B. Third Adjacent Channel Complaint and License Modification Procedure (58-68)

  1. Based on the Commission’s technical analyses and its review of several independent studies submitted in this proceeding we decided not to require LPFM stations to provide 3rd adjacent channel protection to full power stations.  As discussed above, no issues have been raised on reconsideration that have persuaded us to reconsider our findings and conclusions on this matter.[1]  We continue to believe that the risk of interference from LPFM stations is small, and that the interference that may occur in individual cases would be vastly outweighed by the benefits of initiating a new service that will create new outlets for locally based community-oriented voices. 
  2. National Public Radio (NPR) urges the Commission to adopt an expedited process for the review of complaints of alleged interference to full power stations caused by LPFM stations operating on third adjacent channels.  NPR proposes a pre-license complaint procedure, stating that “the Commission should implement a process that permits the challenge and denial of an LPFM application on a 3rd adjacent channel at the initial processing stage…”[2]  In the alternative, however, NPR proposes that the Commission adopt rules that would allow a “licensee of a full power, translator, or booster station to file an interference complaint at any time after final licensing of the facility LPFM operation.”[3]
  3. As a preliminary matter, we reject NPR’s pre-license predicted interference complaint procedure because it is in fundamental conflict with our conclusion that the benefits of this new service far outweigh the isolated instances of interference that may occur.  We continue to adhere to this policy judgment.  Our studies establish that FM receiver performance varies widely.  Many receivers are highly immune to 3rd adjacent channel interference while poorer quality receivers may experience some additional interference from the operation of LPFM stations.  Moreover, as noted in the Report and Order, any interference would most likely occur in a small area in the immediate vicinity of the LPFM transmission facility that is, itself, located at the outer edge of a full power FM station’s service area.  Listeners using low-end receivers are unlikely to experience “actual interference” in such a situation because in locations at the outer edge of a station’s service area those receivers probably are not able to receive that station. 
  4. We concluded in the Report and Order that the licensing of LPFM stations on 3rd adjacent channels would not result in significant new interference to existing FM stations, i.e. that very few listeners would be able to detect additional interference as a result of commencement of LPFM service on a 3rd adjacent channel.  Although we expect it to be the rare case where an LPFM station operating on a 3rd adjacent channel causes more than a de minimis level of interference within the service area of a full power station protected by the distance separation requirements for other channel relationships, such a result would be unacceptable if it were to occur.  Accordingly, we conclude on reconsideration that it would be prudent to establish procedures that would encourage cooperation between the parties and permit the Commission to take prompt remedial action where a significant level of interference can be traced to the commencement of broadcasts by a new LPFM station.  As a result of these new procedures, there may be circumstances where, contrary to what we said in the Report and Order,[4] an LPFM station will be required to take steps to resolve complaints that its signal is interfering with the reception of a full power FM station even though the LPFM station is operating in accordance with the relevant rules.
  5. This marks the first time that the Commission has departed from a purely “predicted interference” approach for an aural service that has program origination authority and that enjoys certain protections generally thought of as “primary” stations rights.  Our willingness to do so is based on a unique combination of factors.  Most importantly, we are confident about the technical conclusions we have reached in the proceeding.  Specifically, we continue to believe that it is unlikely that more than a few listeners will detect any additional interference to the reception of an existing FM station at locations that would be entitled to protection under our full power third adjacent channel interference methodology.  Thus, the post-construction “actual interference”  complaint procedure we are establishing should not pose a significant threat to the viability or stability of the LPFM service.
  6. Moreover, an efficient complaint procedure will promote the fullest interference-free use of the FM broadcast spectrum.  At this time there are few, if any, full power FM station opportunities in most of the highly populated areas of the country.  In fact, staff studies in this proceeding establish that there are no available FM channels for LP100 stations in a number of major markets.  In many communities broadcasters have fully taken advantage of the Commission’s policy of licensing efficient high-power stations that serve wide areas with limited technical preclusiveness.  As a result, most Americans enjoy abundant radio service.  LPFM is not, as some argue, in conflict with these principles.  Rather it is a complementary way to serve the needs of communities within a mature broadcast service.  It is grounded on the success of the Commission’s licensing policies and is designed to efficiently match the little spectrum that remains with the demonstrable demand for locally based programming.  We conclude that an efficient, limited complaint procedure fairly balances the interests of incumbent broadcasters against the benefits of fostering a new and different kind of radio service.
  7. For purposes of the complaint process we will consider interference to occur whenever reception of a full power station is impaired by the operation of an LPFM station operating on a third adjacent channel station.  We believe that it is unnecessary to adopt a more technically objective standard for determining whether a listener is experiencing “actual” interference.  The “any impairment” standard has worked successfully over the past decade in the FM translator context.[5]  A particular listener’s perception of signal impairment is dependent on many factors, including the receiver used, the programming, listener sound quality expectations, and listener auditory discrimination capabilities.  As a result, we are reluctant to adopt a single “objectionable interference” standard.  We are also concerned that this approach could add a level of factual complexity to the complaint process set forth below without any clear public interest justification.     
