**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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**SECOND REPORT AND ORDER**

**FIRST ORDER ON RECONSIDERATION AND**

**SECOND FURTHER NOTICE OF PROPOSED RULEMAKING**

**Adopted: March 22, 2007** **Released: May 31, 2007**

**Comment Date: \[60 days after date of publication in the Federal
Register\]**

**Reply Comment Date: \[90 days after date of publication in the Federal
Register\]**

By the Commission: Chairman Martin and Commissioners Tate and McDowell
issuing separate

statements; Commissioners Copps and Adelstein approving in part,
dissenting

in part and issuing separate statements.

Table of Contents

Heading Paragraph \#

I. INTRODUCTION AND ExECUTIVE SUMMARY 1

II .BACKGROUND 4

A. In-Band On-Channel Technology 4

B. The Regulatory Development of Digital Audio Broadcasting 6

C. Radio Statistics 11

III\. POLICIES AND RULES FOR DAB 12

A. The DAB Standard 12

B. Conversion Policy 13

C. Service Rules 23

1\. Flexible Uses 23

a\. Digital Audio Broadcasting Signal Quality 30

b\. Multicasting 33

c\. Datacasting 43

2\. Ancillary Subscription Services 49

3\. Noncommercial Educational Stations 50

4\. Low Power FM 56

5\. Licensing Procedures 59

D. Programming and Operational Rules 60

1\. Public Interest Issues 60

a\. Public Interest Obligations 61

b\. Station Identification 69

c\. Emergency Alert System 74

d\. Radio Reading Services 79

2\. Operating Hours 87

3\. Territorial Exclusivity 88

E. Technical Rules 89

1\. AM Nighttime Operation 89

2\. Dual Antennas 91

3\. FM Translator and Booster Stations 92

4\. TV Channel 6 94

5\. Super-powered and Short-spaced Stations 97

6\. Expansion of IBOC Notification Procedures 99

7\. Receivers 100

8\. Patents 101

9\. Other Technical Issues 102

IV\. International ISSUES 103

V. ORDER ON RECONSIDERATION 107

VI\. SECOND FURTHER NOTICE OF PROPOSED RULEMAKING 113

VII\. PROCEDURAL MATTERS 121

A. Filing Requirements 121

B. Initial and Final Regulatory Flexibility Analysis 125

C. Paperwork Reduction Act Analysis 127

VIII.ORDERING CLAUSES 129

Appendix A- List of Commenters

Appendix B- Final Rules

Appendix C- Initial Regulatory Flexibility Analysis

Appendix D- Final Regulatory Flexibility Analysis

# INTRODUCTION AND ExECUTIVE SUMMARY

1.  In the *Digital Audio Broadcasting Report and Order*, we selected
    in-band, on-channel ("IBOC") as the technology enabling AM and FM
    radio broadcast stations to commence digital audio broadcasting
    ("DAB").[^1] In the *DAB R&O*, we adopted notification procedures
    allowing existing AM and FM radio stations to begin digital
    transmissions immediately on an interim basis using the IBOC system
    developed by iBiquity Digital Corporation ("iBiquity"). We concluded
    that the adoption of a specific technology would facilitate the
    development of digital services for terrestrial broadcasters. We
    deferred consideration of final operational requirements and related
    broadcast licensing and service rule changes to a future date. In a
    *Further Notice of Proposed Rule Making* ("*FNPRM*") we addressed
    issues left unresolved in the *DAB R&O* and sought comment on what
    changes and amendments to Part 73 of the Commission's rules were
    necessary to facilitate the adoption of DAB*.*[^2]

2.  Through this proceeding, we seek to foster the development of a
    vibrant terrestrial digital radio service for the public and to
    ensure that radio stations successfully implement DAB.[^3] Our goals
    in this *Second Report and Order* are to begin to adopt service
    rules and other requirements for terrestrial digital radio. However,
    we find it necessary to ask additional questions, in a *Second
    Further Notice of Proposed Rulemaking*, on how to preserve free
    over-the-air radio broadcasting while permitting licensees to offer
    new services on a subscription basis. We also resolve and dispose of
    several petitions for reconsideration that were filed in response to
    the *DAB R&O*.

3.  In summary, the Commission, in this *Second Report and Order, First
    Order on Reconsideration, and Second Further Notice of Proposed
    Rulemaking*:

-   Refrains from imposing a mandatory conversion schedule for radio
    stations to commence digital broadcast operations;

-   Allows FM radio stations to operate in the extended hybrid digital
    mode;

-   Requires that each local radio station broadcasting in digital mode
    provide a free over-the-air digital signal at least comparable in
    audio quality to its analog signal;

-   Continues to require that the main digital broadcast stream
    simulcast the material aired on the analog signal;

-   Adopts a flexible bandwidth policy permitting a radio station to
    transmit high quality audio, multiple program streams, and
    datacasting services at its discretion;

-   Allows radio stations to time broker unused digital bandwidth to
    third parties, subject to certain regulatory requirements;

-   Applies existing programming and operational statutory and
    regulatory requirements to all free DAB programming streams, but
    defers the issue of whether and how to apply any specific new public
    interest requirements;

-   Authorizes AM nighttime operations and FM dual antenna
    configurations;

-   Considers and addresses other technical matters, such as FM
    translator and booster operations and TV Channel 6 interference
    issues;

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-   Defers discussion of whether the Commission should impose content
    control requirements that would prevent listeners from archiving and
    redistributing digital musical recordings transmitted by digital
    broadcast stations;

-   Recognizes that further negotiations between the United States and
    the international community are taking place to resolve possible
    disputes about the implementation and operation of DAB by domestic
    radio stations;

-   Dismisses several pending Petitions for Reconsideration and
    Petitions for Rulemaking that asked, *inter alia*, the Commission to
    reconsider the adoption of iBiquity's IBOC system as the technology
    chosen for DAB transmission**;**

-   Seeks further comment on appropriate limits to the amount of
    subscription services that may be offered by radio stations.

# BACKGROUND

## In-Band On-Channel Technology

4.  IBOC technology makes use of the existing AM and FM bands (In-Band)
    by adding digital carriers to a radio station\'s analog signal,
    allowing broadcasters to transmit digitally on their existing
    channel assignments (On-Channel) while simultaneously maintaining
    their analog service.[^4] iBiquity's IBOC DAB technology enables
    radio stations to provide enhanced sound fidelity, improved
    reception, multiple audio streams, and new data services. It permits
    the transmission of near-CD quality audio signals on the FM band,
    and improved fidelity on the AM band, to digital-ready radio
    receivers along with information services, such as station, song and
    artist identification, stock and news updates, and local traffic and
    weather bulletins. These digital signals are free from the static,
    hiss, pops, and fades associated with the current analog system.
    iBiquity's IBOC technology will also allow for new radios to be
    \"backward and forward\" compatible, allowing them to receive
    existing analog broadcasts from stations that have yet to convert
    and digital broadcasts from stations that have converted. Existing
    analog radios will continue to receive analog broadcast signals.[^5]

5.  The iBiquity IBOC system evaluated by the DAB Subcommittee of the
    National Radio Systems Committee ("NRSC")[^6] are "hybrids" in that
    they permit the transmission of both analog and digital signals
    within the spectral emission mask of a single AM or FM channel. In
    the hybrid mode, the iBiquity IBOC system places digital information
    on frequencies immediately adjacent to the analog signal. The
    digital signals are transmitted using orthogonal frequency division
    multiplexing ("OFDM"). The FM IBOC system has an extended hybrid
    mode, providing greater digital capacity than the hybrid mode. The
    IBOC system is also designed to eventually permit radio stations to
    convert to an all-digital mode of operation. The IBOC system uses
    perceptual coding to discard information that the human ear cannot
    hear. This reduces the amount of digital information, and as a
    result, the frequency bandwidth required to transmit a high-quality
    digital audio signal. In addition, the IBOC system in hybrid mode is
    designed to blend to analog when digital reception fails. This
    blending feature eliminates a digital "cliff effect" that would
    otherwise result in the complete and abrupt loss of reception at
    locations where the digital signal fails.

## The Regulatory Development of Digital Audio Broadcasting

6.  In 1990, the Commission first considered the feasibility of
    terrestrial and satellite digital radio services.[^7] As to the
    former, the Commission concluded that the digital terrestrial
    systems then under consideration were undeveloped and that it was
    premature to engage in discussions regarding DAB standards, testing,
    licensing, and other policy issues. In 1999, the Commission,
    recognizing new technological developments and innovations,
    commenced this proceeding to foster the adoption of a DAB system and
    develop a record regarding the legal and technical issues raised by
    the introduction of DAB.[^8] In the *DAB NPRM*, the Commission,
    *inter alia*, proposed criteria for the evaluation of DAB models and
    systems and considered certain DAB system testing, evaluation, and
    standard selection issues.[^9]

7.  In the *DAB R&O*, the Commission selected the hybrid AM and FM IBOC
    system tested by the NRSC as the *de facto* standard for interim
    digital operation. As of the effective date of the *DAB R&O*, we
    stated we would no longer entertain any proposal for digital radio
    broadcasting other than IBOC.[^10] We found that IBOC was the best
    way to advance our DAB policy goals. We also found that this
    technology was supported by the broadcast industry and was the only
    approach that could be implemented in the near future. We recognized
    that the IBOC system was spectrum-efficient because it can
    accommodate digital operations for all existing AM and FM radio
    stations with no additional allocation of spectrum. The NRSC tests,
    as explained in the *DAB R&O*, showed that both AM and FM IBOC
    systems offer enhanced audio fidelity and increased robustness when
    encountering interference and other signal impairments. The tests
    also indicated that coverage for both systems would be at least
    comparable to analog coverage. We stated that audio fidelity and
    robustness will greatly improve when radio stations move to
    all-digital operations.

8.  We established the following requirements for radio stations in the
    *DAB R&O*: (1) during interim IBOC operations, stations must
    broadcast the same main channel program material in both analog and
    digital modes; (2) interim IBOC facilities must use the station's
    authorized antenna system;[^11] (3) due to interference concerns,
    stations implementing IBOC must communicate to the Commission the
    transmitter power output (for both analog and digital transmitters,
    if applicable) and must certify that the analog effective radiated
    power remains consistent with the station's authorization; (4)
    pending adoption of final rules, a licensee's authorization to
    transmit IBOC signals may be modified or cancelled by the Commission
    without prior notice or a right to a hearing to eliminate
    objectionable interference; and (5) IBOC AM stations may only
    operate during daytime hours.[^12]

9.  In the *DAB FNPRM*, our goal was to create a record that would lead
    to permanent DAB policies and requirements. We sought public input
    on several issues related to digital audio broadcasting.
    Specifically we sought comment on: (1) the appropriate policies the
    Commission may adopt to encourage radio stations to convert from an
    analog-only radio service to a hybrid analog/digital radio service,
    and, eventually, to an all-digital radio service; (2) the types of
    digital services the Commission should permit radio stations to
    offer; (3) how noncommercial educational ("NCE") FM and low power FM
    stations may provide digital radio service to the public; (4) how
    the Commission's existing programming and operational rules should
    be applied to DAB; and (5) what changes and amendments to the
    Commission's technical rules are necessary to further the
    introduction of DAB.[^13]

10. In the *DAB NOI*, we asked whether the transmission of digital radio
    signals, as a free over-the-air service, would create an environment
    for persons to engage in indiscriminate recording and Internet
    redistribution of musical recordings that are part of unencrypted
    free digital audio broadcasts and sought comment on how this matter
    should be addressed.[^14] On this point, we have been informed that
    interested parties are attempting to resolve this issue through a
    marketplace solution.[^15] We encourage this approach. Accordingly,
    we will defer further action on this issue at this time. In the *DAB
    NOI*, we also raised for comment whether there were international
    broadcast treaty matters that needed to be addressed at this time to
    ensure that DAB is successfully implemented in the United
    States.[^16]

## Radio Statistics

11. As of August 1, 2005, approximately 900 radio stations have entered
    into licensing agreements with iBiquity for its IBOC
    technology.[^17] Currently, 1,272 stations (195 AM and 1,077 FM) are
    authorized by the Commission to broadcast using the IBOC system, and
    approximately 700 FM stations have requested and received special
    temporary authority for multicasting.[^18] These stations are mostly
    located in the top 50 markets in the country and reach 60 percent of
    all potential listeners. At least 10 stations are on the air in each
    of the following markets: Los Angeles, Chicago, San Francisco,
    Boston, Detroit and Atlanta. Approximately, 85 percent of the IBOC
    stations on the air are FM stations and 15 percent are AM stations.
    iBiquity has announced that 21 of the nation's top radio broadcast
    groups have committed to accelerate broadcast conversion of 2,000 AM
    and FM stations to IBOC technology. Clear Channel Communications,
    Entercom and Cox Radio have all made substantial commitments to
    convert many of their stations to digital over the next few
    years.[^19] Moreover, ten of the largest radio firms have formed a
    strategic alliance to coordinate the rollout of DAB. This effort
    includes the coordination of multicast formats, securing digital
    automotive receiver designs, and lowering the price points for
    digital radio receivers.

# POLICIES AND RULES FOR DAB

## The DAB Standard

12. In the *DAB R&O*, we stated that the adoption of a DAB standard will
    facilitate an efficient and orderly transition to digital radio, and
    we supported a public and open standard-setting process.[^20] In the
    *DAB FNPRM*, we encouraged the NRSC to provide us with information
    on the standard setting process as events warrant.[^21] On April 16,
    2005, the NRSC announced approval of the initial NRSC IBOC standard
    known as NRSC-5.[^22] On May 18, 2005, the NRSC submitted NRSC-5 to
    the Commission for consideration and evaluation.[^23]  The NRSC
    adopted the NRSC-5-A IBOC broadcasting standard in September 2005. 
    The NRSC-5-A IBOC standard adds sections concerning Advanced
    Application Services and a new reference document to the NRSC-5 IBOC
    standard, but the NRSC has not yet submitted the NRSC-5-A IBOC
    standard to the Commission for review. While our consideration of
    the NRSC-5 IBOC standards is continuing, we find that it is in the
    public interest to adopt certain policies, rules, and requirements
    for digital radio before we have completed our evaluation of the
    standards. Radio stations and equipment manufacturers need to move
    forward with the DAB conversion, and we need not wait until after
    final action is taken on the IBOC standards to provide such guidance
    to them.

## Conversion Policy

13. In the *DAB FNPRM*, we sought comment on the pace of the analog to
    digital radio conversion and the possibility of an all-digital
    terrestrial radio system in the future.[^24] We noted that Congress
    codified December 31, 2006, as the analog television termination
    date with certain exceptions,[^25] and we recognized that there is
    no analogous congressional mandate for the termination of analog
    radio broadcasting. We stated that the Commission has not considered
    a date certain as to when radio stations should commence digital
    broadcast operations because radio stations, unlike television
    stations, are not using additional spectrum to provide digital
    service. We also stated that band-clearing is not an issue. Based on
    these factors, we found that there was no immediate need to consider
    mandatory transition policies of the type contemplated with respect
    to DTV. However, we recognized the spectrum efficiencies and related
    new service opportunities inherent in the IBOC system. As such, we
    sought comment on what changes in our rules would likely encourage
    radio stations to convert to a hybrid or an all-digital transmission
    system and asked whether the government, the marketplace, or both
    should determine the speed of conversion from analog to hybrid and,
    eventually, to all digital radio service. We also asked whether we
    should conduct periodic reviews, in terms of the number of DAB
    receivers on the market and DAB stations on the air, to help us
    decide how to set policy as the conversion to digital audio
    broadcasting moves forward.[^26]

14. Commenters generally support a marketplace transition to digital
    audio broadcasting.[^27] For example, the State Broadcasters
    Associations ("SBAs") states that the Commission should allow market
    forces to govern the adoption of DAB by the radio industry and that
    no station should be required to adopt IBOC or any other digital
    technology.[^28] The Public Interest Coalition ("PIC") agrees that
    the market should govern the pace of the DAB transition.[^29]

15. We will not establish a deadline for radio stations to convert to
    digital broadcasting. Stations may decide if, and when, they will
    provide digital service to the public. Several reasons support this
    decision. First, unlike television licensees, radio stations are
    under no statutory mandate to convert to a digital format.  Second,
    a hard deadline is unnecessary given that DAB uses an in-band
    technology that does not require the allocation of additional
    spectrum. Thus, the spectrum reclamation needs that exist for DTV do
    not exist here. Moreover, there is no evidence in the record that
    marketplace forces cannot propel the DAB conversion forward, and
    effective markets tend to provide better solutions than regulatory
    schemes.

16. iBiquity argues that in the early stages of the transition, the
    Commission should favor and protect existing analog signals. It
    states that this could be accomplished by limiting the power level
    and bandwidth occupancy of the digital carriers in the hybrid mode.
    At some point in the future, when the Commission determines there is
    sufficient market penetration of digital receivers, iBiquity asserts
    that the public interest will be best served by reversing this
    presumption to favor digital operations. At that time, broadcasters
    will no longer need to protect analog operations by limiting the
    digital signal and stations should have the option to implement
    all-digital broadcasts.[^30] We decline to adopt iBiquity's
    presumption policy because it is too early in the DAB conversion
    process for us to consider such a mechanism. We find that such a
    policy, if adopted now, may have unknown and unintended consequences
    for a new technology that has yet to be accepted by the public or
    widely adopted by the broadcast industry.

17. Nevertheless, as enunciated in more detail below, we take
    significant steps to facilitate the digital radio conversion by
    adopting rules and policies that encourage radio stations to invest
    in digital equipment and programming. For example, we permit radio
    stations to provide various types of digital service as long as one
    free over-the-air digital stream of equal or greater quality than
    the station's existing analog signal is available for listeners. We
    also establish technical rules, such as permitting AM nighttime
    service, intended to reinvigorate the AM band. To ensure that DAB
    adoption proceeds in a timely manner, we will conduct periodic
    reviews of digital service and receiver penetration, as suggested by
    iBiquity, as circumstances warrant.[^31]

18. [Extended Hybrid Mode.]{.underline} NAB asserts that the
    Commission's authorization of extended hybrid mode DAB operations
    will further the conversion process. According to NAB, the extended
    hybrid mode, which adds up to 50 kbps[^32] of data carrying capacity
    to an FM IBOC signal, will allow broadcasters to support a range of
    datacasting services without affecting the quality of the 96 kbps
    main channel digital audio signal. NAB asserts that while the use of
    the FM extended hybrid mode increases the bandwidth occupancy of the
    digital carriers, this will not increase interference to adjacent
    channels since the additional (*i.e*., extended hybrid) digital
    carriers fall between a station's primary digital carriers and its
    host analog signal. Consequently, each broadcaster will be able to
    control the level of impact these extended hybrid signals may have
    on its own transmission. NAB comments that the Commission should
    authorize broadcasters to adopt all three extended hybrid modes[^33]
    and allow broadcasters to make the appropriate operational decisions
    based on the needs of their listeners.[^34] NPR submitted a detailed
    report in November 2004 about the effect of extended hybrid
    operation on the host analog signal in various receivers. The report
    concludes that the FM extended hybrid mode does not affect host
    analog reception in car radios, home stereo receivers, or subsidiary
    communications authorization receivers.[^35]

19. The FM extended hybrid mode holds great promise for both
    broadcasters and their listeners. NPR has submitted data showing
    that the FM extended hybrid mode will work in most circumstances.
    NPR's report provides an ample basis for permitting radio stations
    to operate in an extended hybrid mode. Authorization of this digital
    mode will permit broadcasters to offer new and innovative services,
    especially to underserved populations, such as the visually impaired
    and non-English speaking citizens. If interference issues do arise,
    we are confident that the Commission staff will be able to resolve
    disputes on a case-by-case basis, and we intend that the staff will
    address these complaints in a timely fashion. In this connection,
    the Media Bureau has full authority to adjust and, if necessary,
    prohibit hybrid operations by broadcasters.

20. [All-digital Mode.]{.underline} In the *DAB* *FNPRM*, we recognized
    that it may be premature to adopt policies for all-digital radio
    operation given that there are no standards for this type of
    broadcasting.[^36] NAB agrees that adoption of policies and
    procedures relating to the all-digital mode of IBOC operation would
    be premature in the absence of "comprehensive and impartial testing"
    of all-digital systems. NAB states, however, that it is important to
    recognize that the all-digital mode is an integral part of the IBOC
    DAB system specification and that the software iBiquity provides to
    its transmitter and receiver manufacturer licensees includes an
    all-digital mode of operation. NAB states that when the time is ripe
    to consider use of the all-digital mode, consumers and broadcasters
    who have already invested in IBOC DAB equipment will not be
    disenfranchised and a smooth transition from a hybrid to an
    all-digital environment will be assured.[^37]

21. NPR states that it is premature for the Commission to contemplate a
    regulatory structure for all-digital terrestrial radio. It states
    that the elegance of the DAB transition is that the public, through
    its response to digital services, will determine the pace of the
    transition. NPR further states that until the transition to
    all-digital operation becomes more imminent, the Commission should
    refrain from adopting any policy affecting all-digital DAB.[^38] PIC
    states that the Commission should use its authority to facilitate
    public participation in the further development of digital radio
    technology.[^39]

22. The ultimate goal of this proceeding is to establish a robust and
    competitive all-digital terrestrial radio system. We agree with NPR
    that it is premature, however, to consider the adoption of policies
    and rules for an all-digital mode of operation. There are many
    unresolved technical issues associated with the all-digital radio
    broadcast system and radio stations do not plan to offer all-digital
    service in the near future. Broadcasters, of course, are encouraged
    to experiment with an all-digital service, with appropriate
    authorization, but for regulatory purposes, our principle focus at
    this stage is to ensure that the ground rules are set for the
    introduction of hybrid IBOC DAB. When DAB receiver penetration has
    reached a critical mass and most, if not all, radio stations
    broadcast in a hybrid digital format, we will begin to explore the
    technical and policy issues germane to an all-digital terrestrial
    radio environment.

## Service Rules

### Flexible Uses

23. As explained above, the IBOC DAB system provides radio stations with
    new flexibility and capabilities. First and foremost, it allows FM
    broadcasters to scale their audio quality from 96 kbps downward in 1
    kbps or smaller increments. Any reduction below 96 kbps frees
    capacity that can be devoted to other services. The AM system offers
    two levels of audio quality. The "core" AM carriers provide 20 kbps
    of robust monophonic sound. The "enhanced" layer adds an additional
    16 kbps of digital carriers and enables full stereo sound. The AM
    system design allows broadcasters to devote the full 36 kbps to a
    single audio signal or, in the future, select only the 20 kbps core
    mode for audio and devote the remaining 16 kbps enhanced carriers
    for other services.

24. The scaling of the audio codec,[^40] which permits broadcasters to
    reduce the number of bits devoted to the main channel audio signal,
    may affect the quality of the audio. However, it will not impact the
    robustness of the signal. The audio quality may be affected because
    the reduction in the bit rate may increase the likelihood of digital
    artifacts. The trade-off between bits and audio quality is not
    linear. There can be a substantial reduction in bit rate before most
    listeners would notice any digital artifacts that might impact audio
    quality. The broadcasters' and listeners' tolerance for reduced
    audio quality depends on many factors, most importantly, station
    program format.

25. The IBOC DAB system thus allows radio stations to broadcast a single
    high quality audio signal, multiple streams of lower quality audio,
    or various combinations of different quality audio signals. In
    addition, the system is capable of non-broadcast uses that are
    non-audio and/or subscription‑based in nature. In the *DAB FNPRM*,
    we tentatively found that permitting radio stations to use their
    bandwidth in a flexible manner is in the public interest.[^41]

26. NAB states that a digital radio station's service offerings should
    be determined by the licensee rather than by government mandate. NAB
    explains that digital business models will vary from licensee to
    licensee. Some stations, such as those with jazz or classical music
    genres, may choose to focus their resources on promoting the highest
    quality audio signal, while others may want to broadcast multiple
    streams of news, weather or financial information. NAB submits that
    these kinds of decisions are best left to consumer demand and the
    marketplace.[^42] NAB states that beyond an obligation to deliver at
    least one main audio channel of equal or better quality than a
    station's existing analog service, broadcasters should retain the
    flexibility to scale signals to enhance audio quality, to upgrade
    existing supplementary services, or offer new services for their
    audiences. NAB concludes that for DAB to fulfill its potential,
    supplementary services must be a viable option.[^43] NPR states that
    the Commission should not specify the amount of capacity stations
    should allocate to any given audio or data service.[^44] NPR argues
    that radio station licensees, like digital television licensees,
    should have the freedom to develop innovative services for the
    public.[^45]

27. iBiquity also urges the Commission to adopt a flexible approach to
    its service rules because radio stations have only begun to explore
    the IBOC system options. iBiquity asserts that this approach will
    encourage broadcasters to experiment and will foster the development
    of innovative new services for the listening public. iBiquity states
    that the imposition of unnecessarily restrictive service rules will
    have the effect of stifling the development of new services.[^46]
    Cox likewise suggests that the Commission should maintain a "do no
    harm" position, arguing that if concerns arise later in the
    conversion, the Commission can always adopt responsive rules at that
    time.[^47] There were no comments criticizing the adoption of a
    flexible use policy.

