and operating prior to the filing window,” that 7,000 applications remained on file, that very few opportunities for LPFM stations in major markets remained prior to the 2003 translator filing window, and that the Auction No. 83 filing would have a “significant preclusive impact on future LPFM licensing opportunities.”[16]  The voluminous comments submitted in response to the priority issue focus on two possible theories supporting modification of the current Rule:  (1) that LPFM provides a “preferred” radio service to that offered by translators; and (2) that priority status for LPFM applications is necessary to overcome the preclusive impact of the over 13,000 technical proposals filed during the 2003 Auction No. 83 FM translator window.
  2. LPFM advocates contend that their service is preferable to translator service.[17]  They note that the Rules require LPFM stations to be locally owned and permit local program origination.[18]  They note that, in contrast, many translators merely rebroadcast satellite-distributed national programming.  Some LPFM advocates request priority status for only those LPFM stations that originate programming.[19]  Others request priority status over all “distant” translators, i.e., translators that rebroadcast the signals of non-local stations. [20]
  3. NAB, NPR, the various state broadcast associations, and virtually all full-service commercial and NCE broadcasters support retention of the current interference protection rules.  They argue that there are no simple ways to distinguish preferred stations or programming.[21]  They also claim that there is no such thing as a typical LPFM or FM translator station.[22]  They reject as unfounded the contention that program origination or local ownership correlates to more desirable programming.[23]  They note that LPFM licensees have limited service responsibilities with regard to their communities of license:  LPFM stations need not originate programming; many serve the needs of niche interest groups rather than their entire communities of license; they are not required to maintain a main studio or public file; and they are required to operate for only 35 hours per week.[24]  Many broadcasters contend that, because the LPFM service is still in its infancy, it is premature to reassess the “co-equal” status of LPFM and FM translator stations.[25]  NCE and public radio broadcasters argue that giving LPFMs priority over operating FM translator stations would significantly disrupt established and valued translator service to millions of listeners, particularly those in rural areas[26] and in situations in which broadcasters rely on “chains” of translators to distribute programming.[27]  The public radio commenters note that translators are a critical component of the public radio infrastructure.[28]  A number of other commenters urge that a “fill-in” translator should be treated as the equivalent of its associated primary full-service station and, therefore, always preferred to an LPFM station.[29]
  4. With regard to the potentially preclusive impact of the over 13,000 FM translator applications filed in 2003, some commenters argue that the LPFM service is not entitled to any special consideration because LPFM applicants had the first opportunity during the 2000-2001 national LPFM windows to apply for new stations.[30] Translator advocates note that their last opportunity for non-reserved band FM translators occurred in 1997.[31]  Edgewater Broadcasting, Inc. (“Edgewater”) submits an extensive analysis of the preclusive impact of the construction permits issued out of the 2003 translator filing window and the more limited impact of the over 1,000 permits issued to it and its commonly-owned Radio Assist Ministries.[32]  Edgewater contends that the preclusive impact has been “miniscule,” notes that the Commission received no LPFM applications to serve many of the areas specified in its translator filings, and argues that its studies demonstrate that vast areas in the country remain available for new LPFM stations.[33]  REC also submits both national and market-specific analyses and identifies several communities in which 2003 window filings have allegedly precluded or diminished LPFM station licensing opportunities.[34]
  5. The Station Resource Group, an alliance of 45 public radio broadcasters that operate 168 radio stations, contends that the chief contributor to LPFM station preclusion is a “maxed out spectrum situation” which prevents any broadcasters, NCE or commercial, translators or LPFM stations, from obtaining new licenses in virtually all major markets and many medium-sized markets.[35] Several commenters argue that the statutory third-adjacent channel LPFM protection requirement blocks many otherwise-licensable LPFM opportunities.[36]
  6. A number of commenters argue that the Commission’s concern is misdirected.  They urge the Commission to instead move vigorously against alleged FM translator filing abuses, speculators, and deficient application filings.[37]  They suggest imposing numerical application filing limits, either on a prospective basis or with regard to the still-pending translator applications.[38]  Several contend that the high demand for new FM translators is unsurprising, given the extended freeze on non-reserved band licensing.[39]
  7. As demonstrated by the comments filed on this issue, the LPFM and FM translator services are each valuable components of the nation's radio infrastructure.  We agree with the advocates for each of these services regarding the important programming that these stations can provide to their local communities.  We do not reach the merits of the priority rules between these two services here.  Instead, we seek further comment in the attached Second Further Notice of Proposed Rulemaking to develop a better record on whether and how our current rule affects our core goals of localism, diversity and competition.  The current rules will remain in effect until the Commission resolves the issue in that proceeding. 