  8. The complaint process may be invoked where an LPFM station’s transmission facilities are located inside the predicted 60 dBu contour of an existing full power FM station operating on a 3rd adjacent channel[6]; that is, the 60 dBu contour corresponding to the station facilities that existed at the time construction of the LPFM station was authorized.[7]  Complaints will be limited to receivers located at fixed, identifiable locations within the full power station’s 60 dBu contour that are not more than one kilometer from the LPFM transmitter site.  This geographic limitation is intended to address broadcasters’ specific concern about the lack of LPFM station 3rd adjacent channel interference protection requirements.  An LPFM station’s interfering contour would extend slightly less than one kilometer from the LPFM transmitter site.[8]  The fixed receiver requirement is based on our desire to put in place a manageable and efficient complaint procedure.  Mobile receiver complaints are generally much more difficult to identify and resolve.  A mobile receiver, such as a car or portable radio, will encounter constantly varying signal strengths from various stations, resulting in a continuously variable potential for interference.[9]  The complaint must be received by either the LPFM or full power station within one year of the date on which the LPFM station commenced operation.  This time frame is necessary to limit uncertainty regarding the potential modification or cancellation of an LPFM station’s license and such station’s financial obligation to resolve interference complaints.   Any interference caused by the LPFM station should be detectable within one year after it commences operation.  The one-year cure period is similar to the technical requirement that each FM permittee resolve at its sole expense all blanketing interference complaints for a one-year period beginning with the commencement of program tests.[10]  The Commission will consider the modification of a station’s license, including its cancellation, where as a result of the process described below, bona fide complaints from at least one percent of the households or thirty households, whichever is less, within the specified complaint area remain unresolved.[11]  We do not anticipate this level of interference as a result of licensing LPFM stations on 3rd adjacent channels and will not consider it de minimis.
  9. The first stage of the complaint process is designed to facilitate cooperative efforts between LPFM and full power FM licensees to identify and resolve bona fide interference complaints.  A listener who believes that an LPFM station signal is interfering with the reception of a full power station may initiate the complaint procedure by providing the full power station an affidavit that describes the nature and location of the alleged interference.  LPFM stations receiving complaints directly from listeners will be required to forward promptly such complaints to the affected full power FM stations. The full power FM station will be required to identify those complainants who reside at locations covered by these procedures, and provide copies of all such bona fide complaints to the LPFM station.  Initially, an LPFM station will have the opportunity to resolve individual interference complaints.  For example, an LPFM station may agree to provide new receivers to impacted listeners or to install filters at the receiver site. The LPFM station also may wish to consider a power reduction or other facility modification to alleviate the interference.  We expect the LPFM station to make serious and diligent efforts to resolve each bona fide complaint received. 
  10. In the event that the LPFM station concludes that it is not the source of the interference and the number of unresolved complaints equals at least one percent of households or 30 households -- whichever is less -- in the complaint area, the LPFM and full power stations must cooperate in an “on-off test” to determine whether the interference is traceable to the LPFM station.  To the extent necessary and where practical, we instruct our Enforcement Bureau field personnel to assist the parties in determining the source of the interference and identifying possible solutions.  The Commission will consider a complaint resolved if the complainant does not reasonably cooperate with the LPFM station’s investigatory and remedial efforts.  If the licensees fail to reach agreement and the requisite number of complaints remain unresolved, the full power FM station licensee may request that the Commission initiate a proceeding to consider whether the LPFM station’s license should be modified or cancelled.  To expedite this process, LPFM licenses will include a condition permitting the Commission to modify or cancel such licenses where the Commission determines that the LPFM station is causing more than de minimis levels of 3rd adjacent channel interference to the reception of a full power FM station in the complaint area, i.e., where the number of bona fide complaints meets or exceeds the one-percent-of-households or thirty-households threshold set forth above.  This modification procedure will be conducted pursuant to 47 U.S.C. § 316 and any such modification proceeding will be completed within 90 days of the filing of the complaint with the Commission, provided that the parties may seek extensions of this deadline consistent with our procedural rules. 
  11. An LPFM station may stay this procedure by voluntarily ceasing operations and filing a “displacement” application on Form 318 within twenty days of the commencement of this modification procedure.  A displacement application may propose a station relocation and/or channel change to any available channel.  It will be treated as a “minor” change that is not subject to competing applications, provided that a requested LP100 station site change is not greater than 2 kilometers or, in the case of an LP10 station, 1 kilometer.