28. We expect and intend that the fundamental use of DAB will be for the
    provision of free over-the-air radio service. We will, therefore,
    require radio stations to provide at least one free digital
    over-the-air audio broadcast service. Specifically, radio stations
    operating in a digital mode must provide one free digital audio
    programming service that is comparable to or better in audio quality
    than that of their current analog service. Such a baseline
    requirement mirrors the Commission\'s analogous requirement for
    digital television stations, and is based on the same underlying
    policy consideration that significant benefits from digital
    conversion should flow directly to the public.[^48] We do not here
    alter the requirement set forth in the *DAB R&O* that a radio
    station must simulcast its analog programming service on its digital
    signal. However, we will revisit the simulcasting requirement in the
    future when we decide whether or not to approve the NRSC-5 standard.
    In any event, simulcasting is part of the IBOC operational structure
    and a radio station must duplicate its programming if it wants the
    DAB "blend" feature to work properly.[^49]

29. Taking these points into consideration, we will permit radio
    stations to use their frequencies as the marketplace dictates, an
    approach supported by dozens of interested parties and consistent
    with our digital television policy.[^50] We are hopeful that this
    flexibility also will lead to a more rapid conversion to DAB. We
    elaborate on this issue below by addressing issues raised regarding
    some of the services DAB stations might choose to provide.

#### Digital Audio Broadcasting Signal Quality

30. In the *DAB FNPRM*, we sought comment on whether or not we should
    require broadcasters to provide a high quality digital audio signal
    and, if so, what minimum bandwidth should be required for this
    purpose. We also sought comment on the amount of capacity necessary
    to allow radio stations to broadcast a high quality digital signal
    while permitting the introduction of new datacasting and audio
    services.[^51]

31. iBiquity supports the use of the IBOC system to improve audio
    quality. It believes, however, that market forces should be allowed
    to determine the optimal quality levels of the IBOC system. iBiquity
    argues that the Commission should not establish minimum quality
    requirements, but rather should allow radio stations to make their
    own determination of the appropriate level of audio quality for
    their particular listeners.[^52] NAB states that, at this early
    point in the digital radio transition, it is impossible to conclude
    with any measure of certainty the number of bits necessary to
    support a good quality main audio signal or how many secondary audio
    streams an IBOC radio station can transmit without degrading audio
    quality.[^53] Cox Radio adds that any restrictions contemplated by
    the Commission may become obsolete soon after they are adopted.[^54]

32. As discussed above, we decline to require broadcasters to dedicate a
    minimum level of digital bandwidth to provide a high quality digital
    signal. Instead, we leave the decision as to the quality of the
    signal provided to the discretion of the radio station licensee,
    subject to the comparable signal obligation discussed earlier.[^55]
    The IBOC system allows stations to offer the public high quality
    audio, as well as a broad variety of other innovative services. We
    believe that we should provide broadcasters with the freedom to
    innovate and respond to the marketplace in developing not only the
    mix of services, but also the quality of the audio they will offer
    the public.

#### Multicasting

33. The IBOC FM DAB system permits an FM radio station to broadcast
    multiple audio programming services within its assigned channel. As
    AM IBOC operation develops, iBiquity plans to introduce the option
    to split the digital AM bitstream into two channels. In order to
    provide multiple digital programming streams, a radio station must
    reduce the audio bit rate of its main channel broadcasts or use the
    extended hybrid mode to obtain additional capacity that can be
    devoted to a lower bit rate supplemental audio channel. Testing
    conducted by NPR established the viability of this functionality and
    also demonstrated that the supplemental channel will have coverage
    equivalent to the coverage of the main channel audio signal.[^56]
    Due in part to IBOC system design constraints, however, any
    supplemental audio services will not be able to take advantage of
    the blend function available to the main channel audio. The blend
    function enhances rapid tuning for the main channel digital signal
    and provides an analog backup signal in the event the main channel
    audio signal is lost. Therefore, any supplemental channel will
    require several seconds for tuning and will experience muting of the
    audio in the event of signal loss.[^57]

34. In the *DAB FNPRM*, we asked how the availability of additional
    audio streams can further our diversity goals, particularly for
    people with disabilities and minority or underserved segments of the
    community. We tentatively concluded that adopting DAB service rules
    that encourage more audio streams would promote program diversity,
    and that, once the Commission adopts a policy in this area, radio
    stations would no longer need to obtain experimental authority to
    broadcast multiple digital programming streams.[^58]

35. Generally, commenters urged the Commission to authorize multicasting
    on a permanent basis, and at the same time, asked us to avoid
    excessive regulation that would disadvantage any new type of digital
    service.[^59] Specifically, commenters emphasized the benefits of
    multiple digital audio channels and how that IBOC feature will
    ensure the continuing viability of radio reading services[^60] as
    well as enhance the ability of broadcasters to offer more niche
    programming and public affairs broadcasts.[^61]

36. The IBOC system makes it possible for FM radio stations to air
    additional streams of traditional radio programming (*e.g.*, music,
    news, and sports), public safety services (*e.g.*, national security
    announcements), assisted living services (*e.g*., radio reading
    services), non-English language programming, and news services to
    underserved populations.[^62] Many stations commented that
    multicasting will foster the expansion of local public affairs
    programming generally[^63] and programming serving the Latino,
    Asian, and other communities of common cultural interest, in
    particular.[^64] A number of such stations comment that they will
    use their digital capacity to broadcast more foreign language
    services.[^65] Indeed, a large number of NCE stations filed comments
    specifically stating that the following program services are likely
    to emerge: (1) special programming for English as a Second Language
    ("ESL") listeners; (2) native American programming;[^66] (3) public
    affairs programming, such as school board, civic and local
    government meetings;[^67] (4) youth, young adult and student
    productions;[^68] (5) reading services for the blind;[^69] (6)
    homeland security/public safety programming;[^70] (7) arts and
    culture programming;[^71] (8) breaking news/special news
    events/emergency alerts;[^72] (9) international news coverage;[^73]
    and (10) educational/children's programming.[^74] NPR has announced
    that it will offer five music services for multicast streams on
    affiliated public radio stations.[^75] In addition, iBiquity reports
    that commercial radio broadcasters, including Infinity, Capitol
    Broadcasting, and Greater Media have all launched new multicast
    digital radio streams with different formats in the summer of
    2005.[^76]

37. We will permit radio stations to provide multiple audio streams of
    digital programming without the need for individual station approval
    by the Commission.[^77] We believe that radio stations can best
    stimulate consumers' interest in digital audio services if they are
    able to offer the programs that are the most attractive to their
    communities. Further, allowing radio stations the flexibility to
    provide multicast services will allow them to offer a mix of
    services that can promote increased consumer acceptance of DAB,
    which, in turn, will likely speed the conversion process.
    Additionally, diversity of programming services may result from
    multicasting and provide programming to unserved and underserved
    segments of the population. We strongly encourage digital audio
    broadcasters to use their additional channels for local civic and
    public affairs programming and programming that serves minorities,
    underserved populations, and non-English speaking communities.

38. Mt. Wilson Broadcasters opposes Commission action authorizing
    multicasting, at least at the present time, arguing that "splitting
    the channel" will derogate the service provided by FM radio
    stations.[^78] NPR asserts that Mt. Wilson Broadcasters is
    misinformed about the purposes of DAB, the technical feasibility of
    multicasting, and the competitive consequences of authorizing
    full-power broadcast stations to broadcast multiple audio channels.
    We find that multicasting will not derogate the service as Mt.
    Wilson argues. An FM station commencing DAB operations will have
    approximately the same geographic reach for its digital signal as
    for its analog signal. Moreover, splitting the FM signal into
    multiple digital streams will not harm listeners in any manner. As
    noted above, a licensee must provide a broadcast stream at least
    equivalent in quality to its existing analog service. In fact, an FM
    station operating a digital service will be able to provide more
    services than it could with only its analog signal. Accordingly we
    perceive no derogation of the type forecast by Mt. Wilson
    Broadcasters.

39. [Time Brokering.]{.underline} In the *DAB FNPRM*, we sought comment
    on the extent, if any, to which we should permit radio stations to
    lease unused or excess bandwidth to unaffiliated audio programmers.
    In this context, we noted that an unaffiliated entity may schedule
    the programming output of a particular digital audio stream for a
    period of time under a contract with the licensee. We stated that
    radio stations may benefit from leasing unused or excess air-time
    because they would have additional funds to invest in new
    programming, which, in turn, would benefit the public. We asked
    whether our diversity goals will be furthered if we allow
    independent programmers to lease excess capacity from broadcast
    licensees.[^79]

40. We will permit radio stations to enter into time brokerage
    agreements[^80] for their digital bandwidth. Because these
    agreements are essentially leasing arrangements, they achieve
    benefits similar to those achieved through leasing arrangements. The
    Commission has for many years permitted brokering of FM subcarriers
    and excess digital television bandwidth. [^81] Moreover, we permit
    stations to enter into time brokerage agreements on their main
    broadcast channels. Subject to our attribution rules, as noted
    below, broadcasters will have the flexibility in structuring
    business arrangements and attracting capital to make DAB a success.
    We agree with the SBAs that the adoption of this policy will allow
    licensees to recoup some of the costs associated with the digital
    conversion, and to increase outlet diversity. [^82] We strongly
    encourage digital audio broadcasters to enter in such agreements
    with "eligible entities,"[^83] which often include businesses owned
    by women and minorities. Moreover, the brokering of individual
    digital streams will provide a means to overcome some financial
    impediments to getting involved in broadcasting and there is a
    potential for new market entrants to take advantage of such
    arrangements. Whatever the agreement, it is the licensee who remains
    responsible for ensuring the fulfillment of all obligations
    incumbent upon a broadcast licensee, including ultimate control over
    program material aired on its station's facilities.

41. In the *DAB FNPRM*, we also asked how Section 310(d) of the
    Act,[^84] regarding transfers of control, should apply to these
    situations as well as how the Commission's broadcast ownership
    limits and attribution rules would be affected if an unaffiliated
    programmer, that is also the licensee of another station in the same
    market, leases one of the additional audio streams. Moreover, we
    asked whether there should be an overall limit to the amount of
    programming time a particular radio station can broker or lease to
    others.[^85]

42. A number of commenters raise issues regarding the interplay between
    multiple audio streams, brokering, and ownership issues.[^86]
    Specifically, PIC argues, and we agree, that a licensee owning the
    maximum permissible number of stations in a particular market should
    not be allowed to acquire additional broadcast streams through time
    brokering agreements.[^87] Under the Commission's established
    policies for attribution of such agreements, we count the brokered
    station toward the brokering licensee\'s permissible ownership
    totals under the local broadcast ownership rules. Where an entity
    owns or has an attributable interest in one or more stations in a
    local radio market, time brokering of another station in that market
    for more than 15 percent of the brokered station\'s broadcast time
    per week will result in counting the brokered station toward the
    brokering licensee\'s ownership caps.[^88] We clarify that, in the
    multicast context, a station owner who programs more than 15 percent
    of the total weekly hours broadcast on a digital audio stream of
    another station in the market will be considered to have an
    attributable interest in the brokered station. The interest
    attributable to a station owner in such circumstances is equivalent
    to the percentage of total broadcast time that the stream which is
    attributable to the station owner constitutes. Under a time
    brokering agreement, licensees must ensure that they maintain full,
    effective, and ultimate control over all material aired on their
    stations. Therefore, time brokering agreements do not raise transfer
    of control issues under Section 310(d) of the Act.

#### Datacasting

43. In the analog context, all FM stations are authorized to transmit
    secondary services via an automatic subsidiary communications
    authorization ("SCA") under Section 73.295 of the Commission's
    rules. Subsidiary communication services are those transmitted on a
    subcarrier within the FM baseband signal, not including services
    that enhance the main program broadcast service or exclusively
    relate to station operations. Subsidiary communications include, but
    are not limited to, services such as radio reading services, utility
    load management, market and financial data and news, paging and
    calling, traffic control signal switching, bilingual television
    audio, and point to point or multipoint messages.[^89] Some FM
    broadcasters currently provide emergency alert system notifications
    and paging functions under SCA authorization.

44. Section 73.593 of the Commission's rules pertains to subsidiary
    communications services broadcast by NCE FM radio stations. Under
    our rules, the licensee of an NCE FM station is not required to use
    its subcarrier capacity, but if it chooses to do so, it is governed
    by the SCA rules for commercial FM stations regarding the types of
    permissible subcarrier uses and the manner in which subcarrier
    operations are conducted. A significant difference from the
    commercial FM SCA rules, however, is the requirement that the
    remunerative use of an NCE FM station\'s subcarrier capacity not be
    detrimental to the provision of existing or potential radio reading
    services for the blind or otherwise inconsistent with its public
    broadcasting responsibilities.[^90]

45. Similarly, Section 73.127 of the Commission's rules permits AM
    broadcast stations to use their AM carriers to transmit signals not
    audible on ordinary consumer receivers for both broadcast and
    non-broadcast purposes.[^91] A station's AM carrier service
    authorization may not be retained or transferred in any manner
    separate from the station\'s license. The licensee must establish
    that the broadcast operation is in the public interest wholly apart
    from the subsidiary communications services provided.[^92] For both
    AM and FM services, the licensee must retain control over all
    material transmitted in a broadcast mode via the station\'s
    facilities and has the right to reject any material that it deems
    inappropriate or undesirable.[^93]

46. iBiquity, in a partnership with broadcasters and equipment
    manufacturers, has developed IBOC data services for terrestrial
    radio stations. The IBOC system permits radio stations to offer
    varied and robust datacasting applications. Using an established
    standard ID3 format,[^94] information services can be used to
    provide listeners with song, CD title, and artist information. In
    addition, information and host profiles will complement
    advertisements and talk radio formats. Synchronized multimedia
    integration language ('SMIL"), a protocol used by iBiquity as the
    foundation for advanced application services ("AAS"), allows for the
    creation and delivery of new data services in the future.[^95] Some
    possible commercial applications envisioned by iBiquity include: (1)
    enhanced information services such as weather and traffic alerts
    delivered to DAB receivers as a text and/or audio format; (2)
    enhanced advertising services;[^96] (3) listener controlled main
    audio services providing the ability to pause, store, fast-forward,
    index, and replay audio programming via an integrated program guide
    with simplified and standard user interface options; and (4)
    supplementary data delivery that will spur the introduction of
    automatic driving assistance applications, navigation and rear-seat
    entertainment programming.[^97] We sought comment on whether we
    should permit radio stations to distribute any and all types of
    datacasting services. We also sought comment on what data services
    digital noncommercial educational stations should be permitted to
    offer.[^98]

47. iBiquity urges the Commission to authorize datacasting services and
    to include sufficient flexibility in the datacasting authorization
    to promote innovation in this area. iBiquity states that there is
    tremendous opportunity for the development of low-cost innovative
    datacasting services. iBiquity submits that the greater capacity and
    reliability of data services based on the IBOC system will help
    ensure that data services are introduced. It suggests that promotion
    of datacasting will help introduce new services to the public and
    will also provide added value for consumers who invest in IBOC
    receivers.[^99] NAB similarly asserts that datacasting services are
    still in the nascent stage, and that the Commission's main goal at
    this time should be to encourage and enable broadcasters to innovate
    and experiment with these aspects of digital radio. NAB maintains
    that providing broadcasters with flexibility in this area will
    expedite the emergence of DAB.[^100] Bloomberg states that the
    Commission must not unnecessarily limit the ability of the DAB
    platform to carry program-associated data or other additional,
    innovative data services. It argues that the best way to encourage
    investment, and thereby spur terrestrial radio broadcasters to make
    the conversion to DAB, is to provide broadcasters with the utmost
    flexibility to develop new digital applications.[^101] The SBAs
    state that the Commission should permit licensees to provide for
    datacasting, within the constraints of the IBOC technical standards,
    mainly because it would enhance the multiplicity of information
    sources.[^102] NPR states that the opportunity to offer datacasting
    services will motivate stations to develop new services beyond what
    is available today. It expects stations to use their technical
    capabilities to provide homeland security-related services,
    addressing local, regional, or national events and emergencies, and
    provide expanded weather alerts, traffic safety, and other public
    safety services.[^103]

48. Consistent with our decision with regard to audio multicasting
    services, we conclude that permitting broadcast licensees
    flexibility with regard to the provision of datacasting services is
    in the public interest. We will permit radio stations to provide any
    type of digital datacasting service, consistent with existing
    broadcast policies and rules applicable to analog SCA services, as
    long as it does not derogate the mandated stream of free audio
    programming. Our aim is to promote innovation and experimentation
    that will lead to applications that will serve the public, such as
    song and artist information as well as enhanced news, weather, and
    emergency updates. We note that, for reasons discussed *infra*, we
    will currently only allow datacasting that is subscription pursuant
    to an experimental authorization granted by the Commission.

### Ancillary Subscription Services

49. Radio stations may wish to offer certain digital audio or data
    content under a subscription model. In this context, ancillary
    subscription services may be available for a fee or the listener may
    simply need to enter a code to access the service.[^104] In the *DAB
    FNPRM*, we sought comment on whether we should permit ancillary
    subscription services.[^105] One proposal offered in the *DAB FNPRM*
    was to permit ancillary subscription services as long as they do not
    derogate the free services a radio station broadcasts. We also asked
    whether we should impose spectrum fees for that portion of digital
    bandwidth used for ancillary subscription services. Commenters
    generally urged the Commission to permit ancillary subscription
    services,[^106] but argued against the imposition of fees associated
    with the offering of such services.[^107] Nevertheless, we remain
    concerned that pay services, left unrestricted, could overwhelm free
    over-the-air services, to the detriment of the listening public. We
    expect terrestrial radio service to remain a free over-the-air
    service and, therefore, the amount of capacity devoted to ancillary
    subscription services must be limited. We thus seek further comment
    on ancillary subscription service issues in a *Second Further Notice
    of Proposed Rulemaking*, found below. Until this *Rulemaking* is
    completed and a determination is made regarding assessment of the
    five percent fee, discussed *infra*, we will only allow ancillary
    subscription services pursuant to an experimental authorization
    granted by the Commission. We would grant such authorizations for
    uses that serve the public interest, including current subcarrier
    services like radio reading services.

### Noncommercial Educational Stations

50. NCE radio stations face unique opportunities and challenges as they
    move to implement DAB. The Act states that a "noncommercial
    educational broadcast station" must be "owned and operated by a
    public agency or nonprofit private foundation, cooperation, or
    association" or "owned and operated by a municipality and which
    transmits only noncommercial programs for educational
    purposes."[^108] In 1981, Congress amended the Act to give NCE
    stations more flexibility to generate funds for their
    operations.[^109] As amended, Section 399B of the Act permits NCE
    stations to provide facilities and services in exchange for
    remuneration as long as those uses do not interfere with the
    station's "provision of public telecommunications services."[^110]
    Section 399B, however, does not permit NCE stations to make their
    facilities "available to any person for the broadcasting of any
    advertisement."[^111] Section 73.503 of the Commission's rules
    addresses the licensing requirements and service of NCE FM stations.
    Under our rules, an NCE FM broadcast station will be licensed only
    to a nonprofit educational organization and upon showing that the
    station will be used for the advancement of an educational
    program.[^112] Although the Commission does not reserve frequencies
    for NCE use in the AM service, and thus has not codified
    noncommercial eligibility rules for this service, the Commission has
    treated AM stations that satisfy the NCE FM eligibility rules as
    noncommercial AM stations.[^113] Under Section 73.621 of the
    Commission\'s rules, public television stations are required to
    furnish primarily an educational as well as a nonprofit and
    noncommercial broadcast service.[^114]

51. In 2001, the Commission concluded that an NCE television licensee
    must use a substantial majority of its digital television capacity
    for nonprofit, noncommercial, educational broadcast services.[^115]
    In addition, the Commission held that the statutory prohibition
    against broadcasting of advertising on NCE television stations
    applies to broadcast programming streams provided by NCE licensees,
    but does not apply to any ancillary or supplementary services
    presented on their excess DTV channels that do not constitute
    broadcasting.[^116] In *[Office of Communication, Inc. of United
    Church of Christ v.
    F.C.C.](http://pacer.cadc.uscourts.gov/docs/common/opinions/200305/02-1039a.pdf),*
    the U.S. Court of Appeals for the District of Columbia Circuit
    upheld the *DTV NCE A&S Order*.[^117] In the *DAB FNPRM*, we sought
    comment on what, if any, special rules or considerations should
    apply to NCE radio stations in light of our decision regarding NCE
    DTV stations and the D.C. Circuit's *UCC* decision. We also sought
    comment on how we can ensure NCE radio stations remain noncommercial
    in nature as the radio industry converts to DAB.[^118]

52. NPR favors a flexible use policy for NCE station digital bandwidth.
    It states that it does not expect the remunerative use of digital
    bandwidth to result in a profusion of commercial service offerings
    by NCE radio stations. NPR further states that it expects any
    subscription or other services provided by NCE stations to relate to
    each station's NCE mission. For instance, although subscription
    services are not anticipated for several generations of digital
    radio receivers, some NCE radio stations may experiment with
    offering "pledge-free," but otherwise identical, versions of their
    free over-the-air services to those listeners who financially
    support the station.[^119] NPR adds that since the authorization of
    enhanced underwriting and remunerative subcarrier services in the
    early 1980s, the ensuing diversity of revenue sources has emerged as
    the key to public radio's independence from any single revenue
    source. According to NPR, while the remunerative use of NCE station
    facilities and analog spectrum has, to date, provided only modest
    amounts of revenue, the remunerative use of digital technology will
    enable NCE stations to better weather the periodic downturns in
    corporate and foundation underwriting, membership dues, and, in the
    case of public radio, state and federal funding.[^120]

53. PIC argues that NCE radio stations, like NCE television stations,
    should be obligated to "use their entire digital capacity primarily
    for a nonprofit, noncommercial, educational broadcast service,"
    meaning a "substantial majority" of the entire digital
    capacity.[^121] PIC urges the Commission not to repeat the "error"
    it made in authorizing NCE DTV stations to offer remunerative
    services.[^122] PIC also asserts that the "over commercialization"
    resulting from remunerative activities will discourage public
    support for public broadcasting.[^123] PIC additionally claims that
    allowing NCE radio stations to offer advertising supported
    non-broadcast services violates the intent underlying the original
    reservation of spectrum and will reduce "the ratio of
    noncommercial-to-commercial programming."[^124]

54. NPR objects to PIC's suggestions, stating that NCE television
    stations are subject to a more exacting regulatory mandate to
    furnish "primarily" a non-profit and noncommercial television
    broadcast service.[^125] NCE radio stations, on the other hand, are
    licensed "for the advancement of an educational program."[^126] NPR
    notes that the Commission adopted a higher standard for NCE
    television stations because such stations use greater amounts of
    spectrum, have more extensive coverage areas, and are far fewer in
    number.[^127] NPR also asserts that requiring NCE radio stations to
    reserve a "substantial majority" of their entire digital capacity
    for a free NCE service would significantly restrict station
    flexibility to determine the appropriate mix of services, and how
    much capacity to devote to each, based on the specific needs of
    their community of service.[^128] NPR states, for example, that such
    a "substantial majority" requirement would prevent stations from
    dividing the 96 kbps bitstream into two 48 kbps service
    streams.[^129] According to NPR, a minimum quantitative requirement,
    and one requiring a "substantial majority" of the bitstream, in
    particular, would countermand the inevitable improvement in audio
    coding technology that will otherwise permit higher quality audio
    using fewer kilobits.

55. We defer consideration of the issues discussed above to a later
    date. As noted above, we have decided to further examine the
    offering of subscription services in a *Second Further Notice of
    Proposed Rulemaking*. In addition to our concern about maintaining
    the free nature of all terrestrial radio services, we wish to
    preserve the noncommercial educational nature of NCE service. We
    will address both issues after considering the comments in response
    to our *Second Further Notice of Proposed Rulemaking*. In any event,
    we hold that an NCE radio station is obligated, like its commercial
    counterpart, to provide at least one free over-the-air digital
    programming stream that is comparable to or better in audio quality
    than its analog signal.