  8. We also must consider the question of whether Auction No. 83 filing activity has adversely impacted our goal to provide to both LPFM and translator applicants reasonable access to limited FM spectrum in a manner which promotes the “fair, efficient, and equitable distribution of radio service . . . .”[40]  This issue has taken on much greater significance over the past few years as demand for new radio stations has increased dramatically while the spectrum for such stations has become increasingly scarce, particularly in many mid-sized communities and in virtually all urbanized areas.  Station Resource Group is correct – the primary licensing impediment is the nation’s “maxed out” spectrum situation.  New Jersey LPFM licensing activity is illustrative of the limited new station opportunities in spectrum-congested areas.  Only 29 New Jersey LPFM applications were filed during that state’s June 2001 window.  Of those submissions, the Media Bureau has issued only eleven construction permits and only one additional authorization possibly may be granted.  Only seven LPFM stations are currently operating in the state.  We find these statistics more probative of the LPFM service’s growth potential than the studies completed by Edgewater because LPFM stations, due to their limited service area potential, generally require higher population densities to be viable.  It seems unlikely that the availability of spectrum in the vast rural portions of the nation will generate significant levels of LPFM station licensing.
  9. Demand for radio spectrum is, if anything, increasing.  The number of applications filed during the AM new and major change windows jumped from 258 in 2000 to more than 1,300 in 2004.  Competitive bidding activity for FM new station construction permits has been robust since the commencement of open FM auctions in 2004.  The 2003 FM translator window provides further evidence of this trend, especially when compared to historic licensing levels for this service.  As of September 30, 1990, a total of 1,847 licensed FM translators and (co-channel) boosters operated throughout the nation.  As of December 31, 1997, shortly after the date on which the Commission imposed a freeze on new non-reserved band translator filings (but not on new boosters or new reserved band stations), a total of 2,881 FM translators operated nationally.  The number of licensed stations continued to grow modestly over the next six years, chiefly as a result of ongoing reserved band filing activity.  A total of 3,818 licensed stations were in operation in March 2003 when the Commission opened the FM translator window, a total of 3,897 licensed stations when the Commission imposed the Auction No. 83 construction permit freeze in March 2005. 
  10. Measured against this historical licensing record, Auction No. 83 window filing activity was significant.  Proposals exceeded authorized stations by a factor of three in a service in which little licensing was done before the 1980s.  The 2003 window already has nearly doubled the total number of authorized stations.  To date, three times more translator stations have been authorized out of this one window than LPFM stations authorized through the initial LPFM window filing process.  Approximately 7,000 translator applications remain pending.  The Commission faces two chief difficulties in trying to balance spectrum allocations for LPFM stations and translators.  First, FM translators are licensed under substantially more flexible technical rules.  Thus, some of the Auction No. 83 filing activity involves spectrum which is unavailable for LPFM use.  By the same token, LPFM station proponents have far fewer licensing opportunities in spectrum-congested markets because LPFM technical rules are substantially less flexible.  Second, it is impossible to accurately predict future demand for LPFM station licenses.  While engineering studies can identify areas in which additional licensing is technically permissible, the interest of local organizations to apply for, construct, and operate new LPFM stations can only be determined at the time a window is opened. 
  11. Although precise preclusionary calculations are not possible, we believe that processing all of the approximately remaining 7,000 translator applications would frustrate the development of the LPFM service and our efforts to promote localism.  Several factors support the adoption of some remedial measures.  The sheer volume of Auction No. 83 filings, when compared to historic translator and LPFM licensing levels, is a significant concern.  We recognize that LPFM proponents had the “first” opportunity to file for the spectrum which Auction No. 83 filers now propose to use.  However, it is apparent that the translator filings have precluded or diminished LPFM filing opportunities in many communities.  For example, a REC national study found that 16 percent of all census designated communities that otherwise would have LPFM channels available in their communities have been precluded by the translator filings and that the greatest preclusionary impact has been in the largest such communities.[41]  Moreover, the Media Bureau has found that its efforts to identify alternative channels for LPFM stations either causing or receiving interference have been significantly limited in numerous cases by the requirement to protect pending FM translator applications and authorizations granted out of the 2003 window.  The licensing asymmetries between these two services also support this finding.  Translator filings can materially impact LPFM new station options which are far more limited than FM translator filing opportunities.  In contrast, it is unlikely that LPFM filings will materially affect translator licensing options.  FM translator contour-based station licensing is substantially more flexible than the strict distance separation requirements which LPFM stations must satisfy.  This difference is tied in part to the fact that unlike an LPFM station, an FM translator station must cease broadcast operations if it is causing “actual interference” to any authorized broadcast station.[42]  In short, any translator station construction is at the risk of the permittee.  The level of Auction No. 83 filing activity and the fact that many applications were filed for facilities in the top 100 markets both illuminate the significant difference in the licensing opportunities between these two services.  The next LPFM window may provide the last meaningful opportunity to expand the LPFM service in spectrum-congested areas.  In contrast, we expect significant filing activity in many future translator windows.
