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[Senate Report 108-426]
[From the U.S. Government Publishing Office]

108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-426
_______________________________________________________________________

                                     

                                                       Calendar No. 813

              PUBLIC BROADCAST REAUTHORIZATION ACT OF 2004

                               __________

                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2505

DATE deg.December 7, 2004.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                      one hundred eighth congress
                             second session

                     JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska                  ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana                DANIEL K. INOUYE, Hawaii
TRENT LOTT, Mississippi              JOHN D. ROCKEFELLER IV, West 
KAY BAILEY HUTCHISON, Texas              Virginia
OLYMPIA J. SNOWE, Maine              JOHN F. KERRY, Massachusetts
SAM BROWNBACK, Kansas                JOHN B. BREAUX, Louisiana
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
PETER G. FITZGERALD, Illinois        RON WYDEN, Oregon
JOHN ENSIGN, Nevada                  BARBARA BOXER, California
GEORGE ALLEN, Virginia               BILL NELSON, Florida
JOHN E. SUNUNU, New Hampshire        MARIA CANTWELL, Washington
                                     FRANK LAUTENBERG, New Jersey
           Jeanne Bumpus, Staff Director and General Counsel
                   Rob Freeman, Deputy Staff Director
     Samuel Whitehorn, Democratic Staff Director and Chief Counsel
               Margaret Spring, Democratic Senior Counsel

                                                       Calendar No. 813
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-426

======================================================================

 
              PUBLIC BROADCAST REAUTHORIZATION ACT OF 2004

                                _______
                                

                December 7, 2004.--Ordered to be printed

                                _______
                                

       Mr. McCain, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                              R E P O R T

                         [To accompany S. 2505]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill joint resolution deg. (S. 
2505) TITLE deg. to implement the recommendations of 
the Federal Communications Commission report to the Congress 
regarding low power FM service, having considered the same, 
reports favorably thereon without amendment deg. 
with amendments deg. with an amendment and recommends 
that the bill joint resolution deg. (as amended) do 
pass.

                          Purpose of the Bill

  The purpose of S. 2505 is to implement the Federal 
Communications Commission's (FCC) recommendations with respect 
to the assignment of low power FM (LPFM) radio licenses. The 
FCC recommended that Congress eliminate certain restrictions on 
the assignment of these licenses and the statutory requirement 
for the FCC to conduct additional testing on the possibility of 
interference from LPFM stations to commercial broadcasters and 
on the possibility that LPFM stations may pose an economic 
impact on full power FM stations.

