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FCC FACT SHEET
On January 20, 2000, the FCC adopted rules creating a new, low power FM radio (LPFM)
service.
The new LPFM Radio service consists of two classes of LPFM radio stations with maximum power
levels of 10 watts and
100 watts. The 10 watt stations would reach an area with a radius of between one and two
miles, the 100 watt stations
would reach an area with a radius of approximately three and a half miles.
These LPFM Radio stations would operate throughout the FM band. The stations will be required to
protect existing stations
on the same (co-channel) channel, the next (first adjacent channel) channel, and the
channel two channels away (second
adjacent channel). In a change from general practice, the new stations will not be
required to protect stations three
channels away (third adjacent channel). For example, under rules applicable to existing
full power stations where there is
a station on 93.5, there is currently no station in the same geographic area on 93.7 (the
first adjacent channel), 93.9 (the
second adjacent channel) or 94.1 (the third adjacent channel). This new spacing criteria
would allow a new, LPFM
Radio station to be licensed on the third adjacent channel, or 94.1.
FCC engineers have conducted extensive testing of these protection standards and found
that under these new
standards, every radio tested exceeded FCC interference criteria. FCC engineers have
concluded that these protection
standards will not produce unacceptable levels of interference with existing FM stations.
The new LPFM service will be exclusively noncommercial, there will be no commercial LPFM
stations. In addition,
current broadcast licensees or parties with interests in other media – cable or
newspapers - will not be eligible for LPFM
Radio stations.
LPFM stations will be licensed exclusively to local entities for the first two years of
license availability. Later, however,
non-local entities will be eligible for licenses. Each licensee may own only one station
in any given community, however,
eventually a licensee may own up to ten stations nationwide.
Licensees will be subject to the same character qualifications as are currently applied to
full power licensees.
Unauthorized broadcasters will be disqualified unless they certify that they ceased
operations when notified of their
violation of FCC rules or by February 26, 1999.
If mutually exclusive applications are received for LPFM stations in a given city, mutual
exclusivity will be resolved
through the award of points for established local presence, proposed hours of service, or
locally originated programming.
The point system would encourage mutually exclusive applicants to share their stations
with other applicants.
HERE'S THE ENTIRE TEXT OF THE NEW LPFM RULES
Federal Communications Commission FCC 00-19
Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Creation of Low
Power Radio Service
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MM Docket No. 99-25
RM-9208
RM-9242
REPORT AND ORDER
Adopted: January 20, 2000 Released: January 27, 2000
By the Commission: Chairman Kennard and Commissioners Ness and Tristani issuing separate
statements; Commissioner
Furchtgott-Roth dissenting and issuing a statement; and Commissioner Powell approving in
part, dissenting in part and issuing a
statement.
Table of Contents
A. Goals
B. Classes of Service 7
1. LP100 Service 13
2. LP10 Service 14
C. Nature of Service and Licensees 15
1. Noncommercial Educational Service 15
2. Public Safety and Transportation 21
D. Eligibility and Ownership 24
1. Cross-Ownership Restrictions 26
2. Requirement That Applicant Be Community-Based 31
3. National Ownership Limits 37
4. Local Ownership Limits 42
5. Attribution 47
6. General Character Qualifications and Unlicensed Broadcasters 51
E. Technical Rules 56
1. Spectrum for Low Power Radio 56
2. LPFM Spectrum Rights and Responsibilities 60
3. Minimum Distance Separation Requirements 68
4. Second and Third Adjacent Channel Protection 73
5. Other Technical Standards and Provisions 105
F. Application Processing 122
1. Electronic Filing 122
2. Window Filing Process 127
3. Selection Among Mutually Exclusive Applications 134
4. License Terms and Renewals 153
5. Transferability 161
G. Programming and Service Rules 164
1. Public Interest Requirements 164
2. Locally Originated Programming 168
3. Political Programming Rules 173
4. Station Identification 177
5. Operating Hours 180
6. Main Studio Rule, Public File Rule and Ownership Reporting Requirements 183
7. Construction Permits 187
8. Emergency Alert System 190
III. Conclusion 198
I. introduction
1. With this Report & Order, we authorize the licensing of two new classes of FM radio
stations -- one operating at a
maximum power of 100 watts and one at a maximum power of 10 watts. Both types of stations,
known as low power FM
stations (LPFM), will be authorized in a manner that protects existing FM service. They
will be operated on a noncommercial
educational basis by entities that do not hold an attributable interest in any other
broadcast station or other media subject to our
ownership rules. Initially, only entities located in the communities the stations serve
will be eligible to participate in this service.
Even once this eligibility criterion is relaxed, we will grant a significant selection
preference to locally-based applicants. We
believe that the LPFM service authorized in this proceeding will provide opportunities for
new voices to be heard and will
ensure that we fulfill our statutory obligation to authorize facilities in a manner that
best serves the public interest.
2. In establishing this new service, we are determined to preserve the integrity and
technical excellence of existing FM radio
service, and not to impede its transition to a digital future. In this regard, our own
technical studies and our review of the record
persuade us that 100-watt LPFM stations operating without 3rd-adjacent channel separation
requirements will not result in
unacceptable new interference to the service of existing FM stations. Moreover, imposing
3rd-adjacent channel separation
requirements on LPFM stations would unnecessarily impede the opportunities for stations in
this new service, particularly in
highly populated areas where there is a great demand for alternative forms of radio
service. We will not, therefore, impose
3rd-adjacent channel separation requirements. To avoid any possibility of compromising
existing service, given the new nature
of the LPFM service, we will impose separation requirements for low power with respect to
full power stations operating on
co-, 1st- and 2nd-adjacent and intermediate frequency (IF) channels. (See footnote 1) We
believe that the rules we are
adopting will maintain the integrity of the FM band and preserve the opportunity for a
transition to a digital radio service in the
future, while affording significant opportunities for new radio service.
III. issue analysis
A. Goals
4. The Notice of Proposed Rulemaking we adopted on January 28, 1999 (See footnote 2)
responded to petitions for rule
making and related comments indicating substantial interest in, and public support for,
increased citizens' access to the
airwaves. (See footnote 3) In the year since we issued the Notice, proposing rules
authorizing the operation of new low power
FM radio stations, we have received comments and letters from thousands of individuals and
groups seeking licenses for new
radio stations. Many of these comments, which will be discussed in greater detail below,
included comprehensive engineering
studies and valuable suggestions for service rules. These comments -- from churches or
other religious organizations, (See
footnote 4) students, (See footnote 5) labor unions, (See footnote 6) community
organizations and activists, (See footnote 7)
musicians, (See footnote 8) and other citizens -- reflect a broad interest in service from
highly local radio stations strongly
grounded in their communities. In authorizing this new service today, we enhance locally
focused community-oriented radio
broadcasting.
5. Our goal in creating a new LPFM service is to create a class of radio stations designed
to serve very localized communities
or underrepresented groups within communities. To that end, in the Notice we proposed to
establish two classes of low power
FM radio service: a 1000-watt primary service and a 100-watt secondary service. We also
sought comment on whether to
establish a secondary class of stations operating between one and 10 watts. (See footnote
9) Commenters supporting low
power radio generally argued for the creation of an LPFM service consisting of 100 or 10
watt stations. Most commenters did
not support the creation of 1000 watt stations, arguing that the local aspect of LPFM
service could be diminished by the size of
the service area of such stations. (See footnote 10) Some commenters opposing the
institution of 1000 watt service argued that
1000 watt stations present a greater interference potential than 100 or 10 watt stations.
(See footnote 11) We also stated in the
Notice a hope that the largest of the proposed LPFM stations, at 1000 watts, could serve
as a proving ground and an “entry”
opportunity for new entrants into the full-power broadcasting industry. While we continue
to view this as a worthwhile goal, we
are persuaded by commenters that establishment of a 1000 watt service would not best
fulfill our goals at the present time. Our
establishment of a low power radio service consisting of two classes operating at maximums
of 100 watts and 10 watts will
allow licensees to serve their local communities, and will permit a greater number of new
stations to be authorized, fostering a
diversity of new voices on the airwaves.
6. Another goal expressed in the Notice was that any new LPFM service specifically include
the voices of community based
schools, churches and civic organizations. In the Notice, we raised the question of
whether the LPFM service should include
both commercial and noncommercial licensees or whether it should be entirely
noncommercial. We also proposed that any
stations of one to 10 watts be exclusively noncommercial, as we did not see commercial
potential in stations with such limited
service areas. Many of the commenters supporting LPFM strongly supported the establishment
of an entirely noncommercial
service. (See footnote 12) We tentatively concluded that auctions would be required if
mutually exclusive applications for
commercial LPFM facilities were filed, but noted that licenses for noncommercial
educational or public broadcast stations are
specifically exempted from auction by Section 309(j). (See footnote 13) Given the
overwhelming support for the establishment
of a noncommercial service, and the tendency of auctions to skew the allocation of
licenses away from noncommercial entities
that are more likely to serve underrepresented sections of the community, we conclude that
eligibility for LPFM licenses should
be limited to noncommercial, educational entities and public safety entities.
7. Finally, in proposing the creation of a new LPFM service, we made clear that we will
not compromise the integrity of the
FM spectrum. We are committed to creating a low power FM radio service only if it does not
cause unacceptable interference
to existing radio service. The Notice proposed that current restrictions on 3rd-adjacent
channel operations might be eliminated
in order to establish an LPFM service and also sought comment as to whether 2nd-adjacent
channel separations are necessary.
The modification of our existing rules concerning channel separations has generated
extensive comment, as well as extensive
engineering studies. (See footnote 14) Our Office of Engineering and Technology has
conducted its own engineering tests, and
has comprehensively reviewed the studies submitted by commenters. The rules adopted today
reflect our well-considered
conclusion that the elimination of 3 rd-adjacent channel separation requirements for LPFM
stations will not cause unacceptable
levels of interference to existing radio stations. We recognize that the elimination of
restrictions on both the 2nd- and 3rd-
adjacent channels would create many more opportunities for community-based LPFM stations,
but, given the ambiguity in the
record on this issue and our commitment to ensure that the new LPFM service does not
unacceptably interfere with existing
radio services or impede a digital future for radio broadcasting, we must proceed
cautiously. Accordingly, we will impose
2nd-adjacent channel separation requirements on LPFM stations.
A. Classes of Service
8. Background. In the Notice, the Commission proposed to authorize two classes of LPFM
stations: (1) an LP1000 class
which would be for primary stations operating with an effective radiated power (ERP) of
between 500 and 1000 watts and
with an antenna height above average terrain (HAAT) up to 60 meters, and (2) an LP100
class which would be for stations
operating on a secondary basis with between 50 and 100 watts ERP and with antennas up to
30 meters HAAT. We also
sought comment on a very low power secondary LP10 service with an ERP between one and 10
watts. For each proposal, the
Commission sought comment on the power levels associated with each class, the eligibility
for such stations and the effects that
each class may have on the full power radio service.
9. Comments. LP1000. Generally speaking, the proposal to authorize LP1000 stations
generated the most controversy among
the commenters. The topic was one of the few areas that generated opposition by both
current full service broadcasters and
low power radio proponents, although for different reasons. Commenters connected to the
existing broadcast industry and the
Association of Federal Communications Consulting Engineers (AFCCE) expressed their
concerns regarding the large potential
for interference posed by such operations. (See footnote 15) Additionally, AFCCE, as well
as commenters that generally
support the LP1000 proposal, expressed concerns that the service could preclude other
lower powered LPFM stations. Most
commenters supporting the LP1000 proposal proposed to limit LP1000 stations to rural areas
or areas where sufficient
spectrum could be found for both LP1000 and LP100 classes of service. (See footnote 16)
10. LP100. The proposal for LP100 stations generated the most positive comments.
Commenters generally felt that LP100
stations would provide a reasonable coverage area while remaining small enough to continue
focusing on local needs. From an
engineering standpoint, various commenters, including AFCCE, stated that the LP100
proposal appears “reasonable” and the
proposed power range would allow the use of equipment, such as exciters and simple single
bay antennas, that are already
available. (See footnote 17) Not all comments were favorable, however. In general most
negative comments shared the view
stated by Disney that “[a] secondary LP100 service is undesirable for two reasons:
first, because it would be difficult to
establish a procedural and enforcement framework that would adequately protect FM
broadcasters from interference; and
second, because LP100 stations would create only marginal new radio listenership given the
overriding levels of interference
they would receive from full service stations.” (See footnote 18)
11. LP10. The Commission’s proposal for an LP10 service operating with 10 watts or
less elicited both highly favorable
support and vociferous opposition. Most support for the proposal came from individuals and
public interest groups. The
comments in favor of LP10 generally viewed such a service as suitable for school campuses
and local community organizations
that wish to serve small areas and do not have the resources to construct and operate a
higher-powered facility. (See footnote
19) Furthermore, given what they saw as a smaller potential for interference, these groups
considered LP10 as the best option
for crowded urban areas where higher-powered facilities are not likely to fit. (See
footnote 20) On the other hand, most
comments opposing the LP10 proposal came from broadcasters and individuals concerned that
the Commission would not be
able to enforce its rules against the numerous LP10 stations and that widespread
interference would result. In fact, the NAB
stated that, while the Commission feels that an LP10 station would not result in
significant interference, the sheer number of
LP10 stations may result in more interference than the higher-powered station proposals
would create. Additionally, the NAB
cited the Commission’s 1978 determination that Class D 10 watt operations result in
inefficient spectrum usage. (See footnote
21) However, one broadcaster, WEOK Broadcasting Corporation, noted that “[v]ery low
power stations (perhaps one to 10
watts) could operate as useful adjuncts to college campuses,” provided there are some
restrictions on usage. (See footnote 22)
Likewise, not all public interest groups felt that an LP10 service would be a good idea.
For example, the Civil Rights
Organizations stated that LP10 stations should not be authorized because they would be
“hard-to-regulate.” (See footnote 23)
12. Decision. We will not authorize 1000 watt stations. We will, however, authorize LP100
and LP10 stations, in two separate
stages. First, we will license LP100 stations. These stations generally will provide
coverage appropriate to community needs
and interests expressed in the record in this rule making. The Mass Media Bureau is
delegated authority to issue an initial and
subsequent public notices inviting the filing of applications for LP100 stations on dates
consistent with this Order and
processing requirements. After a period of time sufficient to process the initial LP100
applications, the Mass Media Bureau is
authorized to open a filing window for applications for LP10 stations, which can also
serve very localized community needs.
We adopt this sequential process in order to provide the larger (100 watt) stations with
their greater service areas the first
opportunity to become established. Given that some LP10 stations can be sited where LP100
stations cannot, we expect that
opportunities will remain for LP10 after the initial demand for LP100 stations has been
accommodated. Additionally, our own
resources will be better spent first advancing service to relatively greater areas.
13. However, the record, including comments from both current broadcasters and public
interest groups who were opposed to
stations as large as 1000 watts, convinces us that licensing such a service is not in the
public interest. As argued by
commenters, 1000 watt stations may pose a greater interference concern for existing
broadcasters and are not necessary to
meet the most pressing and widespread demand for service expressed in the record.
Moreover, LP1000 stations could have a
significant preclusive effect on the licensing of LP100 and LP10 stations. Yet, these
lower powered stations will permit many
more opportunities for community-oriented service than would 1000-watt stations.
1. LP100 Service
14. LP100 stations will be authorized to operate with maximum facilities equivalent to 100
watts ERP at 30 meters (100 feet)
HAAT (See footnote 24) and minimum facilities equivalent to 50 watts at 30 meters (100
feet). This would permit a maximum 1
mV/m contour (60 dBu) with a radius of approximately 5.6 kilometers (3.5 miles), subject
to the radio environment. Depending
on population density, such a station could serve hundreds or thousands of listeners. This
service will allow LPFM licensees to
broadcast affordably to communities of moderate size and interest groups that are
geographically proximate, such as ethnic,
professional, industry and student groups, and retirement neighborhoods. Spectrum rights
and responsibilities for this service
are addressed below.
1. LP10 Service
15. LP10 stations will operate at between one and 10 watts ERP and an antenna height of up
to 30 meters (100 feet) HAAT.
Such stations will produce a 60 dBu signal out to about 1.6 to 3.2 kilometers (1 to 2
miles) from the antenna site. Such stations
will fit in some locations where LP100 stations cannot, due to separation requirements,
and will provide groups with the
opportunity to operate stations that reach smaller communities or groups with a common
interest. Spectrum rights and
responsibilities for this service are addressed below.
A. Nature of Service and Licensees
1. Noncommercial Educational Service
16. Background. In proposing the creation of a new LPFM service, the Commission set forth
its goals of encouraging diverse
voices on the nation’s airwaves and creating opportunities for new entrants in
broadcasting. We raised the question of whether
the service should be noncommercial in nature. We noted that while mutually exclusive
commercial broadcast applications are
subject to auction, certain noncommercial stations are specifically exempted from our
auction authority. (See footnote 25)
17. Comments. Of those commenters supporting LPFM, an overwhelming majority endorsed
establishing it as a
noncommercial service. Commenters stressed the diversity that would be created by a
noncommercial service, (See footnote
26) and argued that noncommercial radio is the best way to serve local communities. (See
footnote 27) Other commenters,
however, argued that low-power FM licensees should be available to both noncommercial and
commercial licensees. (See
footnote 28)
18. Decision. We will establish LPFM as a noncommercial educational service. Our goals in
establishing this new service are to
create opportunities for new voices on the air waves and to allow local groups, including
schools, churches and other
community-based organizations, to provide programming responsive to local community needs
and interests. We believe that a
noncommercial service is more likely to fulfill this role effectively than a commercial
service. Commercial broadcast stations, by
their very nature, have commercial incentives to maximize audience size in order to
improve their ratings and thereby increase
their advertising revenues. We are concerned that these commercial incentives could
frustrate achievement of our goal in
establishing this service: to foster a program service responsive to the needs and
interests of small local community groups,
particularly specialized community needs that have not been well served by commercial
broadcast stations. We believe that
noncommercial licensees, which are not subject to commercial imperatives to maximize
audience size, are more likely than
commercial licensees to serve small, local groups with particular shared needs and
interests, such as linguistic and cultural
minorities or groups with shared civic or educational interests that may now be
underserved by advertiser-supported
commercial radio and higher powered noncommercial radio stations. (See footnote 29) We
note that commenters addressing
this issue favored establishing LPFM as a noncommercial service by a substantial margin,
though some have argued that a
commercial service could provide ownership opportunities for new entrants . (See footnote
30) While we have considered the
entrepreneurial opportunities that low power radio stations might create, we nonetheless
conclude that a noncommercial service
would best serve the Commission’s goals of bringing additional diversity to radio
broadcasting and serving local community
needs in a focused manner. (See footnote 31)
19. Establishing LPFM as a noncommercial service will have the added benefit of giving us
additional flexibility to assign
licenses for this service in a manner that is most likely to place them in the hands of
local community groups that are in the best
position to serve local community needs. As a general matter, where mutually exclusive
applications are filed for initial
commercial licenses or construction permits, the licenses or permits must be awarded by
competitive bidding pursuant to 47
U.S.C. § 309(j). Licenses for noncommercial educational broadcast stations, as described
in Section 397(6) of the Act,
however, are not subject to competitive bidding. (See footnote 32) Accordingly, having
decided to establish LPFM as a
noncommercial service, we will require that LPFM licensees comply with the eligibility
requirements of Section 397(6) of the
Act. (See footnote 33)
20. Section 397(6) of the Act defines “noncommercial educational broadcast
station” as a station which:
(A) under the rules and regulations of the Commission in effect on the effective date of
this paragraph, is eligible to be
licensed by the Commission as a noncommercial educational radio or television broadcast
station and which is owned and
operated by a public agency or nonprofit private foundation, corporation, or association;
or
(B) is owned and operated by a municipality and which transmits only noncommercial
programs for education purposes.
(See footnote 34)
Since the statute incorporates by reference the Commission’s noncommercial
eligibility rules, we must look to those rules in
determining noncommercial eligibility under Section 397(6) of the Act. The
Commission’s rules limit eligibility for
noncommercial radio stations to nonprofit educational organizations that show that the
station will be used “for the advancement
of an educational program.” (See footnote 35) In applying this rule, the Commission
has required that applicants be (a) a
government or public educational agency, board or institution, or (b) a private, nonprofit
educational organization, or (c) a
nonprofit entity with a demonstrated educational purpose. (See footnote 36) We require
that an applicant described in (a) or (b)
have an educational program and demonstrate how its programming will be used for the
advancement of that program. An
applicant applying as (c) must specifically show (i) that it is in fact a nonprofit
educational organization, (ii) that it has an
educational objective, and (iii) how its programming will further that objective. (See
footnote 37)
21. The requirement that NCE licensees provide programming that advances an educational
objective may be satisfied by a
variety of programs, including but not limited to “instructional programs,
programming selected by students, bible study, cultural
programming, in-depth news coverage, and children’s programs such as Sesame Street
that entertain as they teach.” (See
footnote 38) We have also stated that “in order to qualify as an educational station,
it is not necessary that the proposed
programming be exclusively educational.” (See footnote 39) Given the latitude that
entities have under our rules to qualify as
NCEs, we do not believe that limiting eligibility for LPFM licenses to NCEs will unduly
limit the range of groups that will be
eligible to apply for LPFM licenses or the services that they can provide. (See footnote
40)
1. Public Safety and Transportation
22. Background. One appropriate use of LPFM stations is use by public safety or
transportation organizations. Although the
Notice did not specifically raise this issue, a number of commenters proposed it.
23. Comments. We received a number of comments from public safety and transportation
entities arguing that they would use
LPFM stations to serve communities’ need for public safety and traffic information.
The New York State Thruway Authority
(Thruway) argued that low power FM stations could be used for the benefit of public safety
and transportation entities
throughout the country to provide critical real-time information to travelers confronting
emergency situations, traffic patterns and
accidents. (See footnote 41) The Texas Department of Transportation stated a low power FM
service would offer more
reliable service to travelers than does its existing AM Travelers’ Information
Stations (TIS). (See footnote 42)
24. Decision. The public safety and transportation commenters propose important uses for
low power FM stations. LPFM
stations could be used by state or local governments or other not-for-profit entities to
provide traffic, weather, and other public
safety information to local communities. The use of LPFM stations for public safety
purposes will further our goal of better
serving local communities. Certain of these entities already hold TIS or other broadcast
licenses. We emphasize, however, that
we will not exempt these licenses from the cross-ownership restrictions, described below,
and will therefore require TIS
licensees or other public safety or transportation licensees, to return their existing
licenses upon the initiation of LPFM service.
Thus, in addition to noncommercial, educational organizations, associations or entities as
described above, public safety radio
services used by state or local governments or not-for-profit organizations, as defined in
47 U.S.C. § 309(j)(2)(A), will be
eligible for LPFM licenses.
A. Eligibility and Ownership
25. In order to further our diversity goals and foster local, community-based service, we
will not allow any broadcaster or other
media entity subject to our ownership rules to control or to hold an attributable
ownership interest in an LPFM station or enter
broadcast related operating agreements with an LPFM licensee. Additionally, to foster the
local nature of LPFM service, we
are limiting eligibility to local entities during the first year LPFM licenses are
available. We are also adopting a significant local
ownership preference to be applied in resolving mutually exclusive applications. After
local entities have had an opportunity to
apply for construction permits, we will permit applications by qualified non-local
applicants. After the first two years, we will
permit multiple ownership of LPFM stations nationally, but only up to a maximum of 10 LPFM
stations over a phased-in
period.
26. Throughout this discussion we use the term “community” in a manner different
from our traditional use of the term. (See
footnote 43) Here, we use the term to refer to the very small area and population group
that will make up the potential service
area and audience of an LPFM station. Given the very small nature of LPFM service contours
and prospective audiences, we
do not expect LPFM service areas to be coincident with traditional political boundaries
that we use to define communities in
other contexts, such as our allocations process. (See footnote 44)
1. Cross-Ownership Restrictions
27. Background. In the Notice, the Commission tentatively concluded that strict
cross-ownership restrictions would be
appropriate for low power radio. We proposed to prohibit any person or entity with an
attributable interest in a broadcast
station from having an ownership interest in any LPFM station in any market. We sought
comment on whether the proposed
strict cross-ownership restrictions would unnecessarily prevent individuals and entities
with valuable broadcast experience from
contributing to the success of the LPFM service. We also asked for comment on whether
broadcasters with an attributable
interest in broadcasting stations should be allowed to establish an LPFM station in a
community where they do not have an
attributable broadcast interest. We proposed to prohibit joint sales agreements, time
brokerage agreements, local marketing or
management agreements, and similar arrangements between full power broadcasters and low
power radio entities. We also
sought comment on whether the cross-ownership restriction should be extended to prevent
common ownership of LPFM
stations with cable systems, newspapers, or other mass media.