### Low Power FM

56. In 2000, the Commission authorized the licensing of two new classes
    of FM radio stations, one operating at a maximum power of 100 watts
    and one operating at a maximum power of 10 watts.[^130] Both types
    of stations, known as low power FM ("LPFM") stations, were
    authorized in a manner that protects existing FM service. The
    Commission stated that LPFM stations would be operated on a NCE
    basis by entities that do not hold an attributable interest in any
    other broadcast station or other media subject to our broadcast
    ownership rules. The Commission established the new LPFM service to
    create new broadcasting opportunities for locally-based
    organizations to serve their communities. In the *DAB FNPRM*, we
    sought comment on the conversion of LPFM stations to digital
    operation and the potential impact of such a conversion on other
    stations.[^131]

57. iBiquity states that LPFM stations should have the option to convert
    to digital operations. It states that IBOC-based equipment can
    operate at the 100 watt power levels authorized for LPFM service.
    iBiquity asserts that in the case of 10 watt stations, however, the
    extremely low power level of those stations may make digital
    broadcasts infeasible. The IBOC system broadcasts the digital signal
    at one percent of the station's analog power level. In the case of a
    10 watt LPFM station, that digital power level would fall below the
    noise floor and would be difficult for any digital receiver to
    recover; however, this would not be the case with 100 watt LPFM
    stations. iBiquity notes that because these LPFM stations are
    required to comply with the Commission's adjacent channel
    interference restrictions, the introduction of digital broadcasts by
    these stations should not create harmful new interference.[^132]

58. We find that if an LPFM station intends to transmit in digital, and
    is technically capable of doing so, there should be no regulatory
    impediments preventing its adoption of the IBOC technology. We
    recognize that LPFM is a new service which involves non-commercial,
    community-oriented stations and that these stations have limited
    resources. We are committed to working with these stations to
    address issues regarding their transition to digital as they arise.
    We note that in 2005 the Commission released a *Second Order on
    Reconsideration and Further Notice of Proposed Rulemaking*, which
    further advanced the introduction of LPFM service in numerous areas
    across the United States.[^133] This *Second Order* addressed
    technical, operational, and ownership issues necessary for the
    further development of the service.[^134]

### Licensing Procedures 

59. Under Section 73.1695 of the Commission's rules, the Commission
    considers whether a proposed change or modification of a
    transmission standard for a broadcast station would be in the public
    interest.[^135] Sections 73.3571 and 73.3573 of the Commission's
    rules discuss the processing of AM and FM broadcast station
    applications, respectively.[^136] In the *DAB FNPRM*, we sought
    comment on what, if anything, the Commission should do to amend or
    replace these procedural requirements in the context of DAB. With
    regard to mandatory paperwork, Section 73.3500 of the Commission's
    rules lists the applications and report forms that must be filed by
    an actual or potential broadcast licensee in certain
    circumstances.[^137] In the *DAB FNPRM*, we sought comment on which
    forms and applications must be modified because of DAB.[^138] We
    find that certain changes to our licensing processes are necessary
    to accommodate DAB operations. Rather than amend the administrative
    licensing requirements and generate new forms now, however, we will
    delegate the authority to make such changes, to the extent possible,
    to the Media Bureau. This delegation permits the Bureau staff to
    make changes on an expedited basis as circumstances warrant, subject
    to Office of Management and Budget approval under the Paperwork
    Reduction Act.

## Programming and Operational Rules

### Public Interest Issues

60. The *DAB FNPRM* sought comment on a number of policies and
    requirements impacting the public interest. Such subjects as
    sponsorship identification, political advertising, and cigarette
    advertising were raised for comment.[^139] The Commission received
    extensive comment on several issues, including radio reading
    services, the emergency alert system, and station identification.
    Therefore, these subjects are discussed separately below.

### a. Public Interest Obligations {#a.-public-interest-obligations .unnumbered}

61. It is incumbent upon the Commission to ensure that broadcast radio
    and television stations serve the \"public interest, convenience and
    necessity."[^140] To ensure that broadcasters' service meets this
    high standard, both the Congress and the Commission have devised
    various program-related and operational duties that licensees must
    discharge. Broadcasters, for example, are required to air
    programming responsive to community needs and interests and have
    other service obligations.[^141] We remain committed to enforcing
    our statutory mandate to ensure that broadcasters serve the public
    interest and remind broadcasters of the importance of meeting their
    existing public interest obligations. We also encourage them to
    increase public disclosure of the ways in which they serve the
    public interest. Our current requirements, including those
    implementing specific statutory requirements, were developed for
    broadcasters who were essentially limited by technology to a single,
    analog audio programming service and minor ancillary services. The
    potential for a more flexible and dynamic use of the radio spectrum,
    as a result of IBOC, gives rise to important questions about the
    nature of program-related and operating obligations in digital
    broadcasting because the scope of those responsibilities has not
    been defined.

62. In the *DAB FNPRM*, we sought comment on how to apply such
    obligations to DAB.[^142] We also tentatively concluded that the
    conversion to DAB will not require changes to the following
    requirements: (1) Sections 312(a)(7)[^143] and 315[^144] of the Act
    and Sections 73.1940-44 of the Commission's rules---political
    broadcasting; (2) Section 507 of the Act and Section 73.4180 of the
    Commission's rules---payment disclosure;[^145] (3) Section 508 of
    the Act---prohibited contest practices;[^146] (4) Section 317 of the
    Act and Section 73.1212 of the Commission's rules---sponsorship
    identification[^147]; (5) Section 1335 of Title 15 and Section
    73.4055 of the Commission's rules---cigarette advertising;[^148]
    and (6) Section 73.1208 of the Commission's rules---broadcast of
    taped or recorded material.[^149] However, we sought comment on how
    such requirements should be applied to multicast services and
    whether the requirements apply to subscription services.[^150]

63. In its comments, PIC outlines certain areas in which the Commission
    should take action to ensure digital radio stations adequately serve
    the public interest.[^151] For example, PIC suggests that a
    broadcaster's statutory obligations should apply to all DAB streams
    (*i.e.*, free, subscription, and multicast streams).[^152] PIC also
    recommends that the Commission develop a flexible "menu" of
    additional public interest obligations and impose such obligations
    when a broadcaster chooses to implement subscription or other
    non-advertising based services.[^153] WRAL-FM suggests that all
    radio and television stations should be required to meet certain
    minimum standards of public interest performance. It states that a
    voluntary code of conduct should be adopted to encourage higher than
    minimum standards for the broadcast industry and all stations should
    be required to report quarterly on their public interest
    activities.[^154]

64. NAB states that existing public interest obligations generally
    should apply to hybrid radio stations. NAB asserts, however, that it
    is premature for the Commission to impose more specific or
    additional public interest obligations on new multicast audio
    services or on datacasting services.[^155] NAB argues that the
    proposals made by PIC lack justification, are impracticable and
    overly burdensome, and present a number of policy, statutory and
    constitutional problems.[^156] With regard to subscription services
    specifically, NAB notes that the Commission has in the past declined
    to impose traditional "broadcast type" public interest obligations
    on subscription services (including video and audio program
    services), especially when those services are in their nascent stage
    of development.[^157] In any event, NAB states that this proceeding,
    which is focused on radio stations' implementation of IBOC, is not
    the proper vehicle for rewriting the Commission's broadcast public
    interest regulations that apply to both television and radio
    stations.[^158]

65. We conclude that applying statutory and regulatory public interest
    requirements currently imposed on analog radio to digital radio is
    both necessary and the proper course of action. Specifically, the
    following requirements apply: (1) political broadcasting; (2)
    payment disclosure; (3) prohibited contest practices; (4)
    sponsorship identification; (5) cigarette advertising; and (6)
    broadcast of taped or recorded material. Further, we will impose
    these requirements on all free over-the-air digital audio
    programming streams. The application of these requirements to
    subscription services is addressed in the *Second Further Notice of
    Proposed Rulemaking*, below.

66. Additionally, radio stations operating in a digital format must
    comply with all other public interest obligations applicable to
    radio broadcasters while operating in that mode. That is, a radio
    station providing digital audio programming service analogous to the
    analog audio service subject to regulation by the Commission must
    comply with such regulations that apply to that service, unless
    otherwise specified or clarified in this *Second Report and Order*.
    The Commission's station log and public file requirements, under
    Section 73.1820 and Sections 73.3526 and 73.3527, respectively, are
    some of the rules that apply in this context. Other statutory
    requirements and Commission regulations that apply to DAB, but need
    further explanation, are discussed below. We again remind
    broadcasters of the importance of meeting their existing public
    interest obligations and encourage them to increase public
    disclosure of the ways in which they serve the public interest.

67. While we move forward and apply existing public interest obligations
    to all free digital broadcast streams, we will not adopt new "public
    interest" requirements in this *Second Report and Order*. The
    commenters have raised important and complex issues concerning how
    broadcasters' public interest obligations should be tailored to the
    new radio services made possible through digital technology. Given
    the substance and scope of the proposed requirements, we conclude
    that it is best to defer consideration of any new public interest
    obligations (of the type envisioned by PIC, for example) so that we
    can, instead, promptly establish basic operational requirements in
    this proceeding.[^159] Radio stations using IBOC DAB technology, at
    this stage in the conversion process, are generally offering basic
    hybrid service where the digital signal replicates the programming
    of the analog signal. Thus, for the immediate future, we do not
    expect novel public interest problems to arise in this context.

68. The Commission will issue an annual report as to how the new digital
    radio services are being rolled out, whether multicast streams are
    being offered, and the extent to which programming on digital radio
    and on the multicast streams are fostering the services described in
    paragraph 37. We will obtain data for the report by periodically
    surveying digital audio broadcasters as to the status of their new
    services.

### b. Station Identification {#b.-station-identification .unnumbered}

69. Under Section 73.1201 of the Commission's rules, broadcast station
    identification announcements must be made at the beginning and end
    of each time of operation, and as close to the hour as feasible, at
    a natural break in programming. Official station identification
    consists of the station\'s call letters immediately followed by the
    community or communities specified in its license as the station\'s
    location. The name of the licensee or the station\'s frequency or
    channel number, or both, as stated on the station\'s license may be
    inserted between the call letters and station location.[^160] In the
    *DAB FNPRM*, we sought comment on whether the station identification
    rules should apply to all digital audio content of a radio
    station.[^161] Specifically, we sought comment on how a station
    should identify audio channels other than the main channel.[^162] We
    asked whether there should be separate call letters for separate
    streams. We also sought comment on how any proposed rule should
    differ, if at all, for AM radio stations.[^163]

70. PIC states that clearly understandable station identification rules,
    differentiating between multiple channels offered by the same
    licensee, and identifying the owner and location of the owner of the
    station, are necessary to allow the public to identify the source of
    the programming. It further states that the Commission should expand
    the call letters that a station uses to identify itself to allow
    listeners to easily remember which station and channel they are
    tuned.[^164] PIC adds that call letters are an important mechanism
    the public and the Commission use to identify particular broadcast
    streams, especially in the indecency context.[^165]

71. iBiquity argues against any proposal to create a separate station
    identification requirement associated with digital broadcasts.
    iBiquity argues that because hybrid radio stations (that do not
    multicast) broadcast identical programming throughout the day, there
    is no need for additional identification requirements. iBiquity
    asserts that broadcasting a separate digital call sign would require
    significant system and equipment modifications that will deter
    conversions to digital broadcasts.[^166]

72. The SBAs state that multicast programming streams should not be
    subject to station identification requirements. They argue that such
    requirements are unnecessary for listener recognition and Commission
    enforcement efforts. A radio station will voluntarily identify its
    channel position to listeners to develop market recognition.
    According to the SBAs, stations now identify themselves, their call
    sign, identifier slogan, community of license and dial position
    (*e.g*., "Z105.3") far more often than the Commission's rules
    require. They assert that further station identification
    requirements, which reduce broadcast flexibility, are not needed to
    ensure listener recognition of particular broadcast channels.
    Additionally, with new digital technologies, the call letters of the
    licensee can be embedded into the bit-stream of a channel. Thus, the
    Commission will have a means to easily identify a station and
    monitor its compliance with broadcast rules. The SBAs posit that DAB
    technology permits a visual identification on all receivers (through
    an identification included in the transmitted bitstream),
    eliminating the need for an hourly aural identification.[^167]

73. We find that station identification requirements for DAB stations
    are necessary to facilitate public participation in the regulatory
    process, a key element in the Commission's supervision of broadcast
    licensees. Accordingly, we will implement the following regulations.
    First, both AM and FM stations with DAB operations will be required
    to make station identification announcements at the beginning and
    end of each time of operation, as well as hourly, for each
    programming stream. Second, proper identification consists of the
    station's call letters followed by the particular program stream
    being broadcast and the community or communities specified in the
    station's license as the station's location. Stations may insert
    between the call letters and the station's community of license the
    station's frequency, channel number, name of the licensee, and/or
    the name of the network, at their discretion. Third, a radio station
    operating in DAB hybrid mode must identify its digital signal,
    including any free multicast audio programming streams, in a manner
    that appropriately alerts its audience to the fact that it is
    listening to a digital audio broadcast. This requirement can be met
    through auditory means (*i.e*., voiceovers), textual means (*i.e*.,
    datacast text appearing on the receiver's readout), or any other
    reasonable means of communication. As stations convert to a digital
    format and elect to provide multicast programming, thereby
    increasing the number of program streams potentially available to
    the public, clear identification of the station providing the
    programming, as well as the particular program stream being
    broadcast, becomes increasingly important, both for listeners and
    for stations themselves. These policies and rules are similar to
    those adopted by the Commission for DTV stations[^168] and support
    our goal of applying similar rules to similarly situated
    broadcasters.

### c. Emergency Alert System  {#c.-emergency-alert-system .unnumbered}

74. The current emergency alert system ("EAS") requirements are codified
    in part 11 of the Commission's rules and, *inter alia*, mandates the
    delivery of a "Presidential message" in the case of a national
    emergency.[^169] Along with its primary role as a national public
    warning system, EAS and other emergency notification mechanisms, are
    part of an overall public alert and warning system, over which the
    Federal Emergency Management Agency ("FEMA") exercises jurisdiction.
    EAS use as part of such a public warning system at the state and
    local levels, while encouraged, is merely voluntary.[^170]

75. Section 73.1250 of the Commission's rules further specifies the
    substance and scope of the emergency information being broadcast.
    Under our rules, and if requested by government officials, a station
    may, at its discretion, and without further Commission
    authorization, transmit emergency point-to-point messages for the
    purpose of requesting or dispatching aid and assisting in rescue
    operations. If EAS is activated for a national emergency while a
    local area or state emergency operation is in progress, the national
    level EAS operation must take precedence.[^171] AM stations may,
    without further Commission authorization, use their full daytime
    facilities during nighttime hours to broadcast emergency information
    when necessary for the safety of life and property, in dangerous
    conditions of a general nature, and when adequate advance warning
    cannot be given with the facilities authorized.[^172] All activities
    must be conducted on a noncommercial basis, but recorded music may
    be used to the extent necessary to provide program continuity. In
    the *DAB FNPRM*, we tentatively concluded that Section 73.1250
    should apply to all audio streams broadcast by a radio station
    because the emergency information mandate can only be fulfilled if
    it is broadly applied.[^173]

76. The SBAs state that it is in the public interest to extend the
    emergency alert system to all audio streams broadcast by a radio
    station.[^174] NPR states that each free over-the-air audio program
    service should participate in the EAS system. Using relatively
    inexpensive distribution amplifiers and switching devices, NPR
    states that radio stations should be able to carry EAS or other
    emergency information virtually instantaneously via each free
    over-the-air program channel. However, NPR does not believe stations
    should be compelled to offer additional, unspecified \"emergency\"
    or other services as a condition to offering any data
    services.[^175] NAB argues that any questions regarding EAS
    equipment requirements for DAB should be set aside until a later
    date.[^176]

77. Subsequent to the release of the *DAB FNPRM*, the Commission adopted
    a *Notice of Proposed Rulemaking* seeking comment on rule changes
    for the emergency alert system.[^177] In that proceeding, the
    Commission asked how the EAS system can be improved to be a more
    effective mechanism for warning the American public of an
    emergency.[^178] The Commission specifically sought comment on IBOC
    DAB and how the EAS system should apply to additional digital
    multicast programming streams.[^179] In November 2005, we revised
    our Part 11 EAS rules to apply to all radio stations operating in a
    digital mode and required such stations to air all national EAS
    messages on all audio streams, including subscription services. We
    found that all listeners should be informed of critical emergency
    information regardless of which audio stream they are listening to.
    We also clarified that if DAB stations choose to participate in
    state and local EAS activations, they must comply with Part 11. The
    Commission stated that such rules will become effective on December
    31, 2006.[^180]

78. With regard to Section 73.1250, we note that a digital simulcast of
    an analog radio signal will, by virtue of the IBOC system design, be
    transmitting EAS information. Thus, listeners of the free digital
    simulcast will be able to access important emergency information per
    the existing requirements. As for multicast digital audio
    programming streams, we will apply the mandates of Section 73.1250
    to all DAB audio streams in accordance with the revisions made to
    our Part 11 requirements. The public benefit of the Commission's
    emergency information requirements can only be realized if the rule
    is applied in this manner.

### d. Radio Reading Services {#d.-radio-reading-services .unnumbered}

79. Radio reading services for the blind ("RRS") have been one of the
    critical public interest services provided by radio stations and
    others across the country. Radio reading services are conducted by
    nonprofit organizations that read printed materials over electronic
    media for persons who are visually impaired. Radio reading services
    operate on FM radio subcarrier channels, usually under a leasing
    arrangement. Alternatively, RRS use cable television systems, a
    television station's second audio program ("SAP"), or the main
    channel of an AM or FM radio station.[^181] RRS represents the most
    frequent use of subcarrier channels on noncommercial stations.[^182]
    In 1983, the Commission held that public radio stations, subject to
    Section 399B of the Act, using subcarriers for remunerative
    activities must ensure that neither existing nor potential RRS are
    diminished in quality or quantity by the pursuit of commercial
    subcarrier undertakings.[^183] The Commission held that a station
    using one of its subcarriers for commercial purposes would be
    obliged to accommodate RRS on its other subchannel to ensure the
    availability of alternative subchannel capacity for such
    services.[^184] In the *DAB R&O*, we raised concerns about the level
    of interference to analog SCA services and its potential impact on
    RRS.[^185] In the *DAB FNPRM*, we sought further comment on measures
    to protect established SCA services from interference.[^186]

80. [Protecting Analog Radio Reading Services From
    Interference.]{.underline} According to iBiquity, previous field
    tests presented to the Commission and the NRSC demonstrate that,
    except in limited circumstances, DAB stations operating on
    second-adjacent channels will not cause harmful interference to
    analog radio reading services and other SCA services.[^187] iBiquity
    asserts that since the scaling of the HDC codec to obtain additional
    capacity for multicasting or datacasting only impacts the audio of
    the main channel signal, and not the bandwidth occupancy, it cannot
    change the interference potential from the digital signal. Although
    using the extended hybrid mode increases the bandwidth occupancy, it
    extends inward toward the host signal rather than outward toward
    adjacent channel stations. Thus, iBiquity argues the use of the
    extended hybrid mode cannot increase interference to adjacent
    channel SCA signals. iBiquity states that although the extended
    hybrid mode could possibly increase the potential for interference
    to the host station's existing analog SCA services, the host station
    has the ability to address this situation.[^188]

81. In 2002, NPR commissioned a study to estimate the number of
    listeners potentially affected by additional interference from IBOC
    in the top 16 radio markets. The results show that, on average,
    additional interference from IBOC could affect 2.6 percent of
    eligible radio reading service receivers within an FM station's
    service area.[^189] Harris points out that the NPR study used
    mathematically averaged receiver performance data to estimate
    interference potential in the top 16 radio markets.[^190] Harris
    emphasizes that actual interference is not widespread, and that any
    possible degradation to radio reading services may be ameliorated,
    at least in part, through antenna alignment, substitution of a
    higher quality analog receiver, or carrying the programming on a
    digital SCA channel. Harris states that it will be testing the use
    of the extended hybrid digital system to provide for a digital
    transition of RRS. Harris recommends that the Commission adopt and
    enforce the revised FM RF mask proposed by iBiquity to further
    mitigate interference to SCA services, other digital services, and
    second adjacent channel analog FM services.[^191]

82. These RR Services provide tremendous value and we wish to encourage
    their development in a digital environment. Based on the record, it
    does not appear that interference generated by IBOC is likely to
    cause significant harm to analog SCA reading services. Nevertheless,
    the Commission staff will act on complaints in the rare cases in
    which interference is shown to cause a problem. In the meantime, we
    encourage NPR and other parties to continue independent testing that
    will provide us with data on possible interference in particular
    circumstances in specific areas. We will defer considering Harris'
    recommendation on the RF mask until such test results are made
    available.

83. [Digital Radio Reading Services.]{.underline} IAAIS urges the
    Commission to adopt rules requiring digital radio stations to carry
    digital RRS.[^192] IAAIS essentially argues that before any radio
    station offers income generating secondary audio streams, it should
    be required to first provide digital bandwidth for RRS.[^193] IAAIS
    suggests that digital RRS will be best accommodated on the extended
    hybrid mode where the IBOC codec can easily process human
    speech.[^194] iBiquity opposes IAAIS's request that the Commission
    require digital radio stations to offer capacity for RRS.[^195] NPR
    asserts that it is inappropriate to consider IAAIS's proposals at
    this stage of the DAB conversion process because more testing of
    digital RRS needs to be undertaken before regulations are
    considered.[^196] We decline to impose a digital RRS requirement, or
    place conditions of the type suggested by IAAIS, on radio stations
    at this time. The Commission does not require radio stations to
    offer analog RRS and there is no substantial evidence in the record
    supporting enhanced RRS requirements for DAB. Moreover, we find that
    any type of RRS requirement would run counter to our flexible
    bandwidth policy. However, we reiterate our recognition of the value
    of such services and encourage their deployment in the digital
    environment. We also decline to adopt new policies addressing the
    interplay between remunerative services offered by NCEs and the
    availability of RRS, similar to the requirements in Section 73.593
    of the Commission's rules, because the business and programming
    decisions of noncommercial stations are not yet known. This will be
    an issue addressed in a DAB periodic review in the future.

84. [Receiver Requirements.]{.underline} IAAIS urges the Commission to
    require all digital receivers to include RRS capabilities. In
    addition, IAAIS asks the Commission to require tactile controls and
    other accessibility features to be built into every digital
    receiver.[^197] iBiquity opposes new requirements for radio
    equipment manufacturers, arguing that it would impair the
    development of DAB.[^198] It further asserts that the imposition of
    new and potentially expensive regulations on the design and features
    of digital receivers will create a strong disincentive for
    manufacturers to introduce digital devices, particularly if these
    accessibility features would require significant development work or
    redesign of radio receivers. According to iBiquity, these
    regulations would not only increase the costs of digital radio for
    consumers, but it also would slow the introduction of digital
    receivers and the IBOC transition.

85. Our goal is to see RRS services deployed. As noted below, voluntary
    industry efforts in this regard are continuing and show substantial
    promise. In addition, reception devices for analog RRS are available
    as stand-alone equipment for those with visual impairments. Such
    consumers may subscribe to RRS services and be able to obtain an RRS
    receiver if they so desire. Consumer electronics manufacturers,
    however, are under no obligation to build analog audio receivers
    with RRS capabilities nor should they be required to manufacture
    IBOC receivers with RRS functionalities. IAAIS's proposed mandates
    would make it more costly to produce DAB receivers, which in turn,
    would make it more expensive for consumers to purchase equipment. We
    note that there is no express statutory provision requiring such
    capabilities. IAAIS relies on Section 255 of the Telecommunications
    Act of 1996 as the basis for some of its requests.[^199] This
    section codifies the responsibilities of telecommunications
    manufacturers and service providers to meet the needs of the
    disabled. This section, however, applies to entities regulated under
    Title II of the Act. It does not impose any requirements on
    broadcasters regulated under Title III of the Act or on
    manufacturers of broadcast -related equipment.[^200] Moreover, we
    recognize that any regulation of broadcast reception equipment is
    subject to the limitations identified in recent court
    precedent.[^201] Although we will not require RRS capability at this
    time, we do not rule out the possibility of revisiting the issue in
    the future should the need arise.

86. [Voluntary Industry Efforts.]{.underline} iBiquity states that it
    has been working with the IAAIS to ensure that radio reading
    services are accommodated as radio stations convert to
    digital.[^202] NPR states that it is exploring the use of the
    extended hybrid spectrum for the digital transmission of radio
    reading services.[^203] Pursuant to a Corporation for Public
    Broadcasting grant, NPR conducted full perceptual testing of the
    latest low- and very low-bit rate digital audio coders that may be
    used for radio reading services audio.[^204] NPR plans additional
    tests to measure the coverage capabilities of extended hybrid
    operation. With predictions that the prevalence of visual
    disabilities will increase markedly during the next 20 years as the
    US population ages, NPR expects NCE stations to continue leading the
    way in offering assisted living services, including radio reading
    services for the "print-impaired."[^205] We are encouraged by the
    voluntary steps taken by iBiquity and NPR, so far. We urge these
    parties to work with IAAIS to forge a resolution that would benefit
    all parties involved.

### Operating Hours

87. In the *DAB FNPRM*, we asked how the conversion to DAB would affect
    the "minimum hours of operation" requirement in Sections 73.1740 and
    73.561[^206] Under the relevant rules, AM and FM commercial stations
    are required to operate two-thirds of the total hours they are
    authorized to operate between 6 a.m. and 6 p.m. local time and
    two-thirds of the total hours they are authorized to operate between
    6 p.m. and midnight, local time, each day of the week except Sunday.
    NCE FM stations are required to operate at least 36 hours per week,
    consisting of 5 hours of operation per day on at least 6 days per
    week.[^207] The SBAs state that multicasting changes the way radio
    stations operate. It states, for example, that the Commission may
    want to support multicast streams, which do not operate two-thirds
    of the total hours they are authorized to operate between 6 a.m. and
    6 p.m. and two-thirds of the total hours they are authorized to
    operate between 6 p.m. and midnight, in order to promote more
    digital multicasting on the air.[^208] We find merit in the SBAs
    arguments and will permit radio stations to set their own schedule
    for DAB hybrid mode broadcasts as well as additional multicast
    streams at this stage of the DAB conversion process. We note that
    multicasting is at the discretion of the licensee stations;
    therefore they should be allowed to schedule separate streams as
    they wish. This flexible policy will encourage more radio stations
    to experiment with new programming services that interest the
    public. We will revisit this issue, if necessary, in future periodic
    reviews.

