G. Programming and Service Rules (164-197)

1.Public Interest Requirements

  1. Background. In the Notice, we proposed to require LP1000 licensees to adhere to the same Part 73 requirements regarding public interest programming as apply to full-power FM licensees.  We noted that this meant that each LP1000 licensee would be required to air programming serving the needs and interests of its community, using its discretion as to how to meet that obligation.  We also listed several other rules, such as those regarding the broadcasting of taped, filmed, or recorded material, sponsorship identification, personal attacks, and periodic call sign announcements and sought comment on whether they should apply to LPFM stations.  We stated a disinclination, however, to impose public interest programming requirements on LP100 and LP10 licensees, given the size of operations we envisioned and the simplicity we were striving to achieve in this service.  We expected that the very nature of LP100 and LP10 would ensure that they served the needs and interests of their communities.
  2. Comments.  We received few comments on public interest requirements.  Some commenters contend that we must apply all of the same basic public interest requirements to LPFM licensees that are applied to full-power broadcasters.[1]   The Low Power Radio Coalition believes that LPFM licensees must be held to high standards similar to those established for full-power broadcasters.[2]  UCC, et al., argues that the Commission must require all LPFM broadcasters to comply with the requirements of the public interest standard, as well as the sponsorship identification duties required by section 317 of the Act.[3]  NAB argues that all FM broadcast stations should be required to follow the same rules and contends that there is no basis on which to distinguish between different classes of stations.[4]  On the other hand, NLG contends that public interest rules outlined in the Notice should not be applied to LPFM stations with a 100 watt maximum.[5]  Similarly, other commenters oppose any requirements for LP100 and LP10 stations, arguing that it would place an unreasonable burden on those stations.[6]
  3. Decision.  Every broadcast licensee is required to operate its station in the public interest.[7]  Given the nature of the LPFM service, however, we conclude that certain obligations imposed on full-power radio licensees would be unnecessary if applied to LPFM licensees.  We expect that the local nature of this service, coupled with the eligibility and selection criteria we are adopting, will ensure that LPFM licensees will meet the needs and interests of their communities.  Thus, for example, consistent with our rules for low power television, we will not adopt a rule requiring LPFM licensees to provide programming responsive to community issues or to maintain a list of issues addressed or specific programs aired.[8]
  4. We will, however, apply certain specific rules applicable to all broadcasters to LPFM licensees.  First, LPFM operators must, of course, comply with those rules required by statute.  Thus, for example, like all broadcasters, LPFM licensees will be expressly prohibited from airing programming that is obscene, and restricted from airing programming that is “indecent” during certain times of the day.[9]  They must also comply with our sponsorship identification and political programming rules.[10]  In addition, we will require LPFM licensees to comply with our rules regarding taped, filmed, or recorded material,[11] personal attacks,[12] and periodic call sign announcements.[13]  Violation of any of these rules by an LPFM licensee would be as detrimental to its audience as violation by a full-power broadcaster, and widespread disregard for these rules could outweigh the benefits to the public this service is intended to bring.

2.Locally Originated Programming

  1. Background. In the Notice, we sought comment on whether to impose a minimum local origination programming requirement on any of the three proposed classes of LPFM service.  We opined that listeners benefit from local programming, because it often reflects needs, interests, circumstances, or perspectives that may be unique to that community.  We also noted that many of LPFM’s initial supporters argued that the Commission’s rules should actively promote locally oriented programming by, for instance, limiting the amount of network programming a station could air.  We expressed an expectation, however, that a significant amount of programming for LPFM stations would be locally produced as a matter of course.  We also asserted that programming does not have to be locally produced to have interest or value to the listeners in a particular locale.  Accordingly, we stated that we were inclined to give LP100 and LP10 licensees the same discretion as full-power licensees to determine what mix of local and non-local programming would best serve the community.  To promote new broadcast voices, however, we proposed that an LPFM station not be permitted to operate as a translator, retransmitting the programming of a full-power station.
  2. Comments.  Many commenters favor the adoption of a locally originated programming obligation.[14]  According to UCC, et al., for example, a locally originated programming requirement would attract applicants that intend to provide a locally oriented service, is a basic element of the Commission’s implementation of the public interest standard, and would resemble the duty TV stations have to provide educational and informational programming for children.[15]  A number of commenters oppose any specific obligations on LPFM licensees regarding locally originated programming. [16]  Amherst argues, for example, that the best way to prevent LPFM stations from becoming “corporate satellites” is through limits on LPFM license eligibility.[17]  If any locally originated programming requirements are applied, however, Amherst asserts that those requirements should be modest in scope and narrowly targeted to prevent stations from becoming mere “fronts” for the airing of material produced by larger entities.[18]
  3. Commenters generally agree that LFPM stations should not be used as translators for retransmitting full-power station programming.[19]  The Civil Rights Organizations and Gary L. Nixon argue that an LPFM operator should not be permitted to operate as a translator or booster, except where an LPFM station might retransmit another station’s programming for the purpose of student training.[20]  Nixon also notes that LPFM stations should be prohibited from using any satellite programming.[21]  UCC, et al. states that the Commission should not allow low power stations to replicate another station’s programming because it would turn the purpose of low power radio, to provide local programming, on its head.[22] 
  4. Decision.  We continue to believe that LPFM licensees’ provision of a significant amount of locally originated programming will enhance the success of this service.  This is why we are encouraging the provision of locally originated programming by means of a licensing preference.[23]  However, we also believe that in certain cases, programming need not be locally originated to be responsive to local needs.  Therefore, we do not believe it is necessary to impose specific requirements for locally originated programming on LPFM licensees.  We believe that the nature of the service, combined with the eligibility criteria and preferences we are adopting, will ensure that LPFM licensees provide locally originated programming or programming that is otherwise responsive to local needs.
  5. We do, however, agree with commenters that LPFM stations should not be used for retransmitting, either terrestrially or via satellite, the programming of full-power stations.  This would significantly undercut a fundamental basis for the establishment of this service.  This prohibition against LPFM stations operating as translators also promotes locally originated programming by eliminating a significant avenue for obtaining non-locally originated programming.