28. Comments. Several commercial broadcasters, educational broadcasters and individuals
propose that cross ownership be
allowed. (See footnote 45) The NAB opposes restricting current broadcasters from low power
ownership, claiming that
consolidation of ownership in fact increases diversity of broadcast formats because of
economic efficiencies. (See footnote 46)
The NAB further alleges that such a prohibition would preclude low power stations from
realizing efficiencies through joint
operations with a full power counterpart. (See footnote 47) Some commenters propose that
current broadcasters be allowed to
apply for LPFM stations, but that they should be required to give up their current station
license prior to initiating operations at
the LPFM station. (See footnote 48) Others propose that full service station owners not be
barred, so long as the LPFM station
is in another market. (See footnote 49) Metro Detroit Broadcasting Corporation proposes a
waiver of multiple ownership
provisions for minority-owned low power stations. (See footnote 50)
29. Most commenters, however, oppose cross-ownership of full-service stations and LPFM
stations. (See footnote 51) The
National Lawyers Guild, for example, asks why the Commission would allow the few companies
who already hold a broadcast
license also to hold a low power license when 99.9 percent of the American people are
barred from using the most effective
communications media in the nation. (See footnote 52) Most commenters also support the
Commission’s proposal to prohibit
arrangements between full service broadcasters and LPFM entities, such as joint sales and
time brokerage agreements. UCC,
et al., adds that not only should such agreements between full power licensees and low
power licensees be prohibited, but also
that agreements of a similar nature between two or more low power licensees should be
disallowed. (See footnote 53)
30. Decision. We will prohibit common ownership of LPFM and any other broadcast station,
including translators and low
power television stations, as well as other media subject to our ownership rules. (See
footnote 54) Thus, no broadcaster or
other media entity, or any party with an attributable interest in them, can hold any
attributable ownership interest in an LPFM
licensee. One of the most important purposes of establishing this service is to afford
small, community-based organizations an
opportunity to communicate over the airwaves and thus expand diversity of ownership -- a
purpose inconsistent with common
ownership of LPFM stations and existing broadcast facilities or other media interests.
Moreover, many of the commenters’
remarks favoring cross ownership are directed to the establishment of the proposed LP1000
service. These arguments
regarding efficiencies and economies and competitive standing for stations that might
compete commercially, however, are less
applicable to noncommercial educational LP100 and LP10 stations. Similarly, our own
expressed concern that
cross-ownership limits could retard the development of low power radio by excluding
entities with broadcast experience is less
pressing in the absence of commercial 1000 watt stations. We conclude that our interest in
providing for new voices to speak
to the community, and providing a medium for new speakers to gain experience in the field,
would be best served by barring
cross-ownership between LPFM licensees and existing broadcast owners and other media
entities. This prohibition is national
and absolute in nature, unlike our existing cross-media ownership rules. Thus, for
example, a newspaper cannot have an
attributable interest in any LPFM station, regardless of whether the newspaper and LPFM
station are co-located. We believe
our interest in promoting diversity warrants such a strict approach.
31. We have also decided to prohibit operating agreements in any form, including time
brokerage agreements, local marketing
or management agreements, and similar arrangements, between full power broadcasters and
LPFM broadcasters, or between
two or more low power licensees, as suggested by UCC, et al. (See footnote 55) As noted
above, many commenters strongly
oppose allowing any form of operating agreement that would dilute new ownership in the low
power service. We are
concerned that such agreements too readily could undermine the strict cross-ownership
restriction adopted by allowing an
ineligible entity to program or manage an LPFM station. We see no harm, however, in
permitting any existing licensee to apply
for an LPFM station on the condition that it is otherwise qualified and it represents that
it will divest its interest prior to
commencement of LPFM operations.
1. Requirement That Applicant Be Community-Based
32. Background. In the Notice, we sought comment on whether to establish a local residency
requirement, although we were
not inclined, at that time, to do so. We were concerned that a residency requirement would
limit the pool of potential owners of
low power stations and would deny opportunity to individuals and entities who resided in a
location where no frequency is
available, as there will not be low power frequencies available in every community. We
also noted that we expected in the case
of LP100s and LP10 stations, in particular, that the very nature of the stations would
attract primarily local or nearby residents.
We note that given our decision to restrict eligibility to noncommercial educational
entities, the term “residency” is somewhat
misleading. The issue now is whether we should limit applicants to entities based within
the local community they wish to serve
and, if so, how we should define whether or not they are community-based. Nonetheless,
given that the Notice and comments
are cast in terms of residency, we will continue to use the term, but do so in the
organizational or institutional sense noted here.
33. Comments. Most commenters support a requirement that LPFM licensees be locally based.
(See footnote 56) They argue
that local residents are more likely to be aware of issues of importance to the local
community, and to gear their programming
accordingly. UCC, et al. proposes that a majority of the entity’s board reside in the
station’s service area. (See footnote 57) The
Civil Rights Organizations suggest that a majority of the licensee’s board of
directors, the head of the board and the CEO be
local residents. (See footnote 58) Some commenters propose that applicants should be based
within 25 (See footnote 59) or 50
miles (See footnote 60) of the new low power station, or within the station’s
proposed contour. (See footnote 61) Community
Broadcasters proposes that a majority of the members of the governing body of the LPFM
licensee be residents within the
primary service contour of the proposed station. (See footnote 62) On the other hand, many
commenters oppose the imposition
of a residency requirement. Some argue that a local residency requirement would be struck
down under the standards set forth
by Bechtel v. FCC, (See footnote 63) discussed below. Some point out that a residency
requirement is incompatible with a
five- to ten-station national ownership cap. (See footnote 64)
34. Decision. We continue to be concerned about the potentially preclusive effect of a
strict local “residency” requirement and
do not believe that local sources are the only valuable sources of information and
service. Nonetheless, this service is intended
to respond to the highly local interests that are not necessarily being met by full-power
stations. Furthermore, since LPFM will
be a noncommercial educational service, we cannot rely on commercial market forces and
business incentives to ensure that
local needs are fulfilled. Given the small coverage of LPFM stations, and our intention
that the particular needs and interests of
these small areas be served, local familiarity is more significant than it might be for a
station serving a larger area and population.
We thus conclude, after consideration of the comments and on further reflection, that the
disadvantages of imposing a
requirement that applicants be community-based are outweighed by the benefits to be gained
by maximizing the likelihood that
LPFM stations are operated by entities grounded in the communities they serve.
Accordingly, for the initial and subsequent
windows opened within two years after the first filing window for LPFM service has been
opened, all LPFM applicants must
be based within 10 miles of the station they seek to operate. This means that the
applicant must be able to certify that it or its
local chapter or branch is physically headquartered, has a campus, or has 75 percent of
its board members residing within 10
miles of the reference coordinates of the proposed transmitting antenna. We chose the
10-mile distance as proportionate to
most stations’ likely effective reach. We are concerned that a larger distance, in
many areas of the country, could lead to
ownership outside the bounds of the station’s real community and the people they will
actually serve. We are concerned that a
smaller area would too severely and unduly restrict the opportunities presented by LPFM.
An organization providing public
safety radio services will be considered community-based in the area over which it has
jurisdiction. (See footnote 65) Beginning
two years after the first window for LPFM service has been opened, non-local applicants
will be eligible to apply in subsequent
windows for those classes of stations pursuant to public notices issued by the Mass Media
Bureau. By this approach, we intend
to make it more likely that local entities will operate this service. If no local entities
come forward, however, we do not want the
available spectrum to go unused.
35. We do not find convincing the argument made by some commenters that imposition of a
local residency eligibility
requirement here would pose the same legal problems as the “integration of ownership
and management” factor formerly
employed as a comparative criterion in the commercial broadcast service. While that
comparative criterion was overturned as
arbitrary and capricious in the Bechtel case, (See footnote 66) that case did not
invalidate a preference for locally based
applicants per se. Rather, it rejected a preference for a particular form of business
organization -- in which station owners
worked more than a certain number of hours per week at their station -- that had not been
shown to provide superior service
even though the preference had been used for many years. The preference for local
licensees here, in contrast, rests on our
predictive judgment that local entities with their roots in the community will be more
attuned and responsive to the needs of that
community, which have heretofore been underserved by commercial broadcasters. We believe
that local residence should carry
particular weight here because we envision LPFM as a uniquely local service designed to
serve local community needs. We
note that while the court invalidated the integration criterion in the Bechtel decision,
it recognized that an applicant who is
familiar with the community is likely to be aware of its special needs. (See footnote 67)
36. Furthermore, we believe that local roots are particularly important in a noncommercial
educational service like LPFM. As
noted above, we cannot rely on commercial market forces to ensure that LPFM licensees are
responsive to local needs
because they will be noncommercial entities providing noncommercial program services.
Indeed, Congress and the Commission
have long recognized the unique role played by local entities in providing noncommercial
educational programming, and we
have favored local entities in providing other noncommercial educational services. (See
footnote 68)
37. Finally, we do not believe that our preference for local applicants here raises the
concerns voiced by the court in Bechtel.
The court was concerned in Bechtel that the integration preference elevated quantitative
factors – the number of hours the
station owners promised to work at the station – over arguably more important
qualitative factors such as broadcast experience
and established local residence. In contrast, the community-based requirement that we
adopt today does not rest on
quantitative factors and is not based on promises of future conduct. Rather, we are
adopting a simple, straightforward
requirement that applicants be based in the local community. In addition, a primary
concern underlying the court’s decision was
that there was no obligation for a successful applicant in the commercial broadcast
service to adhere to its integration proposal,
and there was no evidence indicating the extent to which licensees had done so in the
past. In contrast, LPFM licenses will not
be transferable, so we can be assured that a local entity that is awarded the license will
continue to operate the station. For
these reasons, we do not believe that the community-based requirement that we adopt today
suffers from the problems
identified by the court in the Bechtel decision.
1. National Ownership Limits
38. Background. In the Notice, we also sought comment on the issue of a national multiple
ownership cap. In particular, we
asked whether a limit of five or ten stations nationally would provide a reasonable
opportunity to attain efficiencies of operation
while preserving the availability of the stations to a wide range of applicants and their
essentially local character.
39. Comments. Comments on this issue are wide-ranging in their opinions. Some groups favor
an absolute nationwide
one-station-per-owner limit, arguing that a one-station-per-entity cap would distribute
the low power stations as widely as
possible and create the opportunity for the most diverse ownership. (See footnote 69) The
Civil Rights Organizations “disagree
in the strongest terms” with the idea that a low power licensee could hold more than
one license. (See footnote 70) UCC, et al.,
states that the Commission’s belief that economies of scale from national ownership
will improve service is especially
ill-founded. (See footnote 71) It similarly exhorts us to disallow “agreements”
between low power stations. (See footnote 72)
Some commenters support a less strict national cap, arguing that some national cap will
promote greater diversity in the service,
but that a one-per-owner limit is excessively restrictive. (See footnote 73) Several
commenters agree with the Commission’s
suggested range of five to ten stations, nationally. (See footnote 74) Finally, some
groups oppose any type of national cap. The
NAB does not believe that a national ownership cap is allowed under the 1996 Act, and
believes that common ownership will
improve efficiency in the service. (See footnote 75)
40. Decision. We are adopting a staged rule, which will initially foster diversity by
disallowing any common ownership of
LPFM stations, but eventually permit the accumulation of additional stations where local
applicants fail to come forward. This
will increase the service available to the public and permit the efficiencies that can be
achieved by multiple ownership where
there is not an immediate local interest in operating a station. To achieve this, we will
require that for the first two years of
LPFM service, any one entity may own only one LPFM station. The two year-long period will
begin on the day that the first
LP100 filing window opens for applications. After the first two years, to bring into use
whatever low power stations remain
available but unapplied for, we will allow one entity to own up to five stations
nationally, and after the first three years of this
service, we will allow an entity to own up to ten stations nationwide.
41. In addition to ensuring the fullest use of LPFM spectrum in the long term, we believe
that this tiered system will balance the
interests of local entities, which we expect to be the first entrants in this service, and
national noncommercial educational
entities, which may be interested in additional local outlets to increase their reach and
to achieve certain efficiencies of
operation. We note the attribution exception for national or other large entities with
local community-based chapters, discussed
below in the attribution section, which will allow the local chapters to apply as
individual entities and thus not be constrained by
this national ownership provision.
42. In the Notice, we tentatively concluded that Section 202 of the Telecommunications Act
of 1996 (the 1996 Act) (See
footnote 76) eliminating national multiple ownership restrictions for existing full power
commercial stations does not apply to a
new broadcast service. Given our decision to limit LPFM to noncommercial educational
broadcasters, Section 202 clearly
does not apply to LPFM and we need not discuss this issue further. (See footnote 77)
1. Local Ownership Limits
43. Background. In the Notice, we proposed to prohibit entities from owning more than one
LPFM station in the same
community. We were concerned that it would be difficult to achieve wide new entry into the
broadcasting market and enhance
diversity if more than one low power station in an area were under common control. At the
same time, we sought comment on
whether such a restriction would inappropriately deny to LPFM licensees the efficiencies
achievable through multiple
ownership, and on what cooperative arrangements might facilitate the development of LPFM
service without unduly diluting its
benefits. We also sought comment on the appropriate definition of “market” or
“community” for the purposes of LPFM service.
44. Comments. Many commenters agree strongly with the Commission’s proposal that LPFM
ownership should be limited to
one station per community. (See footnote 78) They argue that allowing multiple ownership
in a local area would reduce the
number and diminish the diversity of new entrants. Most contend that the demand for
stations from local owners will be plentiful
and that there will be no need to allow outside owners to own low power stations. (See
footnote 79) The NAB opposes the
proposed ban on common local ownership, saying that common ownership leads to increased
efficiencies. (See footnote 80) A
few commenters address the issue of the definition of “community” for the
purpose of determining the limitations of local
ownership but none offered specific alternative definitions. Some commenters expressed
concern that the current Commission
definition of a “community” is ambiguous and therefore subject to inequitable
application. (See footnote 81)
45. Decision. We will restrict local ownership and allow one entity to own only one LPFM
station in a “community.” We
concur with those commenters who expressed concern over the potential for diminution of
diversity in ownership if one entity
were allowed to control more than one station in their community. The comments opposing
the restriction seem directed to and
more appropriate in the context of the proposed 1000 watt service, which could have
operated commercially. The primary
benefit of local multiple ownership, increased efficiency, is less compelling with respect
to LP100 and LP10 noncommercial
educational stations, particularly as compared to the benefit to a community of multiple
community-based voices. As noted
above, we use the term community in this Report and Order to refer to the very small
population group that makes up a
station’s potential audience. For purposes of the local ownership limits, we will
require that no entity own or have an
attributable interest in two or more LPFM stations located within 7 miles of each other.
That is, to comply with our local
ownership limits, the antennas of commonly-owned stations must be separated by at least
seven miles. We believe seven miles
is appropriate given the approximately 3.5 mile signal reach of LP100 stations. Although
the signal reach of LP10 stations is
smaller, for the sake of simplicity we will apply the seven-mile ownership separation to
both classes of service.
46. In the Notice we noted that Section 202 of the 1996 Act permitted significant local
multiple ownership of full power
commercial radio stations but questioned whether this standard would apply to a new low
power service. Our decision here,
however, to limit LPFM stations to noncommercial educational service renders this question
moot. As discussed above
regarding the national multiple ownership issue, Section 202, by its terms, does not apply
to noncommercial stations.
47. We note that the attribution exception for local chapters of national entities,
discussed in the next section, will allow local
chapters to apply as individual entities and thus avoid the bar that the national
ownership rules would otherwise impose.
1. Attribution
48. Background. Given the significance we have accorded the ownership of LPFM stations,
the strict cross- and
multiple-ownership rules and the community-based eligibility and selection criteria we are
adopting, determining who “owns” or
constitutes a low power radio applicant or licensee is critically important. In the
Notice, we sought comment on what interests
or relationships should be attributable in this regard.
49. Comments. Comments on attribution vary widely. Some commenters express concern that if
the existing attribution rules
were applied to these stations, some entities with large national organizations and small
chapters would be unable to hold
multiple licenses even though they maintain a local presence and would provide
community-oriented programming. (See
footnote 82) Other commenters propose that attribution rules be waived in the case of
accredited educational institutions, so that
they can hold a full power station and also an LPFM station. (See footnote 83) Amherst
argues that it should be illegal for a
subsidiary, affiliate, agent or franchisee of any institution holding a broadcast license
to acquire an LPFM license. (See footnote
84)
50. Decision. We will apply rules similar to the existing commercial attribution rules to
determine a licensee’s compliance with
the ownership limits set forth above. Because many of the entities that will hold LPFM
licenses will be non-stock corporations
(or other non-stock entities), we will attribute the interests of the applicant, its
parents, its subsidiaries, their officers and
members of their governing boards. If an entity that holds an LPFM license does have
stock, then the existing attribution rules
will apply and voting stock interest of 5% or more will be attributable unless the
investor is passive in nature, in which case
voting stock interests of 20% or more will be attributable. Partners and non-insulated
limited partners are attributable, as are
officers and directors. Non-voting stock and debt are not attributable unless they satisfy
the “equity-debt-plus” standards set
forth in our recent attribution order. (See footnote 85) Thus, for example, if a
full-power broadcaster in a community were to
invest in an LPFM licensee in that same community and the investment accounted for more
than 33% of the LPFM’s total
capitalization, the investment would be attributable and would violate the cross-ownership
ban discussed above. Similarly, if a
director of the same full power broadcaster were to act as an officer of the LPFM, the
director would be attributed with both
stations and would violate the ban. Consistent with the existing commercial attribution
rules, (See footnote 86) however, an
exception will apply to certain officers and directors of the parent of an LPFM applicant
or licensee. Such an officer or director
may hold otherwise attributable interests in a broadcast licensee or other media entity
subject to our ownership rules without
making the LPFM applicant ineligible, provided the duties and responsibilities of the
officer or director are wholly unrelated to
the LPFM station and the officer or director recuses himself or herself from consideration
of any matters affecting the LPFM
station. (See footnote 87) This exception will avoid making ineligible entities that will
serve the purposes of this service well, such
as universities or schools, which may have large and diverse board membership, while
protecting against control of an LPFM
licensee by ineligible media owners. For the same reason, in the LPFM context we will
extend the exception to officers and
directors of the LPFM applicant or licensee itself, if that entity is a multifaceted
organization, such as a university, and the duties
and responsibilities of the officer or director are wholly unrelated to the LPFM station
and the officer or director recuses himself
or herself from consideration of any matters affecting the LPFM station. (See footnote 88)
We emphasize that these exceptions
are narrow in scope. An individual holding an attributable media interest may not act as
an officer of the LPFM station, nor
function in any other attributable role.
51. We will, moreover, include an attribution exception for local chapters of national or
other large organizations. In the event
that a local chapter can demonstrate that it: (1) is separately incorporated, and (2) has
a distinct local presence and mission, the
local chapter can apply for a license in its own right and the national entity’s
“ownership” will not be attributed to it. In order to
meet this standard, the local entity must be able to show a significant membership within
the community, as well as a local
purpose that can be distinguished from its national purpose. For example, the general
purpose of raising awareness of the toxic
waste problem in the United States would not suffice, but raising awareness of the toxic
waste problem in particular local areas
would meet the local purpose standard.
1. General Character Qualifications and Unlicensed Broadcasters
52. Background. In the Notice, we generally proposed to apply the same standards for
character qualification requirements to
all LPFM broadcasters as we do to full power broadcasters. The Commission asked if
commenters saw any reason to
distinguish between full and low power radio licensees for this purpose. In addition, we
sought comment on whether to
disqualify unlicensed broadcasters who once violated or who still are violating Commission
rules. We sought comment on
whether the Commission should adopt a middle ground and accept applications from parties
who have broadcast illegally, but
who either (1) promptly ceased operation when advised by the Commission to do so, or (2)
voluntarily ceased operation within
ten days of the publication of the Notice in the Federal Register.
53. Comments. The National Lawyers Guild and the Civil Rights Organizations both argue for
amnesty for unlicensed
broadcasters. (See footnote 89) Many individuals insist that without radio
“pirates,” LPFM would not have been created. (See
footnote 90) Others, such as Amherst and UCC, et al., support the middle ground set forth
in the Notice, saying that it is most
fair to the interests of future low power broadcasters and to the public. (See footnote
91) The Alliance for Community Media
also supports the Commission’s proposed compromise. (See footnote 92) Many commenters
believe that anyone who has
operated illegally should not be eligible for a license. NAB believes that because
“pirate” broadcasters operated illegally, they
should not be excused or granted amnesty. (See footnote 93) Some object to restricting
parties with an interest in a broadcast
station from owning an LPFM station, but allowing “pirates” to own them. (See
footnote 94)
54. Decision. We have decided, as we proposed, to apply the same character qualification
requirements to low power station
licensees as we currently apply to full power licensees. The Commission’s character
policy is underpinned by our interest in a
licensee’s truthfulness and reliability. We have a critical need to ascertain whether
a licensee will in the future be forthright in its
dealings with the Commission and operate its station in a manner consistent with the
requirements of the Communications Act
and the Commission’s rules and policies. (See footnote 95) No commenter showed a
reason to distinguish between full and low
power broadcasters on this basis, and we do not believe one exists.
55. The most significant specific question that character concerns raise in the context of
this proceeding, as discussed in the
Notice, is how past illegal broadcast operations reflect on that entity’s proclivity
“to deal truthfully with the Commission and to
comply with our rules and policies,” (See footnote 96) and thus on its basic
qualifications to hold a license. We are persuaded to
adopt our original proposal and accept a low power applicant who, if it at some time
broadcast illegally, certifies, under penalty
of perjury, that: (1) it voluntarily ceased engaging in the unlicensed operation of any
station no later than February 26, 1999,
without specific direction to terminate by the FCC; or (2) it ceased engaging in the
unlicensed operation of any facility within 24
hours of being advised by the Commission to do so. Applicants will be required to make
such certifications as part of their
applications for an LPFM station. Such certifications will be made with respect to the
applicant as well as all parties to the
application ( i.e., any party with an attributable interest in the applicant). Submission
of false or misleading certifications will
subject the applicant to enforcement action including fines, revocation of license and
criminal penalties.
56. Contrary to some commenters’ arguments, this rule does not unconstitutionally
infringe on the First Amendment rights of
unlicensed broadcasters. (See footnote 97) Disqualification under this rule is based
solely on lack of compliance with statutory
and regulatory requirements. All parties should note, however, that as licensed
broadcasters, ignorance, whatever its cause, is
not considered an excuse for violation, and full compliance with our rules will be
required. Moreover, as implied by the
provisions of the Notice, the illegality of unauthorized broadcasting must now be presumed
to be well-known, and any
unlicensed broadcast operation occurring more than 10 days after the Notice was issued
will make the applicant ineligible for
low power, full power, or any other kind of license and will be subject to fines, seizure
of their equipment, and criminal
penalties.
A. Technical Rules
1. Spectrum for Low Power Radio
57. Background. In the Notice, the Commission stated that it did not intend to allocate
new spectrum for a low power radio
broadcasting service. The utilization of new spectrum would require listeners to purchase
new equipment to receive the service,
which would significantly delay the benefits of the service to the public. We proposed to
authorize low power radio stations
within the FM band only. This determination was based partly on the extent of congestion
within the AM band, with numerous
existing stations experiencing significant interference. Furthermore, we recognized that
low power AM stations were capable of
causing significantly higher levels of interference as a result of AM signal propagation
characteristics. With regard to the use of
the FM band, we concluded that the large number of existing FM stations precluded us from
designating any specific
frequencies for LPFM service, as no such channels are available throughout the country.
Thus we sought comment on whether
we should allow LPFM stations to operate throughout the entire band or restrict the
reserved portion of the FM band
(Channels 201-220) for noncommercial educational (NCE) stations. We also contemplated that
low power radio stations
would desire to use auxiliary broadcast frequencies, where available -- for example, for
studio-to-transmitter links and
transmissions of remote broadcasts -- and sought comment in this regard.
58. Comments. No commenters specifically supported the allocation of new spectrum for the
proposed service. (See footnote
98) Many commenters agreed that existing interference within the AM band and the relative
complexity of AM facilities should
preclude consideration of a low power AM service. (See footnote 99) Some commenters,
however, argue that an AM low
power station should be an option in areas where the FM spectrum is too crowded to permit
new stations. With regard to the
FM band, most commenters support the view that the reserved band should continue to be
reserved for NCE use only.
However, NPR, CPB and several other commenters are particularly concerned that the
introduction of numerous new stations
in the reserved band would potentially increase interference to existing stations,
especially in areas beyond their protected
contours. (See footnote 100) At the same time, other commenters expressed the desire to
allow NCE low power stations
throughout the FM band. (See footnote 101)
59. Decision. We will authorize low power radio stations throughout the FM band, where the
stations will fit, but not in the AM
band. Although FM band crowding may preclude or limit LPFM opportunities in certain
markets, we are not persuaded that
the creation of an AM low power radio service is warranted. Likewise, we acknowledge the
concerns of CPB and NPR about
the current “crowding” within the reserved band. However, we note that we are
adopting minimum distance separations
between LPFM and full-service stations based upon the assumption that full service
stations operate with maximum height and
power for their class. Therefore, an LPFM station would generally provide greater
protection to stations operating in the
reserved band than that afforded to them by other full service stations, for which station
facilities are spaced more closely on the
basis of the contour protection methodology. (See footnote 102) Because LPFM stations will
be licensed throughout the FM
band, they will not be concentrated in the reserved portion of the FM spectrum. We note,
however, that LPFM stations,
regardless of their location in the FM band, are reserved to qualified NCEs. We will apply
the same interference protection and
other technical standards for LPFM operations in the reserved and nonreserved bands. This
will facilitate application
processing and uniform LPFM technical operating requirements.