  12. Certain equitable considerations also tilt in favor of adopting remedial measures to limit the preclusive impact of Auction No. 83 filings.  Each applicant filing in Auction No. 83 submitted one Form 175 Application to Participate in an FCC Auction and a separate Form 349 “Tech Box” for each translator proposal.  861 filers submitted 13,377 such proposals in the window. Applicant filing activity divided between the hundreds of applicants who filed a limited number of applications and a very small number of applicants who filed for hundreds or thousands of construction permits.  For example, approximately half the filers submitted one or two proposals.  Approximately 80 percent of filers submitted 10 or fewer proposals.  97 percent filed 50 or fewer proposals.  In contrast, the two most active filers, commonly-owned Radio Assist Ministries and Edgewater (collectively, “RAM”), filed 4,219 proposals, constituting almost one-third of all Auction No. 83 filings.  The fifteen most active filers were responsible for one-half of all Tech Box submissions.
  13.  We are concerned that the heavily skewed filing activity in Auction No. 83 raises concerns about the integrity of our FM translator licensing procedures.  Even if lawful, it is fair to question whether the acquisition of unprecedented numbers of FM translator authorizations by a handful of entities through our window filing application procedures promotes either diversity or localism. The rapid flipping of hundreds of permits acquired through the window process for substantial consideration does suggest that our current procedures may be insufficient to deter speculative conduct.  Some commenters have been critical of RAM’s business strategy.  “The [National Translator Association] considers those applicants who intend to obtain construction permits and then sell those permits to be simply speculators for profit.”[43]  Most fundamentally, it appears that our assumption that our competitive bidding procedures would deter speculative filings has proven to be unfounded in the Auction No. 83 context.  RAM, alone, has sought to assign more than 50 percent of the 1,046 construction permits it has been awarded through the window and has consummated assignments for over 400 of all such permits. 
  14. In order to further our twin goals of increasing the number of LPFM stations and promoting localism, we find it necessary to take action.  Accordingly, we will limit further processing of applications submitted during the Auction No. 83 filing window to ten proposals per applicant.  Applicants with more than ten proposals pending will be provided an opportunity to identify those applications which they wish to have processed and those for which they seek voluntary dismissal.  The Media Bureau is directed to complete its processing of the approximately 100 pending but frozen singleton long-form applications without regard to the ten application limit.  However, construction permits granted from this group will count toward the limit for future Auction No. 83 licensing purposes.  This cap will only apply to short-form applications, and will not impact the ability of Auction No. 83 filers with granted construction permits or pending long-form applications to obtain licenses to cover.  This limit will not have an adverse impact on the more than 80 percent of those who filed ten or fewer proposals in the Auction No. 83 filing window.  It will require certain filers to identify priority proposals.  This cut-off will limit the preclusive impact of Auction No. 83 filings on LPFM licensing opportunities by barring the processing of thousands of applications filed by a very small number of applicants, without impacting the approximately 80 percent of filers who filed ten or fewer applications.  Although we recognize the equitable interests of the remaining 20 percent of filers in the processing of all of their short-form applications, on balance we conclude that the public interest requires a bar on the processing of more than ten applications per filer. We are hopeful that as a result of this cap the Media Bureau will be able to shorten the period between windows for both new LPFM and FM translator stations.  We direct the Media Bureau to issue a public notice announcing the opening of the settlement window required by Sections 73.5002 (c) and (d) of the Rules.[44]  Applicants must select the ten applications they wish to preserve before the settlement window opens.  With the imposition of this cap, we direct the Media Bureau to resume the processing of Auction No. 83 filings.  Specifically, the Media Bureau is to expeditiously process the applications of any applicant that is now in compliance or brings itself into compliance with the ten proposal cap.
  15. We are mindful of the expenses that translator applicants have incurred in preparing their non-feeable Form 175 short-form applications and Form 349 Tech Box submissions but believe that the imposition of this cap treats all applicants equitably.  We have attempted to accommodate applicants to the greatest extent possible, consistent with statutory requirements and competing Commission goals.  All applicants will benefit from expedited processing and the Media Bureau’s ability to open future windows more quickly.  Thus, this action is entirely consistent with Commission Rules and precedent for the dismissal of pending applications as a necessary adjunct of efficient and effective rulemaking.[45]  Finally, we note that there is ample precedent for the mass dismissal of applications based on a rule or policy change.[46]  This procedural change is a reasonable exercise of the Commission’s administrative discretion. Accordingly, we conclude that the imposition of a cap in these circumstances is lawful.

