**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**THIRD REPORT AND ORDER AND**

**SECOND FURTHER NOTICE OF PROPOSED RULEMAKING**

**Adopted: November 27, 2007 Released: December 11, 2007**

**Comment Date: \[30 days after date of publication in the Federal
Register\]**

**Reply Comment Date: \[45 days after date of publication in the Federal
Register\]**

By the Commission: Chairman Martin; Commissioners Copps, and Adelstein
issuing separate statements. Commissioners Tate and McDowell approving
in part, dissenting in part, and issuing separate statements.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION 1

II\. BACKGROUND 2

III\. DISCUSSION 11

> A. Ownership and Eligibility 11
>
> 1\. Alienability of Authorizations 11
>
> a\. Changes in Board Membership 11
>
> b\. Assignments and Transfers 14
>
> c\. Procedures 18
>
> 2\. Ownership and Eligibility Limitations 21
>
> 3\. Time-Sharing 26
>
> a\. Deadline for Submission of Voluntary Time-Sharing Agreements 27
>
> b\. License Renewal Procedures for Parties to Time-Sharing
> Arrangements 30
>
> B. Technical Rules 37
>
> 1\. Construction Period 37
>
> 2\. Technical Amendments 41
>
> 3\. LPFM -- FM Translator Interference Priorities 43
>
> 4\. Interference Protection from Subsequently Authorized Full-Service
> FM Stations 58
>
> a\. Section 73.809 Interference Procedures 63
>
> b\. Section 73.807 Second-Adjacent Channel Waiver Standard 64
>
> c\. LPFM Station Displacement 68

IV\. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING 72

> A. Section 73.807 Second-Adjacent Channel Waiver Standard 74
>
> B. LPFM Station Displacement 75
>
> C. Obligations of Full-Service New Station and Modification Applicants
> to Potentially Impacted LPFM Stations 76
>
> D. Contour Protection-Based Licensing Standards for LPFM Stations 78
>
> E. LPFM-FM Translator Protection Priorities 84

V. CONCLUSION 85

VI\. ADMINISTRATIVE MATTERS 86

A.  Filing Requirements 86

B.  Regulatory Flexibility Analysis 89

C.  Paperwork Reduction Act Analysis 91

D.  Congressional Review Act 94

E.  Additional Information 95

VII\. ORDERING CLAUSES 96

APPENDIX A -- List of Commenters and Reply Commenters

APPENDIX B -- Rule Changes

APPENDIX C -- Initial Regulatory Flexibility Analysis

APPENDIX D -- Final Regulatory Flexibility Analysis

# introduction

1.  In March 2005, the Commission released a *Second Order on
    Reconsideration and Further Notice of Proposed Rulemaking* as part
    of its ongoing efforts to promote the operation and expansion of the
    low power FM ("LPFM") service.[^1] In the *Second Order*, the
    Commission made minor changes to the LPFM rules. The accompanying
    *FNPRM* sought comment on a number of issues related to ownership
    and eligibility restrictions for LPFM licensees, as well as
    technical matters related to the LPFM service. This *Third Report
    and Order* resolves the issues raised in the *FNPRM*. In so doing,
    this Order advances the Commission's goal "to ensure that we
    maximize the value of LPFM service without harming the interests of
    full-power FM stations or other Commission licensees."[^2] In light
    of changed circumstances since we last considered the issue of
    protection rights for LPFM stations from subsequently authorized
    full-service stations, we also find it necessary to consider certain
    rule changes to avoid the potential loss of LPFM stations.
    Accordingly, we issue a *Second Further Notice of Proposed
    Rulemaking* ("*Second Further Notice*") to seek comment on these
    changes.

# background

2.  In January 2000, the Commission adopted rules to establish two
    classes of LPFM facilities: (a) the LP100 class, consisting of
    stations with a maximum power of 100 Watts effective radiated power
    ("ERP") at 30 meters antenna height above average terrain ("HAAT"),
    providing an FM service radius (1 mV/m or 60 dBμ) of approximately
    3.5 miles (5.6 kilometers); and (b) the LP10 class, consisting of
    stations with a maximum of 10 Watts ERP at 30 meters HAAT, providing
    an FM service radius of approximately one to two miles (1.6 to 3.2
    kilometers).[^3] The *Report and Order* announcing those classes
    imposed separation requirements for LPFM stations to protect
    full-power FM stations operating on the co-, first-, and
    second-adjacent channels, as well as stations operating on
    intermediate frequency ("IF") channels.[^4] The *Report and Order*
    concluded, however, that imposition of a third-adjacent channel
    separation requirement would restrict unnecessarily the number of
    LPFM stations that could be authorized, and therefore declined to
    impose that requirement.[^5]

3.  The *Report and Order* also established ownership and eligibility
    rules for the LPFM service. The Commission restricted LPFM service
    to noncommercial educational ("NCE") operations, restricted licensee
    eligibility to applicants with no attributable interests in any
    other broadcast station or other media subject to our ownership
    rules, and prohibited the assignment or transfer of LPFM
    stations.[^6] The Commission also determined that, during the two
    years following the first LPFM filing window, no entity would be
    permitted to own more than one LPFM station and that ownership
    should be restricted to local entities.[^7] To choose among entities
    filing mutually exclusive applications for LPFM licenses, the
    *Report and Order* set forth a point system that favors local
    ownership and locally-originated programming, with ties between
    competing applicants resolved by either voluntary time-sharing
    agreements between such applicants or, in the event that they cannot
    so agree, the imposition of "involuntary time-sharing," with each
    tied and grantable applicant awarded an equal, successive and
    non-renewable license term of no less than one year, for a combined
    total eight-year term.[^8] Finally, the *Report and Order* directed
    the then-Mass Media Bureau to establish filing windows for LP100
    applications.[^9]

4.  The Commission revised and clarified some of its LPFM rules in a
    September 2000 *Memorandum Opinion and Order on
    Reconsideration*.[^10] The *Reconsideration Order* declined to adopt
    the more restrictive channel separation requirements urged by
    certain petitioners. Instead, the Commission adopted complaint and
    license modification procedures to address unexpected third-channel
    interference problems caused by LPFM stations.[^11] The
    *Reconsideration Order* modified spacing standards to require LPFM
    stations to protect radio reading services.[^12] Beyond the issue of
    interference, the Commission increased ownership flexibility for
    universities, state and local governments, and entities operating
    public safety or transportation services.[^13] Finally, the
    *Reconsideration Order* addressed a number of technical and
    ownership issues and clarified the eligibility rules for certain
    groups.[^14]

5.  After the Commission declined to impose third-adjacent channel
    separation requirements in the *Reconsideration Order*, Congress
    directed the agency to do so in the Making Appropriations for the
    Government of The District of Columbia for FY 2001 Act ("2001 DC
    Appropriations Act").[^15] In that legislation, Congress instructed
    the Commission to prescribe third-adjacent channel spacing standards
    for LPFM stations and to deny LPFM applications of applicants that
    previously had engaged in the unlicensed operation of a radio
    station.[^16] The 2001 DC Appropriations Act also directed the
    Commission to evaluate the likelihood of interference to existing FM
    stations if LPFM stations were not subject to the third-adjacent
    channel spacing requirement.

6.  As a result of the spacing requirement imposed by the 2001 DC
    Appropriations Act, a number of facilities proposed in otherwise
    technically grantable applications became short-spaced to existing
    full-power FM stations or translators, leading to the eventual
    dismissal of those applications.[^17] To evaluate the likelihood of
    interference in the absence of a third-adjacent channel separation
    requirement, the Commission selected an independent third party --
    the Mitre Corporation -- to conduct field tests. The Commission then
    sought public comment on Mitre's reported findings.[^18] In February
    2004, the Commission submitted its report to Congress, recommending
    that, based on the Mitre study, Congress "modify the statute to
    eliminate the third-adjacent channel distan\[ce\] separation
    requirements for LPFM stations."[^19]

7.  In the March 2005 *Second Order*, the Commission reexamined some of
    the rules governing the LPFM service, noting that the rules might
    need adjustment in light of the experiences of LPFM applicants and
    licensees.[^20] The Commission also took into account comments made
    at a February 2005 forum on LPFM that had addressed "achievements by
    LPFM stations and the challenges faced as the service mark\[ed\] its
    fifth year."[^21] The *Second Order* clarified that "local program
    origination," as that term is used in Section 73.872(b)(2) of the
    Commission's Rules (the "Rules"), does not include the airing of
    satellite-fed programming. The *Second Order* also modified slightly
    the definitions of "minor change" and "minor amendment."[^22]

8.  In the accompanying *FNPRM*, the Commission sought comment on a
    number of issues with respect to LPFM ownership restrictions and
    eligibility. The Commission asked whether LPFM licenses should be
    assignable or transferable and whether the temporary restrictions on
    multiple ownership of LPFM stations and on non-local ownership
    should be extended or allowed to sunset.[^23] Because "introducing
    some level of transferability to the LPFM service is critical," the
    Commission delegated to the Media Bureau the authority to waive the
    prohibition on the assignment or transfer of a LPFM station
    contained in Section 73.865 of the Rules on a case-by-case basis and
    cited examples of circumstances in which the grant of such a waiver
    might be appropriate:

    a sudden change in the majority of a governing board with no change
    in the organization\'s mission; development of a partnership or
    cooperative effort between local community groups, one of which is
    the licensee; and transfer to another local entity upon the
    inability of the current licensee to continue operation. . . . [^24]

    The Commission noted, however, that "until we have further
    considered the transferability issue, we do not believe that waiver
    is appropriate to permit the for-profit sale of an LPFM station to
    any entity or the transfer of an LPFM station to a non-local entity
    or an entity that owns another LPFM station."[^25]

9.  The Commission also proposed certain changes to the Rules governing
    the formation and duration of voluntary and involuntary time-sharing
    arrangements among mutually exclusive LPFM applicants.[^26] The
    *FNPRM* also considered a number of changes to the LPFM technical
    rules. The Commission proposed to extend the construction period for
    LPFM stations and to allow time-sharing applicants greater
    flexibility to amend their applications to relocate the transmitter
    to a central location.[^27] The *FNPRM* also sought comment on the
    relationship between the LPFM and full-power FM services. Noting
    that thousands of FM translator applications remained pending from
    the 2003 filing window, the Commission froze the processing of those
    applications and sought comment on possible adjustments to the
    co-equal status of LPFM stations and FM translators with regard to
    interference between them.[^28] The Commission also sought comment
    on whether LPFM stations should be protected from interference from
    subsequently authorized FM stations.[^29] Finally, the Commission
    denied a request by the Media Access Project ("MAP") to schedule
    "regular" filing windows for LPFM new station applications and major
    modification applications.[^30]

10. During the seven years since we created the LPFM service, that
    service has flourished for the most part, but also has encountered
    unique obstacles. To date, the Media Bureau has received 3236
    applications for new LPFM construction permits, of which 1,286 have
    been granted. Currently, there are 809 LPFM stations operating
    throughout the country. At the same time, the Media Bureau was
    compelled to cancel 17 station licenses and 95 construction permits
    for failure by the holder to satisfy certain procedural and/or
    technical requirements. In view of this practical experience with
    LPFM service, we now turn to the issues raised in the *FNPRM*. In
    resolving those issues, we seek to increase the number of LPFM
    stations that are on the air and providing service to the public,
    and to promote the continued operation of LPFM stations already
    broadcasting, while avoiding interference to existing FM service.

#  discussion 

## Ownership and Eligibility

### Alienability of Authorizations

#### Changes in Board Membership

11. Section 73.865 of the Rules provides that "\[a\]n LPFM authorization
    may not be transferred or assigned except for a transfer or
    assignment that involves: (1) Less than a substantial change in
    ownership or control; or (2) An involuntary assignment of license or
    transfer of control."[^31] The *Reconsideration Order* clarified
    that the gradual change of a licensee's governing board or
    membership body is a permissible "insubstantial change," even if the
    majority of current members joined after the station's authorization
    was granted.[^32] As the *FNPRM* noted, however, "\[o\]ur rules . .
    . do not permit a sudden change in the board or membership of an
    LPFM licensee, which would constitute an impermissible transfer of
    control."[^33] Panelists at the February 2000 LPFM forum and other
    parties concerned with the viability of LPFM stations remarked that
    the proscription of sudden changes in governing board membership
    causes unnecessary complications for LPFM licensees.[^34] Responding
    to that concern, the *FNPRM* proposed to amend our rules to permit
    sudden changes of more than 50 percent of the membership of
    governing boards.[^35]

12. As commenters have since observed, frequent elections and changes in
    governing board membership are common among volunteer organizations
    and other entities that operate LPFM stations.[^36] As LPFM station
    KVLP-LP noted, experience on the board of an LPFM station can confer
    valuable leadership experience to community members, leading
    community groups to encourage frequent shuffling of board
    membership.[^37] Unsurprisingly, then, most commenters favor
    amending our rules to permit transfers of control in the case of a
    sudden change in a majority of a governing board's membership so
    long as the overall mission of the organization remains
    unchanged.[^38]

13. We agree. In crafting our LPFM rules, the Commission intended to
    preserve the integrity of the LPFM service and of the local
    organizations operating LPFM stations. We did not intend, however,
    to hamper the customary governance procedures of those organizations
    or to make LPFM less "accessible to community groups."[^39] To the
    extent that our rules have blocked that access, we now remove that
    inadvertent barrier and adopt the *FNPRM*'s proposal to allow sudden
    changes of more than 50 percent of the membership of governing
    boards. Accordingly, we will amend Section 73.865 of our Rules to
    clarify that transfers of control involving a sudden change of more
    than 50 percent of an LPFM licensee's governing board shall not be
    deemed "a substantial change in ownership and control."[^40]

####  Assignments and Transfers

14. The *FNPRM* sought comment on whether the Rules should permit the
    sale of LPFM authorizations, for some or no consideration, and
    whether they should impose a holding period by the initial permittee
    and licensee.[^41] Noting that at least 221 construction permits
    have lapsed due to the permittee's failure to construct facilities,
    REC Networks ("REC") argues that an LPFM permittee or licensee
    should be able to convey its authorization when doing so would
    prevent the loss of the permit.[^42] Indeed, most commenters support
    amending the rules to permit sales in at least some circumstances,
    although they express diverse views with respect to when such
    transactions should be allowed.[^43] At one extreme are those
    commenters who maintain that LPFM stations should be transferable
    without restriction because there is little risk of manipulation or
    take-over in the "market" for LPFM authorizations.[^44] At the
    opposite end of the spectrum are those who contend that transfers of
    control or assignments should be limited to those situations in
    which the assignee or transferee "represents the community" and no
    consideration is involved.[^45] Prometheus argues that the
    Commission should not allow transfers or assignments to be made in
    exchange for consideration, as such a rule could lead to speculation
    by those with substantial resources, at the expense of local
    community groups that lack funding.[^46]

15. The for-profit sale of LPFM authorizations to any buyer is
    fundamentally inconsistent with the Commission's desire to promote
    local, community based use and ownership of LPFM stations.[^47]
    Transfers of control or assignments for consideration will create a
    market for LPFM licenses and may facilitate trafficking in licenses
    by those who have no interest in providing LPFM services to the
    public. Such a state of affairs would likely interfere with, rather
    than spur development of, community-based programming and hamper the
    ability of community-based entities to obtain LPFM authorizations.
    Therefore, we will not permit the sale of LPFM licenses for
    consideration exceeding the depreciated fair market value of the
    physical equipment and facilities of the station,[^48] and will not
    allow under any circumstances the transfer or assignment of
    construction permits.

16. With respect to the imposition of eligibility restrictions on a
    transferee or assignee of an LPFM license, some commenters suggest
    that we permit the sale of an LPFM authorization to any willing
    buyer.[^49] Others suggest that we limit the universe of eligible
    assignees and transferees to other local nonprofits.[^50] We
    conclude that the appropriate balance is struck by requiring the
    assignee or transferee of an LPFM license to satisfy ownership and
    eligibility criteria existing at the time of the assignment or
    transfer.[^51] That restriction will prevent entities from using
    intermediaries to circumvent our LPFM eligibility requirements and
    will further address our concern about potential trafficking in LPFM
    authorizations by ensuring that future LPFM licensees meet the
    Commission\'s criteria for LPFM service. At the same time,
    permitting assignments or transfers among qualified parties will
    allow newly-"merged" local entities, consisting of several eligible
    organizations, to pool their resources to provide the necessary
    financial support for quality local programming when, standing
    alone, those entities would be otherwise incapable of constructing
    and operating an LPFM station.

17. For all transfers and assignments, we will require a three year
    holding period from the issuance of license, during which a licensee
    cannot transfer or assign the license, and must operate the station,
    as suggested by Prometheus.[^52] That restriction will prevent
    entities from using the LPFM assignment and transfer process to
    undermine the Commission's LPFM policies and will ensure that the
    benefits to the public which were the basis for the license grant
    will be realized.

####  Procedures

18. The *FNPRM* asked what procedures would be appropriate to allow
    assignments and transfers while ensuring the integrity of the LPFM
    service. Because many LPFM permittees and licensees are entities
    that do not issue ownership shares, the Commission drew attention to
    the *Non-Stock Transfer NOI*[^53] for guidance in establishing the
    procedures for transfers of control of such licensees. The
    *Non-Stock Transfer NOI* proposed to treat a sudden change of a
    governing board's majority as an insubstantial transfer for which
    approval must be sought on an FCC Form 316 ("short form") broadcast
    application.[^54] The *FNPRM* sought comment on adopting a similar
    approach for changes in the governing boards of LPFM permittees and
    licensees that are non-stock entities.[^55] The *FNPRM* also sought
    comment on the process by which LPFM stations should seek approval
    of assignments and transfers of control.[^56]

19. Few commenters addressed the issue of the appropriate procedures for
    transfers of control or assignments of LPFM authorizations.
    Christian Community Broadcasters proposed using a modified FCC Form
    318 LPFM construction permit application to cover all instances of
    ownership changes or changes in board membership.[^57] Limestone
    Community Radio suggested instead that entities use a modified FCC
    Form 316 for "typical" changes in station ownership.[^58] Still
    other commenters suggest that the Commission should take a more
    active role in overseeing any LPFM ownership changes to ensure
    "ethical use" of LPFM licenses.[^59]

20. We will use existing FCC forms for the conveyance of LPFM licenses,
    rather than adopting new forms and filing procedures. We see no
    reason to depart from the filing procedures that currently are used
    for other broadcasting services. Accordingly, we direct LPFM
    licensees to use modified FCC Forms 314 and 315 for assignments and
    transfers of control, respectively, and FCC Form 316 for *pro forma*
    changes in ownership. We will apply the *Non-Stock Transfer NOI* to
    appropriate LPFM licensees, and thus, will interpret a sudden change
    of a governing board's majority as an insubstantial transfer for
    which approval must be sought on an FCC Form 316 ("short form")
    broadcast application.[^60] Use of these forms offers many
    advantages, particularly to smaller entities that have few resources
    to dedicate to the application process, such as the ability to
    retrieve and submit the forms electronically.

### Ownership and Eligibility Limitations

21. As discussed above, the Rules required that, during the two years
    following the first LPFM filing window, no entity was permitted to
    own more than one LPFM station, and ownership was restricted to
    local entities. The Rules gradually relaxed these restrictions.
    Currently, the Rules limit the number of LPFM stations a single
    entity may own up to ten stations[^61] and the Rule that allows only
    local entities to apply for LPFM licenses has sunsetted.[^62] As we
    explained in the *FNPRM*, the Commission's intention in gradually
    increasing the ownership limitation from one to ten stations and in
    allowing the local entity restriction to sunset "was to make it more
    likely that local entities would operate this service, but to ensure
    that if no local entities came forward, the available spectrum would
    not go unused."[^63] In connection with its query of whether to
    allow the sale of LPFM stations, the *FNPRM* asked if either the
    ownership limitation or the restriction to local entities should be
    extended or reinstated.

22. Several organizations urge the Commission to maintain "strict local
    and multiple ownership requirements," to ensure that LPFM service
    continues to advance the public's interest in localism and
    diversity.[^64] According to some of these commenters, any
    relaxation of either the multiple ownership restriction or the
    locality-based restriction is fundamentally at odds with the
    "community radio" rationale that justifies the existence of LPFM
    stations.[^65] Prometheus Radio Project argues that, even when no
    local entity applies for an LPFM authorization, non-local entities
    should be barred from applying, because "LPFM is not a goal in
    itself, rather it is a means to promote localism."[^66]

23. We agree. As emphasized in our *Report and Order*, our two primary
    goals in establishing the LPFM service were to "create opportunities
    for new voices on the airwaves and to allow local groups, including
    schools, churches, and other community-based organizations, to
    provide programming responsive to local community needs and
    interests."[^67] The *Report and Order* also stated that the
    potential benefit of allowing multiple ownership --- increased
    efficiency --- was clearly outweighed by "the benefit to a community
    of multiple community-based voices."[^68] By amending the Rules to
    permanently limit LPFM eligibility, we protect the public interest
    in localism and foster greater diversity of programming from
    community sources. Thus, we will reinstate the prohibition on the
    ownership of more than one LPFM station.

