MB Docket 99-25: Second Report and Order

Adopted: March 22, 2001

Released: April 2, 2001

By the Commission: Commissioner Furchtgott-Roth approving in part, dissenting in part and issuing a statement.

1. On December 21, 2000, President Clinton signed into law “Making Appropriations for the Government of the District of Columbia for FY 2001” (the “Act”).¹ Section 632(a) of the Act requires the Commission to modify its rules for the low power FM (“LPFM”) service² to prescribe LPFM station third adjacent channel interference protection standards and to prohibit any applicant from obtaining an LPFM station license if the applicant has engaged in the unlicensed operation of a station in violation of Section 301 of the Communications Act of 1934, as amended.³ This Report and Order codifies these requirements and disposes of those pending LPFM new station applications directly impacted by these changes. In addition, it defines the scope of permissible minor amendments that may be filed by LPFM applicants outside window filing periods.

I. Third Adjacent Channel Protection Requirements

2. Section 632(a)(1)(A) of the Act requires the Commission to modify its LPFM rules to “prescribe minimum distance separations for third adjacent channels as well as for co-channels and firstand second-adjacent channels)[.]” In Creation of Low Power Radio Service, Report and Order, 15 FCC Rcd 2205 (2000) (“LPFM R&O”) the Commission adopted distance separation requirements for LPFM stations.⁴ Under Section 73.807, an LPFM station must meet specified co-, first-, and second adjacent channel spacings and IF channel spacings to full power FM and FM translator stations, and co- and first adjacent channel spacings to other LPFM stations. Although the Commission declined to adopt standards to protect either full or low power FM stations operating on third adjacent channels. i.e., on channels +/- 600 kHz to the proposed LPFM station frequency,⁵ it expressly considered this issue in the underlying Notice of Proposed Rule Making.⁶ Tables included in Appendix B to the LPFM NPRM listed third adjacent channel minimum distance separations to full power FM, FM translator, and LPFM stations. The Commission sought comment both on the need for such protections and the specific tabulated values.

3. All proposed separations, including third adjacent channel distances, were derived in accordance with the same methodology on which the current protection standards for non-reserved and reserved band FM station applications are based. As a result, these initially proposed spacings to full power FM and FM translator stations represent the minimum distance separations necessary to maintain existing levels of interference protection in the FM service. More specifically and as fully explained in the LPFM NPRM, distance separations were based on the sum of the distances to: (1) the F(50,50) contour of the “protected” station; and (2) the F(50,10) contour of the “interfering” station as calculated in accordance with 47 C.F.R. §§ 73.313 and 73.333. Full power and LPFM stations were assumed to operate at maximum facilities.⁷ Class B stations were protected to the 54 dBu F(50,50) contour and Class B1 stations to the 57 dBu F(50,50) contour. All other classes of stations (including LPFM stations) were protected to the 60 dBu F(50,50) contour.⁸ Under this methodology, prohibited interference occurs when the interfering contour of one station overlaps the protected contour of another station. Station A “causes” interference to Station B if Station A’s interfering contour overlaps Station B’s protected contour. Station A “receives” interference from Station B if Station B’s interfering contour overlaps Station A’s protected contour.

4. Both proposed second and third adjacent channel interfering contours were calculated on the basis of a -40 dBu desired to undesired (D/U) signal strength ratio,⁹ the same standard used to determine minimum spacing requirements for full power stations. Thus, Appendix B listed identical tentative spacings for stations operating on second and third adjacent channels.¹⁰ The Notice calculated separately minimum spacings to ensure that an LPFM would neither cause nor receive interference. In the case of second and third adjacent channel protections, the separation necessary to ensure that the LPFM station would not cause interference to a full service station is always greater that the minimum separation necessary to avoid interference received by the LPFM station. As a result, the adopted second adjacent channel separations list a single “required” value for each station class which, when met, fully protects both the full and low power stations from interference.¹¹ To implement Section 632(a) of the Act, we revise Section 73.807 to include minimum distance separations which LPFM station applications must meet to each full power FM and FM translator station operating on third adjacent channels in accordance with the methodology set forth in the LPFM NPRM. For the reasons stated above, all third adjacent spacings will consist of a single “required” value.