4.Interference Protection from Subsequently Authorized Full-Service FM Stations

  1. Background.  The Report and Order establishing the LPFM service set minimum distance separation requirements to ensure that LPFM stations protect existing commercial and NCE full-service FM stations, as well as FM translator and booster stations.[47]  The Report and Order also concluded that existing full-service stations would not be required to protect proposed LPFM facilities.  Moreover, “operating LPFM stations will not be protected against interference from subsequently authorized full-service facility modifications, upgrades, or new FM stations.”[48]  Conversely, an LPFM station is not permitted to cause interference within the 3.16 mV/m (70 dBμ) contour of a full-service FM station.[49]  An LPFM station generally may continue to operate within that contour so long as it can demonstrate that actual interference is unlikely to occur.  Section 73.809 of the Rules sets forth detailed complaint procedures to resolve disputes over the likelihood of actual interference and the sufficiency of actions taken by LPFM stations to eliminate that interference.[50]
  2. In September 2000, the Commission dismissed a motion to reconsider the regulatory status of LPFM stations.[51]  In the FNPRM, however, the Commission stated that “it would be useful to consider whether to limit the Section 73.809 interference procedures to situations involving co- and first-adjacent channel predicted interference, where the predicted interference areas are substantially greater than for second and third-adjacent channel interference.”[52]  The Commission also asked whether an LPFM station should be permitted to remain on the air if the full-power FM station did not serve the area of predicted interference prior to the facilities modification (in the case of an existing station) or the grant of the construction permit (in the case of a new station).  Similarly, the Commission sought comment on whether an LPFM station should be permitted to remain on the air if the full-service station’s community of license would not be subject to interference.  Finally, the Commission asked whether an amendment to Section 73.809 of the Rules would be consistent with Congress’ directive mandating third-adjacent channel interference protection from LPFM stations.[53] 
  3.  Although, to date, only one LPFM station has been forced off the air pursuant to the requirements of Section 73.809 of the Rules, some commenters believe that numerous LPFM stations are under a significant threat of such “encroachment.”[54]  In 2005, REC released a study claiming that 134 LPFM construction permits and licenses were then at risk of being cancelled due to pending full-power station modification applications for vacant allotments.[55]  The study also claimed that hundreds of LPFM stations faced less significant levels of increased interference.[56]  REC has updated this analysis to assess the impact of applications filed under the recently-adopted rules that established streamlined community of license modification procedures.  This study claims that 257 LPFM stations could suffer at least some signal degradation as a result of these facility changes and that 38 of these LPFM stations might be required to cease operations.  Prometheus and other commenters call for the Commission to grant LPFM stations co-equal protection status with full-power stations.  Alternatively, they suggest that a full-power station proposing to eliminate or seriously degrade the listening area of an LPFM station be required to receive full Commission approval for such a modification.  At a minimum, these commenters request that impacted LPFM stations be provided with the ability to make major engineering changes to preserve service.[57]
  4. Conversely, many other commenters believe that no changes to Section 73.809 of the Rules are warranted.[58]  Instead, NAB proposes that flexible procedures be put in place to encourage LPFM stations to relocate.[59]  NPR contends that the Commission should maintain the current interference protections between FM and LPFM stations.  Indeed, NPR and others suggest that the Commission lacks statutory authority to eliminate second and third-adjacent channel protections.[60]  Educational Media Foundation states that relaxing Section 73.809 of the Rules would be harmful to listener-supported NCE stations.[61]  Finally, NSBA contends that there is a strong likelihood of harmful interference to full-service FM stations if the Rule is changed and that harm outweighs any speculative benefit to the public interest that would result from a rule change.[62]
  5. Discussion.  In the Report and Order, we declined to provide LPFM stations with an interference protection right that could prevent a full-service station from seeking to modify its transmission facilities or could foreclose future new full-service radio station licensing opportunities.[63]  Our experience to date confirms our belief that in most instances the interests of both full-service and LPFM stations can be accommodated.  We applaud those full-service stations that have provided technical and/or financial assistance to LPFM stations that have been required to undertake facility modifications to remain on the air.  We are particularly appreciative of those broadcasters that have consented to short-spacings to avoid LPFM station displacements.[64]  We urge licensees seeking community of license modifications or other changes that could lead to LPFM displacement or signal degradation to continue these cooperative efforts on a going-forward basis.  The Media Bureau also has played an important role in crafting technical solutions to preserve LPFM stations potentially at risk from new station and facility modification proposals.  It already has taken action on dozens of LPFM modification applications that were filed to eliminate or reduce caused interference to or received interference from a full-service FM station.  We direct the Media Bureau to continue to attempt to resolve conflicts between full-service and LPFM stations in ways that accommodate the interests of both services. 