24. In addition, we agree with those parties that suggest that we
    reinstate the local ownership restrictions.[^69] Although growing in
    both usage and recognition, LPFM service is still in its nascence
    and doing away with the locality restriction could threaten its
    predominantly local character, in particular the hallmark of a LPFM
    station's local character, its local origination of programming. In
    upholding the local origination selection criterion for mutually
    exclusive applications, our *Second Order* emphasized that local
    origination is "intended to encourage licensees to maintain
    production facilities and a meaningful staff presence within the
    community served by the station."[^70] Even outside the limited
    context of mutually exclusive applications, we view local
    origination as a central virtue of the LPFM service and therefore
    will reinstate the eligibility restriction contained in Section
    73.853(b) of the Rules to encourage local origination.[^71] We also
    wish to clarify our definition of local origination. According to
    Prometheus, a licensee could theoretically create one program,
    continually repeat it on a tape loop, and still claim it meets the
    definition of local origination.[^72] Prometheus asserts that in
    order to meet the local origination requirement, programming cannot
    be automated, including randomized songs or long blocks of locally
    produced programming run multiple times, and cannot be aired more
    than two times.[^73] We agree that there is room for abuse here, and
    as such, we clarify that repetitious automated programming does not
    meet the local origination requirement. We will only allow a program
    to be broadcast twice in order to meet the local origination
    requirement. After its initial broadcast a program can be
    rebroadcast once and still meet our requirement. After that, the
    program cannot count toward the local origination requirement.

25. Finally, we adopt the suggestion by Prometheus that we extend the
    local standard for rural markets.[^74] Pursuant to Section 73.853(b)
    of the Rules, an LPFM applicant is deemed local if it is physically
    headquartered or has a campus within ten miles of the proposed LPFM
    transmitter site, or if 75 percent of its board members reside
    within ten miles of the proposed LPFM transmitter site.[^75] The
    ten-mile limit was adopted based on the "station\'s likely effective
    reach."[^76] Prometheus' comments express concern that this ten-mile
    local entity standard is difficult to meet for rural applicants,
    especially in finding board members who reside within ten miles of
    the proposed transmitter site.[^77] Prometheus states that people in
    rural communities often listen to and participate in stations that
    are outside of their home coverage area, because they listen to the
    station while driving to and from work.[^78] As such, Prometheus
    requests modifying the ten-mile requirement to twenty miles for all
    LPFM applicants for proposed facilities in other than the top fifty
    urban markets, for both the distance from transmitter and residence
    of board member standards.[^79] We agree with Prometheus that
    applicants for stations located in rural communities find it
    particularly challenging to meet the current ten-mile standard. We
    also agree that the concept of "local" should be more expansive in
    rural areas. Accordingly, we will revise Section 73.853(b) of the
    Rules to reflect Prometheus' proposal.

### Time-Sharing 

26. The *Report and Order* established a comparative point system for
    determining which among mutually exclusive LPFM applicants should
    receive the authorization that they commonly seek.[^80] If such
    applicants have the same point total, two or more of the tied
    applicants may propose to share use of the LPFM frequency by
    submitting a time-share proposal within 30 days of the release of a
    public notice announcing their tie.[^81] If the tie among the
    applicants is not resolved through a voluntary time-sharing
    agreement, the tied applicants submitting grantable applications are
    placed in an involuntary time-sharing arrangement, and granted
    equal, successive, non-renewable license terms for the applied-for
    facility of no less than one year each, for a total combined term of
    eight years.[^82] The *FNPRM* proposed amending the Rules governing
    mutually exclusive LPFM applications in two key respects. First, in
    response to a request by MAP, the *FNPRM* proposed to extend, from
    30 to 90 days, the period allowed for applicants to submit a
    voluntary time-sharing agreement.[^83] Second, the *FNPRM* proposed
    to amend the Rules to permit the renewal of licenses granted under
    the involuntary time-sharing successive licensing procedures.[^84]
    We address those proposals in turn.

#### Deadline for Submission of Voluntary Time-Sharing Agreements

27. In its Petition for Reconsideration of the *Report and Order*, MAP
    observed that "LPFM applicants are largely comprised of small
    organizations with few administrative resources," and that few
    applicants "have access to the expertise of professional
    engineers."[^85] Accordingly, few applicants are able to identify
    mutually exclusive applications before receiving notice from the
    Commission that they are tied with others, leaving them only 30 days
    to contact the other applicants, complete negotiations and execute
    and file their agreements with the Commission. Because those
    negotiations likely will be conducted by inexperienced volunteers,
    MAP argues, reaching a successful compromise within that time frame
    is very unlikely.[^86] Finding MAP's argument persuasive, the
    *FNPRM* proposed to extend to 90 days the time period within which
    mutually exclusive LPFM applicants must reach and file a voluntary
    time-sharing arrangement.[^87]

28. All commenters who addressed the issue favor adoption of the
    proposal to so extend the negotiation and filing period to 90 days.
    NPR, "recogniz\[ing\] the fundamental importance of a diversity of
    programming services and station ownership," observes that allowing
    LPFM applicants more time to enter into voluntary time-sharing
    arrangements will promote that diversity.[^88] Similarly, REC
    contends that 30 days is not enough time in which to reach and file
    a viable time-sharing agreement. REC sought to assist applicants
    with negotiations of universal settlements, but found that often
    basic contact information supplied on the applications was
    inaccurate.[^89] Drawing from that experience and similar
    considerations, REC urges the Commission to extend the period of
    time in which mutually exclusive applicants may negotiate and file
    time-sharing agreements.[^90]

29. We agree with the views of NPR, REC, and others, and therefore adopt
    the *FNPRM*'s proposal to extend the negotiating and filing period
    to 90 days. Mutually exclusive LPFM applicants should be given every
    opportunity to arrive at a negotiated time-sharing arrangement
    before the LPFM rules impose a successive-term licensing scheme on
    the applicants. To the extent that the 30-day time period in Section
    73.872 of the Rules[^91] has impeded the successful negotiation of
    time-sharing arrangements, we remove that impediment and hope that
    this will reduce considerably the likelihood that involuntary
    time-sharing arrangements with multiple successive license terms
    will be necessary.

#### License Renewal Procedures for Parties to Time-Sharing Arrangements

30. Section 73.872(d) of the Rules provides that an LPFM authorization
    issued under involuntary time-sharing arrangements, under which
    mutually exclusive applicants are granted successive license terms,
    is not renewable.[^92] The *FNPRM* also proposed that we change this
    provision and make such authorizations renewable.[^93] The *FNPRM*
    sought comment on how the renewal process should operate, given that
    increased flexibility in the Rules governing assignments and
    transfers of control may lead licensees under such arrangements to
    negotiate voluntary time-sharing agreements among themselves.

31. REC is one of the few commenters to respond to our queries about
    involuntary time-sharing arrangements.[^94] In its submission, REC
    suggests that if licensees under an involuntary time-sharing
    arrangement "come up with a universal settlement to engage in a
    conventional time-share arrangement . . . the Commission should
    grant such an arrangement and remove the non-renewable condition of
    the permit and/or license."[^95] REC further proposes that, at the
    end of the eight-year term, all licensees in a successive license
    term group should each be permitted to file a renewal application.

32. The *FNPRM* tentatively proposed to make renewable all viable
    licenses under both voluntary and involuntary time-sharing
    arrangements.[^96] Making renewable only the authorizations of those
    organizations that can reach a mutually acceptable agreement with
    respect to scheduling, however, will provide a powerful incentive to
    licensees that thus far have been unable to reach such agreement.
    This will lead to more efficient use of the spectrum. Accordingly,
    we agree with REC that when organizations subject to an involuntary
    time-sharing arrangement reach a "universal settlement" with respect
    to the allocation of time on the relevant frequency, the
    non-renewable condition of their authorizations should be removed.

33. For the same reasons, we also agree with REC that stations subject
    to involuntary time-sharing under successive license terms that
    subsequently enter into a voluntary time-sharing agreement should be
    permitted to file a renewal application. However, we are not
    persuaded that we should accommodate those licensees with successive
    license terms that fail to reach a universal voluntary agreement
    with the ability to renew. By doing this, we would be rewarding such
    applicants' unwillingness or inability to reach such agreements. We
    note that, of the more than 1,200 construction permits granted in
    the LPFM service, currently no stations hold authorizations for
    involuntary time sharing. In this Order, we have extended the 30-day
    time period in Section 73.872 of the Rules[^97] for applicants to
    negotiate and file universal voluntary time-share agreements to 90
    days.[^98] We have also enabled those applicants originally issued
    involuntary time-share permits that reach such agreements to
    ultimately acquire renewable licenses. We believe that these
    measures will greatly reduce the likelihood that involuntary
    time-sharing arrangements will be necessary. Therefore, we decline
    to provide a renewal expectancy for involuntary time-share
    licensees. We strongly encourage any such permittees and licensees
    and future mutually exclusive applicants to enter into universal
    voluntary time-share agreements.

34. Making renewable the authorizations of parties who time-share who
    have reached voluntary time-sharing agreements raises a number of
    practical questions with respect to how and when those arrangements
    will supersede involuntary ones. First, we must determine when a
    voluntary time-sharing agreement should replace the successive-term
    structure of the involuntary arrangement. As we noted in the
    *FNPRM*, it is likely that licensees will reach universal
    time-sharing agreements prior to seeking renewal.[^99] We will
    therefore construe the superseding agreement as a "minor change,"
    allowing the licensees who seek to operate under a universal
    voluntary time-sharing agreement to file the minor change
    application as soon as the agreement is reached, rather than having
    to wait for a filing window.[^100] Expediting our approval of
    voluntary time-sharing arrangements in this manner will encourage
    prompt negotiations among licensees operating under involuntary
    time-sharing arrangements and, it is hoped, promote a more efficient
    use of scarce LPFM spectrum than that under the successive licensing
    terms that apply to involuntary time-sharing arrangements.
    Accordingly, we will revise the Rules to facilitate those voluntary
    agreements. We stress, however, that voluntary time-sharing
    agreements must be genuinely universal, involving all permittees and
    licensees of a particular LPFM facility. That is, to give rise to a
    renewal expectancy, *all* of those in a time-share group must be
    parties to the time-sharing agreement.

35. To ensure that voluntary time-sharing arrangements will result in
    the most efficient use of LPFM spectrum, we also must address how to
    apportion unused airtime among licensees in a time-share group. This
    circumstance may arise in a number of ways. For example, a permittee
    in that group could fail to construct its facilities, decide to
    cease operations, or have its authorization revoked for a serious
    violation of the Rules. There might also be situations in which no
    permittee or licensee has come forward requesting to operate during
    a certain part of the day or week. REC points to an example in
    Visalia, California, where one licensee, KFSC-LP, broadcasts from 5
    to 9 a.m. Monday through Saturday and a second licensee, KQOF-LP,
    broadcasts from 5 to 9 p.m. Monday through Saturday. No licensee
    broadcasts other than those times.[^101] REC proposes that, prior to
    the opening of a new filing window, new entrants who can reach a
    universal settlement with existing stations should be allowed to do
    so. REC also argues that new entrants should be allowed to apply for
    periods of unused time once a window for new applications has
    opened.[^102]

36. We agree with REC that, during filing windows for new applications,
    new parties should be permitted to apply for unused and unwanted
    time on a particular frequency. We will not entertain such
    applications outside of an open filing window, however, even when
    the potential new entrant could successfully negotiate a universal
    settlement with existing licensees. Aside from the administrative
    burden that such out-of-window filings could create, allowing a new
    entrant to act before a formally-announced filing window could
    prejudice unfairly other potential applicants who, under the
    comparative criteria set forth in Section 73.872(b) of the
    Rules,[^103] would be entitled to a preference over the would-be new
    entrant's mutually exclusive application. Restricting applications
    for unwanted time to new filing windows does raise a potential
    concern in that the restriction will leave periods of time on a
    particular frequency vacant until the Commission elects to open a
    filing window for new applications. To alleviate that concern, and
    to promote a more efficient use of available LPFM frequency, we will
    allow existing stations in a voluntary time-share group to apportion
    among themselves any time that, for any reason, becomes unused. As
    with the negotiation and execution of voluntary time-sharing
    agreements by parties in an involuntary time-share arrangement, we
    will deem amendments to a voluntary time-sharing agreement to
    account for unused time requests to be minor modifications that may
    be filed at any time.

## Technical Rules

### Construction Period

37. The *Report and Order* established an 18-month construction period
    for all LPFM facilities, stating that deadlines would be strictly
    enforced.[^104] However, as a temporary measure, the *FNPRM* adopted
    an interim waiver policy to allow permittees with soon-to-expire
    permits to request additional time to construct their facilities.
    Under that policy, the Media Bureau has the authority to consider
    and grant requests for an additional 18 months to construct
    facilities, upon a showing that the permittee reasonably can be
    expected to complete construction within the extended period.[^105]

38. As a permanent solution, the *FNPRM* proposed extending the
    construction period for LPFM stations to 36 months, the construction
    period afforded to all other broadcast permittees.[^106] During the
    six years since the release of the 2000 *Report and Order*, our
    assumption that LPFM facilities would require significantly less
    time to build than that required to construct full-power FM
    facilities has proven to be overly optimistic. LPFM licensees have
    encountered varying difficulties in locating suitable transmitter
    sites, raising sufficient funds for the proposed facilities, and
    obtaining the necessary zoning permits.[^107] The *FNPRM* thus
    proposed extending the construction period in order "to maximize the
    likelihood that LPFM permittees will get on the air."[^108]

39. Many commenters favor extending the construction period.[^109] Some
    state that the blanket adoption of a 36-month construction period
    has administrative advantages over a conditional extension or
    case-by-case review of individual waiver requests.[^110] Moreover,
    extending the construction period to 36 months would put the LPFM
    and full-power FM services on equal footing and avoid
    disenfranchising able, willing, but inexperienced, LPFM permittees.
    Prometheus Radio Project and others contend that the better approach
    is to grant an 18-month extension to complete construction, but only
    upon demonstration of good cause.[^111] Prometheus argues that such
    a procedure would give able and willing LPFM permittees a total of
    36 months to construct their facilities but prevent unable or
    unwilling LPFM permittees from warehousing valuable spectrum,
    without service to the public, for an extended period of time.[^112]

40. We seek to encourage permittees to construct their facilities within
    18 months, and therefore, decline to adopt a blanket 36-month
    construction period for LPFM. We agree with Prometheus that this
    approach will prevent unwilling/unable applicants from sitting on
    valuable spectrum. We recognize, however, that some permittees may
    face difficulties in meeting this deadline. Therefore, we will amend
    the Rules to allow all permittees, including current ones whose
    construction permits have yet to expire, the opportunity to seek an
    18-month extension to complete construction of their facilities upon
    a showing of good cause. Because any such extension should account
    adequately for the delays resulting from the potential inexperience
    of the permittee, as well as for potential obstacles that may arise
    during the zoning or permitting processes, that extended
    construction deadline will be strictly enforced, as it is with all
    other radio broadcast stations; we do not expect to entertain, and
    most likely will not grant, waiver requests or those for further
    extensions.[^113]

### Technical Amendments

41. Section 73.871 of the Rules limits the ability of applicants to
    propose site changes by minor amendment to relocations of 3.2
    kilometers or less for an LP10 station, and 5.6 kilometers or less
    for an LP100 station.[^114] That Rule prevents time-sharing
    applicants from relocating their transmitters to a central location
    unless the site falls within those distance limits. To increase
    flexibility for time-sharing applicants and thereby promote
    voluntary time-sharing agreements, the *FNPRM* proposed to allow
    time-sharing applicants to file minor amendments to relocate their
    transmitters to a central location, notwithstanding the site
    relocation limits imposed by Section 73.871 of the Rules.[^115]

42. Few commenters have responded to our queries about technical
    amendments by time-sharing applicants under Section 73.871 of the
    Rules.[^116] In 2001, UCC requested that we amend the Rules to allow
    applicants that submit a voluntary time-share agreement to relocate
    the transmitter to a central location, provided that one is
    available.[^117] The Commission has a long-standing policy of
    providing mutually exclusive applicants with maximum flexibility to
    enter into time-share agreements in order to facilitate rapid
    licensing in the service. For instance, in 2003, the Commission by
    public notice waived Section 73.871 of the Rules for a time to
    permit all LPFM settling applicants the ability to file major change
    amendments specifying new FM channels.[^118] Permitting parties to
    file time-share agreements to specify a "central location" beyond
    the current minor amendment distance limitations would remove one
    more potential impediment to such agreements. Accordingly, we amend
    Section 73.871 of the Rules to permit time-sharing applicants to
    specify a central transmitter location with a minor amendment
    without regard to the respective 3.2 and 5.6 kilometer limitations
    on such amendments. These agreements, which permit a number of
    different organizations to reach local audiences, promote diversity.
    Providing applicants additional flexibility and the opportunity to
    avoid the construction of duplicate facilities also serves the
    public interest. For the same reason, we amend that Rule to allow
    permittees and licensees that reach a voluntary time-sharing
    agreement after their permits have been granted to submit such site
    change applications by minor submission. We anticipate that this
    rule change will encourage time-share applicants, permittees and
    licensees to consolidate transmission and studio facilities.

###  LPFM - FM Translator Interference Priorities

43. The *FNPRM* identified several possible ways to modify the LPFM-FM
    translator interference protection requirements. Currently, stations
    in these two services operate on a substantially co-equal basis,
    with a facility proposed in an application having "priority" over
    one specified in any subsequently filed application. The *FNPRM*
    sought comment on whether, and if so, under what circumstances LPFM
    applications should be treated as having priority status over
    prior-filed FM translator applications and granted authorizations.
    In particular, the Commission sought comment on how to overcome the
    significant preclusive impact of the 2003 Auction No. 83 translator
    filing window, asking among other things whether all pending
    applications for new FM translator stations filed during the window
    should be dismissed. The *FNPRM* explained that the staff already
    had granted approximately 3,500 new station construction permit
    applications from the singleton filings, "a number nearly equal to
    the total number of FM translator stations licensed and operating
    prior to the filing window," that 7,000 applications remained on
    file, that very few opportunities for LPFM stations in major markets
    remained prior to the 2003 translator filing window, and that the
    Auction No. 83 filing would have a "significant preclusive impact on
    future LPFM licensing opportunities."[^119] The voluminous comments
    submitted in response to the priority issue focus on two possible
    theories supporting modification of the current Rule: (1) that LPFM
    provides a "preferred" radio service to that offered by translators;
    and (2) that priority status for LPFM applications is necessary to
    overcome the preclusive impact of the over 13,000 technical
    proposals filed during the 2003 Auction No. 83 FM translator window.