60. In view of their relatively smaller service areas, we believe that most LPFM stations
will co-locate program origination and
transmission facilities. As a result, these stations would not require
studio-to-transmitter links (STL) between these facilities.
However, we will not foreclose LPFM operators the use of broadcast auxiliary frequencies
used by full-service radio stations
for this purpose. LPFM stations may also desire to air programming relayed from a remote
location, such as an athletic event,
or in connection with news gathering. Generally, we will permit entities authorized to
operate LPFM stations to use remote
pickup frequencies and radio broadcast auxiliary frequencies in the manner in which
full-service stations use these frequencies,
pursuant to the technical rules and procedures given in Subparts D and E of Part 74 of our
rules. However, we will require that
LPFM operations on auxiliary frequencies be secondary to that of full-service broadcast
stations and other primary users, given
the congestion of frequency use in some locales. We note that TV auxiliary frequencies are
licensed to low power TV stations
on this basis. (See footnote 103) An entity seeking to operate an LPFM station may apply
for broadcast auxiliary license only
after it has been authorized to construct the LPFM station. (See footnote 104)
1. LPFM Spectrum Rights and Responsibilities
61. Background. In the Notice, we raised issues regarding the spectrum priority of the
contemplated classes of LPFM service.
We recognized that our resolution of these issues would affect where LPFM stations could
locate and the stability of their
operations. Additionally, LPFM interference protection rights and responsibilities could
affect existing and future FM radio
service. The Notice proposed a 1000-watt primary service and a 100-watt secondary service.
It sought comment on a
10-watt class of LPFM station that would be secondary to all other FM radio services. As
proposed, LP100 and LP10
stations would not be permitted to interfere within the protected service contours of
existing and future primary stations and
would not be protected against interference from these stations. We sought comment on
whether LP100 stations should be
permitted to select channels without regard to interference received and on the extent to
which LP100 stations should protect
FM translator and booster stations.
62. Comments: Given our decision not to create a 1000-watt LPFM station class, this
summary is limited to the issue of
spectrum priorities for LP100 and LP10 stations. The comments were divided on whether LPFM
stations should have a
primary or secondary regulatory status. Several commenters supported primary status for
all LPFM stations, mainly to help
ensure their survival. (See footnote 105) The ACLU of Massachusetts believes that all LPFM
stations should be primary, but
should be willing to accept higher than normal amounts of interference. (See footnote 106)
The Community Broadcasters
Association supported primary status for all LPFM stations as a way to open capital
markets for these stations. (See footnote
107) Some commenters supported a modified form of primary status for LPFM. Amherst
Alliance supported a status that
would not permit LPFM stations to “bump” other stations, but would also protect
LPFM stations from being “bumped.” (See
footnote 108) Community Broadcasters commented that LPFM stations should be given primary
status with respect to analog
stations, but have a secondary status with respect to digital radio stations. (See
footnote 109) Other commenters, including some
broadcast licensees, supported a secondary status for LPFM stations. (See footnote 110)
Big City Radio, Inc., for example,
stated that LPFM stations should not be permitted to block the relocation of full-power
stations forced to relocate their
transmitter sites. (See footnote 111) Mississippi Valley Broadcasters, LLC commented that
LPFM stations should be given the
same secondary spectrum priority as FM translator stations. (See footnote 112) According
to the Association of Federal
Communications Consulting Engineers, LP100 stations should be secondary and not be
permitted to displace FM translator
stations. (See footnote 113) Aaron Read commented that Class D FM stations should be
secondary to LP100 stations because
of their higher power, but that microradio stations should be secondary to Class D. (See
footnote 114) Jeffrey Richman, chief
operator of a Class D station, commented that Class D licensees should not be secondary to
LPFM licensees. (See footnote
115)
63. Decision. In crafting interference protection rights and responsibilities for an LPFM
service, we seek to balance our vital
interest in maintaining the technical integrity of existing radio services with our desire
to create a supple and viable
community-oriented radio service. First and foremost, we must require that new LPFM
stations protect radio reception within
the service areas of existing full-service stations, as well as the existing services of
FM translator and booster stations. Second,
LPFM stations, with their much smaller service areas and fewer service regulations, should
not prevent FM stations from
modifying or upgrading their facilities, nor should they preclude opportunities for new
full-service stations. Additionally, LPFM
applications will be required to protect vacant FM allotments. Subject to these
constraints, however, we want to foster a stable
and enduring LPFM service. Once an LPFM station is built and operating, we wish to permit
it to continue operating on its
channel, wherever possible, as the radio environment changes around it. We want to
minimize, to the extent possible, the
situations in which we would require an LPFM station to change its channel or cease
operating. This measure of stability, we
believe, would assist LPFM station applicants or operators in obtaining financing to
construct and operate stations and to better
serve their communities. It may also create an incentive for the operation of a first
local radio station in many communities or
radio service that would be responsive to other unmet needs. We believe the approach set
forth below appropriately balances
the above objectives.
64. Protection to existing FM radio services: Applicants for new or modified LP100 or LP10
facilities will be required to
meet minimum station separation distances to protect the service contours of authorized
commercial and noncommercial FM
stations of all classes, including Class D. In the same manner, they will be required to
protect the existing service of FM
translator and booster stations and LP100 stations. We will also require LPFM applicants
to protect full-service FM, FM
translator and LP100 facilities proposed in applications (for example, FM minor change
applications) filed before a public
notice announcing an LPFM application filing window. Applications filed after the release
date of an LPFM window notice will
not be protected against LPFM applications filed in that window. However, full-service
applicants will not be required to
protect the facilities proposed in LPFM applications. We believe this approach fairly
balances the interests of full-service and
LPFM applicants. LPFM station proposals to operate on channels 201-220 will also be
required to protect television stations
operating on TV Channel 6. Applicants for LP100 stations will not be required to protect
authorized LP10 stations or LP10
application proposals, given the relatively smaller service areas of LP10 stations. (See
footnote 116) Station separation
requirements for these various purposes are described in paragraphs 68-72 and 114 and the
separation distances are
presented in the tables in the attached rules.
65. The extent of interference protection from LPFM stations to existing FM, LPFM and FM
translator and booster service
generally will be that afforded by minimum station separation requirements. These were
designed to provide the same degree of
interference protection that full-service stations provide each other. (See footnote 117)
We have added a 20-kilometer buffer to
the separations for protecting co-channel and first adjacent channel full-service
stations. This buffer will help to protect FM
radio facilities that were modified or upgraded in a manner that would create a
short-spacing with an operating LPFM station.
LPFM stations will not be required to eliminate interference caused to FM stations by
their lawful operations. They will,
however, be required to eliminate interference caused by operations that violate the terms
of the station’s authorization or the
Commission’s Rules; for example, radiation of excessive emissions outside of the
station’s authorized channel. LPFM station
operators will also be required to respond to complaints of “blanketing”
interference ( see paragraph 113.). They will also be
subject to international agreements regarding the elimination of interference to primary
Canadian or Mexican broadcast stations.
Until these agreements are modified, we believe it is appropriate to apply to LPFM
stations the international provisions
applicable to FM translators, which operate at comparable power levels.
66. LPFM rights and responsibilities with respect to subsequently modified, upgraded or
new full-service FM stations.
We are not adopting for the LPFM service many of the regulations applicable to
full-service stations; for example LPFM
stations will not be required to have a main studio. LPFM stations also will service much
smaller areas than full-service stations.
For these reasons, we do not believe that an LPFM station should be given an interference
protection right that would prevent
a full-service station from seeking to modify its transmission facilities or upgrade to a
higher service class. Nor should LPFM
stations foreclose opportunities to seek new full-service radio stations. Accordingly,
operating LPFM stations will not be
protected against interference from subsequently authorized full-service facility
modifications, upgrades, or new FM stations.
Because we will not protect LPFM from future FM facilities, we will not require LPFM
applicants to meet minimum distance
separation requirements to protect their service areas against interference received.
However, as a guide to LPFM applicants,
the attached rules includes minimum station separation distances necessary to protect an
LPFM station’s 60 dBu contour.
67. We expressed our desire to provide a measure of stability to operating LPFM stations.
For this purpose, we will permit
LPFM stations to continue operating even though they would cause interference within the
protected service contours of a
subsequent authorized FM service, including new stations and facilities modifications or
upgrades of existing stations. In such
situations, the LPFM operator would decide whether interference received to its service
would permit the station to continue
operating on its channel. However, we must make one exception to this policy. FM stations
have a core responsibility to
service their principal communities. Therefore, we will not permit an operating LPFM
station to cause interference within a
commercial or NCE FM station’s 3.16 mV/m (70 dB) contour. This issue can only arise
in connection with a subsequently filed
full-service new station or modification application. If grant of such an application
would result in predicted interference within
the 3.16 mV/m (70 dBu) contour of the proposed station, the affected LPFM station will be
provided an opportunity to
demonstrate that interference is unlikely to occur within this contour due to, for
example, terrain shielding. If the LPFM station
fails to make a sufficient showing, it will be directed to cease operations upon the
commencement of program tests by the
commercial or NCE FM station.
68. We recognize that actual interference within the 3.16 mV/m contour might still be
possible where the LPFM station has
demonstrated that it is unlikely. In these circumstances, a complaint of actual
interference must be served on the LPFM station
and filed with the Commission, attention Audio Services Division. The LPFM station must
suspend operations within
twenty-four hours of the receipt of a complaint unless the interference has been
eliminated by the application of suitable
techniques and to the satisfaction of the complainant. An LPFM station may resume
operations only at the direction of the
Commission. If the Commission determines that a complainant has refused to permit the LPFM
station to apply remedial
techniques that demonstrably will eliminate the interference without impairment of the
original reception of the full-service
station, the licensee of the LPFM station will be absolved of further responsibility. As a
practical matter we believe that in many
cases involving FM station modifications or upgrades, interference to new or expanded
areas will be offset by the conservative
separation distances met by the LPFM station when it was initially authorized,
particularly because of the 20-kilometer
interference protection buffer.
1. Minimum Distance Separation Requirements
69. Background. The Notice tentatively concluded that minimum distance separation
requirements for LPFM stations would
provide the most efficient means to process a large number of applications while ensuring
the overall technical integrity of the
FM service. We proposed minimum spacings to protect full-service station operation on the
same channel, first-adjacent
channel and intermediate frequency (IF) channels. We proposed to exclude third-adjacent
channel protection and questioned
the need for second-adjacent channel spacing requirements. We noted that the use of a
contour overlap methodology could
significantly delay the implementation of the LPFM service because it would require
substantial preparation on the part of
applicants and the Commission and would increase the processing burden on the staff. The
Notice included spacing tables for
the proposed LPFM classes based on the interference protection ratios that underlie
full-service radio separations and the
assumption that stations operate at the maximum height and power for their station class.
We sought comment on the accuracy
of the specific values listed in these tables. In addition, we requested comment as to
whether alternate approaches, including
contour overlap methodology and/or more sophisticated terrain modeling programs, should be
used at a later time, based on
our initial experience in authorizing LPFM service.
70. Comments. No comments challenge any of the specific values listed in our proposed
minimum distance separation tables.
However, one commenter, Summit American, Inc. (Summit), suggests an alternate methodology
based upon a full service
station’s 44 dBu F(50,50) protected service contour, instead of the 60 dBu contour
that defines the protected service contours
for all NCE and many commercial stations. The 44 dBu contour is cited by Summit as the
“extent of listenable service for the
average listener,” based upon the comments filed by USADR, one of the proponents of
an in-band-on-channel digital audio
broadcasting (IBOC DAB) system. In support of the definition of service beyond that
protected by the Commission, Summit
cites the Commission’s FM translator interference rules which define interference as
affecting an area where there is reception
of “a regularly used signal. (See footnote 118) ” Although it does not calculate
distance separations, the North Carolina
Association of Broadcasters and the Virginia Association of Broadcasters (NCAB/VAB) echo
Summit’s concerns and argue
that our separation requirements should protect actual service areas beyond protected
contours. (See footnote 119) Several
commenters urged either the use of a contour overlap methodology or a combination of
contour overlap and separation
requirements in order to accommodate the licensing of additional LPFM stations. (See
footnote 120)
71. Decision. We recognize that a distance separation methodology will preclude new LPFM
stations in some areas. However,
we are not persuaded that the potential benefit of some additional stations is substantial
enough to warrant the preparation of
more complex and costly engineering exhibits based on contour protection and the resulting
delays in the authorization of
LPFM service. Therefore, we are adopting minimum separation requirements for the LPFM
service as the means of protecting
full service commercial and noncommercial educational stations. (See footnote 121) We also
adopt spacing rules to protect FM
translator stations and other LPFM stations, as well as a spacing table for LPFM stations
operating on Channels 201 through
220 with respect to protection of TV Channel 6. (See footnote 122) As we proposed in the
Notice, we will not establish
minimum separations between LPFM stations that operate two or three channels apart.
Special case spacing tables are also
being adopted for Puerto Rico and the U.S. Virgin Islands. Additionally, appropriate
spacings will be used for the
approximately 20 “grandfathered superpowered” stations operating in the reserved
band. (See footnote 123) These spacing
tables are set forth in the new rules, in Appendix A. LPFM applicants should be mindful of
the fact that the minimum separation
distances being adopted will not protect LPFM stations against interference from the full
service stations, but are designed to
prevent the LPFM station from causing interference to the protected service areas of
full-service FM and other protected
stations. However, as a guide to LPFM applicants, we are including in the rules a table
giving the minimum separations
necessary to avoid interference within the LPFM station service areas.
72. The minimum distance separation requirements that we adopt here for LPFM stations do
not apply to full-service stations
and FM translators. To prevent subsequently filed FM translator stations from causing
interference to existing LPFM stations,
we will expand the current FM translator interference protection rules to include a
requirement that previously authorized
LPFM stations be protected. As noted above, we will permit a full service station to
modify its facility in a manner that reduces
these separations to LPFM stations. However, in such cases we generally will not require
the LPFM station to cease operation.
Instead, the affected stations will have to bear any interference caused by facilities
changes, such as an FM transmitter site
move. However, so as to reduce the potential impact on the affected stations, the spacing
rules we adopt today include a 20
km “buffer” for co-channel and first-adjacent channel LPFM-to-full-service-FM
stations. This additional separation is included
for two reasons. First of all, we recognize that the FM band is not static. For example,
broadcast stations often change
transmitter sites to provide better service to their communities and service areas.
Same-station-class transmitter site moves are
generally less than 20 km from the original site. Therefore, inclusion of the 20 km buffer
spacing allows full-service stations
room to move while also reducing the potential impact on existing LPFM stations. Second,
and equally important, the additional
separation affords the LPFM station an increased likelihood that its operation would not
cause interference within a full service
station’s community of license. This additional 20 km separation will apply only to
the initial establishment of the LPFM station.
Subsequent site moves by the LPFM station would either need to meet this distance
separation requirement, or if the existing
spacing were already less than this amount due to a prior site move by a full service
station, the spacing could not be less than
the currently existing separation.
73. International Coordination Provisions. We are also adopting provisions for LP10 and
LP100 stations which lie within
320 km of the Canadian or Mexican borders, consonant with existing international
agreements between the respective
countries. We will apply the existing FM translator rule, 47 CFR § 74.1235, and current
international coordination procedures
to LPFM stations in these areas. (See footnote 124) In the attached rules, we include
distance separation tables that were
intended to ensure compliance with the appropriate international agreements. We will adopt
these tables to the extent that
foreign stations are provided the appropriate protection. We have also derived similar
tables for LP10 stations. We will only
accept LPFM proposals that meet these distances. Such proposals will be coordinated as
required by the pertinent
agreements. In addition, LP10 and LP100 applicants in the U.S. Virgin Islands should be
aware that international coordination
may be required with the British Virgin Islands in some instances.
1. Second and Third Adjacent Channel Protection
74. Background. In the Notice we sought comment on the interference protection criteria to
be used to govern the
authorization of low power radio services. We stated that low power stations would be
subject to existing co-channel and
1st-adjacent channel protections but that to the extent possible we were inclined to
authorize low power service without any
2nd- and 3rd-adjacent channel protection standards. (See footnote 125) We stated our
belief that a strong case could be made
for not requiring 3 rd-adjacent channel protection to or from any of the contemplated
classes of LPFM stations. We indicated
that such an approach would entail little risk of interference to existing radio service.
We noted that areas of potential
interference to a full power station would be very small and occur only in the immediate
vicinity of the low power transmission
facility. We further indicated that such interference would generally only occur if the
low power station were located at, or very
near, the outer edge of the full power station’s service contour where the full power
station’s signal is the weakest. We noted
that 3rd-adjacent channel protection was eliminated for certain grandfathered and
short-spaced full power stations in 1997.
(See footnote 126) On balance, we stated that creating opportunities for a new LPFM
service should outweigh any small risks of
interference to and from LP1000 and LP100 stations. (See footnote 127)
75. With regard to 2 nd- adjacent channel protection, we noted that
“grandfathered” short-spaced FM facilities were permitted
to modify their facilities without regard to 2nd- and 3rd- adjacent channel spacings
during the period from 1964 to 1987, and
from 1997 to the present. We indicated that no interference complaints were received as a
result of those modifications and
found that the small risk of interference was outweighed by improved service. Similarly,
we noted that we have been willing in
the past to accept small amounts of potential 2nd- and 3rd-adjacent channel interference
in the noncommercial FM service
where such interference is counterbalanced by substantial service gains. (See footnote
128) We sought comment on the state of
receiver technology and the ability of receivers to operate satisfactorily in the absence
of 2 nd-adjacent channel protection. We
also sought comment on the impact of eliminating 2nd- adjacent channel protection on the
possible conversion of existing analog
radio services to a digital mode, in particular with regard to in-band-on-channel (IBOC)
technology. In this regard, we noted
that one IBOC proponent, USA Digital Radio Partners, L.P. (USADR), suggested that
2nd-adjacent channel signals from
analog FM stations in the existing radio environment would not pose an interference threat
to its digital IBOC signal. (See
footnote 129)
76. Comments. Three technical studies of FM receivers were filed in response to the
Notice. These studies were: 1) FM
Interference Tests, Laboratory Test Report, Thomas B. Keller, Robert B. McCutheon,
Consumer Electronics Manufacturers
Association (CEMA), 1999, conducted under the auspices of National Public Radio (NPR),
CEMA and the Corporation for
Public Broadcasting (CPB) (CEMA study); 2) Technical Studies and Reports filed by the
National Association of
Broadcasters (NAB study); and 3) Receiver Evaluation Project conducted by Broadcast Signal
Lab, LLP for the National
Lawyers’ Guild, Committee on Democratic Communications (NLG study). (See footnote
130) The Commission’s Office of
Engineering and Technology also completed a study of FM receivers that was placed in the
record of the proceeding (OET
study). (See footnote 131) In addition, NAB and CEMA filed supplementary technical
information in their reply comments and a
Technical Analysis of the Low Power FM Service by Theodore S. Rappaport (August 26, 1999)
was submitted by the
Media Access Project as part of its replies (Rappaport study).
77. CEMA Study and Comments. CEMA states that the purpose of its study is to document the
sensitivity of consumer FM
receivers to interference from other FM band signals. CEMA tested 16 consumer receivers,
including 5 automobile radios, 5
“Home Hi Fi” tuners or receivers, 3 portable stereo systems, 2 portable radios
and one “Walkman” radio. These receivers
were tested under a number of conditions including co-channel, and 1st-, 2nd-, and 3rd-
adjacent channel interference. CEMA
asserts that its tests indicate that the FCC’s proposal to eliminate 2nd- and 3rd-
adjacent channel protections could result in
significant interference to current and future FM service and threaten the deployment of
future digital audio radio services. It
therefore recommends that the 2nd- and 3rd -adjacent channel (and intermediate-frequency
related) protections be maintained.
78. CEMA’s test results are as follows:
The current FCC co-channel desired to undesired (D/U) signal protection ratio of 20 dB
results in an average audio
signal-to-noise (S/N) ratio of 24 dB. To achieve what CEMA regards as the desired target
audio quality level, i.e., 45 dB, an
additional 22 dB of protection is needed. (See footnote 132)
The current FCC 1 st-adjacent channel protection ratio of 6 dB results in an average S/N
ratio of 36 dB. To achieve the 45 dB
S/N level, an additional 11 dB of protection is needed. Tests also show potential
analog-to-digital interference.
The current 2nd-adjacent channel protection ratio of -40 dB results in an average S/N of
28 dB, while at a D/U ratio of –30
dB the average S/N ratio is 35 dB.
The current 3rd-adjacent channel protection ratio of -40 dB results in an average S/N of
36 dB. Based on this finding, CEMA
argues that the 3rd-adjacent protection should be maintained.
Intermodulation tests show that the current intermediate frequency (IF) protection
requirements are required to avoid both IF
interference and local oscillator interference. (See footnote 133)
6. NAB Study and Reply Comments. As part of its comments, NAB submitted a technical study
of FM receivers. In addition,
it provided extensive tabular and geographical data illustrating what it believed would be
the impact of various LPFM
operations on existing FM broadcast service. NAB states that the receiver study was
conducted to determine the susceptibility
of modern FM receivers to co- and adjacent-channel signals and to determine the potential
for interference to existing FM
stations should a new low power FM service be authorized. NAB tested a total of 28 FM
radios. This sample included 8
automobile, 5 component, 5 portable, 5 personal and 5 clock radios. In its reply, NAB
argues that its sample is the only one of
those used in the four studies that fairly represented all receiver categories.
7. In conducting its study, NAB chose a 50 dB audio S/N ratio as its performance measure.
It considered interference to occur
when the audio S/N ratio was degraded to this level. For radios that could not attain a 50
dB audio S/N ratio in the absence of
an interfering signal, interference was judged to occur when the audio S/N ratio was
degraded by a factor of 5 dB. NAB’s test
results demonstrate that receivers are most sensitive to co-channel interference and are
progressively less sensitive to
interference as the spacing between the desired and undesired frequencies increases. Based
on its performance measure, NAB
indicates that 15 to 22 of the 28 receivers in its sample would experience interference
from signals on 3rd-adjacent channels at
the current -40 dB D/U protection ratio. (See footnote 134) NAB also indicates that 22 to
23 receivers in its sample would
experience interference from signals on 2 nd-adjacent channels. NAB therefore concludes
that FM receivers generally do not
perform up to the current FCC interference standards and that the Commission’s
assumptions that these restrictions could be
eliminated for LPFM stations are incorrect.
8. In its reply comments, NAB also criticizes the receiver samples used in the other
technical studies. It argues that only its
study tested five different categories of receivers and a full price range of receivers in
all categories. It also argues that OET and
CEMA did not test clock radios and OET did not test personal radios, while CEMA only
included one personal radio in its
sample. NAB further asserts that while NLG tested all categories, its sample was too small
to derive any general conclusions.
NAB notes that all of the studies agree that automobile radios and, in some cases,
component receivers, tend to be more
effective at rejecting adjacent channel interference than clock, personal and portable
radios. (See footnote 135) However, NAB
asserts that all of the studies confirm that modern FM receivers do not perform as well as
the existing FCC protection criteria
for 2 nd- and 3rd-adjacent channel interference assume.
9. NLG Study. The NLG study examined a sample of 10 consumer FM radios. These radios were
grouped in three broad
categories as follows: 1) 3 higher priced radios (generally above $150); 5 lower priced
radios ($20 to $150); and 3) 2 factory
installed car radios. Based on its test results, NLG observed that car radios and higher
priced radios performed “far better than
one would predict based on the FCC interference ratios” and that “substantial
signal strengths were required to cause 2nd, 3rd,
and 4th adjacent channel interference. (See footnote 136) It also observed that the
performance of lower priced radios tended
to “straddle” the FCC interference protection standards.
10. NLG indicated that it was difficult to establish a definition of unacceptable
interference, noting that its tests demonstrated
that even the best receivers showed measurable, often imperceptible, increases in
distortion in the presence of extremely low
level undesired signals. It stated while the traditional practice is to establish a
standard based on an absolute level of noise or
distortion, such as a 3% increase in distortion or a S/N ratio of 30 dB, actual FM
listening conditions are dependent on such
variables as reception conditions, baseline radio performance without interference, and
the various sounds and effects that
interference can create. NLG stated that these variables make it difficult to
scientifically derive a universal measure of
unacceptable interference. NLG indicated that in testing radios, it found that the
distortion and noise performance of each radio
exhibited a “transition zone” where the radio would suddenly fail to receive the
desired signal. It used these transition zones to
make comparisons between radios, between forms of undesired signal modulation, and between
interference from signals on
adjacent channels. (See footnote 137)
11. The NLG study’s findings are as follows:
More aggressive modulation of the undesired signal did not cause a significant increase in
interference and that this was
especially true for signals on 2 nd, 3rd, and 4th adjacent channels. Less costly radios
were more susceptible to modulation
induced interference than more costly radios.
The response of all radios tested for co-channel and first adjacent channel interference
matched or exceeded the FCC
interference protection ratios.
Higher priced radios tend to withstand 2nd-adjacent channel interference better than lower
priced radios. Higher priced radios
and car radios withstood undesired signal levels higher than the FCC interference
protection standards. The poorest performing
radios were susceptible to 2nd-adjacent channel undesired signal levels that were as much
as 50 dB lower than the levels that
affected the best performers.