II. Amendment of Pending Applications

5. The Mass Media Bureau (“Bureau”) is currently implementing a five-part national filing window for LP100 new station applications.¹² It has opened three windows, covering thirty states and several additional jurisdictions. As a result of the rule revisions adopted in this Order, the facilities proposed in 653 otherwise technically acceptable LPFM applications filed in the first two of these windows have become short-spaced to existing full power FM and/or FM translator stations operating on third adjacent channels. Under well-established processing policies, only minor amendments may be filed outside the window period. Although the LPFM rules define the permissible scope of minor changes in authorized facilities,¹³ they do not define the scope of minor amendments to pending applications. Defining the scope of permissible minor amendments to pending applications has become particularly critical to this large group of newly short-spaced applicants because their applications are now subject to dismissal on this basis. This issue, however, is also relevant to certain applicants not impacted by the new interference standard. These include applicants that may be able to resolve conflicts with co- and first adjacent channel LPFM new station applications filed in the same window by specifying a different channel or by moving a proposed antenna site slightly.

6. Section 73.870 permits an authorized LP100 station to file a minor change application to relocate its transmitter site by less than two kilometers, and an authorized LP10 station to relocate its transmitter site by less than one kilometer. LP100 and LP10 minor change applications also may specify channel changes. We find that a narrower approach to minor amendments is necessary and limit “minor” technical amendments to site relocations of less than two kilometers for LP100 stations and less than one kilometer for LP10 stations. We recognize that this definition will provide little relief to many of the newly short-spaced proposals. However, several considerations support our decision to bar channel change amendments outside window filing periods. Most importantly, the expeditious processing of the hundreds of applications filed in the initial LPFM windows requires a relatively fixed database of technical proposals. Providing an opportunity to amend to different channels after the close of a window would make staff determinations of mutual exclusivity and the administration of the selection procedure for mutually exclusive applications inherently subject to duplicative reevaluations. In this case, our concern about potential delays in introducing the LPFM service outweigh the added flexibility that a more expansive minor amendment rule would provide certain applicants. However, consistent with our need for efficient licensing processes, we believe we can permit applicants to change proposed station locations by small distances. This will 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 but will not compromise our goal of promptly licensing stations.

7. These processing concerns are not relevant to non-technical amendments. Accordingly, we will not restrict the scope of such amendments with two exceptions. In order to promote the open, fair, and predictable operation of the selection procedures for mutually exclusive LPFM applications,¹⁴ amendments that would improve an applicant’s comparative position will not be accepted after the close of the pertinent filing window. Amendments that adversely affect an applicant’s comparative position will be accepted and considered as part of the mutually exclusive application selection procedures. Secondly, and consistent with the prohibition on the transfer of LPFM station construction permits and licenses,¹⁵ ownership amendments will be limited to changes where the original parties to an application retain more than a fifty percent ownership interest in the application as originally filed. Ownership amendments may preserve or diminish but not improve an applicant’s comparative position. For example, changes in an applicant’s governing body filed after the close of a window would be considered to determine whether an applicant remains entitled to a point for established community presence only if the applicant certified that it met the requirements for this point in the originally filed application.

III. Application of New Spacing Requirements to Pending Applications

8. The applications impacted by the new third adjacent channel spacing requirements are listed in Appendices A and B. These applications were filed in the first or second window and specified facilities that were otherwise technically acceptable.¹⁶ Appendix A lists those applications which involve short spacings of less than two kilometers. These applicants may be able to file minor amendments to eliminate the prohibited short spacings. These applications have not been studied individually to determine whether it would be possible to eliminate the identified short-spacing while remaining fully spaced to all other nearby co- and adjacent channel stations. However, the staff is prepared to assist each of these applicants, at their request, to determine whether a feasible site exists that would meet both the Commission’s distance separation requirements and the applicant’s service needs. Curative minor amendments, i.e., amendments that propose transmitter site relocations of less than two kilometers, for those applications listed in Appendix A must be filed within thirty days of the publication of this Order in the Federal Register. Appendix B lists those applications that have third adjacent channel short spacings of two or more kilometers, and thus cannot be cured by permissible minor amendments filed outside an LPFM window.¹⁷ We will process Appendix B applications and those Appendix A applications for which curative amendments are not filed as set forth below.