### Territorial Exclusivity

88. In the *DAB FNPRM*, we sought comment on the application of Sections
    73.132 and 73.232, the territorial exclusivity rules for AM and FM
    stations.[^209] The SBAs states that changes will not be necessary
    to these requirements due to the advent of DAB.[^210] With regard to
    these requirements, we note that the rules apply to the licensees
    themselves and not the content being broadcast. Due to the expansive
    language contained in the current requirements, and the
    pro-competition policies reflected therein, the territorial
    exclusivity rules apply to all free digital audio programming
    streams. Any novel issues that may arise from our decision here will
    be addressed on a case-by-case basis.

## Technical Rules

### AM Nighttime Operation

89. In the *DAB R&O*, we declined to authorize nighttime IBOC operation
    by AM stations because there were insufficient test results in the
    record to support that action. In 2004, NAB submitted its analysis
    of AM nighttime IBOC tests conducted by iBiquity and recommended
    that the Commission "extend the current interim authorization for
    IBOC service to permit nighttime AM broadcasts."[^211] On April 14,
    2004, the Commission issued a Public Notice seeking comments on the
    NAB recommendations.[^212] Most of the comments received from
    broadcasters, such as the SBAs, support NAB's recommendation that
    the Commission extend current interim authorizations of IBOC service
    to nighttime AM broadcasts.[^213] Several other commenters, however,
    object to nighttime AM IBOC operations citing the potential for
    increased interference due to nighttime AM skywave
    propagation.[^214]

90. On balance, we find that the benefits of full-time IBOC operation by
    AM stations outweigh the slightly increased risk of interference.
    The studies performed by iBiquity and analyzed by NAB indicate that
    the greatest potential for interference occurs at the extremities of
    the nighttime coverage area of the desired station, primarily at
    locations where substantial interference from existing analog
    operations is already present. We do not anticipate increased
    interference within AM stations\' core service areas. Furthermore,
    the interference management procedures established in the *DAB R&O*
    provide a mechanism whereby particular instances of interference can
    be readily resolved. Therefore, we will extend the permissible hours
    of IBOC interim operation for AM stations to include all hours
    during which a given station is currently authorized for analog
    operation, subject to the notification procedures established in the
    *DAB R&O*. In order to avoid unnecessary and repetitious
    notifications, we will not require those AM stations which have
    already notified the Commission of the commencement of daytime IBOC
    operation to file any further notification; authority for nighttime
    IBOC operation is automatically conferred upon those stations by the
    action taken herein. AM stations which file IBOC notifications with
    the Commission after the effective date of this *Second Report and
    Order* will be presumed to have commenced IBOC operation for all
    hours of currently authorized analog operation, unless the
    notification states otherwise. We note that many Class D AM stations
    are authorized for nighttime secondary operation[^215] with
    extremely low operating power, in some cases as low as one watt. In
    some cases, nighttime IBOC power may be so low as to render IBOC
    operation technically infeasible. We remind licensees that nighttime
    secondary analog operation by Class D AM stations does not carry any
    minimum operating schedule requirement, and that interim IBOC
    operation is entirely voluntary for all stations at the present
    time.

### Dual Antennas

91. In the *DAB R&O*, we limited interim IBOC implementation to the
    systems that the NRSC had tested. With respect to FM antennas, the
    NRSC had tested a configuration in which the FM analog and digital
    signals were combined and fed into the same antenna. Consequently,
    FM stations implementing IBOC were initially required to use the
    single-antenna approach. Subsequent testing by NAB, however, showed
    that separate antennas could be used for the analog and digital FM
    signals within specified limits. NAB stated that the dual antenna
    approach is less costly for many FM stations, and may therefore
    encourage IBOC development. By *Public Notice,* we authorized FM
    stations to use dual antennas for IBOC pursuant to routine special
    temporary authorization (STA) procedures.[^216] We raised the issue
    of dual antennas for further comment in the *DAB FNPRM*.[^217]
    Commenters were unanimous in supporting the expansion of IBOC
    notification procedures to include dual antenna use, without the
    necessity of an STA request. We agree and accordingly authorize FM
    stations to implement IBOC without prior authority using separate
    antennas conforming to the criteria set forth in the *Dual Antennas
    Public Notice.* Stations must notify the Commission within ten days
    of the commencement of IBOC operations, consistent with the digital
    notification procedures already in place. In addition to the
    information required of all licensees initiating digital operations,
    [^218] FM licensees using dual antennas shall provide the following
    information: (1) geographic coordinates, elevation data, and license
    file number for the auxiliary antenna to be employed for digital
    transmissions; and (2) for systems employing interleaved antenna
    bays, a certification that adequate filtering and/or isolation
    equipment has been installed to prevent spurious emissions in excess
    of the limits specified in 47 C.F.R. § 73.317.

### FM Translator and Booster Stations 

92. An FM translator station is a station operated for the purpose of
    retransmitting the signals of an FM station or another FM translator
    station without significantly altering any characteristics of the
    incoming signal other than its frequency and amplitude.[^219] An FM
    booster station is a station operated for the purpose of
    retransmitting the signals of an FM station by amplifying and
    reradiating such signals without significantly altering any
    characteristics of the incoming signal other than its amplitude. In
    the *DAB FNPRM*, we solicited comment on digital issues concerning
    FM translators and boosters.[^220] Commenters discussed the
    following seven issues: (1) conversion of FM translator and booster
    stations to digital operation; (2) permissible uses of digital
    translator and booster stations; (3) use of FM translators and
    boosters to rebroadcast multiplexed audio streams; (4) use of dual
    output digital translators; (5) indefinite continuation of analog FM
    translator and booster station operation; (6) modifications of the
    currently permitted signal delivery methods for FM translators and
    boosters; and (7) requirements related to the simultaneous digital
    conversion of licensed main and FM translators and boosters. The
    latter issue garnered the most attention from interested parties,
    where most agreed that the Commission should not require
    simultaneous digital conversion of the primary station and its FM
    translators and boosters.[^221]

93. We will permit the use of digital translator and booster stations
    during interim DAB operations. However, we believe that a stronger
    record is necessary to address the complicated issues involved in
    the authorization of these facilities before adopting permanent
    rules for digital translator and booster stations.[^222] We will not
    require the simultaneous conversion of the primary station and its
    FM translators and boosters. We do not want to overburden radio
    stations with more technical requirements than necessary as they
    commence digital operations.

### TV Channel 6

94. Beginning approximately 20 years ago, NCE FM stations operating on
    channels 201 through 220 were required to protect channel 6 TV
    stations from adjacent channel interference based on the performance
    characteristics of analog TV receivers. In the *DAB FNPRM*, we
    sought comment on what, if any, rule changes are necessary to
    protect channel 6 TV stations from interference from digital radio
    operations, and if new rules are needed to protect channel 6 DTV
    stations.[^223] There are currently 58 licensed analog channel 6
    full-service TV stations and 6 licensed analog channel 6 Class A TV
    stations. There are currently no licensed or authorized channel 6
    digital TV or digital Class A TV stations.

95. NPR and Paul Delaney assert that due to the low signal strength of
    the IBOC digital signal, there is minimal potential for increased
    NCE FM interference to analog channel 6 TV stations. [^224]
    Additionally, both question the continued applicability of the
    existing TV channel 6 protection requirements in light of the
    transition to DTV where there will be few, if any, channel 6 TV
    stations, and where the use of digital receivers will provide
    increased immunity to adjacent channel FM interference. REC Networks
    concurs with NPR concerning the re-examination of the current NCE FM
    channel 6 protection requirements, but, it suggests that perhaps
    some protection of both analog and digital channel 6 TV stations may
    be appropriate for NCE FM IBOC hybrid operations.[^225]

96. We agree that the very low increase in power resulting from the
    addition of the IBOC digital signal likely will not result in any
    increased interference to analog channel 6 TV stations from NCE FM
    stations operating on FM channels 201-220, and that the DTV
    transition may render this issue moot. Therefore, no changes in
    Section 73.525 governing TV channel 6 protection are necessary at
    this time.[^226] The Commission will, however, initiate a separate
    proceeding to evaluate the existing NCE FM channel 6 TV protection
    requirements, and seek public input on their continued viability,
    following the completion of the DTV transition, a review of the
    immunity characteristics of DTV receivers, and the widespread
    deployment of DAB transmitting facilities.

### Super-powered and Short-spaced Stations 

97. Although this issue was not raised in the *DAB FNPRM*, Livingston
    Radio Company and Taxi Productions Inc. ("Livingston") urge the
    Commission to restrict the digital power levels for super-powered FM
    stations.[^227] Livingston asserts that super-powered stations cause
    more interference than stations that comply with class limits.
    Therefore, according to Livingston, IBOC operations by super-powered
    stations must be limited in order to avoid excessive interference to
    nearby stations on adjacent channels. Livingston urges the
    Commission "not to extend superpower privileges into the IBOC
    digital environment," and suggests determining digital signal power
    based on class maximum facilities.[^228] Similarly, Press
    Communications, LLC ("Press") suggests that the Commission adopt
    limits on IBOC operation by short-spaced FM stations.[^229]

98. Several commenters disagree with Livingston's proposal. WPNT, Inc.,
    for example, states that ending the grandfathered status of
    super-powered stations would simply benefit some broadcasters at the
    expense of others.[^230] Cox Radio, Inc. and Bonneville
    International Corporation assert that termination of super-power
    status is outside the scope of this proceeding, and that the
    Commission would violate the Administrative Procedures Act if it
    were to adopt rules without first seeking comment from the public.
    We agree that the consideration of super-powered status is beyond
    the scope of this proceeding, and, therefore, decline to adopt
    special restrictions on digital operations by super-powered stations
    here. In any event, we do not see a compelling reason to restrict
    digital operations by short-spaced FM stations, as Press suggests.
    We will continue to evaluate any complaints of possible IBOC
    interference on a case-by-case basis as we stated in the *DAB R &O*.

### Expansion of IBOC Notification Procedures 

99. We are hereby changing the procedures for approving IBOC operations
    to allow broadcasters to take advantage of technical improvements as
    they develop, rather than waiting for Commission action and rules to
    do so. In the *DAB R&O*, we permitted radio stations to implement
    IBOC operations without prior authority, provided that the IBOC
    configurations were substantially the same as those tested by the
    NRSC.[^231] The IBOC DAB service is developing rapidly, with new
    modes of operation such as multicasting, datacasting, and dual
    antenna operation all commencing after the *DAB R&O* was adopted. As
    test results have been added to the record in this proceeding, the
    staff has sought comment and subsequently issued Public Notices
    authorizing IBOC operations that differ from the configurations
    originally tested by the NRSC. Stations wishing to implement
    multicasting or dual antenna operations have, however, been required
    to request prior authority to operate from the Commission. We
    believe that DAB will continue to evolve rapidly in tandem with
    modifications by iBiquity to the IBOC system. In the interests of
    efficiency, we delegate to the Media Bureau the authority to issue
    Public Notices, seek public input, and review the range of
    permissible IBOC operations as circumstances warrant. After
    appropriate notice and comment, the staff is authorized to act on
    delegated authority on implementing new IBOC notification procedures
    to cover new IBOC configurations. Expansion of the notification
    procedures will allow stations to implement digital operations
    without unnecessary delay.

### Receivers

100. According to iBiquity, its systems provide extensibility in that
     the first-generation receivers are designed to operate both in the
     interim hybrid and in all-digital modes.[^232] In the *DAB R&O*, we
     stated that this is an area in which definitive evaluations can
     only be undertaken after we resolve a number of all-digital issues,
     such as issues relating to signal architecture.[^233] Recognizing
     the flexibility of the IBOC model, and the possibility of new
     services, we stated that we will address receiver issues in more
     detail at a later date. We sought comment on whether the issues
     raised, and the policies proposed, in the *DAB* *FNPRM* require us
     to address receiver issues at this stage of DAB development. We
     asked, for example, how the adoption of a high quality audio
     requirement would affect receiver manufacturers.[^234] As noted
     above, we do not establish a high quality audio requirement. The
     commenters did not address the issue of receiver performance
     standards. The Commission will address DAB receiver issues, if
     necessary, in the future.

### Patents

101. The iBiquity IBOC DAB system uses patented technologies. This
     requires IBOC licensees to pay licensing fees to the patent
     holders. The Commission stated in the *DAB R&O* that during the
     interim DAB operation period, we will monitor the behavior of the
     patent holders to determine if the required licensing agreements
     are reasonable and non-discriminatory and that we will seek
     additional public comment on this matter as required.[^235] In the
     *DAB FNPRM*, we sought further comment on iBiquity's conduct
     regarding licensing agreements in the interim DAB operating
     period.[^236] Although iBiquity has pledged to adhere to the
     Commission's patent policy,[^237] certain parties commented that
     iBiquity might resort to unreasonable and discriminatory licensing
     fees once DAB receivers have become widely available.[^238] We find
     that iBiquity has abided by the Commission's patent policy up to
     this point in the DAB conversion process. Therefore, we do not
     believe that it is appropriate at this time for us to adopt
     regulations governing IBOC licensing and usage fees. If we receive
     information that suggests we need to explore this issue further,
     especially in connection with the adoption of the NRSC-5 standard,
     we will take appropriate action at that time.

### Other Technical Issues

102. In the *DAB FNPRM*, we raised for comment other technical issues
     relevant to the discussion of DAB operations, including (1) AM and
     FM definitional issues;  (2) interference; (3) AM stereo;  (4)
     operating power;  and (5) predicted coverage for digital
     signals.[^239] We find that these issues have been sufficiently
     addressed in the *DAB R&O* to permit station authorization on an
     interim basis. Further evaluation of these issues is best
     undertaken in conjunction with the NRSC-5 standards review.

# International ISSUES

103. In the *DAB R&O*, the Commission stated that during the period of
     interim IBOC operation, all relevant international agreements will
     be reviewed and any necessary modifications will be addressed at a
     later date.[^240] In the *DAB* *NOI*, we noted that these matters
     are being informally addressed by the Commission's International
     Bureau ("IB") and asked what IB should focus on to expedite the
     rollout of DAB in the United States.[^241]

104. According to iBiquity, the International Bureau has appropriately
     analyzed the ability of the United States to implement IBOC
     consistent with the United States' treaty obligations to Canada and
     Mexico. The International Bureau also has held informal discussions
     with both the Canadian and Mexican governments concerning
     implementation of IBOC in the United States. iBiquity states that
     it supports these efforts and submits that the current process is
     adequately addressing the international requirements for
     implementing IBOC.[^242]

105. One commenter, Barry McLarnon, states that the current broadcast
     co-channel allocation rules are no longer adequate to prevent
     objectionable interference from operating hybrid AM IBOC radio
     stations.[^243] He argues that AM IBOC is not permissible under the
     terms of the US-Canada bilateral agreement on AM broadcasting.
     Specifically, he asserts that AM IBOC interference is in
     contravention of the article in that agreement which states:
     "Classes of emission other than A3E, for instance to accommodate
     stereophonic systems, could also be used on condition that the
     energy level outside the necessary bandwidth does not exceed that
     normally expected in A3E\...."[^244] McLarnon asserts that the
     "necessary bandwidth" in this case is defined as 10 kHz and the
     hybrid AM IBOC system increases the occupied bandwidth of an AM
     station to approximately 28 kHz. He further asserts that the
     increased power is outside the necessary bandwidth of the AM signal
     and exceeds that normally expected in A3E.[^245] He also states
     that identical wording is used in the agreement between the US and
     Mexico, and therefore, that agreement is also violated by any usage
     of the hybrid AM IBOC system.[^246]

106. All matters pertaining to the relevant international agreements,
     including the above contentions, are being addressed in the
     appropriate bilateral and multilateral fora. While we are
     optimistic that we will be able to resolve any outstanding issues
     with Canada and Mexico or other countries, these issues remain
     subject to ongoing negotiations. Therefore, until the negotiations
     are completed, we advise the radio industry that the following
     condition will be applied to stations operating with IBOC DAB:

     Operation with facilities specified herein is subject to
     modification, suspension or termination without right to hearing,
     as may be necessary to carry out the applicable provisions of the
     ITU Radio Regulations, the Final Acts of the ITU Administrative
     Conference on Medium Frequency Broadcasting in Region 2 (Rio de
     Janeiro, 1981), or any bilateral or multilateral agreement(s) of
     the United States.

# ORDER ON RECONSIDERATION

107. The Commission has before it three Petitions for Reconsideration of
     the *DAB R&O*[^247] in which the Commission selected IBOC as the
     sole digital technology for the terrestrial radio broadcasting
     service.[^248] For the reasons discussed below, we deny the
     petitions of the Amherst Alliance and other parties (collectively
     "Amherst") and of John Pavlica, Jr. We dismiss the petition of Glen
     Clark and Associates "Clark" as moot.[^249]

108. The Amherst Alliance has filed the following pleadings with the
     Commission: (1) a Petition for Reconsideration of the *DAB R&O*
     (filed October 25, 2002); (2) a Petition for Rulemaking (filed
     April 17, 2002); and (3) a request for Environmental Impact
     Statement (filed July 18, 2002). Specifically, Amherst claims that
     the Commission failed to act on a request filed by it and other
     parties for an environmental impact statement concerning the
     possible effects of IBOC, and on a petition by it and other parties
     for a new rulemaking on digital radio.[^250] Amherst also claims
     that the Commission should not have adopted IBOC until proceedings
     on blanketing interference and human exposure to electromagnetic
     radiation were resolved. NAB opposes Amherst stating that it
     "presents no basis for reconsideration of the *DAB R&O* and
     virtually no substance or support for its complaints."[^251]
     iBiquity states that Amherst offers no new information justifying
     any changes in the policies adopted by the Commission in the *DAB*
     *R&O* and is merely an attempt to delay IBOC.[^252] We agree with
     NAB and iBiquity that Amherst has not presented any arguments that
     were not already addressed and disposed of by the Commission in the
     *DAB R&O.* Moreover, we find that Amherst has not provided new
     evidence of the type necessary for the Commission to delay the
     introduction of IBOC and the offering of DAB to the public.
     Therefore, its Petitions for Reconsideration and Rulemaking are
     denied.

109. We also affirm our conclusion in the *DAB R&O* that the initiation
     of interim IBOC operations is categorically excluded from
     environmental processing and that the procedure requiring licensees
     to certify compliance with existing RF exposure standards satisfies
     any environmental requirements. Accordingly, preparation of an
     environmental impact statement is unnecessary in the context of
     IBOC operations.[^253]

110. [John Pavlica, Jr. petition.]{.underline} Pavlica states that the
     iBiquity IBOC systems cause "substantial and nearly continuous
     interference" to existing AM and FM stations. According to Pavlica,
     the Commission should consider options such as better receiver
     technology before adopting any digital radio system. Pavlica
     suggests a one-year period for evaluating alternatives to IBOC.
     Pavlica also expresses concern about iBiquity's status as the sole
     source of proprietary IBOC technology. All of Pavlica's contentions
     were thoroughly addressed in the *DAB R&O*. Beyond the simple
     assertion that IBOC causes extensive interference, the petition
     offers no technical support for this characterization of IBOC
     operation. In sharp contrast, the NRSC spent several years crafting
     IBOC tests, the results of which are documented in detailed
     comments. The comparison of alternatives for introducing digital
     technology to the AM and FM bands that Pavlica calls for began with
     the *DAB NPRM* in 1999, and concluded with the selection of IBOC in
     2002 based on a substantial record. It is well established that the
     Commission does not grant reconsideration for the purpose of
     debating matters on which it has already deliberated.[^254]

111. *Other Pleadings.* In two letters, Amherst suggests that IBOC
     operations may cause interference to the AMBER[^255] alert
     system.[^256] In participating states, AMBER alerts are broadcast
     as part of the Emergency Alert System. EAS messages are transmitted
     via the main analog radio signal. Amherst offers no support for the
     allegation. Test results presented in the NRSC AM and FM reports
     demonstrate that analog radio signals will not be subject to
     interference that would impair EAS transmissions. Any interference
     from IBOC is likely to occur at the fringes of a station's normally
     protected coverage area, where the analog signal quality is poor.
     In such circumstances, analog listeners are likely to tune to
     another radio station with a stronger signal, particularly in the
     event of an emergency. Amherst provides no countervailing evidence
     that IBOC will interfere with AMBER alerts, and no reason to delay
     IBOC implementation.

112. In a petition for rulemaking filed January 24, 2003, Kahn
     Communications, Inc. requests that the Commission initiate a new
     proceeding to revise procedures for evaluating new technology. Kahn
     also requests that the Commission stay the *DAB R&O* and reevaluate
     its adoption of IBOC in light of any resulting policy revisions. To
     the extent that Kahn's filing is a petition for reconsideration of
     the *DAB R&O,* the petition is untimely. Kahn provides no
     justification for failing to file timely comments in this
     proceeding. Moreover, we do not find that the public interest would
     be served by further delay of the long-contemplated digital
     conversion of the terrestrial radio service. Therefore, we will not
     consider Kahn's untimely comments in this proceeding.

# SECOND FURTHER NOTICE OF PROPOSED RULEMAKING

113. Preserving the existing system of free over-the-air terrestrial
     radio service as radio stations convert to digital broadcasting
     remains important. In order to accomplish this goal, we seek
     comment on how to ensure that the amount of subscription-based
     radio services is limited. For example, should we implement a
     requirement which states that no more than 20 to 25 percent of a
     station's digital capacity be devoted to subscription
     services?[^257] This estimate is based on current analog FM SCA
     usage and the scalability of the digital stream in 1 kbps or
     smaller increments. How should any limitation on digital
     subscription services be specified\--in terms of occupied
     bandwidth, or in terms of total digital capacity? [^258] Would
     limiting digital subscription services to 20 to 25 percent be
     sufficient to ensure that the free over-the-air radio service is
     not compromised? Should there be different rules for NCE radio
     stations? What kinds of subscription services do radio stations,
     both NCE and commercial, plan to offer once they commence digital
     broadcasting? [^259] Would any subscription services be broadcast
     services? With regard to DTV, Congress explicitly authorized the
     Commission to permit digital television stations to offer ancillary
     and supplementary subscription-based services.[^260] Given that
     there is no similar statutory provision for DAB, we will proceed
     cautiously to ensure that free over-the-air service is preserved.
     We note that radio stations are permitted to offer subscription
     services during the pendency of this *Second Further Notice of
     Proposed Rulemaking*, but are put on notice that we will adopt new
     rules in this area that may affect such offerings.

114. In the *DAB FNPRM*, we sought comment on whether we can and should
     impose spectrum fees for that portion of digital bandwidth used by
     broadcasters to provide subscription services.[^261] Given that we
     are further considering the issues surrounding the provision of
     subscription services, we now seek additional input from the public
     on the fee issue. With regard to DTV, Congress authorized the
     Commission to impose a fee on certain ancillary or supplementary
     services.[^262] The Commission subsequently adopted a rule
     requiring DTV licensees to pay a fee of five percent of the gross
     revenues derived from all ancillary or supplemental services that
     are feeable, as defined by the rules.[^263] Given that no express
     statutory authority exists in the DAB context, do we have the
     authority to impose a five percent or other fee based on the
     Commission's jurisdiction ancillary to its regulation of
     broadcasting? Can we, therefore, impose a similar fee for
     subscription digital radio? What limits should we place on
     subscription services, particularly if we are unable to impose a
     fee? Should broadcasters have to provide a free digital stream at
     least equal in quality to the best subscription service if they
     decide to provide a subscription service?

115. In the *Second Report and Order*, we rule that several statutory
     requirements and Commission regulations would apply to all free
     over-the-air digital programming streams.[^264] Here, we seek
     comment on whether those same requirements, as outlined in Section
     D.1, above, should apply to subscription services. We note that the
     Commission has applied certain public interest obligations to other
     subscription services, including cable television and satellite
     radio,[^265] pursuant to our authority to regulate subscription
     services ancillary to the regulation of broadcasting.[^266] 
     We tentatively conclude that we should
     apply the requirements outlined above to subscription services
     offered by terrestrial radio stations, and that we have the
     statutory authority to do so.    We seek comment on this tentative
     conclusion.

116. As stated above, the Commission must ensure that broadcast radio
     and television stations serve the \"public interest, convenience
     and necessity."[^267] To ensure that broadcasters serve the public
     interest, convenience and necessity, the Commission requires
     licensees to comply with various program-related and operational
     duties. Broadcasters, for example, are required to air programming
     responsive to community needs and interests and have other service
     obligations.[^268] We will continue to enforce our statutory
     mandate to ensure that broadcasters serve the public interest, and
     remind broadcasters of the importance of meeting their existing
     public interest obligations. As stated above, IBOC provides
     broadcasters the potential for a more flexible and dynamic use of
     the radio spectrum and raises questions about the nature of
     program-related and operating obligations in digital broadcasting
     because the scope of those responsibilities has not been
     defined.[^269] Certain parties have proposed new public interest
     requirements for DAB,[^270] while others have argued that there is
     no reason to change our existing rules. [^271] We seek comment on
     whether we should adopt any new public interest requirements for
     digital audio broadcasters.