44. LPFM advocates contend that their service is preferable to
    translator service.[^120] They note that the Rules require LPFM
    stations to be locally owned and permit local program
    origination.[^121] They note that, in contrast, many translators
    merely rebroadcast satellite-distributed national programming. Some
    LPFM advocates request priority status for only those LPFM stations
    that originate programming.[^122] Others request priority status
    over all "distant" translators, *i.e.,* translators that rebroadcast
    the signals of non-local stations. [^123]

45. NAB, NPR, the various state broadcast associations, and virtually
    all full-service commercial and NCE broadcasters support retention
    of the current interference protection rules. They argue that there
    are no simple ways to distinguish preferred stations or
    programming.[^124] They also claim that there is no such thing as a
    typical LPFM or FM translator station.[^125] They reject as
    unfounded the contention that program origination or local ownership
    correlates to more desirable programming.[^126] They note that LPFM
    licensees have limited service responsibilities with regard to their
    communities of license: LPFM stations need not originate
    programming; many serve the needs of niche interest groups rather
    than their entire communities of license; they are not required to
    maintain a main studio or public file; and they are required to
    operate for only 35 hours per week.[^127] Many broadcasters contend
    that, because the LPFM service is still in its infancy, it is
    premature to reassess the "co-equal" status of LPFM and FM
    translator stations.[^128] NCE and public radio broadcasters argue
    that giving LPFMs priority over operating FM translator stations
    would significantly disrupt established and valued translator
    service to millions of listeners, particularly those in rural
    areas[^129] and in situations in which broadcasters rely on "chains"
    of translators to distribute programming.[^130] The public radio
    commenters note that translators are a critical component of the
    public radio infrastructure.[^131] A number of other commenters urge
    that a "fill-in" translator should be treated as the equivalent of
    its associated primary full-service station and, therefore, always
    preferred to an LPFM station.[^132]

46. With regard to the potentially preclusive impact of the over 13,000
    FM translator applications filed in 2003, some commenters argue that
    the LPFM service is not entitled to any special consideration
    because LPFM applicants had the first opportunity during the
    2000-2001 national LPFM windows to apply for new stations.[^133]
    Translator advocates note that their last opportunity for
    non-reserved band FM translators occurred in 1997.[^134] Edgewater
    Broadcasting, Inc. ("Edgewater") submits an extensive analysis of
    the preclusive impact of the construction permits issued out of the
    2003 translator filing window and the more limited impact of the
    over 1,000 permits issued to it and its commonly-owned Radio Assist
    Ministries.[^135] Edgewater contends that the preclusive impact has
    been "miniscule," notes that the Commission received no LPFM
    applications to serve many of the areas specified in its translator
    filings, and argues that its studies demonstrate that vast areas in
    the country remain available for new LPFM stations.[^136] REC also
    submits both national and market-specific analyses and identifies
    several communities in which 2003 window filings have allegedly
    precluded or diminished LPFM station licensing opportunities.[^137]

47. The Station Resource Group, an alliance of 45 public radio
    broadcasters that operate 168 radio stations, contends that the
    chief contributor to LPFM station preclusion is a "maxed out
    spectrum situation" which prevents any broadcasters, NCE or
    commercial, translators or LPFM stations, from obtaining new
    licenses in virtually all major markets and many medium-sized
    markets.[^138] Several commenters argue that the statutory
    third-adjacent channel LPFM protection requirement blocks many
    otherwise-licensable LPFM opportunities.[^139]

48. A number of commenters argue that the Commission's concern is
    misdirected. They urge the Commission to instead move vigorously
    against alleged FM translator filing abuses, speculators, and
    deficient application filings.[^140] They suggest imposing numerical
    application filing limits, either on a prospective basis or with
    regard to the still-pending translator applications.[^141] Several
    contend that the high demand for new FM translators is unsurprising,
    given the extended freeze on non-reserved band licensing.[^142]

49. As demonstrated by the comments filed on this issue, the LPFM and FM
    translator services are each valuable components of the nation\'s
    radio infrastructure. We agree with the advocates for each of these
    services regarding the important programming that these stations can
    provide to their local communities. We do not reach the merits of
    the priority rules between these two services here. Instead, we seek
    further comment in the attached *Second Further Notice of Proposed
    Rulemaking* to develop a better record on whether and how our
    current rule affects our core goals of localism, diversity and
    competition. The current rules will remain in effect until the
    Commission resolves the issue in that proceeding.

50. We also must consider the question of whether Auction No. 83 filing
    activity has adversely impacted our goal to provide to both LPFM and
    translator applicants reasonable access to limited FM spectrum in a
    manner which promotes the "fair, efficient, and equitable
    distribution of radio service . . . ."[^143] This issue has taken on
    much greater significance over the past few years as demand for new
    radio stations has increased dramatically while the spectrum for
    such stations has become increasingly scarce, particularly in many
    mid-sized communities and in virtually all urbanized areas. Station
    Resource Group is correct -- the primary licensing impediment is the
    nation's "maxed out" spectrum situation. New Jersey LPFM licensing
    activity is illustrative of the limited new station opportunities in
    spectrum-congested areas. Only 29 New Jersey LPFM applications were
    filed during that state's June 2001 window. Of those submissions,
    the Media Bureau has issued only eleven construction permits and
    only one additional authorization possibly may be granted. Only
    seven LPFM stations are currently operating in the state. We find
    these statistics more probative of the LPFM service's growth
    potential than the studies completed by Edgewater because LPFM
    stations, due to their limited service area potential, generally
    require higher population densities to be viable. It seems unlikely
    that the availability of spectrum in the vast rural portions of the
    nation will generate significant levels of LPFM station licensing.

51. Demand for radio spectrum is, if anything, increasing. The number of
    applications filed during the AM new and major change windows jumped
    from 258 in 2000 to more than 1,300 in 2004. Competitive bidding
    activity for FM new station construction permits has been robust
    since the commencement of open FM auctions in 2004. The 2003 FM
    translator window provides further evidence of this trend,
    especially when compared to historic licensing levels for this
    service. As of September 30, 1990, a total of 1,847 licensed FM
    translators and (co-channel) boosters operated throughout the
    nation. As of December 31, 1997, shortly after the date on which the
    Commission imposed a freeze on new non-reserved band translator
    filings (but not on new boosters or new reserved band stations), a
    total of 2,881 FM translators operated nationally. The number of
    licensed stations continued to grow modestly over the next six
    years, chiefly as a result of ongoing reserved band filing activity.
    A total of 3,818 licensed stations were in operation in March 2003
    when the Commission opened the FM translator window, a total of
    3,897 licensed stations when the Commission imposed the Auction No.
    83 construction permit freeze in March 2005.

52. Measured against this historical licensing record, Auction No. 83
    window filing activity was significant. Proposals exceeded
    authorized stations by a factor of three in a service in which
    little licensing was done before the 1980s. The 2003 window already
    has nearly doubled the total number of authorized stations. To date,
    three times more translator stations have been authorized out of
    this one window than LPFM stations authorized through the initial
    LPFM window filing process. Approximately 7,000 translator
    applications remain pending. The Commission faces two chief
    difficulties in trying to balance spectrum allocations for LPFM
    stations and translators. First, FM translators are licensed under
    substantially more flexible technical rules. Thus, some of the
    Auction No. 83 filing activity involves spectrum which is
    unavailable for LPFM use. By the same token, LPFM station proponents
    have far fewer licensing opportunities in spectrum-congested markets
    because LPFM technical rules are substantially less flexible.
    Second, it is impossible to accurately predict future demand for
    LPFM station licenses. While engineering studies can identify areas
    in which additional licensing is technically permissible, the
    interest of local organizations to apply for, construct, and operate
    new LPFM stations can only be determined at the time a window is
    opened.

53. Although precise preclusionary calculations are not possible, we
    believe that processing all of the approximately remaining 7,000
    translator applications would frustrate the development of the LPFM
    service and our efforts to promote localism. Several factors support
    the adoption of some remedial measures. The sheer volume of Auction
    No. 83 filings, when compared to historic translator and LPFM
    licensing levels, is a significant concern. We recognize that LPFM
    proponents had the "first" opportunity to file for the spectrum
    which Auction No. 83 filers now propose to use. However, it is
    apparent that the translator filings have precluded or diminished
    LPFM filing opportunities in many communities. For example, a REC
    national study found that 16 percent of all census designated
    communities that otherwise would have LPFM channels available in
    their communities have been precluded by the translator filings and
    that the greatest preclusionary impact has been in the largest such
    communities.[^144] Moreover, the Media Bureau has found that its
    efforts to identify alternative channels for LPFM stations either
    causing or receiving interference have been significantly limited in
    numerous cases by the requirement to protect pending FM translator
    applications and authorizations granted out of the 2003 window. The
    licensing asymmetries between these two services also support this
    finding. Translator filings can materially impact LPFM new station
    options which are far more limited than FM translator filing
    opportunities. In contrast, it is unlikely that LPFM filings will
    materially affect translator licensing options. FM translator
    contour-based station licensing is substantially more flexible than
    the strict distance separation requirements which LPFM stations must
    satisfy. This difference is tied in part to the fact that unlike an
    LPFM station, an FM translator station must cease broadcast
    operations if it is causing "actual interference" to any authorized
    broadcast station.[^145] In short, any translator station
    construction is at the risk of the permittee. The level of Auction
    No. 83 filing activity and the fact that many applications were
    filed for facilities in the top 100 markets both illuminate the
    significant difference in the licensing opportunities between these
    two services. The next LPFM window may provide the last meaningful
    opportunity to expand the LPFM service in spectrum-congested areas.
    In contrast, we expect significant filing activity in many future
    translator windows.

54. Certain equitable considerations also tilt in favor of adopting
    remedial measures to limit the preclusive impact of Auction No. 83
    filings. Each applicant filing in Auction No. 83 submitted one Form
    175 Application to Participate in an FCC Auction and a separate Form
    349 "Tech Box" for each translator proposal. 861 filers submitted
    13,377 such proposals in the window. Applicant filing activity
    divided between the hundreds of applicants who filed a limited
    number of applications and a very small number of applicants who
    filed for hundreds or thousands of construction permits. For
    example, approximately half the filers submitted one or two
    proposals. Approximately 80 percent of filers submitted 10 or fewer
    proposals. 97 percent filed 50 or fewer proposals. In contrast, the
    two most active filers, commonly-owned Radio Assist Ministries and
    Edgewater (collectively, "RAM"), filed 4,219 proposals, constituting
    almost one-third of all Auction No. 83 filings. The fifteen most
    active filers were responsible for one-half of all Tech Box
    submissions.

55. We are concerned that the heavily skewed filing activity in Auction
    No. 83 raises concerns about the integrity of our FM translator
    licensing procedures. Even if lawful, it is fair to question whether
    the acquisition of unprecedented numbers of FM translator
    authorizations by a handful of entities through our window filing
    application procedures promotes either diversity or localism. The
    rapid flipping of hundreds of permits acquired through the window
    process for substantial consideration does suggest that our current
    procedures may be insufficient to deter speculative conduct. Some
    commenters have been critical of RAM's business strategy. "The
    \[National Translator Association\] considers those applicants who
    intend to obtain construction permits and then sell those permits to
    be simply speculators for profit."[^146] Most fundamentally, it
    appears that our assumption that our competitive bidding procedures
    would deter speculative filings has proven to be unfounded in the
    Auction No. 83 context. RAM, alone, has sought to assign more than
    50 percent of the 1,046 construction permits it has been awarded
    through the window and has consummated assignments for over 400 of
    all such permits**.**

56. In order to further our twin goals of increasing the number of LPFM
    stations and promoting localism, we find it necessary to take
    action. Accordingly, we will limit further processing of
    applications submitted during the Auction No. 83 filing window to
    ten proposals per applicant. Applicants with more than ten proposals
    pending will be provided an opportunity to identify those
    applications which they wish to have processed and those for which
    they seek voluntary dismissal. The Media Bureau is directed to
    complete its processing of the approximately 100 pending but frozen
    singleton long-form applications without regard to the ten
    application limit. However, construction permits granted from this
    group will count toward the limit for future Auction No. 83
    licensing purposes. This cap will only apply to short-form
    applications, and will not impact the ability of Auction No. 83
    filers with granted construction permits or pending long-form
    applications to obtain licenses to cover. This limit will not have
    an adverse impact on the more than 80 percent of those who filed ten
    or fewer proposals in the Auction No. 83 filing window. It will
    require certain filers to identify priority proposals. This cut-off
    will limit the preclusive impact of Auction No. 83 filings on LPFM
    licensing opportunities by barring the processing of thousands of
    applications filed by a very small number of applicants, without
    impacting the approximately 80 percent of filers who filed ten or
    fewer applications. Although we recognize the equitable interests of
    the remaining 20 percent of filers in the processing of all of their
    short-form applications, on balance we conclude that the public
    interest requires a bar on the processing of more than ten
    applications per filer. We are hopeful that as a result of this cap
    the Media Bureau will be able to shorten the period between windows
    for both new LPFM and FM translator stations. We direct the Media
    Bureau to issue a public notice announcing the opening of the
    settlement window required by Sections 73.5002 (c) and (d) of the
    Rules.[^147] Applicants must select the ten applications they wish
    to preserve before the settlement window opens. With the imposition
    of this cap, we direct the Media Bureau to resume the processing of
    Auction No. 83 filings. Specifically, the Media Bureau is to
    expeditiously process the applications of any applicant that is now
    in compliance or brings itself into compliance with the ten proposal
    cap*.*

57. We are mindful of the expenses that translator applicants have
    incurred in preparing their non-feeable Form 175 short-form
    applications and Form 349 Tech Box submissions but believe that the
    imposition of this cap treats all applicants equitably. We have
    attempted to accommodate applicants to the greatest extent possible,
    consistent with statutory requirements and competing Commission
    goals. All applicants will benefit from expedited processing and the
    Media Bureau's ability to open future windows more quickly. Thus,
    this action is entirely consistent with Commission Rules and
    precedent for the dismissal of pending applications as a necessary
    adjunct of efficient and effective rulemaking.[^148] Finally, we
    note that there is ample precedent for the mass dismissal of
    applications based on a rule or policy change.[^149] This procedural
    change is a reasonable exercise of the Commission's administrative
    discretion. Accordingly, we conclude that the imposition of a cap in
    these circumstances is lawful.

### Interference Protection from Subsequently Authorized Full-Service FM Stations

58. *Background.* The *Report and Order* establishing the LPFM service
    set minimum distance separation requirements to ensure that LPFM
    stations protect existing commercial and NCE full-service FM
    stations, as well as FM translator and booster stations.[^150] The
    *Report and Order* also concluded that existing full-service
    stations would not be required to protect proposed LPFM facilities.
    Moreover, "operating LPFM stations will not be protected against
    interference from subsequently authorized full-service facility
    modifications, upgrades, or new FM stations."[^151] Conversely, an
    LPFM station is not permitted to cause interference within the 3.16
    mV/m (70 dBμ) contour of a full-service FM station.[^152] An LPFM
    station generally may continue to operate within that contour so
    long as it can demonstrate that actual interference is unlikely to
    occur. Section 73.809 of the Rules sets forth detailed complaint
    procedures to resolve disputes over the likelihood of actual
    interference and the sufficiency of actions taken by LPFM stations
    to eliminate that interference.[^153]

59. In September 2000, the Commission dismissed a motion to reconsider
    the regulatory status of LPFM stations.[^154] In the *FNPRM*,
    however, the Commission stated that "it would be useful to consider
    whether to limit the Section 73.809 interference procedures to
    situations involving co- and first-adjacent channel predicted
    interference, where the predicted interference areas are
    substantially greater than for second and third-adjacent channel
    interference."[^155] The Commission also asked whether an LPFM
    station should be permitted to remain on the air if the full-power
    FM station did not serve the area of predicted interference prior to
    the facilities modification (in the case of an existing station) or
    the grant of the construction permit (in the case of a new station).
    Similarly, the Commission sought comment on whether an LPFM station
    should be permitted to remain on the air if the full-service
    station's community of license would not be subject to interference.
    Finally, the Commission asked whether an amendment to Section 73.809
    of the Rules would be consistent with Congress' directive mandating
    third-adjacent channel interference protection from LPFM
    stations.[^156]

60. Although, to date, only one LPFM station has been forced off the air
    pursuant to the requirements of Section 73.809 of the Rules, some
    commenters believe that numerous LPFM stations are under a
    significant threat of such "encroachment."[^157] In 2005, REC
    released a study claiming that 134 LPFM construction permits and
    licenses were then at risk of being cancelled due to pending
    full-power station modification applications for vacant
    allotments.[^158] The study also claimed that hundreds of LPFM
    stations faced less significant levels of increased
    interference.[^159] REC has updated this analysis to assess the
    impact of applications filed under the recently-adopted rules that
    established streamlined community of license modification
    procedures. This study claims that 257 LPFM stations could suffer at
    least some signal degradation as a result of these facility changes
    and that 38 of these LPFM stations might be required to cease
    operations. Prometheus and other commenters call for the Commission
    to grant LPFM stations co-equal protection status with full-power
    stations. Alternatively, they suggest that a full-power station
    proposing to eliminate or seriously degrade the listening area of an
    LPFM station be required to receive full Commission approval for
    such a modification. At a minimum, these commenters request that
    impacted LPFM stations be provided with the ability to make major
    engineering changes to preserve service.[^160]

61. Conversely, many other commenters believe that no changes to Section
    73.809 of the Rules are warranted.[^161] Instead, NAB proposes that
    flexible procedures be put in place to encourage LPFM stations to
    relocate.[^162] NPR contends that the Commission should maintain the
    current interference protections between FM and LPFM stations.
    Indeed, NPR and others suggest that the Commission lacks statutory
    authority to eliminate second and third-adjacent channel
    protections.[^163] Educational Media Foundation states that relaxing
    Section 73.809 of the Rules would be harmful to listener-supported
    NCE stations.[^164] Finally, NSBA contends that there is a strong
    likelihood of harmful interference to full-service FM stations if
    the Rule is changed and that harm outweighs any speculative benefit
    to the public interest that would result from a rule change.[^165]

62. *Discussion.* In the *Report and Order*, we declined to provide LPFM
    stations with an interference protection right that could prevent a
    full-service station from seeking to modify its transmission
    facilities or could foreclose future new full-service radio station
    licensing opportunities.[^166] Our experience to date confirms our
    belief that in most instances the interests of both full-service and
    LPFM stations can be accommodated. We applaud those full-service
    stations that have provided technical and/or financial assistance to
    LPFM stations that have been required to undertake facility
    modifications to remain on the air. We are particularly appreciative
    of those broadcasters that have consented to short-spacings to avoid
    LPFM station displacements.[^167] We urge licensees seeking
    community of license modifications or other changes that could lead
    to LPFM displacement or signal degradation to continue these
    cooperative efforts on a going-forward basis. The Media Bureau also
    has played an important role in crafting technical solutions to
    preserve LPFM stations potentially at risk from new station and
    facility modification proposals. It already has taken action on
    dozens of LPFM modification applications that were filed to
    eliminate or reduce caused interference to or received interference
    from a full-service FM station. We direct the Media Bureau to
    continue to attempt to resolve conflicts between full-service and
    LPFM stations in ways that accommodate the interests of both
    services.

#### Section 73.809 Interference Procedures

63. Circumstances have changed considerably since we last considered the
    issue of protection rights for LPFM stations from subsequently
    authorized full-service stations. Most importantly, the January 2007
    lifting of the freeze on the filing of FM community of license
    modification proposals combined with the implementation of new
    streamlined licensing procedures resulted in a one-time flurry of
    filing activity, with approximately 100 FM community of license
    modification proposals submitted in the first week of the new Rules.
    In all, over 200 community of license modification applications have
    been filed under the new rules. Increased filings under the new
    Rules and the arguments of LPFM advocates persuade us that the
    Commission should put policies in place to address current and
    future LPFM station displacement threats. The Media Bureau has
    identified approximately 40 LPFM stations that could be forced to
    cease operations. In these circumstances, we find that the Rules
    should be amended to limit Section 73.809 interference procedures to
    situations involving co- and first-adjacent channel
    interference.[^168] Thus, Section 73.809 will no longer apply to
    situations involving predicted second-adjacent channel interference.
    We encourage full-service and LPFM stations to work cooperatively to
    minimize or eliminate the impact of the full-service station
    proposal on both stations. In this regard, we encourage each
    "encroaching" full-service station to provide technical and
    financial assistance to any LPFM station at risk from a full-service
    station facility proposal and to identify and facilitate the
    implementation of measures to ameliorate any potential increase in
    received interference by the LPFM station. As described in more
    detail below, second-adjacent channel interference to a full service
    station is generally predicted to occur only in the immediate
    vicinity of the LPFM station transmitter site. Predicted
    interference to listeners can be substantially reduced or eliminated
    in these situations by various techniques, e.g., increasing LPFM
    antenna height, relocating LPFM transmission facilities away from
    populated areas, etc.

#### Section 73.807 Second-Adjacent Channel Waiver Standard

64. The Media Bureau has identified for many of the stations now at risk
    of displacement alternate channels that would require waivers of
    Section 73.807 of the Rules[^169] because operations on the new
    channels would be short-spaced to full service stations operating on
    second-adjacent channels. Based on the potential harm to this small
    but not insignificant number of LPFM stations, we believe that it
    would be beneficial to establish a procedural framework for the
    consideration of showings from LPFM stations that may seek such
    waivers to avoid displacement, as well as to avoid unnecessary
    disruption of LPFM service to the public during such consideration.
    This procedure will apply to both pending applications and those
    filed, but not disposed of, prior to the effective date of any Rule
    changes proposed in the *Second Further Notice.* The clarification
    of our second-adjacent channel LPFM waiver standards set forth below
    is intended to avoid the unwarranted loss of many LPFM stations
    while the Commission considers certain Rule changes set forth in a
    *Second Further Notice* that we also adopt today. The interim
    procedural protections we establish in connection with such waiver
    standards are designed to safeguard the interests of all affected
    parties and to aid the Commission in identifying those situations in
    which strict compliance with our Rules would not serve the public
    interest. We also provide guidance below regarding processing
    standards that the Commission will apply to full-service station
    modification applications where the modification would place an LPFM
    station at risk of displacement and no alternate channel is
    available. In such circumstances, we will consider waiving the
    Commission's Rule making LPFM stations secondary to
    subsequently-authorized full-service stations and denying the
    modification application to protect an LPFM station that is
    demonstrably serving the need of the public from being required to
    cease operations.