a.Section 73.809 Interference Procedures

  1. Circumstances have changed considerably since we last considered the issue of protection rights for LPFM stations from subsequently authorized full-service stations.  Most importantly, the January 2007 lifting of the freeze on the filing of FM community of license modification proposals combined with the implementation of new streamlined licensing procedures resulted in a one-time flurry of filing activity, with approximately 100 FM community of license modification proposals submitted in the first week of the new Rules.  In all, over 200 community of license modification applications have been filed under the new rules.  Increased filings under the new Rules and the arguments of LPFM advocates persuade us that the Commission should put policies in place to address current and future LPFM station displacement threats.  The Media Bureau has identified approximately 40 LPFM stations that could be forced to cease operations.  In these circumstances, we find that the Rules should be amended to limit Section 73.809 interference procedures to situations involving co- and first-adjacent channel interference.[65]  Thus, Section 73.809 will no longer apply to situations involving predicted second-adjacent channel interference. We encourage full-service and LPFM stations to work cooperatively to minimize or eliminate the impact of the full-service station proposal on both stations.  In this regard, we encourage each “encroaching” full-service station to provide technical and financial assistance to any LPFM station at risk from a full-service station facility proposal and to identify and facilitate the implementation of measures to ameliorate any potential increase in received interference by the LPFM station.  As described in more detail below, second-adjacent channel interference to a full service station is generally predicted to occur only in the immediate vicinity of the LPFM station transmitter site.  Predicted interference to listeners can be substantially reduced or eliminated in these situations by various techniques, e.g., increasing LPFM antenna height, relocating LPFM transmission facilities away from populated areas, etc. 

b.Section 73.807 Second-Adjacent Channel Waiver Standard

  1. The Media Bureau has identified for many of the stations now at risk of displacement alternate channels that would require waivers of Section 73.807 of the Rules[66] because operations on the new channels would be short-spaced to full service stations operating on second-adjacent channels. Based on the potential harm to this small but not insignificant number of LPFM stations, we believe that it would be beneficial to establish a procedural framework for the consideration of showings from LPFM stations that may seek such waivers to avoid displacement, as well as to avoid unnecessary disruption of LPFM service to the public during such consideration.  This procedure will apply to both pending applications and those filed, but not disposed of, prior to the effective date of any Rule changes proposed in the Second Further Notice.  The clarification of our second-adjacent channel LPFM waiver standards set forth below is intended to avoid the unwarranted loss of many LPFM stations while the Commission considers certain Rule changes set forth in a Second Further Notice that we also adopt today.  The interim procedural protections we establish in connection with such waiver standards are designed to safeguard the interests of all affected parties and to aid the Commission in identifying those situations in which strict compliance with our Rules would not serve the public interest.  We also provide guidance below regarding processing standards that the Commission will apply to full-service station modification applications where the modification would place an LPFM station at risk of displacement and no alternate channel is available.  In such circumstances, we will consider waiving the Commission’s Rule making LPFM stations secondary to subsequently-authorized full-service stations and denying the modification application to protect an LPFM station that is demonstrably serving the need of the public from being required to cease operations.
  2. In evaluating whether the public interest would be served by grant of a waiver of Section 73.807 of the Rules for a second-adjacent channel short-spacing to an LPFM station at risk of displacement, the Commission must balance the potential for new interference to the full-service station against the potential loss of an LPFM station.  An LPFM station operating within the 60 dBμ contour of a second-adjacent channel full-service station would cause interference to the full-service station in the immediate vicinity of the LPFM transmitter site.  Based on desired-to-undesired (“D/U”) signal strength ratio calculations, in most circumstances interference would be predicted to extend from ten to two hundred meters from the LPFM station antenna.  Clearly, it will be advantageous to an LPFM applicant’s waiver showing to propose modifications that minimize the area of predicted interference, e.g., by proposing maximum possible antenna heights above average terrain, and by selecting transmitter sites not located near densely populated areas.  We encourage the encroaching full-service station licensee to provide technical assistance to LPFM stations to develop modification proposals that would avoid impacting current radio listening patterns.[67] 
  3. The following procedures will be limited to those situations in which implementation of the full-service new station or modification, including community of license, proposal would result in the full-service and LPFM stations operating at less than the minimum distance separations set forth in Section 73.807 of the Rules.  In addition, implementation of the full-service proposal must result in either an increase in interference caused to the LPFM station or result in the displacement, i.e., the suspension or termination of LPFM station operations pursuant to Section 73.809 of the Rules, of the LPFM station.  These procedures will not be available where an alternate, fully-spaced, and rule-compliant channel is available for the LPFM licensee or permittee.  Finally, Special Temporary Authorizations (“STA”) will be available pursuant to these procedures only if the LPFM station is proposing a waiver (or waivers) of LPFM second-adjacent channel spacing requirements.[68]
  4. We direct the Media Bureau to contact LPFM stations that are currently, or in the future may become, eligible to seek facility modifications under these procedures.  To receive consideration, an LPFM station must file promptly an application on Form 318 and include a Section 73.807 of the Rules waiver request and showing.  If the Media Bureau determines that the request falls within the scope of these procedures, it will issue an order to show cause[69] to the potentially impacted full-service station(s) as to why the modification of such station license(s) to allow a second-adjacent channel short-spacing would not be in the public interest.  In the event that the Media Bureau concludes that the public interest would be better served by waiving Section 73.807 of the Rules, it will retain the LPFM station’s application in pending status and issue an STA for the proposed LPFM station modifications.  STAs issued pursuant to these procedures will be subject to any action taken by the Commission in the Second Further Notice.  The Commission will withhold final determination of the waiver request until action on the Second Further Notice proposals.  We encourage each “encroaching” full-service station to provide technical and financial assistance to any LPFM station which avails itself of these procedures.  We also direct the Media Bureau to include a condition, as appropriate, in the “encroaching” full-service station’s construction permit requiring such station to provide technical assistance and assume financial responsibility for all direct expenses associated with resolving actual interference complaints, e.g., the purchase of radio filters, etc. 