3rd-adjacent channel interference was slightly less challenging to most radios than 2nd-
adjacent channel interference. Higher
priced radios and car radios tended to fare better than lower priced radios.
5. OET Study. The OET study examined four broad categories of FM receivers: 1) small,
inexpensive receivers with integral
antenna; 2) small, moderate-cost receivers with antenna connection; 3) dash-mount
automobile receivers; and 4) moderately
expensive audio component receivers. In the OET study, 21 FM receivers were tested. These
included 5 small, moderate-cost
receivers with antenna connections (portable and “boom-box” receivers), 7
automobile receivers, and 9 moderately expensive
audio component receivers (“component” or home stereo type receivers). No
inexpensive receivers with integral antennas were
selected for the test sample because of the difficulty of providing test signals at
accurately controlled levels to this type of
device. (See footnote 138) The OET study found that nearly all the receivers in the sample
appear to meet or exceed the current
40 dB 2 nd-adjacent channel protection requirement and to exceed the 3rd-adjacent channel
protection by a wide margin. The
OET study indicated that there was about an 8-10 dB improvement in overall performance
with regard to interference immunity
with regard to 3rd-adjacent channel signals as compared to 2nd-adjacent channel signals.
The study also investigated the effect
of reducing the maximum FM deviation on the interfering signal and found that a small
improvement in 2nd- and 3rd-adjacent
channel interference immunity can be expected for most receivers.
6. Rappaport Study. The Rappaport study (See footnote 139) analyzes the other research,
and concludes that LPFM will not
cause unacceptable levels of service to existing FM broadcast stations. Rappaport
indicates that the submitted technical studies
support elimination of 2 nd- and 3rd-adjacent channel protection for low power radio and
that the small additional interference
that would be induced by LPFM is miniscule in comparison to the already existing FM
interference levels. (See footnote 140)
Rappaport also asserts that there was a clear bias in some of the technical studies to
overstate potential LPFM interference. He
indicates, for example, that NAB omitted automobile radios (which make up over 20% of the
radios sold and over 44% of the
radios listened to by the public) from its LPFM impact study and made up a
“worst-case” radio based on measurements from
different radios. Spectrum studies are also included that, according to Rappaport,
indicate hundreds of LPFM stations may be
deployed at power levels between one and 100 watts and serving tens of millions of
listeners while having minimal interference
impact on tens of thousands of listeners at most.
7. Rappaport states that NAB’s and CEMA’s tests appear to be designed to show
how poorly FM receivers perform
compared with the FCC interference protection ratios. He argues that these protection
ratios were developed to ensure that
stations were not built too close together, thereby providing acceptable reception by
early generation of radios. He argues that
today’s receivers drift less, have more reproducible electrical characteristics and
better detection capabilities. He states that the
fact that modern receivers do not meet the FCC protection ratios while still providing
good consumer performance
demonstrates that the protection ratios are overly stringent. Rappaport argues that FM
receiver performance is based on actual
real world environment, consumer expectations, and design/cost tradeoffs, and has nothing
to do with how the FCC assigns
station licenses. (See footnote 141) Rappaport argues that studies show that consumers are
pleased with FM radios that have
much less protection immunity than assumed by the FCC protection guidelines, and thus LPFM
can be easily implemented
since LPFM will introduce only a small amount of additional interference.
8. Rappaport notes that the FCC regulations require that out-of-band emissions on the 1
st-adjacent channels be at least 25 dB
below the main carrier but that in practice they are 30 dB below this level. He therefore
suggests that if LPFM transmitters are
certified for proper operation as suggested, there is no reason to expect interference
except for blanketing conditions.
9. Rappaport indicates that the interference potential of LPFM stations is as follows:
LPFM Power
(Watts)
Interference Radius (mi.)
Interference
Area (sq. mi.)
Service Radius (mi.)
Service Area
(sq. mi.)
1
0.04
0.01
1.1
4.0
10
0.14
0.06
2.0
12.1
100
0.44
0.60
3.5
38.5
10. Rappaport also argues that several conditions must exist for interference to occur,
such as: the LPFM station must be at the
coverage fringe of the incumbent station; the listener only wishes to listen to a station
2 or 3 channels above or below the
LPFM station; and the listener is using a poor performing radio like a clock radio.
However, even in these circumstances,
Rappaport asserts that, in many instances, the listener may be able to eliminate the
interference by adjusting the position of the
clock radio or boom box for good reception. Rappaport further argues that the percentage
of people experiencing interference
from a low power station is much less (0.24% to 1.56%) than the people that would be
served by a low power station. (See
footnote 142)
11. Rappaport also criticizes several aspects of the receiver studies by NAB and CEMA. For
example, he indicates that
despite CEMA’s claims, its receiver sample is not representative of the population of
receivers in use. He also states that
neither NAB or CEMA weighted their results to take into account the high proportion of
listening (44%) that occurs in vehicles
and that this failure over-emphasized the poor performance of certain other radios.
Rappaport also does not believe that the
quality criteria selected were appropriate. He notes that NAB chose a quality threshold
that was impossible for the majority of
its receivers to meet. He states that this suggests either the performance metric was
unrealistic, or that there was an intentional
effort to select inferior radios. He argues that choosing a fixed quality threshold
creates testing and sampling problems.
Rappaport argues that in an academic setting, the design of NAB’s and CEMA’s
tests would be considered flawed and the
results from such tests would be disregarded. (See footnote 143) Rappaport also states
that none of the four tests gives a
complete picture of receiver performance because they all used only a limited range of
desired input signals.
12. He indicates that while it is difficult to compare the different receiver studies,
they demonstrate that car radios are much
more robust to interference and are typically designed to meet the FCC 2 nd- and 3rd-
adjacent protection ratio (-40 dB D/U
ratio). He indicates that other radios do not require this level of protection because,
unlike automobile radios, they do not
experience severe fading nor do they move rapidly towards an interfering signal.
13. Rappaport also criticizes NAB’s mapping study. He states that this study
seriously over-counted the number of people
potentially affected by LPFM interference by counting affected people multiple times,
using the worst possible receiver
performance, inventing a “worst radio,” and omitting interference from incumbent
FM stations. (See footnote 144) Finally,
Rappaport indicates that IBOC proponents’ concerns about 2 nd-adjacent channel
operation by LPFM are unwarranted.
14. Decision. We find that the record in this proceeding thus far, including the technical
data and other studies submitted,
supports a conclusion that any risk of interference from LPFM stations of 100 watts or
less is small and, on balance, is
outweighed by the benefits of this new service. We conclude that it is not necessary to
apply 3rd-adjacent channel protection
requirements to or from such stations. As discussed below, we believe that 100-watt LPFM
stations operating on 3rd-adjacent
channels will not result in significant new interference to the service of existing FM
stations. Nor do we believe such operations
are likely to have an adverse effect on digital IBOC signals. (See footnote 145)
15. In considering the issues relating to potential interference from LPFM operation, we
first observe that all of the technical
studies before us have certain limitations that make direct comparison of the study
results difficult. Most significantly, all of the
studies used different measures to determine when interference occurs and the quality of
service to be protected. This fact
explains somewhat the differences in the conclusions drawn by the various studies. (See
footnote 146) As NAB indicates, the
significant differences among the studies were not in the measurements or in the
performance of the radio receivers tested, but
rather in the criteria used to decide whether the effects of an interfering signal caused
harm to the desired signal. (See footnote
147) We generally concur with this assessment.
16. Both CEMA and NAB used an audio signal-to-noise criterion to define acceptable FM
service. (See footnote 148) CEMA
used a S/N value of 45 dB based on an earlier study by NPR. NAB chose a 50 dB S/N
criteria. NAB states that an audio
S/N of 50 dB is necessary for interference-free reception. (See footnote 149) NAB
indicates that an estimate of the appropriate
S/N can be made from the FCC co-channel desired-to-undesired (D/U) interference ratio of
20 dB. It states that the FCC
co-channel protection ratio of 20 dB should produce an audio S/N ratio of approximately 50
dB for monophonic reception.
(See footnote 150)
17. We do not find the audio S/N criteria suggested by either CEMA or NAB to be
appropriate interference criteria for
today’s FM radio service. FM radio stations provide stereophonic not monophonic
service. While a 20 dB D/U ratio yields a
monophonic audio S/N of about 50 dB, according to an earlier study by NAB, for
stereophonic transmissions, the 20 dB
protection ratio yields an audio S/N of only about 30 dB. (See footnote 151) While NAB and
CEMA may desire that FM radio
service be protected to higher levels of service, based on NAB’s earlier study and
the results of the technical studies before us
herein, we do not believe that the existing interference protection standards, e.g., the
20 dB co-channel interference
requirement, generally provides for protection to such levels.
18. We also believe that accounting for both stereo performance and the FCC’s current
interference protection standards
explains why many of the FM receivers tested did not meet the criteria chosen by CEMA and
NAB, or did exhibit
performance degradation higher than NAB’s and CEMA’s expectations. For example,
the majority of receivers (17 of 28)
chosen by NAB did not meet its 50 dB S/N criteria with no interference present and with
the “strongest” desired signal. (See
footnote 152) Similarly, CEMA reports that none of its sample receivers “came near
meeting the target S/N” of 45 dB at the
FCC’s co-channel standard of 20 dB. (See footnote 153) NLG, in its study, states that
“receiver performance data show that all
receivers produce some measurable increase in noise at undesired signal levels below the
FCC ratio reference levels.” We
therefore fail to see how 50 or 45 dB can be an appropriate measure when most radios do
not perform at this level, even in the
absence of any interference as was the case in NAB’s tests. We have no reason to find
that the vast majority of current FM
receivers do not provide satisfactory service to the public and therefore believe that a
lower value or measure of acceptable
performance would be more appropriate for interference purposes. We believe that this is
especially the case if we are to
consider all categories of FM receivers, including lower cost models, such as clock,
portable and personal units, as suggested
by some of the commenting parties.
19. Another limitation of the studies was the relatively limited sample of FM receivers
examined. The relatively small samples
examined in each of the studies makes it difficult to draw statistical inferences with
regard to the general population of FM
receivers. However, the studies do clearly indicate that current FM radios exhibit a wide
range of performance with regard to
audio reception quality and interference rejection. While a 50 dB, 45 dB, or even 40 dB
reception quality level, as suggested
by Rappaport, may be expected for certain types of radios, such as automobile radios and
home stereos, clearly from the data
presented these levels of performance are not the norm for other types of radios, such as
portable, personal and clock radios.
In addition, all of the studies found that automobile radios and home stereo/component
receivers tend to be more effective at
rejecting adjacent channel interference than clock, personal and portable radios. (See
footnote 154) Based on our examination of
the studies, we find that automobile radios and home stereo/component receivers generally
are able to provide -40 dB rejection
of 3 rd-adjacent channel signals and therefore generally will provide acceptable service
in the absence of 3rd-adjacent channel
protection. We also recognize that some poorer quality receivers may experience some
additional interference as a result of
eliminating the 3rd-adjacent channel protection for LPFM stations. We note, however, that
these classes of radio may also
experience some degree of interference from co- and 1st-adjacent channel stations
operating within the existing protection
requirements. We also believe that consumers generally understand that there are
performance differences among the classes of
radios and that they accept the fact that lower cost radios may provide more limited
service capabilities, as suggested by
Rappaport. We therefore believe that our decisions with regard to LPFM service should not
be constrained solely by the
performance limitations of lower cost radios any more than we should use those radios to
redefine existing FM radio service. In
this regard, we believe that good engineering practice suggests that evaluations of the
potential impact of new interference from
low power FM stations should not be based on either the worst or best performing radios.
20. The NAB study generally bases its analyses on median receiver performance, and the
CEMA study generally uses average
performance to describe its results. In addition, since the studies use different measures
of when interference occurs, it is
difficult to directly compare the test results. Nonetheless, we believe that there is
sufficient consistency in the study results to
support some decisions in this matter, particularly with regard to the need for
3rd-adjacent channel protection.
21. The OET and NLG studies generally conclude that FM receivers provide for adequate
rejection of interference on 2nd-
and 3rd-adjacent channels. (See footnote 155) The OET study, for example, finds that
nearly all receivers in its sample appear
to meet or exceed the 2 nd -adjacent channel protection and exceed the 3rd-adjacent
channel protection criteria by a
substantial margin, i.e., exceed the -40 dB criteria by 8 to 10 dB. (See footnote 156) On
the other hand, CEMA and NAB
argue that their studies show that these adjacent channel protections should be retained.
A careful review of CEMA’s results,
however, shows that CEMA’s median receiver provides about -40 dB of rejection of 3
rd-adjacent channel interference and
that the average 3rd -adjacent channel performance is about 3 to 7 dB better than
2nd-adjacent channel performance for its
sample. (See footnote 157) Similarly, while we question the validity of NAB’s
interference criteria, its test results also show 3
rd-adjacent channel performance to be substantially better than 2nd-adjacent (i.e., 8 to
10 dB) -- the same margin of
improvement as found in the OET study. (See footnote 158)
22. We also find that the area in which any additional interference would be likely to
occur from an LPFM station operating on
a 3 rd-adjacent channel at maximum facilities of 100 watts and antenna height of 30 meters
above average terrain would be
very small. For example, even using NAB’s median receiver performance test results
for its three “worst” FM radio categories,
i.e., clock, personal and portable, we find that the area where such receivers could
potentially experience degradation from
interference is small, generally 1 km or less from an LPFM antenna site. This interference
analysis is shown in the following
table:
23. LPFM Potential Interference Radius (See footnote 159)
Receiver Category
Desired Signal Level
-45 dBm
-55 dBm
-65 dBm
Clock
0.3 km
0.7 km
2.1 km
Portable
1.0 km
0.9 km
1.0 km
Personal
0.4 km
0.5 km
0.5 km
24. Further, we believe that this analysis provides a conservative estimate of actual
interference potential of LPFM given
NAB’s performance criteria and the fact that NAB’s sample included some of the
poorer performing radios among the four
studies. (See footnote 160) In addition, as pointed out by Rappaport and others, whether
interference in fact occurs to FM
listening is dependent on a number of factors, besides the performance of the FM receiver.
These include, among other things,
the actual reception conditions, such as the location and position of the radio, the
frequency and location of both the desired
and undesired stations, and the type of program material being transmitted and received.
CEMA notes, for example, that when
the desired signal is modulated with rock music the interference was masked in its 2 nd-
and 3rd-adjacent channel subjective
tests. (See footnote 161)
25. Accordingly, we find that 100-watt LPFM stations operating on 3 rd-adjacent channels
will not result in significant new
interference to the service of existing FM stations. Furthermore, we find that any small
amount of interference that may occur in
individual cases would be outweighed by the benefits of new low power FM service. With
regard to 2nd-adjacent channel
protection requirements, it appears that the risk of interference from LPFM signals on
2nd-adjacent channels may be somewhat
higher. We find that this would also be true with regard to LPFM stations at power levels
higher than 100 watts and antenna
heights higher than 30 meters. Therefore, we will retain 2nd-adjacent channel protection
requirements.
1. Other Technical Standards and Provisions
26. Background. In the Notice, we sought comment on which Part 73 technical operating
requirements for full-service stations
should be applied to LPFM stations. In general, most commenters stated that, although some
requirements must remain to
ensure a quality service, the LP100 and LP10 stations should be held to less stringent
requirements than full service stations.
While we do not want to overly burden LPFM operators, we nevertheless believe that the
technical rules set forth below
should apply to the LPFM stations. By doing so, we will not only facilitate technically
sound LPFM operations and the use of
available equipment, but will permit LPFM stations to engage in services such as those
obtained through the multiplexing of FM
subcarriers. There are some requirements applicable to full-service stations which we
believe can be relaxed or not applied.
Accordingly, we will apply certain rules to LP10 stations that apply to existing stations
that operate with ten watts transmitter
power output (TPO) or less. (See footnote 162) The following paragraphs set forth the
principal technical requirements and
provisions for LPFM stations. These technical matters were generally non-controversial to
parties who filed comments in this
proceeding. Other technical requirements for LPFM stations are given in the rules
appendix.
27. Power/Height restrictions. Several commenters expressed the desire to operate
facilities at heights in excess of those
specified as the maximum/minimum facilities for the class. This would enable stations to
use existing structures at sites where the
localized elevation is such that the 30 meter HAAT would be exceeded regardless of the
height of the structure. One
commenter, the Arkansas Broadcasters Association, believes we should impose strict maximum
height restrictions on LPFM
stations since, due to the nature of the Commission’s F(50,10) interference
prediction curves, equivalent 1 mV/m (60 dBu)
reference contours do not always guarantee proportionally sized interfering contours. (See
footnote 163) Although Arkansas
Broadcasters is correct in this regard, we are not persuaded that this is of sufficient
magnitude to warrant strict height
restrictions on LPFM stations. Rather, we will allow LPFM stations to exceed the
class-defined upper height restrictions as
long as there is an offsetting decrease in the station’s effective radiated power.
For this purpose, we will authorize equivalent
height and power combinations to produce the 60 dBu contour generated by the maximum and
minimum permitted facilities for
the LP100 and LP10 stations; e.g., the maximum LP100 facilities of 100 watts and 30 meters
produce a 60 dBu contour at a
distance of 5.6 km. (See footnote 164)
28. We recognize that computing a station’s HAAT requires access to terrain database
and numerous calculations. (See
footnote 165) Therefore, in order to streamline the application process, the staff will
utilize a computer program to calculate the
antenna HAAT based upon information provided by the LPFM applicant (the coordinates of the
proposed antenna, the site
elevation above mean sea level, and the antenna height above ground level (AGL)). If the
calculated HAAT is less than or equal
to 30 meters, the LPFM station will be authorized to operate with any ERP within the
maximum and minimum limits for its
class. (See footnote 166) If the HAAT is calculated to exceed 30 meters, the permit will
specify maximum and minimum ERP
values that would produce the reference 60 dBu contours. (See footnote 167)
29. Directional antennas. Under our current rules, full service FM stations may specify
directional antennas to avoid
interference to other stations. Such facilities are subject to several strict installation
and pattern requirements. (See footnote 168)
Processing these applications is staff intensive. Construction permits for directional
facilities generally contain numerous
conditions. Since we are relying on a minimum distance separation methodology –
rather than a contour-based approach -- to
provide interference protection, we see no need for stations to employ directional
antennas. Accordingly, to simplify applicant
requirements and facilitate application processing and ensure that service can be
implemented as expeditiously as possible, we
will not authorize directional antennas for LPFM stations.
30. Transmission standards. The Notice asked whether different transmission standards
should be employed for an LPFM
service; for example, whether the bandwidth could be reduced from 200 kHz to some smaller
value as a means of reducing the
potential interference from LPFM stations. To ensure technically sound station operations,
we have decided to apply to LPFM
several transmission standards presently in use for commercial and noncommercial
educational FM stations. In most cases,
these standards will be met through the use of type certified equipment without need for
further adjustment by the LPFM
licensee. LPFM stations will be required to adhere to the 200 kHz channel bandwidth
applicable to full service stations, as well
as the out-of-channel signal attenuation requirements in 47 CFR § 73.317, the center
frequency drift limits in 47 CFR §
73.1545(b), and the limits on modulation in 47 CFR § 73.1570(a) and (b). In addition,
LPFM stations may, at their option,
engage in monophonic or stereophonic broadcasting. LPFM stations may also transmit
additional information via inaudible
subcarriers during those periods when the audible FM signal is on the air.
31. Antenna polarization: We will permit LP10 and LP100 stations throughout the FM band to
use horizontally polarized,
vertically polarized, or circularly or elliptically polarized antennas, as desired by the
applicant. We note that vertical-only
polarized antennas have been used in the noncommercial educational FM service to protect
reception of TV Channel 6 for
nearly 15 years now, without adverse impact. This will afford LPFM stations a wider
selection of antennas for use at LPFM
stations. (See footnote 169)
32. Protection of AM radio radiation patterns: LPFM applicants should also be aware that
antenna structure construction
within 3.2 km (2 miles) of a directional AM station or 0.8 km (0.5 miles) of a
nondirectional AM station will subject the LPFM
station to the requirements of 47 CFR §73.1692. This section requires the affected AM
station to make before and after
measurements of its installation to insure that the new antenna structure does not
aversely affect the signal pattern through
reflections of the AM signal produced by the new structure. The LPFM applicant is
financially responsible for conducting the
measurements and any corrective measures that may need to be undertaken. The measurements
can be quite expensive to
conduct, and correction even more so. Therefore, we encourage LPFM applicants to locate
the antenna more than 3.2 km
from any directional AM station, or more than 0.8 km from any AM nondirectional station.
(See footnote 170)
33. Tower Height/FAA Coordination Requirements. Any proposal before the Commission that
specifies an antenna
supporting structure in excess of 61 meters above ground level is subject to the
Commission’s requirements for antenna
structure registration requirements. Certain lower structures located close to air
facilities are also subject to these requirements.
(See footnote 171) All structures subject to registration requirements must obtain an FAA
Determination of No Air Hazard for
the structure before the tower may be registered. In a letter dated June 1, 1999, the FAA
expressed some concern regarding
the impact LP1000 stations may have upon nearby air facilities. No specific questions were
raised regarding the lower powered
facilities. Since we are not authorizing an LP1000 service at this time, we will continue
determining compliance with our tower
registration requirements in the manner set forth above.
34. Blanketing Interference. For one year after the commencement of transmissions with new
or modified facilities, all FM
stations are required to take remedial action to resolve blanketing interference
complaints occurring within the immediate vicinity
of the antenna site. (See footnote 172) A station’s specific blanketing interference
radius is defined by our rules. (See footnote
173) The blanketing contour for an LP100 station would extend approximately 125 meters
from the transmitter site and a
10-watt LP10 blanketing contour would extend 39 meters. Thus, the blanketing area of
either type of station is very small. We
conclude that LPFM stations should be required to resolve blanketing interference
complaints in the same manner applicable to
full power stations. Although the potential for blanketing interference from LPFM stations
may be quite limited, affected parties
are entitled to relief from such interference caused by a new source of radiation, whether
it is a full-power commercial station or
a new low power community broadcaster. Accordingly, we will apply the requirements in §
73.318 to all LPFM stations. (See
footnote 174)
35. Potential Television Channel 6 Interference. Presently, noncommercial educational FM
applicants are required to
consider the impact of their operations on reception of television Channel 6, which
operates on a frequency band (82 to 88
MHz) just below the FM band (88 to 108 MHz) in accordance with the provisions of 47 CFR §
73.525. Determining the
affected interference area pursuant to this section usually requires complex calculations
and detailed contour studies. Given the
very limited potential for interference caused by LPFM stations, in order to simplify
processing and lessen the filing burden on
applicants, we will utilize a spacing table to protect TV Channel 6 stations. The values
given in the table utilize the protection
ratios of § 73.525 and worst case facilities for the TV Channel 6 and the LP10 and LP100
stations. (See footnote 175) On this
basis, we do not anticipate that interference will occur. However, we will require LPFM
applicants to correct any complaints of
interference caused to Channel 6 reception in accordance with our blanketing interference
requirements (as are Channel 6
complaints regarding full service stations). In most cases, this will require the
installation of simple filters on affected television
sets. LPFM applicants will not be required to coordinate their proposals with any
potentially affected Channel 6 television
station.
36. Radio Reading Services. Several radio reading services have expressed concerns about
interference from LPFM stations
to their service to persons who are blind or who have low vision. (See footnote 176)
Programming provided by radio reading
services is transmitted on subcarrier frequencies of a broadcast station, which are not
audible on a standard radio. As the
subcarrier frequencies are transmitted within the 200 kHz bandwidth of the broadcast
station, they receive the same protection
from interference as does the main broadcast programming. Thus, insofar as the transmitted
subcarrier signal is concerned,
there will be no increase in interference. With respect to subcarrier receivers used by
the radio reading service audience, the
Commission does not set technical standards for radio receivers. Thus, we cannot consider
whether additional interference
might affect SCA reception in the vicinity of an LPFM station, or whether different
receiver construction could reduce possible
interference. However, we note that the 20 km buffer between LPFM stations and co-channel
or 1 st-adjacent channel full
service FM stations adopted in this Order should afford additional protection to
subcarrier reception than was proposed in the
Notice. (See footnote 177)
37. Transmitter Certification . In the Notice, we tentatively concluded LPFM stations
should utilize only transmitters deemed
“type certified” by the Commission’s Office of Engineering and Technology
(OET) to ensure the integrity of the FM radio
spectrum. Type certification would prevent the use of transmitters with excessive
bandwidth or modulation, spurious emissions,
excessive power output, or insufficient frequency stability, which could cause
interference to other existing stations. A large
majority of commenters concurred with this conclusion. A few licensed amateur radio
operators felt that they should be exempt
from this requirement, asserting that many amateurs were capable of creating suitable
equipment. (See footnote 178) However,
we remain concerned about the significant potential for interference caused by non-type
certified transmitters, particularly given
the interference-protection standards we are adopting. Nor do we believe that type
certification of equipment by the
manufacturer will add appreciably to the cost of equipment for a low power broadcast radio
station. Accordingly, we will
adopt the certification requirement as proposed in the Notice. (See footnote 179) We
emphasize that the use of non-type
certified transmitters will not be tolerated. Use of non-type certified transmitters will
subject the licensee to enforcement action
including, but not limited to, fines.