65. In evaluating whether the public interest would be served by grant
    of a waiver of Section 73.807 of the Rules for a second-adjacent
    channel short-spacing to an LPFM station at risk of displacement,
    the Commission must balance the potential for new interference to
    the full-service station against the potential loss of an LPFM
    station. An LPFM station operating within the 60 dBμ contour of a
    second-adjacent channel full-service station would cause
    interference to the full-service station in the immediate vicinity
    of the LPFM transmitter site. Based on desired-to-undesired ("D/U")
    signal strength ratio calculations, in most circumstances
    interference would be predicted to extend from ten to two hundred
    meters from the LPFM station antenna. Clearly, it will be
    advantageous to an LPFM applicant's waiver showing to propose
    modifications that minimize the area of predicted interference,
    *e.g.*, by proposing maximum possible antenna heights above average
    terrain, and by selecting transmitter sites not located near densely
    populated areas. We encourage the encroaching full-service station
    licensee to provide technical assistance to LPFM stations to develop
    modification proposals that would avoid impacting current radio
    listening patterns.[^170]

66. The following procedures will be limited to those situations in
    which implementation of the full-service new station or
    modification, including community of license, proposal would result
    in the full-service and LPFM stations operating at less than the
    minimum distance separations set forth in Section 73.807 of the
    Rules. In addition, implementation of the full-service proposal must
    result in either an increase in interference caused to the LPFM
    station or result in the displacement, *i.e.*, the suspension or
    termination of LPFM station operations pursuant to Section 73.809 of
    the Rules, of the LPFM station. These procedures will not be
    available where an alternate, fully-spaced, and rule-compliant
    channel is available for the LPFM licensee or permittee. Finally,
    Special Temporary Authorizations ("STA") will be available pursuant
    to these procedures only if the LPFM station is proposing a waiver
    (or waivers) of LPFM second-adjacent channel spacing
    requirements.[^171]

67. We direct the Media Bureau to contact LPFM stations that are
    currently, or in the future may become, eligible to seek facility
    modifications under these procedures. To receive consideration, an
    LPFM station must file promptly an application on Form 318 and
    include a Section 73.807 of the Rules waiver request and showing. If
    the Media Bureau determines that the request falls within the scope
    of these procedures, it will issue an order to show cause[^172] to
    the potentially impacted full-service station(s) as to why the
    modification of such station license(s) to allow a second-adjacent
    channel short-spacing would not be in the public interest. In the
    event that the Media Bureau concludes that the public interest would
    be better served by waiving Section 73.807 of the Rules, it will
    retain the LPFM station's application in pending status and issue an
    STA for the proposed LPFM station modifications. STAs issued
    pursuant to these procedures will be subject to any action taken by
    the Commission in the *Second Further Notice.* The Commission will
    withhold final determination of the waiver request until action on
    the *Second Further Notice* proposals. We encourage each
    "encroaching" full-service station to provide technical and
    financial assistance to any LPFM station which avails itself of
    these procedures. We also direct the Media Bureau to include a
    condition, as appropriate, in the "encroaching" full-service
    station's construction permit requiring such station to provide
    technical assistance and assume financial responsibility for all
    direct expenses associated with resolving actual interference
    complaints, *e.g.*, the purchase of radio filters, etc.

#### LPFM Station Displacement

68. In certain circumstances no alternative channel will be available
    for an LPFM station at risk of displacement. With regard to
    full-service modification applications filed after the release of
    this *Order*, we provide the following guidance on the standards
    that the Commission will use to determine whether grant of such
    applications are in the public interest. Generally, the Commission
    will favor grant of the full-service station modification
    application. However, we believe that it is appropriate to apply a
    presumption that the public interest would be better served by a
    waiver of the Commission Rule making LPFM stations secondary to
    subsequently authorized full-service stations and the dismissal of
    an "encroaching" community of license reallotment application when
    the threatened LPFM station can demonstrate that it has regularly
    provided at least eight hours per day of locally originated
    programming, as that term is defined for the LPFM service.[^173]
    This presumption will apply only when implementation of a community
    of license modification would result in the displacement of an LPFM
    station or result in such a significant increase in caused
    interference to the LPFM station such that continued operations are
    infeasible, *i.e.*, when the LPFM transmitter site is located within
    the interfering contour[^174] of a co- or first-adjacent channel
    community of license modification proposal. This presumption will
    also be limited to those situations in which no "suitable" alternate
    channel is available for the LPFM station.[^175] This presumption
    will not apply where opportunities are available for the impacted
    LPFM station to alter operations in order to avoid conflict with a
    full-service station.

69. Our evaluation of these competing demands for scarce spectrum will
    take into account the benefits of the move-in proposal under Section
    307(b) of the Communications Act of 1934, as amended, the amount of
    locally originated programming by the LPFM station, the extent to
    which other LPFM stations are licensed to and/or provide service to
    the area currently served by the threatened LPFM station, the extent
    to which other noncommercial educational ("NCE") radio stations are
    providing locally originated programming to listeners in the LPFM
    station's service area, the number of LPFM stations at risk of
    displacement from the proposed community of license modification
    proposal, and any other public interest factors raised by the
    full-service and LPFM station applicants or other parties. LPFM
    stations that wish to make a showing under this waiver standard must
    file an informal objection to the "encroaching" community of license
    modification application within sixty days of the Federal Register
    notice of such application filing. Oppositions and replies may be
    filed in accordance with Section 1.45 of the Rules. This presumption
    is rebuttable and does not bind the Commission to a particular
    result. We caution parties that even if the required showing is
    made, the Commission in the exercise of its discretion may conclude
    that denial of the full-service station application and grant of the
    waiver would not serve the public interest.

70. We intend to narrowly limit this policy to the class of LPFM
    stations that are demonstrably serving the needs of local listeners.
    Moreover, this policy will not apply in a situation in which a
    full-service station proposes a facility change to improve service
    to its current community of license. We emphasize that we will
    dismiss a community of license modification proposal only when no
    technically reasonably accommodation is available and the LPFM
    station makes the requisite waiver showing. We conclude that this
    processing policy appropriately balances the interests of
    full-service and LPFM stations, and recognizes the role that each
    service plays in promoting diversity and localism. The Commission is
    seeking comment on the presumption in the attached *Second Further
    Notice* and may modify it based on the comments received in response
    thereto.

71. We believe that Section 73.807 of the Rules and LPFM displacement
    standards will effectively balance the interests of LPFM and
    full-service broadcasters while the Commission considers the *Second
    Further Notice* proposals. While REC has identified many LPFM
    stations that ultimately may be required to modify their facilities
    as a result of encroachment, we do not see this as a threat to the
    viability of the LPFM service, especially with the additional
    protections and procedures we adopt herein. REC's claim that many
    LPFM stations face interference merely describes a basic feature of
    the service in today's congested FM broadcast radio spectrum.
    Opportunities exist for many LPFM stations to change locations,
    reduce power, or change channels, in the event that a conflict
    arises with a full-service station. Furthermore, the majority of the
    stations identified as "less significant risks" by REC solely exist
    today because of the flexible nature of the spacing rules under
    Section 73.807 of the Rules.[^176] Section 73.807 clearly identifies
    the distance separations necessary for LPFM stations to avoid
    received interference but does not require LPFM stations to meet
    this stringent standard. This Rule fully protects nearby full-power
    FM stations while also allowing interference to LPFM stations in
    some instances. Therefore, LPFM stations at distances less than
    those specified in Section 73.807 of the Rules in the column labeled
    "for no interference received from max. class facility" can expect
    to receive interference.[^177]

#  SECOND FURTHER NOTICE OF PROPOSED RULEMAKING

72. Today, the Commission adopts a series of wide-ranging rule changes
    to strengthen and promote the long-term viability of the LPFM
    service, and the localism and diversity goals that this service is
    intended to advance. We also recommend to Congress that it remove
    the requirement that LPFM stations protect full-power stations
    operating on third adjacent channels. We intend to resolve the
    following issues within six months. The next filing window for a
    non-tabled aural broadcast service will be for new LFPM stations. We
    plan to open this window after the Commission has resolved the
    issues raised in this *Second Further Notice,* and has resolved
    other issues that could significantly impact the availability of
    future spectrum for LPFM applicants, including the disposal of
    substantially all of the applications filed in the recent NCE FM
    window.

73. Based on numerous meetings with LPFM service proponents, filings,
    and presentations at various forums and hearings convened by the
    Commission over the past two years, we believe that it is
    appropriate to consider whether additional LPFM service and
    technical rule changes are warranted. We seek comment on the several
    issues set forth below.

## Section 73.807 Second-Adjacent Channel Waiver Standard

74. The *Third Report and Order* details an interim processing policy
    that the Commission will use to consider Section 73.807 of the Rules
    waiver requests from certain LPFM stations. As set forth more fully
    therein, when implementation of a full-service station community of
    license modification would result in an increase in interference
    caused to the LPFM station or its displacement, the LPFM station may
    seek a second-adjacent channel short spacing waiver in connection
    with an application proposing operations on a new channel. We seek
    comment generally on whether to codify the waiver and processing
    policies set forth in the *Third Report and Order.* Would
    modifications to these policies better balance the interests of LPFM
    and full-service stations? Should the procedures be narrowed to
    apply only when the LPFM station is subject to displacement pursuant
    to Section 73.809 of the Rules? Should the Rules provide a deadline
    for the filing of the LPFM alternate channel application and waiver
    request and, if so, what should the deadline be? Should waivers be
    limited to second-adjacent channel short-spacings?[^178] Should
    waivers be granted only when the LPFM station can demonstrate no
    actual interference due to lack of population, terrain, or other
    factors, as we allow in the FM translator service?[^179] Should
    continued LPFM operations be subject to the resolution of all *bona
    fide* actual interference complaints? Should the "encroaching"
    full-service station be responsible for providing technical
    assistance and assuming financial responsibility for all direct
    expenses associated with resolving all *bona fide* actual
    interference complaints, *e.g.*, the purchase of radio filters,
    etc.? Do the orders to show cause procedures fully protect impacted
    stations' due process rights? Would additional procedures help
    ensure that the Commission has a full record on which to evaluate
    waiver requests? Should these procedures be expanded to include co-
    and first-adjacent channel situations? Finally, we seek comment on
    whether rule changes are warranted to provide additional flexibility
    to propose LPFM station modifications.

## LPFM Station Displacement

75. As detailed more fully in the *Third Report and Order*, the
    Commission is adopting a processing policy to evaluate on a going
    forward basis each community of license modification proposal that
    would result in the displacement of an LPFM station or stations. We
    seek comment generally on whether the Commission should amend
    Section 73.809 of the Rules to establish a licensing presumption
    that would protect certain operating LPFM stations from subsequently
    proposed community of license modifications. We also seek comment on
    each aspect of the current processing policy. Specifically, should
    the presumption be limited to those LPFM stations that have
    regularly provided eight hours of locally originated programming
    daily? What criteria should the Commission use to determine whether
    an LPFM station has "regularly" satisfied the eight-hour programming
    requirement? Should the presumption be extended to protect LPFM
    stations against subsequently filed petitions for rulemaking for new
    FM allotments and/or modification applications not proposing
    community of license changes? Finally, we seek comment on other
    approaches to resolve LPFM station displacement conflicts and the
    reasons why such alternative approaches would more appropriately
    balance the interests of these services.

## Obligations of Full-Service New Station and Modification Applicants to Potentially Impacted LPFM Stations

76. Currently, a full-service station applicant has no obligation to
    assist an LPFM station potentially impacted by implementation of its
    new station or modification proposal. We believe that this policy is
    inconsistent with the comity and respect to which LPFM stations are
    entitled and with certain reimbursement policies which the
    Commission has established for full-service stations which are
    involuntarily required to change channels.[^180] As proposed in part
    by the Station Resource Group,[^181] we tentatively conclude that an
    applicant for a new or modified station should be required to assume
    certain technical, financial, and notice obligations if
    implementation of the proposal could impact an LPFM station.
    Specifically we tentatively conclude that in these circumstances,
    the full-service station should be required to provide notice of its
    application filing to the LPFM station. As part of its application
    filing, the full-service station should be required to include the
    results of its search for an alternate LPFM channel. It should also
    be required to cooperate in good faith with the LPFM station in
    developing the best technical approach, including a possible LPFM
    site relocation, to ameliorate the interference and/or displacement
    impact of its proposal. In addition, the "encroaching" full-service
    station should be responsible for certain expenses relating to any
    LPFM station channel change and/or transmitter site change
    necessitated by the full-service station proposal. We tentatively
    conclude such expenses should be limited to the physical changes in
    the LPFM station's transmission system. We seek comment on each of
    these tentative conclusions and on other measures to ensure the
    equitable treatment of LPFM stations.

77. We believe that these procedures should apply if the LPFM
    authorization was issued or a pending LPFM facility application was
    filed prior to the filing of a full-service station application for
    construction permit or license, including one that proposes a
    community of license modification. We tentatively conclude that
    these procedures should be limited to those situations in which
    implementation of the full-service proposal would result in the
    full-service and LPFM stations operating at less than the minimum
    distance separations set forth in Section 73.807 of the Rules and
    could result in either an increase in interference caused to the
    LPFM station or the permanent displacement of the LPFM station. We
    seek comment on these proposed limitations on the scope and extent
    of these remedial procedures.

## Contour Protection-Based Licensing Standards for LPFM Stations

78. An LPFM new station or modification application must protect all
    existing stations and prior filed applications on the basis of
    distance separations set forth in Section 73.807 of the Rules.[^182]
    This methodology, used in connection with virtually all FM
    non-reserved band full-service station licensing, provides a
    straight-forward standard for determining technical acceptability.
    As a result of this methodology's simplicity, the Commission was
    able to provide an on-line "channel finder" utility prior to the
    first series of LPFM filing windows. This tool enabled
    unsophisticated potential applicants to identify without expense
    available FM spectrum in their local communities.

79. Prometheus and other LPFM advocates argue that the Commission should
    adopt a more flexible "contour" methodology for the licensing of
    LPFM stations.[^183] Although full-service NCE FM stations are
    licensed pursuant to a contour methodology,[^184] it appears that
    these parties are urging the Commission to permit LPFM station
    licensing pursuant to the FM translator protection rule, Section
    74.1204 of the Rules. As demonstrated by the filing of over 13,000
    applications in the 2003 window for new non-reserved band FM
    translator construction permits, adoption of this standard would
    vastly expand LPFM licensing opportunities throughout the nation and
    create the possibility of locating new LPFM stations in a number of
    major and spectrum-congested markets.

80. The flexibility of FM translator licensing is based on four key
    factors. Translators, like LPFM stations, may only operate with
    limited power. This necessarily limits distances from the proposed
    station's transmitter site to its co- and adjacent-channel
    interfering contours. Secondly, a protection methodology based on
    contours is, itself, a more flexible licensing approach. Although
    contour and distance separation requirements are derived from common
    principles, the contour methodology requires applicants to protect
    actual -- rather than class maximum -- facilities. Thus, modifying
    our Rules to permit LPFM applicants to "engineer in" new proposals
    on the basis of contour protection standards would result in new
    licensing opportunities.

81. The two other factors are closely tied to the fact that FM
    translators are licensed on a secondary basis. As a secondary
    service, translators are licensed without regard to the extent of
    received interference they would receive.[^185] LPFM stations also
    receive the benefit of this flexibility.[^186] The fourth factor is
    the Section 74.1204(d) exception to the Section 74.1204(a) of the
    Rules contour methodology. Under paragraph (d) of that section, the
    general FM translator contour overlap provisions will not apply "if
    it can be demonstrated that no actual interference will occur due to
    intervening terrain, *lack of population* or such other factors as
    may be applicable."[^187] For many years, the Commission has
    permitted FM translator applications to use the D/U signal strength
    ratio methodology to establish the area of predicted interference
    and to demonstrate the "lack of population" within this area to
    satisfy the requirements under Section 74.1204(d) of the
    Rules.[^188]

82. However, the FM translator technical rules include a second and
    essential requirement: the inflexible obligation to resolve all
    *bona fide* actual interference complaints pursuant to Section
    74.1203(a) of the Rules. A translator station that cannot resolve
    all complaints must suspend operations.[^189] The two Rules operate
    in tandem. The flexibility of Section 74.1204(d) of the Rules is
    backstopped by the permanent Section 74.1203(a) secondary service
    obligation to resolve actual interference complaints.

83. We tentatively conclude that the licensing of LPFM stations pursuant
    to the standards of Section 74.1204 of the Rules or some other
    "contour-based" methodology is in the public interest. We
    tentatively conclude that an LPFM station licensed under this
    standard would be required to resolve all actual interference
    complaints or cease operations. We seek comment on this tentative
    conclusion. We also tentatively conclude not to allow the use of
    alternative propagation methodologies, such as Longley Rice, to show
    lack of interference. These showings impose enormous staff
    processing burdens and are typically subject to opposition.
    Additionally, as demonstrated by the significant number of FM
    translator proposals submitted in the 2003 filing window, we believe
    that permitting D/U ratio showings to establish "lack of population"
    subject to interference provides ample licensing flexibility. We
    seek comment specifically on whether it is appropriate to license
    LPFM stations to community groups, which often have limited
    resources and technical expertise, under a standard that subjects
    such stations to the constant risk of being forced off the air if
    they cannot resolve interference complaints promptly. We also seek
    comment on whether it is appropriate to adopt an LPFM technical
    licensing regime that would require the use of consulting engineers.
    We tentatively conclude that Section 73.807 of the Rules should be
    retained if a "contour" rule is adopted in this proceeding. Stations
    holding licenses issued pursuant to the current Rule would not be
    required to resolve actual interference complaints except in
    accordance with the provisions of Section 73.809 of the Rules. We
    seek comment on this approach which would provide differing levels
    of protection to operating LPFM stations based on each station's
    choice of technical processing standards.

## LPFM -- FM Translator Protection Priorities 

84. The *Third Report and Order* does not reach a conclusion on the
    "co-equal" status between LPFM stations and FM translator stations.
    Under the Rules for these services, a first-filed LPFM or FM
    translator application must be protected by all subsequently filed
    LPFM and FM translator applications. Localism, diversity and
    competition remain our key radio broadcasting goals. We find that it
    would be useful to develop a better record on whether and how these
    goals would be advanced by altering the priorities between these two
    services. We seek comment on this issue. In particular, we seek
    comment on whether we should distinguish between translators that
    are fed by satellite and those that received and retransmit
    programming delivered terrestrially. We also seek comment on the
    extent to which providing priority to LFPM stations could impact
    established listening patterns or disrupt established translator
    signal delivery systems that NCE broadcasters rely on extensively to
    disseminate programming. We also seek comment on the Prometheus
    proposal to limit the number of translator stations that would have
    priority over subsequently applied for LPFM facilities.[^190]
    Prometheus proposes to limit priority status to 25 translator
    stations for each originating station but would not consider "full
    power repeaters" as originating stations. We seek comment both on
    this proposed cap and Prometheus' proposed definition of
    "originating station," for the purpose of applying this cap. We also
    seek comment on whether such an approach is administratively
    feasible given the fact that an FM translator may without prior
    consent or notice to the Commission change its primary station.

# CONCLUSION

85. The rules and policies adopted herein will promote the continued
    operation and expansion of LPFM service. Our actions today further
    the public interest and ensure that we maximize the value of LPFM
    service without harming the interests of full-power FM stations or
    other Commission licensees. To further these goals, we also
    recommend to Congress that it remove the requirement that LPFM
    stations protect full-power stations operating on third adjacent
    channels.

#  Administrative matters 

## Filing Requirements

86. *Ex Parte Rules*. The *Second Further Notice of Proposed Rulemaking*
    in this proceeding will be treated as a "permit-but-disclose"
    subject to the "permit-but-disclose" requirements under Section
    1.1206(b) of the Rules.[^191] *Ex parte* presentations are
    permissible if disclosed in accordance with Commission rules, except
    during the Sunshine Agenda period when presentations, *ex parte* or
    otherwise, are generally prohibited. Persons making oral *ex parte*
    presentations are reminded that a memorandum summarizing a
    presentation must contain a summary of the substance of the
    presentation and not merely a listing of the subjects discussed.
    More than a one- or two-sentence description of the views and
    arguments presented is generally required.[^192] Additional rules
    pertaining to oral and written presentations are set forth in
    Section 1.1206(b).