3.Political Programming Rules

  1. Background.  In the Notice, we sought comment on the applicability of political programming rules to each class of low power radio service that we might adopt.  We explained that sections 312(a)(7) and 315 of the Communications Act, as amended, underlie some of these rules, and each is explicitly applicable to “broadcast stations.”  Thus, we lack the discretion not to apply these provisions to any class of LPFM station, regardless of size.  We specifically sought comment on how each of these political broadcasting rules should be applied to low-power stations, taking into consideration our statutory mandate.
  2. Comments.  The few comments that we received on this issue support our tentative conclusion to adopt political programming rules for LPFM stations.  UCC, et al. asserts that application of Title III duties to low-power broadcasters is non-discretionary, contending that the Commission must require all low-power broadcasters to comply with specified duties required by Sections 312 and 315 of the Communications Act, as amended.[24]  REC Networks and John D. Bowker agree that political programming rules should be applied to LPFM services.[25]
  3. Decision.  We conclude that we are required by statute to apply the same political programming rules to low-power stations that we apply to full-power stations.  There is ample precedent for how the political programming rules apply to noncommercial stations and thus how the rules will apply to LPFM.  For example, Section 312(a)(7) of the Communications Act, as amended, requires broadcasters to allow legally qualified candidates for federal office reasonable access to their facilities,[26] but because LPFM stations are noncommercial educational facilities, they must provide such access on a free basis.[27]  Section 315(a) of the Communications Act, as amended, requiring equal opportunities for candidates, will also apply.[28]
  4. In conformance with the statutory mandate, we will apply the reasonable access and equal opportunities provisions of the statute and the Commission’s rules, as well as related policies delineated in prior Commission orders, to LPFM licensees.  With respect to reasonable access, the Commission’s policy has generally been to defer to the reasonable, good faith judgment of licensees as to what constitutes “reasonable access” under all the circumstances present in a particular case.  Noncommercial educational stations, including LPFM stations, however, may not support or oppose any candidate for political office.[29]  LPFM licensees cannot charge legally qualified candidates for the time used on their stations[30] and no LPFM licensee may discriminate among candidates “in practices, regulations, facilities, or services” or “make or give any preference to any candidate for public office.”[31] In addition, we will require LPFM licensees to maintain a political file, if needed, to record the requisite particulars.  The political file shall be maintained for public inspection at an accessible place in the station’s community.  Finally, we will resolve any issues involving LPFM licensees on a case-by-case basis to determine whether the licensee is acting within the spirit of the statute and Commission rules and policies on political programming.

4.Station Identification

  1. Background.  In the Notice, we sought comment on whether to adopt a call sign system that would identify a low power radio station as such.  We noted in the Notice that a nonstandard (five letter) identifying call sign system was used for the first several years of licensing low power television (LPTV) stations, but that the Commission later allowed LPTV stations to adopt call signs that were like those of full power stations, but were appended with the suffix “-LP.”
  2. Comments.  Commenters are divided over whether it would be in the public interest to employ special call signs that would help identify LPFM stations as low power.  Some commenters argue that the use of call signs would help to identify legitimate from illegal stations, or help with the identification of malfunctioning or interfering stations.[32]   Other commenters feel that a new system of call signs for LPFM would be confusing to the public, with little or no compensating public benefit, and suggest that ordinary FM call signs be issued to new LPFM stations.[33]  Some commenters also argue that the use of call signs for low power broadcasters would not be burdensome to these broadcasters.[34]
  3. Decision.  The question raised by the Notice was not whether to have call signs for LPFM stations, as apparently misunderstood by some commenters, but whether to include a special designation in the call signs identifying LPFM stations as low power stations.  It is imperative for a variety of reasons, including enforcement, convenience to the public, and conformance with international agreements, that all broadcasters, including low power broadcasters, use unique identifiers on the air.  We also conclude that it will be extremely beneficial for LPFM operators to build an “identity” and do so in a radio-familiar manner.  We were guided on this issue by our experience with low power television.  In that service, we require stations’ call signs to indicate that they are low power stations, by appending the suffix “-LP” to their four-letter call signs.  We thus will require low power stations to positively identify themselves.  To avoid confusion for the public and to inform the public of the reasonable expectations they may have for service, the suffix “-LP” will be appended to LPFM station call signs (e.g., “WXYZ-LP”).  Such identification will inform the public that a station is a low power station.  An LPFM four-letter call sign cannot exactly duplicate the call sign of any other broadcast station and cannot contain the same first four letters as another station’s call sign without that station’s written consent.[35]  The Commission’s current call sign system will be modified to accommodate low power stations in the manner four letter call signs are provided to low power TV stations.[36] 