38. Unattended Operation. We anticipate that many LPFM stations will be run as
“attended operations,” since the transmitter
sites will be located at the source of program origination. However, LPFM stations may
also be operated in “unattended”
mode. During these times, there may be no personnel at the studio or transmitter site to
monitor operation. LPFM stations that
will operate unattended will be required to advise the Commission by simple letter of the
unattended operation, and provide an
address and telephone number where a responsible party can be reached during such times.
The responsible party must be able
at all times to turn off the transmitter within 3 hours of receiving notice from the FCC
that the equipment is not functioning
properly. In addition, we encourage the use of monitoring equipment that can automatically
shut off the transmitter within 3
hours if a fault (such as operation at excessive power operation or center frequency
drift) occurs. (See footnote 180) Finally,
during periods when the LPFM station is not transmitting programming on its regular
channel, the transmitter must be turned off.
39. Station Logs. Station logs provide a mechanism for verifying proper operation of a
station, as they require the licensee to
examine the operation before making a log entry. Logging requirements for LPFM stations
will be minimal. The station log for
LPFM will contain only the following entries:
1) Daily observation of proper function of tower obstruction lighting (if required by
Section 17.47 of the Commission’s Rules);
2) Dates and a brief explanation regarding station outages due to equipment
malfunctioning, servicing or replacement;
3) Any operation not in accordance with the station license;
4) Receipt of weekly EAS (Emergency Alert System) test;
5) Name of person making the entry.
6. These minimal requirements will not impose any significant burden on LPFM licensees.
Except for any required daily tower
lighting checks, entries need only be made when necessary. Logs must be retained for two
years from the date of the last entry,
and station logs must be made available to FCC personnel upon request.
7. Environmental Requirements. As with any applicant for a Commission license, an LPFM
proponent will have to certify
compliance with the environmental requirements of Section 1.1307 of our rules. In order to
facilitate the preparation and
processing of LPFM applications, we will simplify the environmental compliance worksheets
included in the current FCC Form
301 to account for the low operating power of LPFM stations.
8. Radio Astronomy Installation Notifications. Low power FM broadcast stations will be
required to coordinate with and
provide protection to the radio quiet zones at Green, West Virginia and at Boulder,
Colorado, as is required for full service FM
stations by Section 73.1030. In addition, low power FM applicants in Puerto Rico will need
to coordinate with Cornell
University regarding the radio coordination zone on that island. This requirement is
necessary to ensure that research work at
these installations will not be disrupted. Because of the low power and antenna height of
LPFM stations, we anticipate that this
requirement will affect very few applicants. (See footnote 181)
A. Application Processing
1. Electronic Filing
9. Background. The Commission recently mandated the electronic filing of broadcast
applications after a transition period of six
months from the date that each form becomes available for filing electronically. (See
footnote 182) Likewise, we proposed in the
Notice to require that LPFM applications be filed electronically. (See footnote 183) We
stated that mandatory electronic filing
could speed the introduction of LPFM service by enabling the staff to process more quickly
and efficiently the large number of
LPFM applications that we expect to receive. In addition, we indicated that electronic
filing software could be designed to
assist applicants with technical issues related to their applications, such as determining
what frequencies are available based on
current information in the Commission's database. We requested comment as to whether
Internet access is sufficiently universal
to warrant mandatory electronic filing of LPFM applications.
10. Comments. Commenters that addressed the matter generally support the use of electronic
filing, but are divided as to
whether it should be mandatory. Metro Detroit Broadcasting Corporation (Metro) opposes
mandatory electronic filing on the
ground that it would disadvantage minority groups due to a “significant
race-gap” in Internet access. (See footnote 184) In
addition, Metro argues that permissive electronic filing would provide time for interested
parties to develop proficiency in using
an electronic system. (See footnote 185) Andrew Morris argues that electronic filing
should be required due to the threat of a
backlog of paper-filed LPFM applications that would have to be entered manually into the
Commission’s database. However,
several commenters express concern that electronic filing is untried and may delay the
introduction of LPFM service. The
Oklahoma and Texas Departments of Transportation comment that, based on their experiences
renewing licenses and
correcting addresses using the Commission’s Web site, an electronic filing system is
likely to be reasonably accessible and easy
to use. (See footnote 186) Several commenters urge that, regardless of whether electronic
filing is required, LPFM filing
procedures should be as simple and inexpensive as possible. (See footnote 187)
11. Decision. We anticipate that electronic forms will be made available via the
Commission’s World Wide Web site prior to
the opening of the first LPFM filing window. Based on our consideration of the record,
however, we will not adopt a
mandatory electronic filing system for LPFM application forms at this time. Rather,
assuming availability of the forms, we will
make electronic filing permissive for the first LPFM filing window, which we intend to
open for LP100 stations shortly after the
effective date of this Order. Whether electronic filing is permissive for the second
window that we anticipate opening for LP10
stations, as well as for any subsequent LPFM filing windows, will be resolved at a later
date and will depend on several factors,
including our experience with both electronic and paper filing during the first LPFM
window and the time that elapses between
the first and second windows.
12. We recognize that, as some commenters point out, there may be disparities among
potential LPFM applicants in terms of
Internet access and/or computer skills. We believe that making electronic filing
permissive at this time will accommodate
applicants that might be disadvantaged by mandatory electronic filing. We previously have
discussed the significant advantages
of a mandatory electronic filing system in terms of realizing savings and efficiencies. We
do not believe that electronic filing
would necessarily constitute an undue burden or expense for potential LPFM applicants, as
the costs of computer and modem
equipment continue to fall, and Internet access increasingly is becoming available at
minimal cost commercially and at public
institutions such as libraries. In addition, the Commission has made, and will continue to
make, great efforts to create a simple,
user-friendly electronic filing system. (See footnote 188) However, at present we are
determined to be cautious with the first
applications for a new service filed by applicants whose resources and familiarity with
Commission processes may be very
limited. We will reassess our electronic filing decision after our experience during the
first filing window. We can better
determine at that time whether the first filing window has provided a reasonable
opportunity for interested parties to understand
and arrange for Internet access and familiarize themselves with our Web site and
electronic filing system. We can then
determine whether the public interest benefits of mandatory electronic filing will
outweigh any difficulties encountered or
inequities expected, and decide whether electronic filing will remain voluntary or be
mandated for use by all.
13. Although electronic filing will be permissive, we strongly encourage applicants to
take advantage of electronic filing, and
expect that many will do so. The forms will be accessible to anyone with a computer and a
modem, without the need to
purchase any special computer software. (See footnote 189) The Commission’s software
will make filing more certain for
applicants by automatically notifying them of critical errors or omissions in their
applications, and allowing them to correct the
applications prior to submission. This software also will provide applicants with
immediate verification that their applications
have been received by the Commission. In addition, it will allow applicants to submit
amendments, make corrections to their
previously-filed applications, and submit narrative, explanatory exhibits. Furthermore, we
intend to design additional software
that will be available on the Commission’s Web site to assist interested parties in
making a preliminary determination as to
which frequencies are available for LPFM use, based on current information in the
Commission's database. Thus, LPFM
applicants using the electronic filing system also will have access to a form of automated
technical assistance in preparing their
applications.
1. Window Filing Process
14. Background. We proposed in the Notice to adopt a window filing approach for LPFM
applications, with short filing
windows of a few days each to “lessen the occurrence of mutually exclusive
applications and speed service to the public.” (See
footnote 190) The Commission recently substituted a uniform window filing procedure for
the various application procedures for
new commercial broadcast stations, and for major changes to existing stations. (See
footnote 191) Under this procedure, the
Commission announces by public notice a “window” or specific time period during
which applications may be filed. When the
window closes, the staff reviews the applications filed to determine whether any request
mutually exclusive authorizations and,
therefore, are subject to competitive bidding. Non-mutually exclusive applications are
processed in accordance with our
general procedures. Groups of mutually exclusive applications are identified by public
notice and proceed to auction. The
Commission also is considering substituting a window procedure for the two-step, cut-off
list procedures now in place for
full-service NCE broadcast applications. (See footnote 192)
15. In the Notice, we also asked for comment as to whether a first come-first served
process might serve the public interest
better than a window process by more effectively avoiding mutual exclusivity among LPFM
applications. (See footnote 193)
We speculated that electronic filing “might give us the capacity to ascertain the
precise sequence in which applications are
submitted by different parties.” (See footnote 194) Thus, applications conflicting
with ones filed “even a moment earlier” (See
footnote 195) might be rejected as unacceptable for filing, avoiding mutual exclusivity in
many cases. We noted a number of
drawbacks to this approach, however, including the possibility that applicants might lose
filing rights based solely on the quality
of their Internet connections.
16. Comments. Many commenters support a window filing approach, and offer various
suggestions as to the appropriate
duration of filing windows. (See footnote 196) Joshua Weiss comments that, in order to
even the playing field for potential
LPFM applicants, the Commission should list available frequencies and locations well in
advance of opening a window. Warren
Michelsen states that a Commission database capable of helping applicants determine
frequency availability in the areas in
which they are interested would help avoid the occurrence of mutual exclusivity. (See
footnote 197) Some commenters instead
favor a first come-first served filing system, generally contending that it would be a
better means of avoiding mutual exclusivity
than a window approach. (See footnote 198) However, Ronnie Miller argues that a first-come
first-served system would give an
unfair advantage to applicants with superior financial and technical resources. (See
footnote 199) Several commenters suggest
hybrid approaches combining elements of window and first come-first served systems. (See
footnote 200)
17. Decision. Based on our consideration of the record, we will adopt a window filing
process for LPFM applications. We
previously stated that a window process “provides the staff with a mechanism to
control effectively the filing and processing of
broadcast applications.” (See footnote 201) We believe that such a mechanism is
important here because of the large number of
LPFM applications that we expect to receive. In addition, the first-come first-served
approach envisioned in the Notice, which
would determine filing priority based on the exact time that applications are filed, is
feasible only if electronic filing is required,
which will not be the case, at least initially. (See footnote 202) Moreover, we are
concerned that such an approach, by placing a
premium on filing at the earliest possible moment, might unfairly disadvantage certain
applicants based solely on the quality of
their Internet connections. (See footnote 203) The filing of hundreds or thousands of
applications at once also might place
unbearable strains on the LPFM electronic filing system. A window filing process avoids
these pitfalls, as applicants will be able
to file at any time over a period of several days without losing filing rights.
18. Once this Order becomes effective, (See footnote 204) the Mass Media Bureau, pursuant
to delegated authority, will
promptly release a public notice announcing a national filing window for LP100
applications. (See footnote 205) We anticipate
that this window will open in May. (See footnote 206) The notice will be issued at least
thirty days in advance of the opening of
the filing window. Full power broadcast applications filed on or after the date of release
of a public notice announcing the
opening of an LPFM window will not preclude the filing of conflicting LPFM applications
filed during that window. However,
where the conflict ultimately is determined to relate to service inside the city grade
contours of the full power station, the LPFM
application will be dismissed. (See footnote 207) The window itself will be open for a
period of five business days. We believe
that five days, combined with thirty days’ specific advance notice and the additional
time between the release of this Order and
the public notice announcing the window, should give interested parties sufficient time to
prepare and file their LPFM
applications, while minimizing the number of mutually exclusive LPFM applications. We
emphasize that applications filed before
or after the dates specified in the public notice will not be accepted.
19. In accordance with our window filing procedure for commercial broadcast applications,
after the LPFM window closes,
the staff initially will screen applications for the purpose of identifying those that are
mutually exclusive and those that fail to
protect existing broadcast stations in accordance with the standards adopted herein.
Applications that fail to properly protect
these existing stations will be dismissed without the applicant being afforded an
opportunity to amend. This will increase the
speed and efficiency with which LPFM applications can be processed by the staff.
Technically acceptable non-mutually
exclusive applications will be further reviewed for acceptability and processed by the
staff in accordance with the Commission’s
general procedures. Groups of mutually exclusive applications will be identified in a
subsequent public notice, and will be
subject to the selection procedures set forth below. (See footnote 208) After an
application is tentatively selected from a
mutually exclusive group, it will be reviewed for acceptability, and a public notice will
be released announcing the finding that
the application has been tentatively selected and is acceptable for filing. (See footnote
209) Petitions to deny the application will
be due within 30 days of the release of the public notice of its acceptability for filing.
(See footnote 210) Petitions and informal
objections will not be considered unless and until the application has been tentatively
selected for processing and found
acceptable for filing.
20. As stated above, we are developing software to assist interested parties in
determining whether specific frequencies may be
available at specific locations for LPFM use. This software will not be able to determine
conclusively whether a particular
frequency will be available for an applicant, as frequency availability also will depend,
among other things, on whether
competing applications are filed during the LPFM filing window. Nevertheless, we
anticipate that the software will help
interested parties focus on potentially-available facilities, and will provide technical
assistance for interested parties with limited
financial resources. We anticipate that this software will be ready for use by the time we
announce the first filing window for
LPFM applications. The Mass Media Bureau will issue a public notice with information
regarding how to access the software
and the technical assistance it can provide. Such information also will be posted on the
Commission’s Web site.
1. Selection Among Mutually Exclusive Applications
21. Background. In the Notice, we requested comment as to whether the proposed LPFM
service should be restricted to
NCE applicants or open to both commercial and NCE applicants. (See footnote 211) We
tentatively concluded that, pursuant
to statutory requirements, mutually exclusive applications for commercial LPFM facilities
would be subject to auction. (See
footnote 212) We asked for comment on alternative methods for resolving mutual exclusivity
among NCE LPFM applicants. We
specifically referred commenters to our proceeding reexamining full-service NCE
comparative standards, where we sought
comment on three possible methods for selecting among mutually exclusive applicants: (1)
comparative hearings; (2) a lottery
process weighted in favor of certain applicants based on statutory requirements and other
factors; and (3) a system assigning
points to applicants based on various selection criteria. (See footnote 213)
22. Comments. Most commenters that address the matter oppose the use of competitive
bidding, arguing that it would
undermine the Commission’s stated goals in establishing the LPFM service. (See
footnote 214) Few commenters support the
use of comparative hearings to resolve mutually exclusive NCE applications. There was
support among commenters for the use
of a lottery process, although most of these commenters argued the merits of lotteries
over auctions, rather than over an
alternative selection method. (See footnote 215) A number of commenters also favored the
use of a point system. In addition,
several commenters suggest that we impose arbitration to resolve mutual exclusivity, (See
footnote 216) and one advocates the
use of “conflict reduction methods” such as allowing “liberal channel and
coverage changes.” (See footnote 217) Commenters
also propose various selection factors for use within a comparative selection process.
23. Decision. Based on our consideration of the record, we shall adopt a point system for
resolving mutual exclusivity among
LPFM applicants. The point system will include three selection criteria: (1) established
community presence; (2) proposed
operating hours; and (3) local program origination. The system will employ voluntary
time-sharing as a tie-breaker, that is, tied
applicants will have an opportunity to aggregate points by submitting time-share
proposals. (See footnote 218) As a last resort,
where a tie is not resolved through time-sharing or settlement, we shall award successive
equal license terms totaling eight years
(the normal license term), without renewal expectancy for any of the licensees.
24. We conclude that the point system we are adopting is superior to alternative selection
methods. As discussed above, the
LPFM service will be reserved for noncommercial, educational service, and we are precluded
by statute from using auctions to
award station licenses on channels reserved for NCE use. (See footnote 219) Accordingly,
we need not discuss an
auction-based selection mechanism. In our proceeding reexamining full-service NCE
comparative standards, we tentatively
rejected comparative hearings because they tend to be lengthy, cumbersome, and
resource-intensive, without substantial
offsetting benefits. (See footnote 220) These disadvantages make comparative hearings
particularly ill-suited for selecting LPFM
applicants. Like comparative hearings, mandatory arbitration and engineering solutions
could impose significant delays on the
LPFM authorization process and impose additional expenses on applicants. Moreover,
although we will encourage individual
settlements as a means of resolving mutual exclusivity among LPFM applicants, (See
footnote 221) the Commission lacks the
resources to administer a system that would require arbitration or the imposition of
engineering solutions in every instance of
mutual exclusivity. Finally, we conclude that a lottery system is comparatively inferior
to a point system as an LPFM selection
method. The primary benefits of a lottery system are the speed and ease with which it may
be applied. (See footnote 222) As
discussed below, however, a point system offers like benefits. Moreover, there are
unresolved legal and policy issues
surrounding the use of a lottery system that pose a risk of delaying the introduction of
LPFM service to the public. (See footnote
223) A point system does not entail similar risks. A lottery process is also inherently
inferior to a point system in its ability to
further the Commission’s policy goals due its random nature. This randomness may be
mitigated, but not eliminated, by
weighting in favor of certain types of applicants. For these reasons, in the case of LPFM
service, we reject all of these
approaches in favor of a point system. (See footnote 224)
25. Point System. We believe that a point system is the best-suited selection methodology
for promoting the Commission’s
policy goals for the LPFM service and speeding its introduction to the public. The
Commission has used a point system
procedure with success in the Instructional Television Fixed Service (ITFS). (See footnote
225) Like lotteries, point systems
have the potential to be fast, inexpensive, and administratively efficient. Unlike
lotteries, however, point systems make possible
the selection of applicants based on objective criteria designed to best advance the
public interest in the particular service at
issue. Finally, the fact that LPFM licenses are non-transferable (See footnote 226)
eliminates a major potential disadvantage of
any system based on selection criteria; it prevents the integrity of the system from being
undermined by the rapid assignment or
transfer of station licenses by an entity that was awarded the license over other
applicants on some merit basis that is not
necessarily found in the buyer. (See footnote 227)
26. Point System Operation—Selection Criteria. Our point system will include three
selection criteria for mutually exclusive
applicants: (1) established community presence; (2) proposed operating hours; and (3)
local program origination. These criteria
are directly related to the advancement of the public interest that the Commission has
found warrants the introduction of this
new service. To protect the integrity of the selection process and ensure that its full
benefits may be realized, we have chosen
clear-cut selection factors that are objective in nature and do not require burdensome
documentation.
27. Established Community Presence. For the reasons set forth above, first, applicants
that have an established community
presence of at least two years’ duration will be awarded one point. An applicant will
be deemed to have an established
community presence where, for a period of at least two years prior to application, the
applicant is able to certify that it has been
physically headquartered, has had a campus, or has had 75 percent of its board members
residing within 10 miles of the
reference coordinates of the proposed transmitting antenna. This criterion will favor
organizations that have been operating in
the communities where they propose to construct an LPFM station and thus have "track
records" of community service and
established constituencies within their communities. We believe that such applicants,
because of their longstanding organizational
ties to their communities, are likely to be more attuned to, and have organizational
experience addressing, the needs and
interests of their communities. In this regard, a number of commenters suggest preferences
based on prior community service
and/or community support. (See footnote 228) These suggested factors could be subjective
in nature, however, and could be
burdensome to demonstrate and verify. In addition, we believe that preferring
organizations that have been in existence and
physically present in the community for two years will help prevent maneuvering of the
point system by those who might
otherwise establish multiple organizations to file LPFM applications.
28. As we stated above in our discussion of the community-based eligibility requirement,
we do not believe this preference for
established local entities contravenes the court’s concerns in Bechtel. In adopting
such a comparative factor, we further note
that the Bechtel court was concerned that quantitative integration factors worked to the
virtual exclusion of other factors the
court deemed potentially relevant in determining the relative quality of service that
would be provided by an applicant. For
LPFM, we are including other selection factors and giving them equivalent weight in the
selection process. Moreover, while the
two-year presence factor has a quantitative aspect, it is objectively verifiable and does
not depend on promises of future
performance, as the integration preference did.
29. Applicants claiming points for established community presence will be required to
certify in their applications that they meet
the above-stated conditions. The application form will identify appropriate documentation
that must be made available for the
point claimed. Applicants will be required to submit this information at the time of
filing and it will be available in our public
reference room. As with other broadcast applications, the Commission will rely on
certifications but will use random audits to
verify the accuracy of the certifications. (See footnote 229) This information also will
enable applicants to verify that competing
applicants qualify for the points they claim.
30. Proposed Operating Hours. Second, applicants that pledge to operate at least 12 hours
per day will be assigned one
point. As set forth below, the minimum operating hours for LPFM stations will be five
hours per day. (See footnote 230) This
criterion does not impose any additional requirement, but awards points to applicants that
pledge longer hours of operation.
Applicants that propose more intensive use of the broadcast frequencies they seek will
advance the Commission’s general
policy objective of ensuring efficient spectrum use and providing more programming to
serve their communities.
31. Local Program Origination. Finally, applicants that pledge to originate locally at
least eight hours of programming per day
will be assigned one point. For purposes of this criterion, local origination will be
defined as the production of programming
within 10 miles of the reference coordinates of the proposed transmitting antenna. (See
footnote 231) This criterion derives from
the service requirements for full-service broadcast stations, which are required to
maintain the capacity to originate
programming from their main studios. (See footnote 232) LPFM licensees will not be subject
to main studio requirements, and
will have discretion to determine the origination point of their programming. (See
footnote 233) As a comparative selection
factor, local program origination can advance the Commission’s policy goal of
addressing unmet needs for community-oriented
radio broadcasting. (See footnote 234) In this regard, we believe that an applicant’s
intent to provide locally-originated
programming is a reasonable gauge of whether the LPFM station will function as an outlet
for community self-expression.
32. With regard to both the second and the third selection criteria, applicants will be
required to certify in their applications that
they will meet the qualifying conditions for the points claimed. We will require
successful applicants to adhere to their operating
hours and local program origination pledges. (See footnote 235) As these criteria are
prospective in nature, they will not be
subject to verification at the application stage. The Commission will use random audits to
verify the accuracy of the
certifications, and will consider written complaints regarding actual performance.
Consistent with our current practice, the staff
may issue letters of inquiry requiring submission of documentation in connection with such
audits. Where analysis of the
requested information indicates that licensees have not fulfilled their pledges,
appropriate action will be taken, including the
possibility of monetary forfeitures and revocation proceedings. (See footnote 236)
33. In choosing selection criteria, we have carefully considered the comments we received
advocating various selection factors,
as well as the point system elements under consideration in our proceeding reexamining
full-service NCE comparative
standards. (See footnote 237) We believe that the factors we have chosen best balance our
interest in furthering the specific
localized objectives of the LPFM service and avoiding cumbersome, subjective and
manipulable criteria. We note that a
number of commenters advocate preferences for entities controlled by minorities. (See
footnote 238) We shall defer
consideration of this matter. The Commission is conducting fact-finding studies as to
whether such preferences may be justified
consistent with the Supreme Court’s decision in Adarand Constructors v. Pena. (See
footnote 239) Depending on the
outcome of these studies, we will consider in the future whether to adopt minority control
as a point system factor.
34. 1st Tiebreaker -- Voluntary Time-Sharing. In the event that the point system results
in a tie among two or more mutually
exclusive applicants, applicants will have the opportunity, within 30 days of the release
of a public notice announcing the tie, to
submit amendments to their applications incorporating voluntary time-share proposals. Each
time-share proponent must
propose to operate at least 10 hours per week. Time-share proposals may function as
tie-breakers in two different ways. First,
all of the tied applicants in a mutually exclusive group may propose a time-share
proposal, in which case the staff will review
and process all of the tied applications. Second, some of the tied applicants in a
mutually exclusive group may submit a
time-share proposal, in which case the time-sharers’ points will be aggregated.
Time-sharers may aggregate points under each
of the three selection criteria. (See footnote 240) The purpose of allowing point
aggregation is to encourage timeshare
arrangements as a means of resolving mutual exclusivity among tied LPFM applicants. In
addition, we believe that time-sharing
arrangements will serve the public interest by increasing participation by a variety of
local community organizations in the
operation of LPFM stations.
35. Our decision to incorporate voluntary time-sharing into the point system as a
tie-breaker is based on our judgment that
voluntary time-share arrangements have the potential to advance the Commission’s
goals for the new service. We noted in our
proceeding reexamining full-service NCE comparative standards that “[a] number of
commenters dislike mandatory share-time
arrangements, finding them confusing to audiences, and potentially inefficient for
licensees.” (See footnote 241) On a voluntary
basis, however, time-sharing has significant potential advantages for LPFM applicants.
From a practical standpoint, the
localized nature of the LPFM service is likely to enhance applicants’ ability to
time-share. In many cases, the small scale of
LPFM operations also may make time-sharing more efficient for LPFM licensees. Furthermore,
by increasing the number of
new broadcast voices, time-sharing can advance our interest in promoting additional
diversity in radio voices and program
services through the LPFM service. (See footnote 242)
36. Final Tiebreaker -- Successive License Terms. As a last resort, in cases where a tie
is not resolved through settlement or
time-sharing, the staff will review tied applications for acceptability. Applicants whose
applications are grantable will be eligible
for equal, successive license terms of no less than one year each, spanning a total of
eight years. Successive license terms will
not be granted for groups of more than eight tied, grantable applications. In the event of
such a situation, the staff will dismiss all
but the applications of the eight entities with the longest established community
presences, as demonstrated by the
documentation submitted with their applications. If this does not limit the group of
applications to eight, the entire group will be
deemed ungrantable and will be dismissed if, after a final opportunity to submit
settlement proposals within 30 days of the
release of a public notice, the situation is not resolved. Where successive license terms
are granted, there will be no renewal
expectancy for any of the licensees. (See footnote 243) If none of the tied, grantable
applications proposes same-site facilities,
then all will be granted at the same time. The sequence of the applicants’ license
terms will be determined by the sequence in
which they file their applications for licenses to cover their construction permits, based
on the day of filing. (See footnote 244)
However, if any of the tied, grantable construction permit applications propose same-site
facilities, the applicants proposing
such facilities will be required, within an additional 30 days, to submit a settlement
agreement proposing the sequence of the
license terms for such applicants. If they fail to do so, they will be removed from the
mutually exclusive group and the remaining
applications will be granted.