87. *Comments and Reply Comments*. Pursuant to sections 1.415 and 1.419
    of the Rules, 47 CFR §§ 1.415, 1.419, interested parties may file
    comments and reply comments on or before the dates indicated on the
    first page of this document. Comments may be filed using: (1) the
    Commission's Electronic Comment Filing System (ECFS), (2) the
    Federal Government's eRulemaking Portal, or (3) by filing paper
    copies.[^193]

-   Electronic Filers: Comments may be filed electronically using the
    Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the
    Federal eRulemaking Portal: http://www.regulations.gov. Filers
    should follow the instructions provided on the website for
    submitting comments.

    -   For ECFS filers, if multiple docket or rulemaking numbers appear
        in the caption of this proceeding, filers must transmit one
        electronic copy of the comments for each docket or rulemaking
        number referenced in the caption. In completing the transmittal
        screen, filers should include their full name, U.S. Postal
        Service mailing address, and the applicable docket or rulemaking
        number. Parties may also submit an electronic comment by
        Internet e-mail. To get filing instructions, filers should send
        an e-mail to ecfs@fcc.gov, and include the following words in
        the body of the message, "get form." A sample form and
        directions will be sent in response.

```{=html}
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-   Paper Filers: Parties who choose to file by paper must file an
    original and four copies of each filing. If more than one docket or
    rulemaking number appears in the caption of this proceeding, filers
    must submit two additional copies for each additional docket or
    rulemaking number.

> Filings can be sent by hand or messenger delivery, by commercial
> overnight courier, or by first-class or overnight U.S. Postal Service
> mail (although we continue to experience delays in receiving U.S.
> Postal Service mail). All filings must be addressed to the
> Commission's Secretary, Office of the Secretary, Federal
> Communications Commission.

-   The Commission's contractor will receive hand-delivered or
    messenger-delivered paper filings for the Commission's Secretary at
    236 Massachusetts Avenue, NE, Suite 110, Washington, DC 20002. The
    filing hours at this location are 8:00 a.m. to 7:00 p.m. All hand
    deliveries must be held together with rubber bands or fasteners. Any
    envelopes must be disposed of before entering the building.

-   Commercial overnight mail (other than U.S. Postal Service Express
    Mail and Priority Mail) must be sent to 9300 East Hampton Drive,
    Capitol Heights, MD 20743.

-   U.S. Postal Service first-class, Express, and Priority mail must be
    addressed to 445 12^th^ Street, SW, Washington DC 20554.

    People with Disabilities: To request materials in accessible formats
    for people with disabilities (braille, large print, electronic
    files, audio format), send an e-mail to fcc504@fcc.gov or call the
    Consumer & Governmental Affairs Bureau at 202-418-0530 (voice),
    202-418-0432 (tty).

88. *Availability of Documents*. Comments, reply comments, and *ex
    parte* submissions will be available for public inspection during
    regular business hours in the FCC Reference Center, Federal
    Communications Commission, 445 12^th^ Street, S.W., CY-A257,
    Washington, D.C., 20554. Persons with disabilities who need
    assistance in the FCC Reference Center may contact Bill Cline
    at (202) 418-0267 (voice), (202) 418-7365 (TTY), or
    bill.cline@fcc.gov. These documents also will be available from the
    Commission's Electronic Comment Filing System. Documents are
    available electronically in ASCII, Word 97, and Adobe Acrobat.
    Copies of filings in this proceeding may be obtained from Best Copy
    and Printing, Inc., Portals II, 445 12^th^ Street, S.W., Room
    CY-B402, Washington, D.C., 20554; they can also be reached by
    telephone, at (202) 488-5300 or (800) 378-3160; by e-mail at
    fcc@bcpiweb.com; or via their website at http://www.bcpiweb.com. To
    request materials in accessible formats for people with disabilities
    (Braille, large print, electronic files, audio format), send an
    e-mail to fcc504@fcc.gov or call the Consumer and Governmental
    Affairs Bureau at (202) 418-0531 (voice), (202) 418-7365 (TTY).

## Regulatory Flexibility Analysis

89. *Initial* and *Final Regulatory Flexibility Analysis.* The
    Regulatory Flexibility Act of 1980, as amended ("RFA"),[^194]
    requires that a regulatory flexibility analysis be prepared for
    notice and comment rule making proceedings, unless the agency
    certifies that "the rule will not, if promulgated, have a
    significant economic impact on a substantial number of small
    entities."[^195] The RFA generally defines the term "small entity"
    as having the same meaning as the terms "small business," "small
    organization," and "small governmental jurisdiction."[^196] In
    addition, the term "small business" has the same meaning as the term
    "small business concern" under the Small Business Act.[^197] A
    "small business concern" is one which: (1) is independently owned
    and operated; (2) is not dominant in its field of operation; and (3)
    satisfies any additional criteria established by the Small Business
    Administration ("SBA").[^198] By the issuance of this *Second
    Further Notice of Proposed Rulemaking*, we seek comment on the
    impact our suggested proposals would have on small business
    entities. The complete initial regulatory flexibility analysis is
    attached as Appendix C.

90. As required by the Regulatory Flexibility Act,[^199] the Commission
    has prepared a Final Regulatory Flexibility Analysis ("FRFA")
    relating to this *Third Report and Order.* The FRFA is set forth in
    Appendix D.

## Paperwork Reduction Act Analysis

91. This *Third Report and Order* contains new and modified information
    collection requirements which were proposed in the *FNPRM*, 20 FCC
    Rcd 6763 (2005), 70 FR 39217 (July 7, 2005), and are subject to the
    Paperwork Reduction Act of 1995 ("PRA").[^200]

92. We have assessed the effects of requiring documentation in relation
    to: (1) the proposed changes to Forms 314, 315 and 316 for the
    transfer and/or assignment of LPFM licenses;[^201] and (2) the
    proposed changes to Form 318 for the relocation of transmitter sites
    for voluntary time-share applicants.[^202] We find that to the
    extent that this *Third Report and* *Order* imposes any burdens on
    small entities, the resulting impact on small entities is favorable
    because the rules expand opportunities for LPFM applicants,
    permittees, and licensees to transfer and assign licenses, relocate
    transmitter sites, and extend construction deadlines. These
    information collection requirements were submitted to the Office of
    Management and Budget ("OMB") for review under Section 3507(d) of
    the PRA. In addition, the general public and other Federal agencies
    were invited to comment on these information collection requirements
    in the *NPRM*.[^203] We further note that pursuant to the Small
    Business Paperwork Relief Act of 2002,[^204] we previously sought
    specific comment on how the Commission might "further reduce the
    information collection burden for small business concerns with fewer
    than 25 employees." We received no comments concerning these
    information collection requirements. On August 25 and 30, 2005, the
    Commission obtained OMB approval for these information collection
    requirements, encompassed by OMB Control Nos. 3060-0031 (Forms
    314-315), 3060-0009 (Form 316) and 3060-0920 (Form 318). This *Third
    Report and Order* adopts portions of the above information
    collection requirements, as proposed. Additional changes are
    necessary to Forms 314, 315, 316 and 318, and will be submitted to
    OMB for approval.

93. This document also contains additional proposed information
    collection requirements for which we have not yet assessed the
    effect. In this *Third Report and Order*, we require documentation
    in relation to: (1) an optional 18-month extension of a construction
    permit upon a showing of good cause; (2) the voluntary withdrawal of
    Form 349 tech box proposals in order to come into compliance with
    the cap of 10 proposals; (3) the voluntary filing of a request, on
    Form 318, for waiver of Section 73.807 of the Rules for a
    second-adjacent short-spacing to an LPFM station at risk of
    displacement by a full-service station; and (4) the voluntary filing
    of waiver of the Commission Rule making LPFM stations secondary to
    subsequently authorized full-service stations, where an LPFM station
    at risk of displacement by a full-service station can demonstrate
    that it provides at least eight hours a day of locally originated
    programming and that no suitable alternate channel is available. As
    discussed above, additional changes are necessary to Forms 314, 315,
    316 and 318, and will be submitted to OMB for approval. In addition,
    the *Second Further Notice* may require a full-service station to
    provide: (1) notice of its application filing to any LPFM station
    potentially impacted by its proposal, and (2) the results of its
    search for an alternate LPFM channel to the Commission in its
    application filing, which may require changes to Forms 301 and 302.
    The *Second Further Notice* also: (3) proposes codification of the
    waiver requests proposed in the *Third Report and Order*, which
    would require a change to Form 318, and (4) proposes adoption of a
    "contour" methodology showing by LPFM applicants who wish to use
    this standard, which would require a change to Form 318. The new
    information collection requirements will be submitted to OMB for
    review under Section 3507(d) of the PRA. OMB, the general public,
    and other Federal agencies are invited to comment on the new
    information collection requirements contained in this proceeding.

## Congressional Review Act

94. The Commission will send a copy of this *Third Report and Order*
    *and Second Further Notice of Proposed Rulemaking* in a report to be
    sent to Congress and the Government Accountability Office pursuant
    to the Congressional Review Act, see 5 U.S.C. § 801(a)(1)(A).

## Additional Information

95. For additional information on this proceeding, please contact Peter
    Doyle, Audio Division, Media Bureau, at (202) 418-2700, or Holly
    Saurer, Policy Division, Media Bureau, at (202) 418-7283.

# ordering clauses

96. IT IS ORDERED that, pursuant to the authority contained in Sections
    1, 2, 4(i), 303, 403 and 405 of the Communications Act of 1934, 47
    U.S.C §§ 151, 152, 154(i), 303,, 403, and 405, this *Third Report
    and Order* *and Second Further Notice of Proposed Rulemaking* IS
    ADOPTED.

97. IT IS FURTHER ORDERED that pursuant to the authority contained in
    Sections 1, 2, 4(i), 303, 303(a), 303(b), and 307 of the
    Communications Act of 1934, 47 U.S.C. §§ 151, 152, 154(i), 303,
    303(a), 303(b), and 307, the Commission's Rules ARE HEREBY AMENDED
    as set forth in Appendix B. It is our intention in adopting these
    rule changes that, if any provision of the rules is held invalid by
    any court of competent jurisdiction, the remaining provisions shall
    remain in effect to the fullest extent permitted by law.

98. IT IS FURTHER ORDERED that the Rules as revised in Appendix B SHALL
    BE EFFECTIVE 60 days after publication of the *Third Report and
    Order and Second Further Notice of Proposed Rulemaking* in the
    Federal Register. Changes to FCC Forms 314, 315, 316 and 318 will be
    effective 60 days after Federal Register publication of OMB approval
    of the forms. With respect to renewal applications, we will evaluate
    compliance with these requirements in applications filed in the next
    renewal cycle. Licensee performance during any portion of the
    renewal term that predates the effective date of the rules in the
    *Third Report and Order* will be evaluated under current rules, and
    licensee performance that post-dates the effective date of the
    revised rules will be judged under the new provisions.

99. IT IS FURTHER ORDERED that, pursuant to Sections 0.201-.204 of the
    Commission's Rules, 47 C.F.R. § 0.201-.204, and Section 5(c)(1) of
    the Communications Act of 1934, as amended, 47 U.S.C. § 155(c)(1),
    the Chief, Media Bureau, IS DELEGATED AUTHORITY to act as described
    in paragraphs 40, 56, 62 and 67 herein.

100. IT IS FURTHER ORDERED that the Petition for Rulemaking filed by the
     Amherst Alliance, Talk Radio of Pahrump, Midwest Christian Media,
     Providence Community Radio, and Nickolaus E. Leggett N3NL IS HEREBY
     DISMISSED.

101. IT IS FURTHER ORDERED that the Commission's Consumer and
     Governmental Affairs Bureau, Reference Information Center, SHALL
     SEND a copy of this *Third Report and Order and Second Further
     Notice of Proposed Rulemaking* , including the Initial Regulatory
     Flexibility Analysis and the Final Regulatory Flexibility Analysis,
     to the Chief Counsel for Advocacy of the Small Business
     Administration.

102. IT IS FURTHER ORDERED that the Commission SHALL SEND a copy of this
     *Third Report and Order and Second Further Notice of Proposed
     Rulemaking* in a report to be sent to Congress and the General
     Accounting Office pursuant to the Congressional Review Act, *see* 5
     U.S.C. § 801(a)(1)(A).

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

**APPENDIX A**

**List of Commenters and Reply Commenters**

Abundant Family Life Center

Allen England

Amherst Alliance

Arn Stolp

Auburn Chinese Ministry Association

Beth Wolfe

Big Bend Broadcasting

Bob Gardner

Brent Newland

Brett Reese

Bruce Quinn

Charles Cookson

Christian Community Broadcasters

Colquitt Community Radio, Inc.

Columbus Community Radio (WHUM-LP)

Cox Radio, Inc.

Crisis Pregnancy Help Center of Slidell, Inc.

Cromwell Radio Group and Affiliates

Dale Hardman

Dane Scott Udenberg

Daniel Brown

David A. Gowler

DuBois Area Broadcasting, Inc.

Eastern Sierra Broadcasting

Edgewater Broadcasting/Radio Assist Ministry

Educational Information Corporation (WCPE)

Educational Media Foundation

Edward Schober

Elizabeth Currans

Eric Howland

Erik Anderson

Eureka College

Fisher Radio Regional Group

Galaxy Communications/Desert West Air Ranchers

Georgia-Carolina Radiocasting Companies

Highland Community Broadcasting (Harold Kozlowski)

Hugh Cushing

Jason Ander

Jason Turgeon

Joseph D'Alessandro

JT Communications

Kaskaskia Broadcasting, Inc.

Kevin M. Fitzgerald

KL Ward

KVLP-LP Visalia Local Power

Kyle Magrill

KYRS-LP

KZQX-LP

Limestone Community Radio

Mark Snow

Martin L. Hensley

Matthew Lasar

MBC Grand Broadcasting, Inc.

Meagen Grundberg

Michigan Music is World Class!, *et al*.

Midwest Christian Media

Mountain Area Information Network

Named State Broadcasters Associations

National Association of Broadcasters

National Public Radio

National Translator Association

New Jersey Broadcasters Association

New Jersey Public Broadcasting Authority

Nickolaus Leggett

NRC Broadcasting, Inc.

Optima Enrichment, Inc.

Pacifica Foundation

Paul Griffin

Paul McCarthy

Point Broadcasting Company, *et al*.

Press Communications, LLC

Progressive Broadcasting System/Christian Friends

Prometheus Radio Project, *et al*.

Public Radio FM Translator Licensees

Public Radio Regional Organizations

Radio Training Network, Inc.

REC Networks

RGS Communications, Inc.

Richard VanZandt

Richard Whitmore

Rick Vogel

Rocky Mountain Corporation for Public Broadcasting

Sacred Heart University

Sadie Vela

Saga Communications, Inc.

Samuel Reese

Simmons Stations of North Dakota

Station Resource Group

Summit Media Broadcasting, LLC

Taylor University Broadcasting, Inc.

Ted M. Coopman

Temple University Public Radio

The Colleges of the Seneca

The Walt Disney Company

Thomas C. Smith

University of Southern California

Virden Broadcasting Corp.

Virginia Center for Public Press

WAY-FM Media Group

West Michigan Community Help Network

Western North Carolina Public Radio, Inc.

Wil Hadley

WFCR Amherst, MA

WRBG-LP

WSLR-LP

> **APPENDIX B**

Part 73 of the Code of Federal Regulations is amended as follows:

PART 73 -- RADIO BROADCAST SERVICES

1\. The citation authority for part 73 to read as follows:

Authority: 47 U.S.C. 154, 303, 334, 336, and 339.

1\. Section 73.809 is amended by revising paragraphs (a) and (b) to read
as follows:

[§ 73.809 Interference protection to full service FM
stations.]{.underline}

\(a\) If a full service commercial or NCE FM facility application is
filed subsequent to the filing of an LPFM station facility application,
such full service station is protected against any condition of
interference to the direct reception of its signal caused by such LPFM
station that operates on the same channel, first-adjacent channel or
intermediate frequency (IF) channel as or to such full service station,
provided that the interference is predicted to occur and actually occurs
within:

\(1\) The 3.16 mV/m (70 dBu) contour of such full service station;

\(2\) The community of license of such full service station; or

\(3\) Any area of the community of license of such full service station
that is predicted to receive at least a 1 mV/m (60 dBu) signal.
Predicted interference shall be calculated in accordance with the ratios
set forth in §§ 73.215(a)(1) and 73.215(a)(2). Intermediate Frequency
(IF) channel interference overlap will be determined based upon overlap
of the 91 dBu F(50,50) contours of the FM and LPFM stations. Actual
interference will be considered to occur whenever reception of a
regularly used signal is impaired by the signal radiated by the LPFM
station.

\(b\) An LPFM station will be provided an opportunity to demonstrate in
connection with the processing of the commercial or NCE FM application
that interference as described in paragraph (a) of this section is
unlikely. If the LPFM station fails to so demonstrate, it will be
required to cease operations upon the commencement of program tests by
the commercial or NCE FM station.

3\. Section 73.853 is amended by revising paragraph (b) to read as
follows:

[§ 73.853 Licensing requirements and service.]{.underline}

\* \* \* \* \*

\(b\) Only local applicants will be permitted to submit applications.
For the purposes of this paragraph, an applicant will be deemed local if
it can certify that:

\(1\) The applicant, its local chapter or branch is physically
headquartered or has a campus within 16.1 km (10 miles) of the proposed
site for the transmitting antenna for applicants in the top 50 urban
markets, and 32.1 km (20 miles) for applicants outside of the top 50
urban markets;

\(2\) It has 75% of its board members residing within 16.1 km (10 miles)
of the proposed site for the transmitting antenna for applicants in the
top 50 urban markets, and 32.1 km (20 miles) for applicants outside of
the top 50 urban markets; or

\(3\) In the case of any applicant proposing a public safety radio
service, the applicant has jurisdiction within the service area of the
proposed LPFM station.

4\. Section 73.855 is revised to read as follows:

[§ 73.855 Ownership limits.]{.underline}

\(a\) No authorization for an LPFM station shall be granted to any party
if the grant of that authorization will result in any such party holding
an attributable interest in two or more LPFM stations.

\(b\) Not-for-profit organizations and governmental entities with a
public safety purpose may be granted multiple licenses if:

\(1\) One of the multiple applications is submitted as a priority
application; and

\(2\) the remaining non-priority applications do not face a mutually
exclusive challenge.

5\. Section 73.865 is amended by revising section (a) and adding
sections (c), (d) and (e) to read as follows:

[§ 73.865 Assignment and transfer of LPFM licenses.]{.underline}

\(a\) Assignment/Transfer: No party may assign or transfer an LPFM
license if:

\(1\) Consideration promised or received exceeds the depreciated fair
market value of the physical equipment and facilities; and/or

\(2\) The transferee or assignee is incapable of satisfying all
eligibility criteria that apply to a LPFM licensee.

\(b\) A change in the name of an LPFM licensee where no change in
ownership or control is involved may be accomplished by written
notification by the licensee to the Commission.

\(c\) *Holding Period*: A license cannot be transferred or assigned for
three years from the date of issue, and the licensee must operate the
station during the three year holding period.

\(d\) No party may assign or transfer an LPFM construction permit at any
time.

\(e\) Transfers of control involving a sudden change of more than 50
percent of an LPFM's governing board shall not be deemed a substantial
change in ownership or control, subject to the filing of an FCC Form
316.

6\. Section 73.870 is amended by revising paragraph (a) and adding
paragraph (f) to read as follows:

[§]{.underline} [73.870 Processing of LPFM broadcast station
applications.]{.underline}

\(a\) A minor change for an LP100 station authorized under this subpart
is limited to transmitter site relocations of 5.6 kilometers or less. A
minor change for an LP10 station authorized under this subpart is
limited to transmitter site relocations of 3.2 kilometers or less. These
distance limitations do not apply to amendments or applications
proposing transmitter site relocation to a common location filed by
applicants that are parties to a voluntary time-sharing agreement with
regard to their stations pursuant to Sections 73.872(c) and (e). Minor
changes of LPFM stations may include:

\(1\) changes in frequency to adjacent or IF frequencies or, upon a
technical showing of reduced interference, to any frequency; and

\(2\) amendments to time-sharing agreements, including universal
agreements that supersede involuntary arrangements.

\* \* \* \* \*

\(f\) New entrants seeking to apply for unused or unwanted time on a
time-sharing frequency will only be accepted during an open filing
window, specified pursuant to paragraph (b) of this section.

7\. Section 73.871 is amended by revising paragraph (c) as follows:

§73.871 Amendment of LPFM broadcast station applications.

\* \* \* \* \*

\(c\) Only minor amendments to new and major change applications will be
accepted after the close of the pertinent filing window. Subject to the
provisions of this section, such amendments may be filed as a matter of
right by the date specified in the FCC\'s Public Notice announcing the
acceptance of such applications. For the purposes of this section, minor