5.Operating Hours

  1. Background.  In the Notice, we said we were not inclined to adopt minimum operating hours for LP100 or LP10 stations.  However, we expressed our concern that spectrum might be underutilized if low power stations were licensed but unused or underused, and asked for comments on this issue.
  2. Comments.  For LP100 and LP10 services, commenters either argue for: (1) low or no minimum operating hours, because of the cost burden involved in requiring extended hours of operations, or (2) a time sharing arrangement among local broadcasters.[37]  This latter group of commenters argue that time sharing arrangements would reduce the part-time warehousing of spectrum that would occur by a single non full-time licensee, and would permit the entry of additional new voices into the local radio market.[38]
  3. Decision.  In order to ensure an effective utilization of channels, we will impose the same minimum operating hour requirements on LP100 and LP10 FM stations that we currently apply to full-power noncommercial educational FM stations.  Under our rules, “[a]ll noncommercial educational FM stations are required to operate at least 36 hours per week, consisting of at least 5 hours of operation per day on at least 6 days of the week; however, stations licensed to educational institutions are not required to operate on Saturday or Sunday . . . .” [39]   These requirements are not extensive and should not impose an inordinate burden on LPFM licensees.  In cases where individual parties are interested in applying for LP100 and LP10 stations but do not have sufficient programming to meet the minimum operating hour requirements, we encourage those parties to find other applicants with whom they could share the license.  To accommodate those situations in which the demand for airtime does not exceed the spectrum availability, however, we will not automatically delete a station that is operating at less than the minimum hours.  When another applicant comes forward that wants to utilize the underused channel, that applicant can notify the Commission of the incumbent’s failure to meet minimum hours and demand that the incumbent return its license or agree to a time-sharing arrangement that will accommodate both parties.

6.Main Studio Rule, Public File Rule and Ownership Reporting Requirements

  1. Background.  In the Notice, we invited comment on whether LPFM stations of each class should be subject to the variety of other rules in Part 73 with which full power stations must comply, including, for example, the main studio rule (47 C.F.R. § 73.1125(a)), public file rule (47 C.F.R. §§ 73.3526, 73.3527), and the periodic ownership reporting requirements (47 C.F.R. § 73.3615).  Given the purposes and power levels of LP1000 stations, we tentatively concluded that LP1000 licensees should generally meet the Part 73 rules applicable to full power FM stations.  However, the Notice sought comment on whether sufficient useful purpose would be served in applying each rule to these licensees.  We were disinclined to apply these service rules to LP10 stations, and sought comment with regard to the rules appropriate for LP100 stations. 
  2. Comments.  Comments were divided on this issue.  Most broadcasters who commented on this issue agree that LPFM stations should generally follow existing regulations for full-power stations,[40] but some note that they should only have minimal day-to-day regulatory requirements because of the difficulty of survival if such stations had to follow the exact rules that full-power stations are required to follow.[41] Many other commenters state that the Commission should not require LPFM stations to comply with a main studio, public file or ownership reporting requirement, because of the burdens they would impose.[42]
  3. Decision.  We conclude that we should not impose the main studio, public file,[43] or ownership reporting requirements on LPFM stations.  We believe these requirements would place an undue burden on such small noncommercial educational stations.  In addition, we believe that the nature of this service will ensure that LPFM stations are responsive to their communities.  This approach is consistent with our treatment of low power television stations.[44]
  4. As to equal employment opportunity (EEO) rules, we conclude that all LPFM licensees must comply with the Commission's long‑standing prohibition against employment discrimination.[45]  We believe that a finding that any broadcaster has engaged in employment discrimination raises a serious question as to its character qualifications to be a Commission licensee.[46] In addition to the prohibition against discrimination, the broadcast EEO Rule also includes EEO program requirements.[47]  These requirements are not currently in force.[48]  In any event, we did not enforce compliance with the EEO program requirements by broadcast stations with fewer than five full-time employees.  Because we anticipate that the vast majority of this class of licensees will employ very few (if any) full‑time, paid employees, we do not intend to require LPFM licensees to comply with any EEO program requirements we adopt in our pending rulemaking proceeding.