37. Settlements. Applicants may propose a full settlement at any time during the selection
process after the release of the
public notice announcing the mutually exclusive group. Such settlements must be universal
-- that is, they must involve all of the
mutually exclusive applicants within a group -- and must comply with the Commission’s
general rules for settlements, including
the requirement that the settling parties certify that they have not received
consideration for the dismissal of their applications in
excess of their legitimate and prudent expenses. (See footnote 245) Settlements may
incorporate voluntary time-share
proposals.
38. Delegated Authority. As we explained in our proceeding reexamining full-service NCE
comparative standards, the
Commission currently may delegate authority for applying point systems only to
administrative law judges or to individual
Commissioners. (See footnote 246) This statutory restriction is based on the fact that
point systems technically are considered a
type of simplified hearing. We believe that the staff would be able to administer the LPFM
point system in a more streamlined
manner than administrative law judges or individual Commissioners. Therefore, we will seek
authority from Congress, through
specific legislation, to delegate responsibility to the staff for applying the point
system. (See footnote 247) Until we receive such
authority, the staff will refer point system proceedings to the Commission for
disposition.
39. Minor Modification of Authorized LPFM Stations. We will adopt one exception to the
window filing process to permit
the filing at any time of certain “minor change” applications. For LP100
stations, a minor change may involve a transmitter site
relocation of less than two kilometers. For LP10 stations, a minor change may involve a
transmitter site relocation of less than
one kilometer. Minor change applications may also propose a change to an adjacent or IF
frequency or, upon a technical
showing of reduced predicted interference, to any other frequency. Similarly, we will
consider as minor any change in frequency
necessary to resolve actual interference. All other changes will be classified as
“major” and subject to our window filing
procedures. Minor change applications also must satisfy the technical and legal
requirements applicable to LPFM stations
generally.
1. License Terms and Renewals
40. Background. In the Notice, we asked how often and how closely we should actively
monitor, within the parameters of our
statutory responsibility, the performance of LP100 stations in connection with the license
renewal process. We asked whether a
pro forma process would satisfy any statutory requirement, in the absence of specific
public complaint. We also asked for
comment on whether stations other than LP1000 stations should be authorized for finite,
nonrenewable periods, such as five or
eight years, to create additional opportunities for new entrants in the LPFM service. We
explained that making broadcast
outlets available to more speakers is a fundamental premise of this rulemaking effort, and
that we did not expect that such a
limitation would discourage the very modest investment required to build such a station.
We sought comment on whether the
disruption of service to the public that non-renewability would involve outweighed the
potential benefits of making this service
available to more speakers on a consecutive basis.
41. Comments. Commenters propose a variety of LPFM license terms and the majority argue
that LPFM licenses should be
renewable. Commenters suggest license terms of one, (See footnote 248) two, (See footnote
249) four, (See footnote 250) five,
(See footnote 251) and seven years. (See footnote 252) REC Networks advocates a five-year
renewable license term. According
to REC Networks, granting a short license term would place the burden on LPFM licensees to
demonstrate their continuing
interest in providing local service. (See footnote 253) Other commenters contend that LPFM
stations should have the same eight
year license periods granted to full power stations. (See footnote 254)
42. Most commenters argue that all LPFM licenses should be renewable. (See footnote 255)
Jeffrey Richman believes that
licenses should be renewable because (1) applicants might be deterred if they do not have
the expectation of renewal; (2)
off-air periods between transfers would be confusing to the public; and (3) nonrenewable
licenses would be inconsistent with
the “renewal expectancy” Congress intended in sections 307(c) and 309(k)(1) of
the Act. (See footnote 256) Douglas E. Smith
and Warren Michelsen believe that even with renewable licenses, there would be turnover in
ownership because, e.g., the
leadership of community groups will rotate and individual owners move frequently. (See
footnote 257) REC Networks believes
that through proper frequency coordination and time-sharing arrangements, many in crowded
urban areas would have their turn
at the microphone without having to wait several years for a license to expire. (See
footnote 258) Commenters also contend that
LPFM licensees should have the same renewal expectancy as existing broadcasters. (See
footnote 259) On the other hand,
Jennifer Anne Barrios and Robert Kevess believe LPFM licenses should not be renewable.
(See footnote 260)
43. Decision. We will provide LP100 and LP10 licensees with the same license terms and
renewal expectancy as full-power
FM radio stations. Accordingly, licenses will be renewed for a term not to exceed eight
years from the date of expiration of the
preceding license (See footnote 261) and LPFM licenses will be renewed, without
consideration of competing applicants, if they
have met the renewal standard of Section 309(k)(1) of the Act. Upon considering the
comments filed in this proceeding, we
find that granting renewable licenses is consistent with the goals we are seeking to
advance with this service. Moreover, we
believe that nonrenewable licenses would discourage licensees from developing facilities
and audiences to the fullest extent
possible. We therefore will grant, with one exception described in paragraph 159 below,
renewable licenses for LPFM
stations.
44. Section 73.1020(a) divides the country into 18 different regions containing one or
more states for purposes of establishing
synchronized schedules for radio and television licenses. (See footnote 262) Radio station
licenses expired under this rule in
intervals between October 1, 1995, and August 1, 1998, and those licenses, renewed for
eight years, will expire again between
September 30, 2003, and July 31, 2006. (See footnote 263) We consistently grant initial
terms for all new broadcast
authorizations to fit into this synchronized schedule, although it means initial terms are
usually for a period of less than eight
years.
45. We adopt these synchronized schedules for LPFM licenses because maintaining the
predictability, administrative
efficiencies, public awareness, and fairness inherent in the existing synchronized
schedule of license cycles serves the public
interest. Accordingly, an initial LPFM license granted within any renewal period set forth
in Section 73.1020 of our rules will be
assigned the expiration date assigned to those full-power FM stations licensed in the same
region during the same licensing
cycle. (See footnote 264) Because of the cyclical nature of this process, granting initial
full eight-year license terms in the middle
of a licensing cycle could undermine the synchronization of the whole process. Like
full-power licenses, LPFM licenses may
then be renewed for a term not to exceed eight years from the expiration date of the
preceding license. This approach will
reduce the regulatory burden on LPFM broadcasters by affording them the same maximum
license terms now granted other
broadcasters, and will correspondingly reduce the associated burdens on the Commission. We
see no compelling reason to
vary from the term set by Congress for full-power stations. We further note that, while we
will authorize eight-year license
terms, the public may scrutinize station performance and file complaints with the
Commission at any time during the term of an
LPFM license.
46. The one exception to this rule pertains to situations where we grant successive
license terms under the final tiebreaker
procedures. These tiebreaker licenses will not be based on the synchronized licensing
cycle of Section 73.1020. (See footnote
265) If applicants were granted last resort tiebreaker licenses conformed to the
synchronized schedule, each licensee,
depending on where in the renewal cycle we were, might receive authorizations to operate
for a very short period of time, e.g.,
a few months, with no opportunity to renew their license.
47. We will also extend the renewal expectancy provisions of Section 309(k)(1) of the Act
to LPFM licensees. (See footnote
266) Providing incumbents with the likelihood of renewal encourages licensees to make
investments to ensure quality service.
(See footnote 267) Upon receiving an application for renewal of an LPFM license, we will
determine whether the licensee has
served the public interest, convenience, and necessity; whether there have been any
serious violations of the Act or Commission
rules; and whether there have been any serious violations that, taken together, would
constitute a pattern of abuse. Only if
incumbent LPFM licensees fail to meet these requirements will other applicants be eligible
to apply for the same license. As
noted, an exception is where the license is held for successive terms as a result of the
final tiebreaker procedure. Such licenses
will be nonrenewable.
1. Transferability
48. Background. In the Notice, we noted that some commenters urged us to restrict the sale
of LPFM stations to deter the
filing of speculative applications and trafficking in construction permits. (See footnote
268) We stated our belief that, in light of
the limits we proposed on ownership of LPFM stations, we did not believe that it was
necessary to restrict the sale of any class
of LPFM station. We invited commenters to address this issue, including whether
restrictions on sales would be advisable if the
Commission adopts ownership rules other than those proposed in the Notice.
49. Comments. While comments on the transferability of LPFM stations were mixed, the
majority of commenters that
addressed this issue supported either prohibiting transfers altogether or severely
restricting them. (See footnote 269) UCC, et
al., and Civil Rights Organizations proposed the adoption of rules prohibiting the sale of
an LPFM station held for less than five
years. (See footnote 270) Civil Rights Organizations argued that such a restriction would
discourage speculators, who could
operate even in a noncommercial environment, without deterring committed local
broadcasters. (See footnote 271) ACLU of
Mass. et al. argues that permitting transfer of licenses and construction permits will
permit the creation of a secondary market
where LPFM licenses can be obtained without regard to licensing priorities that favor
diversity and localism. Instead, it
proposes that if an LPFM licensee decides that it can no longer own and operate its
station, the license should be returned to
the FCC where it can be reissued in accordance with the criteria adopted by the
Commission. (See footnote 272) A few
commenters were in favor of permitting transferability of LPFM stations, arguing generally
that owners who have invested in
such stations should be able to realize the fair market value of such stations. (See
footnote 273)
50. Decision. After careful review of the comments, we have decided to prohibit the
transfer of construction permits and
licenses for LPFM stations. Contrary to our initial view stated in the Notice, we are
persuaded that a prohibition on transfers
will best promote the Commission's interest in ensuring that spectrum is used for low
power operations as soon as possible,
without the delay associated with license speculation. We are also persuaded that the
goals of this new service, to foster
opportunities for new radio broadcast ownership and to promote additional diversity in
radio voices and program services, will
best be met if unused permits and licenses are returned to the Commission. Given the
modest facilities and noncommercial
nature of LPFM stations, we do not believe non-transferability will discourage LPFM
licensees from serving their listeners.
A. Programming and Service Rules
1. Public Interest Requirements
51. 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.
52. 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. (See footnote
274) The Low Power Radio Coalition believes that LPFM licensees must be held to high
standards similar to those established
for full-power broadcasters. (See footnote 275) 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. (See footnote 276) 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. (See footnote 277) 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. (See footnote 278) Similarly, other commenters oppose any requirements for LP100
and LP10 stations, arguing that
it would place an unreasonable burden on those stations. (See footnote 279)
53. Decision. Every broadcast licensee is required to operate its station in the public
interest. (See footnote 280) 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. (See footnote
281)
54. 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. (See footnote 282) They must also comply with our sponsorship
identification and political programming
rules. (See footnote 283) In addition, we will require LPFM licensees to comply with our
rules regarding taped, filmed, or
recorded material, (See footnote 284) personal attacks, (See footnote 285) and periodic
call sign announcements. (See footnote
286) 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.
1. Locally Originated Programming
55. 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.
56. Comments. Many commenters favor the adoption of a locally originated programming
obligation. (See footnote 287)
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. (See footnote
288) A number of commenters oppose any specific obligations on LPFM licensees regarding
locally originated programming.
(See footnote 289) Amherst argues, for example, that the best way to prevent LPFM stations
from becoming “corporate
satellites” is through limits on LPFM license eligibility. (See footnote 290) 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. (See footnote 291)
57. Commenters generally agree that LFPM stations should not be used as translators for
retransmitting full-power station
programming. (See footnote 292) 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. (See footnote 293) Nixon also notes that LPFM
stations should be prohibited from using any
satellite programming. (See footnote 294) 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. (See footnote 295)
58. 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. (See footnote 296) 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.
59. 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.
1. Political Programming Rules
60. 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.
61. 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. (See footnote 297)
REC Networks and John D.
Bowker agree that political programming rules should be applied to LPFM services. (See
footnote 298)
62. 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, (See footnote
299) but because LPFM stations are noncommercial educational facilities, they must provide
such access on a free basis. (See
footnote 300) Section 315(a) of the Communications Act, as amended, requiring equal
opportunities for candidates, will also
apply. (See footnote 301)
63. 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. (See
footnote 302) LPFM licensees cannot charge legally qualified candidates for the time used
on their stations (See footnote 303) 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.” (See footnote 304) 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.
1. Station Identification
64. 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.”
65. 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. (See footnote 305)
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. (See footnote 306) Some commenters also argue
that the use of call signs for low
power broadcasters would not be burdensome to these broadcasters. (See footnote 307)
66. Decisi on. 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. (See footnote 308) 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. (See footnote
309)
1. Operating Hours
67. 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.
68. 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. (See footnote 310) 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. (See footnote 311)
69. 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 . . . .” (See footnote 312) 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.
1. Main Studio Rule, Public File Rule and Ownership Reporting Requirements
70. 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.
71. 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, (See
footnote 313) 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. (See footnote 314) 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. (See footnote 315)
72. Decision. We conclude that we should not impose the main studio, public file, (See
footnote 316) 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. (See footnote 317)
73. As to equal employment opportunity (EEO) rules, we conclude that all LPFM licensees
must comply with the
Commission's longstanding prohibition against employment discrimination. (See footnote
318) 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. (See footnote 319) In addition to the prohibition against
discrimination, the broadcast EEO Rule also
includes EEO program requirements. (See footnote 320) These requirements are not currently
in force. (See footnote 321) 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) fulltime, paid
employees, we do not intend to require LPFM licensees to comply with any EEO program
requirements we adopt in our
pending rulemaking proceeding.
1. Construction Permits
74. 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 (See footnote 322) ) 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.
75. 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. (See
footnote 323) Other commenters argue for even
shorter construction periods for LP100 and micro-radio services. (See footnote 324) 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. (See
footnote 325)
76. 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. (See footnote 326)
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.
1. Emergency Alert System
77. 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.
78. 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; (See footnote
327) stations other than LP100
and LP10 stations can take on the role of alerting the community to emergencies; (See
footnote 328) the short range and
secondary status of LP100 stations make them unsuitable for emergency message propagation;
(See footnote 329) and removing
LP100 stations from the air during national emergencies would help prevent interference
during such crisis times. (See footnote
330) Other commenters suggest that EAS be required only under certain circumstances. (See
footnote 331) A few commenters
provide suggestions on how to overcome the expense involved in EAS participation. (See
footnote 332) 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. (See
footnote 333)
79. Other commenters, however, stress the importance of participation in EAS by all
broadcast stations. (See footnote 334)
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. (See footnote 335) 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. (See footnote
336) 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. (See footnote 337) 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. (See footnote 338)
80. 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.
81. 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. (See footnote 339) 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. (See footnote 340) 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.
82. 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. (See footnote 341) However, we relaxed some of these
requirements for Class D noncommercial
educational FM and LPTV stations. (See footnote 342) 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. (See footnote 343)
83. 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. (See footnote
344) 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. (See footnote 345)
84. 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. (See
footnote 346)
LXXXV. Conclusion
86. In this Report and Order, we set the stage for a new dimension in radio broadcasting,
creating additional, affordable
outlets for the expression of views and the provision of information and entertainment to
local communities. By limiting
participants in this service to noncommercial, educational organizations, we hope to
ensure that this service will meet needs
unmet by the commercial radio service. Through eligibility requirements, selection
preference factors, and the relatively small
range of LPFM stations, we hope to create a service that will serve the distinct needs of
small local communities. Mindful of the
need to protect the technical integrity of the existing radio service and to preserve its
potential transition to digital service,
however, we are proceeding cautiously. Accordingly, we are limiting radio stations in the
LPFM service to a maximum of 100
watts. We are also maintaining 2nd-adjacent channel protection. Based on our engineers'
careful review of the technical data
submitted to the Commission, as well as their own studies, we are confident that any risk
of interference is small and, on
balance, outweighed by the benefits this new service will bring.
ADMINISTRATIVE MATTERS
87. Paperwork Reduction Act Analysis. This Report and Order has 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 new or modified reporting and recordkeeping requirements will be
subject to approval by the Office of
Management and Budget as prescribed by the Act.
88. Regulatory Flexibility Analysis. Pursuant to the Regulatory Flexibility Act of 1980,
as amended, 5 U.S.C. § 601, the
Commission’s Final Regulatory Flexibility Analysis for this Report and Order is
attached as Appendix C.
89. Additional Information. For additional information on this proceeding, please contact
Julie Barrie, Policy and Rules
Division, Mass Media Bureau, (202) 418-2130.
ORDERING CLAUSES
90. Accordingly, IT IS ORDERED that, pursuant to authority contained in sections 1, 4(i),
303 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 151, 154(i), 303, Part 73 of the Commission’s rules,
47 C.F.R. Part 73, IS AMENDED as
set forth in Appendix A below.
91. IT IS FURTHER ORDERED that, the amendments set forth in Appendix A shall be effective
60 days after publication in
the Federal Register.
92. IT IS FURTHER ORDERED that the Commission’s Consumer Information Bureau,
Reference Information Center, shall
send a copy of this Report and Order, including the Final Regulatory Flexibility Act
Analysis, to the Chief Counsel for the
Small Business Administration.
93. IT IS FURTHER ORDERED that this proceeding IS TERMINATED.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas Secretary
Footnote: 1 Existing FM stations must protect and are protected from interference from
stations operating on the
same, i.e., co-channel, frequency, and each of the first three adjacent FM channels.
Distance separation requirements
are based on a desired-to-undesired signal strength ratio methodology and are designed to
permit the reception,
generally, of a “desired” station throughout its protected service area.
Co-channel protection is based on the
“desired” signal providing a signal strength of at least 40 dB greater than an
“undesired” co-channel signal and 6 dB
greater than an “undesired” first-adjacent channel signal within the
“desired” station’s protected service area. This
methodology also ensures that a “desired” signal is not less than 40 dB less
than an “undesired” 2nd- or 3rd-adjacent
channel signal within the “desired” station’s protected service area.
Footnote: 2 Notice of Proposed Rulemaking, MM Docket No. 99-25, 14 FCC Rcd 2471 (1999)
(Notice).
Footnote: 3 Petition of J. Rodger Skinner, RM-9242, Public Notice, Report No. 2254
(February 5, 1998); Petitions
of Nickolaus Leggett, Judith Leggett, and Donald Schelhardt, RM-9208, Public Notice,
Report No. 2261 (March 10,
1998).
Footnote: 4 See generally Comments of Abyssinian Baptist Church; Comments of Crown Heights
Jewish
Community Council; Comments of the United States Catholic Conference; Comments of Immanuel
Presbyterian
Church; Comments of the Jewish Community Federation of Cleveland, Ohio; Comments of
Association of Islamic
Charitable Projects; Comments of Mendan Presbyterian Church; Comments of Calvin Christian
Reformed Church;
Comments of the United Church of Christ, et al. (UCC, et al.).
Footnote: 5 See generally Comments of Justin W. Clifton on behalf of KAMP Student Radio;
Comments of
University of Arizona; Comments of Adrian Kohn, General Manager, WGTB, Georgetown
University; Comments of
Brookland High School, Brookland, Arkansas; Comments of El Cerrito High School, El
Cerrito, CA.
Footnote: 6 See generally Comments of AFL-CIO; Comments of Communications Workers of
America.
Footnote: 7 See generally Comments of Mount Pleasant Broadcasting Club; Comments of
Haitian American
Community Broadcasting Federation; Comments of Zeitgeist Community Gallery of Cambridge;
Comments of
Advocates for a Better Community.
Footnote: 8 See generally Comments of Louisiana Music Commission; Comments of Michigan
Music is World Class
Campaign; Letter from Low Power Radio Coalition by Artists (September 22, 1999); Comments
of Jazz Music Radio.
Footnote: 9 In the Notice we referred to the one-to-10 watt stations as
“microradio” stations; for simplicity,
however, throughout this Order we will use the term “LP10” stations.
Footnote: 10 See, e.g., Comments of National Lawyers Guild, et al. at Section V; Reply
Comments of the United
Church of Christ, et al. (UCC, et al.) at 4.In fact, s
Footnote: 11 See, e.g., Comments of Walt Disney Company (Disney) at 5.
Footnote: 12 See, e.g., Comments of National Lawyers Guild, et al. at Section II; Comments
of Prometheus Radio
Project at 2.
Footnote: 13 47 U.S.C. § 309(j)(2).
Footnote: 14 See generally Comments of National Association of Broadcasters (NAB); Reply
Comments of UCC, et
al.; Comments of the Consumer Electronics Manufacturing Association (CEMA); Comments of
the Corporation for
Public Broadcasting (CPB); Comments of National Public Radio (NPR).
Footnote: 15 See Comments of AFCCE at 11-13; see also Comments of NAB at 37-40; Comments
of Disney
(August 2, 1999) at 3-5, Engineering Statement at 6-7.
Footnote: 16 See, e.g., Comments of Vincent Chiao; Comments of Spencer Graddy Clark.
Footnote: 17 See Comments of AFCCE at 13.
Footnote: 18 See Comments of Disney at 2.
Footnote: 19 See, e.g., Comments of National Lawyer’s Guild; Comments of Amherst.
Footnote: 20 See, e.g., Comments of ACLU, et al.; Comments of REC Networks.
Footnote: 21 See Comments of NAB (August 2, 1999) at 81-85 (Vol. One).
Footnote: 22 S ee Comments of WEOK Broadcasting Corporation at 7.
Footnote: 23 See Reply Comments of the Civil Rights Organizations at 13 n. 24.
Footnote: 24 Antenna heights greater than 30 meters HAAT would be permitted, but an
appropriate downward
adjustment in ERP would have to be made such that the 1 mV/m F(50,50) signal contour
radius would not exceed 5.6
kilometers.
Footnote: 25 47 U.S.C. § 309(j)(2)(C).
Footnote: 26 See, e.g., Comments of Civil Rights Organizations at 16 (noncommercial
stations would serve groups,
including those defined by race, religion ethnicity, language or age, that are poorly
served by advertiser-supported
radio).
Footnote: 27 See, e.g., Comments of Civil Rights Organizations at 16-17 (noncommercial
LPFM service is the best
means of creating locally-based radio likely to serve needs of the local communities);
Comments of National Lawyers
Guild at 6-8 (noncommercial service will attract those who truly wish to provide a service
to their community). See
also Comments of The National Federation of Community Broadcasters (Community
Broadcasters) at 7
(noncommercial LPFM service would avoid the debate over the impact of LPFM on the
economics of radio
broadcasting); see also Comments of Creative Educational Media Corp. at 4; Comments of
Mid-America
Broadcasting Co. at 3, Comments of Nassau Broadcasting at 3; Comments of WATD at 4;
Comments of WBRV at 3.
Footnote: 28 See, e.g., Comments of Amherst (filed April 28, 1999) at 32-34 (supporting
licensing all categories of
LPFM service, but arguing that noncommercial uses should be given priority); see also
Comments of Media Island
International (both commercial and noncommercial stations should be licensed but
noncommercial should be given a
two-year “head start” on commercial); Comments of Trident Media at 2-3 (LPFM
stations should have the option of
being commercial in order to generate revenues and remain viable).
Footnote: 29 Comments of Civil Rights Organizations at 16-17
Footnote: 30 See e.g., Comments of UCC, et al. at 25-26 (commercial low power stations
could provide an
important entrepreneurial opportunity for members of demographic groups that have
historically been
underrepresented in the broadcast industry as licensees and professionals).
Footnote: 31 While opposing the establishment of an LPFM service generally, NPR stated
that "if there can be
some assurance that prospective licensees will serve the community and the public
interest, it is by" applying the
"current eligibility criteria" for noncommercial educational licensees to all
LPFM stations. Comments of NPR at 2930.
Footnote: 32 See 47 U.S.C. § 309(j)(2)(C) and 397(6).
Footnote: 33 As discussed below, we will license LPFM stations to operate in both reserved
and non-reserved
portions of the FM band. Nevertheless, the same eligibility and noncommercial service
restrictions will apply to all
LPFM stations, regardless of the portion of the FM band in which they are licensed to
operate. In this regard, LPFM
NCE stations will be different from full-service NCE stations that operate in the
non-reserved band. The latter can
convert from NCE status to commercial status at will by filing a notification letter with
the Commission, but LPFM
stations will not be permitted to change their noncommercial status.
Footnote: 34 47 U.S.C. § 397(6).
Footnote: 35 47 U.S.C. § 73.503(a). The same eligibility requirements were in effect on
the effective date of Section
397(6) of the Act. See also Appendix A to Notice of Inquiry, In the Matter of Eligibility
for Noncommercial
Educational FM and TV Broadcast Station Licenses, BC No. 78-164, FCC 77-382, 43 Fed. Reg.
30842 (1978), 30844
(processing guidelines for institutional and organizational applicants for noncommercial
educational licenses).