                          Background and Needs

  In 2000, the FCC authorized the creation of LPFM stations to 
allow noncommercial, educational, community-based groups and 
public safety organizations to provide a community-based radio 
service. LPFM licenses are not available to individuals or 
entities that currently hold a broadcast license. As of October 
2004, the FCC had issued 1100 construction permits for LPFM 
stations. Of those construction permits issued, 275 LPFM 
stations have been licensed, 200 have expired without being 
built and the remaining are presumably in the process of being 
built. In addition, 190 LPFM license applications are pending 
at the FCC for approval. LPFM stations generally reach 
audiences within a radius of 3.5 miles from the LPFM station's 
transmitting tower and are not protected from interference that 
may be received from a full power FM station.
  The FCC's rules require LPFM stations to provide interference 
protection to full power FM stations. For example, a new LPFM 
station operating on the same frequency as an existing full 
power FM station (for example, at 101.1 FM) is required to have 
its transmitter located far enough away from the existing 
station's transmitter to prevent interference. In addition, an 
LPFM station on the ``first adjacent channel'' (101.3 FM) or a 
``second adjacent channel'' (101.5 FM) must also adhere to 
distance spacing requirements to prevent interference , though 
the distance requirements are not as far as for LPFM stations 
operating on the same frequency.
  When it first adopted its LPFM rules, the FCC determined that 
an LPFM station broadcasting on a ``third adjacent channel'' to 
a full power FM station (101.7 FM in the continuing example) 
would not cause significant interference to a full power FM 
station. Therefore, the FCC allowed LPFM stations to operate on 
a third adjacent channel to a full power FM station without 
imposing any minimum distance separation requirement. However, 
before the FCC was able to fully implement this decision, 
Congress in late 2000 attached language to an appropriations 
bill requiring the FCC to: (1) hire an independent engineering 
firm to further study possible interference between full power 
FM stations and LPFM stations operating on a third adjacent 
channels, (2) delay the removal of third adjacent channel 
separation requirements, and (3) report the study's findings 
and any recommendations to Congress.
  Congress's action, which largely affected metropolitan areas, 
led to the elimination of at least 50 percent of the pending 
LPFM applications. As a result, there is only one LPFM station 
licensed in the top 50 cities nationwide. After the 
appropriations bill passed, the FCC hired Mitre Corporation to 
perform a study of LPFM interference to full power FM stations. 
The study took over two years to complete and cost over two 
million dollars. The study confirmed the FCC's initial 
findings: LPFM on third adjacent channels poses no significant 
risk of interference to other radio broadcast stations. The FCC 
issued its report to Congress in February 2004 recommending 
that Congress (1) eliminate the existing third adjacent minimum 
distance separation requirements between LPFM stations and full 
power FM stations and (2) eliminate the requirement from the 
2000 legislation mandating further testing on the economic 
impact potential interference from LPFM stations would have on 
full power FM stations.
  Low power proponents cite the study as conclusive evidence 
that the third adjacent channel protections are not necessary. 
Existing full power FM licensees continue to oppose removal of 
the third adjacent channel protection and have taken issue with 
the study. According to the National Association of 
Broadcasters, the study (1) contained severe methodological 
errors that skewed its results; (2) failed to meet the 
Congressional directive to conduct independent audience 
listening tests to establish what is objectionable 
interference; and (3) failed to meet the Congressional 
directive to examine the economic impact third adjacent LPFM 
stations would haveon full power FM broadcasters. In its report 
to Congress, the Mitre Corporation recommended not performing the 
subsequent testing, because of the dearth of evidence of any 
interference in the first instance. The FCC estimates that the 
additional study would cost over $800,000 to complete.

                          Legislative History

  On June 4, 2004, Senator McCain introduced S. 2505, a bill to 
implement the Federal Communications Commission's (FCC) 
recommendations, which would expand the availability of LPFM 
radio licenses and eliminate the requirement for further 
testing on the possibility of interference from LPFM stations 
to commercial broadcasters on third adjacent channels and on 
the possibility that LPFM stations may pose an economic impact 
on full power FM stations.
  On July 20, 2004 the Committee held an executive session at 
which S. 2505 was considered. By voice vote, the Committee 
adopted an amendment proposed by Senator Lautenberg to provide 
third-adjacent channel protection for full-power FM stations 
that are licensed in certain states, and for other purposes. 
The bill, as amended, was approved by a roll call vote of 12-
10.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 6, 2004.
Hon. John McCain,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2505, a bill to 
implement the recommendations of the Federal Communications 
Commission report to the Congress regarding low power FM 
service.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Melissa E. 
Zimmerman.
            Sincerely,
                                         Elizabeth Robinson
                               (For Douglas Holtz-Eakin, Director.)
    Enclosure.