7.Construction Permits

  1. Background.  In the Notice, the Commission proposed an 18-month construction period for LP100 stations and a twelve-month limit for LP10 stations.  The shorter construction time limits for LP100 and LP10 stations (relative to the three-year construction period that is allowed to full-power FM stations[49]) were meant to reflect the simpler construction requirements for these facilities.  The 18- and 12-month periods also assumed that difficulties with obtaining the requisite construction permits would be minimal.
  2. Comments.  Many commenters state that the proposed construction periods for LP100 and LP10 stations are reasonable, given the relatively smaller facilities and simpler construction involved with these stations.[50]  Other commenters argue for even shorter construction periods for LP100 and micro-radio services.[51]  Some commenters thought that imposing strict construction time limits would help to prevent spectrum hoarding and help encourage the rapid deployment of the spectrum resources.[52]
  3. Decision.  We will adopt an 18-month construction period for both LP10 and LP100 services, and it will be strictly enforced.  While we believe that most permittees will be able to and will have ample incentive to construct their low power stations in far less than 18 months, given the relative technical simplicity of LP100 and LP10 stations, we do not wish to burden applicants who may encounter unforeseen difficulties with a shorter construction period.  We recognize that while the facilities themselves will be relatively easy to construct, zoning and permitting processes may, in some cases, delay construction.  However, we expect that applicants will have well-considered proposals in this regard and we do not intend to grant extensions to the construction permits.[53]  Therefore, to avoid the complications and delays of extension rulings, as well as to encourage well-planned and executed proposals, we have allowed what we consider to be more than ample time for permittees to complete construction and begin operation, and we expect to see many stations in operation long before the allowed 18 months.

8.Emergency Alert System

  1. Background. In the Notice, we proposed to treat LP1000 facilities like full-power FM stations for the purposes of the Emergency Alert System (EAS).  We explained that, in this way, we would expect to avoid having significant numbers of people deprived of this critical information resource.  By contrast, because of their extremely small coverage areas and correspondingly sized audiences, as well as their limited resources, we proposed that LP10 stations, if authorized, not be required to participate in the EAS.  We sought comment on these proposals and also on how LP100 stations, with their intermediate size and audience reach, should fit into the EAS structure.
  2. Comments.   Some commenters argue that compliance should not be required for LP100 or LP10 stations because small operations and coverage areas make compliance unnecessary and too expensive;[54] stations other than LP100 and LP10 stations can take on the role of alerting the community to emergencies;[55] the short range and secondary status of LP100 stations make them unsuitable for emergency message propagation;[56] and removing LP100 stations from the air during national emergencies would help prevent interference during such crisis times.[57]  Other commenters suggest that EAS be required only under certain circumstances.[58]  A few commenters provide suggestions on how to overcome the expense involved in EAS participation.[59]  Finally, Andrew Morris and William T. Croghan, Jr. assert that LP100 stations should not be required to use EAS encoders because these stations only broadcast to listeners, not to EAS participants that would use encoded information.[60]
  3. Other commenters, however, stress the importance of participation in EAS by all broadcast stations.[61]  NAB and John D. Bowker argue that LP100 stations should not be excluded from EAS system requirements because listeners will be unaware that they will not receive the emergency warnings from LPFM stations that they have come to expect from radio stations.[62]  West End Radio asserts that LPFM stations should be required to participate in EAS because Americans who live in remote areas would be put in jeopardy if they cannot receive any kind of emergency alert.[63]  Aaron Read argues that the costs of EAS are not too heavy a financial burden (average $1600), and for an EAS system in general to work, all broadcast services must participate.  Read further argues that Congress has mandated participation in EAS for all broadcast services, which would include LPFM stations.[64]  Noting that the minimum facility Class A FM station operating at 100 watts must participate in the EAS, Wright Broadcasting argues that exempting LP100 stations from participation is discriminatory.[65]
  4. Decision.  We conclude that LPFM stations should be required to participate in the EAS structure, but in a modified way.  Our requirements will balance the cost of compliance, the ability of stations to meet that cost, and the needs of the listening public to be alerted in emergency situations.  LPFM licensees will be able to satisfy our EAS requirements if they install and operate Commission-certified decoding equipment, which will alert station personnel to emergency alerts.  Once that decoding equipment is installed, station personnel must pass any national emergency audio message on to listeners as prescribed in our rules.  As is the case for full service broadcasters, LPFM participation at the state and local levels will be on a voluntary basis.
  5. The EAS is composed of several entities, including FM broadcast stations, LPTV stations, and cable systems operating on an organized basis at the national, state, and local levels.[66]  The EAS alert is designed to make viewers and listeners aware of emergencies that may affect them so that they may take appropriate protective action or seek additional information.[67]  Though the arguments of financial hardship for LPFM licensees to implement the EAS are well taken, alert messages are potentially important to all listeners and viewers, and commenters do not persuade us that the LPFM stations should, as a class, be exempted from this important public safety function.  We will, however, minimize the cost of effective participation for LPFM licensees.  Accordingly, we amend section 11.11(a) to include LPFM stations in the list of the EAS entities.  We also amend the Broadcast Station Timetable of section 11.11(a) to set out the requirements for LPFM.
  6. While we will require EAS participation, we will exempt LPFM stations from purchasing some of the EAS equipment required for other participants under our rules.  In general, EAS equipment must be able to perform the functions described in all of our rules regulating EAS.[68]  However, we relaxed some of these requirements for Class D noncommercial educational FM and LPTV stations.[69]  Because LPFM stations will also provide service to small audiences, we exempt LPFM stations from the requirement to install and operate encoders.  We believe that the cost to LPFM licensees of installing and operating both encoding and decoding equipment outweighs the benefits that these small stations could provide to the public.[70]
  7. While we are not requiring LPFM stations to install encoding equipment, all LPFM stations are required to use decoding equipment that notifies the station in case of any emergency.  We recognize that there will be costs associated with EAS decoders, but believe the costs are justified. Current Commission-certified integrated encoder/decoder equipment costs $1,500 or more depending on the options a station wants to install.  We note that today’s manufacturers only produce certified encoders and decoders as integrated units, as that is the only demand that exists.  Noncertified decoding equipment, however, is currently available and is advertised in some places for as little as $650.[71]  Thus, it appears that Commission-certified decoding equipment should be available for well under $1000 and should be able to reach the market in the near future.  Accordingly, we will require the use of Commission-certified EAS decoders or decoder/encoders by all LPFM stations when they commence operations.  It will be several months before the first LPFM stations are on the air.  Given that decoders are already on the market, this should be ample time to obtain Commission certification and make certified units available for purchase.  If certified decoder equipment is not available at that time, we can grant a temporary exemption for LPFM stations until such time as it is reasonably available.  Once the licensee has installed decoding equipment, if the station is on the air at the time it receives a national emergency alert message, station personnel must pass the information along to listeners.[72] 
  8. Finally, we will continue to grant waivers of EAS requirements to broadcasters, including LPFM licensees, on a case-by-case basis in appropriate circumstances upon a sufficient showing of need.  As we outlined in the EAS First Report and Order, the waiver request must contain at least the following:  (1) justification for waiver, with reference to the particular rule sections for which a waiver is sought; (2) information about the financial status of the entity, such as a balance sheet and income statement for up to the previous two years (audited, if possible); (3) the number of other entities that serve the requesting entity’s coverage area and that have or are expected to install EAS equipment; and (4) the likelihood (such as proximity or frequency) of hazardous risks to the requesting entity’s audience.[73]
 