117. In the context of examining possible changes to television station
     public interest obligations in the digital environment, the
     Commission is considering whether the current requirements
     pertaining to television stations\' public inspection files are
     sufficient to ensure that the public has adequate access to
     information on how the stations are serving their
     communities.[^272] As we undertake an examination of possible
     changes to radio station public interest obligations in the digital
     environment, we believe it is also appropriate to consider whether
     the current requirements for radio stations\' public inspection
     files are sufficient to ensure that the public has adequate access
     to information on how these stations are serving their communities.
     In the Enhanced Disclosure NPRM, we proposed that television
     broadcast station licensees should use a standardized form to
     provide information on how the station serves the public interest
     in a variety of areas, and that the form should be provided on a
     quarterly basis and maintained in the station\'s public inspection
     file in place of the currently required issues/programs
     lists.[^273] We also proposed to enhance the public\'s ability to
     access public interest information by requiring licensees to make
     the contents of their public inspection files, including the form,
     available on the station\'s or a state broadcasters association\'s
     Internet website.[^274] We seek comment on whether we should
     consider applying such rules to radio stations, whether operating
     in analog or digital. Would the benefits or burdens of requiring
     the public inspection file to also be placed on the Internet be the
     same, lesser, or greater for radio stations than for television
     stations? In what specific ways, if any, should the rules differ
     for radio? Are there ways we can reduce the burden on small radio
     stations?

118. In 1987, the Commission eliminated the former rule requiring a
     broadcast station to originate a majority of its non-network
     programming from its main studio.[^275] This action was based, in
     part, on technical advances in the production and distribution of
     programming during the prior thirty-five years. In 1995, in
     response to continuing improvements in the stability of station
     monitoring and transmission equipment, the Commission authorized
     unattended technical operation of broadcast stations and expanded
     the ability of stations to control and monitor station technical
     operations from remote locations.[^276] Although concerns were
     expressed that these rule revisions would result in stations
     operating on "auto-pilot with no one in charge," the Commission
     concluded that the new rules would provide important flexibility
     without adversely affecting the public interest.[^277] It noted
     that the Emergency Broadcast System ("EBS"), then in use, was
     designed for human intervention and left to broadcasters the
     responsibility to develop procedures for complying with EBS
     requirements when licensees chose to operate in an unattended
     mode.[^278] Finally, the Commission noted that the Emergency Alert
     System ("EAS"), then in the process of nation-wide implementation,
     was specifically designed for unattended operations.[^279]
     Licensees have broadly embraced this new technical flexibility.
     Many stations now operate for extended periods without station
     personnel at or near transmission facilities.

119. In connection with our review of public interest requirements for
     DAB, we seek comment on whether it is appropriate to review the
     rules that have facilitated the development of automated broadcast
     operations. Is there any reason that, in light of recent industry
     experience, the Commission should revisit its determination that
     stations may reliably and confidently use unattended and remotely
     controlled technical operations without jeopardizing the technical
     integrity of the radio service? Have changes in remote operation
     impacted the requirements that the Commission should adopt in this
     area?

120. We also seek comment on whether the widespread reliance on
     automated operations limits the ability of law enforcement and
     public safety officials to use radio broadcast stations effectively
     during emergencies. Although EAS equipment can be programmed to
     operate automatically in certain circumstances, when a state or
     local alert is initiated by designated local authorities, initial
     input of the alert and activation of the originating EAS ENDEC must
     be done manually. In some emergencies, this initial input does not
     occur, thus precluding the distribution of the alert over the
     EAS.[^280] We note that the Commission currently is considering
     issues related to the Emergency Alert System, including
     transmission of state EAS alerts, in its ongoing EAS
     proceeding.[^281]

# PROCEDURAL MATTERS

## Filing Requirements

121. *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 Commission's
     rules.[^282] *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.[^283] Additional rules pertaining to oral and
     written presentations are set forth in Section 1.1206(b).

122. *Comments and Reply Comments*. Pursuant to sections 1.415 and 1.419
     of the Commission's 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.[^284]

-   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](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]{.underline} 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).

123. *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](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).

124. *Additional Information*. For additional information on this
     proceeding, contact Ann Gallagher, Ann.Gallagher@fcc.gov, of the
     Media Bureau, Audio Division, (202) 418-2716 or Brendan Murray,
     <Brendan.Murray@fcc.gov>, of the Media Bureau, Policy Division,
     (202)418-2120.

## Initial and Final Regulatory Flexibility Analysis

125. The Regulatory Flexibility Act of 1980, as amended ("RFA"),[^285]
     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."[^286] The RFA generally defines the term "small entity"
     as having the same meaning as the terms "small business," "small
     organization," and "small governmental jurisdiction."[^287] In
     addition, the term "small business" has the same meaning as the
     term "small business concern" under the Small Business Act.[^288] 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).[^289] 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.

126. *Act*. As required by the Regulatory Flexibility Act,[^290] the
     Commission has prepared a Final Regulatory Flexibility Analysis
     ("FRFA") relating to this *Second Report and Order and First Order
     on Reconsideration*. The FRFA is set forth in Appendix D.

## Paperwork Reduction Act Analysis

127. The *Second Report and* *Order, First Order on Reconsideration*,
     and *Second Further Notice of Proposed Rulemaking* contains
     proposed modification of information collection requirements. It
     will be submitted to the Office of Management and Budget (OMB) for
     review under Section 3507(d) of the PRA. The Commission is not
     requesting OMB approval under the emergency processing provisions
     of the 1995 Act (5 C.F.R. §1320.13) of the information collection
     requirements contained in this *Second Report and Order, First
     Order on Reconsideration* and *Second Further Notice of Proposed
     Rulemaking.* The Commission, as part of its continuing effort to
     reduce paperwork burdens, invites the general public and OMB to
     comment on the information collection requirements contained in
     this document, as required by the Paperwork Reduction Act of 1995.
     Public and agency comments are due 60 days from date of publication
     of this Second Further Notice of Proposed Rulemaking in the Federal
     Register. Comments should address: (a) whether the proposed
     collection of information is necessary for the proper performance
     of the functions of the Commission, including whether the
     information shall have practical utility; (b) the accuracy of the
     Commission's burden estimates; (c) ways to enhance the quality,
     utility, and clarity of the information collected; and (d) ways to
     minimize the burden of the collection of information on the
     respondents, including the use of automated collection techniques
     or other forms of information technology. In addition, pursuant to
     the Small Business Paperwork Relief Act of 2002,[^291] we seek
     specific comment on how we might "further reduce the information
     collection burden for small business concerns with fewer than 25
     employees."

128. In addition to filing comments with the Secretary, a copy of any
     comments on the Paperwork Reduction Act information collection
     requirements contained herein should be submitted to Cathy
     Williams, Federal Communications Commission, Room 1-C823, 445
     12^th^ Street, SW, Washington, D.C., 20554, or via the Internet to
     <Cathy.Williams@fcc.gov> and to Kristy L. LaLonde, OMB Desk
     Officer, Room 10234 NEOB, 725 17th Street, N.W., Washington, D.C.,
     20503, or via the Internet to <Kristy_L._LaLonde@omb.eop.gov>, or
     via fax at 202-395-5167. For additional information concerning the
     Paperwork Reduction Act information collection requirements
     contained in this document, contact Cathy Williams at 202-418-2918,
     or via the Internet at <Cathy.Williams@fcc.gov>

# ORDERING CLAUSES

129. Accordingly, **IT IS ORDERED**, pursuant to the authority contained
     in Sections 1, 2, 4(i), 303, 307, 312, 315, 317, 507, and 508 of
     the Communications Act of 1934, 47 U.S.C §§ 151, 152, 154(i), 303,
     307, 312, 315, 508, and 509, this *Second Report and Order First
     Order on Reconsideration and Second Further Notice of Proposed
     Rulemaking* **IS ADOPTED**.

130. **IT IS FURTHER ORDERED** that pursuant to the authority contained
     in Sections 1, 2, 4(i), 303, 307, 312, 315, 317, 507, and 508 of
     the Communications Act of 1934, 47 U.S.C §§ 151, 152, 154(i), 303,
     307, 312, 315, 508, and 509, 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.

131. **IT IS FURTHER ORDERED** that the rules contained herein **SHALL
     BE EFFECTIVE** 30 days after publication of the *Report and Order
     and Further Notice of Proposed Rulemaking* in the Federal Register,
     except for the rules that contain information collection
     requirements subject to the Paperwork Reduction Act, which shall
     become effective immediately upon announcement in the Federal
     Register of OMB approval.

132. **IT IS FURTHER ORDERED** that, pursuant to 47 U.S.C. § 155(c), the
     Chief, Media Bureau, is **GRANTED DELEGATED AUTHORITY** to issue
     Public Notices and consider and grant routine petitions and waivers
     of the Commission's DAB technical requirements, resolve
     interference disputes, amend licensing requirements and generate
     new forms, and update IBOC notification procedures.

133. **IT IS FURTHER ORDERED** that the Petition for Reconsideration
     filed October 25, 2002, by the Amherst Alliance **IS DENIED**.

134. **IT IS FURTHER ORDERED** that the Petition for Rulemaking filed
     April 17, 2002, by the Amherst Alliance **IS DENIED**.

135. **IT IS FURTHER ORDERED** that the Petition for Reconsideration
     filed December 10, 2002 by Glen Clark and Associates **IS
     DISMISSED**.

136. **IT IS FURTHER ORDERED** that the Petition for Reconsideration
     filed January 13, 2003, by John Pavlica Jr. **IS DENIED**.

137. **IT IS FURTHER ORDERED** that the Petition for Rulemaking filed
     January 24, 2003, by Kahn Communications, Inc. **IS DISMISSED**.

138. **IT IS FURTHER ORDERED** that the untimely Petition for
     Reconsideration filed by Kahn Communications, Inc. **IS DENIED**.

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

140. **IT IS FURTHER ORDERED** that the Commission **SHALL SEND** a copy
     of this *Second Report and Order First Order on Reconsideration 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**

**Comments Filed in MM Docket No. 99-325**

**Comments Filed in Response to the FNPRM and NOI**

> American Society of Composers, Authors and Publishers
>
> Amherst Alliance
>
> Arlington Broadcasting Company
>
> ARSO Radio Corporation
>
> Broadcast Music, Inc.
>
> Business Software Alliance
>
> Classical 1360
>
> Clear Channel Communications, Inc.
>
> Cohen, Dippell & Everist
>
> Consumer Electronics Association
>
> Corporation for Public Broadcasting
>
> Cox Radio, Inc.
>
> Crawford Broadcasting Company
>
> Curators of the University of Missouri
>
> Electronic Frontier Foundation and Brennan Center for Justice
>
> Entercom Communications Corp.
>
> First Broadcasting Investment Partners LLC
>
> Greater Media, Inc.
>
> Harris Corporation
>
> Home Recording Rights Coalition
>
> iBiquity Digital Corporation
>
> Infinity Broadcasting Corporation
>
> International Association of Audio Information Services
>
> Leonard R. Kahn
>
> Livingston Radio Company and Taxi Productions, Inc.
>
> Kenwood USA Corporation
>
> Microsoft Corp.
>
> Minnesota State Services for the Blind
>
> Mt. Wilson Broadcasters, Inc.
>
> Named State Broadcasters Associations
>
> National Academy of Recording Art & Sciences, Inc.
>
> National Association of Broadcasters
>
> National Music Publishers Association
>
> National Public Radio
>
> Press Communication, LLC
>
> Public Interest Coalition
>
> Alliance for Better Campaigns
>
> American Federation of Television and Radio Artists
>
> Campaign Legal Center
>
> Center for Creative Voices In Media
>
> Center for Digital Democracy
>
> Center for Governmental Studies
>
> Common Cause
>
> National Federation of Community Broadcasters
>
> New America Foundation
>
> Office of Communication of the United Church of Christ, Inc.
>
> Prometheus Radio Project
>
> Public Knowledge/Consumers Union/Consumer Federation of America
>
> Recording Artists' Coalition
>
> Recording Industry Association of America, Inc.
>
> Reunion Broadcasting
>
> Sage Alerting Systems
>
> Susquehanna Radio Co.
>
> University of South Florida
>
> Walt Disney Company and ABC, Inc.
>
> XM Radio

**Reply Comments Filed in Response to the FNPRM and NOI**

> American Society of Composers, Authors and Publishers
>
> Bloomberg Radio
>
> Broadcast Music, Inc.
>
> Capitol Broadcasting
>
> Clear Channel Communications, Inc.
>
> Cohen, Dippell & Everist
>
> Consumer Electronics Association

Electronic Frontier Foundation

Greater Media, Inc.

> Home Recording Rights Coalition
>
> iBiquity Digital Corporation
>
> Infinity Broadcasting Corporation
>
> KQED
>
> Mid-Atlantic Network
>
> National Association of Broadcasters
>
> National Music Publishers' Association & Songwriters Guild
>
> National Public Radio

Public Interest Coalition (see above for members)

> Public Knowledge/Consumers Union/Consumer Federation of America
>
> Recording Artists' Group
>
> Recording Industry Association of America, Inc.
>
> REC Networks
>
> Shively Labs
>
> Sirius Satellite Radio
>
> Superior Communications
>
> Telos-Omnia
>
> Timothy Cutforth
>
> Walt Disney Company and ABC, Inc.
>
> WOLF Radio, Inc.

**Comments Filed in Response to the First Report and Order**

Amherst Alliance

John Anderson

Gerry Bishop

Eric S. Bueneman

Glen Clark

Charles L. Hutton

iBiquity Digital Corporation

Kol Ami Havurah

Jeff Deck

Kyle Drake

John S. Gilstrap, Jr.

Gerald John Mehrab

National Association of Broadcasters

John Pavlica Jr.

REC Networks

Kevin Redding

Paul W. Smith

Kevin M. Tekel

Scott Todd

Joseph Uzzle

Sarah M. Uzzle

Frederick R. Vobbe

Powell E. Way III

James Jason Wentworth

**APPENDIX B**

**Rule Changes and Amendments**

\* \* \* \* \*

PART 73 -- RADIO BROADCAST SERVICES

1\. The authority for Part 73 continues to read as follows:

AUTHORITY: 47 U.S.C. 154 and 303.

2\. Subpart C, Noncommercial Educational FM Broadcast Stations, is
renamed Subpart D

3\. New Subpart C, Digital Audio Broadcasting, is added to read as
follows:

**Subpart C---Digital Audio Broadcasting**

**§ 73.401 Scope.**

This subpart contains those rules which apply exclusively to the digital
audio broadcasting (DAB) service, and are in addition to those rules in
Subparts A, B, C, G and H which apply to AM and FM broadcast services,
both commercial and noncommercial.

\* \* \* \* \*

**§ 73.402 Definitions***.*

\(a\) *DAB.* Digital audio broadcast stations are those radio stations
licensed by the Commission and use the In-band On-channel ("IBOC")
system for broadcasting purposes.

\(b\) *In Band On Channel DAB System.* A technical system in which a
station's digital signal is broadcast in the same spectrum and on the
same channel as its analog signal.

\(c\) *Hybrid DAB System.* A system which transmits both the digital and
analog signals within the spectral emission mask of a single AM or FM
channel.

\(d\) *Extended hybrid operation.* An enhanced mode of FM IBOC DAB
operation which includes additional DAB subcarriers transmitted between
the analog FM signal and the inner edges of the primary DAB sidebands*.*

\(e\) *Primary AM DAB Sidebands.* The two groups of hybrid AM IBOC DAB
subcarriers which are transmitted 10 to 15 kHz above carrier frequency
(the upper primary DAB sideband), and 10 to 15 kHz below carrier
frequency (the lower primary DAB sideband).

\(f\) *Multicasting.* Subdividing the digital bitstream into multiple
channels for additional audio programming uses.

\(g\) Datacasting. Subdividing the digital bitstream into multiple
channels for additional data or information services uses.

\* \* \* \* \*

**§ 73.403 Digital Audio Broadcasting Service Requirements.**

\(a\) Broadcast radio stations using IBOC must transmit at least one
over-the-air digital audio programming stream at no direct charge to
listeners. In addition, a broadcast radio station must simulcast its
analog audio programming on one of its digital audio programming
streams. The DAB audio programming stream that is provided pursuant to
this paragraph must be at least comparable in sound quality to the
analog programming service currently provided to listeners.

\(b\) *Emergency information.* The emergency information requirements
found in section 73.1250 in Part 73 of Title 47 shall apply to all free
DAB programming streams.

> \* \* \* \* \*

**§ 73.404 Interim Hybrid IBOC DAB Operation.**

\(a\) The licensee of an AM or FM station, or the permittee of a new AM
or FM station which has commenced program test operation pursuant to §
73.1620, may commence interim hybrid IBOC DAB operation with digital
facilities which conform to the technical specifications specified for
hybrid DAB operation in the *First Report and Order* in MM Docket No.
99-325. AM and FM stations may transmit IBOC signals during all hours
for which the station is licensed to broadcast.

\(b\) In situations where interference to other stations is anticipated
or actually occurs, AM licensees may, upon notification to the
Commission, reduce the power of the primary DAB sidebands by up to 6 dB.
Any greater reduction of sideband power requires prior authority from
the Commission via the filing of a request for special temporary
authority or an informal letter request for modification of license.

\(c\) Hybrid IBOC AM stations must use the same licensed main or
auxiliary antenna to transmit the analog and digital signals.

\(d\) FM stations may transmit hybrid IBOC signals in combined mode;
i.e., using the same antenna for the analog and digital signals; or may
employ separate analog and digital antennas. Where separate antennas are
used, the digital antenna:

\(1\) must be a licensed auxiliary antenna of the station;

\(2\) must be located within 3 seconds latitude and longitude from the
analog antenna;

\(3\) must have a radiation center height above average terrain between
70 and 100 percent of the height above average terrain of the analog
antenna.

\(e\) Licensees must provide notification to the Commission in
Washington, DC, within 10 days of commencing IBOC digital operation. The
notification must include the following information:

\(1\) call sign and facility identification number of the station;

\(2\) date on which IBOC operation commenced;

\(3\) certification that the IBOC DAB facilities conform to permissible
hybrid specifications;

\(4\) name and telephone number of a technical representative the
Commission can call in the event of interference;

\(5\) certification that the analog effective radiated power remains as
authorized;

\(6\) transmitter power output; if separate analog and digital
transmitters are used, the power output for each transmitter;

\(7\) if applicable, any reduction in an AM station\'s primary digital
carriers;

\(8\) if applicable, the geographic coordinates, elevation data, and
license file number of the auxiliary antenna employed by an FM station
as a separate digital antenna;

\(9\) if applicable, for FM systems employing interleaved antenna bays,
a certification that adequate filtering and/or isolation equipment has
been installed to prevent spurious emissions in excess of the limits
specified in § 73.317;

\(10\) a certification that the operation will not cause human exposure
to levels of radio frequency radiation in excess of the limits specified
in § 1.1310 of the Commission\'s rules and is therefore categorically
excluded from environmental processing pursuant to § 1.1306(b). Any
station that cannot certify compliance must submit an environmental
assessment (\"EA\") pursuant to § 1.1311 and may not commence IBOC
operation until such EA is ruled upon by the Commission.

\* \* \* \* \*

**§ 73.1201** **Station Identification.**

\(b\) Content.

> \(1\) Official station identification shall consist of the station\'s
> call letters immediately followed by the community or communities
> specified in its license as the station\'s location; Provided, That
> the name of the licensee, the station\'s frequency, the station\'s
> channel number, as stated on the station\'s license, and/or the
> station\'s network affiliation may be inserted between the call
> letters and station location. DTV stations, **or DAB Stations,**
> choosing to include the station\'s channel number in the station
> identification must use the station\'s major channel number and may
> distinguish multicast program streams. For example, a **DTV** station
> with major channel number 26 may use 26.1 to identify an HDTV program
> service and 26.2 to identify an SDTV program service. **A radio
> station operating in DAB hybrid mode or extended hybrid mode shall
> identify its digital signal, including any free multicast audio
> programming streams, in a manner that appropriately alerts its
> audience to the fact that it is listening to a digital audio
> broadcast.** No other insertion between the station\'s call letters
> and the community or communities specified in its license is
> permissible.

**APPENDIX C**

**Initial Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as
    amended,[^292] 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*.
    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 of Proposed
    Rulemaking* provided in paragraph 117. The Commission will send a
    copy of this entire *Second* *Further Notice of Proposed Rulemaking*
    ("*FNPRM*"), including this IRFA, to the Chief Counsel for Advocacy
    of the Small Business Administration ("SBA").[^293] In addition, the
    *Second Further Notice of Proposed Rulemaking* and the IRFA (or
    summaries thereof) will be published in the Federal Register.[^294]

2.  **Need For, and Objectives of, the Proposed Rules.** The *Second
    FNPRM* has been initiated to obtain further comments concerning the
    development and implementation of terrestrial digital audio
    broadcasting. The Commission believes that free over-the-air
    terrestrial broadcasting is in the public interest, and because
    spectrum is a limited resource. The Commission also believes that
    ancillary subscription services, which require subscribers to pay
    for access to selected programming, often unduly limits access to
    free over-the-air terrestrial broadcasts. Therefore, in the *Second*
    *FNPRM* the Commission seeks comment on how to limit ancillary
    subscription services provided by radio stations converting to the
    IBOC DAB format so that terrestrial radio broadcasting remains an
    essentially free over-the-air service. The Commission also seeks
    comment on, *inter alia*, the application of several statutory and
    regulatory public interest requirements to subscription services.

3.  **Legal Basis.** The authority for this *Second Further Notice of
    Proposed Rulemaking* is contained in Sections 1, 2, 4(i), 303, 307,
    312(a)(7), 315, 317, 507, and 508 of the Communications Act of 1934,
    47 U.S.C §§ 151, 152, 154(i), 303, 307, 312(a)(7), 315, 317, 508,
    and 509.

4.  **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.[^295] The RFA generally defines the term \"small entity\" as
    encompassing the terms \"small business,\" \"small organization,\"
    and \"small governmental entity.^\"^[^296] In addition, the term
    "small business" has the same meaning as the term "small business
    concern" under the Small Business Act.[^297] 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\").[^298]

5.  **Radio Stations.** The proposed rules and policies potentially will
    apply to all AM and commercial 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.[^299] A radio broadcasting station is an establishment
    primarily engaged in broadcasting aural programs by radio to the
    public.[^300] Included in this industry are commercial, religious,
    educational, and other radio stations.[^301] Radio broadcasting
    stations which primarily are engaged in radio broadcasting and which
    produce radio program materials are similarly included.[^302]
    However, radio stations that are separate establishments and are
    primarily engaged in producing radio program material are classified
    under another NAICS number.[^303] According to Commission staff
    review of BIA Publications, Inc. Master Access Radio Analyzer
    Database on March 31, 2005, about 10,840 (95%) of 11,410 commercial
    radio stations have revenue of \$6.5 million or less. We note,
    however, that many radio stations are affiliated with much larger
    corporations having much higher revenue. Our estimate, therefore,
    likely overstates the number of small entities that might be
    affected by our action.

6.  **Electronics Equipment Manufacturers.** The rules adopted in this
    proceeding will apply to manufacturers of DAB receiving equipment
    and other types of consumer electronics equipment. The appropriate
    small business size standard is that which the SBA has established
    for radio and television broadcasting and wireless communications
    equipment manufacturing. This category encompasses entities that
    primarily manufacture radio, television, and wireless communications
    equipment.[^304] Under this standard, firms are considered small if
    they have 1000 or fewer employees.[^305] Census Bureau data for 2002
    indicate that, for that year, there were a total of 1,041
    establishments[^306] in this category.[^307] Of those, 1,023 had
    employment under 1,000. Given the above, the Commission estimates
    that the great majority of equipment manufacturers affected by these
    rules are small businesses.

7.  **Description of Projected Reporting, Recordkeeping and Other
    Compliance Requirements.** The proposed rules on subscription
    services may impose additional reporting or recordkeeping
    requirements on existing radio stations, depending upon how the
    Commission decides to limit subscription services. We seek comment
    on the possible burden these requirements would place on small
    entities. Also, we seek comment on whether a special approach toward
    any possible compliance burdens on small entities might be
    appropriate.

8.  **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.[^308]

9.  In the *Second Report and Order*, the Commission permits radio
    stations to offer high quality digital radio signals, multicast
    digital audio programming streams, and datacasting. In the *Second
    Further Notice of Proposed Rulemaking*, the Commission seeks comment
    on what limitations on ancillary subscription services are necessary
    and appropriate to ensure the viability of free over-the-air radio
    broadcasting. This is an issue of first impression for the
    Commission; there is no history that indicates whether limits on
    ancillary subscription services will be adverse or beneficial to
    small businesses. Therefore, we make no judgment at this time on
    whether limits on ancillary subscription services will adversely
    affect small business. However, we welcome commenters to address
    whether limits on ancillary subscription services will have any
    adverse effects on small businesses.

10. **Federal Rules Which Duplicate, Overlap, or Conflict With, the
    Commission's Proposals.** None.