Footnote: 36 See generally Appendix A to Notice of Inquiry, In the Matter of Eligibility
for Noncommercial
Educational FM and TV Broadcast Station Licenses, BC No. 78-164, FCC 77-382, 43 Fed. Reg.
30842, 30844 (1978).
Footnote: 37 See, e.g., In re Applications of Music Ministries, Inc. and Community
Education and Religious
Broadcasting, Hearing Designation Order, 9 FCC Rcd 3628 (Aud. Serv. Div. 1994).
Footnote: 38 Further Notice of Proposed Rulemaking, In the Matter of Reexamination of the
Comparative
Standards for Noncommercial Educational Applicants, MM Docket No. 95-31, FCC No. 98-269,
13 FCC Rcd 21167,
21169 (1998).
Footnote: 39 Memorandum Opinion and Order, In re Application of Lower Cape Communications,
Inc., FCC
80-453, 47 RR2d 1577, 1579 (1980). See also Memorandum Opinion and Order, Florence
Bridges, FCC 78-719, 44
RR2d 667, 668 (1978).
Footnote: 40 We note, however, that individuals cannot qualify as NCEs.
Footnote: 41 Comments of the New York State Thruway Authority at 2. See also Comments of
the Port Authority of
New York and New Jersey (LPFM stations could be used to facilitate the transmission of
travel information to the
public).
Footnote: 42 Comments of Texas Department of Transportation at 2.
Footnote: 43 The “community” concept is significant with respect to the limits
on local ownership of LPFM
stations. The concept of “community” is not relevant to our cross-ownership
restrictions, which, as discussed below,
are absolute and thus do not depend on a determination of the locality of a particular
media interest.
Footnote: 44 In allocating full-power FM stations to specific communities, we define a
community as a
geographically identifiable population grouping, usually determined based upon whether the
area is incorporated or is
listed in the U.S. Census. Amendment of Section 73.202(b), MM Docket No. 90-385, 6 FCC
Rcd. 5835 (1991).
Footnote: 45 See, e.g., Comments of NAB at 71; Comments of Nassau Broadcasting Partners at
7.
Footnote: 46 Comments of NAB at 70.
Footnote: 47 Id. at 70-71.
Footnote: 48 See, e.g., Comments of Morris Broadcasting Company of New Jersey, Inc. at 6;
Comments of the
University of Dayton at 6; Comments of El Cerrito High School - West Contra Costa Unified
School District at 6.
Footnote: 49 Comments of Douglas E. Smith at 2-3.
Footnote: 50 Comments of Metro Detroit Broadcasting Corporation at 5.
Footnote: 51 See, e.g., Comments of Amherst at 38.
Footnote: 52 Reply Comments of the National Lawyers Guild, etc. at 4.
Footnote: 53 Comments of UCC, et al. at 13.
Footnote: 54 47 C.F.R. §§ 73.3555 & 76.501.
Footnote: 55 Comments of UCC, et al. at 13.
Footnote: 56 See, e.g., Comments of the American Civil Liberties Union of Massachusetts
et. al. at 6; Comments of
Community Broadcasters at 9.
Footnote: 57 Comments of UCC, et al. at 31-32.
Footnote: 58 Comments of Civil Rights Organizations at 21-22.
Footnote: 59 See, e.g., Comments of Anthony M. Marimpietri, Jr. at 2; Comments of
Quinnipiac College at 2;
Comments of Amherst at 37; Comments of Salida Colorado Radio Club at 2.
Footnote: 60 See, e.g., Comments of Charles C. Knight at 1; Comments of Joseph T. Norton
at 1; Comments of
Jonathan Tesser at 2; Comments of American Civil Liberties Union of Massachusetts et al.
at 6.
Footnote: 61 Reply Comments of Grid Radio at 23.
Footnote: 62 Comments of Community Broadcasters at 9.
Footnote: 63 10 F.3d 875 (1993). See, e.g., Comments of Morris Broadcasting Company of New
Jersey, Inc. at 8;
Comments of Creative Educational Media Corporation, Inc. at 9.
Footnote: 64 See Comments of Andrew Morris at 9.
Footnote: 65 For example, a Virginia TIS entity would be eligible to apply for an LPFM
license anywhere in the
state of Virginia but not in any other state.
Footnote: 66 10 F.3d 875 (1993).
Footnote: 67 Id. at 885.
Footnote: 68 See Second Report and Order, ITFS, MM Docket No. 83-523, 101 FCC 2d 50 (1985)
recon. denied
Memorandum Opinion and Order, MM Docket No. 83-523, 59 R.R. 2d 1355 (1986); 47 U.S.C. §
396.
Footnote: 69 See, e.g., Comments of Amherst at 44l; Comments of Civil Rights Organizations
at 23; Comments of
UCC, et al. at 13, 39; Comments of Christopher Conly at 1; Comments of Peter Brinson at 2.
Footnote: 70 Comments of the Civil Rights Organizations at 25.
Footnote: 71 Comments of UCC, et al. at 14-15.
Footnote: 72 Comments of UCC, et al. at 13.
Footnote: 73 Comments of Morris Broadcasting Company of New Jersey, Inc. at 8; Comments of
Mid-America
Broadcasting Company, Inc. at 7; Comments of Nassau Broadcasting Partners, L.P. at 8;
Comments of Creative
Educational Media Corporation, Inc. at 8-9. Some commenters proposed specific national
caps. See, e.g., Comments
of Ronnie V. Miller at 17, Comments of Glenda Brookens at 1; Comments of Anthony M.
Marimpietri, Jr. at 2
(3-station cap); Comments of Metro Detroit Broadcasting Corporation at 8 (at least
10-station cap); Comments of
Trident Media and Broadcasting, Ltd. at 3 (15-station cap); Comments of Thomas M. Eells at
20 (20-station cap).
Footnote: 74 Comments of Kenneth Bowles at 17 (5 stations or more); Reply Comments of
Randall C. Wright at 4
(no more than 10 nationally); Comments of Craig Admunson at 2 (maximum of 10); Comments of
Tom A. Bunch at 2
(5 to 10 nationally); Comments of Andrew Morris at 8-9 (5 to 10 nationally); Comments of
Scott D. Fowler at v (limit
of 10).
Footnote: 75 Comments of NAB at 72.
Footnote: 76 P.L. 104-104, 110 Stat. 56, § 202 (1996).
Footnote: 77 Id.
Footnote: 78 See, e.g., Comments of National Lawyers Guild, etc. at 21; Comments of Civil
Rights Organizations
at 23-24; Comments of Thomas M. Eells at 3.
Footnote: 79 See, e.g., Comments of Civil Rights Organizations at 21.
Footnote: 80 Comments of NAB at 72.
Footnote: 81 Comments of University of Dayton at 7; Comments of Positive Alternative
Radio, Inc., et al. at 12;
Comments of Morris Broadcasting Company of New Jersey, Inc. at 6.
Footnote: 82 See, e.g., Comments of National Council of La Raza at 2; Reply Comments of
the United States
Catholic Conference at 2.
Footnote: 83 See, e.g., Comments of Aaron Read at 8; Comments of Geoffrey M. Silver at 1.
Likewise, Salida
Colorado Radio Club sought an exception for school districts that may like to have very
small wattage licenses for
different schools in the same district. Comments of Salida Radio Club at 2.
Footnote: 84 Comments of Amherst at 42-43.
Footnote: 85 Report and Order in MM Docket Nos. 94-150, 92-51 & 87-154, FCC 99-207
(August 6, 1999)
(“Attribution R&O”).
Footnote: 86 47 C.F.R. § 73.3555 Note 2(h) (“The officers and directors of a parent
company of a broadcast
licensee, cable television system or daily newspaper, with an attributable interest in any
such subsidiary entity, shall be
deemed to have a cognizable interest in the subsidiary unless the duties and
responsibilities of the officer or director
involved are wholly unrelated to the broadcast licensee, cable television system or daily
newspaper subsidiary, and a
statement properly documenting this fact is submitted to the Commission.”); see also
Attribution of Ownership
Interests, 97 FCC 2d 997 (1984), on recon., 58 RR 2d 604 (1985), on further recon., 1 FCC
Rcd 802 (1986).
Footnote: 87 Given the nature of the LPFM service and our goal of limiting the burdens
imposed on the service, we
will not require the submission of a statement to the Commission documenting this recusal
( cf. 47 C.F.R. § 73.3555
Note 2(h)), but we expect licensees to effect such a recusal and to abide by it.
Footnote: 88 Unlike in the commercial attribution rule, we will not require the applicant
or licensee to seek a
waiver under these circumstances. See 47 C.F.R. § 73.3555 Note 2(h).
Footnote: 89 Comments of the National Lawyers Guild, etc. at 3-4; Comments of Civil Rights
Organizations at 33.
Footnote: 90 See, e.g., Comments of Stephen G. Toner at 2.
Footnote: 91 Comments of Amherst at 56; Comments of UCC, et al. at 33.
Footnote: 92 Comments of Alliance for Community Media at 5.
Footnote: 93 Comments of NAB at 74.
Footnote: 94 Comments of Wisconsin Rapids Broadcasting, L.L.C. d/b/a WHFR/WGLX Radio at
3-4. Many others
object to “rule-breakers” receiving licenses. Comments of Colorado West
Broadcasting, Inc. at 2; Comments of North
Cascades Broadcasting, Inc. at 8; Comments of Omni Communications, Inc. at 6; Comments of
Association of Islamic
Charitable Projects at 1.
Footnote: 95 Policy Regarding Character Qualifications in Broadcast Licensing, 102 FCC 2d
1179, ¶54-55 (1986);
recon. granted in part and denied in part, 6 FCC Rcd 3448 (1991).
Footnote: 96 Id.
Footnote: 97 See National Broadcasting Co. v. United States, 319 U.S. 190 (1943).
Footnote: 98 One commenter did propose operation on “Channels 198, 199 and 200”
(presumably 87.5 MHz, 87.7
MHz, and 87.9 MHz). See Comments of American Civil Liberties U, et al at 14. These
frequencies are currently
allocated for television broadcasting on TV Channel Six (82-88 MHz). Channel 200 is
reserved for Class D (secondary)
stations relocating to eliminate interference and was not proposed for low power use at
this time. See 47 C.F.R. §
73.512.
Footnote: 99 See, e.g., Comments of Aaron Reed; Comments of Chuckie Broadcasting Company;
Comments of
Oklahoma Department of Transportation.
Footnote: 100 See Comments of NPR (August 2, 1999) at 18; Comments of CPB at 19.
Footnote: 101 See, e.g., Comments of Amherst (April 28, 1999) at 70-71; American Civil
Liberties Union of
Massachusetts at 13.
Footnote: 102 We have identified a finite number of “superpowered” facilities
operating in the reserved band that
exceed the permissible maximum class facilities. Such facilities will receive protection
in proportion to their operating
facilities. See ¶ 70.
Footnote: 103 47 C.F.R. § 74.602(f).
Footnote: 104 Broadcast auxiliary applications are filed on FCC Form 600 and are processed
by the Commission’s
Wireless Telecommunications Bureau.
Footnote: 105 See, e.g., Comments of Media Island International at 1; Comments of City of
Berkeley, CA at 1;
Comments of Citizens Telecommunications & Technology Advisory Board of Seattle at 4;
Comments of Jennifer Anne
Barrios at 1; Comments of Citizens for Access to the Airwaves at 2.
Footnote: 106 Comments of ACLU of Massachusetts at 98.
Footnote: 107 Comments of Community Broadcasters Association at 1.
Footnote: 108 Comments of Amherst Alliance at 7.
Footnote: 109 Reply Comments of Community Broadcasters at 9.
Footnote: 110 See, e.g., Comments of Bible Broadcasting Network, Inc. at 3; Comments of
WATD at 6; Comments
of Emmis Communications Corporation at 1; Reply Comments of Cumulus Media, Inc. at 13;
Comments of Infinity
Broadcasting at 25.
Footnote: 111 Comments of Big City Radio, Inc. at 22.
Footnote: 112 Comments of Mississippi Valley Broadcasters at 8.
Footnote: 113 Comments of the Association of Federal Communications Consulting Engineers
at 13. The comments of National
Public Radio also contend that LPFM stations should not be permitted a higher priority
than FM translator stations, Comments of NPR
at 23-27. The National Association of Broadcasters, while opposing the creation of any
LPFM service, submits that FM translators and
boosters must be protected against new LP100 stations, Comments of NAB Volume One (August
2, 1999) at 63-64.
Footnote: 114 Comments of Aaron Read at 2.
Footnote: 115 Comments of Jeffrey Richman at 1.
Footnote: 116 In this regard, LP10 stations will be authorized on a secondary basis to
LP100 stations. However,
interference protection from LP10 stations to LP100 stations will be limited to the extent
of the protection afforded by
the station separation requirements.
Footnote: 117 The minimum separation distances governing LPFM stations authorizations are
based on the same
protection criteria used to derive the minimum separations among full-service FM stations;
i.e., the same
desired-to-undesired signal strength ratios applied at a station’s protected contour
and the assumption that a
protected station operates at the maximum height and power permitted for its class.
Footnote: 118 See Comments of Summit (August 2, 1999) at 2-4; see also Comments of USADR
(August 2, 1999),
Exhibit A at 3.
Footnote: 119 See Comments of NCAB/VAB (August 2, 1999) at vii-ix.
Footnote: 120 See, e.g., Comments of Dr. C. William Chignoli at ¶ 3.
Footnote: 121 Unlike full service commercial and noncommercial educational stations, we
are not adopting spacing
requirements for stations removed three channels from the LPFM frequency (third adjacent
channel), for reasons
which will be explained in a subsequent section.
Footnote: 122 Currently, noncommercial educational stations operating in the reserved band
(Channels 201 to 220,
or 88.1 MHz to 91.9 MHz) must provide protection to reception of television channel 6 in
accordance with the
provisions of 47 CFR § 73.525. We have decided that LPFM stations should also protect
reception of TV Channel 6.
This issue is covered in greater detail in ¶ 114 below.
Footnote: 123 Superpowered stations will be protected under the distance separations for
the class of station that
most closely approximates its facilities. This determination will be made based upon the
stations 1 m V/m reference
contour and the procedures for determining class listed in §73.211. A listing of correct
reserved band superpowered
stations is included in Appendix B.
Footnote: 124 Pursuant to § 74.1235, FM translators within 250 km of the Canadian border
may be authorized if
the 34 dBu F(50,10) interfering contour does not exceed 60 km in any direction from the
transmitter site. FM
translators located within 125 km of the Mexican border will be permitted to operate with
an ERP not to exceed 50
watts, provided that the 34 dBu F(50,10) interfering contour does not extend more than 32
km toward the Mexican
border, and the 60 dBu F(50,50) service contour cannot extend more than 8.7 km from the
transmitter site in the
direction of Mexico. FM translators located further than 125 km from the Mexican border,
but less than 320 km from
the border, may operate with the maximum ERP permitted for LP10 and LP100 stations,
however, the location of the
60 dBu contour must lie more than 116.3 km from the Mexican border.
Footnote: 125 See Notice at ¶ 42.
Footnote: 126 See Report and Order in MM Docket No. 96-120, 12 FCC Rcd 11840, 11847-49
(1997)
(Grandfathering of Short-Spaced Stations R&O).
Footnote: 127 See Notice at ¶ 45.
Footnote: 128 See Educational Information Corporation, 6 FCC Rcd 2207 (1991).
Footnote: 129 See Notice at ¶ 47.
Footnote: 130 The NLG study was funded by NLG, UCC, et al., and several others.
Footnote: 131 See Second and Third Adjacent Interference Study of FM Broadcast Receivers,
OET Report
FCC/OET TRB-99-1, prepared by William H. Inglis and David L. Means, July 1999.
Footnote: 132 CEMA target level was an audio Weighted Quasi-Peak (WQP) S/N ratio of 45 dB.
It indicated that
NPR had established the 45 dB audio S/N ratio for quality broadcasting on a previous
project. See CEMA’s
Laboratory Test Report at p.1.
Footnote: 133 See Comments of CEMA at ii-iii, and Laboratory Test Report at pp. 1-7.
Footnote: 134 See Comment of NAB Vol. 2 at 22-26.
Footnote: 135 See Reply Comments of NAB at 8.
Footnote: 136 See Executive Summary of the NLG study.
Footnote: 137 NLG stated that while the transition zone in its distortion and noise tests
did not pinpoint the
conditions under which a listener would decide a signal is undesirable to listen to, it
was the most identifiable
characteristic common to the radios in its tests.
Footnote: 138 See OET study at 3.
Footnote: 139 Theodore S. Rappaport conducted this study on behalf of MAP. See ¶ 75.
Footnote: 140 See Rappaport study at 2.
Footnote: 141 See Rappaport study at 12.
Footnote: 142 The percentage values cited reflect differences in LPFM power levels from 1
watt to 100 watts and
are based on the average population density for the 60 cities studied in the Notice.
Rappaport acknowledges that
results will vary from city to city. Rappaport Study at 23-24.
Footnote: 143 See Rappaport Study at 41.
Footnote: 144 See Rappaport Study at 47-54.
Footnote: 145 For example, in the Notice we referenced the view of USADR, an IBOC
technology proponent, that
“because of the design of the USADR IBOC system, digital reception is essentially not
susceptible to 3rd-adjacent
channel interference….” Notice Appendix C at ¶ 53.
Footnote: 146 For example, CEMA and NAB, in their studies, conclude that 2 nd- and
3rd-adjacent channel
protections are needed and should be retained to protect against interference while the
OET and NLG studies suggest
that these interference protections may not be needed in certain circumstances.
Footnote: 147 See Reply Comments of NAB, Appendix B, Pickholtz/Jackson Review at iii.
Footnote: 148 In this regard, NAB criticizes the OET study for its use of harmonic
distortion measurements rather
than the more traditional S/N measurements employed in the NAB and CEMA studies. We
believe that this criticism is
unwarranted. Both S/N and harmonic distortion measurements can be used to satisfactorily
measure interference to
FM receivers. Both of these techniques quantify in an accurate and repeatable manner the
amount of energy produced
by the interfering signal in the receiver’s audio output. However, there are
advantages and disadvantages to each
approach. While it is true, as NAB and their consultants have suggested, that harmonic
distortion measurements are
relatively less sensitive – that is, they produce a smaller change in measured
results for a given change in
undesired-to-desired signal ratio – the change in distortion is well within the
resolution capability of the measuring
equipment. On the other hand, distortion measurements provide an advantage over S/N
measurements in that they
measure the effect of interference on audio output in the presence of the desired
signal’s modulation, thus capturing
any audio intermodulation effects that might be caused by interaction of the desired and
interfering signals. S/N
measurements, in contrast, require that the desired signal’s modulation be removed to
measure the interference
component, thus missing any opportunity to capture this effect.
We also note that there are slight differences between the NAB and CEMA S/N measurements.
In measuring S/N, the
value actually measured is (S+N)/N. To make this measurement, one first establishes a
reference by measuring the
total level of the unimpaired desired signal at baseband and any system noise also at
baseband, then removing the
desired baseband signal and measuring the relative level of the baseband noise in the
presence of the impairment. So
the ratio actually reported is unimpaired S+N to impaired N. Because of shifts in the
reference level noted when
impairments are introduced (shifts in either direction, apparently caused by either
receiver desensitization or the
contribution of noise, or both), CEMA chose to re-establish the reference level in the
presence of the impairment while
NAB did not. Thus, CEMA’s reported ratio is actually impaired S+N to impaired N.
NAB also implies that the test methodology used in the OET study is faulty. NAB makes this
claim based on its
assertion that the OET test results are significantly different from its results and the
results of the other studies when
those other results are interpolated to NAB’s 50 dB S/N criteria. We find NAB’s
argument in this regard specious and
unpersuasive. Interpolating all test results, except one, to a given criteria and then
commenting that the one test result
not interpolated is different does not call into question OET’s test methodology in
our opinion but rather NAB’s
analysis. In this regard, a direct comparison between OET’s test results at 3%
distortion and measured and
interpolated results at 50 dB S/N is not appropriate and provides no basis for calling
into question the validity of
OET’s tests. We note that OET measured the S/N performance of one of the receivers in
CEMA’s sample and obtained
the same results as CEMA.
Footnote: 149 See Comments of NAB Vol. 1 at 28.
Footnote: 150 NAB also cites ITU Recommendation 641, which specified an audio S/N of 50 dB
assuming that
receivers can produce a S/N of 56 dB without interference, in support of its S/N choice of
50 dB. Recommendation 641,
“Determination of Radio-Frequency Protection Rations for Frequency-Modulated Sound
Broadcasting,” 1986, ITU,
Geneva, Switzerland. See Comments of NAB Vol. 2 at 8.
Footnote: 151 See NAB’s Subjective Evaluation of Audio Degraded by Noise and
Undesired FM Signals, Lawrence
C. Middlekamp, November 17, 1982.
Footnote: 152 Only 3 of the 28 receivers met the criteria of providing a S/N of 56 dB in
the absence of interference.
In addition, in its reply comments, NAB argues that the one of the only classes of
receivers that come close to meeting
its proposed 50 dB standard, i.e., automobile radios, should be excluded and treated
separately because they operate in
a mobile environment and therefore require higher protection. NAB argues that an
additional 30 dB of margin is
needed in the protection ratios to account for multipath fading and other considerations
of mobile operation. See Reply
Comments of NAB at 15-16.
Footnote: 153 CEMA also indicates that its sample did not meet its target S/N at the
FCC’s 1 st-, 2nd-, and
3rd-adjacent channel protection ratios.
Footnote: 154 See Reply Comments of NAB at 8.
Footnote: 155 The OET study did not, however, include small, inexpensive receivers with
integral antennas, such as
clock and personal radios. Similarly, the NLG study employed a sample of only 10 radios
and, as pointed out by NAB,
it is difficult to draw general conclusions for the FM receiver population from such a
small sample.
Footnote: 156 The above conclusions of the OET report that “nearly all the receivers
in the sample appear to meet
or exceed the 40 dB 2 nd-adjacent channel criterion and exceed the 3rd-adjacent channel
protection criterion by a
substantial margin” reflect measurements taken at the 1% distortion level. NAB, in
its reply comments, asserts that for
the OET study, interference was considered to exist when the desired audio from the
receiver contained 3% or more
distortion than with no interfering signal present. NAB states that it assumes this to be
the case because if 1%
distortion were the interference point there would be no point in collecting 3% data.
NAB’s assumption is incorrect.
The 1% and 3% levels were merely two points at which data were collected. The 1% level
corresponds to a point at
which most listeners would not be able to perceive any degradation in performance. On the
other hand, the 3%
distortion represents a level at which most listeners would perceive a difference in the
received signal. The 3%
distortion level was also chosen after informal consultations by FCC staff with the test
firm hired by NAB, which
stated that it recommended this value as a test point.
Footnote: 157 CEMA reported average rather than median performance. Its findings showed an
average S/N ratio
of 34 dB at the -40 dB D/U level.
Footnote: 158 NAB’s study shows median receiver performance values at different
desired signal levels. These
median values are as follows:
Desired Signal Level
Median 2 nd Adjacent
Median 3rd Adjacent
-45 dBm
-17.0 dB
-26.8 dB
-55 dBm
-23.7 dB
-32.0 dB
-65 dBm
-30.5 dB
-39.7 dB
Footnote: 159 These interference estimates are calculated in accordance with the FM
engineering charts in Section
73.333 of the rules, 47 CFR § 73.333.
Footnote: 160 As indicated above, NAB defines interference as a degradation in audio S/N
performance of 5 dB.
Using this measure, all five personal radios and two of the five portable radios tested by
NAB could be considered to
provide no service at all beyond the –45 dBm level, since they all exhibited a
greater than 5 dB degradation in
performance when the desired signal was reduced below –45 dBm even with no
interference present. Therefore, it is
questionable whether interference estimates for these radios using NAB’s methodology
are meaningful.
Footnote: 161 See CEMA study at 6.
Footnote: 162 In contrast, effective radiated power (ERP) refers to the power which is
radiated from the antenna.
ERP incorporates the transmission line loss – the power loss of the cable used
between transmitter and antenna – and
the gain of the antenna. Thus, it is possible for the effective radiated power to be
greater than the transmitter power
output (TPO), by using an antenna with a gain greater than 1.0. For simple systems, the
ERP = TPO x (antenna gain)
x (efficiency of transmission line), where the antenna gain and efficiency are decimal
numbers (not in decibels = dB).
In most cases, the antenna manufacturer or the transmission line manufacturer should be
able to provide this
information
Footnote: 163 See Comments of ABA at 14.
Footnote: 164 As a practical matter, this allowance will limit LP100 stations to 450
meters HAAT and LP10
stations to 100 meters HAAT. These HAAT values would produce equivalent maximum class
contours for stations
operating with 1 watt ERP, the lowest value we will authorize.
Footnote: 165 Antenna height above average terrain (commonly abbreviated HAAT) does not
refer to the height of
the antenna above ground level. The antenna height above average terrain is a measure of
the height of the antenna
relative to a generated average terrain level . The average terrain level is computed by
considering the terrain along 8
or more evenly spaced radials centered at the antenna site. For each of these radials, the
ground elevations at 50 or
more evenly spaced points are determined and averaged. Then, the radial terrain averages
are averaged together to
determine the height of the average terrain above mean sea level (AMSL). The antenna
height above average terrain
(HAAT) is the difference between the height of the antenna (AMSL) minus the average height
of the terrain AMSL.