c.LPFM Station Displacement

  1. In certain circumstances no alternative channel will be available for an LPFM station at risk of displacement.  With regard to full-service modification applications filed after the release of this Order, we provide the following guidance on the standards that the Commission will use to determine whether grant of such applications are in the public interest.  Generally, the Commission will favor grant of the full-service station modification application.  However, we believe that it is appropriate to apply a presumption that the public interest would be better served by a waiver of the Commission Rule making LPFM stations secondary to subsequently authorized full-service stations and the dismissal of an “encroaching” community of license reallotment application when the threatened LPFM station can demonstrate that it has regularly provided at least eight hours per day of locally originated programming, as that term is defined for the LPFM service.[70]  This presumption will apply only when implementation of a community of license modification would result in the displacement of an LPFM station or result in such a significant increase in caused interference to the LPFM station such that continued operations are infeasible, i.e., when the LPFM transmitter site is located within the interfering contour[71] of a co- or first-adjacent channel community of license modification proposal.  This presumption will also be limited to those situations in which no “suitable” alternate channel is available for the LPFM station.[72]  This presumption will not apply where opportunities are available for the impacted LPFM station to alter operations in order to avoid conflict with a full-service station. 
  2. Our evaluation of these competing demands for scarce spectrum will take into account the benefits of the move-in proposal under Section 307(b) of the Communications Act of 1934, as amended, the amount of locally originated programming by the LPFM station, the extent to which other LPFM stations are licensed to and/or provide service to the area currently served by the threatened LPFM station, the extent to which other noncommercial educational (“NCE”) radio stations are providing locally originated programming to listeners in the LPFM station’s service area, the number of LPFM stations at risk of displacement from the proposed community of license modification proposal, and any other public interest factors raised by the full-service and LPFM station applicants or other parties.  LPFM stations that wish to make a showing under this waiver standard must file an informal objection to the “encroaching” community of license modification application within sixty days of the Federal Register notice of such application filing.  Oppositions and replies may be filed in accordance with Section 1.45 of the Rules.  This presumption is rebuttable and does not bind the Commission to a particular result.  We caution parties that even if the required showing is made, the Commission in the exercise of its discretion may conclude that denial of the full-service station application and grant of the waiver would not serve the public interest.
  3. We intend to narrowly limit this policy to the class of LPFM stations that are demonstrably serving the needs of local listeners.  Moreover, this policy will not apply in a situation in which a full-service station proposes a facility change to improve service to its current community of license.  We emphasize that we will dismiss a community of license modification proposal only when no technically reasonably accommodation is available and the LPFM station makes the requisite waiver showing.  We conclude that this processing policy appropriately balances the interests of full-service and LPFM stations, and recognizes the role that each service plays in promoting diversity and localism.  The Commission is seeking comment on the presumption in the attached Second Further Notice and may modify it based on the comments received in response thereto. 
  4. We believe that Section 73.807 of the Rules and LPFM displacement standards will effectively balance the interests of LPFM and full-service broadcasters while the Commission considers the Second Further Notice proposals.  While REC has identified many LPFM stations that ultimately may be required to modify their facilities as a result of encroachment, we do not see this as a threat to the viability of the LPFM service, especially with the additional protections and procedures we adopt herein.  REC’s claim that many LPFM stations face interference merely describes a basic feature of the service in today’s congested FM broadcast radio spectrum.  Opportunities exist for many LPFM stations to change locations, reduce power, or change channels, in the event that a conflict arises with a full-service station.  Furthermore, the majority of the stations identified as “less significant risks” by REC solely exist today because of the flexible nature of the spacing rules under Section 73.807 of the Rules.[73]  Section 73.807 clearly identifies the distance separations necessary for LPFM stations to avoid received interference but does not require LPFM stations to meet this stringent standard.  This Rule fully protects nearby full-power FM stations while also allowing interference to LPFM stations in some instances.  Therefore, LPFM stations at distances less than those specified in Section 73.807 of the Rules in the column labeled “for no interference received from max. class facility” can expect to receive interference.[74]

[1] Report and Order, 15 FCC Rcd at 2278-79, paras. 189-90. 