> **APPENDIX D**

**Final Regulatory Flexibility Analysis**

1.  As required by the Regulatory Flexibility Act of 1980, as amended
    ("RFA"),[^309]an Initial Regulatory Flexibility Analysis ("IRFA")
    was incorporated in the *Further Notice of Proposed Rule
    Making*.[^310] 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.[^311]

```{=html}
<!-- -->
```
141. **Need For, and Objectives of, the Proposed Rules.** The policies
     and rules set forth herein are required to ensure a smooth
     conversion of the nation's radio system from an analog to a digital
     format. In this *Second Report and Order*, the Commission (1)
     reaffirms its commitment to providing radio broadcasters with the
     option of utilizing DAB technology; (2) announces public policy
     objectives resulting from the introduction of DAB service, such as
     more diverse programming serving local and community needs; (3)
     provides radio stations with the ability to offer more channels of
     programming and datacasting; (4) adopts technical service rules for
     DAB, such as the authority to commence AM nighttime service and
     dual antenna operation; (5) adopts operational requirements for
     digital radio stations, such as emergency alert systems, station
     identification, and operating hours. In the *First Order on
     Reconsideration*, the Commission dismisses or denies outstanding
     Petitions for Reconsideration and Rulemaking which questioned the
     adoption of iBiquity's IBOC technology for use by DAB stations.

142. **Summary of Significant Issues Raised by Public Comments in
     Response to the IRFA.** None.

143. **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.[^312] The RFA generally defines the term \"small entity\"
     as encompassing the terms \"small business,\" \"small
     organization,\" and \"small governmental entity.^\"^[^313] In
     addition, the term "small business" has the same meaning as the
     term "small business concern" under the Small Business Act.[^314] 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\").[^315]

144. **Radio Stations.** The proposed rules and policies potentially
     will apply to all AM and commercial 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.[^316] A radio broadcasting station is an
     establishment primarily engaged in broadcasting aural programs by
     radio to the public.[^317] Included in this industry are
     commercial, religious, educational, and other radio stations.[^318]
     Radio broadcasting stations which primarily are engaged in radio
     broadcasting and which produce radio program materials are
     similarly included.[^319] However, radio stations that are separate
     establishments and are primarily engaged in producing radio program
     material are classified under another NAICS number.[^320] According
     to Commission staff review of BIA Publications, Inc. Master Access
     Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of
     11,410 commercial radio stations have revenue of \$6.5 million or
     less. We note, however, that many radio stations are affiliated
     with much larger corporations having much higher revenue. Our
     estimate, therefore, likely overstates the number of small entities
     that might be affected by our action.

145. **Electronics Equipment Manufacturers.** The rules adopted in this
     proceeding will apply to manufacturers of DAB receiving equipment
     and other types of consumer electronics equipment. The appropriate
     small business size standard is that which the SBA has established
     for radio and television broadcasting and wireless communications
     equipment manufacturing. This category encompasses entities that
     primarily manufacture radio, television, and wireless
     communications equipment.[^321] Under this standard, firms are
     considered small if they have 1,000 or fewer employees.[^322]
     Census Bureau data for 2002 indicate that, for that year, there
     were a total of 1,041 establishments[^323] in this category.[^324]
     Of those, there were 1,023 had employment under 1,000. Given the
     above, the Commission estimates that the great majority of
     equipment manufacturers affected by these rules are small
     businesses.

146. **Description of Projected Reporting, Recordkeeping and Other
     Compliance Requirements.** The rules adopted in this *Second Report
     and Order* will impose additional reporting or recordkeeping
     requirements on existing radio stations. First, the Commission
     applies the existing statutory and regulatory obligations to all
     free digital radio streams, thus increasing the scope of a radio
     station's existing compliance requirements. Second, the
     Commission's policies will increase the amount of information that
     must be kept in a radio station's public file. Finally, there will
     be new forms generated by the Commission's Media Bureau that must
     be processed by each radio station that elects to offer IBOC DAB.

147. **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.[^325]

148. In this *Second Report and Order*, the Commission (1) reaffirms its
     commitment to providing radio broadcasters with the option of
     utilizing DAB technology; (2) announces public policy objectives
     resulting from the introduction of DAB service, such as more
     diverse programming serving local and community needs; (3) provides
     radio stations with the ability to offer more channels of
     programming and datacasting; (4) adopts technical service rules for
     DAB, such as the authority to commence AM nighttime service and
     dual antenna operation; (5) adopts operational requirements for
     digital radio stations, such as emergency alert systems, station
     identification, and operating hours. This adoption of a flexible
     use policy for DAB, will allow radio stations to transmit high
     quality digital audio, multiplexed digital audio streams, and
     datacasting, which should allow broadcasters to meet the policy
     objectives.

149. In addition, rather than require all radio stations to convert to a
     digital format by a date certain, the Commission will allow
     marketplace forces to dictate the conversion process. However, each
     radio station broadcasting in the IBOC format will have to provide
     one free digital radio programming stream of audio quality
     comparable to that of the analog signal to the public.

150. With regard to technical requirements, the Commission satisfies the
     interests of digital AM stations by permitting them to operate
     during nighttime hours; it also lessens the burden of all digital
     radio broadcasters by permitting the use of cost-effective dual
     antennas to transmit digital radio programming. Because the
     Commission is allowing the marketplace to drive adoption of the
     transition to digital broadcasts, we do not anticipate that the
     rules and policies set forth herein will impose any adverse
     economic impact on small entities. This flexible approach allows
     small entities to explore the economic choices on their own, for
     their own benefit, and therefore significant alternatives to these
     rules and policies are unnecessary.

151. **Report to Congress**. The Commission will send a copy of the
     *Second Report and Order, First Order on Reconsideration, and
     Second Further Notice of Proposed Rulemaking*, including this FRFA,
     in a report to be sent to Congress pursuant to the Congressional
     Review Act.[^326] In addition, the Commission will send a copy of
     the *Second Report and Order, First Order on Reconsideration, and
     Second Further Notice of Proposed Rulemaking*, including this FRFA,
     to the Chief Counsel for Advocacy of the SBA. A copy of the *Second
     Report and Order, First Order on Reconsideration, and Second
     Further Notice of Proposed Rulemaking* and FRFA (or summaries
     thereof) will also be published in the Federal Register.[^327]

**STATEMENT OF**

**CHAIRMAN KEVIN J. MARTIN**

*Re:* *Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service* *(MM Docket No. 99-325)*

Today's action by the Commission will promote radio's transition from
the analog world to the digital one. Much like it does in television,
this transition presents radio stations the opportunity to multicast.
Multicasting will enable radio stations to provide a greater amount and
greater variety of free programming to consumers.

This order also confirms that digital radio stations are subject to the
same public interest obligations as analog radio stations. Every
obligation broadcasters have in the analog world must continue in the
digital world. These include requirements that broadcasters air
programming about the significant issues facing their local communities,
provide emergency alerts and make emergency information accessible to
those with disabilities, and follow extensive requirements governing
political advertising.

The Commission made a similar determination to carry over obligations
from analog to digital in the television context as well. We increased
the obligations for children's programming in the digital world. The
Commission is currently considering a proposal that would modify
broadcasters' disclosure obligations to improve the availability and
quality of information available to the public. I support this "enhanced
disclosure"---the requiring of broadcasters to tell us and the public
exactly how much time they devote to, for example, local programming,
news and current affairs, political campaigns, or even local sports. I
am not comfortable, however, telling broadcasters exactly how much time
they must spend on each of these areas. In addition, I believe mandatory
minimums too often become ceilings on what broadcasters provide, not
floors.

Today, the Commission also adopts a Second Further Notice of Proposed
Rulemaking that seeks comment on whether we should adopt any new public
interest requirements for digital audio broadcasters. While radio
broadcasters are not subject to children's programming requirements,
they too must maintain public files and information about their efforts
to serve the public. I support modifying their disclosure obligations
too to ensure that the public has more and better information about
these efforts. I am pleased that the Notice seeks comment on this
specific issue of enhanced disclosure.

**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS**

**APPROVING IN PART, DISSENTING IN PART**

 

*Re:* *Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service (MM Docket No. 99-325)*

            Digital radio is only in its infancy, but already we are
beaming with optimism about its innovative potential.  What we see holds
special promise for consumers, with all kinds of possible new and
valuable services that can significantly alter the radio listening
experience.  Digital radio means multiple audio programming channels,
audio-on-demand services, and receivers that can pass along information
ranging from song and artist identification to news, traffic, weather
bulletins and public safety information---and all of it free of the
static, hiss and pop that sometimes limit our analog system.  Even as it
begins to deliver all this top consumers, it's great good news for
broadcasters because it provides exciting new business opportunities
that just might reinvigorate free over-the-air radio.  So there is a lot
here to be happy about. 

 

            For the most part, today's decision focuses on the
technology and mechanics of the conversion to digital radio systems and
it does a good and commendable job of this.  Among other things, we
refrain from imposing a mandatory conversion schedule, allow FM radio
stations to operate in an extended hybrid digital mode and address FM
translator and booster operations.  So far, so good. 

 

But the digital transition involves more than just developing new
technical standards.  Digital broadcasting has the power to reconfigure
the communications landscape in good and powerful ways---if we get our
policies right.  If we get our policies right, we can ensure that
digital radio enhances localism and that it translates into more locally
originated programming, public affairs coverage and airtime for local
musicians and creative artists.  If we get our policies right, we can
ensure that digital radio enhances diversity through a wider range of
programs, viewpoints and new opportunities for underserved and
non-English speaking communities.  If we get our policies right, we can
give real meaning to public interest broadcasting in the digital age. 

 

            Let's be clear.  Broadcasters today are able to multicast. 
The FCC already has authorized over 600 stations to multicast using
in-band/on-channel (IBOC) technology.  Within this number there are
broadcasters, NPR among them, making creative and local uses of their
spectrum dividend.  These innovators are improving radio.  But by
adopting a blanket authorization for ***all*** digital radio, this
decision confers a free pass on others to take their spectrum, bypass
local communities and run more of the canned and nationalized
programming that is all too common on our consolidated analog system
today and which is, truth be told, responsible for many of broadcast
radio's current problems. So I am disappointed that we move ahead
without answering important questions about how this spectrum---spectrum
that belongs to the people---will be used to benefit local communities. 
The item sidesteps what I believe is a fundamental responsibility of the
Commission: to determine what the public interest means in the digital
age. 

 

            Important questions go unanswered here.  What does the
ability to multicast several streams into a community of license have on
the competitive landscape there?  I hope we'll look at this before
anyone suggests loosening our ownership limits.  Does a company really
need to own eight radio stations in a market when it has the ability to
multicast?  How about making sure some of these multi-streams are used
for more local news and information, for local music and other creative
talent, for minority and non-English language audiences?  These are the
kinds of questions we have to answer if we are really serious about
promoting localism, competition and diversity in the digital era.  There
are other questions raised by this item.  For instance, the Commission
permits the use of digital radio spectrum for ancillary and
supplementary services, including subscription services.  What public
interest obligations attach to the use of this public spectrum when it
is used for subscription services?  Another question: would any of our
indecency rules apply to these services?  Still another: in the digital
television context, the Commission required broadcasters to pay 5
percent of their revenues if they use the public spectrum for private
subscription services.  Here we allow such uses---but with no such
payback to the American people.  Shouldn't the people being compensated
for this private use of a public resource?  Couldn't we move to make
that happen?  The list goes on.  My point is: wouldn't it be a good idea
to figure some of this out ***before*** moving ahead?

 

            My hope going into this proceeding was that we would not
only authorize an exciting new technology, but we would also help ensure
that it reaps the promise of enhanced localism and diversity that it is
so capable of providing.  Because we stopped short of completing this
mission, I must respectfully dissent in part to the item.  I do want to
thank the Bureau for its hard work to encourage the development of
digital radio, and also many in the radio industry who have devoted
their time, energy and resources to advance to pioneering what all of us
agree is a truly exciting new service.  I just hope we will eventually
find a way to make sure it does what it is capable of doing to serve the
public interest.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**APPROVING IN PART, DISSENTING IN PART**

*Re: Digital Audio Broadcasting Systems and their Impact on the
Terrestrial Radio Broadcast Service (MM Docket No. 99-325)*.

Today, the radio industry is at a challenging crossroads. With the
emergence of different platforms such as broadband, MP3, and satellite
radio, there is increased pressure on terrestrial radio to digitize and
to expand its delivery capacity and capability over the most ubiquitous
of all platforms -- over-the-air broadcasting.

The transition from analog to digital radio will undoubtedly create many
new and exciting opportunities for the radio broadcasting industry and
for the listening public. Digital radio is after all the natural
evolution of radio, bringing CD quality sound to FM and FM quality to
AM. It promises many new service offerings to eager listeners. I
wholeheartedly support the transition, and the Commission should do
everything it can to encourage it.

In supporting digital radio, I cast a vote for the future -- a future
where terrestrial radio will become an even fiercer competitive source
of news, information, and entertainment, and where a diverse group of
commercial radio broadcasters will serve the public interest, in
exchange for the free use of additional spectrum made possible by
digital technology.

Unfortunately, I cannot fully support today's item because it is another
missed opportunity for Commission to promote diversity, another dream
deferred. After years of ignoring the issue, punting the question, and
delaying a constructive dialogue to develop meaningful solutions, it is
really disappointing that the Commission has once again failed to step
up to the plate. There is no justification for the Commission's outright
refusal to "encourage digital audio broadcasters to enter into time
brokerage agreements with women and minority broadcasters or new
entrants." It is not asking a lot for us to simply encourage positive
action, but apparently it was too much for a majority of the Commission.

It seems to have been forgotten that Commission data reveals that
ownership of broadcast properties among a majority of Americans --
women, African Americans, Hispanics, Asians, and Native Americans -- is
embarrassingly and unjustifiably low. Women own or control only 3.4
percent of all broadcasting stations; and, minorities own or control
only 3.6 percent of all broadcasting stations. And it is forgotten that
nearly thirty years ago the Commission said that the improvement of
women and minority participation in the broadcasting industry was an
important Commission objective. *See e.g.,* Statement of Policy on
Minority Ownership of Broadcast Facilities, 68 FCC 2d 979 (1978).

Clearly, the transition to digital radio, which allows for new audio
broadcast streams, provides one means for the Commission to promote
diversity. By specifically refusing to encourage commercial radio
broadcasters to enter into time brokerage agreements with "women and
minorities," the Commission has failed to live up to its charter to
promote diversity of sources.[^328]

In addition to diversity concerns, localism and public interest
obligations are other concerns of mine that this item either ignores or
glosses over. In 2003, the Commission initiated a Localism Task Force to
discover the most direct way to promote localism in broadcasting. The
Task Force was to study and advise the Commission on public interest
obligations, license renewals and how to protect the rights of local
stations to make programming decisions for their communities. Nearly
four years and hundreds of thousands of dollars later, this study has
not been completed.

At the launch of the Task Force, Chairman Powell stressed that the
Commission had "heard the voice of public concern about the media loud
and clear" and that "\[l\]ocalism is at the core of these
concerns."[^329] These concerns of the American people have not changed.
It is important to find out what types of services radio broadcasters
are offering to the communities they serve and how broadcasters are
living up to their localism obligations. It is important that we take
this study seriously and encourage its completion. In developing today's
decision, such a study would have been immensely useful and we could
have better served the American public by first understanding the
current status of localism in radio broadcasting.

Finally, I find it unacceptable that, in the *Second Further Notice*
portion of today's item, the Commission is unwilling to ask general and
open questions how the "public interest, convenience and necessity" can
best be served by radio broadcasters in the digital age. As the
Commission recognizes in the item, "the potential for a more flexible
and dynamic use of the radio spectrum ... gives rise to important
questions about the nature of program-related ... obligations in digital
broadcasting because the scope of those responsibilities has not been
defined."[^330] Again later in the item, the Commission observes that
"commenters have raised important and complex issues concerning how
broadcasters' public interest obligations should be tailored to the new
radio services made possible through digital technology."[^331] Yet, the
majority refuses to permit questions about how digital spectrum in
particular presents new opportunities in the *Second Further Notice*.

In a better constructed *Notice*, the Commission could have asked
directed questions to the digital radio broadcasting industry and to the
public in order to better understand how to implement public interest
obligations in digital radio and to establish the best policy that
enforces the obligations while serving both the broadcasters and the
American public. It is imperative that the Commission advise digital
radio broadcasters on what their public interest obligations are in the
digital age, similar to way the Commission, broadcasters and public
interest groups developed children's programming rules for digital
broadcasters.

Notwithstanding these shortcomings, I support in part this item because
it facilitates the analog to digital radio transition and a modicum of
progress towards examining whether we should adopt any new public
interest requirements for digital audio broadcasters, and if so, what
those new requirements should be. Considering the importance of these
questions, it is my hope that after the pleading cycle, we will
seriously consider the public's comments, and be poised to clarify our
existing public interest obligations and develop better rules. The
public cannot afford to let this rulemaking be forgotten and buried.

**STATEMENT OF**

**COMMISSIONER DEBORAH TAYLOR TATE**

*Re: Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service (MM Docket No. 99-325)*

Today, the Commission adopts rules and policies to facilitate and
encourage an orderly transition of the nation's radio stations to
digital audio broadcasting, which holds the promise of better reception,
better sound quality, and, most importantly, more varied programming
that better promotes localism and diversity. I am pleased that, in doing
so, we allow the market to determine the pace of the transition and the
stations to determine how to use their digital bandwidth. The
flexibility to offer multicast programming of all kinds, develop varied
datacasting applications, and enter into time brokerage agreements for
digital bandwidth will unleash the creativity of the market and,
hopefully, provide opportunities to new entrants, resulting in improved
radio service for all Americans. I look forward to witnessing the many
innovative ways that radio will use these new technical capabilities to
serve the local public interest.

**STATEMENT OF**

**COMMISSIONER ROBERT M. MCDOWELL**

*Re: Digital Audio Broadcasting Systems and Their Impact on the
Terrestrial Radio Broadcast Service* *(MM Docket 99-325)*

This is a historic Order for the FCC and for America. With it, we begin
to adopt service rules and other licensing and operational requirements
for terrestrial digital radio. This Order provides both the regulatory
certainty and the flexibility that the broadcasting industry needs to
expedite the transition to digital radio and to provide higher quality
audio, diverse programming and innovative data services to the public on
free, over-the-air stations. Our Order today enables broadcast
entrepreneurs to bring to the marketplace this powerful new technology
to the benefit of all American consumers. Our action today also allows
the U.S. to catch up to several other countries that have already
adopted digital broadcast standards.

Since the Commission's selection in 2002 of the in-band on-channel
(IBOC) technology and the iBiquity IBOC systems as the standards for
interim digital operation, 1,225 radio stations have begun broadcasting
in digital. Since the Commission endorsed experimental authorizations
for multicasting just two years ago, approximately 300 broadcasters have
sought and received authorizations to multicast their audio streams.
According to iBiquity, in the Washington, D.C. area, 20 digital radio
stations are broadcasting 30 HD radio channels, with seven more channels
coming soon. As new programming streams have become available, the
number of choices in digital radio receivers sold at retail has
increased dramatically while prices have decreased. Consumers are the
beneficiaries. This technology opens up tremendous opportunities for
broadcasters to serve their communities and to compete more vigorously
in the audio marketplace.

I applaud the courageous "early adopters" of IBOC technology for taking
the initiative and embracing the capabilities of digital radio and
multicasting to provide their listeners with better quality sound and
expanded programming options, particularly for underserved and niche
audiences, without an additional government mandate. Thank goodness the
private sector did not wait for the government to act. The Commission
has delayed adopting these standards for nearly a year while we debated
whether to foist additional regulations on this budding technology. So,
I offer my heartfelt thanks to the over 1200 broadcasters who knew
better than to wait for the government.

I am especially gratified to hear that public radio stations are among
those leading the charge in early adoption. Approximately 220 public
radio stations across the country are broadcasting in digital, with 60
of those multicasting program streams. A local NPR station, WAMU,
licensed to American University, broadcasts the Adult Album Alternative
(AAA) programming of publicly-funded WTMD in Towson, MD, on its second
digital channel. This collaboration brings AAA music, focused on rock,
folk rock, country rock, modern rock, blues, folk and world music, back
to Washington, D.C., for the first time since the late 1990s. On its
third digital station, WAMU expanded its bluegrass music offering to a
full-time service.

We intend today's Order to spur additional marketplace investment in
digital radio by providing certainty for broadcasters and equipment
manufacturers to continue their roll-out of digital operations,
programming and products. By taking the "experimental" label off of
multicasting, the Order ensures that terrestrial radio has the technical
capacity to remain competitive with satellite radio services and other
media. Moreover, the flexible bandwidth policy adopted today will give
radio stations the discretion to use multiple program streams and
datacasting services as they see fit to best serve their listeners and,
therefore, their communities. The benefit to the public interest will be
immeasurable. In fact, these new multicast stations are inherently
public-interest oriented, and may change the public interest dynamic,
for the better, in the long run. But let's study how multicasting
evolves on its own and under existing public interest obligations before
we try to anticipate or micromanage the market. My guess is my
dissenting colleagues will be pleasantly surprised.

As indicated in the Order and the Further Notice portion of the item, we
should evaluate several issues, including the current and future public
interest obligations of radio stations and appropriate treatment of
subscription-based radio services, at a later time. Keep in mind that
existing public interest obligations that currently apply to
broadcasters also apply to their new multicast streams. My hypothesis is
that the proper course now is to allow these nascent digital radio
services to develop in the marketplace without heaping additional
regulations upon them. But I will read the public's comments with great
interest. We at the Commission will watch market developments carefully,
mindful of our role to adopt new rules should they become necessary. The
Further Notice is broad and strong and I wish all four of my colleagues
had supported it because it really does tee up the issues that they, and
all of us, care about so much.

I thank my colleagues for their support of this Order and the Media
Bureau staff for their hard work. I enthusiastically support the Order.

[^1]: *Digital Audio Broadcasting Systems And Their Impact On The
    Terrestrial Radio Broadcast Service*, First Report and Order, 17 FCC
    Rcd 19990 (2002) ("*DAB R&O*"). We note that in this *Second Report
    and Order* as well as in the *Second Further Notice of Proposed
    Rulemaking*, DAB generally refers to the digital service broadcast
    by radio stations whereas IBOC generally refers to the technical
    system supporting DAB service. This terminology, and the subject
    matter discussed herein, applies to terrestrial over-the-air
    broadcasting. Satellite radio service, offered by XM and Sirius, is
    not a subject under consideration in this proceeding.

[^2]: *Digital Audio Broadcasting Systems And Their Impact On The
    Terrestrial Radio Broadcast Service*, Further Notice of Proposed
    Rulemaking and Notice of Inquiry, 19 FCC Rcd 7505 (2004) ("*DAB
    FNPRM*" or "*DAB NOI*").

[^3]: Our statutory authority for implementing these goals is derived
    from, *inter alia*, Sections 1, 4, 303, 307, 312, and 315 of the
    Communications Act. *See* 47 U.S.C. §§ 151, 154, 303, 307, 312, and
    315.

[^4]: 19 FCC Rcd at 7605.

[^5]: *Id.*

[^6]: The NRSC is an industry group jointly sponsored by the National
    Association of Broadcasters and the Consumer Electronics
    Association.

[^7]: *Amendment of the Rules with Regard to the Establishment and
    Regulation of New Digital Audio Radio Services,* 5 FCC Rcd 5237
    (1990).

[^8]: *Digital Audio Broadcasting Systems And Their Impact On The
    Terrestrial Radio Broadcast Service,* 15 FCC Rcd 1722, 1726-27
    (1999) ("*DAB* *NPRM*").

[^9]: *Id*. at 1723.

[^10]: *See DAB R&O*, 17 FCC Rcd at 20006.

[^11]: A public notice seeking comment on the use of a dual FM antenna
    system was issued by the Media Bureau after the *DAB R&O* was
    released. The Media Bureau approved the use of separate FM antennas
    in 2004. *See* Public Notice, *Use of Separate Antennas to Initiate
    Digital FM Transmissions Approved*, 19 FCC Rcd 4722 (2004).

[^12]: *See DAB R&O,* 17 FCC Rcd at 20004-05.

[^13]: *See* *DAB FNPRM*, 19 FCC Rcd 7505, *et. seq.*

[^14]: *See DAB NOI,* 19 FCC Rcd at 7531.

[^15]: *See* RIAA *Ex Parte* (filed April 4, 2005).

[^16]: *See DAB NOI,* 19 FCC Rcd at 7532.

[^17]: *See* iBiquity Reply Comments (NRSC-5 proceeding) at 2. *See*
    Appendix A for a list of all commenters and reply commenters. As of
    September 30, 2005, there were 10,973 commercial radio stations, as
    well as 2,626 FM educational radio stations in the United States. Of
    the commercial stations, 6,215 were FM stations and 4,758 were AM
    stations. There were also 3,920 FM translator and booster stations.
    *See Broadcast Station Totals* as of September 30, 2005 (MB rel.
    Dec. 8, 2005) (Public Notice).

[^18]: CDBS Database, Audio Services Division, Media Bureau, *Digital
    Stations As Of March 22, 2007*.

[^19]: *See* iBiquity *Ex Parte* (filed March 4, 2005).

[^20]: 17 FCC Rcd at 20006.

[^21]: 19 FCC Rcd at 7527.

[^22]: *See* NRSC Press Release*, NRSC Approves Digital Radio
    Broadcasting Standard*, April 16, 2005. The standard is based on
    iBiquity's IBOC technology. In the iBiquity system, audio source
    coding and compression are handled by iBiquity's HD codec. NRSC-5
    does not include specifications for audio source coding and
    compression. iBiquity has committed to license all patents necessary
    to implement NRSC-5, either with or without the HD codec. It is also
    possible within the NRSC-5 standard to use audio source coding and
    compression schemes other than iBiquity's HD codec. *See* Letter
    from Michael Petricone, CEA; and Valerie Schulte, NAB, to Marlene
    Dortch, Secretary, FCC, dated May 18, 2005.