amendments are limited to:

\(1\) Filings subject to subsection (c)(5), site relocations of 3.2
kilometers or less for LP10 stations;

\(2\) Filings subject to subsection (c)(5), site relocations of 5.6
kilometers or less for LP100 stations

\(3\) Changes in ownership where the original party or parties to an
application retain more than a 50 percent ownership interest in the
application as originally filed;

> \(4\) Universal voluntary time-sharing agreements to apportion vacant
> time among the licensees;

\(5\) Other changes in general and/or legal information; and

\(6\) Filings proposing transmitter site relocation to a common location
submitted by applicants that are parties to a voluntary time-sharing
agreement with regard to their stations pursuant to Sections 73.872(c)
and (e).

8\. Section 73.872 is amended by revising paragraphs (c) and (e) to read
as follows:

[§ 73.872 Selection]{.underline} [procedure for mutually exclusive LPFM
applications]{.underline}.

\* \* \* \* \*

\(c\) *Voluntary time-sharing*. If mutually exclusive applications have
the same point total, any two or more of the tied applicants may propose
to share use of the frequency by submitting, within 90 days of the
release of a public notice announcing the tie, a time-share proposal.
Such proposals shall be treated as minor amendments to the time-share
proponents\' applications, and shall become part of the terms of the
station authorization. Where such proposals include all of the tied
applications, all of the tied applications will be treated as tentative
selectees; otherwise, time-share proponents\' points will be aggregated
to determine the tentative selectees.

\(1\) Time-share proposals shall be in writing and signed by each
time-share proponent, and shall satisfy the following requirements:

\(i\) The proposal must specify the proposed hours of operation of each
time-share proponent;

\(ii\) The proposal must not include simultaneous operation of the
time-share proponents; and

\(iii\) Each time-share proponent must propose to operate for at least
10 hours per week.

\(2\) Where a station is authorized pursuant to a time-sharing proposal,
a change of the regular schedule set forth therein will be permitted
only where a written agreement signed by each time-sharing permittee or
licensee and complying with requirements in paragraphs (c)(1)(i) through
(iii) of this section is filed with the Commission, Attention: Audio
Division, Media Bureau, prior to the date of the change.

\(3\) Where a station is authorized pursuant to a voluntary time-sharing
proposal, the parties to the time-sharing agreement may apportion among
themselves any air time that, for any reason, becomes vacant.

\(4\) Successive license terms granted under subsection (d) may be
converted into voluntary time-sharing arrangements renewable pursuant to
Section 73.3539 by submitting a universal time-sharing proposal.

\(d\) Successive license terms.

\(1\) If a tie among mutually exclusive applications is not resolved
through voluntary time-sharing in accordance with paragraph (c) of this
section, the tied applications will be reviewed for acceptability and
applicants with tied, grantable applications will be eligible for equal,
successive, non-renewable license terms of no less than one year each
for a total combined term of eight years, in accordance with § 73.873.
Eligible applications will be granted simultaneously, and the sequence
of the applicants\' license terms will be determined by the sequence in
which they file applications for licenses to cover their construction
permits based on the day of filing, except that eligible applicants
proposing same-site facilities will be required, within 30 days of
written notification by the Commission staff, to submit a written
settlement agreement as to construction and license term sequence.
Failure to submit such an agreement will result in the dismissal of the
applications proposing same-site facilities and the grant of the
remaining, eligible applications.

\* \* \* \* \*

3\) If successive license terms granted under this subsection are
converted into universal voluntary time-sharing arrangements pursuant to
section (c)(4), the permit or license is renewable pursuant to sections
73.801 and 73.3539.

\* \* \* \* \*

\(e\) Mutually exclusive applicants may propose a settlement at any time
during the selection process after the release of a public notice
announcing the mutually exclusive groups. Settlement proposals must
include all of the applicants in a group and must comply with the
Commission\'s rules and policies regarding settlements, including the
requirements of Sections73.3525, 73.3588, and 73.3589. Settlement
proposals may include time-share agreements that comply with the
requirements of paragraph (c) of this section, provided that such
agreements may not be filed for the purpose of point aggregation outside
of the 90 day period set forth in paragraph (c) of this section.

8\. Section 73.3598 is amended by revising paragraph (a) to read as
follows:

[§ 73.3598 Period of Construction.]{.underline}

###### (a) Each original construction permit for the construction of a new TV, AM, FM or International Broadcast; low power TV; TV translator; TV booster; FM translator; FM booster station; or to make changes in such existing stations, shall specify a period of three years from the date of issuance of the original construction permit within which construction shall be completed and application for license filed. Each original construction permit for the construction of a new LPFM station shall specify a period of eighteen months from the date of issuance of the construction permit within which construction shall be completed and application for license filed. A LPFM permittee unable to complete construction within the time frame specified in the original construction permit may apply for an eighteen month extension upon a showing of good cause. The LPFM permittee must file for an extension on or before the expiration of the construction deadline specified in the original construction permit. {#a-each-original-construction-permit-for-the-construction-of-a-new-tv-am-fm-or-international-broadcast-low-power-tv-tv-translator-tv-booster-fm-translator-fm-booster-station-or-to-make-changes-in-such-existing-stations-shall-specify-a-period-of-three-years-from-the-date-of-issuance-of-the-original-construction-permit-within-which-construction-shall-be-completed-and-application-for-license-filed.-each-original-construction-permit-for-the-construction-of-a-new-lpfm-station-shall-specify-a-period-of-eighteen-months-from-the-date-of-issuance-of-the-construction-permit-within-which-construction-shall-be-completed-and-application-for-license-filed.-a-lpfm-permittee-unable-to-complete-construction-within-the-time-frame-specified-in-the-original-construction-permit-may-apply-for-an-eighteen-month-extension-upon-a-showing-of-good-cause.-the-lpfm-permittee-must-file-for-an-extension-on-or-before-the-expiration-of-the-construction-deadline-specified-in-the-original-construction-permit. .unnumbered}

\* \* \* \* \*

**APPENDIX C**

**Initial Regulatory Flexibility Act Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended,[^205]
the Commission has prepared this Initial Regulatory Flexibility Analysis
of the possible significant economic impact on a substantial number of
small entities by the policies and rules proposed in the *Second*
*Further Notice of Proposed Rulemaking ("Second Further Notice")*.
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments on the *Second* *Further Notice* provided in paragraph 87.
The Commission will send a copy of this entire *Second* *Further
Notice,* including this IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration ("SBA").[^206] In addition, the *Second
Further Notice* and the IRFA (or summaries thereof) will be published in
the Federal Register.[^207]

**A. Need For, and Objectives of, the Proposed Rules.**

The *Second Further Notice* has been initiated to obtain comments
concerning proposed low power FM ("LPFM") service and technical rule
changes to address the potential interference to, or displacement of,
certain LPFM stations caused by subsequently implemented full-service
station community of license modifications. Specifically the *Second
Further Notice* recommends that Congress remove the requirement that
LPFM stations protect full service stations operating on third-adjacent
channels. It seeks comment on whether to modify the LPFM technical rules
to codify the second-adjacent channel waiver and displacement policies
adopted in the *Third Report and Order.* It also tentatively concludes
that when implementation of a full-service station facility proposal
would impact an LPFM station, the full-service station would be required
to provide the LPFM station notice of its application filing, provide
technical assistance in identifying alternative channels, and
reimbursement for any resulting LPFM facility modifications.

The *Second Further Notice* tentatively concludes that the LPFM
technical rules should be modified to permit the licensing of LPFM
stations by using a contour, as opposed to a distance separation,
methodology in order to expand LPFM station licensing opportunities. It
also tentatively concludes that the Commission should retain as an
alternate licensing scheme the current LPFM distance separation rule in
the event that a contour rule is adopted.

Finally, the *Second Further Notice* seeks additional comment on the
issue whether the Commission should retain the current "co-equal" status
between the LPFM and FM translator services.

he Commission believes that adoption of these proposed rule changes will
strengthen and promote the long-term viability of the LPFM service, and
the localism and diversity goals that this service is intended to
advance by streamlining and clarifying the process by which LPFM
stations can resolve potential interference issues with full-power
stations.

**B. Legal Basis.**

The authority for this *Second Further Notice* is contained in Sections
1, 2, 4(i), 303, 403 and 405 of the Communications Act of 1934, 47 U.S.C
§§ 151, 152, 154(i), 303, and 403.

**C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply.**

The RFA directs the Commission to provide a description of and, where
feasible, an estimate of the number of small entities that will be
affected by the proposed rules.[^208] The RFA generally defines the term
\"small entity\" as encompassing the terms \"small business,\" \"small
organization,\" and \"small governmental entity.^\"^[^209] In addition,
the term "small business" has the same meaning as the term "small
business concern" under the Small Business Act.[^210] A small business
concern is one which: (1) is independently owned and operated; (2) is
not dominant in its field of operation; and (3) satisfies any additional
criteria established by the Small Business Administration
(\"SBA\").[^211]

**LPFM Radio Stations.** The proposed Rules and policies potentially
will apply to all low power FM radio broadcasting licensees and
potential licensees. The SBA defines a radio broadcasting station that
has \$6.5 million or less in annual receipts as a small business.[^212]
A radio broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public.[^213] Included in
this industry are commercial, religious, educational, and other radio
stations.[^214] Radio broadcasting stations which primarily are engaged
in radio broadcasting and which produce radio program materials are
similarly included.[^215] As of the date of release of this *Second
Further Notice,* the Commission's records indicate that more than 1,286
LPFM construction permits have been granted. Of those permits,
approximately 809 stations are on the air, serving mostly mid-sized and
smaller markets. It is not known how many entities ultimately may seek
to obtain low power radio licenses. Nor do we know how many of these
entities will be small entities. We expect, however, that due to the
small size of low power FM stations, small entities would generally have
a greater interest than large ones in acquiring them.

**D. Description of Projected Reporting, Recordkeeping and Other
Compliance Requirements.**

None.

**E. Steps Taken to Minimize Significant Impact on Small Entities, and
Significant Alternatives Considered.**

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^216]

In this *Second Further Notice,* the Commission (1) recommends that
Congress remove the requirement that LPFM stations protect full service
stations operating on third-adjacent channels; (2) seeks comment on
whether to modify the LPFM technical rules to codify the second-adjacent
channel waiver and displacement policies adopted in the *Third Report
and Order;* (3) tentatively concludes that when implementation of a
full-service station facility proposal would impact an LPFM station, the
full-service station would be required to provide the LPFM station
notice of its application filing, provide technical assistance in
identifying alternative channels, and reimbursement for any resulting
LPFM facility modifications; (4) tentatively concludes that the LPFM
technical rules should be modified to permit the licensing of LPFM
stations by using a contour, as opposed to a distance separation,
methodology in order to expand LPFM station licensing opportunities, and
(5) tentatively concludes that the Commission should retain as an
alternate licensing scheme the current LPFM distance separation rule in
the event that a contour rule is adopted.

In light of changed circumstances[^217] since the Commission last
considered the issue of protection rights for LPFM stations from
subsequently authorized full-service stations, the Commission found it
necessary to consider these rule changes to avoid the potential loss of
LPFM stations. The Commission considered maintaining the *status quo*,
but rejected this idea because it would create an inappropriate burden
on LPFM stations by allowing the issue of interference caused by
encroaching full-service stations to go unresolved. By contrast, the
*Second Further Notice* proposes a codified approach to resolving
interference issues with encroaching full-service stations, which will,
in turn, allow more LPFM stations to remain on-the-air.

LPFM service has created and will continue to create significant
opportunities for new small businesses by allowing small businesses to
develop LPFM service in their communities. In addition, the Commission
generally has taken steps to minimize the impact on existing small
broadcasters. To the extent that the *Second Further Notice* imposes any
burdens on small entities, these burdens are only incidental to the
benefits conferred by the creation of a set of Rules that would allow
LPFM stations to resolve potential interference and/or displacement
conflicts with encroaching full-service FM stations by making the
requisite showings under the proposed Rules.

**F. Federal Rules Which Duplicate, Overlap, or Conflict With, the
Commission's Proposals.**

None.

**APPENDIX D**

**Final Regulatory Flexibility Act Analysis**

As required by the Regulatory Flexibility Act of 1980, as amended
("RFA"),[^218] an Initial Regulatory Flexibility Analysis ("IRFA") was
incorporated in the *Further Notice of Proposed Rule Making* in this
proceeding.[^219] The Commission sought written public comment on the
proposals in the *FNPRM*, including comment on the IRFA. This Final
Regulatory Flexibility Analysis ("FRFA") conforms to the RFA.[^220]

## Need For, and Objectives of, the Third Report and Order. 

The policies and rules set forth herein are required to ensure that the
Commission advances the goal of maximizing the value of LPFM service
without harming the interests of full-power FM stations or other
Commission licensees. In this *Third Report and Order*, the Commission
(1) eases the paperwork burdens on LPFM licensees, by clarifying that
transfers of control involving a sudden change of more than 50 percent
of an LPFM licensee's governing board shall not be deemed "a substantial
change in ownership and control", as LPFM boards can be subject to
substantial turnover; (2) allows for the transfer and assignment of LPFM
stations subject to certain conditions, such as: a cap on the sale price
to the depreciated fair market value of the physical assets of the
facility; (3) the imposition of a three year holding period during which
the initial licensee must operate the station, a requirement that the
assignee or transferee of an LPFM license is required to satisfy the
ownership and eligibility criteria existing at the time of the
assignment or transfer, and a prohibition on the assignment or transfer
of construction permits; (4) reinstates the LPFM local ownership
eligibility restriction;[^221] (5) allows an 18 month extension for good
cause of the LPFM construction period; and (6) provides for additional
technical amendments, such as allowing time-sharing applications to seek
authority to place their transmitter at a central location, limiting the
processing of applications submitted during the Auction No. 83 filing
window to ten proposals per applicant,[^222] amending the Rules to limit
Section 73.809 interference procedures to situations involving co- and
first-adjacent channel interference, and a procedural framework for the
consideration of showings from LPFM stations that may seek waivers of
Section 73.807 of the Rules to avoid displacement, as well as to avoid
unnecessary disruption of LPFM service to the public.

## Summary of Significant Issues Raised by Public Comments in Response to the IRFA. 

None.

## Description and Estimate of the Number of Small Entities to Which the Adopted Rules Will Apply. 

The RFA directs the Commission to provide a description of and, where
feasible, an estimate of the number of small entities that will be
affected by the rules adopted herein.[^223] The RFA generally defines
the term \"small entity\" as encompassing the terms \"small business,\"
\"small organization,\" and \"small governmental entity.^\"^[^224] In
addition, the term "small business" has the same meaning as the term
"small business concern" under the Small Business Act.[^225] A small
business concern is one which: (1) is independently owned and operated;
(2) is not dominant in its field of operation; and (3) satisfies any
additional criteria established by the Small Business Administration
(\"SBA\").[^226]

**LPFM Radio Stations.** The proposed rules and policies potentially
will apply to all low power FM radio broadcasting licensees and
potential licensees. The SBA defines a radio broadcasting station that
has \$6.5 million or less in annual receipts as a small business.[^227]
A radio broadcasting station is an establishment primarily engaged in
broadcasting aural programs by radio to the public.[^228] I ncluded in
this industry are commercial, religious, educational, and other radio
stations.[^229] Radio broadcasting stations which primarily are engaged
in radio broadcasting and which produce radio program materials are
similarly included.[^230] As of the date of release of this *Third
Report and Order,* the Commission's records indicate that more than
1,225 LPFM construction permits have been granted. Of those permits,
approximately 820 stations are on the air, serving mostly mid-sized and
smaller markets. It is not known how many entities ultimately may seek
to obtain low power radio licenses. Nor do we know how many of these
entities will be small entities. We expect, however, that due to the
small size of low power FM stations, small entities would generally have
a greater interest than large ones in acquiring them.

## Description of Projected Reporting, Recordkeeping and Other Compliance Requirements. 

The rules adopted in this *Third Report and Order* will impose different
reporting or recordkeeping requirements on existing LPFM stations.
First, the clarification that transfers of control involving a sudden
change of more than 50 percent of an LPFM licensee's governing board
shall not be deemed "a substantial change in ownership and control,"
will ease paperwork burdens upon licensees. The *Third Order* will also
involve additional paperwork burdens. First, as this *Third Order* will
allow for the transfer and assignment of LPFM licenses, the Commission
will require the collection of information necessary for the purposes of
processing such applications.[^231] Second, this *Third Order* clarifies
the renewal process for time-sharing entities, and the process for the
administration of such applications. Third, Auction 83 applicants that
filed more than 10 applications must select the ten applications they
wish to preserve, versus those that will be automatically dismissed,
after the Media Bureau issues a Public Notice on this subject. There is
no disproportionate impact on small entities as these additional
reporting and recordkeeping requirements since these requirements are
imposed equally on large and small entities.

## Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. 

The RFA requires an agency to describe any significant alternatives that
it has considered in reaching its proposed approach, which may include
the following four alternatives (among others): (1) the establishment of
differing compliance or reporting requirements or timetables that take
into account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for small entities; (3) the use of
performance, rather than design, standards; and (4) an exemption from
coverage of the rule, or any part thereof, for small entities.[^232]

Consideration of alternatives methods to reduce the impact on small
entities is unnecessary. The *Third Report and Order* decreases existing
burdens on small entities and increases their flexibility. . First, the
clarification that transfers of control involving a sudden change of
more than 50 percent of an LPFM licensee's governing board shall not be
deemed "a substantial change in ownership and control," will ease
paperwork burdens upon LPFM station, many of which are small entities.
Further, the changes in the ownership rules will allow greater
flexibility for LFPM licensees. Finally, the changes in the technical
rules will allow more small entity LPFM stations to exist. In addition,
the *Third Report and Order* does not impose different burdens on large
and small entities. The record keeping requirements will help facilitate
the transfer and assignment of licenses and clarifies the renewal
process for time-sharing entities, including the administration of such
applications.

LPFM service has created and will continue to create significant
opportunities for new small businesses by allowing small businesses to
develop LPFM service in their communities. In addition, the Commission
generally has taken steps to minimize any burdensome regulation on
existing small broadcasters. To the extent that the *Third Report and