[2] FNPRM, 20 FCC Rcd at 6775, para. 27.

[3] See 47 C.F.R. § 73.3598(a).

[4] See KVLP Comments at 1 (discussing difficulties in financing construction); see also Second Order, 20 FCC Rcd at 6775, para. 26 (recognizing that zoning and permitting processes could delay construction).

[5] FNPRM, 20 FCC Rcd at 6775, para. 26. 

[6] NPR, REC, Eureka College, Virden Broadcasting Corporation, Kaskaskia Broadcasting, Inc., JT Communications, Kyle E. Magrill, Matthew Lasar, Elizabeth Currans, Meagen Grundberg, and Richard Whitmore favor extending the 18-month requirement to three years; Colquitt Community Radio, Inc., Optima Enrichment Inc., and Martin L. Hensley oppose any extension of the current 18-month requirement.

[7] See Comments of Eastern Sierra Broadcasters at 2 (favoring an automatic extension for reasons of administrative ease, but would limit the extension to a total of 24 months). 

[8] See Comments of Prometheus at 26 (filed Aug. 22, 2005); Reply Comments of Christian Community Broadcasters at 2 (filed Sept. 21, 2005); Comments of Christian Community Broadcasters at 3 (filed Aug. 22, 2005); Comments of Dane Scott Undenburg (filed July 18, 2005).

[9] See Comments of Prometheus at 26 (filed Aug. 22, 2005).

[10] We note that this expectation does not affect the tolling provisions of 47 C.F.R. § 73.3598(b).

[11]  47 C.F.R. § 73.871(c). 

[12]  See FNPRM, 20 FCC Rcd at 6776, para. 28 (citing UCC 2001 Petition at 7).

[13] 47 C.F.R. § 73.871(c).  

[14] UCC Petition at 7.  

[15] See Settlement Period Announced for Closed Groups of Pending Low Power FM Mutually Exclusive Applications, Public Notices, 18 FCC Rcd 18048, 18 FCC Rcd 19726 (MB 2003).   

[16] See FNPRM, 20 FCC Rcd at 6776-78, paras. 29-33.

[17] See, e.g., Comments of KZQP-LP at 1-2. 


[18] See, e.g., Comments of KYRS-LP at 1-2. 


[19] See, e.g., Reply Comments of Prometheus Radio Project at 28-31; Comments of Highland Community Broadcasting at 1-2. 


[20] See, e.g., Comments of The Amherst Alliance at 2; Comments of REC at 16; Reply Comments of REC at 2.


[21] See, e.g., Comments of Edgewater Broadcasting, Inc. at 6-7; Comments of Educational Media Foundation Comments at 6-9; Reply Comments of MBC Grand at 1-3; Reply Comments of NAB at 3-4; Comments of Public Radio Regional Organization at 10-15.


[22] See, e.g., Comments of the National Translator Association at 2-3; Comments of the Public Radio FM Translator Licensees at 3-6.


[23] See, e.g., Comments of Edgewater Broadcasting, Inc at 7; Reply Comments of Edgewater Broadcasting, Inc. at 4; Comments of NAB at 24-26; Reply Comments of NAB at 9-10.

[24] See, e.g., Comments of Educational Media Foundation at 10-11; Comments of National Translator Association at 3-4; Reply Comments of Station Resource Group at 4. 


[25] See, e.g., Comments of Named State Broadcaster Associations (“NSBA”) at 3. 


[26] See, e.g., Comments of Public Radio FM Translator Licensees at 3-6; Comments of The Public Radio Regional Organizations at 11-15; Comments of Educational Media Foundation at 2-4

[27] See, e.g., Comments of NAB at 26-27.  

[28] See, e.g., Comments of NPR at 5-9; Comments of Station Resource Group at 5-8.  

[29] See, e.g., Comments of Bayard H. Walters at 2-3; Joint Comments of Galaxy Communications, L.P. and Desert West Air Ranchers Corp. at 6 n.11; Reply Comments of REC at 5-6.


[30] See, e.g., Comments of Edgewater Broadcasting, Inc. at 3-4; Comments of Public Radio Regional Organizations at 19-20.


[31] See, e.g., Comments of Public Radio Regional Organizations at 19-20.  

[32] See, e.g., Comments of Edgewater at Exhibits 1-3. 

[33] Comments of Edgewater at 4-6. 

[34] Reply Comments of REC at 3; See also Reply Comments of Prometheus Radio Project at Appendix A and Appendix B.

[35] Comments of Station Resource Group at 5.  

[36] See, e.g. Comments of REC at Appendix D.

[37] See, e.g., Comments of Station Resource Group at 8; Comments of the Public Radio Regional Organizations at 19-22.