9. The Commission anticipates completing the five-part LP100 national window filing process in the next several months. We recognize the impact imposed by the rules changes that are mandated by the Act and direct the Bureau to open an additional remedial filing window following the completion of the currently scheduled window process. This window will be limited to applicants listed in Appendices A and B. To minimize processing burdens on applicants, these applications will be retained in pending status. This window will provide an opportunity in the near future for these applicants to submit major amendments that specify technical facilities that meet the new spacing requirements.¹⁸

IV. Unlicensed Operations

10. Section 632(a)(1)(B) of the Act requires the Commission to modify its rules to “prohibit any applicant from obtaining a low-power FM license if the applicant has engaged in any manner in the unlicensed operation of any station in violation of section 301 of the Communications Act of 1934 (47 USC 301).” The LPFM Report & Order generally applied the same character qualification requirements to LPFM station licensees as the Commission applies to full power licensees.¹⁹ However, the Commission adopted the proposal set forth in the LPFM NPRM to permit in certain circumstances the grant of an LPFM station application even though a party to the application has engaged in illegal broadcast operations. Specifically, with regard to such a party the applicant must certify that it ceased engaging in the unlicensed operation of any station within 24 hours of a Commission directive to do so. Alternatively, in cases where no specific Commission directive to terminate was received, the party must have voluntarily ceased engaging in the unlicensed operation of any station no later than February 26, 1999.²⁰

11. We amend Section 73.854 and direct the staff to modify FCC Form 318 to conform to the statutory language. We also will dismiss those applications now on file that responded “No” to FCC Form 318, Section III, Question 8(a). This item requests applicants to certify that neither the applicant nor any party to the application engaged in any manner in the unlicensed operation of any station in violation of Section 301 of the Communications Act of 1934, as amended. The affected applications are listed in Appendix C. We note that the statutory language is not limited to applicants and licensees that have been found to have engaged in unauthorized operations by the Commission. Accordingly, an applicant will be ineligible to hold an LPFM license if it has engaged in unlicensed operation regardless of whether the Commission has made a specific finding that the party has engaged in such conduct. An applicant that responds “Yes” to Question 8(a) but which is subsequently determined to have engaged in unlicensed station operations will be dismissed and subject to additional enforcement actions. An LPFM station licensee subsequently found to have violated Section 301 will be subject to license revocation and other sanctions.

V. Administrative Matters

12. The Commission does not believe that the notice and comment requirements of Section 553 of the Administrative Procedure Act (“APA”) apply to the rule revisions adopted herein. We find that the amendments of the interference protection and unlicensed operation rules are exempt from notice and comment under the “good cause” exemption of the APA.²¹ The third adjacent channel protection requirements we adopt herein were proposed in the LPFM NPRM, are consistent with current full power FM station third adjacent channel protection levels, and implement a Congressional requirement. The amendment of the unlicensed operation rule is a non-discretionary action that merely codifies a Congressional requirement. Accordingly, the agency for good cause finds that further notice and public procedures thereon are unnecessary.²² The minor amendment rule is a rule of procedure to which notice and comment requirements are inapplicable.²³

13. The rule modifications adopted in this Order have been analyzed with respect to the Paperwork Reduction Act of 1995 and found to impose new or modified reporting and recordkeeping requirements or burdens on the public. Implementation of these requirements will be subject to approval by the Office of Management and Budget as prescribed by this Act.

VI. Ordering Clauses

14. Accordingly, it is ORDERED, that pursuant to Section 632(a) of Making Appropriations for the District of Columbia Act for FY 2001, Part 73 of the Commission’s Rules, 47 C.F.R. Part 73, is AMENDED as set forth in Appendix D. It is further ORDERED, that the rules set forth in Appendix D will BECOME EFFECTIVE thirty days after publication of this Order in the Federal Register, following Office and Management and Budget approval, unless a notice is published in the Federal Register stating otherwise.

15. It is further ORDERED, that the applicants listed in Appendix A MAY FILE minor amendments to conform to the rule revisions adopted herein within 30 days of the publication of this Order in the Federal Register.