S. 2505--A bill to implement the recommendations of the Federal 
        Communications Commission report to the Congress regarding low 
        power FM service

    Summary: S. 2505 would change the criteria in current law 
for licensing of low-power radio stations by the Federal 
Communications Commission (FCC). Such stations are operated by 
noncommercial entities and broadcast very weak signals (100 
watts or less) that reach a limited geographic area. This bill 
would repeal some of the engineering requirements that 
currently limit the number of low-power radio stations that can 
operate in certain areas.
    CBO estimates that implementing the bill would have no 
significant effect on spending subject to appropriation and 
would not affect direct spending or revenues. Easing the 
restrictions on low-power radio stations would likely increase 
the number of applications for such licenses. Based on 
information from the FCC, CBO estimates that the administrative 
costs of processing additional license applications would be 
negligible and that there would be no change in the FCC's 
offsetting collections because noncommercial entities do not 
pay application or regulatory fees for such licenses.
    S. 2505 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act, and 
any costs to state, local, or tribal governments would be 
voluntary. To the extent that public choose to apply for and 
develop new radio stations, they would voluntarily incur some 
costs.
    The CBO staff contact for this estimate is Melissa E. 
Zimmerman. The estimate was approved by Robert A. Sunshine, 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  S. 2505 would expand the availability of LPFM radio licenses 
and eliminate the requirement for further testing. The number 
of persons covered by this legislation should be consistent 
with current levels of individuals affected.

                            ECONOMIC IMPACT

  S. 2505 would expand the number of radio stations available 
for potential licensees and promote a new media outlet for 
consumers and advertisers.

                                PRIVACY

  S. 2505 is not expected to have an adverse effect on the 
personal privacy of any individuals that will be impacted by 
this legislation.

                               PAPERWORK

  S. 2505 has minimal or no impact on current paperwork levels 
as the FCC is already issuing LPFM station licenses.

                      Section-by-Section Analysis

Section 1. Findings

  Section 1 would set forth Congressional findings on LPFM. The 
findings detail the history of the community-based radio 
service, including the FCC's enactment in September 2000 of a 
simple process to address complaints from full power FM radio 
stations concerning interference from LPFM stations.

Sec. 2. Repeal of prior law

  Section 2 would repeal the language in the 2000 
appropriations bill that required the FCC to delay the 
licensing of LPFM stations on third adjacent channels to full 
power FM stations. See Section 632 of the Departments of 
Commerce, Justice, and State, the Judiciary, and Related 
Agencies Appropriations Act, 2001 (Public Law 106-553; 114 
Stat. 16 2762A-111).

Sec. 3. Minimum distance separation requirements

  Section 3 would direct the FCC to modify its rules to 
eliminate third adjacent minimum distance separation 
requirements between LPFM stations and full power FM stations, 
FM translator stations, and FM booster stations.

Sec. 4. Protection of radio reading services

  Section 4 would provide interference protection to ``radio 
reading service'' (RRS) stations that provide reading services 
over the radio frequencies to assist the blind. These stations 
broadcast using a sub-carrier frequency, which is more 
susceptible to LPFM interference due to its spacing on an FM 
channel. The FCC currently has a temporary rule preventing LPFM 
stations from operating on a third adjacent channel to a RRS. 
This section would direct the FCC to make this rule permanent.

Sec. 5. Federal Communications Commission rules

  Section 5 directs the FCC to retain its third-adjacent 
channel protection for full-power FM stations in certain 
States.

Sec. 6. Translator licensing

  Section 6 directs the FCC to evaluate the impact of 
translator licensing on radio stations and to promote 
opportunities for local low power stations and protect full 
power stations.

                      Rollcall Votes in Committee

  Senator Burns offered an amendment to implement the 
recommendations of the Federal Communications Commission report 
to the Congress regarding low power FM service. By rollcall 
vote of 10 yeas and 12 nays as follows, the amendment was 
defeated:
        YEAS--10                      NAYS--12
Mr. Stevens                         Mr. Brownback
Mr. Burns                           Mr. Fitzgerald
Mr. Lott                            Mr. Hollings
Mrs. Hutchison                      Mr. Inouye
Ms. Snowe\1\                        Mr. Rockefeller
Mr. Smith                           Mr. Breaux
Mr. Ensign                          Mr. Dorgan
Mr. Allen                           Mr. Wyden
Mr. Sununu                          Mrs. Boxer
Mr. Lautenberg                      Mr. Nelson
                                    Ms. Cantwell
                                    Mr. McCain