[^23]: A *Public Notice* seeking comments on the NRSC-5 standard was
    issued by the Media Bureau on June 16, 2005. *See* *Comment Sought
    on National Radio Systems Committee's* "*In-Band/On-Channel Digital
    Radio Broadcasting Standard NRSC-5*" (MB rel. June 16, 2005).
    Following the close of the comment cycle in August 2005, we will
    review the filings and then take further action.

[^24]: *DAB FNPRM*, 19 FCC Rcd at 7512.

[^25]: *See* *Balanced Budget Act of 1997*, Pub. L. No. 105-33, § 3003,
    111 Stat. 251, (codified as amended at 47 U.S.C. § 309(j)(14)(B)).

[^26]: *DAB FNPRM*, 19 FCC Rcd at 7512.

[^27]: *See* Cox Radio Comments at 2; Clear Channel Comments at 2;
    Nebraska Rural Radio Association Comments at 3; Susquehanna Radio
    Comments at 2; Miller Media Group Comments at 3; Infinity Comments
    at 3-4; National Public Radio Comments at 16; iBiquity Comments at
    5; Kenwood Comments at 7; Harris Comments at 12.

[^28]: SBA Comments at 6-7.

[^29]: Public Interest Coalition ("PIC") Reply Comments at iii. PIC
    states that allowing market forces to guide the digital radio
    transition will permit stations to convert at a pace dictated by
    their own needs. *Id.*

[^30]: iBiquity Comments at 12.

[^31]: iBiquity states that the Commission should conduct periodic
    reviews of station conversions and receiver penetration to ensure
    the functioning of market forces. iBiquity recommends the
    commencement of a first review five years after adoption of a
    *Second Report and Order* in this proceeding to check on the
    progress of the conversion. iBiquity Comments at 12-13. Other
    commenters agree that the Commission should periodically review the
    progress of the DAB conversion process. *See* SBAs Comments at 7
    (stating that the Commission should facilitate the collection of
    data needed for monitoring the transition from analog to digital,
    but it should not undertake pervasive industry regulation unless,
    and until, it is clear the marketplace has indeed faltered); *see
    also* Cox Comments at 3.

[^32]: "kbps" is the acronym for kilobits per second (1000 bits per
    second).

[^33]: In the extended hybrid mode, digital carriers are added at
    frequencies immediately adjacent to the analog FM signal.  The three
    extended hybrid modes (MP2, MP3, and MP4) are defined by the number
    of digital partitions added (one, two, or four pairs), respectively.

[^34]: NAB Reply Comments at 13-14.

[^35]: *See* NPR *Ex Parte* (filed Nov. 3, 2004).

[^36]: 19 FCC Rcd at 7511.

[^37]: NAB Comments at 4. iBiquity agrees that additional work is
    required before there is an industry consensus on the IBOC
    all-digital system. iBiquity Comments at 13.

[^38]: NPR Comments at 24.

[^39]: PIC Comments at 16.

[^40]: An audio codec compresses digital audio data prior to
    transmission and decompresses data received.

[^41]: 19 FCC Rcd at 7513. Section 303 of the Act compels the Commission
    to "study new uses for radio, provide for experimental uses of
    frequencies, and generally encourage the larger and more effective
    uses of radio in the public interest." 47 U.S.C. § 303(g).

[^42]: NAB Comments at 8.

[^43]: NAB Reply Comments at 9.

[^44]: NPR Comments at 19.

[^45]: *Id.* at 12.

[^46]: iBiquity Comments at 13.

[^47]: Cox Comments at 3-4.

[^48]: *In the Matter of Advanced Television Systems and Their Impact
    Upon the Existing Television Broadcast Service*, 12 FCC Rcd 12809,
    12820-21 (1997).

[^49]: *See* ¶ 5, *supra*.

[^50]: *See, e.g*., Infinity Broadcasting Comments at 5-6; Clear Channel
    Comments at 3-4; NAB Reply Comments at 4-15; *see also* Greater
    Media Comments at 5-8.

[^51]: 19 FCC Rcd at 7513.

[^52]: iBiquity Comments at iii.

[^53]: NAB Comments at 9.

[^54]: Cox Comments at 4.

[^55]: *See supra* at ¶ 29 (radio stations must provide a free digital
    audio programming service that is comparable to or better in audio
    quality than that of their current analog service).

[^56]: *See* *Tomorrow Radio Field Testing in the Washington, D.C., New
    York City, San Francisco and Los Angeles Radio Markets*, January 6,
    2004.

[^57]: iBiquity Comments at 19-20.

[^58]: 19 FCC Rcd at 7513-14. On March 8, 2005, the Media Bureau issued
    a *Public Notice* that clarified its policy regarding the provision
    of multiple audio streams by radio stations broadcasting in a
    digital format. The Bureau noted that multicast operations do not
    fall within the scope of the notification procedures authorized in
    the *First Report and Order* in this proceeding. As such, licensees
    are required to obtain experimental authorization up until the time
    that the Commission changes its policies and procedures. *See*
    Public Notice, *Commission Clarifies Policy Regarding Multiple Audio
    Streams in IBOC Transmissions*, DA 05-609 (MB rel. Mar. 8, 2005).

[^59]: *See, e.g*, Cox Comments at 3-4; Susquehanna Broadcasting
    Comments at 3-4; *see also* Entercom Communications Comments at 4-5.

[^60]: *See*, *e.g.*, International Association of Audio Information
    Services ("IAAIS") Comments *passim*; Harris Comments at 5; and NPR
    Comments (filed Feb. 19, 2002 in this docket) at 5-6.

[^61]: *See, e.g.*, WAMU Comments at 3; WERU comments at 1; Wisconsin
    Educational Communications Board Comments at 1-3; and Capitol
    Broadcasting Reply Comments at 3-6;

[^62]: Experts state that one 96 kbps FM channel could be divided into
    up to eight streams of digital programming. *See* Leslie Stimson,
    *Radio Groups Ponder Multi-Channel*, Radio World, March 30, 2005.

[^63]: *See*, *e.g*., KUAC-FM Comments at 1 (considering using
    multicasting to supplement existing services including the live
    broadcast of the Fairbanks North Star Borough Assembly and School
    Board meetings).

[^64]: *See*, *e.g*., Alaska Public Broadcasting Commission Comments at
    1 ("We have a number of Alaska Native populations with specific
    Native language needs that could be met using the supplemental audio
    channel. In fact, in many of our communities we have significant
    percentages of Latinos, Asian/Pacific Island languages and they too
    need special services that simply cannot be met using a single
    channel.").

[^65]: *See*, *e.g*., KUVO Comments at 1 ("Providing more Hispanic music
    and education to our community is one of our main objectives and
    this \[supplemental audio\] channel would help us accomplish that
    goal."); KRVS-FM Comments (noting location of Acadiana region of
    French speaking people within the station's service area and the
    station\'s interest in multicasting to provide a "majority
    French/indigenous channel").

[^66]: KISU-FM Comments at 1; KUAT-FM Comments at 2.

[^67]: KUT-FM Comments at 1; KBRW-AM/FM Comments at 1.

[^68]: WNCU-FM Comments at 3.

[^69]: KMUW-FM Comments at 1; WDUQ-FM Comments at 1.

[^70]: KERA-FM Comments at 1.

[^71]: WBGO-FM Comments at 1; WHYY-FM Comments at 1.

[^72]: WAMU-FM Comments at 3.

[^73]: KQED-FM Comments at 2.

[^74]: WAER-FM Comments at 1; WDET-FM Comments at 1.

[^75]: *See* *NPR's Tomorrow Radio Initiative Brings Multicasting to
    Digital Radio*,
    <http://www.npr.org/about/press/050418.tomorrowradio.html>, April
    18, 2005 ("This summer, NPR will begin offering five programmed
    music formats to multicasting stations: classical, jazz,
    electronica, triple-A, and folk. Other program offerings NPR is
    developing for stations with new channels include a news and
    information service and formats that would serve culturally diverse
    audiences."). *See also* *Westwood One to Offer Multicast Programs*,
    *at* <http://www.radioworld.com/dailynews/one.php?id=7011>
    ("Westwood said it would make its lineup of news, sports, talk and
    entertainment programming, as well as its traffic and information
    content available to HD Radio FM broadcasters multicast services.").

[^76]: *See* iBiquity Reply Comments (NRSC-5 proceeding) at 3 (stating
    that the "Commission will continue to see broadcasters experimenting
    with new formats, services and creative solutions that will provide
    great benefits to listeners, increase consumer choice and promote
    diversity in broadcasting.")

[^77]: FM stations currently multicasting pursuant to experimental
    authority from the Commission are released from the requirement to
    submit a report, as specified in the letter granting multicasting
    authority.

[^78]: Mt. Wilson FM Broadcasters Comments at 1.

[^79]: 19 FCC Rcd at 7514.

[^80]: "Time brokerage" (also known as "local marketing") is the sale by
    a licensee of discrete blocks of time to a "broker" that supplies
    the programming to fill that time and sells the commercial spot
    announcements in it.

[^81]: 47 C.F.R. § 73.624(c)(2).

[^82]: SBAs Comments at 6, 10.

[^83]: An eligible entity is an entity that would qualify as a small
    business consistent with SBA standards for its industry grouping.
    *See* *2002 Biennial Regulatory Review - Review of the Commission\'s
    Broadcast Ownership Rules and Other Rules Adopted Pursuant to
    Section 202 of the Telecommunications Act of 1996*, 18 FCC Rcd.
    13620, 13811 n. 1043 (2003).

[^84]: *See* 47 U.S.C. § 310(d) ("No construction permit or station
    license, or any rights thereunder, shall be transferred, assigned,
    or disposed of in any manner, voluntarily or involuntarily, directly
    or indirectly, or by transfer of control of any corporation holding
    such permit or license, to any person except upon application to the
    Commission and upon finding by the Commission that the public
    interest, convenience, and necessity will be served thereby.").

[^85]: 19 FCC Rcd at 7514.

[^86]: For example, REC Networks assert that when there is a substantial
    penetration of DAB receivers in the marketplace, owners of multiple
    FM stations in a single market should consolidate their multiple FM
    station broadcasts on a single channel, multicast their programming
    services using IBOC technology, and then divest their additional
    transmitter facilities. REC Networks Comments at 3. The SBAs state
    that brokering of a multicast audio stream would not constitute an
    illegal transfer of control. They argue that leasing of a digital
    stream is consistent with longstanding Commission treatment of time
    brokerage arrangements. SBAs Comments at 10.

[^87]: PIC Reply Comments at 14.

[^88]: *See* 47 C.F.R. § 73.3555(a) and notes j(1) and (2).

[^89]: *See* 47 C.F.R. § 73.295.

[^90]: *See* 47 C.F.R. § 73.593.

[^91]: *See* 47 C.F.R. § 73.127.

[^92]: In the analog context, the station identification, delayed
    recording, and sponsor identification announcements required by
    Sections 73.1201, 73.1208, and 73.1212 are not applicable to leased
    communications services transmitted via services that are not of a
    general broadcast nature. *See* 47 C.F.R. § 73.127; 47 C.F.R. §§
    73.1201, 73.1208, and 73.1212.

[^93]: *See* 47 C.F.R. §§ 73.127(e) and 73.295(e).

[^94]: ID3 is a file tagging software used to provide text information
    such as artist name and song title information. ID3 also supports
    text descriptions with ads, such as phone numbers and Web addresses.

[^95]: *See* <http://www.ibiquity.com/technology/standards.htm>, for a
    general discussion of new datacasting opportunities; *see also*,
    Leslie Stimson, *Radio Groups Ponder Multi-Channel*, Radio World,
    Mar. 30, 2005 (listing possible new datacasting services as remote
    digital audio recording and downloading DAB streams to MP3 players
    and computer hard drives).

[^96]: Robert Struble, iBiquity's CEO, has noted that the text of
    advertising messages could be synchronized to display on a DAB
    receiver's text screen at the same time as a related commercial is
    broadcast. *See* Glenn Fleishman, *Revolution on the Radio*, New
    York Times, July 28, 2005, at C11.

[^97]: *See*
    [http://www.ibiquity.com/technology/data.htm](http://www.ibiquity.com/technology/standards.htm).

[^98]: 19 FCC Rcd at 7516.

[^99]: iBiquity Comments at 23-24.

[^100]: NAB Comments at 12. SBAs state that the Commission should allow
    supply and demand to determine what datacasting services are
    deployed in a market. SBAs Comments at 13.

[^101]: Bloomberg Reply Comments at 3.

[^102]: SBAs Comments at 6.

[^103]: NPR Comments at 6-7.

[^104]: IBOC DAB has the potential to limit access to certain channels
    by receiver serial number, just like satellite radio receivers are
    presently able to do.

[^105]: 19 FCC Rcd at 7516.

[^106]: *See* iBiquity Comments at 17; NPR Comments at 18; and NAB
    Comments at 11.

[^107]: iBiquity argues that broadcasters can currently provide both
    datacasting and supplemental audio channels using SCA analog
    frequencies without incurring additional spectrum fees and the same
    approach should be applied to digital services. iBiquity Comments at
    19-20. NAB states that it would be inappropriate to consider fees at
    this time because a fee requirement would have the effect of
    discouraging innovation and new services that would benefit the
    public. NAB Comments at 13. We seek further comment on fees in the
    *Second Further Notice of Proposed Rulemaking*, below.

[^108]: 47 U.S.C. § 397(6).

[^109]: *See Omnibus Budget Reconciliation Act of 1981*, Pub. Law No.
    97-35, § 1231, 95 Stat. 357, 731 (codified at 47 U.S.C. § 399B);
    s*ee also* H.R. Rep. No. 97-82, at 13-14.

[^110]: Section 399B also requires that public stations engaged in
    revenue generating activities comply with accounting procedures
    designed to separately identify these commercial revenues and costs,
    and it prohibits Corporation for Public Broadcasting funds from
    being used to defray any costs associated with these activities. 47
    U.S.C. § 399B.

[^111]: 47 U.S.C. § 399B(a)(2).

[^112]: *See* 47 C.F.R. § 73.503(a)(2).

[^113]: *See Reexamination of the Comparative Standard for Noncommercial
    Educational Applicants*, 18 FCC Rcd 6691, 6695 n.28 (2003).

[^114]: Section 73.621 of the Commission's rules provides that
    "noncommercial educational broadcast stations will be licensed only
    to nonprofit educational organizations upon a showing that the
    proposed stations will be used primarily to serve the educational
    needs of the community; for the advancement of educational programs;
    and to furnish a nonprofit and noncommercial television broadcast
    service." 47 C.F.R. § 73.621.

[^115]: *See Ancillary or Supplementary Use of Digital Television
    Capacity by Noncommercial Licensees*, 16 FCC Rcd 19042 (2001) ("*DTV
    NCE A&S Orde*r")*.*

[^116]: *Id.* Like commercial DTV stations, NCE DTV licensees must pay a
    fee of five percent of gross revenues generated by ancillary or
    supplementary services provided on their DTV service.

[^117]: [*Office of Communication, Inc. of United Church of Christ v.
    F.C.C.*](http://pacer.cadc.uscourts.gov/docs/common/opinions/200305/02-1039a.pdf),
    327 F.3d 1222 (D.C. Cir. 2003).

[^118]: 19 FCC Rcd at 7530.

[^119]: NPR Reply Comments at 19.

[^120]: NPR Comments at 18.

[^121]: PIC Comments at 42-43.

[^122]: *Id.* at 44.

[^123]: *Id.* at 45.

[^124]: *Id*. at 44-45.

[^125]: NPR Reply Comments at 16-17. *See* 47 C.F.R. § 73.621.

[^126]: 47 C.F.R. § 73.503(a)(2).

[^127]: NPR Reply Comments at 16-17.

[^128]: *Id.* at 17.

[^129]: This is an approach that WAMU-FM is pursuing. *See* *Public
    Radio Stations Tentatively Embracing 2nd Digital Audio Channel*,
    Communications Daily, at 9, June 25, 2004 (noting that, pursuant to
    tests conducted under an experimental license, "WAMU has found that
    splitting the bandwidth evenly into 48 kbps each was 'extremely
    good' for both the main and the supplemental channel \[sic\]").

[^130]: *See* *generally Creation of Low Power Radio Service*, 15 FCC
    Rcd 2205 (2000). We note that a 100 watt Low Power FM station can
    serve an area with a radius of approximately 3.5 miles. The
    Commission has yet to authorize any 10 watt stations in the LPFM
    service.

[^131]: 19 FCC Rcd at 7531.

[^132]: iBiquity Comments at 33.

[^133]: *See* *Creation of a Low Power Radio Service*, 20 FCC Rcd 6763
    (2005).

[^134]: In the *Second Order on Reconsideration*, the Commission
    modified its rules governing minor changes and technical minor
    amendments for LPFM stations. We also clarified the definition of
    locally originated programming for purposes of resolving mutually
    exclusive LPFM applications. In the *Further Notice of Proposed
    Rulemaking*, the Commission sought comment on a number of technical
    and ownership issues related to LPFM. *See* *Creation of a Low Power
    Radio Service*, 20 FCC Rcd at 6768.

[^135]: *See* 47 C.F.R. § 73.1695.

[^136]: *See* 47 C.F.R. §§ 73.3571, 73.3573.

[^137]: *See* 47 C.F.R. § 73.3500.

[^138]: *See* 19 FCC Rcd at 7528. We note that the following forms may
    be at issue: (1) Form 301---Application for Authority to Construct
    or Make Changes in a Commercial Broadcast Station; (2) Form
    302\-\--AM\--Application for AM Broadcast Station License; (3) Form
    302-FM---Application for FM Broadcast Station License; (4) Form
    340---Application for Authority to Construct or Make Changes in a
    Noncommercial Educational Broadcast Station; (5) Form
    349\-\--Application for Authority to Construct or Make Change in an
    FM Translator or FM Booster Station; and (6) Form 350---Application
    for an FM Translator or FM Booster Station License. In the *DAB
    FNPRM*, we sought comment on any specific changes to these forms.
    *Id.*

[^139]: 19 FCC Rcd at 7518-21.

[^140]: 47 U.S.C. § 303.

[^141]: *See*, *e.g*., 47 C.F.R. § 73.3526(e)(12) (commercial stations);
    47 C.F.R. § 73.3527(e)(8) (noncommercial stations).

[^142]: 19 FCC Rcd at 7517.

[^143]: Section 312(a)(7) provides that "\[t\]he Commission may revoke
    any station license or construction permit for willful or repeated
    failure to allow reasonable access to or permit purchase of
    reasonable amounts of time for the use of a broadcasting station by
    a legally qualified candidate for Federal elective office on behalf
    of his candidacy." 47 U.S.C. § 312(a)(7); *see* 47 C.F.R. § 73.1944.
    This right of access does not apply to candidates for state or local
    offices.

[^144]: Section 315(a) of the Act, as amended, provides that "if any
    licensee shall permit any person who is a legally qualified
    candidate for any public office to use a broadcasting station, he
    shall afford equal opportunities to all other such candidates for
    that office in the use of such broadcasting station." 47 U.S.C. §
    315(a); *see* 47 C.F.R. § 73.1941. Section 73.1940 of the
    Commission's rules defines "legally qualified candidate" as any
    person who has publicly announced his or her intention to run for
    nomination or office, is qualified under the applicable local,
    state, or federal law to hold office for which he or she is a
    candidate, and has qualified for ballot placement or has otherwise
    met all the qualifications set forth in the Commission's rules. 47
    C.F.R. § 73.1940. In addition, both the Act and the rules narrowly
    define the term "use" and exclude from the definition candidates'
    appearances in *bona fide* newscasts, interviews, documentaries, and
    the on-the-spot coverage of news events. 47 U.S.C. § 315(a)(1)-(4);
    *see* 47 C.F.R. § 73.1941(a)(1)-(4). Licensees have no power of
    censorship over the material broadcast under the equal opportunity
    provisions of Section 315(a). 47 U.S.C. § 315(a); *see* 47 C.F.R. §
    73.1941. Two years ago, Congress amended the lowest unit charge
    provision of Section 315, codified the Commission's existing
    political file rule, and expanded that rule to require that a
    broadcast's station's public file contain information regarding
    certain issue advertising. *See* *Bipartisan Campaign Reform Act of
    2002*, P. Law 107-155, 116 Stat. 81, 2002 ("BCRA"). The Supreme
    Court upheld these amendments to the Communications Act in
    *McConnell v. FEC*, 124 S. Ct. 619 (2003).

[^145]: Section 507 of the Act states that "Any employee of a radio
    station who accepts or agrees to accept from any person (other than
    such station), or any person (other than such station) who pays or
    agrees to pay such employee, any money, service or other valuable
    consideration for the broadcast of any matter over such station
    must, in advance of such broadcast, disclose the fact of such
    acceptance or agreement to such station."). 47 U.S.C. § 508; 47
    C.F.R. § 73.4180. The requirement, in industry parlance, addresses
    "payola" and "plugola." Payola occurs when a station fails to
    announce the receipt of something valuable in return for the
    inclusion of material in a broadcast. Plugola describes a situation
    in which a station fails to identify an outside business interest of
    the licensee, its parent, its affiliates, or an employee in the
    broadcast of particular materials.

[^146]: Section 508 of the Act addresses prohibited practices in
    contests of knowledge, skill, or chance. Under the Act, it is
    unlawful for any person, with intent to deceive the listening or
    viewing public, to supply to any contestant in a purportedly bona
    fide contest of intellectual knowledge or intellectual skill any
    special and secret assistance whereby the outcome of such contest
    will be in whole or in part prearranged or predetermined. *See* 47
    U.S.C. § 509.

[^147]: Section 317 of the Act and the Commission's rules state that all
    matter broadcast by any radio station for which any money, service
    or other valuable consideration is directly or indirectly paid, must
    announce that such matter is paid for or furnished by the paying
    party. *See* 47 U.S.C. § 317(a)(1); 47 C.F.R. § 73.1212.

[^148]: Section 1335 of Title 15 of the U.S. Code, and the Commission's
    implementing regulations, makes it illegal to advertise cigarettes
    and little cigars on any medium of electronic communication subject
    to the Commission's jurisdiction. *See* 15 U.S.C. § 1335; 47 C.F.R.
    § 73.4055. Thus, application of this rule to DAB is statutorily
    required.

[^149]: Under Section 73.1208, any taped, filmed or recorded program
    material in which time is of special significance, or by which an
    affirmative attempt is made to create the impression that it is
    occurring simultaneously with the broadcast, must be announced at
    the beginning as taped, filmed or recorded. The language of the
    announcement shall be clear and in terms commonly understood by the
    public. The purpose of this rule is to avoid public confusion by
    informing the listening audience that the material presented is not
    being broadcast in real time. *See* 47 C.F.R. § 73.1208.

[^150]: 19 FCC Rcd at 7521.

[^151]: Specifically, PIC promotes the following six principles: (1)
    free, over-the-air radio is a vital national interest that must be
    preserved and protected for civic, public safety, informational, and
    cultural reasons; (2) broadcasters must add as much additional
    capacity for the provision of new and independent voices or for
    serving underserved communities as they add for other purposes, such
    as offering commercial services that increase format diversity or
    subscription services; (3) radio must use digital technology to
    improve its offering of emergency information to all audiences,
    including those listening to subscription services, no later than it
    deploys other new services; (4) core statutory obligations must
    apply to all newly-created digital channels, and need modest
    alteration for a digital environment; (5) benefits that accrue to
    digital audio broadcasters must be accompanied by specific public
    interest obligations enforced through Commission rules and renewal
    processing guidelines; and (6) the Commission must ensure that
    technology advancements support a broader benefit to the public.
    *See* PIC Comments at 8-14.

[^152]: *Id.*

[^153]: PIC advocates that this menu should place the highest priority
    on offering capacity for audio programming to non-affiliated
    noncommercial programmers, "small disadvantaged businesses," and
    commercial programmers serving underserved audiences. The menu
    should also include options to offer additional news and public
    affairs programming, and to offer public interest data services.
    *Id.* at iv.

[^154]: Capitol Broadcasting Comments at 3-4.

[^155]: NAB Comments at 18; *see also* NPR Comments at 21.

[^156]: NAB Reply Comments at 16-17.

[^157]: The NAB, citing *Subscription Video*, asserts that the
    Commission has declined to impose traditional broadcast regulations
    on subscription services carried on FM subcarrier frequencies, such
    as background music programs. NAB argues that the Commission should
    refrain from applying the various "broadcast type" public interest
    requirements to IBOC radio subscription services, at least until
    those services, if any, have matured. NAB Comments at 22 *citing*
    *Subscription Video*, 2 FCC Rcd 1001 (1987).

[^158]: NAB states that the proposals made by PIC and other commenters
    are being specifically, thoroughly, and more properly addressed in
    one or more pending proceedings focusing on broadcasters' public
    interest obligations. NAB Reply Comments at 19.