16. It is further ORDERED, that the applications listed in Appendix C ARE DISMISSED.

FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary

Footnotes

1 Pub. L. No. 106-553, 114 Stat. 2762 (2000).

2 See Report and Order, MM Docket. No. 99-25, 15 FCC Rcd. 2205, reconsideration generally denied, Memorandum Opinion and Order, 15 FCC Rcd 19,208 (2000).

3 47 U.S.C. § 301.

4 See 47 C.F.R § 73.807.

5 LPFM R&O at 2246 (para. 104).

6 See Creation of a Low Power Radio Service, Notice of Proposed Rulemaking, 14 FCC Rcd. 2471, 2488-89 (1999) (“LPFM NPRM”).

7 See 47 C.F.R. §§ 73.211, 73.811.

8 See, e.g., 47 C. F.R. § 73.509(a).

9 Id.

10 See 47 C.F.R. § 73.207; 73.215 (e).

11 See 47 C.F.R. 73.807, Introductory Note “For second-adjacent channels and IF channels, the required minimum distance separation is sufficient to avoid interference received from other stations.”

12 LP100 stations may operate with up to 100 watts effective radiated power and with antenna heights of 30 meters above average terrain or with the equivalent thereof.

13 See 47 C.F.R. § 73.870 (a).

14 See 47 C.F.R. § 73.872.

15 See 47 C.F.R. § 73.865.

16 The Commission-developed LPFM channel finder tool was modified prior to the third window to provide third adjacent channel protection to full power FM and FM translator stations. Thus, applications filed in the third window that selected channels with the help of this engineering software are not impacted by the new distance separation requirements adopted in this Order.

17 The major change amendments that will be required to cure the short-spacing defects of these applications must, in accordance with established cut-off rule processing policies, protect acceptable, previously filed LPFM applications, including those listed on Public Notice, Notice of Acceptance of Low Power FM Broadcast Applications and Notification of Petitions to Deny Deadline (M. M. Bur., released December 21, 2000).

18 The staff has not undertaken a review of the non-technical aspects of these applications. Legal qualifications issues will be considered as necessary following the close of the remedial filing window.

19 LPFM R&O, 15 FCC Rcd at 2226 (para. 53).

20 See 47 C.F.R. § 73.854(b); FCC Form 318, Section III, question 8.

21 See 5 USC § 553(b)(3)(B).

22 See id; see also Implementation of Sections 202(a) and 202(b)(1) of the Telecommunications Act of 1996, 11 FCC Rcd 12368 (1996).

23 See 5 USC § 553(b)(3)(A); see also JEM Broadcasting v. FCC, 22 F3d 320 (D.C. Cir. 1994)

STATEMENT OF COMMISSIONER HAROLD W. FURCHTGOTT-ROTH Approving in part, Dissenting in part

In the Matter of Creation of a Low Power Radio Service (MM Docket 99-25) It is incumbent upon this Commission to implement the new statutory requirements for LPFM service in a manner consistent with the intent of Congress. That feat has been accomplished here. On this point, I find that the Second Report and Order is headed in the right direction.

However, the Commission should have issued a Notice of Proposed Rulemaking (“NPRM”) asking for comment on the new statutory directives. The urgency in establishing the LPFM service cannot, and does not, overcome the need to follow the rulemaking requirements found in the Administrative Procedures Act. In any instance, a public dialogue and debate on the relevant provisions would have helped elucidate the scope and substance of the law.

In addition, the Commission should have suspended its current LPFM requirements as it examines the meaning of the statute. This step would have allowed the Commission to reconsider its LPFM rules in light of Congress’ recent actions.¹ A more harmonious LPFM regime would have resulted.

Since the Commission did not issue an NPRM or suspend its current LPFM rules, I must dissent, in part.

¹ I note that the Commission found it necessary to suspend the merger deadlines imposed on AT&T because a court decision struck down the cable horizontal ownership rules upon which the conditions were based. See AT&T Suspension Order, FCC 01-95 (rel. March 16, 2001) in response to Time Warner Entertainment v. FCC __ F3d. __ (D.C. Cir. 2001). The Commission should have treated the instant situation in a similar manner because the statutory directives significantly altered the prior policy stance of this agency.