[38] Comments of Station Resource Group at 8-9; Comments of the Public Radio Regional Organizations at 19-20; Comments of the National Translator Association at 7-8; Reply Comments of REC at 5-6. 

[39] See, e.g., Comments of Saga Communications at 7; Comments of Named State Broadcaster Associations at 9. 

[40] 47 U.S.C. § 307(b). 

[41] See Reply Comments of Prometheus at 17-18.

[42] See 47 C.F.R. § 74.1203(a)(1).

[43] Comments of National Translator Association at 7.

[44] 47 C.F.R. §§ 73.5002 (c) and (d).

[45] See, e.g., Elleron Oil Company WVI Partners, Inc., Order, 13 FCC Rcd 17250 (WTB 1998); Chadmoore Comm’ns, Inc. v. FCC, 113 F.3d 235 (D.C. Cir. 1997); Kessler v. FCC, 326 F.2d 673 (D.C. Cir. 1963).

[46] See, e.g., Revision of Part 22 and Part 90 of the Commission’s Rules, Second Report and Order and Further Notice of Proposed Rulemaking, 12 FCC Rcd 2732, 2739-40 (1997) (dismissing all pending paging applications and all applications filed after a certain date to facilitate transition to new geographic-area licensing system); Elleron Oil Company WVI Partners, Inc., 13 FCC Rcd at 17252. 


[47]  Report and Order, 15 FCC Rcd at 2230, para. 63.

[48]  Id. at 2231, para. 65.

[49]  Id. at 2232, para. 66. 

[50]  47 C.F.R. § 73.809.

[51]  Reconsideration Order, 15 FCC Rcd at 19220, para. 29. 

[52]  See FNPRM, 20 FCC Rcd at 6780, para. 38 (noting that “the public interest may favor continued LPFM second- and third-adjacent channel operations over a subsequently authorized upgrade or new full-service station”).

[53]  Id. at 6781, para. 39.

[54] See, e.g., Prometheus Reply Comments at 2.  On March 5, 2007, the Commission received a petition for rulemaking requesting: (1) immediate issuance of a moratorium on the displacement of licensed LPFM stations and Class D Educational stations by new, relocating and/or upgrading full-power radio stations, and (2) a proposed rule permanently prohibiting or otherwise restricting such displacement.  See Petition for Rulemaking of the Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media, Providence Community Radio and Nickolaus E. Leggett N3NL at 1. In light of the discussion herein, we dismiss this petition.   


[57] See Prometheus, et. al., comments at 12-17.  

[58] See Comments of NAB; Cox Radio, Inc.; Educational Media Foundation; Galaxy Communications, L.P.; Desert West; Air Ranchers Corp.; and NSBA.   

[59] See NAB Reply Comments at 16-17; see also Comments of Cox Radio, Inc., and Galaxy Communications, L.P.

[60] See NAB Comments at 14; see also NSBA Reply Comments at 12-13.   

[61] See Educational Media Foundation Reply Comments at 7.

[62] See NSBA Reply Comments at 10.

[63] See Report and Order, 15 FCC Rcd at 2231. See also n.16 and accompanying text.

[64]  Letter to John Snyder from Peter H. Doyle, Chief, Audio Division, Media Bureau, 21 FCC Rcd 11,945 (MB 2006).

[65] We note that, contrary to the suggestion in the FNPRM, Section 73.809 does not require LPFM stations to resolve complaints of actual interference to subsequently authorized third-adjacent channel full service stations.  Thus, this Rule change does not “eliminate or reduce” third-adjacent channel protection requirements and therefore comports with statutory requirements.  See 2001 DC Appropriations Act.

[66] 47 C.F.R. § 73.807.

[67]  Based on this very limited potential for second-adjacent channel interference, the FNPRM sought comment on a closely related proposal to limit LPFM displacement – whether to limit complaint procedures under Section 73.809 of the Rules to situations involving only co- or first-adjacent channel predicted interference.  FNPRM, 20 FCC Rcd at 6780, para 38.

[68] The Commission appears to be without authority to waive third-adjacent channel spacing requirements.  See 2001 DC Appropriations Act.  There is a significant potential for interference from short-spaced co- and first-adjacent channel LPFM station operations.  Accordingly, the waiver procedures set forth herein will not apply in these contexts.

[69] See 47 U.S.C. § 316.

[70] See 47 C.F.R. § 73.872(b)(3); see also infra at ¶ 24.

[71] See 47 C.F.R. §§ 73.215 and 73.509.

[72] An alternate channel is “suitable” if the distance between the LPFM transmitter site and the protected authorization or application  satisfies the “required” distance separation minimums set forth in 47 C.F.R. § 73.807.  The spacing need not meet the co- and first-adjacent channel minimum separations “for no interference received from maximum class facilities,” as set forth in this Rule.

[73] 47 C.F.R. § 73.807.   

[74] See 47 C.F.R. §§ 73.807(a)(1)-(2).