[^159]: *See generally* Further Notice of Proposed Rulemaking *supra*,
    ¶¶ 113-117. We note that there are outstanding dockets addressing
    the public interest obligations of television stations where many of
    these issues may be fully explored. *See* *Public Interest
    Obligations of DTV Broadcast Licensees*, 14 FCC Rcd 21633 (1999)
    ("*DTV Public Interest NOI*"); *see also* *Broadcast Localism*, 19
    FCC Rcd 12425 (2004).

[^160]: *See* 47 C.F.R. § 73.1201.

[^161]: 19 FCC Rcd at 7520.

[^162]: For example, WOR in New York City identifies its digital signal
    on digital radio receivers as "710 WOR-HD: New York's FIRST Digital
    AM Radio Station." *See* Thomas R. Ray III, *HD Radio Receivers
    Reach Stations*, RADIO WORLD, January 2, 2004.

[^163]: There are rules for simultaneous AM (535-1605 kHz) and expanded
    band AM (1605-1705 kHz) broadcasts. If the same licensee operates an
    AM broadcast station in the 535-1605 kHz band and an AM broadcast
    station in the 1605-1705 kHz band with both stations licensed to the
    same community and simultaneously broadcasts the same programs over
    the facilities of both such stations, station identification
    announcements may be made jointly for both stations for periods of
    such simultaneous operations. *See* 47 C.F.R. § 73.1201(c)(2).

[^164]: PIC Comments at 36-37.

[^165]: PIC Reply Comments at 16.

[^166]: iBiquity Comments at 26.

[^167]: SBAs Comments at 16.

[^168]: *See* *Second Periodic Review of the Commission's Rules and
    Policies Affecting the Conversion to Digital Television*, 19 FCC Rcd
    18279, 18354 (2004).

[^169]: 47 C.F.R. §§ 11.44, 11.54.

[^170]: 47 C.F.R. §§ 11.1, 11.55.

[^171]: *See* 47 C.F.R. § 73.1250. Emergency situations in which the
    broadcasting of information is considered as furthering the safety
    of life and property include, but are not limited to the following:
    tornadoes, hurricanes, floods, tidal waves, earthquakes, icing
    conditions, heavy snows, widespread fires, discharge of toxic
    gasses, widespread power failures, industrial explosions, civil
    disorders and school closing and changes in school bus schedules
    resulting from such conditions. *Id.* § 73.1250(a).

[^172]: *Id.* § 73.1250(f).

[^173]: 19 FCC Rcd at 7519.

[^174]: SBAs Comments at 16.

[^175]: NPR Comments at 20. NAB states that EAS signals should be
    carried on the main audio channel portion of the digital audio
    stream; otherwise, listeners using IBOC receivers would receive EAS
    alerts only if they were in a weak signal (or otherwise reception
    impaired) area where the receiver had "blended to analog." NAB
    further states that it is appropriate in certain circumstances to
    require EAS functionality on certain types of secondary audio
    services. NAB Comments at 24.

[^176]: *Id*.

[^177]: *See* *Review of the Emergency Alert System*, 19 FCC Rcd 15775
    (2004).

[^178]: The action originated, in part, from recommendations of the
    Media Security and Reliability Council (an FCC Advisory Committee)
    and the Partnership for Public Warning.

[^179]: *See* 19 FCC Rcd at 15786-87.

[^180]: *See Review of the Emergency Alert System*, 20 FCC Rcd 18625,
    18638-18639, ¶¶ 36-39 (2005).

[^181]: *Amendment of Part 2 of the Rules and Regulations to Establish
    An Allocation in the 220-225 MHz Band for the Radio Reading
    Services*, 2 FCC Rcd 1146 (1987); *see also* 47 C.F.R. §§ 73.295 and
    73.593.

[^182]: *Radio* *Broadcast Services* 48 FR 26608, 26609 (1983). The
    Association of Radio Reading Services (now IAAIS) sought regulatory
    safeguards for existing radio reading services during the SCA market
    expansion in the late 1970s. *See* Radio Reading Services and FM
    Subcarriers History and Technical Details, *at*
    <http://reader.ku.edu/oldsite/scatech.htm>.

[^183]: This public interest duty arises from Section 309 of the Act.
    *See* *Radio Broadcast Services*, 48 FR at 26614 (This requirement
    "derives from Section 309 of the Communications Act, as instructed
    by the specific goals for public broadcasting stations set forth in
    Section 399B.").

[^184]: *See id.*

[^185]: *See* 17 FCC Rcd at 19996.

[^186]: 19 FCC Rcd at 7516.

[^187]: *See* Letter from Michael Starling and David Andrews, NPR, to
    Marlene H. Dortch, Secretary, FCC, in MM Docket No. 99-325, (May 24,
    2002), attaching *Further Report on Analog SCA Compatibility with
    iBiquity Digital's FM-IBOC System* (Mar. 2002); *see also* ¶ 44,
    *supra*, for an explanation of SCA services.

[^188]: iBiquity Comments at 24-25. iBiquity states that if the host
    station is broadcasting important analog SCA-based services and
    cannot tolerate interference, it may elect not to transmit in DAB.
    The radio station also has the option to use scalability rather than
    the extended hybrid mode to support advanced services. iBiquity
    states that these decisions, however, should be left to the radio
    station. *Id.*

[^189]: *See* *Further Report on Analog SCA Compatibility with iBiquity
    Digital's FM-IBOC System*, attached to Comments of NPR and IAAIS,"
    (filed May 24, 2002).

[^190]: Harris Comments at 8.

[^191]: *Id.* The parameters of the FM emissions mask are found in
    Section 73.317 of the Commission's rules. 47 C.F.R. § 73.317.

[^192]: IAAIS Comments at 2.

[^193]: *Id.* at 5.

[^194]: *Id.* at 4. IAAIS additionally states that the digital
    information sent to radios can be accessed only after authorization,
    thus protecting the reading service copyright exemption for use of
    the thousands of print materials read aloud.

[^195]: iBiquity Reply Comments at 5. iBiquity asserts that the radio
    reading services do not need a dedicated 20 or 24 kbps channel to
    match their current service. iBiquity indicates that high quality
    "voice" channels can be attained using 8 or 10 kbps codecs designed
    for those low bit rates. In some cases, those codecs can support
    voiceover programming with background music. Although this class of
    codec is not designed for higher quality music, iBiquity asserts
    that high quality music programming would be beyond the mission of
    the reading service stations. iBiquity states that it will identify
    a suitable solution that can function at 12 kbps. *Id.*

[^196]: NPR Reply Comments at 10.

[^197]: *Id.* at 3-4.

[^198]: iBiquity Reply Comments at 7-9.

[^199]: *See* 47 U.S.C. § 255.

[^200]: *See* *Report and Order and Further Notice of Inquiry*, 16 FCC
    Rcd 6417 (1999).

[^201]: *See A**merican Library Ass\'n* *v. FCC*, 406 F.3d 689 (D.C.
    Cir. 2005) (holding that the Commission lacked authority to impose
    broadcast content redistribution rules on equipment manufacturers
    using ancillary jurisdiction because the equipment at issue was not
    subject to the Commission\'s subject matter jurisdiction over wire
    and radio communications).

[^202]: iBiquity notes that it is developing a conditional access
    solution for the IBOC system to ensure that reading services are
    able to maintain their copyright exemption. iBiquity is supplying
    software, hardware and laboratory facilities to facilitate
    additional testing to determine the appropriate low bit rate codec
    that can be used for reading services. iBiquity states that even
    though it has engineered the HDC codec to function at bit rates low
    enough to accommodate reading services, it has consistently assured
    the reading services that the IBOC system will operate compatibly
    with any low bit rate codec the reading services select for
    inclusion in reading service devices. iBiquity Reply Comments at
    6-9.

[^203]: NPR Comments at 20-21.

[^204]: *See* Letter from Michael Riksen, NPR, to Marlene Dortch,
    Secretary, FCC, in MM Docket No. 99-325, (October 20, 2004),
    attaching *Report on Perceptual Testing of Coders at Low- and Very
    Low-Bit Rates*.

[^205]: NPR Comments at 6-7.

[^206]: 19 FCC Rcd at 7520.

[^207]: *See* 47 C.F.R. §§ 73.1740 (commercial stations) and 73.561 (NCE
    FM stations).

[^208]: SBAs Comments at 17.

[^209]: *See* 47 C.F.R. §§ 73.132, 73.232. Under these rules, no
    licensee of an AM or FM broadcast station shall have any arrangement
    with a network organization that prevents or hinders another station
    serving substantially the same area from broadcasting the network\'s
    programs not taken by the former station, or which prevents or
    hinders another station serving a substantially different area from
    broadcasting any program of the network organization. This section
    does not prohibit arrangements under which the station is granted
    first call within its primary service area upon the network\'s
    programs.

[^210]: *See* SBAs Comments at 17.

[^211]: *See* NAB *Ex Parte* (filed March 5, 2004).

[^212]: *See* Public Notice, *Comment Sought on Use of Digital AM
    Transmissions During Nighttime Hours*, 19 FCC Rcd 6869 (MB 2004).
    Questions concerning AM nighttime operations were also raised in the
    *DAB FNPRM*. *See* 19 FCC Rcd at 7522-23.

[^213]: SBA Comments \[in response to the AM Nighttime Public Notice\]
    at 17-18.

[^214]: *See*, *e.g*., REC Networks Comments, Amherst Alliance Comments,
    Gerry Bishop Comments, David L. Hershberger Comments, Donald E.
    Mussell, Jr. Comments, Paul Dean Ford, P.E. Comments.

[^215]: Nighttime secondary operation for an AM station is operation
    with power less than 250 watts and antenna efficiency less than 241
    millivolts per meter at one kilometer for one kilowatt input. *See*
    47 C.F.R. §§ 73.21(a)(3) and 73.182(a)(4).

[^216]: *See* Public Notice*, Use of Separate Antennas to Initiate
    Digital FM Transmissions Approved,* 19 FCC Rcd 4722 (MB 2004).

[^217]: 19 FCC Rcd at 7525-26.

[^218]: A sample digital notification letter for FM stations using dual
    antennas is available at
    http://www.fcc.gov/mb/audio/digital/index.html.

[^219]: *See generally* 47 C.F.R. § 74.1231.

[^220]: 19 FCC Rcd at 7526.

[^221]: Harris Corporation Comments at 5; Western Inspirational
    Broadcasters, Inc. Comments at 2; Pataphysical Broadcasting
    Foundation, Inc. Comments at 4; NPR Comments at 28; and NAB Reply
    Comments at 35.

[^222]: Pursuant to experimental authorization issued by the Commission,
    KCSN-FM and NPR conducted field tests in the Los Angeles
    metropolitan area in December 2004 to evaluate KCSN-FM's signal
    coverage via mobile reception. NPR and the station attempted to
    evaluate IBOC DAB system coverage in terms of received signal level.
    The field tests evaluated reception availability and compared actual
    data to predictions using a computerized propagation model. NPR
    chose KCSN-FM to conduct these tests because the station operates
    the nation's first IBOC DAB booster which presents unique challenges
    for technical performance. The testing indicated that the booster
    generally increased the availability of KCSN-FM's digital signal,
    but that there still coverage issues in certain service areas. *See*
    Kean & Evans, *Tomorrow Radio Signal Coverage Report for Hybrid IBOC
    DAB Booster of KCSN-FM* (California State University Northridge),
    July 2005.

[^223]: 19 FCC Rcd at 7525.

[^224]: NPR Comments at 24; Paul Delaney Comments at 5.

[^225]: REC Networks Reply Comments at 4.

[^226]: *See* 47 C.F.R. § 73.525.

[^227]: A super-powered FM station is a station for which the
    power/antenna height combination exceeds the class limit set forth
    in 47 C.F.R. §73.211. Such stations were authorized before the
    current class limits were adopted, and have "grandfathered" status.

[^228]: Livingston Comments at 1.

[^229]: Press Communications Comments at 4.

[^230]: WPNT Comments at 5.

[^231]: *See DAB R&O*, 17 FCC Rcd at 20004; *see also* Public Notice,
    *IBOC Notification Procedures Effective Immediately,* 18 FCC Rcd
    5029 (MB 2003).

[^232]: *See* iBiquity Comments at 11.

[^233]: *See* 17 FCC Rcd at 20003.

[^234]: 19 FCC Rcd at 7517.

[^235]: 17 FCC Rcd at 20002.

[^236]: 19 FCC Rcd at 7527.

[^237]: iBiquity Comments at 25; *see* *also* *Revised Patent Procedures
    of the Federal Communications Commission*, 3 FCC 2d 26 (1966).

[^238]: Douglas E. Smith Comments at 5; Radio Kings Bay, Incorporated
    Comments at 5; and Mohnkern Electronics, Inc. Reply Comments at 1.

[^239]: *See* 19 FCC Rcd at 7521-26.

[^240]: *See DAB R&O*, 17 FCC Rcd at 20006, n.73.

[^241]: 19 FCC Rcd at 7532. The Commission has rules pertaining to FM
    broadcasting and international agreements relevant to the service.
    Specifically, Section 73.207 states that under the Canada-United
    States FM Broadcasting Agreement, domestic U.S. allotments and
    assignments within 320 kilometers (199 miles) of the common border
    must be separated from Canadian allotments and assignments by not
    less than the distances provided in the Commission's rules. It also
    states that under the 1992 Mexico-United States FM Broadcasting
    Agreement, domestic U.S. assignments or allotments within 320
    kilometers (199 miles) of the common border must be separated from
    Mexican assignments or allotments by not less than the distances
    stated in the rule. *See* 47 C.F.R. § 73.207.

[^242]: iBiquity Comments at 39.

[^243]: *See* Barry McLarnon Reply Comments at 3-4.

[^244]: *See* Section 4.2 of the *Agreement Between the Government of
    the United States of America and the Government of Canada Relating
    to the AM Broadcasting Service in the Medium Frequency Band*, 1984.

[^245]: *See* Barry McLarnon Comments at 3. According to McLarnon, the
    hybrid IBOC AM system creates two new "stations" in the first
    adjacent channels, each with a total power of -16 dBc. He states
    that for a 50 kW station, each would therefore be 1250 watts and
    current allocation rules provide protection of +6 dB D/U for first
    adjacent channels. According to McLarnon, if a station currently at
    +6 dBD/U adds IBOC, it creates a new source of co-channel
    interference to first adjacent channels at +22dB D/U. He believes
    that this is significant since it is 4 dB more interference power
    than is permitted by the Commission's allocation rules for
    co-channel stations. McLarnon further states that the majority of
    existing allocations were created when first adjacent protection was
    only 0 dB D/U, and this figure still applies to the Canada-US
    bilateral agreement on AM broadcasting.

[^246]: *See* Barry McLarnon Reply Comments at 3-4.

[^247]: 17 FCC Rcd 19990.

[^248]: More than three years ago, the Commission sought comment on an
    NRSC report documenting extensive laboratory and field tests of the
    FM IBOC system. iBiquity was the only developer to submit digital
    systems to the NRSC for evaluation. The NRSC FM report recommended
    that the Commission adopt iBiquity's FM system for DAB. On April 15,
    2002, the NRSC filed its evaluation of iBiquity's AM hybrid system,
    recommending that the Commission adopt the system for daytime use
    pending further study under nighttime propagation conditions.
    Broadcast industry commenters, including small and large radio
    station owners, equipment manufacturers, and receiver manufacturers
    expressed strong support for iBiquity's AM and FM systems, and both
    systems were subsequently adopted for interim use on a voluntary
    basis in the *DAB R&O*.

[^249]: The Clark petition challenges the *DAB R&O's* limitation of IBOC
    operation by AM stations to daytime hours pending further study of
    nighttime operation. Clark offers a set of criteria to identify AM
    stations that could implement IBOC immediately with minimal risk of
    interference. Given our approval of AM nighttime DAB operations in
    this *Second Report and Order*, *supra*, we find Clark's arguments
    moot and will dismiss his Petition.

[^250]: Amherst requests that the Commission establish a testing program
    for the Eureka-147 digital radio system used in Canada and Europe
    and also proposes that the Commission conduct additional IBOC
    testing. Several individuals filed comments supporting Amherst's
    petition. *See, e.g.,* John Anderson Comments at 1; Frederick R.
    Vobbe Comments at 1; and Kyle Drake Comments at 1.

[^251]: Opposition of the NAB of the Petition for Reconsideration of the
    Amherst Alliance and 33 Others at 1.

[^252]: Opposition and Comments of iBiquity Digital Corporation at 3 and
    5.

[^253]: We reject the argument that the denial of Amherst's Request for
    Environmental Impact Statement was not "officially" denied because
    the denial was not listed in the ordering clause of the *DAB R&O*.
    Where the text of an order is clear, the omission of the action from
    the ordering clause is not determinative.

[^254]: *See WWIZ, Inc*., 37 FCC 685 (1965), *aff\'d sub. nom.* *Lorain
    Journal Co. v. FCC*, 351 F.2d 824 (D.C. Cir. 1965).

[^255]: America's Missing: Broadcast Emergency Response. AMBER alerts
    notify the public in cases of possible child abduction.

[^256]: *See* January 25, 2003 and May 12, 2003 letters from the Amherst
    Alliance. Although the letters raise a new issue not addressed in
    Amherst's timely filed Petition for Reconsideration, we believe it
    is important to address any issues which allegedly affect public
    safety.

[^257]: In the digital television context, we have not imposed a
    specific cap on the amount of subscription services that could be
    offered. Rather, we have permitted television stations to use their
    digital capacity for any purpose as long as they transmit at least
    one over-the-air video program signal at no direct charge to
    viewers. *See* 47 C.F.R. § 73.624.

[^258]: *See* iBiquity comments at 8.

[^259]: For example, iBiquity states that it will continue to develop
    new applications for DAB including store and replay, on-demand
    services, and a "buy button." *See* HD Radio: What is HD Radio,
    <http://www.ibiquity.com/hdradio/whatishdradio.htm> iBiquity has not
    made it clear whether these services would be offered on a
    subscription basis.

[^260]: *See* 47 U.S.C. § 336(a)(2) ("If the Commission determines to
    issue additional licenses for advanced television services, the
    Commission. . . .shall adopt regulations that allow the holders of
    such licenses to offer such ancillary or supplementary services on
    designated frequencies as may be consistent with the public
    interest, convenience, and necessity.); *see also* 47 U.S.C. §
    336(b)(2) (("In prescribing the regulations required by
    subsection(a), the Commission shall. . . .limit the broadcasting of
    ancillary or supplementary services on designated frequencies so as
    to avoid derogation of any advanced television services, including
    high definition television broadcasts, that the Commission may
    require using such frequencies\[.\]"

[^261]: *See* 19 FCC Rcd at 7516.

[^262]: *See* 47 U.S.C. §336(e).

[^263]: 47 C.F.R. §73.624(g).

[^264]: *See* ¶ 65, *supra.*

[^265]: *See e.g., SDARS R&O*, 12 FCC Rcd at 5791-92; *Regulations
    Relative to Community Antenna Television Systems*, 20 FCC 2d 201
    (1969) (political cablecasting and sponsorship identification
    rules).

[^266]: *See Midwest Video*, 406 U.S. 649 (1972). We have adopted
    certain public interest requirements for DBS pursuant to Section 335
    of the Act. *See* *Direct Broadcast Satellite Public Interest
    Obligations*, 19 FCC Rcd 5647 (2004).

[^267]: 47 U.S.C. § 303. *See* ¶ 61, *supra*.

[^268]: *See*, *e.g*., 47 C.F.R. § 73.3526(e)(12) (commercial stations);
    47 C.F.R. § 73.3527(e)(8) (noncommercial stations).

[^269]: *See* ¶ 61, *supra*.

[^270]: PIC Comments at 19-28, 47-69; PIC Comments at 19-29, 47-69; PIC
    *Ex Parte* (filed July 26, 2006); PIC *Ex Parte* (filed August 10,
    2006).

[^271]: NAB Reply Comments at 16-17.

[^272]: *See* *Standardized and Enhanced Disclosure Requirements for
    Television Broadcast Licensee Public Interest Obligations*, 15 FCC
    Rcd 19816 (2000) ("*Enhanced Disclosure NPRM*").

[^273]: *Enhanced Disclosure NPRM*, 15 FCC Rcd at 19816.

[^274]: *Id.*

[^275]: *Amendment of Sections 73.1125 and 73.1130 of the Commission's
    Rules, the Main Studio and Program Origination Rules for Radio and
    Television Broadcast Stations*, Report and Order, 2 FCC Rcd 3215
    (1987).

[^276]: *Amendment of Parts 73 and 74 of the Commission's Rules to
    Permit Unattended Operations of Broadcast Stations and to Update
    Broadcast Station Transmitter Control and Monitoring Requirements*,
    Report and Order, 10 FCC Rcd 11479 (1995) ("*Unattended Operations
    R&O*").

[^277]: *Id.* at 11480.

[^278]: *Id.* at 11481-82.

[^279]: *Id*. at 11481.

[^280]: For example, EAS was not activated in connection with the
    January 18, 2002, train derailment near Minot, North Dakota, or the
    train collision in Macdona, Texas, ten miles from San Antonio.

[^281]: *See Review of the Emergency Alert System*, EB Docket No.
    04-296, First Report and Order and Further Notice of Proposed
    Rulemaking, 20 FCC Rcd 18625 (2005). *See also* *Recommendations of
    the Independent Panel Reviewing the Impact of Hurricane Katrina on
    Communications Networks*, EB Docket No. 06-119, Notice of Proposed
    Rulemaking, 21 FCC Rcd 7320 (2006).

[^282]: *See* 47 C.F.R. § 1.1206(b), as revised.

[^283]: *See id.* § 1.1206(b)(2).

[^284]: *See Electronic Filing of Documents in Rulemaking Proceedings*,
    63 FR 24121 (1998).

[^285]: 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).

[^286]: 5 U.S.C. § 605(b).

[^287]: *Id*. § 601(6).

[^288]: *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."

[^289]: 15 U.S.C. § 632.

[^290]: *See* 5 U.S.C. § 604.

[^291]: Pub. L. 107-198, *see* 44 U.S.C. § 3506(c)(4).

[^292]: *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).

[^293]: *See* 5 U.S.C. § 603(a).

[^294]: *See* 5 U.S.C. § 603(a).

[^295]: 5 U.S.C. § 603(b)(3).

[^296]: 5 U.S.C. § 601(6).

[^297]: 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."

[^298]: 15 U.S.C. § 632.

[^299]: *See* [13 C.F.R. §
    121.201](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=13CFRS121.201&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.09),
    NAICS Code 515112 (changed from 513112 in October 2002).

[^300]: *Id*.

[^301]: *Id*.

[^302]: *Id*.

[^303]: *Id*.

[^304]: NAICS code 334220.

[^305]: *Id*.

[^306]: The number of "establishments" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical
    locations for an entity is an establishment, even though that
    location may be owned by a different establishment. Thus, the
    numbers given may reflect inflated numbers of businesses in this
    category, including the numbers of small businesses.

[^307]: U.S. Census Bureau, 2002 Economic Census, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued May 2005).

[^308]: 5 U.S.C. § 603(b).

[^309]: *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).

[^310]: *Second DTV Periodic NPRM*, 18 FCC Rcd 1279 (2003).

[^311]: *See* 5 U.S.C. § 604.

[^312]: 5 U.S.C. § 603(b)(3).

[^313]: 5 U.S.C. § 601(6).

[^314]: 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."

[^315]: 15 U.S.C. § 632.

[^316]: *See* [13 C.F.R. §
    121.201](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=13CFRS121.201&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.09),
    NAICS Code 515112 (changed from 513112 in October 2002).

[^317]: *Id*.

[^318]: *Id*.

[^319]: *Id*.

[^320]: *Id*.

[^321]: NAICS code 334220.

[^322]: *Id*.

[^323]: The number of "establishments" is a less helpful indicator of
    small business prevalence in this context than would be the number
    of "firms" or "companies," because the latter take into account the
    concept of common ownership or control. Any single physical
    locations for an entity is an establishment, even though that
    location may be owned by a different establishment. Thus, the
    numbers given may reflect inflated numbers of businesses in this
    category, including the numbers of small businesses.

[^324]: U.S. Census Bureau, 2002 Economic Census, Industry Series:
    Manufacturing, "Industry Statistics by Employment Size," Table 4,
    NAICS code 334220 (issued May 2005).

[^325]: 5 U.S.C. § 603(b).

[^326]: *See* 5 U.S.C. § 801(a)(1)(A).

[^327]: *See* 5 U.S.C. § 604(b).

[^328]: The Commission has also failed to follow its own precedents. In
    Review of the Commission\'s Broadcast and Cable Equal Employment
    Opportunity Rules and Policies (Second Report and Order and Third
    Notice of Proposed Rulemaking), the Commission noted that one
    recruitment option available to broadcasters would have them recruit
    for "each upper-level job opening in a job bank or newsletter of a
    media trade group with a broad-based membership, including
    participation of women and minorities." 17 FCC Rcd 24018, 24056
    (2003). Commission EEO rules, codified in 47 C.F.R.
    §73.2080(c)(2)(iii) and 47 C.F.R. §73.2080(c)(2)(xii) (2003), make
    specific reference to "women and minorities."

[^329]: Press Release. Federal Communications Commission, Media Bureau,
    Audio Division, FCC Chairman Powel Launches "Localism in
    Broadcasting" Initiative. (August 20, 2003).

[^330]: *Order* at ¶ 62.

[^331]: *Orde*r at ¶ 68.