[1]              See Comments of John D. Bowker at 15; Comments of William T. Croghan, Jr. at 9.

[2]              Comments of Low Power Radio Coalition at 6.

[3]              Comments of UCC, et al. at 19-21.

[4]              Comments of NAB at 75-76.

[5]              Comments of NLG at 36.

[6]              Comments of Andrew Morris at 10; Comments of Trident Media at 2; Comments of Gary L. Nixon at 1.

[7]              See 47 U.S.C. § 309(a).

[8]              See Report and Order, BC Docket No. 78-253, 51 RR 2d 476 (1982) (Low Power Television R&O).

[9]              18 U.S.C. § 1464; 47 C.F.R. § 73.3999 (prohibits broadcasting of indecent material from 6:00 a.m. until 10:00 p.m., hours when children are likely to be in the audience).

[10]             47 U.S.C. § 317; 47 C.F.R. § 73.1212.  See ¶ 75 for a discussion of political programming rules.

[11]             47 C.F.R. §73.1208.

[12]             47 C.F.R. § 73.1920.

[13]             47 C.F.R. § 73.1201.

[14]             Comments of UCC, et al., at 3-4;  Comments of William T. Croghan, Jr. at 8 (advocating 50% locally originated programming); Comments of Gregory Caliri at 2 (advocating two-thirds locally originated programming); Comments of NLG at 25-26; Comments of Joseph Crump at 1; Comments of Jason D. Patent at 1 (advocating 75% locally originated programming); see Comments of Bott Broadcasting Co. at 35; Comments of Robert Kevess, MD at 1; Comments of Ronnie V. Miller at 9; Comments of Libraries for the Future at 1 (advocating 80% locally originated programming); Comments of Gene Kirby at 1 (advocating 100% locally originated programming).

[15]             Comments of UCC, et al. at 10-11.  NLG considers the Commission’s proposal not to impose a local programming requirement a major mistake that could undermine the entire LPFM service.  Comments of NLG at 25-26; see Comments of Aaron Read at 10 (arguing that without strict restrictions to ensure local programming, national programmers will obtain LPFM licenses to rebroadcast nationally sourced programming, eliminating any new or local voices).  REC Networks suggests that LPFM stations be required to provide at least eight hours of local programming each weekday, but contends that there should be no restrictions between 10:00 p.m. and 7:00 a.m. on weekdays or any time on weekends.  Comments of REC Networks at 14-15.