Footnote: 166 The Commission’s prediction of coverage methodology does not account
for HAAT’s below 30
meters. In such cases, 30 meters is assumed when contour distances are determined.
Footnote: 167 We will specify ERP to the nearest watt. This differs slightly from the full
service FM rounding
procedures. See 47 C.F.R. § 73.212.
Footnote: 168 See 47 C.F.R. § 73.316.
Footnote: 169 Manufacturers of suitable antennas can provide assistance in determining the
antenna gain of a
particular antenna, and also the input power needed to emit a specified effective radiated
power.
Footnote: 170 LPFM applicants may use the AM Query on the Internet to determine whether an
AM station lies
within 3.2 km of a particular set of coordinates. The query may be accessed at .
Footnote: 171 For towers less than 61 meters in height, FAA approval is not required if
the structure is more than
eight kilometers from the nearest air facility. If the structure is within eight
kilometers of an air facility, FAA
notification is not required if the height of the structure, when considered along with
the distance to the air facility and
elevation of the antenna site, satisfies a “slope” calculation. (These criteria
are independent of the ERP of the facility.)
Footnote: 172 High strength RF signals, which emanate from the antenna before they are
dissipated over space, are
capable of covering, or blanketing, the reception of all other FM stations and possibly TV
stations and other electronic
communications, regardless of frequency, by simply overpowering the receiver’s tuner.
Thus, the name “blanketing
interference.”
Footnote: 173 See 47 C.F.R. § 73.318.
Footnote: 174 To a degree, Section 73.318 lacks detail regarding the exact requirements of
licensees. However,
over the years a clear interpretation of the rule has been developed by the Mass Media
Bureau. The Commission
proposed to codify this policy further in MM Docket 96-62, which is currently pending. See
In the Matter of
Amendment of Part 73 of the Commission’s Rules to More Effectively Resolve Broadcast
Blanketing Interference,
Including Interference to Consumer Electronics and Other Communications Devices, 11 FCC
Rcd 4750 (1996). We
will apply the rule in accordance with the established precedents.
Footnote: 175 This methodology is similar to that used in the FM translator rules. S ee 47
C.F.R. § 74.1205. The
FM translator table was used in Appendix D of the Notice, “Spectrum Availability
Analysis.”
Footnote: 176 See, e.g., Comments of National Association of Radio Reading Services at 1.
Footnote: 177 See ¶ 65, adding 20 km buffer.
Footnote: 178 See, e.g., Comments of John Benjamin and Charles Coplein at 6; Comments of
Spencer Graddy
Clark at 6.
Footnote: 179 See 47 C.F.R. § 2.907.
Footnote: 180 For additional information about unattended operation, please refer to the
information sheet
Unattended Operation of Radio and Television Broadcast Stations, which may be retrieved on
the Internet through the
address .
Footnote: 181 In addition, as also detailed in § 73.1030, the Mass Media Bureau staff
will coordinate action with
the Enforcement Bureau if an application is predicted to place a signal strength of 80 dBu
or more over an FCC
monitoring station. As with current practice, there is no pre-filing notification
requirement.
Footnote: 182 1998 Biennial Regulatory Review—Streamlining of Mass Media
Applications, Rules and Processes,
Report and Order in MM Docket No. 98-43, 13 FCC Rcd 23056 (1998) (“ Streamlining
R&O”).
Footnote: 183 Notice, 14 FCC Rcd at 2504-06.
Footnote: 184 Comments of Metro at 12-13. Metro also express concern that mandatory
electronic filing would
create barriers for small businesses. Comments of Metro at 12. The eligibility criteria we
are adopting for LPFM
applicants, however, will exclude for-profit businesses. See ¶ 17-20.
Footnote: 185 Comments of Metro at 13.
Footnote: 186 Comments of the Oklahoma and Texas Departments of Transportation at 6.
Footnote: 187 See Comments of Stephen Toner at 1; Comments of Dane Udenberg at 1.
Footnote: 188 In order to simplify their use and speed their processing, the Commission
has streamlined broadcast
applications in adapting them to an electronic format. Open-ended questions requiring
detailed exhibits have been
replaced with simple yes/no questions as to compliance with Commission rules, supplemented
by instructions and
worksheets to explain the pertinent rules and help ensure that applicants answer the
questions correctly. See
Streamlining Report and Order, 13 FCC Rcd at 23067-68.
Footnote: 189 With regard to operation and security issues, the electronic filing system
for LPFM applications will
function in a similar manner as the Commission’s system for other broadcast
applications. See Streamlining R&O, 13
FCC Rcd at 23062-65.
Footnote: 190 Notice, 14 FCC Rcd at 2506-07.
Footnote: 191 See Implementation of Section 309(j) of the Communications
Act—Competitive Bidding for
Commercial Broadcast and Instructional Television Fixed Services, First Report and Order,
MM Docket No. 97-234,
13 FCC Rcd 15920, 15972-74 (1998).
Footnote: 192 Reexamination of the Comparative Standards for Noncommercial Educational
Applicants, Further
Notice of Proposed Rulemaking in MM Docket No. 95-31, 13 FCC Rcd 21167, 21175 (1998).
Footnote: 193 Under first-come first-served procedures, applications may be filed at any
time, and the filing of an
acceptable application precludes the subsequent filing of mutually exclusive applications,
unless filed on the same day.
Mutual exclusivity arises when competing applications are filed on the same day. These
procedures now are used only
for minor changes for commercial and NCE broadcast stations. See 1998 Biennial Regulatory
Review—Streamlining of
Radio Technical Rules in Parts 73 and 74 of the Commission’s Rules, First Report and
Order in MM Docket No. 98-93,
14 FCC Rcd 5272, 5273-77 (1999).
Footnote: 194 Notice, 14 FCC Rcd at 2506.
Footnote: 195 Id.
Footnote: 196 See, e.g., Comments of Michael Robert Birdsill at 5; Comments of Ronnie
Miller at 18-19; Comments
of Andrew Morris at 15; Reply Comments of Kenneth W. Bowles at 19 (supporting short filing
windows of only a few
days or less); Comments of Creative Educational Media Corp. at 11; Comments of Positive
Alternative Radio at 15;
Comments of Community Media at 9; Comments of Oklahoma and Texas Departments of
Transportation at 6;
Comments of UCC, et al. at 35 (supporting windows of several months, open each year at the
same time).
Footnote: 197 Joseph Belisle and Stephen Toner suggest that LPFM applicants be limited to
one application per
window to reduce the likelihood of mutual exclusivity and to prevent speculative or
abusive filings. Comments of
Joseph Belisle at 1; Comments of Stephen Toner at 1. We need not consider this suggestion
in light of the eligibility
requirements we are adopting for LPFM applicants. In addition, for the reasons discussed
below, we reject the
suggestions of several commenters that the first filing window be reserved for
institutions that serve women and
minorities, or for applicants with a demonstrated commitment to their communities. See ¶
137.
Footnote: 198 See, e.g., Comments of Joseph Belisle at 1; Comments of John Bowker at 18;
Comments of Kirk
Chestnut at 1; Comments of David McOwen at 3-4; Comments of Forrest Parsons at 2.
Footnote: 199 Comments of Ronnie V. Miller at 18-19.
Footnote: 200 See, e.g., Comments of Scott Drew at 2; Comments of Community Broadcasters
at 18.
Footnote: 201 Auctions 1st R&O, 13 FCC Rcd at 15973 .
Footnote: 202 Without mandatory electronic filing, the staff would have no way of
determining the filing priority of
applications that were electronically-filed and paper-filed on the same day.
Footnote: 203 Cf. Review of the Commission’s Regulations Governing Television
Broadcasting, Order on
Reconsideration, MM Docket No. 91-221, FCC 99-343 (released November 10, 1999) (rejecting
first come-first served
processing of applications filed pursuant to modified rules adopted in the local broadcast
ownership proceeding
because, among other things, “a ‘first come, first served’ system could
initiate a ‘race’ to Mellon Bank to file
applications, and result in filers camping out to be first in line at the filing
counter.”).
Footnote: 204 This Order will become effective 60 days after publication in the Federal
Register.
Footnote: 205 For the reasons discussed above, the first filing window will be open solely
to applicants for 100-watt
LPFM stations. See ¶ 11-14. We anticipate opening a second filing window for 10-watt LPFM
stations in the future,
after the close of the first window. See id.
Footnote: 206 Information about application procedures, and in particular the timing of
the application window,
will be available on the Commission’s LPFM website: www.fcc.gov\mmb\prd\lpfm.
Footnote: 207 See discussion of the city-grade contour, at ¶ 67.
Footnote: 208 See ¶¶ 136-152.
Footnote: 209 A tentative selectee whose application is found unacceptable for filing will
be given a single
opportunity to submit a curative amendment, provided that the amendment is minor and the
amended application has
the same number of points as originally claimed, or more than the points claimed by the
next highest applicant.
Tentative selectees whose applications remain unacceptable for filing after this
opportunity will be removed from their
mutually exclusive groups, and will not be provided with an additional opportunity to
amend.
Footnote: 210 See 47 C.F.R. § 73.3584.
Footnote: 211 Notice, 14 FCC Rcd at 2483, 2485.
Footnote: 212 Id. at 2507-08, citing Balanced Budget Act of 1997, § 3002(a)(1), codified
as 47 U.S.C. § 309(j); see
Auctions 1st R&O, 13 FCC Rcd at 15924-25 (concluding that auctions are mandatory for
all primary and secondary
commercial broadcast services).
Footnote: 213 See NCE Further Notice, 13 FCC Rcd at 21170-81.
Footnote: 214 See, e.g., Comments of Mid-America Broadcasting Company at 4; Comments of
Morris
Broadcasting Company at 11-12; Comments of Mark Pfohl at 1; Comments of Positive
Alternative Radio at 9;
Comments of Keith Reising at 1; Comments of Douglas E. Smith at 2; Comments of Voice of
Vashon at 2; Comments
of Robert T. Wertime at 1; Comments of Zillah School District at 5. Likewise, many of the
comments filed in response
to the two petitions for rule making requesting the creation of low power radio services
opposed the use of auctions.
See Notice, 14 FCC Rcd at 2507.
Footnote: 215 See, e.g ., Comments of Mid-America Broadcasting Company at 4; Comments of
Morris
Broadcasting Company at 10-11; Comments of Keith Reising at 1; Comments of Zillah School
District at 5.
Footnote: 216 See, e.g., Comments of Alliance for Community Media at 9; Comments of Robert
T. Wertime at 1.
Footnote: 217 See Comments of CDC at 13.
Footnote: 218 Applicants also will be able to propose time-sharing as part of a settlement
agreement among all
mutually exclusive applicants, at any time after the release of a public notice
identifying their mutual exclusive group.
See ¶ 147.
Footnote: 219 See Auctions 1st R&O, 13 FCC Rcd at 15928-31.
Footnote: 220 NCE Further Notice, 13 FCC Rcd at 21171.
Footnote: 221 We clarify that we permit LPFM applicants to propose settlements to resolve
mutually exclusive
applications because the use of settlements serves the public interest in instances such
as this where auctions are not
permissible. In light of the fact that we are not auctioning this service, we believe
settlements provide an appropriate
method to resolve issues of unresolved mutual exclusivity and avoid the risk of protracted
hearings. See ¶ 150.
Footnote: 222 See NCE Further Notice, 13 FCC Rcd at 21171-72.
Footnote: 223 See Adarand Constructors v. Pena, 515 U.S. 200 (1995).
Footnote: 224 Our decision here is not intended to prejudge the issues raised in our
proceeding reexamining the
comparative standards for full-service NCE stations. See NCE Further Notice, 13 FCC Rcd at
21171-76.
Footnote: 225 See 47 C.F.R. §74.913. The ITFS is a nonbroadcast, point-to-point service
intended primarily to
provide formal educational programming offered for credit to enrolled students of
accredited schools. Pursuant to the
provisions of the Balanced Budget Act of 1997, the Commission has determined that pending
and future mutually
exclusive ITFS applications shall be resolved by competitive bidding, unless Congress
enacts legislation exempting
ITFS from competitive bidding. See Auctions 1st R&O, 13 FCC Rcd at 1600304.
Footnote: 226 See ¶ 163.
Footnote: 227 See NCE Further Notice, 13 FCC Rcd at 21181-83.
Footnote: 228 See, e.g., Comments of Kirk Chestnut at 1 (require competing applicants to
demonstrate community
interest in their applications with letters of endorsement from community leaders and
citizens); Comments of Morris
Broadcasting Company at 7 (preference for applicants with record of prior service to
minority communities or prior
employment of minorities).
Footnote: 229 See Streamlining R&O, 13 FCC Rcd at 23084-87.
Footnote: 230 See ¶ 182.
Footnote: 231 See generally Arizona Communications Corp., 25 FCC 2d 837 (1970), recon.
denied, 27 FCC 2d
283 (1971).
Footnote: 232 See Amendment of Section 73.1125 and 73.1130 of the Commission’s Rules,
the Main Studio and
Program Origination Rules for Radio and Television Broadcast Stations, Memorandum Opinion
and Order in MM
Docket No. 86-406, 3 FCC Rcd 5024, 5026 (1988).
Footnote: 233 See ¶ 186.
Footnote: 234 See Notice, 14 FCC Rcd at 2471; see also Comments of Alliance for Community
Media at 7
(advocating points to applicants providing most local programming); Comments of UCC, et
al. at 35 (advocating
point system using local program origination criteria).
Footnote: 235 As noted above, a primary concern of the court in Bechtel was that there was
no obligation for
successful applicants to adhere to their integration proposals. See ¶ 34.
Footnote: 236 See generally Streamlining R&O, 13 FCC Rcd at 23084-87.
Footnote: 237 See NCE Further Notice, 13 FCC Rcd at 21177-80.
Footnote: 238 See, e.g., Comments of Mid-America Broadcasting Company at 9; Comments of
Southeast
Association of Microbroadcasters at 1; see also Comments of Morris Broadcasting Company at
10-11 (preference for
applicants with record of prior service to minority communities or prior employment of
minorities).
Footnote: 239 515 U.S. 200 (1995).
Footnote: 240 For example, two time-sharers that claimed points individually for
established community presence
and proposed operating hours and local program origination may claim a combined two points
for each of these
criteria, for a total of six points. They need not aggregate hours of operation or
locally-originated programming to
aggregate their points for these criteria.
Footnote: 241 NCE Further Notice, 13 FCC Rcd at 21180.
Footnote: 242 Notice, 14 FCC Rcd at 2471.
Footnote: 243 If for some reason a successive term licensee becomes unable to operate the
station during its portion
of the license term, that licensee’s time will be divided equally among the remaining
licensees for that station.
Footnote: 244 For example, assume an unresolved tie among four grantable applications. If
permittees A, B, C and
D file their license applications in that order, then their two-year license terms will be
in that sequence, with the eight
years commencing on the date that A’s license application is granted.
Footnote: 245 See 47 C.F.R. § 73.3525.
Footnote: 246 See NCE Further Notice, 13 FCC Rcd at 21176, n. 22. 47 U.S.C. §155(c)(1).
Footnote: 247 The Commission previously secured similar legislation allowing it to
delegate authority to the staff to
conduct ITFS point system proceedings. See id.
Footnote: 248 Comments of Robert W. Federal at 5; Comments of Scott D. Fowler at 4;
Comments of John D.
Bowker at 16.
Footnote: 249 Comments of Craig F. Amundsen at 1.
Footnote: 250 Comments of Jeffery A. Copeland at 2; Comments of Aaron Read at 14.
Footnote: 251 Comments of Jennifer Anne Barrios at 1; Comments of Robert Kevess, MD at 1;
Comments of REC
Networks at 16.
Footnote: 252 Comments of Amherst at 12-13; Comments of NLG at 35; Comments of Jonathan
Tesser at 2.
Footnote: 253 Comments of REC Networks at 16.
Footnote: 254 Comments of Michael Robert Birdsill at 4; Comments of Sunbury Broadcasting
Corp. at 2.
Footnote: 255 Comments of Crawford Broadcasting Co. at 7; Comments of Craig F. Amundsen at
1; Comments of
John R. Benjamin and Charles Coplien at 3; Comments of Spencer Graddy Clark at 3; Comments
of William T.
Croghan, Jr. at 10; Comments of Judith Fielder and Nickolaus E. Leggett at 5; Comments of
John D. Bowker at 16;
Comments of Gary L. Nixon at 2; Comments of Scott D. Fowler at 44; Comments of Warren
Michelsen at 6;
Comments of Andrew Morris at 13; Comments of Jeffrey S. Richman at 3; Comments of REC
Networks at 6;
Comments of Douglas E. Smith at 4.
Footnote: 256 Comments of Jeffrey S. Richman at 3-4.
Footnote: 257 Comments of Douglas E. Smith at 4; Comments of Warren Michelsen at 6.
Footnote: 258 Comments of REC Networks at 16.
Footnote: 259 See Comments of NLG at 35; Comments of John D. Bowker at 16; Comments of
Scott D. Fowler at
44. NLG suggests that a renewal preference be given initially to LPFM licensees, but that
preference could be lessened
after a 10-year period and possibly eliminated after a twenty-year period. NLG further
believes that a renewal
preference should be given to an LPFM station that has joined a local self-regulatory
organization. Comments of NLG
at 35.
Footnote: 260 Comments of Jennifer Anne Barrios at 1; Comments of Robert Kevess, MD at 1.
Footnote: 261 47 C.F.R. § 73.1020(a). We may, however, issue either an initial or renewed
license for a lesser term
if we find doing so is in the public interest, convenience, and necessity. Id.; see 47
U.S.C. §307(c).
Footnote: 262 Implementation of Section 203 of the Telecommunications Act of 1996
(Broadcast License Terms),
Sections 73.1020 and 74.15, MM Docket No. 96-90, Report and Order, 13 FCC Rcd 1720, 1727,
¶ 18 (1997).
Footnote: 263 Licenses renewed for eight years in Maryland, the District of Columbia,
Virginia, and West Virginia
will expire on September 30, 2003. 47 C.F.R. §73.1020(a)(1). Licenses renewed for eight
years in Delaware and
Pennsylvania will expire on July 31, 2006. Id. §73.1020(a)(18).
Footnote: 264 Thus, for example, initial applications for licenses in Maryland filed
within the current license cycle
will expire on September 30, 2003, and initial applications for licenses in Pennsylvania
filed within the current license
cycle will expire on July 31, 2006. While we anticipate that many applicants will be
licensed in Maryland with
expiration dates of September 30, 2003, any applicant licensed in Maryland after September
30, 2003, will be assigned
an expiration date no later than September 30, 2011. Likewise, any applicant licensed in
Pennsylvania after July 31,
2006, will be assigned an expiration date no later than July 31, 2014.
Footnote: 265 See ¶ 149.
Footnote: 266 See 47 U.S.C. § 309(k)(1).
Footnote: 267 See Formulation of Policies and Rules Relating to Broadcast Renewal
Applicants, Competing
Applicants, and Other Participants to Comparative Renewal Process and to the Prevention of
Abuses of the Renewal
Process, Third Further Notice of Inquiry and Notice of Proposed Rule Making, 4 FCC Rcd
6363, 6364, ¶ 9 (1989)
(quoting Central Florida Enterprises, Inc. v. FCC, 683 F.2d 503, 507 (D.C. Cir. 1982), see
also Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 858 (D.C. Cir. 1970) (stating that renewal
expectancies are provided “to
promote security of tenure and to induce efforts and investments, furthering the public
interest, that may not be
devoted by a licensee without reasonable security”).
Footnote: 268 Notice, 14 FCC Rcd at ¶ 86; CRC Petition for Rule Making at 5.
Footnote: 269 See, e.g., Comments of ACLU of Mass. et al. at 5-6; Comments of KVOI at 1;
Comments of City of
Berkeley, CA at 1; Comments of Jennifer Anne Barrios at 2; Comments of Eric Brown at 1;
Comments of Mari J. Caro
at 1; Comments of Robert Kevess MD at 1; Comments of Miles Ohlrich at 1. John Bowker would
permit sale of a
license only for an amount equivalent to the depreciated value of the existing plant.
Comments of John Bowker at 16.
Quinnipiac College would permit the sale of stations only to entities that do not own
other commercial stations.
Comments of Quinnipiac College at 2.
Footnote: 270 Comments of Civil Rights Organizations at 26; Comments of UCC, et al. at 16.
UCC, et al. would
permit waiver of the anti-trafficking rule for good cause.
Footnote: 271 Comments of UCC, et al. at 16.
Footnote: 272 Comments of ACLU of Mass. et al. at 5-6.
Footnote: 273 See, e.g., Comments of Scott D. Fowler at 45.
Footnote: 274 See Comments of John D. Bowker at 15; Comments of William T. Croghan, Jr. at
9.
Footnote: 275 Comments of Low Power Radio Coalition at 6.
Footnote: 276 Comments of UCC, et al. at 19-21.
Footnote: 277 Comments of NAB at 75-76.
Footnote: 278 Comments of NLG at 36.
Footnote: 279 Comments of Andrew Morris at 10; Comments of Trident Media at 2; Comments of
Gary L. Nixon at
1.
Footnote: 280 See 47 U.S.C. § 309(a).
Footnote: 281 See Report and Order, BC Docket No. 78-253, 51 RR 2d 476 (1982) (Low Power
Television R&O).
Footnote: 282 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).
Footnote: 283 47 U.S.C. § 317; 47 C.F.R. § 73.1212. See ¶ 75 for a discussion of
political programming rules.
Footnote: 284 47 C.F.R. §73.1208.
Footnote: 285 47 C.F.R. § 73.1920.
Footnote: 286 47 C.F.R. § 73.1201.
Footnote: 287 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).
Footnote: 288 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.
Footnote: 289 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).
Footnote: 290 Comments of Amherst at 57-58.
Footnote: 291 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).
Footnote: 292 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.
Footnote: 293 Comments of Civil Rights Organizations at 26; Comments of Gary L. Nixon at
10.
Footnote: 294 Comments of Gary L. Nixon at 10.
Footnote: 295 Comments of UCC, et al. at 4, n.1.
Footnote: 296 See ¶ 144 (mutually exclusive applicants that pledge to provide at least
eight hours of locally
originated programming will receive one point).
Footnote: 297 Comments of UCC, et al. at 19-21; see also Comments of NLG at 36.
Footnote: 298 Comments of REC Networks at 15; Comments of John D. Bowker at 15.
Footnote: 299 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.
Footnote: 300 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.
Footnote: 301 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.
Footnote: 302 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).
Footnote: 303 See 47 C.F.R. § 73.1942(d).
Footnote: 304 47 C.F.R. § 73.1941(e).
Footnote: 305 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).
Footnote: 306 See, e.g., Comments of Andrew Morris at 14; Comments of Jeffrey S. Richman
at 5.
Footnote: 307 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).
Footnote: 308 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.
Footnote: 309 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.”
Footnote: 310 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).
Footnote: 311 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.
Footnote: 312 See 47 C.F.R. § 73.561.
Footnote: 313 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.
Footnote: 314 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.
Footnote: 315 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.
Footnote: 316 As noted above, however, LPFM licensees must maintain a political file. See
¶ 175.
Footnote: 317 Report and Order in BC Docket No. 78-253, 51 RR 2d 476 (1982) (“Low
Power Television R&O”).
Footnote: 318 See 47 C.F.R § 73.2080(a).
Footnote: 319 Bilingual Bicultural Coalition on Mass Media, Inc. v. FCC, 595 U.S. 621,
628-29 (D.C. Cir. 1978).
Footnote: 320 See 47 C.F.R. § 73.2080(b) and (c).
Footnote: 321 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).
Footnote: 322 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.
Footnote: 323 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).
Footnote: 324 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.”).
Footnote: 325 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).
Footnote: 326 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.
Footnote: 327 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.
Footnote: 328 Comments of the Oklahoma Department of Transportation at 5; Comments of the
Texas Department
of Transportation at 5.
Footnote: 329 Comments of Andrew Morris at 13.
Footnote: 330 Comments of Andrew Morris at 13; Comments of REC Networks at 7.
Footnote: 331 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.).
Footnote: 332 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).
Footnote: 333 Comments of Andrew Morris at 13; Comments of William T. Croghan, Jr. at 10.
Footnote: 334 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.
Footnote: 335 Comments of NAB at 77; Comments of John D. Bowker at 16.
Footnote: 336 Comments of West End Radio at 1.
Footnote: 337 Comments of Aaron Read at 15.
Footnote: 338 Comments of Wright Broadcasting at 10-11.
Footnote: 339 47 C.F.R. § 11.11(a).
Footnote: 340 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.
Footnote: 341 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.
Footnote: 342 Class D noncommercial educational FM and LPTV stations are not required to
install or operate
encoders as defined in section 11.32, 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.
Footnote: 343 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.
Footnote: 344 Such equipment is used, for instance, by police or fire departments to
monitor the Emergency Alert
System.
Footnote: 345 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.
Footnote: 346 EAS First Report and Order, 10 FCC Rcd at 1830, ¶ 123.
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