Order* imposes any burdens on small entities, these burdens are only
incident to the benefits conferred: greater flexibility of LPFM stations
in transferring, assigning and renewing LPFM stations.

## Report to Congress. 

The Commission will send a copy of the *Third Report and Order*,
including this FRFA, in a report to be sent to Congress pursuant to the
Congressional Review Act.[^233] In addition, the Commission will send a
copy of the *Third Report and Order*, including this FRFA, to the Chief
Counsel for Advocacy of the SBA. A copy of the *Third Report and Order,*
and FRFA (or summaries thereof) will also be published in the Federal
Register.[^234]

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re: In the Matter of Creation of A Low Power Radio Service, Third
Report and Order And Second Further Notice of Proposed Rulemaking*

Low Power FM provides a lower cost opportunity for additional new voices
to get into the local radio market. Today's item facilitates LPFM
stations' access to limited radio spectrum by significantly reforming
our LPFM rules.

In order to ensure that the American people have the benefit of a
competitive and diverse media marketplace that serves their local
communities, we need to create more opportunities for different, new and
independent voices to be heard. We need to address the concern that
there are too few local outlets available to minorities and new
entrants.

The limited number of channels in the radio spectrum bands and the high
start-up cost of building a station are significant barriers to entry in
broadcasting. It can be very difficult for anyone---in particular a new
voice---to find an available channel and gather enough capital to build
a new broadcast station.

Today the Commission takes several important steps to improve our Low
Power FM rules to better promote entry and ensure local responsiveness
without harming the interests of full-power FM stations or other
Commission licensees. To preserve opportunities for new LPFM stations,
the Order restricts the number of FM translator applications we will
grant from the 2003 window. In addition, the Order streamlines and
clarifies the process by which LPFM stations can resolve potential
interference issues with full-power stations. The Order also establishes
a going-forward processing policy to help those LPFMs that have
regularly provided eight hours of locally originated programming daily
in order to preserve this local service.

Our work in this area is important for localism. I look forward to
working with my fellow Commissioners to adopt additional rules that
continue to ensure a competitive and diverse media marketplace that
serves local communities.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

Re:       *In the Matter of Creation of a Low Power Radio Service*

* *

 It often seems like those of us troubled by media consolidation are
relegated to playing defense.  The big media companies are nothing if
not persistent:  lobbying for the elimination or relaxation of ownership
limits, seeking waivers of existing rules, proposing merger upon merger
and daring regulators to draw the line.  In radio, the results have been
particularly distressing.  Runaway consolidation since the 1996 Act has
left us with homogenized content, national play lists, outsourced news,
a dumbed-down civic dialogue, and shameful levels of minority and female
ownership. 

 

That's why low power radio is such a breath of fresh air.  It is a
positive response to what ails us.  These are truly local stations run
by local organizations.  They provide an outlet for local voices and
local talent.  They cover issues of importance to local and very often
under-served communities.  Low power is truly radio of the people, by
the people, and for the people.  We cannot let it perish from the earth.

 

This item makes good progress in putting LPFM on a firmer foundation. 
In particular, I welcome the decisions on ownership and eligibility that
will ensure that LPFM retains its local character; the initial steps we
take to limit the preclusive effect of existing translator applications
on LPFM; and the initial steps we take to protect LPFM from full-power
station encroachment.  But we have a lot of work ahead of us.  In this
regard, I am pleased that my colleagues have committed to further
addressing some of the key issues within the next six months, including
the priority between LPFM and translator stations, full-power
encroachment, and a proposal to permit LPFM stations to use a more
flexible contour-based methodology for locating available channels. 
These proposals---especially if Congress adopts the important
recommendation in this item to remove the third adjacency
restrictions---could vastly expand licensing opportunities for LPFM
stations.  Our united goal should be to clear away obstacles to low
power and to open a window to license many more such stations as soon as
we can.

 

As important as LPFM is, however, let's never allow ourselves to see it
as a complete substitute for full power service.  Nor should we ever be
lulled into a mind-set that says, "Well, let low power cover that stuff
and let the full power stations continue on their happy way."  The
American people still rely on full power stations for much of their
news, information and entertainment.  And those full power stations are
on the air because they pledged to serve the public interest in return
for being allowed to make what is still a very good living.  The
emergence and strengthening of LPFM does not affect our duty, in any
shape, manner or form, to ensure that ***all*** broadcasters serve the
core public interest goals of localism, competition and diversity.

 

I am pleased to support this as a good step forward, I thank my
colleagues and the Bureau for their work.  And I want to commend all
those many dedicated members of the low power community who have worked
so hard and accomplished so much in an environment that has been far
less friendly towards them than it should have been.

**SEPARATE STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

*Re: In the Matter of Creation of a Low Power Radio Service, Third
Report and Order And Second Further Notice of Proposed Rulemaking*

When the FCC created low-power FM (LPFM) service in 2000, some argued
that there was no viable business model for such a localized medium,
while others argued that LPFM stations would undermine the economic
stability of existing full-power FM stations. Time, however, has
revealed that neither prediction was accurate. There continues to be
great public demand for radio spectrum, especially LPFM stations.
Full-power FM stations continue to be scarce, and they remain as
valuable financial assets. In spite of initial and considerable
skepticism, LPFM stations have proven to be a great success story of
communications policy. Creating LPFM is one of the few steps that the
Commission has taken in recent history to democratize the public
airwaves.

Today, the Commission takes steps to reaffirm the non-commercial, local
nature and orientation of LPFM stations, and to enhance opportunities
for new voices to be heard on the radio dial. Additionally, the
Commission finally recognizes the value of LPFM stations as a service
that is worthy of some, albeit very limited, channel protection from
full-power stations. The clear goals of the rules we adopt today are "to
increase the number of LPFM stations that are on the air and providing
service to the public; and promote the continued operation of LPFM
stations already broadcasting, while avoiding interference to existing
FM service." I believe through this Order we have taken several
important steps toward these goals. The item reflects a fair and
measured approach, but it unmistakably advances the growth and
sustainability of LPFM service for years to come.

In this *Order*, we appropriately strike the balance of providing LPFM
stations with some regulatory flexibility, while preserving the local
integrity of the service. We reduce the administrative and management
burden on community organizations operating LPFM stations, making it
possible for them to operate under a voluntary time-sharing agreement
and to change the composition of their governing boards without having
to wait for a designated filing window. We also provide LPFM
construction permit holders, with a showing of good cause, the
opportunity for a one-time 18-month extension to current and future
construction permits.

In addition to these reforms, we preserve the non-commercial, local
nature of LPFM stations by prohibiting most sales of licenses and
outright ban any transfer or assignment of construction permits.
Preventing the creation of a market for the sale of LPFM licenses and
construction permits will help protect the true local quality and
community service orientation of LPFM stations that have made them
thrive.

Perhaps more than any measure in this item, I am especially pleased that
we have tightened LPFM ownership rules. Simply put, we cannot allow what
has happened to commercial radio to happen to LPFM. Accordingly, I
strongly support the fact that we reinstate the restrictions on local
LPFM ownership. In doing so, we explicitly recognize that "doing away
with the locality restriction could threaten its predominantly local
character, in particular the hallmark of the LPFM's station's local
character, its local origination of programming." And, equally
important, we clarify that repetitious, automated programming does not
meet our local origination requirement.

While this item goes a long way to implement thoughtful reform measures
to improve the stability of LPFM service, I am very concerned about the
impact FM translators, particularly the applications filed in the 2003
Auction No. 23 translator filing window, will have on LPFM. I am deeply
concerned about the preclusive impact of the over 13,000 FM translator
applications filed in 2003 will have on the future of LPFM service. Some
have argued that these translators could potentially foreclose
opportunities for LPFM in the top 50 media markets. This troubles me, as
the Commission finds that "processing all of the remaining 8,000
translator applications would frustrate the development of LPFM service
and our efforts to promote localism." Many of these translator
applications were filed by speculators who do not have any connection to
the local community whatsoever.

I am, therefore, pleased that my colleagues have agreed to limit the
number of permissible translator applications filed by an entity to ten.
It is my understanding that this limitation will not affect 80 percent
of pending applications. Moreover, translator applicants will now have
to select their 10 applications before we open a settlement window to
resolve mutually exclusive applications.

I am equally concerned about the displacement and interference of
licensed LPFM stations caused by newly authorized full-power FM stations
or city of license modifications. While the Commission should not give
LPFM interference protection that could prevent a full-power station
from modifying its signal or foreclose future full-power FM service or
compromise the integrity of the FM spectrum, LPFMs need some stability
in order to be successful. In today's *Order*, we address this problem
by affirming that LPFMs will remain secondary to full-power FM stations,
but we will consider waivers on a case-by-case basis when there is not a
suitable alternate channel for the LPFM. The Order implements this as a
policy change, and the Further Notice seeks comment on it as a permanent
rule.

Finally, to address some of the imbalances between translators and LPFM,
we seek comment on permitting LFPM licensees to use contour protection
based licensing standards and limiting the number of translators for
each originating station that would have priority over an LPFM. These
proposals would enhance opportunities for new voices and thereby promote
a diversity of viewpoints over the public airwaves. They are worth
pursuing, and I look forward to the public comments.

One of the central goals of the Commission is to promote a fair and
equitable use of the broadcast spectrum and to expand opportunities to
new voices, such as community-based schools, churches and civic
organizations. Establishing LPFM stations, particularly as a
noncommercial educational service, to allow these local groups to
provide programming that is responsive to local community needs and
interests, is one of the most effective ways this Commission can promote
such goals. As the record shows, LPFM stations are serving very
localized communities and underrepresented groups within communities.
Today's reforms should permit LPFM to continue to live up to this dream.

Accordingly, it is my pleasure to support this item because it provides
the American people an opportunity to enjoy one of this nation's
greatest resources -- the public airwaves.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

**APPROVING IN PART, DISSENTING IN PART**

*Re: Creation of a Low Power Radio Service, Third Report and Order*

I appreciate that the hallmarks of LPFM radio stations are its local
character and locally originated programming. In fact, I had the
opportunity to visit RadioFree Nashville last spring and talk with many
of the original founders as well as the staff and radio show hosts. They
provide a variety of informational and educational programming, talk
shows and unique music formats to West Nashville. In fact, a former
colleague, George Haley has a regular show regarding issues affecting
individuals facing mental and behavioral health issues and it is
precisely this type of forum that LPFM can provide listeners.

I support much of what is in the further notice. In fact, that is a more
appropriate place for the majority of the action we take in this item
today. I believe that we need to have more input and further comment
before taking some of these broad and expansive actions regarding the
status and protections of both LPFM and primary or licensed full-power
stations and therefore I approve in part and dissent in part.

At present, there are several bills pending before Congress and it would
seem appropriate to wait on their instruction before moving forward,
especially before moving beyond what is included in the legislation
regarding 3^rd^ adjacent channel interference. I also think that we
should have a rational basis for setting the standards for Low Power FM,
perhaps using the minimum operating guidelines for the required number
of hours of operation. Regarding the applications for additional
translators, again, I would have preferred a more measured approach,
rather than an 80% cut: from 50 to 10. Finally, enhancing the status of
Low Power FM licensees as compared to full power FM stations, or
creating new status and protections, is beyond the scope of the NPRM and
is more appropriately addressed in the Further Notice we are issuing
today. Such a sweeping change by an agency should require further
notice, consideration, and comment.

Therefore, I dissent from this Order's finding of a ten application
limit on translators, from the finding regarding second-adjacent channel
waivers, and from the portion of this Order that places Low Power FM in
a superior position to full power. I find no justification in the record
for such a complete shift in well-established policy. Low Power FM
licensees provide a great service to their communities, but they accept
their license knowing that they are a secondary service, and accept both
the risks and rewards that status entails.

**STATEMENT OF**

**COMMISSIONER ROBERT M. MCDOWELL**

**APPROVING IN PART, DISSENTING IN PART**

*Re: Creation of a Low Power Radio Service,* Third Report and Order and
Second Further Notice of Proposed Rulemaking

As we've traveled across the country for the Commission's field hearings
on media ownership, we have heard from many citizens about the benefits
low power radio stations bring to their local communities by enhancing
viewpoint diversity. In establishing the LPFM service, the Commission
sought to "create opportunities for new voices on the airwaves and to
allow local groups, including schools, churches and other
community-based organizations, to provide programming responsive to
local community needs and interests." I am pleased to hear that these
new voices are succeeding in accomplishing that goal and are drawing
loyal audiences within their communities.

In today's Order, we adopt several rule changes regarding ownership,
eligibility, time-sharing and construction deadlines. We hope that these
actions will strengthen and promote the long-term viability of the LPFM
service, and the localism and diversity goals that this service is
intended to advance.

Also, in a Further Notice of Proposed Rulemaking, we seek comment on
whether additional technical rule changes are warranted. Specifically,
we consider the following: (1) whether an LPFM station may seek a
second-adjacent channel short spacing waiver where implementing a city
of license modification for a full-service station would result in
interference to or displacement of the LPFM station to an alternate
channel, and whether such a procedure can be expanded to include co- and
first-adjacent channel situations; (2) whether to impose certain
obligations on full service stations with respect to LPFM stations
affected by a new station or modification proposal; (3) whether to adopt
a flexible contour methodology for the licensing of LPFM stations; and
(4) whether to retain the co-equal status between LPFM stations and FM
translator stations. These may be viable proposals for finding
additional channels on the crowded radio band for low power stations.
They raise important questions regarding the relationship between
primary and secondary radio services, however, and require careful
consideration. We have committed to resolve the issues in the Further
Notice expeditiously, within six months. I look forward to the comments
we receive on these issues.

However, I dissent in part on three specific issues involving both
process and substance. First, the Order adopted by the majority jumps
ahead of the rulemaking proceeding by adopting interim processing
policies for the second-adjacent channel waivers immediately. This
waiver policy would apply retroactively to LPFM stations that must move
to an alternative channel because of a pending full-power station's
community of license modification. This processing policy is premature.
In this context, certainly, we should not make rules through waiver
policies or processing policies. Rather, we should abide by our duties
under the Administrative Procedure Act to seek and consider public
comment before crafting and implementing rules.

Secondly, the majority amends our rules to establish a licensing
presumption to protect certain operating LPFM stations from subsequently
proposed city of license modifications where there would be no alternate
channel available to the LPFM station. Adopting this rule at this
juncture is a radical departure from prior Commission precedent made
without sufficient public notice. In the 2005 Further Notice of Proposed
Rulemaking that led to this Order, we considered a request to adopt a
processing policy that would permit the denial of a full service FM
station\'s modification application if a LPFM station would be displaced
entirely by the full-power station's move. We did not seek comment on
this issue. Instead, in 2005, we concluded:

> \[W\]e disagree with the basic thrust of this proposal, which
> effectively would provide primary status to LPFM stations with respect
> to subsequently filed applications for new or modified full service
> station facilities. As we stated in the *Report and Order*, "\[w\]e 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."[^235]

Clearly, the 2005 Commission recognized and upheld our long-standing
policy to treat full-power radio stations as primary to secondary
services such as LPFM and FM translators. The majority should not have
reversed this precedent without at least seeking further public comment.

Lastly, we limit further processing of FM translator applications
submitted during our Auction 83 filing window to 10 proposals per
applicant. This number is much too low. It is lower even than the
numbers suggested by LPFM advocacy groups in the record. The result is
that the service provided by FM translators in many unserved areas may
suffer interference.

Accordingly, I dissent in part to this Order. Nonetheless, I support the
remainder of the Order. And I thank the Media Bureau for their hard work
on these important issues.

[^1]: *Creation of Low Power Radio Service*, MM Docket No. 99-25, Second
    Order on Reconsideration and Further Notice of Proposed Rulemaking,
    20 FCC Rcd 6763 (2005) ("*Second Order*" or "*FNPRM*").

[^2]: *Id.* at 6763, para. 1.

[^3]: *See* *Creation of Low Power Radio Service*, MM Docket No. 99-25,
    Report and Order, 15 FCC Rcd 2205, 2211-12, paras. 13-14 (2000)
    ("*Report and Order*"); s*ee also* 47 C.F.R. § 73.811.

[^4]: *Report and Order,* 15 FCC Rcd at 2233-34, paras. 70-71; 47 C.F.R.
    § 73.807.

[^5]: *Id.* at 2246, para. 103.

[^6]: *Id*. at 2213, 2217, paras. 17, 29.

[^7]: *Id.* at 2219, 2222, paras. 33, 39; 47 C.F.R. §§ 73.853(b);
    73.855(b). The rule permitting only local entities to apply for LPFM
    licenses sunset in 2002. At present, an entity is allowed to own up
    to ten LPFM stations and all commonly owned stations must be
    separated by a distance of at least 12 kilometers. 47 C.F.R. §
    73.855(a).

[^8]: *Report and Order* at 2260, para. 139.

[^9]: *Id.* at 2256, para 130. In March 2000, the Mass Media Bureau
    announced five separate filing windows for accepting LP100
    application, with each window limited to an application group of ten
    states and at least one other United States jurisdiction. *See* *FCC
    Announces Five-Stage National Filing Window for Low Power FM
    Broadcast Station Applications*, Public Notice, 15 FCC Rcd 18621
    (MMB 2000). The last of those windows closed on June 15, 2001. *Low
    Power FM Filing Window*, Public Notice, 16 FCC Rcd 7915 (MMB 2001).

[^10]: *Creation of a Low Power Radio Service*, Memorandum Opinion and
    Order on Reconsideration, 15 FCC Rcd 19208 (2000) ("*Reconsideration
    Order*").

[^11]: *Id.* at 19233-34, paras. 64-68; 47 C.F.R. § 73.809.

[^12]: *Id.* at 19219, para. 24.

[^13]: *Id.* at 19240-41, paras. 80-84.

[^14]: *Id.* at 19238-39, paras. 75-78

[^15]: Pub L. No. 106-552, § 632, 114 Stat. 2762, 27620A-111 (2000).

[^16]: *Id.*

[^17]: *See* *Creation of a Low Power Radio Service*, MM Docket No.
    99-25, Second Report and Order, 16 FCC Rcd 8026, 8028, paras. 5-6
    (2001) ("*Second Report and Order*").

[^18]: *See* *Comment Sought on the Mitre Corporation's Technical
    Report, Experimental Measurements of the Third-Adjacent Channel