[16]             See, e.g., Comments of the Alliance for Community Media at 7 (believes local programming should not be mandatory, but suggests that the Commission give “priority points” to applicants based on the amount of public interest programming proposed); Comments of Warren Michelsen at 3 (supports the Commission’s proposal to give low-power and LP10 licensees the same discretion as full-power licensees to determine what mix of local and non-local programming will best serve the community); Reply Comments of Kenneth W. Bowles at 16 (argues that local programming should not be required because LPFM is locally oriented by its nature).

[17]             Comments of Amherst at 57-58.

[18]             Comments of Amherst at 58-59.  For example, Amherst suggests that use of all central source feeds, combined, could be “capped” at 49 percent of programming, or use of any single central source feed could be “capped” at 25 percent of programming.  Id.  Amherst also argues that local content requirements should not apply to any materials that LPFM stations develop and donate or syndicate to each other or larger institutions.  According to Amherst, syndication of original material could become a major source of influence or income for LPFM stations, and a way to get innovative, but potentially popular, material to the mainstream.  Id. at 59.  See also Comments of the Salida Colorado Radio Club at 3 (opposing regulating locally originated programming, suggesting instead that LPFM stations show a reasonable effort to have at least half of their programming of local origination and that compliance should be reviewed through enforcement actions).

[19]             Comments of North Cascade Broadcasting at 7; Comments of Gary L. Nixon at 2; Comments of Trident Media at 2; Comments of the Alliance for Community Media at 3; Comments of John D. Bowker at 14.

[20]             Comments of Civil Rights Organizations at 26; Comments of Gary L. Nixon at 10.

[21]             Comments of Gary L. Nixon at 10.

[22]             Comments of UCC, et al. at 4, n.1.

[23]             See ¶ 144 (mutually exclusive applicants that pledge to provide at least eight hours of locally originated programming will receive one point).

[24]             Comments of UCC, et al. at 19-21; see also Comments of NLG at 36.

[25]             Comments of REC Networks at 15; Comments of John D. Bowker at 15.

[26]             Specifically, section 312(a)(7) provides that “[t]he Commission may revoke any station license or construction permit for willful or repeated failure to allow reasonable access to or permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.”  47 U.S.C. § 312(a)(7); see 47 C.F.R. § 73.1944.  This right of access does not apply to candidates for non-federal state or local offices.

[27]             See 47 C.F.R. § 73.1942(d).  While noncommercial broadcasters are prohibited from charging legally qualified candidates for time, they may charge for out-of-pocket expenses.

[28]             Section 315(a) of the Communications Act, as amended, provides that “if any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station.”  47 U.S.C. § 315(a); see 47 C.F.R. § 73.1941.  Section 73.1940 of the Commission’s rules defines “legally qualified candidate” as any person who has publicly announced his or her intention to run for nomination or office, is qualified under the applicable local, state, or federal law to hold office for which he or she is a candidate, and has qualified for ballot placement or has otherwise met all the qualifications set forth in the Commission’s rules.  47 C.F.R. § 73.1940.  In addition, both the statute and the rules narrowly define the term “use” and exclude from the definition candidates’ appearances in bona fide newscasts, interviews, documentaries, and the on-the-spot coverage of news events.  47 U.S.C. § 315(a)(1)-(4); see 47 C.F.R. § 73.1941(a)(1)-(4).  Section 73.1941(b) further provides that “[a]s used in this section and § 73.1942, the term ‘use’ means a candidate appearance (including by voice or picture) that is not exempt under paragraphs 73.1941(a)(1) through (a)(4) of this section.” 47 C.F.R. § 73.1941(b). Licensees have no power of censorship over the material broadcast under the equal opportunity provisions of section 315(a).  47 U.S.C. § 315(a); see 47 C.F.R. § 73.1941.

[29]             47 U.S.C. §399; 47 C.F.R. § 73.1930(b); see FCC v. League of Women Voters of Calif., 468 U.S. 364 (1984).

[30]             See 47 C.F.R. § 73.1942(d).

[31]             47 C.F.R. § 73.1941(e).

[32]             See, e.g., Comments of William Croghan Jr. at 10; Comments of the Oklahoma Department of Transportation at 4.   Some commenters suggest that FM translator call signs or amateur radio operator call signs should be adopted to identify LPFM stations.  See, e.g., Comments of Harry W. Pardue at 2; Comments of Douglas E. Smith at 5.  See also Comments of John Bowker at 17 (suggesting that a new pattern of call signs is needed, such as the station’s FM numerical channel followed by three letters); Comments of Gene Kirby at 2 (suggesting that for LP100 and LP10 stations, the only identification needed might be the station’s location and ownership, perhaps given at sign on and sign off of the station’s programming).

[33]             See, e.g., Comments of Andrew Morris at 14; Comments of Jeffrey S. Richman at 5.

[34]             See Comments of Timothy Cramer at 2.  See also Comments of Harry W. Pardue at 2 (arguing that using an existing call sign system will reduce administrative burdens).

[35]             Thus, an LPFM station could not have the call sign WXYZ if a low power television station also had that four letter call sign because both would be identified as WXYZ-LP.  If, on the other hand, WXYZ were the call sign of a full-power FM station and was not used by any LPTV station, the LPFM station could, with the consent of the full power station, use the call sign WXYZ.  In this case, the two stations would be distinguished because one would be WXYZ-FM and the other would be WXYZ-LP. 