    \1\By proxy

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED 
                   AGENCIES APPROPRIATIONS ACT, 2001

         [PUBLIC LAW 106-553, APPENDIX B; 114 STAT. 2762A-111]

  [Sec. 632. (a)(1) The Federal Communications Commission shall 
modify the rules authorizing the operation of low-power FM 
radio stations, as proposed in MM Docket No. 99-25, to--
          [(A) prescribe minimum distance separations for 
        third-adjacent channels (as well as for co-channels and 
        first- and second-adjacent channels); and
          [(B) prohibit any applicant from obtaining a low-
        power FM license if the applicant has engaged in any 
        manner in the unlicensed operation of any station in 
        violation of section 301 of the Communications Act of 
        1934 (47 U.S.C. 301).
  [(2) The Federal Communications Commission may not--
          [(A) eliminate or reduce the minimum distance 
        separations for third-adjacent channels required by 
        paragraph (1)(A); or
          [(B) extend the eligibility for application for low-
        power FM stations beyond the organizations and entities 
        as proposed in MM Docket No. 99-25 (47 CFR 73.853), 
        except as expressly authorized by an Act of Congress 
        enacted after the date of the enactment of this Act.
          [(3) Any license that was issued by the Commission to 
        a low-power FM station prior to the date on which the 
        Commission modifies its rules as required by paragraph 
        (1) and that does not comply with such modifications 
        shall be invalid.
  [(b)(1) The Federal Communications Commission shall conduct 
an experimental program to test whether low-power FM radio 
stations will result in harmful interference to existing FM 
radio stations if such stations are not subject to the minimum 
distance separations for third-adjacent channels required by 
subsection (a). The Commission shall conduct such test in no 
more than nine FM radio markets, including urban, suburban, and 
rural markets, by waiving the minimum distance separations for 
third-adjacent channels for the stations that are the subject 
of the experimental program. At least one of the stations shall 
be selected for the purpose of evaluating whether minimum 
distance separations for third-adjacent channels are needed for 
FM translator stations. The Commission may, consistent with the 
public interest, continue after the conclusion of the 
experimental program to waive the minimum distance separations 
for third-adjacent channels for the stations that are the 
subject of the experimental program.
  [(2) The Commission shall select an independent testing 
entity to conduct field tests in the markets of the stations in 
the experimental program under paragraph (1). Such field tests 
shall include--
          [(A) an opportunity for the public to comment on 
        interference; and
          [(B) independent audience listening tests to 
        determine what is objectionable and harmful 
        interference to the average radio listener.
  [(3) The Commission shall publish the results of the 
experimental program and field tests and afford an opportunity 
for the public to comment on such results. The Federal 
Communications Commission shall submit a report on the 
experimental program and field tests to the Committee on 
Commerce of the House of Representatives and the Committee on 
Commerce, Science, and Transportation of the Senate not later 
than February 1, 2001. Such report shall include--
          [(A) an analysis of the experimental program and 
        field tests and of the public comment received by the 
        Commission;
          [(B) an evaluation of the impact of the modification 
        or elimination of minimum distance separations for 
        third-adjacent channels on--
                  [(i) listening audiences;
                  [(ii) incumbent FM radio broadcasters in 
                general, and on minority and small market 
                broadcasters in particular, including an 
                analysis of the economic impact on such 
                broadcasters;
                  [(iii) the transition to digital radio for 
                terrestrial radio broadcasters;
                  [(iv) stations that provide a reading service 
                for the blind to the public; and
                  [(v) FM radio translator stations;
          [(C) the Commission's recommendations to the Congress 
        to reduce or eliminate the minimum distance separations 
        for third-adjacent channels required by subsection (a); 
        and
          [(D) such other information and recommendations as 
        the Commission considers appropriate.]

                                  
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