III. Second Order on Reconsideration (8-14)

A.Ownership and Eligibility

8. In the Report and Order, the Commission established a point system for resolving mutual exclusivity among LPFM applicants.[1]  The point system includes three selection criteria for mutually exclusive applicants.[2]  First, applicants that have an established community presence of at least two years’ duration are awarded one point.[3]  Second, applicants that pledge to operate at least 12 hours per day are assigned one point.[4]  Finally, applicants that pledge to originate locally at least eight hours of programming per day are assigned one point.[5]  The Commission defined local origination for purposes of resolving mutual exclusivity in LPFM applications as the production of programming within 10 miles of the reference coordinates of the proposed transmitting antenna.[6]
9. On reconsideration, the Commission considered a request to broaden the definition of locally originated programming to include programming that “covers local persons and/or their activities and/or local issues.”[7]  The Commission agreed that clarification was warranted, but declined to adopt the proposed language.  Instead, the Commission explained that because the intent of awarding a point for a pledge to provide locally originated programming is to encourage licensees to maintain production facilities and a meaningful staff presence within the community served by the station, a definition of local program origination as the production of programming by the licensee within 10 miles of the proposed transmitting site is most appropriate.[8]  The Commission clarified explicitly that this rule does not necessarily preclude an applicant from claiming a point for local origination based on coverage of a high school away game played more than 10 miles away, so long as the production involves facilities located within a 10-mile radius of the antenna.[9] 
10. The United Church of Christ, Office of Communication, Inc. (“UCC”) requests that the Commission further clarify the definition of locally originated programming.[10]  UCC states that it is concerned that certain LPFM applicants are construing this term liberally and intend to time-shift programming obtained via satellite and rebroadcast it in an attempt to meet the local program origination pledge.[11]  We do not believe that there is any reason for concern that the definition of locally originated programming, as clarified on reconsideration, may be construed broadly enough to encompass programming delivered by satellite.  Nevertheless, we will take this opportunity to re-emphasize that the local origination selection criterion is intended to encourage licensees to maintain production facilities and a meaningful staff presence within the community served by the station.  Programming that is produced outside of the 10-mile radius and does not involve any local production facilities does not serve this goal.  Accordingly, we clarify that such programming, including time-shifted programming obtained via satellite, may not be used to fulfill a locally originated programming pledge made as part of the mutually exclusive LPFM application selection process. 

B.Technical Rules

11. In the Report and Order, the Commission adopted a window filing process for applications for new LPFM stations and major modifications in the facilities of authorized LPFM stations.[12]  New station and major modification applications are accepted only during window filing periods specified by the Commission.[13]  An application proposing a “minor change” to authorized LPFM facilities, however, may be filed at any time.[14]  The Report and Order defined a minor change as a transmitter site relocation of less than two kilometers for an LP100 station and a relocation of less than one kilometer for an LP10 station.[15]  Minor change applications may also propose a change to an adjacent or IF frequency or, upon a technical showing of reduced interference, to any other frequency.[16]  As noted, new station and major modification applications may be amended only during specified window filing periods.[17]  Only “minor amendments” to such applications may be filed outside a filing window.[18]  In the Second Report and Order, implementing the 2001 D.C. Appropriations Act, the Commission determined that it was necessary to adopt a more restrictive approach for “minor amendments” to pending applications, compared with the approach adopted for “minor changes” to authorized facilities, in order to facilitate the expeditious processing of the numerous applications filed in the initial LPFM windows.[19]  Accordingly, we barred channel change amendments outside window filing periods.[20]  The Commission concluded, however, that our goal of promptly licensing LPFM stations would not be compromised by permitting applicants to change proposed station locations by small distances.[21]  Thus, in order to provide “some flexibility for applicants that lose a proposed transmitter site or become aware of a more desirable nearby site after the close of a filing window,” we defined minor amendments to include transmitter site relocations of less than two kilometers for LP100 stations and relocations of less than one kilometer for LP10 stations—identical to the transmitter site relocation limits permissible in applications seeking minor changes to authorized facilities.[22]
12. In its petition for reconsideration of the Second Report and Order, UCC requests that we amend our definition of minor change (i.e., an application that seeks modifications to authorized facilities and is permissibly filed outside a filing window) to include transmitter site relocation of up to 5.6 kilometers for LP100 licensees and 3.2 kilometers for LP10 licensees.[23]  Although UCC does not explicitly request that we also amend our definition of minor amendment (i.e., an amendment to a pending new station or major modification application that is permissibly filed outside a filing window) to parallel the requested expansion of the definition of minor change, we interpret UCC’s request to encompass both the minor change and minor amendment definitions, both of which were addressed in the Second Report and Order.[24]  UCC claims that many LPFM applicants have not been able to obtain local government approval for their first choice transmitter locations and must apply for alternative sites.[25]  UCC states that the practical experience of UCC, LPFM applicants, and their technical advisors demonstrates that while a two kilometer limit often precludes a workable solution in such situations, a 5.6 kilometer limit will often provide the necessary flexibility for applicants to relocate.[26] 
13. We recognize that LPFM licensees have faced a number of legal and practical constraints in identifying, securing, and retaining transmitter sites.  We are also aware that in some circumstances, developments that occur during the pendency of an application may make it difficult or even impossible for an LPFM applicant to use the site originally proposed.  Permitting transmitter site relocation of up to 5.6 kilometers for LP100 licensees and 3.2 kilometers for LP10 licensees would provide needed flexibility.  Accordingly, we will amend Sections 73.870 and 73.871 of our rules to permit the filing of minor change applications and minor amendments requesting authority for transmitter site relocation of up to 5.6 kilometers for LP100 licensees and 3.2 kilometers for LP10 licensees.[27]  We clarify that minor amendments may be filed only to applications that are currently pending.[28] 
14. Although we are expanding the permissible distance for transmitter site relocation in an amendment to a pending application, we continue to believe that efficient LPFM window application processing requires a relatively fixed database of technical proposals and, therefore, that a narrow definition of “minor” amendment remains necessary.[29]  Thus, we will not expand the definition of minor amendment to encompass channel changes.  Nevertheless, we recognize that it is in the public interest to provide LPFM applicants as much technical flexibility as possible.  Accordingly, we delegate authority to the Media Bureau to open settlement windows for closed LPFM groups to permit applicants entering into settlement agreements to file major change amendments specifying new FM channels.  In 2003, the Commission established a similar filing window which successfully facilitated the rapid licensing of a number of LPFM stations.[30]  For applications amended in such windows, we delegate authority to the Media Bureau to waive Section 73.871(a) of our rules[31] on a case-by-case basis upon a determination that such waiver will promote expeditious application processing and maximize new LPFM station licensing opportunities.  Any settlement agreement submitted under these procedures must be universal.