[36]             47 C.F.R. § 73.3550.  LPFM stations shall also be subject to the station identification requirements of 47 C.F.R. § 73.1201.  A party cannot request a call sign until a construction permit is issued.  As with full power stations, the call letters of stations located east of the Mississippi River will begin with a “W” and west of the Mississippi will begin with a “K.”

[37]             Comments of Andrew Morris at 12 (suggesting that the Commission could reduce its administrative burdens by imposing no minimum operating hours, and relying instead on the “silent station” statute); Comments of Warren Michelsen at 4 (believing that minimum operating hours discourage greater diversity by compelling stations to fill up broadcast time with canned programming, and by potentially precluding more creative broadcast startups, which  may not have sufficient programming or capital to afford the longer required broadcast hours).

[38]             See, e.g., Comments of William T. Croghan Jr. at 9; Comments of Mid-America Broadcasting Company, Inc. at 8; Comments of Morris Broadcasting Company of New Jersey, Inc. at 9; Comments of Positive Alternative Radio, Inc. et al. at 14; Comments of University of Dayton at 9.

[39]             See 47 C.F.R. § 73.561.

[40]             See, e.g. Comments of NAB at 76; Comments of Buckley Broadcasting, Inc., at 16; Comments of Big City Radio, Inc. at 17; Comments of Barry Broadcasting Company at 4; Comments of Delmarva Broadcasting at 9-10.

[41]             See Comments of Creative Educational Media Corporation, Inc. at 3; Comments of Mid-America Broadcasting Company at 3; Comments of Morris Broadcasting at 3; Comments of Nassau Broadcasting at 3.  These commenters propose that all LPFM stations should be required to submit periodic program summary reports so that the FCC as well as the general public can verify the localized performance of all LPFM stations.   REC Networks believes that all LPFM stations should maintain a public file which, for LP100 watts or less, could be placed on the internet in lieu of having a public inspection location, since many of these stations may be operated from private residences.  Comments of REC Networks at 7.

[42]             See, e.g., Comments of Texas Department of Transportation at 3; Comments of Oklahoma Department of Transportation at 5 (Both believe that the micropower station licensees should be exempted from the main studio rule, the public file rule and periodic ownership reporting requirements).  Ronnie Miller argues that we should impose the absolute minimum amount of regulation for smaller stations to allow for experimentation, and Gene Kirby states that LP10 should be as free of unnecessary rules, paperwork, logs, etc., as is practical. Comments of Ronnie Miller at 23; Comments of Gene Kirby at 1.

[43]             As noted above, however, LPFM licensees must maintain a political file.  See ¶ 175.

[44]             Report and Order in BC Docket No. 78-253, 51 RR 2d 476 (1982) (“Low Power Television R&O”).

[45]             See 47 C.F.R § 73.2080(a).

[46]             Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 U.S. 621, 628-29 (D.C. Cir. 1978).

[47]             See 47 C.F.R. § 73.2080(b) and (c).

[48]             The United States Court of Appeals for the District of Columbia Circuit held that the EEO program requirements of the broadcast EEO Rule are unconstitutional.  Lutheran Church - Missouri Synod v. FCC, 141 F.3d 344, pet. for reh’g denied, 154 F.3d 487, pet. for reh’g en banc denied, 154 F.3d 494 (D.C. Cir. 1998) ("Lutheran Church").  The Commission has proposed and requested comment concerning a new broadcast EEO Rule and policies consistent with the D.C. Circuit's decision in Lutheran Church.  See Review of the Commission's Broadcast and Cable Equal Employment Opportunity Rules and Policies and Termination of the EEO Streamlining Proceeding, 13 FCC Rcd 23004 (1998). 

[49]             See Report and Order in MM Dockets Nos. 98-43 and 94-149, FCC 98-281 (released November 25, 1998) ("Non-Technical Broadcasting Streamlining R&O"), providing a three year construction period for new radio stations.

[50]             See, e.g., Comments of the Texas Department of Transportation at 5; Comments of the Oklahoma Department of Transportation at 4 (supporting the proposed construction limit).

[51]             Comments of REC Networks at 7 (arguing for a 12-month construction period); Comments of the Lawyers Guild at 37 (arguing for construction periods of 10 months and 9 months for LP100 and LP10, respectively, reasoning that “these stations should be fairly inexpensive and relatively easy to put on the air.”).

[52]             See, e.g., Comments of Andrew Morris at 12 (arguing that a designated construction period helps to guarantee use of the spectrum by a set date.); Comments of Joshua Weiss at 1 (arguing that licensees should be precluded from hoarding construction permits).

[53]             LPFM permittees will be eligible for tolling of the construction period pursuant to our rules and consistent with Section 319(b) of the statute.  See 47 U.S.C. §319.