    Impacts of Low-Power FM Stations*, Public Notice, 18 FCC Rcd. 14445
    (2003).

[^19]: *Report to Congress on the Low Power FM Interference Testing
    Program*, Pub. L. No. 10-553 (rel. Feb. 19, 2004).

[^20]: *Second Order*, 20 FCC Rcd at 6763, para. 1.

[^21]: *Id.* at 6766, para. 7.

[^22]: *See* *id.* at 6766-69, paras. 8-14.

[^23]: *Id.* at 6770-73, paras. 17-23. *See* 47 C.F.R. §§ 73.853(b)
    (restricting applicant pool to local applicants for the first two
    years after LPFM licenses are made available for application);
    73.855(b) (setting forth the phased-in ownership restrictions for
    LPFM).

[^24]: *See Second Order* at 6772, para. 20.

[^25]: *See id.*

[^26]: *Id.* at 6774, paras. 24-25.

[^27]: *Id.* at 6775-76, paras. 26-28.

[^28]: *Id.* at 6778-80, paras. 33-36.

[^29]: *Id.* at 6780-81, paras. 37-39.

[^30]: *See* MAP Ex Parte filing, Dec. 8, 2004; *Second Order*, 20 FCC
    Rcd at 6781, para. 40.

[^31]: 47 C.F.R. § 73.865(a).

[^32]: *See Reconsideration Order*, 15 FCC Rcd at 19248, para. 104.

[^33]: *FNPRM*, 20 FCC Rcd at 6770, para. 17. In a transfer of control,
    control of the licensee passes to different principles, but the
    identity of the licensee does not change. By contrast, in an
    assignment, the authorization passes to a new entity. *See Transfers
    of Control of Certain Licensed Non-Stock Entities*, Notice of
    Inquiry, 4 FCC Rcd 3403, n.4 (1989) ("*Non-Stock Transfer NOI*").

[^34]: *See* Testimony of Sakura Saunders, KDRT-LP, LPFM Forum (Feb. 8,
    2005); *see also* MAP Ex Parte (filed Aug. 17, 2004); Comments of
    Prometheus Radio Project, *et al*., MM Docket No. 99-25 at 22 (filed
    Oct. 14, 2003) ("Prometheus Mitre Study Comments").

[^35]: *FNPRM*, 20 FCC Rcd at 6770, para. 17.

[^36]: *See* Comments of Limestone at 4; *see also* Comments of KVLP-LP.
    Although the *FNPRM* sought general comments on the structures of
    governing boards or other organization structures of entities that
    operate or control LPFM stations, no commenter spoke directly to
    that question.

[^37]: Comments of KVLP-LP.

[^38]: *See*, *e.g.*, Comments of Cromwell Group at 2 ("Changes in board
    membership should be easily permitted."); *see also* Comments of
    Eric Howland. *But see* Comments of Cox, Inc. at 6-7 (opposing any
    change to our rules governing transfers of control on the ground
    that the current rules "adequately address transfers of less than a
    controlling interest").

[^39]: *See* Prometheus Mitre Study Comments at 22.

[^40]: 47 C.F.R. § 73.865(a)(1).

[^41]: *FNPRM*, 20 FCC Rcd at 6771, para. 18.

[^42]: Comments of REC. *See also* Comments of Daniel Brown.

[^43]: A minority of commenters, such as the Cromwell Group, argue that
    LPFM authorizations should not be alienable regardless of whether
    consideration is involved. Comments of the Cromwell Group at 2.

[^44]: Comments of Kyle Magrill at 1.

[^45]: *See* Comments of David Gowler.

[^46]: Comments of Prometheus Radio Project at 25-26.

[^47]: *See* Comments of Prometheus Radio Project *et al*. at 26
    (arguing that the sales for consideration of LPFM authorizations
    will "create a market in which only those with substantial resources
    and money could obtain a LPFM station, effectively preventing local
    community groups from participating in the LPFM service").

[^48]: *See* Comments of Prometheus Radio Project, *et al*. at 26-27.

[^49]: *See* Comments of Eastern Sierra Broadcasting at 5.

[^50]: *See* Comments of Comments of JT Communications at 1 (suggesting
    that the transferee or assignee of an LPFM authorization should be
    required to certify that it is a local entity under the criteria for
    local entities specified in 47 C.F.R. § 73.853(b)).

[^51]: Certain rules that limit LPFM eligibility contain sunset
    provisions resulting in the eventual elimination of those
    limitations. For a discussion of those provisions, as well as the
    remaining eligibility restrictions, see Section III.A.2, *infra*.

[^52]: Comments of Prometheus at 27.

[^53]: *Transfers of Control of Certain Licensed Non-Stock Entities*, MM
    Docket No. 89-77, Notice of Inquiry, 4 FCC Rcd 3403 (1989)
    ("*Non-Stock Transfer NOI*").

[^54]: *Id.*

[^55]: *FNPRM*, 20 FCC Rcd at 6772, para. 19.

[^56]: *Id*.

[^57]: Comments of Christian Community Broadcasters.

[^58]: Comments of Limestone Community Radio at 4.

[^59]: Comments of Jason Ander.

[^60]: *Id.* We will apply the principles addressed in the *Non-Stock
    Transfer NOI* to both non-stock and stock entities.

[^61]: *See* 47 C.F.R. § 73.855. Pursuant to 47 C.F.R. § 73.855(b)(3),
    "\[a\]fter the three years from the date that the initial filing
    window opens for LPFM stations \[May 30, 2000\], a party may hold an
    attributable interest in no more than ten stations." Our rule
    barring any party from owning two LPFM stations within 12 kilometers
    of one another remains in place. *Id.*

[^62]: *See* 47 C.F.R. § 73.853. Pursuant to 47 C.F.R. § 73.853(b),
    "\[o\]nly local applicants will be permitted to submit applications
    for a period of two years from the date that LP100 and LP10
    stations, respectively, are first made available for application."
    Because the first filing window opened on May 30, 2000, the locality
    restriction has sunset. *See* *Low Power FM Filing Window*, Public
    Notice, 16 FCC Rcd 10057 (2000). Therefore, it is unclear how to
    evaluate the arguments of parties that urge us to maintain existing
    eligibility and ownership limits when at least some of those limits
    no longer exist. *See, e.g.,* Comments of Station Resource Group at
    2 (opposing changes to rules regarding overall eligibility or the
    capacity of organizations to assemble multiple LPFM stations).

[^63]: *FNPRM*, 20 FCC Rcd at 6773, para 22.

[^64]: Comments of National Public Radio ("NPR") at 5; Comments of
    Prometheus Radio Project at 20-21. *See also* Comments of Amherst
    Alliance at 3-4 (arguing that only one LPFM license should be
    available per licensee in order to prevent a network of LPFM
    stations and protect local broadcast programming); Comments of
    College of the Seneca at 3 (supporting ownership restriction of one
    LPFM station per organization).

[^65]: Comments of Educational Information Corporation at 8-9.

[^66]: Comments of Prometheus Radio Project at 22.

[^67]: *See* *Report and Order* at 2213*,* para.17.

[^68]: *See id.* at 2223, para. 44.

[^69]: *See*, *e.g.*, Comments of Colquitt Community Radio at 2 (arguing
    that the restriction of local ownership should remain in place);
    Comments of Prometheus Radio Project at 22.

[^70]: *Second Order*, 20 FCC Rcd at 6767, para. 10.

[^71]: 47 C.F.R. § 73.853(b).

[^72]: Comments of Prometheus Radio Project at 21.

[^73]: *Id.*

[^74]: Comments of Prometheus Radio Project at 23.

[^75]: 47 C.F.R. § 73.853(b).

[^76]: *Report and Order*, 2219, para. 33.

[^77]: Comments of Prometheus Radio Project at 23.

[^78]: *Id.*

[^79]: *Id.*

[^80]: *Report and Order*, 15 FCC Rcd at 2258-60, paras. 136-39.

[^81]: 47 C.F.R. § 73.872(c).

[^82]: 47 C.F.R. § 73.872(d).

[^83]: *See FNPRM*, 20 FCC Rcd at 6774, para. 24; *see also* Petition
    for Reconsideration or, in the Alternative, Clarification of UCC-OC,
    *et al.,* MM Docket No. 99-25 at 4 (filed Jun. 11, 2001) ("UCC 2001
    Petition").

[^84]: *FNPRM*, 20 FCC Rcd at 6774, para. 25.

[^85]: UCC 2001 Petition at 4.

[^86]: *Id.*

[^87]: *FNPRM*, 20 FCC Rcd at 6774, para. 24.

[^88]: Comments of NPR at 2.

[^89]: Comments of REC at 9.

[^90]: *Id*. at 10. *See also* Comments of Kyle E. Magrill at 3
    (recommending that the Commission extend the time in which
    applicants may negotiate and file time-sharing proposals to 90
    days).

[^91]: 47 C.F.R. § 73.872(c).

[^92]: 47 C.F.R. § 73.872(d).

[^93]: *FNRPM*, 20 FCC Rcd at 6774, para. 25.

[^94]: Christian Community Broadcasters suggests that we establish
    frequency sharing for mutually exclusive applicants by requiring
    such applicants to merge into one organization within six months of
    the applications being determined to be mutually exclusive.
    Christian Community Broadcasters Comments at 2. We reject this
    suggestion as unnecessary and overly burdensome.

[^95]: REC Comments at 10. REC focuses its remarks on the circumstance
    in which one organization that participates in an involuntary
    time-sharing arrangement subsequently cannot do so, due to the
    surrender, cancellation or termination of its authorization. *Id.*
    However, the logic of those remarks applies with equal force to the
    larger questions of whether to grant a renewal expectancy to
    involuntary time-sharing arrangements, and how best to foster
    cooperation and compromise among mutually exclusive licensees.

[^96]: *Second Order*, 20 FCC Rcd at 6774, para. 25.

[^97]: 47 C.F.R. § 73.872(c)

[^98]: *Id*.

[^99]: *Id.*

[^100]: *See* 47 C.F.R. § 73.870(a); *see also* *Second Order*, 20 FCC
    Rcd. at 6767, para. 11 (explaining that "\[a\]n application
    proposing a 'minor change' to authorized LPFM facilities \[unlike
    major modification applications\] may be filed at any time").

[^101]: Comments of REC at 11 n.20.

[^102]: *Id.* at 12.

[^103]: 47 C.F.R. § 73.872(b).

[^104]: *Report and Order*, 15 FCC Rcd at 2278-79, paras. 189-90.

[^105]: *FNPRM*, 20 FCC Rcd at 6775, para. 27.

[^106]: *See* 47 C.F.R. § 73.3598(a).

[^107]: *See* KVLP Comments at 1 (discussing difficulties in financing
    construction); *see also* *Second Order*, 20 FCC Rcd at 6775, para.
    26 (recognizing that zoning and permitting processes could delay
    construction).

[^108]: *FNPRM*, 20 FCC Rcd at 6775, para. 26.

[^109]: NPR, REC, Eureka College, Virden Broadcasting Corporation,
    Kaskaskia Broadcasting, Inc., JT Communications, Kyle E. Magrill,
    Matthew Lasar, Elizabeth Currans, Meagen Grundberg, and Richard
    Whitmore favor extending the 18-month requirement to three years;
    Colquitt Community Radio, Inc., Optima Enrichment Inc., and Martin
    L. Hensley oppose any extension of the current 18-month requirement.

[^110]: *See* Comments of Eastern Sierra Broadcasters at 2 (favoring an
    automatic extension for reasons of administrative ease, but would
    limit the extension to a total of 24 months).

[^111]: *See* Comments of Prometheus at 26 (filed Aug. 22, 2005); Reply
    Comments of Christian Community Broadcasters at 2 (filed Sept. 21,
    2005); Comments of Christian Community Broadcasters at 3 (filed Aug.
    22, 2005); Comments of Dane Scott Undenburg (filed July 18, 2005).

[^112]: *See* Comments of Prometheus at 26 (filed Aug. 22, 2005).

[^113]: We note that this expectation does not affect the tolling
    provisions of 47 C.F.R. § 73.3598(b).

[^114]: 47 C.F.R. § 73.871(c).

[^115]: *See* *FNPRM*, 20 FCC Rcd at 6776, para. 28 (citing UCC 2001
    Petition at 7).

[^116]: 47 C.F.R. § 73.871(c).

[^117]: UCC Petition at 7.

[^118]: *See* *Settlement Period Announced for Closed Groups of Pending
    Low Power FM Mutually Exclusive Applications,* Public Notices, 18
    FCC Rcd 18048, 18 FCC Rcd 19726 (MB 2003).

[^119]: *See FNPRM*, 20 FCC Rcd at 6776-78, paras. 29-33.

[^120]: *See, e.g.,* Comments of KZQP-LP at 1-2.

[^121]: *See, e.g.,* Comments of KYRS-LP at 1-2.

[^122]: *See, e.g.,* Reply Comments of Prometheus Radio Project at
    28-31; Comments of Highland Community Broadcasting at 1-2.

[^123]: *See, e.g.,* Comments of The Amherst Alliance at 2; Comments of
    REC at 16; Reply Comments of REC at 2.

[^124]: ^?^ *See, e.g.,* Comments of Edgewater Broadcasting, Inc. at
    6-7; Comments of Educational Media Foundation Comments at 6-9; Reply
    Comments of MBC Grand at 1-3; Reply Comments of NAB at 3-4; Comments
    of Public Radio Regional Organization at 10-15.

[^125]: *See, e.g.,* Comments of the National Translator Association at
    2-3; Comments of the Public Radio FM Translator Licensees at 3-6.

[^126]: *See, e.g.,* Comments of Edgewater Broadcasting, Inc at 7; Reply
    Comments of Edgewater Broadcasting, Inc. at 4; Comments of NAB at
    24-26; Reply Comments of NAB at 9-10.

[^127]: *See, e.g.,* Comments of Educational Media Foundation at 10-11;
    Comments of National Translator Association at 3-4; Reply Comments
    of Station Resource Group at 4.

[^128]: *See, e.g*., Comments of Named State Broadcaster Associations
    ("NSBA") at 3.

[^129]: *See, e.g.,* Comments of Public Radio FM Translator Licensees at
    3-6; Comments of The Public Radio Regional Organizations at 11-15;
    Comments of Educational Media Foundation at 2-4

[^130]: *See, e.g.,* Comments of NAB at 26-27.

[^131]: *See, e.g.,* Comments of NPR at 5-9; Comments of Station
    Resource Group at 5-8.

[^132]: *See, e.g.,* Comments of Bayard H. Walters at 2-3; Joint
    Comments of Galaxy Communications, L.P. and Desert West Air Ranchers
    Corp. at 6 n.11; Reply Comments of REC at 5-6.

[^133]: *See, e.g.,* Comments of Edgewater Broadcasting, Inc. at 3-4;
    Comments of Public Radio Regional Organizations at 19-20.

[^134]: *See, e.g.,* Comments of Public Radio Regional Organizations at
    19-20.

[^135]: *See, e.g.,* Comments of Edgewater at Exhibits 1-3.

[^136]: Comments of Edgewater at 4-6.

[^137]: Reply Comments of REC at 3; *See* *also* Reply Comments of
    Prometheus Radio Project at Appendix A and Appendix B.

[^138]: Comments of Station Resource Group at 5.

[^139]: *See, e.g.* Comments of REC at Appendix D.

[^140]: *See, e.g.,* Comments of Station Resource Group at 8; Comments
    of the Public Radio Regional Organizations at 19-22.

[^141]: Comments of Station Resource Group at 8-9; Comments of the
    Public Radio Regional Organizations at 19-20; Comments of the
    National Translator Association at 7-8; Reply Comments of REC at
    5-6.

[^142]: *See, e.g.,* Comments of Saga Communications at 7; Comments of
    Named State Broadcaster Associations at 9.

[^143]: 47 U.S.C. § 307(b).

[^144]: *See* Reply Comments of Prometheus at 17-18.

[^145]: *See* 47 C.F.R. § 74.1203(a)(1).

[^146]: Comments of National Translator Association at 7.

[^147]: 47 C.F.R. §§ 73.5002 (c) and (d).

[^148]: *See, e.g*., *Elleron Oil Company WVI Partners, Inc*., Order, 13
    FCC Rcd 17250 (WTB 1998); *Chadmoore Comm'ns, Inc. v. FCC*, 113 F.3d
    235 (D.C. Cir. 1997); *Kessler v. FCC*, 326 F.2d 673 (D.C. Cir.
    1963).

[^149]: *See, e.g., Revision of Part 22 and Part 90 of the Commission's
    Rules*, Second Report and Order and Further Notice of Proposed
    Rulemaking, 12 FCC Rcd 2732, 2739-40 (1997) (dismissing all pending
    paging applications and all applications filed after a certain date
    to facilitate transition to new geographic-area licensing system);
    *Elleron Oil Company WVI Partners, Inc.,* 13 FCC Rcd at 17252.

[^150]: *Report and Order*, 15 FCC Rcd at 2230, para. 63.

[^151]: *Id.* at 2231, para. 65.

[^152]: *Id.* at 2232, para. 66.

[^153]: 47 C.F.R. § 73.809.

[^154]: *Reconsideration Order*, 15 FCC Rcd at 19220, para. 29.

[^155]: *See FNPRM*, 20 FCC Rcd at 6780, para. 38 (noting that "the
    public interest may favor continued LPFM second- and third-adjacent
    channel operations over a subsequently authorized upgrade or new
    full-service station").

[^156]: *Id.* at 6781, para. 39.

[^157]: *See*, *e.g*., Prometheus Reply Comments at 2. On March 5,
    2007**,** the Commission received a petition for rulemaking
    requesting: (1) immediate issuance of a moratorium on the
    displacement of licensed LPFM stations and Class D Educational
    stations by new, relocating and/or upgrading full-power radio
    stations, and (2) a proposed rule permanently prohibiting or
    otherwise restricting such displacement. *See* Petition for
    Rulemaking of the Amherst Alliance, Talk Radio of Pahrump, Midwest
    Christian Media, Providence Community Radio and Nickolaus E. Leggett
    N3NL at 1. In light of the discussion herein, we dismiss this
    petition.

[^158]: *See* www.recnet.com/lpfminfo/encr0205.pdf.

[^159]: *Id.*

[^160]: *See* Prometheus, *et. al*., comments at 12-17.

[^161]: *See* Comments of NAB; Cox Radio, Inc.; Educational Media
    Foundation; Galaxy Communications, L.P.; Desert West; Air Ranchers
    Corp.; and NSBA.

[^162]: *See* NAB Reply Comments at 16-17; see also Comments of Cox
    Radio, Inc., and Galaxy Communications, L.P.

[^163]: *See* NAB Comments at 14; see also NSBA Reply Comments at 12-13.

[^164]: *See* Educational Media Foundation Reply Comments at 7.

[^165]: *See* NSBA Reply Comments at 10.

[^166]: *See* *Report and Order*, 15 FCC Rcd at 2231. *See* *also* n.16
    and accompanying text.

[^167]: *Letter to John Snyder from Peter H. Doyle, Chief, Audio
    Division, Media Bureau*, 21 FCC Rcd 11,945 (MB 2006).

[^168]: We note that, contrary to the suggestion in the FNPRM, Section
    73.809 does not require LPFM stations to resolve complaints of
    actual interference to subsequently authorized third-adjacent
    channel full service stations. Thus, this Rule change does not
    "eliminate or reduce" third-adjacent channel protection requirements
    and therefore comports with statutory requirements. *See* 2001 DC
    Appropriations Act.

[^169]: 47 C.F.R. § 73.807.

[^170]: Based on this very limited potential for second-adjacent channel
    interference, the *FNPRM* sought comment on a closely related
    proposal to limit LPFM displacement -- whether to limit complaint
    procedures under Section 73.809 of the Rules to situations involving
    only co- or first-adjacent channel predicted interference. *FNPRM*,
    20 FCC Rcd at 6780, para 38.

[^171]: The Commission appears to be without authority to waive
    third-adjacent channel spacing requirements. *See* 2001 DC
    Appropriations Act. There is a significant potential for
    interference from short-spaced co- and first-adjacent channel LPFM
    station operations. Accordingly, the waiver procedures set forth
    herein will not apply in these contexts.

[^172]: *See* 47 U.S.C. § 316.

[^173]: *See* 47 C.F.R. § 73.872(b)(3); *see also* *infra* at ¶ 24.

[^174]: *See* 47 C.F.R. §§ 73.215 and 73.509.

[^175]: An alternate channel is "suitable" if the distance between the
    LPFM transmitter site and the protected authorization or application
    satisfies the "required" distance separation minimums set forth in
    47 C.F.R. § 73.807. The spacing need not meet the co- and
    first-adjacent channel minimum separations "for no interference
    received from maximum class facilities," as set forth in this Rule.

[^176]: 47 C.F.R. § 73.807.

[^177]: *See* 47 C.F.R. §§ 73.807(a)(1)-(2).

[^178]: Third-adjacent channel waiver short-spacings appear to be
    explicitly barred under the 2001 DC Appropriations Act.

[^179]: *See* 47 C.F.R. § 74.1204(d).

[^180]: *See Circleville, OH*, Second Report and Order, 8 FCC 2d 159
    (1967); *Harold A. Jahnke*, 46 RR 2d 659 (1979).

[^181]: *See* Station Resource Group Reply Comments at 5.

[^182]: 47 C.F.R. § 73.807.

[^183]: *See, e.g.,* Prometheus Radio Project Letter to Chairman Kevin
    Martin (Nov. 13, 2007).

[^184]: 47 C.F.R. § 73.509.

[^185]: NCE FM Class D stations, which operate on a secondary basis, are
    also licensed without regard to the extent of interference that the
    proposed facilities would receive. *See* 47 C.F.R. § 73.512(d).

[^186]: The magnitude of "received interference" LPFM licensing
    flexibility with regard to authorized FM stations is the difference
    between the separations set forth in the rule "for no interference
    received from maximum class facility" and the lesser "required"
    separation. *See* 47 C.F.R. § 73.807(a).

[^187]: 47 C.F.R. § 74.1204(d) (emphasis added).

[^188]: *See Living Way Ministries*, Memorandum Opinion and Order, 17
    FCC Rcd 17054, 17055-60 (2002) *petitions for recon. pending.*

[^189]: 47 C.F.R. § 73.1203(b).

[^190]: *See November 13, 2007, Prometheus Radio Project Letter to
    Chairman Kevin Martin* at unnumbered page 2.

[^191]: *See* 47 C.F.R. § 1.1206(b), as revised.

[^192]: *See id.* § 1.1206(b)(2).

[^193]: *See Electronic Filing of Documents in Rulemaking Proceedings*,
    63 FR 24121 (1998).

[^194]: The RFA, *see* 5 U.S.C. §§ 601 -- 612, has been amended by the
    Small Business Regulatory Enforcement Fairness Act of 1996
    ("SBREFA"), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^195]: 5 U.S.C. § 605(b).

[^196]: *Id*. § 601(6).

[^197]: *Id*. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^198]: 15 U.S.C. § 632.

[^199]: *See* 5 U.S.C. § 604.

[^200]: The Paperwork Reduction Act of 1995, Pub. L. No. 104-13, 109
    Stat 163 (1995) (*codified in* Chapter 35 of Title 44 U.S.C.).

[^201]: *See Creation of a Low Power Radio Service*, MM Docket No.
    99-25, 70 FR 39217, 39218 (2005).

[^202]: *See id*.

[^203]: *NPRM*, 20 FCC Rcd 6763; 70 FR 39217 (July 7, 2005).

[^204]: The Small Business Paperwork Relief Act of 2002 ("SBPRA"), Pub.
    L. No. 107-198, 116 Stat 729 (2002) (codified in Chapter 35 of title
    44 U.S.C.); *see* 44 U.S.C. § 3506(c)(4).

[^205]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 ("SBREFA"), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^206]: *See* 5 U.S.C. § 603(a).

[^207]: *See* 5 U.S.C. § 603(a).

[^208]: 5 U.S.C. § 603(b)(3).

[^209]: 5 U.S.C. § 601(6).

[^210]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^211]: 15 U.S.C. § 632.

[^212]: *See* 13 C.F.R. § 121.201, NAICS Code 515112.

[^213]: *Id*.

[^214]: *Id*.

[^215]: *Id*.

[^216]: 5 U.S.C. § 603(b).

[^217]: Specifically, the January 2007 lifting of the freeze on the
    filing of FM community of license modification proposals combined
    with the implementation of new streamlined licensing procedures
    resulted in a one-time flurry of filing activity, with approximately
    100 FM community of license modification proposals submitted in the
    first week of the new Rules. In all, over 200 community of license
    modification applications have been filed under the new Rules.

[^218]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-612, has
    been amended by the Small Business Regulatory Enforcement Fairness
    Act of 1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857
    (1996).

[^219]: *FNPRM*, 20 FCC Rcd at 6790.

[^220]: *See* 5 U.S.C. § 604.

[^221]: See *Third Report and Order* at para. 23.

[^222]: *Id.* at paras. 56-57.

[^223]: 5 U.S.C. § 603(b)(3).

[^224]: 5 U.S.C. § 601(6).

[^225]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^226]: 15 U.S.C. § 632.

[^227]: *See* 13 C.F.R. § 121.201, NAICS Code 515112.

[^228]: *Id*.

[^229]: *Id*.

[^230]: *Id*.

[^231]: *See* FCC Forms 314, 315 and 316, available at
    http://www.fcc.gov/formpage.html.

[^232]: 5 U.S.C. § 603(b).

[^233]: *See* 5 U.S.C. § 801(a)(1)(A).

[^234]: *See* 5 U.S.C. § 604(b).

[^235]: *Creation of a Low Power Radio Service*, 20 FCC Rcd 6763, ¶ 38
    (2005).