[1]              See discussion in ¶ 5-18.

[2]              NPR Petition at 13.

[3]              Id.

[4]              Report and Order, 15 FCC Rcd at 2282, ¶ 64.

[5]              See 47 C.F.R. § 74.1203.

[6]              Predicted 60 dBu contours must be calculated in accordance with 47 C.F.R. § 73.313(a).

[7]              That contour, which encompasses the area that would have been protected had a 3rd adjacent channel distance separation requirement been applied to LPFM stations, will bound the complaint area.  With regard to LPFM protection of subsequently modified, upgraded, or new full-service FM stations, we will conform 3rd adjacent channel protection responsibilities to the generally applicable provisions in ¶ 66 of the Report and Order and as codified in 47 C.F.R. § 73.809.  In this manner, operating LPFM stations will be permitted to interfere within the 60 dBu contour of a new or subsequently modified FM station, but not within such a station’s 70 dBu “city grade” signal contour or principal community of license, as applicable (see discussion of service area issues, above). 

[8]              Under the Commission’s interference methodology for FM stations, 3rd adjacent channel interference is predicted where the undesired signal is more than 40 dB stronger than the desired signal level , e.g., where the 3rd adjacent channel station’s 100 dBu contour overlaps the desired signal level.  See, e.g., 47 C.F.R. §  73.509.  The predicted 100 dBu contour of an LPFM station operating at maximum facilities would extend slightly less than one kilometer from the LPFM’s transmitter site.

[9]              Because of these complexities, the Commission generally does not hold an FM radio station responsible for alleviating interference problems caused to mobile receivers.

[10]             See 47 C.F.R. § 73.318.

[11]            The exact number of complaints necessary to satisfy this one-percent threshold can only be calculated on the basis of a specific antenna location of an allegedly interfering LPFM station.  Assuming uniform population distribution within a community of license, the number of complaints necessary to reach this threshold would be, for example, approximately 19 in Charlottesville, Virginia, 29 in Minneapolis, Minnesota, and 12 in Frederick, Maryland.  As noted above, in no event would this procedure require more than 30 bona fide complaints.