[54]             See Comments of Gene Kirby at 1; Comments of Morris Broadcasting Co. at 9; Comments of Gary L. Nixon at 2, Comments of Stanley L. Scharch at 1; Comments of Creative Educational Media Corp. at 10; Comments of John R. Benjamin and Charles Coplien at 5; Comments of Spencer Graddy Clark at 5.

[55]             Comments of the Oklahoma Department of Transportation at 5; Comments of the Texas Department of Transportation at 5.

[56]             Comments of Andrew Morris at 13.

[57]             Comments of Andrew Morris at 13; Comments of REC Networks at 7.

[58]             See, e.g., Comments of Ronnie V. Miller at 22 (not opposed to voluntary compliance for LP100 stations); Comments of REC Network at 17 (supports voluntary compliance for LP100 stations); Comments of Robert J. Wertime at 2 (believes EAS should include automatic deference to local FM stations, if not fully implementable at an LPFM station); Comments of Roger P. Doering at 1 (believes that LPFM should shut down in an alert, unless a full power station is disabled); Comments of John A. Crutti, Jr. at 1 (believes that LP100 stations should be exempt from EAS compliance, except where full-power stations are not present in local areas to provide EAS); Comments of Andrew Morris at 13 (same as John A. Crutti, Jr.).

[59]             See Comments of Douglas E. Smith at 4-5 (suggests that LPFM could use equipment, which is available at a modest cost (less than $100), to detect EAS codes originated by the National Weather Service and that it would not be excessively burdensome to require LPFMs to monitor their area’s local primary station for EAN, and to go off the air if it is received, returning only after EAT is issued); Comments of Robert Zukowski at 2 (suggests that an economical way for LPFM stations to participate in EAS is to rebroadcast a full power station’s EAS messages).

[60]             Comments of Andrew Morris at 13; Comments of William T. Croghan, Jr. at 10.

[61]             See Comments of Barry Broadcasting Co. at 4; Comments of Buckley Broadcasting Corp. at 16; Comments of Crawford Broadcasting Co. at 7; Comments of Delmarva at 10; Comments of Sunbury Broadcasting Corp. at 2.

[62]             Comments of NAB at 77; Comments of John D. Bowker at 16.

[63]             Comments of West End Radio at 1.

[64]             Comments of Aaron Read at 15.

[65]             Comments of Wright Broadcasting at 10-11.

[66]             47 C.F.R. § 11.11(a).

[67]             EAS relies on equipment that provides emergency alerts via a digital signaling process.  Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91-171 and 91-301, Third Report and Order, 14 FCC Rcd 1273, 1274, ¶ 2 (1998); see Amendment of Part 73, Subpart G, of the Commission’s Rules Regarding the Emergency Broadcast System, FO Docket Nos. 91-171 and 91-301, Report and Order and Further Notice of Proposed Rulemaking, 10 FCC Rcd 1786 (1994) (EAS First Report and Order).  EAS equipment transmits a message that is generally no longer than two minutes in length and at a minimum, provides the viewer with the reason or event posing a threat, the location that the event may be affecting, the approximate time period that a threat to safety will last, and the originator of the alert message.  Id. at ¶ 2, n. 4. National level EAS messages and EAS tests must be forwarded to the public upon receipt.  EAS participants transmit state and local messages on a voluntary basis.  Id. at ¶ 2.

[68]             Specifically, EAS equipment must be able to perform the functions described in sections 11.31, 11.32, 11.33, 11.51, 11.52, and 11.61 of our rules.

[69]             Class D noncommercial educational FM and LPTV stations are not required to install or operate encoders as defined in section 11.32,[69] to have equipment capable of generating the EAS codes and Attention Signal specified in section 11.31, or to perform certain parts of EAS tests.

[70]             Accordingly, we amend section 11.11(b) to provide that LPFM stations, as defined herein, are not required to comply with section 11.32.  Because LPFM stations are not required to install or operate encoders, we amend section 11.51(e) to provide that LPFM stations are not required to have equipment capable of generating the EAS codes and Attention Signal specified in section 11.31. Because we are not requiring LPFM stations to install equipment capable of generating the EAS codes and Attention Signal, we amend the last sentence of section 11.61(a)(1)(v) to require Class D noncommercial educational FM, LPTV, and LPFM stations to transmit only the test script of this monthly test.  Monthly tests are required of the EAS header codes, Attention Signal, Test Script and EOM code, but Class D noncommercial educational FM and LPTV stations are only required to transmit the Test Script.  In addition, we amend section 11.61(a)(2)(ii)(E)(2)(iii) to provide that Class D noncommercial educational FM, LPTV, and LPFM stations are not required to transmit this digital test, but must log receipt.  Class D noncommercial educational FM and LPTV stations are not required to transmit weekly tests of the EAS header and EOM codes.

[71]             Such equipment is used, for instance, by police or fire departments to monitor the Emergency Alert System.

[72]             Accordingly, we amend section 11.53(a)(3) of our rules to require LPFM stations to disseminate the national audio message to all subscribers if it is received via wire services.

[73]             EAS First Report and Order, 10 FCC Rcd at 1830, ¶ 123.